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The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda

Published online by Cambridge University Press:  06 March 2019

Werner Menski

Extract

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Postcolonial India's modernist ambition to have a Uniform Civil Code, impressively written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal systems. What is the relationship between personal status laws and general state-made laws? To what extent should the formal law allow for, or seek to restrain, the legal implications of religious and socio-cultural diversity? To what extent does a state, whether secular or not, actually have power and legitimacy to decree and enforce legal uniformity? There are many more agendas at play here than simply the central issue of legal authority, focused on the power of the law, or simply “religion” v. “law”, or “culture” v. “law”, as we are often still led to believe.

Type
Research Article
Information
German Law Journal , Volume 9 , Issue 3: A Special Issue on India , 01 March 2008 , pp. 211 - 250
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 See Werner Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, 4 (2d ed. 2006).Google Scholar

2 See Menski, Werner, Asking for the Moon: Legal Uniformity in India from a Kerala Perspective, Kerala Law Times, 2006(2), at 52.Google Scholar

3 See generally Narmada Khodie, Readings in Uniform Civil Code (1975); Tahir Mahmood, An Indian Civil Code and Islamic Law (1976); Vasudha Dhagamwar, Towards the Uniform Civil Code (1989).Google Scholar

4 Shah Bano is an old Indian Muslim lady then in her seventies, now deceased, whose affluent lawyer husband famously deserted her for a younger woman and then sought to rely on traditional Muslim law to refuse any further responsibility for her welfare. See Khan, Mohd Ahmed v. Begum, Shah Bano, A.I.R. 1985 S.C. 945.Google Scholar

5 See Satvinder Juss, International Migration and Global Justice, 1 (2006) (discussing the idea that the world order today depends, to some extent, on freedom of movement).Google Scholar

6 New work from some family lawyers is beginning to reflect this concept. Compare Jon Murphy, Ethnic Minorities, Their Families and the Law (2000) and Jon Murphy, International Dimensions in Family Law, 2005) with Prakash Shah, Law and Ethnic Plurality: Socio-Legal Perspectives (2007).Google Scholar

7 See Menski, , supra note 1, at 58.Google Scholar

8 See Menski, Werner, Rethinking Legal Theory in Light of South-North Migration, in Migration, Diasporas and Legal Systems in Europe 13-28 (Prakash Shah & Werner Menski eds., 2006).Google Scholar

9 The voice of Buoaventura de Souza Santos has been particularly powerful in this respect. See Buoaventura de Souza Santos, Toward a New Legal Common Sense (2d ed. 2002); Masaji Chiba, Asian Indigenous Law in Interaction with Received Law (1986).Google Scholar

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11 These laws are not officially recognised by a state, but exist in social reality. Compare Chiba, , supra note 9 (discussing the interaction of official law, unofficial law and “legal postulates”) with Menski, , supra note 1 (elaborating on the notion).Google Scholar

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13 Historians and other social scientists often have a far too limited and restrained, positivism-centric understanding of “law” and its possibilities of skilful intervention. See, e.g., Sufia Uddin, Constructing Bangladesh: Religion, Ethnicity and Language in an Islamic Nation (2006) (presenting an excellent recent discussion of such academic struggles).Google Scholar

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The expert tradition of Dharma during the centuries immediately preceding the common era appears to have been vibrant and dynamic as shown by the numerous contradictory opinions of experts recorded in the extant Dharmasūtras. Such diversity of opinion belies the common assumption that ancient Indian society was uniform and stifling under an orthodoxy imposed by Brahmins. If even the experts recorded in these normative texts disagree so vehemently, the reality on the ground must have been even more chaotic and exhilarating.Google Scholar

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17 India's new Prohibition of Child Marriage Act of 2006 illustrates this interplay. It renders Indian child marriages voidable, not void ab initio after judges had warned that it would be “absolutely brutal” to render all child marriages void. Werner Menski, Hindu Law: Beyond Tradition and Modernity 368 (2003) (discussing Mallikarjunaiah, V. v. Gowramma, H.C., A.I.R. 1997 Kant. 77, at 81).Google Scholar

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19 The Muslim Women (Protection of Rights in Divorce) Act, No. 25, Acts of Parliament, 1986.Google Scholar

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21 See Danial Latifi v. Union of India, (2001) 7 S.C.C. 740.Google Scholar

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25 This is cited with approval (but apparently insufficient impact on that scholar's subsequent thinking) in Jaya Sagade's, “Law and Social Reforms in Rural India with Special Reference to Child Marriages”. See Sagade, Jaya, Law and Social Reforms in Rural India with Special Reference to Child Marriages, 1 Sup. Ct. J. 27 (1981). See also Sagade, , supra note 16.Google Scholar

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31 See Geoffrey A. Oddie, Imagined Hinduism (2006) (discussing various historical constructions of the image of Hinduism and Hindu law).Google Scholar

32 We should also remember that much of “colonial India” was not under direct British rule, but under what in Africa and elsewhere came to be called “indirect rule”, largely retaining local legal and political structures, not to speak of social norms and value systems.Google Scholar

33 See M.B. Hooker, Legal Pluralism (1975).Google Scholar

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41 While this has had some relevance for legal development in modern India, we cannot explore this further here.Google Scholar

42 Some old reported cases from India, however, show that Muslims sometimes defined Hindus as kitabiyya to justify marriage to a Hindu woman. After all, many Hindus also have religious texts and may treat such a text as a kind of holy book, especially the epic Ramayana.Google Scholar

43 See Jyotirmaya Sharma, Hindutva: Exploring the Idea of Hindu Nationalism (2003).Google Scholar

44 The predicament of comparability is hardly new: the seven volumes of the History of Dharmashastra, originally written towards the end of the colonial period, were partly designed to prove to the colonial powers that Hindus had “proper” law, even if it meant that Kane often overstated his case. See Pandurang Vaman Kane, History of Dharmashastra (1968) (1930-1962).Google Scholar

45 The storming and destruction of an old mosque in Ayodhya in December 1992 gave rise to huge debates, outrage, as well as communal riots all over India.Google Scholar

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48 See Dhagamwar, , supra note 3, at 76.Google Scholar

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50 The term “identity postulate” is explained by Chiba as a term focused on construction of identity of a particular people, a set of values and ethics rather than a body of rules. Masaji Chiba, Legal Pluralism; Towards a General Theory Through Japanese Legal Culture 180 (1989).Google Scholar

51 Notably, my learned predecessor, Derrett, J.D.M., still saw reservations in 1968 about the ability to make law through statutory intervention as an “apparently unpractical point of view”. See Derrett, , supra note 26, at 76.Google Scholar

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53 On Ambedkar's contribution, there is a huge literature. See Dhawan, S.K., Dr. Ambedkar, B.R.: A Select Profile (1891-1956) (1991); 1 & 2 K.L. Chanchreek, Dr. B.R. Ambedkar: Patriot, Philosopher, Statesman: Economic Writings (1991); Nazeer H. Khan, B.R. Ambedkar on Federalism, Ethnicity and Gender Justice (2001).Google Scholar

54 See Galanter, Marc & Krishnan, Jayanth, Personal Law Systems and Religious Conflict, in Religion and Personal Law in Secular India: A Call to Judgment 270-300 (G.J. Larson ed., 2001) (depicting a typical Anglo-centric statement).Google Scholar

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56 See supra note 53.Google Scholar

57 India Const. art. 44.Google Scholar

58 Antony Allott, The Limits of Law 216 (1980).Google Scholar

59 See Kumar, Virendra, Uniform Civil Code Revisited: A Juridical Analysis of John Vallamattom, 45 Journal of the Indian Law Institute 315-334 (2003).Google Scholar

60 See Menski, Werner, Jaina Law as an Unofficial Legal System, in Peter Fluegel, Disputes and Dialogues: Studies in Jaina History and Culture 417-435 (2006) (discussing the position of Jaina law).Google Scholar

61 In their own way, Pakistan and later Bangladesh did exactly the same for Muslim law, again without complete success in terms of legal unification and reform.Google Scholar

62 Under the Muslim personal law (shari'a), based on Quran'ic verses, up to four wives are allowed to Muslim husbands. In contrast, section 5(i) of the Hindu Marriage Act of 1955 prohibits polygamous marriage for Hindus and makes it a crime under section 17 of the same Act. See The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.Google Scholar

63 See Menski, , supra note 20, at 139-230; Menski, , supra note 17, at ch. 10 (attempting to bring the various strands together).Google Scholar

64 See Shah Bano, A.I.R. 1985 S.C. 945.Google Scholar

65 See Latifi, Danial, (2001) 7 S.C.C. 740.Google Scholar

66 See supra note 26.Google Scholar

67 The Hindu Marriage (Amendment) Act, 1964, No. 44, Acts of Parliament, 1964 (adding two new grounds for divorce among Hindus).Google Scholar

68 See J. Duncan M. Derrett, A Critique of Modern Hindu Law (1970).Google Scholar

69 See J. Duncan M. Derrett, The Death of a Marriage Law (1978).Google Scholar

70 See, e.g., Singh, Bikkar v. Kaur, Mohinder, A.I.R. 1981 P&H 391; Kaur, Balbir v. Singh, Maghar, A.I.R. 1984 P&H 417.Google Scholar

71 See Menski, , supra note 20, at 72-138 (examining the relevant case law).Google Scholar

72 See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).Google Scholar

73 See Soundarammal v. Sundara Mahalinga Nadar, A.I.R. 1980 Mad. 294.Google Scholar

74 See Bano, Shah, A.I.R. 1985 S.C. 945. See also Jorden Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 935, at 935-936, 940.Google Scholar

75 One of the most recent examples is John Vallamattom v. Union of India, where V. N. Khare, then Chief Justice of India stated that “[i]t is a matter of regret that Art. 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies”. Notably, this was two years after the uniformising legal developments analysed in the present article. John Vallamattom v. Union of India, 2003(3) KLT 66 (SC), at 80.Google Scholar

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92 See Menski, Werner, Double Benefits and Muslim Women's Postnuptial Rights, Kerala Law Times, 2007(2), at 21-34.Google Scholar

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95 In 1976, the Marriage Laws (Amendment) Act inserted section 13(2)(iv) into the original Hindu Marriage Act, permitting a Hindu wife exit through divorce from a marriage into which she had been virtually forced, a rule taken from Muslim law. See the Marriage Laws (Amendment) Act, 1976, No. 68, Acts of Parliament, 1976.Google Scholar

96 See Agnes, Flavia, Interview with Tanu Thomas K., The Times of India, Aug. 29, 2003 (stressing that “the press has chosen to ignore it and the general public is unaware of it”).Google Scholar

97 See Menski, , supra note 92.Google Scholar

98 See Menski, Werner, Reluctant Legislative Activism, Kerala Law Times, 2004(1), at 35-41.Google Scholar

99 See Vatuk, , supra note 91.Google Scholar

100 See The Maintenance and Welfare of Parents and Senior Citizens Act of 2007.Google Scholar

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102 But Indian Muslim women can, and apparently do, use the quite liberal provisions of the Dissolution of Muslim Marriages Act, 1939.Google Scholar

103 See Mary Sonia Zachariah v. Union of India, 1995(1) KLT 644 (FB).Google Scholar

104 The Indian Divorce (Amendment) Act, 2001, No. 51, Acts of Parliament, 2001, § 10(2).Google Scholar

105 See Menski, , supra note 7.Google Scholar