Need for an Indian Muslim Family Law Act
TAHIR MAHMOOD
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Promising trends to review old judicial precedents
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Article 44 of the Constitution of India contains a Directive Principle of State Policy asking the State ‘to endeavour to secure for the citizens a uniform civil code throughout the territory of India’. The provision does not ipso facto abolish the community-specific family laws; nor does it preclude the State from enacting such laws in future. The nature and requirements of Article 44 have been considered by the Supreme Court in a number of cases. In Pannalal Bansilal’s case of 1996 it observed that “A uniform law, though highly desirable, enactment thereof in one go may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law gradual progressive change and order should be brought about. The mischief or defect which is most acute can be remedied by the process of law at stages.”
Muslim law is a part of law of the land in this country. Like any other law it is within the legislative competence of the State for the purpose of amendment and reform and within the courts’ powers of interpretation of laws. This is the correct constitutional position, though the policy of the State may be to tread cautiously in exercising their respective legal powers. The legislature in India has always been reluctant in this respect, but of late the courts have begun to review old judicial precedents to discover the true Muslim law.
Internal contradictions
The Muslim Personal Law (Shariat) Application Act 1937 (popularly known as the Shariat Act) is full of internal contradictions. This law had been enacted in response to a pro-women movement among the Muslims but, ironically, turned out to be an anti-women measure and created more problems than it intended to solve. By making Muslim inheritance law compulsorily applicable to all Muslims but leaving application of the Muslim law of bequests to the sweet will of individuals it gave inheritance rights to women by one hand only to take away by the other hand. In 1949 the Madras State legislature extended it to agricultural property and the amended law is now applicable in Tamil Nadu, Andhra Pradesh and Karnataka. A similar law was enacted in Kerala in 1963. These local amendments, having no parallels in any other State, have effected further discrepancies in the application of Muslim law in the country. Further, in the nearly all-Muslim Union Territory of Lakshadweep and the Muslim-dominated state of Jammu and Kashmir local customs still supersede Muslim law; and in Goa, Daman and Diu Muslims continue to be governed by the archaic Portuguese laws. As regards substantive family law, there are only two central statutes – the Dissolution of Muslim Marriages Act 1939 and the Muslim Women (Protection of Rights on Divorce) Act 1986 – the former dealing with women’s right to judicial divorce and the latter with their post-divorce rights. The Muslim laws of marriage and men’s right to divorce, though equally in a bad shape, have never been given a statutory form either by the central or by any state legislature.
There is a strong case for the enactment of a ‘Muslim Family Law Act’ incorporating the existing substantive laws relating to the Muslims with necessary reforms based on recent judicial decisions. Notably, the Hindus, (including Buddhists, Jains and Sikhs), Christians and Parsis have their own special laws, enacted or reformed after the enforcement of the Constitution – none of them has been forced to accept a uniform civil code. In the context of Muslims, however, people talk only of the desirability of a uniform civil code and never of the need for separate reform of Muslim law.
This is unreasonable and encourages the community to continue with their time-worn social practices. Muslim family law has been fully codified not only in a score of Muslim countries but also in the Christian-dominated Philippines which enacted for its half a million Muslims a Code of Muslim Law in 1977. Secular India with its 150 million Muslims need not lag behind.
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