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Central India Law QuarterlyTowards A Uniform Civil Code: A Study In The Light Of Judicial Decision ...

TOWARDS A UNIFORM CIVIL CODE:

A STUDY IN THE LIGHT OF JUDICIAL DECISION ON THE

MUSLIM LAW OF MAINTENANCE

ARAVIND. B.·

VIKRAM J. SINGH ••

1. The idea of the Uniform Civil Code (UCC)1, a common set

of family laws tor all Indian citizens, often invokes emotional

reactions in all quarters. It is seen either as a ready made and

available solution for all of India's ills as regarding personal

laws, or as a futile enterprise. But this paper works on the

premise that there is more to the UCC, than these reactions

and opinions. The question is not of minority protection, or even

of national unity, it is -sirnply one of treating each human person

with the dignity that he deserves; something which personal

laws have so far failed to do. Taking a purely legal angle, the

right to a UCC is constitutionally guaranteed to every individual

in India by the operation of Art 44 of the Constitution, But which

organ of the State is mandated to give effect to this promise,

has its fulfilled this mandate? It is this legal angle that this

paper takes a loo.k at, specifically with respect to these legal

aspects as expressed in the legal developments regarding

Muslim Personal Law of Maintenance.

-"-lind year, B.A., LLB. (Hons), National Law School of India University.

1 Article 44 of the Indian Constitution that states that "The State shall

endeavour

to secure for all the citizens a Uniform Civil Code throughout the

territory of

India."

Vol XIV TOWARDS A UNIFORM CIVIL CODE· 372

2. The inaction of the l.eqistature In implementing the UCC

has been widely attributed to a lack of political will, extra legal

consideration influencing the governments of the day, and the

appeasement of minority fundamental factions" ..Rather, the

implementation of the DPSp'under Art 44 has been attempted

not by the elected representatives of the people. but by the

Judicial wing through a number of progressive pronouncements.

This is an example of "Judicial Activism" that the Courts in

India have taken up, specially with regards to the enforcement

of the mandate of the Constitution. This paper studies this

recent phenomenon in the context of the controversial Muslim

Personal Law of Maintenance. In doing so, particular emphasis

would be laid on the developments in this regard in the 1990's.

An overview of the Muslim Personal law of Maintenance

3. It would be helpful first to gain a basic understanding of

the Muslim personal law on the maintenance of wives, before

we venture into an analysis of the UCC vis a vis Muslim Law on

Maintenance.

4. It is mandatory provision of the Quran that a husband is

bound to maintain his wife irrespective of her being a Muslim,

poor or rich, young or old if not too young for sexual

intercourse 3 . A wife whose marriage was performed according to

2 Through the view is almost univesally held. for a lucid analysis see Jaya

Sagade, "Legislative Regulation of Muslim Personal Laws",. 9(1) 1982

Jour-.

nal of Bar Council on India at 90.

3. M.A. Qureshi, Muslim Law of Marriage and Maintenance 299 (New

Delhi;

Deep and Deep PUblications, 1995)

373 CENTRAL INDIA LAW QUARTERLY 2001

Muslim law and who has attained an age at which she can

render conjugal. rights to her husband is entitled to receive

maintenance". A husband is not bound to maintain his wife who

refuse. herself to him or is disobedient unless the refusal or

disobedience is justified by non-payment of dower. The wife is

not entitled to maintenance if she is too young for sexual

intercourse or if she refuses to live with her husband without

reasonable excuses. Under Muslim law maintenance is known

as 'Nafkah' it includes in simple words food, clothing and

lodging 6 . Maintenance is due to a woman only during the period

of her Iddaf. The wife can receive maintenance from her

husband as per her social position, determined mostly by her

monetary standings.

An Account of the Initiatives For Reform.

Early Legislative initiatives:

5. The Code of Criminal Procedure, 1898 contained in the

form of s.488, which pertained to maintenance to a woman, a

provision that was interpreted several times against the woman

4. Ibid at 300

5. D.F. Mulla, principles of Mohammedan Law 227 (Sir S. Ragnekar ed.,

12th

edn., Calcutta; Eastern Law House, 1944)

6. G.C.V. Subba Rao, Family law in India 440 (7th edn. Hyderabad: S.

Gogia and

Co. 1998).

7. Id.

8. M.A. Qureshi, Muslim Law of Marriage and Maintenance 319 (New

Delhi:

.Deep and Deep Publications, 1995)

9. Ashutosh Mookerjee, Marriage Sepration and Di~orce 192

(Calcutta: S.C.

Sarkar, 1991).

Vol XIV TOWARDS A UNIFORM CIVil CODE 374

herself". Under this code maintenance was not available to

ex-wives and hence the code never came into conflict with

Muslim Law on maintenance. The joint Select Committee of

the parliament in 1972 had recommended that the benefit of

maintenance in the Code of Criminal Procedure should. be

extended to divorced women 10. Therefore the provision was

enlarged in the 1973 code in the form of s. 125 to include the

ex-wife in its ambit; this positive step of the Legislature was

amply made use of by the Judiciary, which passed a number of

liberal decisions.

A Look at the Case law on Maintenance of Muslim

Wives on Divorce.

6. After the coming in force of the Constitution, and bearing

in mind the 'Equality of the Genders' --guaranteed in it, the

judiciary struck a different note. The earlier approach to

Personal Laws like in Aga Mohammad v. Koolsan Bee Bee"

was given up. An early notable attempt was made by the Andhra

Pradesh High Court in Chancia v. Mangamma 12 , but the ball

was really set rolling by a string of Supreme Court decisions.

The earliest one was Bai Tahira v. Ali Hossein Fissati'", followed

10 Report of the Joint Select Committee on the Criminal Procedure Code

(1972)

at·p XIII

11 241A 196 at 204. The Privy Council in this case laid down the rule that

the

courts should accept the interpretations of the traditional authorities and

not

interpret the Quran by itself.

12 (1969) CrLJ 684.

13 AIR 1979SC 362.


by Fazlunbi v, Kader vali 1 4 which established the legality of the

secular provision of s.125 CrPC in the face of conflicting

provisions in Personal Laws. The culmination of th is reformist

trend is seen in the 1981 decision of Zohra Khatoun v.

Mohammad I brahim ", which held that by the operation of s.125

CrPC, a Muslim divorced wife is entitled to ornaintenance even

beyond the lddat'" period. Justice Murtaza Fazal Ali struck the

most radical note yet, observing in the judgement:

" The Code of 1973 has to some extent impliedly

overruled the provisions of Custom and Personal laws of the

parties." .

7. A plethora of other progressive decisions followed

these three decisions ". But the common feature of all these

[udqernents was the delicate balance struck between the

religious laws and secular provisions of the Criminal Code!".

Fro mas i t u a t ion 0 f com pie t e j ud i cl a I s elf - res t raj n t

pre-independence, the [udiclal interpretation of Muslim personal

laws.

14 AIR 1980 SC 1730.

15 AIR1981SC1243.

16 This period is usally 3 lunar months from the date of the divorce, as

per s.

3(1 )(b) of the Muslim Women's (Protection of Rights on Divorce) Act,

1986.

17 For instance the pronouricements in the cases of Shahzadi Begum v.

Abdul

Gaffer, (1981) CrLJ 1523; and Sahida Begum V. Mofizul Haque, AIR

1986 Gau

171.

18 M.A. Quereshi, Muslim Law of Marriage and Divorce (New Delhi: Deep

and

Deep, 1992)

19 AIR 1985 SC 945; delivered by a five judge bench of the Apex court

headed

by Chandrachud, C.J.

Vol XIV TOWARDS A UNIFORM CIVIL CODE: 376

The Shah Bano 19 ca_se .

8. The judgement of Shah Bano defined a watershed in

personal law issues in India. It has alternately been described

as a "reformist Juggernaut"20 and "a bull in a china ShOp"21,

the jUdgement sparked off t~.biggest Personal law controversy

that India had seen till then. It involved a pronouncement by

the Supreme Court on the Muslim personal law of maintenance,

and the question of maintenance to an ex-wife. It involved the

interpretation of s. 1250f the Code of Criminal Procedure, and

the question whether the provision overrides the personal law

of the community. It was a decision based on a number of solid

precedents on the topic as detailed above. But the decision

became the hotbed of debate due to some parts of it being

read to be against the Islamic religion as such. The comments

of Chief Justice Chandrachud regarding the "pious obligation

of the Muslim husband" were taken as the fodder for allegations

of "the destruction of Muslim culture and identity";!2.

9. As a response to the demands made by a number

of orthodox associations within the Muslim community, the

Parliament passed the Muslim Women's (Protection of Rights

20 Ratna kapur, "Feminism, Fundamentalism and the Rights Rhetroic",

The Indian

Journal of Social Work 1993 V (1) at 355.

21 Flavia Agnes, Procedure and ~ase Law on Maintenance 144 (Pune:

Majilis,1992).

22 For a detailed account of the protests and their nature, see Sundari

Krishna,

"Personal laws and the Constitution", 3 Stud Adv (1991) 65: Zoya

Hassan,

"Minority Identy, Muslim Woman's Bill Campagain and the Political

Process",

EPW Jan 71989 XXVI (1) at 44.


-e-

on Divorce) Act, 1986. This law is widely regarded as bein~in

the nature of an 'Invalidating Law', aimed at nullifying a deci5m'rf""<

of the Judiciary.

10. The Legislation met with widespread criticism and

condemnation from all quarters>, A representative opinion is

one expressed by Justice Krishna Iyer:

"The bill is a dangerous mistake ..... public power gone awry. It

is against justice, which is a facet of the suprema lex, and

based on purely political conaiderations.":"

The Situation After the passing of the 1986 Act.

11. It would be prudent now to examine the judicial

decisions that have followed the enactment of the 1986 Act,

as these represent a fine example of progressive Judicial

Activism by the Courts. In a number of decisions, we can

observe the Courts efforts to give effect to the Constltuticnat

mandates of Gender Equalfty and fair and humane persdl'lal

laws. In Kasam v~ Janabhaj25 it was held that the Act did not

operate retrospectively as any such repealing clause was

23 For a representative opinion see Saleem Akhter, "Maintenance to

Muslim

Divorcees", vol. 9(1) 1982 Journal of the Bar Council of India at 90; A.M.

Bhattacharjee, Maintenance Laws and the Constitution 29 (Calcutta:

Estern

Book House, 1996)

24 In "An Open letter to the Prime Minister", (1986) 2 SCC Journal 1.

25 2(1987) DMC 15, the Act was held as not affecting previously passed

orders

for maintenance.

Vol XIV TOWARDS A UNIFORM CIVIL CODE: 378

absent. A reconciliation between the CrPC and the new Act

was attempted in the case of A.A Abdullah v. A.B.M.

Sayeidbhaf'", where it was specifically held that:

"The 1986 act does not degrade the Muslim women's right to

take recourse to the CrPC, as the Act is a Personal Law

subordinate to the CrPC"

12. A similar reasoning was applied to uphold the

Muslim women's rights in the cases of Shahnaz Bano v. Baboo .

Khan ", Ali v. Sufaria 2 8 and Bashir Khan v. Jamilla Bi 2 9 . A

different reasoning has been followed by a few High Courts when

dealing with the matters of maintenance. S.3 of the Act, which

provided for "fair and reasonable provision as maintenance",

has been interpreted to mean provision of maintenance even

beyond the Iddat period. The leading decision in this case has

been the Andhra Pradesh High Courts pronouncement in

Mohammad Tajuddin v. Qamarunnissa Begum 30 .

13. The decision of the Calcutta High Court of May 2000

in Sakila parvin v. Haider Ali 3 1, is a recent example of decision

of

26 AIR 1988 Guj. 141.

27 1(1986) DMC 106.

28 (1988) CrLJ 197.

29 (1994) CtLJ 361.

30 AIR 1989 AP 207; th9u9h this decision was overruled by a full-bench of

the

same court in Usman Khan v. Fatheimunnisa Begum, AIR 1990 AP 225.

3I The Times of India, 16 June 2000 at 11.


this sort. In a 2000 decision of the Bombay High Court 32 , the

same reasoning was upheld, with additional observations on

the mode of the payment of this sum. This 2000 decision makes

it clear that the judicial trend has been outlined in this section

shows no signs of abating.

An Unfinished Job: The Need for Legislative Action.

14. It is submitted that as a result of various recent [udiclal

decisions with regard of s.3 of the 1986 Act where there has

been a progressive interpretation of Muslim Personal law, the

practical effect has been the reform of the Muslim Personal

law benefiting women.

15. The argument against reform of these laws because they

are sacrosanct and of their being the accepted practice of Islam,

is negetived to a large extent by reforms carried out in a large

number of orthodox Islamic nations. In Pakistan as early in

1967 in Khurshid Bibi's Case heralded an era of liberal

interpretation of Muslim law by holding that reasoning will take

precedence over traditional Islamic teachings. 33 Further, the

1961 Family Act in the same country has reformed laws to the

degree of making monogamy the rule 34 . In 1995 the Bangladesh

Supreme Court followed suit, expressly overruling the Privy

Council's pronouncement in Aga Mohammed's case rejecting

32 Law Teller Sept. 2000 p 411-412; a decision of the Full Bench of the

Bombay

High Coort.

33 PLD 1967 SC 97.

34 Keith Hodkin, Muslim Family Law-A Source book 355 (London; Grooms

Heins,

1979).

Vol XIV TOWARDS A UNIFORM CIVIL CODE 380

the contention that the Quran has to be interpreted solely on

the basis of traditional author itie s ". The same positive

response has been seen by reforms in cou ntries such as

Jordan, Egypt and Tunisia".

16. It is indeed ironic and puzzling that such progressive

development in law has not taken place in India with its strong

democratic institutions and express Constitutional mandates

in this regard. For such a comprehensive and meaningful reform

in Personal Law to be effected, legislative action is. inevitable.

Lessons from the developments in Muslim Personal Law:

The Need for a Uniform Civil Code.

17. From the arguments and opinions that have been

highlighted throughout this paper, the judiciary's vital and

significant role in attempting reforms and reiterating the need

for a UCC' is amply clear. The courts have distinguished

themselves in giving effect to both the Constitutional mandate

of equality between the sexes and Art. 44:

18. A question that frequently raises its head is that of the

form that a UCC would take. Though Art 44 of the Constitution

provides a rough framework, it does not specify the exact from

35 Danial Latifi, "Arrested step towards Islamic Reformation", From the

Lawyers

Collective Aug-Sep 1997 v. 12,no.8-9,p.16.

36 Supra note 35 at 326.


that a UCC should take. A concern that has been raised is

that the UCC would end up compromising the plurality of the

India State. As has been observed.

"A gen uine democracy must have safeguards against

majoritarian authoritarianism ... the majority community should

not be allowed to run rough-shod over the sentiments of the

rninorttiea'?".

19. Though this paper would avoid going into this controversy,

it can be adequately addressed by following a careful line in

framing a UCC. The concerns and fears of all sections of

citizenry, and above all the criteria of Justice, should be kept

in mind while formulating the Code. The new civil code

formulated should be step forward in converting the goals of

our constitutlons into reality and also forwarding the directive

principles of state policy. S Krishna Iyer has aptly put it:

"It will be Indian, not Hindu. Nor will any Islamic group

be allowed to be a law unto itself. Some of the finest principles

of Islamic jurisprudence may find their way into the Uniform

Civil Code even as some of the noblest conceptions of the Hindu

in the area of Family Law will become the common estate for

alllndians. lt 3 8

******

37 Danial Latifi, "Arrested step towards Islamic Reformation", From the

Law-

yers Collective Aug-Sep 1997 v. 12,no.8-9,p.16.

38 VR Krishna Iyer, "The Shah Bano Case, The Consititutional and the

Court"

(1986) vol.13 JBCI1 at 2.s

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