Article 44 of the Indian Constitution provides that the State should endeavour to secure a uniform civil code throughout India. Though the Hindu Law has been reformed and codified, the Muslim Law has not been codified as yet In fact, when the Hindu Personal Law was codified, a demand was made that as provided in our Constitution, a uniform civil code for all the communities in India should be enacted but this demand was not conceded. However, a beginning in this direction was made in 1950s by codifying Hindu law first.
On 23 April, 1985, the Supreme Court, in one of its most controversial judgements in recent times, ruled that under Section 125 of the Criminal Procedure Code, a Muslim husband had to provide for a divorced wife who had no means of a livelihood. The Supreme Court also held that this section was in keeping with the spirit of the Koran which enjoined a man to look after his wife.
This historic judgement was delivered by the Supreme Court in the famous Shah Bano case. In this case, a Muslim woman who was divorced after 43 years of marriage had sought redress against an unfair personal law. Conservative sections of the Muslims strongly protested against this judgement in and outside Parliament. They contended that this judgement was an attack on the “Shariat”, the Islamic law and, therefore, on Islam itself.
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After the Supreme Court judgement, the debate on the question whether we should have a uniform civil code for the whole oflndia has again started. Those who favour introduction of a uniform civil code advance a number of reasonls m support of their view. A common civil code would simplify the legal process. Since such a code will apply to all sections of the people irrespective of the religion to which a person belongs, it will promote national integration. If every community is governed by separate personal laws of its own, it will fan separatist tendencies among people.
Muslims claim that the “Shariat” is divinely ordained. If this claim is accepted, the Hindus might claim that the Institutes of Manu speak of the Lord Prajapati” having created the institutes. Similarly, Christians would aver that their Bible is full of “God spake”. In any case, as Shariat is based on the interpretation of the Koran by human beings,’ it cannot be regarded as divinely ordained.
In reality, personal laws of every religious denomination contain many good points into a uniform civil code. This would benefit all the community. Moreover, India is a secular country. It should not, therefore, have personal laws based on religion alone. A uniform civil code will strengthen the spirit of secularism. It will make all the people equal in the eyes of law. It will end the sense of discrimination.
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On the other hand, the people who are opposed to the introduction of a uniform civil code point out those even countries like Great Britain have a common law based on tradition. That which is based on tradition is most acceptable to the public and should not be disturbed. These people fear that any interference with the personal law of the Muslims could lead to a new bout of communalism in India.
It has been stated that in Islam, the personal law, the law in general and Muslim way of life are intertwined. The Muslims consider Shariat as inviolable. Any interference with Shariat will, they argue, be an attack on Islam itself.
Muslims are found in many countries of the world. They have common customs all over the world. If a common civil code is introduced in India, it will be discriminatory and prejudicial. If a Muslim in India is required to do something which is contrary to Muslim law, it will be tantamount to compelling him to violate Muslim religion as a whole. It could arouse the ire of Muslim fundamentalists in other parts of the world, who would try to help their brothers in India.
Although it appears that the balance of advantage lies in having a uniform civil code, yet it would be better and prudent to mobilise public opinion for it especially among the minorities so that the measure does not spark off communal riots in the country. The best time to codify Muslim laws would be when the Muslim community itself is receptive to this idea and is ready for it.