DR. SAMEENA FAHEEM. Prof. of English Deccan College Engg. & Tech.
Before the re-emergence of Islam in Arab, people used to follow tribal social structure, those were the rules and laws which were modified with the need of time and situation. But when Muslim ummah got established in medina in 7th century by Prophet Muhammad (pbuh), he brought Islamic rules and regulations in the light of Quran and Hadith. These are the laws brought in the society to resolve their practical problems-like marriage, divorce, inheritance, custody of children etc. Hence the code of conduct relating to legal and moral issues is known as ‘Shariah’. It covers all spheres of life. The Shariah became the final code of conduct during the time of Prophet Muhammad and for all the times to come for Muslims.
A part of Shariah laws pertaining to rights and responsibilities of the members of a family has been fixed; these laws are known as ‘The Family Law’ or ‘Personal Law’. Muslim personal law in India came into force in 1937. This Shariah Application Act was passed aiming to formulate an Islamic law code for Indian Muslims.
The Britishers who were ruling at that time were trying to ensure that Indians be ruled according to their own cultural norms. Since the injunctions of Quran Sunnah are foremost important for Muslims, the Act lays out that in the matters of personal dispute, the state shall not interfere.
The law applies to Muslims in the Muslim Personal Law Act reads as follows:
‘Not withstand any custom or usage to the contrary. In all questions (save questions relating to agricultural land) regarding interstate succession, special property inherited or obtained under or gift or any other provision of personal law, marriage, dissolution of marriage, including talaaq, ila, zihar, lian khula and mubarrat, maintenance, dower, guardianship, gifts, trusts and properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslim Personal Law (Shariah). This law was made during British Rule.
After independence when the Constitution of India was formulated under Article 25(1) of the Fundamental Rights, it stated that, ‘Subject to public order, morality and health and to the other provisions of the part, all persons are equally entitled to freedom to progress, practice propagate religion.’ This article gives protection to the Muslim Personal Law too. But unfortunately, under Article 44 of the Directive Principles of State Policy, it says “The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
This Article 44 conflicts with Article 25(1) which gives freedom to religion.
Just like Muslim Personal Law, separate civil codes were framed for other religions as well in the country for e.g. the Hindu Succession of 1955 which lays out guidelines for property inheritance among Hindus, Buddhists, Jains and Sikhs. The Parsi marriage and Divorce Act of 1936 lays out rules to be followed by the Parsis according to their religious traditions.
The laws which had been codified for Hindu Marriage Act of 1955 had also been amended as they felt there was a need to include laws on divorce and separation. Not only these separate civil codes pertaining to marriage are laid out but there also exists a ‘Special Marriage Act’ which was amended in 1954. This Act provides provisions for marital laws irrespective of religion. Any person of any religion can get married under this law.
What is Uniform Civil Code? And what are the drawbacks of UCC?
Uniform Civil Code is proposal to replace Personal Laws with a common set of laws governing every citizen. This proposal later focused specifically on Muslim Personal Law when Shah Bano Case in 1955 triggered a controversy regarding the extent to which courts can interfere into personal and religious laws. There started a debate on Shariah law which permits divorce and polygamy in the Muslim Community.
The following are the drawbacks of Uniform Civil Code if it is implemented.
1. If Uniform Civil Code is imposed it will be according to majority wishes and it is well known that the mind of the majority is deeply influenced by the West.
2. It is also of the view that polygamy will be banned.
3. The right to divorce will not be with the husband but it would lie with the courts.
4. Sons and daughters will get equal share in succession and so on.
There is an apprehension that the proposed Uniform Civil Code is going to be the Hindu Code with slight modifications. This apprehension is well supported by Mr. Duncan, Professor of Oriental Laws in London University. He says: “The Civil Code promised in Article 44 of the Constitution is like ‘Hindu Code’ of which we have spoken before, a nuisance, but a convenient one.”
Now let us see what Islam says to its believers
Islam demands to its followers that whoever believes in Islam must follow all the ordinances and instructions of Almighty Allah and His prophet (pbuh) without any reservations whatsoever. Whatever has been ordained should be followed and whatever has been prohibited should be desisted from. It has also been commanded in Quran that if any dispute arises among the Believers, it has to be decided in the light of Quran and Hadith.
Surah Nisa Verse no. 59 says:
“If you differ in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day.”
It is very sorry to say that we are approaching wrong direction and knocking the doors of the court to resolve our problems. Now it is the high time that our Muslim women and men wake up from slumber. They must realize the responsibility to educate themselves in the light of Quran and Sunnah. They must know that their issues like marriage, khula, talaq etc should be resolved as per Islamic injunctions.