Short Article by Shahid Ali (Advocate) on Uniform Civil Code.
The Uniform Civil Code reflects about an intention of the legislature to form a common civil code/laws in order to govern all citizens of India, irrespective of religion, by one and same rules/laws.
We are not against the concept of governance of all Indian Citizens by one and single code, however, it has to be seen, investigated, inquired into and considered as to which kind of law/ lagislature is good, suitable, effevtive, ditterent, reformative and appropriate for all citizens of India irrespective of their religion.
Time and again, it has been written, acknowledged, admitted, accepted and maintained by all scholars, administrators, jurist, academicians, philosophers, philanthropist, social workers and human right activist around the globe that Islamic system of Laws, particularly the Civil Laws, are more appropriate, suitable, reformative, effevtive and practicable than any other law prevalent any where, be that the laws of inheritance, laws pertaining to divorce and marriages etc.
Suffice would be, qua the law of succession and inheritance, renowned Jurist F.S. Tayab Ji, had observed that “the muslim law of inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection a single individual or homogeneous group of individuals, on whom the estate of the deceased should devolved by universal succession, but for adjusting the competitive claims of all the nearest relations”. It has also been observed qua the Islamic law of succession and inheritance that the law of succession is unique aspect of Islamic law. The Al-Quran in chapter 4 verse 4.11 and 4.12 provides the complete system of succession wherein, for the first time the females were included in the list of legal heirs entitled to inherit in the estate left by the deceased. As per the Quran not only the widow is entitle to have 1/8th share from the estate if deceased but also the daughters whereas, the share of male in comparison to female has been described by Quran as that of double share i.e., a male shall have as much as the share of two females.
Likewise, the marriage as per Islamic law is not a sacrament like the Hindu conception of marriage but a civil contract wherein, all rights and duties have not only been defined but requires to be specifically enforced. Under Islamic Law after marriage a women does not lose her individuality, she remains a distinct member of a community. Her assistance of personality is not merged into that of her husband. The contract of marriage gives no power to anyone over her person or the property beyond what the law defines. Women remains the absolute owner of her individual right, even after marriage she can alienate or transfer her property in any way she pleases without any extraneous control of her husband. She can enter into binding contract with her husband and proceed against him with law of courts. Needless to say, the women enjoys this position through the injunctions of Quran.
Chapter 2 Ayat 235 of the Quran specifically provides “there is no blame on you that you make them an offer of marriage…. But do not make a secret contract except in terms honourable, nor resolve on the tie of marriage till the term prescribed is fulfilled.”
Regarding divorce, the Prophet of Islam is reported to have said “With Allah, the most detestable of all things permitted is divorce and towards the end of his life he practically forbade its exercise by man without intervention of an arbitrator or a judge. The Quran ordance “if ye fear a breach between them twin (the husband and wife) appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment, Allah will make them of one mind”. The Quran permits it partly because of some countenence to the customs and partly to enable man to get rid of an odious union.
Time has proved beyond doubt that the Quranic Injunctions coupled with the Hadees are the best system of laws. The divorce by consent was first introduced by the Islamic law, which was later inserted in the Hindu Marriage and Divorce Act in 1976, in the Parsi Marriage and Divorce Act 1988 and the Indian Divorce Act 2001. It is because of these special laws that among Muslims Divorce rate is very rare in comparison to followers of other religion and so the bride burning.
It is often said that women have no right of divorce among Musims, whereas, there is a complete code, known as The Dissolution of Muslims Marriage Act 1939 which prescribes various grounds under which a women can obtain divorce. The most significant aspect of the act is that the grounds mentioned in the said act do not require the same degree of proof which otherwise are required under the Hindu Marriage Act, Indian Divorce Act, The Parsi marriage and Divorce Act, the Special Marriage Act or any other Act. The Prophet (SAW) is reported to have said if a women be prejudice by a marriage let be broken off.
Before embarking any thing upon Muslim Laws, one should first study the Islamic laws and consider how beautiful laws are these, and that the same can never loose its importance or impact at any point of time ànd so also the practicability.
We, hereby, make clear that negative propaganda which is being propagating against Islam in order to poison the minds of youth of India and worldwide, should not be allowed and at once should be stopped and an healthy and open debate should be commenced without any prejudice.
I want to add one thing if all laws are considered and investigated with free and open mind, it is the Islamic system of laws, which all concern would require to Impose.
Author is an Advocate practices at Delhi High Court.