Part 4 | Whose law is it anyway? | Landmark Judgements that Transformed India

The story of landmark judgments continue and we are here with the tale of a judgement which ignited passions then, and is still hotly debated in the context of Indian secularism.


Consider the following facts –

  1. It’s lawful for a Muslim man to keep more than one wife but not for a Hindu man. Of course no woman Hindu or Muslim can have more than 1 husband in our patriarchal society.
  2. Hindus can form an undivided family (HUF) to manage their assets better and in the process reduce their taxes but not Muslims or Christians.
  3. Christians can’t file for divorce before completion of 2 years of marriage while other communities can do so after 1 year of marriage.
  4. Christian women get no share in the property of deceased children while different rules apply to other communities.

These observations prompt one to ask, whose law is it anyway!

This chaotic situation is the result of religious laws governing matters relating to marriage, divorce, succession, inheritance, maintenance etc.

The question of uniform civil code had been raised time and again since independence but post supreme court judgement in 1985 on “the maintenance a divorced Muslim woman would be entitled to receive”, this question has acquired a distinct communal overtone.

In this mini series we discuss the tale of Shah Bano case . This is the story of a judgement which would lead to politics of Mandal- Kamandal and set off a chain reaction which would set ablaze fires of communalism and set off one of the biggest communal riot in the post independence history of India. It would change the politics of India and relationship b/w 2 major communities forever.

But before we come to the judgment, let us briefly have a look at the constitutional provisions relating to religious freedom, secularism and supreme court interpretations of the same.

Art 15– No discrimination on grounds of religions, race,caste, sex, place of birth only.

Art 25– Freedom of conscience and free profession, practice and propagation of religion subject to reasonable restrictions on the grounds of public order, health and mortality.

Art 25 (2) provides for regulating secular activities associated with religious practices and social welfare and reform.

Art 26– right to establish and administer religious institutions.

Art 27–  Prohibit state from levying tax proceeds of which are used for the benefit of a particular religion.

Art 28– deals with issue of religious instruction in educational institutions.

Art 44- A DPSP provides for  uniform civil code

CAA 42nd inserted secularism in preamble.

In S.R.Bommai vs Union of India case, supreme court held secularism as a basic feature of the constitution.

Origin of different personal laws

#1. The Lex Loci Report of October 1840

  1. It emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract.
  2. It also recommended that personal laws of Hindus and Muslims should be kept outside such codification. 

 #2. Queen’s 1859 Proclamation promised absolute non-interference in religious matters. So while criminal laws were codified and became one for the whole country, personal laws continue to be governed by separate codes for different communities.

What was the reason?

Indians resisted British attempts to change their religious and customary practices and British realized it the hard way with various sporadic localized revolts and massive mutiny of 1857.

Charter act of 1813 had allowed missionaries to come to India and promote Christianity. To impress the liberal govt in Britain (2 main parties in Britain that time were liberals and conservatives, labour party came later ) to grant them another 20 years of trade monopoly, EIC, promoted activities of missionaries and under leadership of Bentinck passed many social reform legislation like abolition of Sati in 1829.  But primary motive being money and loot, they abandoned it when they saw it hurting their commercial interests.

The same situation was allowed to continue post independence. Constitution was written in the shadow of partition. There was tremendous anxiety among the minority community so founding fathers thought it fit to prescribe principle of UCC in DPSP. It was their fond hope that with time, minorities will feel safe and parliament would be able to legislate a uniform civil code.

Apart from very chaotic situation different codes for different communities create, religious laws of every community discriminated against women. .Laws had to be reformed and for that very reason art 25 (2) provides for state intervention in secular practices associated with religion.

To reform Hindu laws, Hindu code bill was piloted by Dr Ambedkar which legalized divorce, provided for only monogamy, gave inheritance rights to daughters. Amid intense opposition of the code being anti Hindu, a diluted version was passed via 4 different legislation.

  1. the Hindu Marriage Act,
  2. Succession Act,
  3. Minority and Guardianship Act
  4. Adoptions and Maintenance Act.

For instance diluted Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act in 2005.

Similarly in Gita Hariharan case, supreme court while interpreting Minority and Guardianship Act, declared mothers also the natural guardian of child even when father is alive.

Special marriage act was enacted in 1956 which provided for civil marriages outside of any religious law .

Other personal laws remained unreformed and most visible aspect at least in public consciousness of unreformed laws were provisions of triple talaq and polygamy in Muslims.

Let’s come back to the judgment 

Shah Bano, a 73 yr old woman was divorced by her husband by triple talaq and was denied maintenance. She approached the courts.

District Court and high court ruled in her favour that led to her lawyer husband moving to supreme court.

Facts of the case

  1. Under Muslim personal law, maintenance was to be paid only till period of iddat( roughly 90 days ).
  2. Section 125 of crpc  (criminal procedure code) that applied to all citizens, provided for maintenance of wife.

A five judge constitutional bench of supreme court unanimously ruled in her favour. But it also passed some adverse remarks about Muslim personal laws and failure of parliament to legislate UCC.

Note that judgement came not very long after 1984 anti Sikh riots.  Muslims felt under siege and all India Muslim personal law board and conservatives vigorously defended the application of their own personal laws. Govt was accused of imposing Hindu culture on minorities. It was seen as a threat to Muslim personal law which they considered their identity. The fact that none of 5 judges who advocated for uniform civil code was Muslim did not help the matter but was evidence of imposition of Hindu values over Muslims. Media sensationalism did not help matters either.

Aftermath and impact

Rajiv Gandhi govt. buckled under pressure and passed The Muslim Women’s (Protection of Rights on Divorce) Act (MWA) was passed in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.

This law was exact opposite of its name as any sane person can see it was passed to neutralize supreme court judgement in Shah Bano case.

Rajiv govt was accused of minority appeasement and perhaps to compensate the other side or by sheer coincidence, magistrate in Ayodhya ordered opening of the gates of disputed Babri masjid. Bofors scandal wrecked his Mr clean image and govt fell in 1989 and in ensuing general election VP Singh of national front became the PM. He played the Mandal card and in response, Advani started rath yatra. Politics of kamandal had begun . All of this would have very tragic consequences but that’s the story for some other day.

Daniel Latifi case

MWA was challenged on the grounds that it violated right to equality (art 14, 15) as well as right to life (art 21).

Supreme court while holding the law as constitutional, harmonised it with section 125 and held that amount received during iddat period should be sufficient to maintain her during iddat as well as provide for her future.

Different personal laws for different communities esp provision of polygamy for Muslim men gave rise to the phenomenon of converting into Muslim just for the sake of remarrying without divorce. Everyone would have heard the tale of Chand Mohammad(deputy CM of Haryana) and Fiza.

Sarla Mudgal v.Union Of India

Supreme Court in its judgement in 1995 held such practice as illegal and criminal.

Again an appeal was made to parliament to have a re look at UCC.

Supreme court parroted Sarla Mudgal lines again in Lily Thomas case 5 years later but still many Hindus convert to Islam just to remarry.

in spite of the chaotic situation and denial of rights to women, governments hav  failed to even put out a draft UCC. This leads us to ask-

Some thought questions related to UCC –

#1. Would there ever be suitable conditions  for the enactment of UCC?  What would be those conditions like? Would not vested interests always thwart attempt to bring a UCC?

#2. If parliament does indeed decides to bite the bullet and passes UCC,what could be the adverse consequences of the same?

#3. What should be the broad principles on which such UCC be based?

#4. Should supreme court not strike down all the provisions which are discriminatory to women or violate their human rights as being unconstitutional ?

#5. What do u think should be the way forward ?

In the next article we shall discuss more fundamental questions related to Indian secularism like right to freedom to convert, extent of state intervention in religious affairs, desirability or otherwise of a secular court interpreting scriptures and determining what’s core religious practice and what’s not and by extension what can be restricted and what can not be ?

By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

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