Sharia, Uniform Civil Code and Indian Muslim – Is It Time For Change?

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Shayara Bano of Uttarakhand approached the Supreme Court when her husband sent her a letter declaring triple talaq. Representational image
Shayara Bano of Uttarakhand approached the Supreme Court when her husband sent her a letter declaring triple talaq. Representational image

The recent Shayara Bano case has revived the debate about the Uniform Civil Code and the issue of Muslim women’s rights. Instead of brushing it off as yet another case of interference in their personal affairs, the community needs to discuss the issue with an open mind and prepare itself for the challenges ahead  

ZAIGHAM MURTAZA | Caravan Daily

[dropcap]T[/dropcap]he never-ending debate over Common Civil Code in India often ends up quoting women’s rights and discrimination in the name of religious identities. Interestingly, both the defenders of Sharia law in India and those looking to abolish them seem to be on the wrong foot.

The Muslim Personal Law (Shariat) Application Act, 1937 directs the application of Muslim Personal Law to Indian Muslims in a number of areas. Broadly speaking, these areas rarely run out of the ambit of Marital and Succession issues. Neither the supporters of the Common Civil Code nor of Personal Laws even try to escape these two topics while talking the legalities.

Article 44 of the Directive Principles in India suggests implementation of Uniform Civil Code as the duty of the state. Remarkably, all the controversy over this issue has encircled Muslim Personal Law. Ever since we started hearing the words on this topic, they were all criticizing the second largest majority of the nation, without suggesting any solution. During the last 60 years, the Hindu Laws and the Laws that pertain to other communities such as Sikh, Parsi, Buddhists or Jains have rarely come into the general discourse.

Even though a discussions should be encouraged and there is no harm in discussing these issues, the main question is of the points of discussion. No one, neither the Government nor the critics have ever come up with the draft of the proposed Bill. When there is no draft, what are we challenging and what are we defending? Obviously, all the debate is for provocation and political mobilization.

Second most important issue is what is really on offer in the name of Uniform Civil Code? All Indian citizens, irrespective of their caste, color, creed, sect, locality or identity are bound by the same Indian Criminal Code. In civil matters every single person has to follow the same Civil Procedure as defined by the law of the land. Even those who marry abroad have to register their marriages in the court of Registrar.  For succession issues, the partitions decided by court are mostly based on general law and not according to Sharia.

Over the marital issues, the Supreme Court has said again and again, “If you are in court that means you do not believe in the Sharia system.” It is true to a large extent. When the two parties are in court that means they are asking to settle their dispute as per the law of the land. Else they would have settled it in a Sharia court or as per religious scriptures.

The issue of women’s rights obviously weakens the defense of Sharia in India. Although most of the Islamic countries claim Sharia as the main source of criminal law, in a country like Saudi Arabia there is no codified civil law. In Iran and Iraq, the legal system is highly flexible when it comes to civil procedure. Sometimes, the most rigid system of Sharia seems to be in India and the credit goes to half learned masses and the highly assertive clergy.

The recent Shayara Bano case is a classic example of this rigidity and one-sidedness. A woman challenging the triple talaq (divorce) in the court of law was subjected to torture and several abortions by her husband. The defenders of triple talaq may not have the real answers posed by the dispute. They may call it interference in their personal affairs but a crime is never personal. It is against the state.

Even though religious bodies and politicians will talk a lot about the validity of personal laws, rarely there will be one who may ever dare to ask punishment for her husband. The same Sharia that validates triple talaq also talks about punishment for crimes against human beings, let alone one’s wife. The same Sharia may also have clauses about forced abortions and that may also have the provisions against rape.

Does anyone remember the infamous Imrana case? The clergy debated over the validity of Halala and other ridiculous provisions but none said that rapist ought to be stoned in public as per Sharia. When it comes to such issues, the excuse is that the law of the land prohibits such killings but the same law also wants to curb the menace of laws that are often used to abuse the status of weaker sections.

Either the Islamic scholars and Muslim community at large come up with the necessary reforms or prepare themselves to face such criticism again and again. The more and more people approach courts with their problems the more it will test the case of Sharia in India and weaken the grip of the clergy over the masses. These are not the times when a non-mandatory fatwa (religious guidance) can rein in anyone. Greater education and subsequent knowledge revolution has brought much awareness amongst the masses. Women aren’t the exception. The only way forward is to bring the Sharia in tune with changing times and prepare it to face the challenges both from within and outside the community.

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