This article is written by Mr. Rutvij Vyas, a Second year student of Faculty of Law at GLS University, Ahmedabad 

Abstract 

The laws related to family matters are governed through various personal laws undermining individual’s religious beliefs. One of such personal law is Muslim personal law, applicable to Muslim community. Muslim law is also known as sharia law, which is not made by humans but by the divine will of Allah. The Muslim personal law (Shariat) application act, 1937 is a major law governing Muslim laws. This comprehensive article explores and analyzes crucial facets like Muslim marriage, divorce, guardianship, succession and maintenance. This article scrutinizes the legal dimensions that govern matters within Muslim community. Furthermore, it investigates the discourse on implementing a Uniform civil code, tracing its historical background, view of law commission and its contemporary deliberations. Understanding the positive impact of UCC, such as creating gender equality, national integration; this article also highlights the key issues and challenges such as, lack of consensus, uncertainty of tribal laws and possible threat to pluralism. The article is being concluded on harmonious note of modernizing the personal laws, making them consonant with the vision of Liberty, Equality & Freedom for all groups within religious community, instead of having a uniform civil code, the article proposes Uniformity within civil code.

Introduction 

India is a country which sanctions the personal laws, each religious group have their own personal law. Personal laws deal with concepts like Marriage, maintenance, guardianship, divorce, adoption, succession, partition.etc. Same way the Muslim community which is the biggest minority community, have their own set of laws otherwise called Sharia law governed by their way of life. Sharia is an Arabic word which translates as “The Correct Path”. The Muslim law applies to A. Muslims by origin and B. Muslims by conversion.  In one of the leading case, it was stated that there are two basic beliefs of Muslims, first, the existence and oneness of God, and second was the belief in the truth of Prophet Mohammed’s mission. 

Uniform Civil Code is an idea which seeks to provide one family law for the entire nation, applicable to all religions groups. The term is explicitly mentioned under Article 44 of The Constitution of India, ‘The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India’. The Supreme Court in various cases presented the need of Uniform Civil Code but due to lack of Political will it was avoided. The proposals in UCC include Monogamy, equal protection of rights for son and daughter over succession of paternal property. The Uniform Civil Code would be Gender, Race and Religion neutral Pan India laws with exceptional relief to tribal communities.  

Muslim Personal law

The Muslim Personal law refers to a set of laws that govern various aspects of family matters within Muslim community. Muslim personal law includes:-

• The Muslim Personal law (Shariat) application Act of 1937
• The Dissolution of Marriages Act of 1939
• The Wakf Act of 1954
• The Muslim women (Protection of rights on Divorce) act of 1986
• The Muslim women (protection of rights on Marriage) act of 2019

1. Marriage under Muslim law-

-Islam from the very beginning has regarded their marriage as a Contract and not a sacrament. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of child. Under section 2 of The Muslim women (Protection of rights on Divorce) act, 1986 marriage among Muslims is a “solemn pact” called “Mithaq-e-ghalid” between a women and man, imploring to others feeling of companionship. 

Brief process of Muslim marriage is:-

1. Proposal (Ijab):-from either of the party
2. Acceptance (qubul):- from other so in contract, moreover there can’t be a valid acceptance without free consent and such consent must not be obtained through coercion, fraud or undue influence.
3. Mehr (dower):- the groom agrees to pay specific amount to the bride in a form of financial statement.
4. Nikahnama:- The marriage contract signed by couple and witnesses, terms of relationships and mehr amount are documented.
5. Marriage feast (walima):- A feast organized by groom after consummation of marriage.
6. Registration:- Every marriage shall be registered within thirty days from conclusion of nikah ceremony.

In a clear judgment of Hon’ble Kerala high court it was held, where the girl’s father has given the consent and bride had withheld hers, marriage is not valid. 

2. Divorce under Muslim law

Talaq or divorce is quite unique aspect of muslim law where husband has unilateral power of pronouncing divorce on his wife without assigning a reason. ‘Divorce is most copious and uninhibited aspect of Muslim matrimonial law’. There are 4 major kinds of talaq :-

1. Express talaq -lucid and unequivocal pronouncement of  “I have divorced thee” by the husband;

1. Talak -e-sunna (approved divorced)

• Ahsan (single pronouncement during period of tuhr)
• Hasan (Pronouncement of talaq three times during 3 successive tuhrs)

1. Talaq-e-biddai (unapproved divorce)

• Triple Talaq
• One irrevocable announcement 

1. Implied talaq or contingent talaq– a talaq pronounced, which would be effective contingent to future event.
2. Talaq-i-tafweez – Husband delegated his power of divorce to wife, thus wife gets the right to initiate divorce.
3. Divorce by mutual consent

3. Khul
4. Mubara
5. Maintenance under Muslim law

The whole concept of maintenance is to provide a security to the spouse who is unable to maintain financially and is financially dependent on other spouse. Section 125-128 of Criminal procedure code,1973 deals with maintenance of wives, children and parents. The objective of the Muslim women (protection of rights against divorce) act of 1986 is to provide, “Protection of rights of Muslim women who have been divorce by, or have obtained divorce from their husband.” Section 3 of this act provides for entitlement to Muslim women at the time of divorce:-

1. Reasonable and fair maintenance within the iddat period by husband.
2. Maintenance for her children, if she maintains them for a period of two years from their date of birth.
3. An amount equal to agreed Mahr as per Muslim law.
4. Properties given to her before, at the time of, or after marriage given by husband or relative or friend of husband or by relative of friend of husband.

4. Guardianship under Muslim law

Under Muslim law, the Guardianship (Wilayat) refers to overall oversight of child throughout the minority. Father, has the first right of guardianship, the paternal grandfather becomes guardian in his absence. Muslim law recognizes 4 major kinds of guardianship:

1. Natural-Legal Guardian-The primary guardian of minor, Father is Natural guardian in Muslim law (in absence of him, grandfather becomes guardian and not mother). Mother  can neither be appointed nor can act as a guardian of minor under muslim law.
2. Testamentary guardian- The guardian appointed by will made by father of child, or by his executor, or by paternal grandfather. The process of appointment of the guardian can be implied of express.
3. Guardian appointed by court- The court have the power to name a guardian under Guardian and wards Act, 1890, only in case of absence of Natural/legal guardian.
4. De facto guardian- A guardian who is not officially appointed but takes care of child and looks after well-being and welfare of child, however they have no legal rights over the child or his property.

5. Succession under Muslim law

–Succession is a process of transfer of property of deceased person to his/her living- legal relative. The Non-testamentary succession is regulated by –The Muslim personal law (Shariat) Application act, 1973, it classifies the heirs into 2 categories- “sharers” & “residuary”. Class of heirs under hanafi-muslim law are:-

*Class 1 of heirs includes- Widow, widower, daughter, son’s daughter, full sister, consaguine sister, uterine sister, uterine brother, mother, father, True grandmother, true grandfather

*Class 2 of heirs includes quranic residuaries and general residuaries.

*Class 3 of heirs includes all the blood relative which are absent in previous class.

In absence of class 3 relatives, the property would be passed to the State following the rule of Escheat

Uniform Civil Code.  

India being a diverse nation with rich heritage had a long history of personal laws. Hindu civil law has its roots in Manusmriti, Yajnavalkya smriti and other texts. Same way Muslims, Christians, Parsi and others have their own set of Civil Law based on their way of life as per religion. Uniform Civil code is an idea of having a single set of law for the entire country, applicable to all the religious groups in their personal matters such as marriage, divorce, guardianship, adoption .etc.

History for demand of Uniform code– In 1835, the law commission submitted its report expressing strong need for uniformity in Indian civil laws. In 1941, B.N.Rao committee examined the necessity of unified Hindu law. When India attained Independence and in Constituent Assembly the question was raised regarding civil law in independent & secular  India, Dr B.R Ambedkar along with G.S Iyengar, Anantasayam Iyengar, KM Munshi, Alladi Krishnaswamy Iyer and others favoured single civil code for Indians while it was strongly opposed by some members like Poker Saheb. ‘On 23rd November 1948 a member of constituent assembly, gave an open challenge that India would never be the same again if it tried to bring in Uniform Civil code’. In 2018, Law commission report suggested that, “U.C.C is neither necessary nor desirable at this stage”. However the 22nd Law Commission is set up to hold meetings, discussions on UCC.

Advantages of Uniform Civil Code

1. Ensures Equality– It can be argued that current personal laws violate the principle of equality before law and equal protection of laws, also the UCC can be used as a tool to achieve clarity, simplicity and equality in personal laws. 
2. National Integration -“A common civil code can help in the cause of national integration by creating a harmonious law for conflicting ideologies”.
3. Gender Justice- UCC will promote gender equality by removing the discriminatory provisions of personal laws. Such as polygamy, Inequality in succession, sole natural guardianship of father in Muslim law.etc
4. Freedom of Choice- UCC would encourage and provide protection to couples in case of Intercaste and Interfaith marriages. 

Challenges & Issues

1. Existence of Legal pluralism in civil laws & uncertainty of tribal laws
2. Right to freedom of religion, provides each person to profess and practice religious beliefs.
3. Uniform Civil Code threatens a pluralistic and diverse Indian society.
4. Lack of Consensus in drafting and lack of vision document.
5. Whether UCC would be blend of all personal law or a new common law being sui generis.

Conclusion

In view of the aforesaid information, it is concluded that there must be amalgamation of doctrines of Equality-liberty& freedom in our laws, for that there must be reforms in personal laws by making them consonant to the values of Constitution; each personal laws have their essential features which has been integral part of people’s life, altering those features may harm the harmony and diversity of India. There is a need for bringing Uniformity within the personal laws through the way of reforms; for e.g. Hindu laws before 1955, were conservative, can be called as gender bias however after the changes in 1955-56 & 2005, they are now in consonance with modern values also have the original spirit. There is abundant scope for enacting more such reforms in Muslim law and other such laws.

Reference

1. This article was originally written by- Kali Robinson published on Council on foreign relations. The link for the same is herein. https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law  
2. Narantakath Vs. Prakkal (1922) ILR 45 Mad 986
3. Muslim Law in India And abroad, Tahir Mohammed, 9789350356975, second edn.
4. Article 44; The Constitution of India
5. Family law, Dr Paras Diwan,978-93-95759-10-6,13th Edn.
6. Section 3 of Muslim Marriage Registration act, 1981
7. Adam Vs. mohammed, 1990 1 KLT 705
8. Ghulam husani kuttubudin Manner Vs. Abdul rashid Abdul manner 2000 AIR SC (citation not found)
9. Law Commission of India. Consultation paper on Reform of Family Law, dated- 31st August 2018
10. Mohd. Ahmed Khan Vs. Shah Bano Begum 1985 (1) SCALE 767= AIR 1985 SC 945
11. Uniform Civil Code: An ignored Constitutional imperative, M.S.Ratnaparkhi, 8171567223. First edition