Essay on Common civil code — A critique

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At the very threshold of this book, in no uncertain terms, it is said that the term ‘Mohammedan Law’ is a misnomer. However, it is a useful expression so far as India is concerned because, in India, not the whole of Islamic Law but only a certain part of it is applicable to Muslims.

Obviously, therefore, in India, except that portion of Mohammedan Law, all Muslims are governed by the same Civil Law as other non-Muslims are governed. It means the Civil Law (and also the Criminal Law) is Common to all citizen of India and it matters not if one is Hindu or Muslim or Christian or Parsi. Then, what exactly does the terminology ‘Common Civil Code’ means? The terminology ‘Common Civil Code’ is commonly understood to mean only the ‘Personal Law.’

This then brings to the fore the terminology, ‘Personal Law.’ What does the terminology, ‘Personal Law’ means? It means the law applicable to ‘person’ in relation to marriage, dower, divorce, maintenance, succession etc. Thus, the Common Civil Code means the ‘Common Personal Law’ applicable to all and it does not take into its fold the whole of the Civil Law in its entirety. Further, it must also be clearly being noted that although the “Substantive” personal law will be applicable to respective community and so far as the “Procedural” personal law is concerned, it will be the Indian Law.

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Thus, an issue of divorce will be the Muslim Personal Law. But whether, in a given case, it is divorce or not will always be decided on the basis of Indian Law, namely, the Indian Evidence Act. It was held by the Full Bench that the Hindus have preserved their personal law peculiar to themselves and so the Muslims have done the likewise. The Court referred, with approval, to the case of Bombay High Court.

The same question was also considered by the apex Court which has taken the view that otherwise the personal law of the Hindus, the Muslims and others would be rendered void for these laws contain different provisions in respect of various matters. In one another case it was held that the Hindu Marriage Act, 1955 which imposed monogamy only on Hindus was valid and did not violate Article 14, 15 or 25 of the Constitution of India. It will be thus seen that it has always been the policy of law that a ‘person’ should be governed by his personal law. As such, Hindus are governed by their personal law, Parsis are governed by their personal law, Christians are governed by their personal law and so the Muslims are governed by their personal law. Thus, the different personal laws are not contrary to the scheme of Law or the Constitution of India.

Further, when both parties are Muslims, there is no difficulty because both parties generally follow the customs and have the same legal system. If one party is Muslim and the other is not then also there is no difficulty because the law applicable to the Defendant is applied. Thus, even if there is no Common Civil Code, the litigant will not be put to any disadvantage as there is in-built device in law to protect the adversary.

Let us now consider the issue entirely from different angle. The Courts have as far back as in 1871, has ruled that a litigant cannot play fraud on law. In that particular case, the parties had embraced Islam only to legalise their illegitimate relationship. The Privy Council, therefore, held that when the change in religion itself was not bonafide and a fraud on law, the second marriage cannot be held to be legal and valid. Again, in 1945, Bombay High Court laid down that Muslim text should be so applied as to suit modern circumstances and conditions. The Honorable Supreme Court of India as recently as in the year 1995 has held that the matrimonial disputes (or wherever there is conflict of law) must be decided on the basis of justice, equity and good conscience.

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The Courts have, thus, evolved a rule of law under which conflicting personal laws are perfectly balanced even without the Common Civil Code. Nevertheless, there has been a persistent demand for a Common Civil Code. Let us, therefore, take a stock of the Muslim Personal Law. During the infancy stage of Islam, the apostasy was taken as a danger to the State and it was nothing short of treason. Law consequently prescribed death penalty for the offence but when a woman abandoned Islam, she was to be imprisoned until she returned to the faith. However, the penalty prescribed for apostasy was only for those who were born Muslim and not for those who had adopted Islam under compulsion or otherwise.

It would be absurd that one part of the rule of apostasy under Islamic Law be enforced while the other part should be ignored. Secondly, the social conditions have so completely changed since the rules were formulated in Islamic Jurisprudence that a blind adherence to some of the rules, torn out of context, would lead neither to justice nor to a fair appraisal of the system under which the laws were plumulgated. Thirdly, there cannot be unchecked polygamy and uncontrolled Talaq. In fact, the countries (where Islam is the State religion) have also applied checks, prevents, balance and control on ‘Polygamy’ and ‘Talaq’. Then why not in India also, particularly when India is not a theocratic country? But how does one apply these checks and balances in India? Through Courts?

The Honourable Supreme Court of India held that the remedy lies somewhere else and not by knocking the door of the Court. The apex court then further observed that as a matter of fact, the Legislatures should lay down the policy first and then the Government should pursue it. When considering the divorce on the ground of desertion under the Hindu Marriage Act, it was urged before the apex court that in that particular case, (the wife had married again after decree of divorce as there was no stay by the appellate court, and the first marriage should be dissolved in the interest of justice and the parties.

The apex court held that it is for the legislatures to provide the remedy in such cases and not for the, courts to provide any remedy in such cases. The apex court then considered its earlier ruling and held that the time has come for intervention of legislature in these matters to provide for a Uniform Civil Code of marriage and divorce and provide by law for a way out of the unhappy situations in which couples have found themselves. It will be for the Muslims to force the political will.

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Case laws

Professes Religion” meaning explained – (1) Punjabrao vs. D.P. Meshram AIR 1965 SC 1179 (2) Narayan Vendu vs. Punjabrao AIR 1958 Bom 296.

Muslim text should be so applied as to suit modern circumstances and conditions – Ashrafali vs. Mohammed Ali, (1945) 48, Bom. L.R. 642.

If it is not contrary to justice, equity and good conscious it is well settled that the view of ancient expositors cannot be rejected on the ground that it appears to be illegal and unsound (1) Md. Ismail vs. Abdul Rashid AIR 1956 All 1 (FB) (2) Ramzan Momin vs. Dashrath Raut, AIR 1953 cal 138.

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Judges have to administer without in any way circumventing or deviation from the original text of the law as promulgated by the Islamic Law to suit the present day conditions and in doing so courts are not at liberty to refuse to administer any portion of those tenets even though in certain respects they may not sound quite modern – K. Verankutty vs. Pathammakutty AIR 1956 Mad 514.

The particular text can be reconciled with the Law as laid down in the work of some great authorities – Anand Giri vs. Mst. Baugh, AIR 1955 J&K 1.

It is open to jurist to resort to ‘Iste-hasan’ the principle of equity in deciding a particular question when there are conflicting authorities on the point – Haji Mohammed Sayeed vs. Ab. Gaffar, AIR 1955 All 668.

Courts are bound to rely upon the interpretation put forward by recognized jurists and in the case of conflict of opinion of comparative authority may be referred – Aziz Banu vs. Ibraihim AIR 1925 All 720.

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Judicial notice can be taken of the Custom and hence it is not necessary that every custom must be proved – Gin Dar vs. (Mst) Raji, AIR 1961 J&K 31.

When conversion gives legal right to go ahead a mock conversion and set it up as a basis of that right is to commit a fraud upon law. It is proper and necessary for the Courts of Law to inquire and find out whether the conversion was bonafide one – Dr. Abdul Rehim vs. Smt. Padma, AIR 1982 Bom. 341.

Indian Law does not recognize various types of cruelty, such as Muslim cruelty, Christian cruelty, Jewish cruelty etc. – Itwari vs. Ashari, AIR 1960 All 684.

Since Shafis have different manner of offering Friday prayer, they cannot be refused to offer Friday prayer in Sunni Mosque – Khatkhate Kunal vs. Pakkath, AIR 1965 Kar. 200.

Kazmis are Muslims – Shahbuddin Imbisi vs. K.P.AAHMED, AIR 1997 Ker.206 & AIR 1961 Pat.87

Khoja migrated to Hydrabad was held to be incompetent to make a Will of his entire property – Begum Noor Banu vs. Dy Custodian Gen. of Evacuee Property, AIR 1965 SC 1937.

Ex-communication of Daudi Bohra cannot be held to be unconstitutional Saifuddin Saheb vs. State of Bombay, AIR 1962 SC 858.

Mohammedan Law does not favour hereditary right of ‘being Imam’ – Syed Mohd. Kabhai vs. Mohd Hanfi, AIR 1976 SC 1569

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