The ban on triple talaq, and calls for a uniform civil code have brought the personal law again into the headlines. Personal law in India is religion specific and has a long history beginning in the British Raj. Its evolution is marked by a struggle between modernism and orthodoxy, as exemplified by the Shah Bano Case. Let us see what personal laws are, their salient features, and the issues of Uniform Civil Code, and Triple Talaq, and the landmark Shah Bano Case.
Personal Law refers to laws related to matters such as marriage, divorce, and inheritance. In India, personal laws are religion specific, and are based on customs and scriptures. Personal law for all religious communities other than Muslims is codified. Hindu personal laws are also applicable to Sikhs, Buddhists, Jains.
Personal Law for Muslims is governed by the Muslim Personal Law (Shariat) Application Act 1937. Muslim personal law is not codified, and evolves with time according to community practices and judicial interpretations, with a tussle between the religion’s constitutional right to manage its own affairs (freedom of religion) and the modern norms of (gender) justice.
Hindu Personal law is covered by Hindu Code Bills:- Hindu Marriage Act, Hindu Succession Act, Hindu Adoptions and Maintenance Act and several other laws passed in the 1950s. These laws reformed the Hindu personal law and gave women the right to divorce. Dr. B. R. Ambedkar had played important role in the introduction of these laws, and for this he is remembered as a champion of gender justice. Hindu personal laws are also applicable to Sikhs, Buddhists, and Jains.
Non-applicability of personal laws:
- Religion Specific Personal laws are not applicable in the Goa state, where the Goa Civil Code is applicable for all irrespective of their religion.
- Marriages under the Special Marriage Act are also outside purview of Personal Laws.
Special Marriage Act 1954 provides for a special form of marriage irrespective of the religion or faith followed by either party. It thus allows inter-faith and inter-caste marriages. It extends to whole of India except Jammu and Kashmir.
- Jammu & Kashmir has a separate set of personal laws, different from the rest of India.
The Triple Talaq Issue:
- Triple Talaq is a customary practice, prevalent among Muslims, that dissolves a marriage when the husband says the word ‘talaq’ thrice. The custom is criticised for being unilateral and biased against women, as the threat of divorce hangs like a sword over the women.
- In August 2017, the Supreme Court of India declared the practice of triple talaq as unconstitutional and stated that it was arbitrary and violative of Right to Equality (Article 14). It also observed that the Quran doesn’t see triple talaq in good light, and discourages it, hence there should be no protection to this practice under the Muslim Personal Law (Shariat) Application Act 1937. The man’s power to terminate the marriage at a whim dangles like a sword over a wife and keeps her under a perpetual, perhaps subconscious fear and draws lines to her disadvantage in a marriage.
- In December 2017, the Lok Sabha cleared the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to make the practice of triple talaq a criminal offence. But the law couldn’t pass through the Rajya Sabha.
- In January 2019, the Government re-promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance. Under this ordinance, divorcing through instant triple talaq will be illegal, void and would attract a jail term of three years for the husband.
The Muslim Women (Protection of Rights on Marriage) Bill, 2017, criminalises the practice of triple talaq, and also enables women to move to court, seeking subsistence allowance and custody rights over children.
Shah Bano Case – a landmark in Muslim Women’s fight for right to justice
In the famous Shah Bano Case, Shah Bano, who was divorced by her husband in 1978, fought a legal battle in the Supreme Court and won the right to alimony from her husband.
This judgement of Supreme Court faced opposition from Muslim orthodoxy, and the then Congress government under pressure from the Muslim Clergy enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986, that diluted the judgement of the Supreme Court and restricted the right of Muslim divorcees to alimony from their former husbands for only 90 days after the divorce.
However, in later judgements, the Supreme Court of India interpreted the Act in a manner that upheld the Shah Bano judgement, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, was nullified.
Uniform Civil Code
Uniform Civil Code is a proposed set of personal laws that would be applicable to every citizen of India irrespective of his/her religion, thus replacing the personal laws based on religious scriptures and customs. Religious minorities see this proposal as an attempt to impose culture of the Hindu majority on them. They also see it as violative of the right to freedom of religion guaranteed by the Constitution of India. Supreme Court of India too has observed that in a pluralist country like India, a common Uniform Civil Code is not desirable at present.