Central India Law Quarterly

Towards A Uniform Civil Code: A Study In The Light Of Judicial

Decision ...
TOWARDS A UNIFORM CIVIL CODE:
A STUDY IN THE LIGHT OF JUDICIAL DECISION ON THE
MUSLIM LAW OF MAINTENANCE

ARAVIND. B.
VIKRAM J. SINGH

1. The idea of the Uniform Civil Code (UCC)1, a common set

of family laws tor all Indian citizens, often invokes emotional
reactions in all quarters. It is seen either as a ready made and
available solution for all of India's ills as regarding personal
laws, or as a futile enterprise. But this paper works on the
premise that there is more to the UCC, than these reactions
and opinions. The question is not of minority protection, or even
of national unity, it is -sirnply one of treating each human person
with the dignity that he deserves; something which personal
laws have so far failed to do. Taking a purely legal angle, the
right to a UCC is constitutionally guaranteed to every individual
in India by the operation of Art 44 of the Constitution, But which
organ of the State is mandated to give effect to this promise,
has its fulfilled this mandate? It is this legal angle that this
paper takes a loo.k at, specifically with respect to these legal
aspects as expressed in the legal developments regarding
Muslim Personal Law of Maintenance.

-"-lind year, B.A., LLB. (Hons), National Law School of India University.
1 Article 44 of the Indian Constitution that states that "The State shall endeavour

to secure for all the citizens a Uniform Civil Code throughout the territory of
India."

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2. The inaction of the l.eqistature In implementing the UCC

has been widely attributed to a lack of political will, extra legal
consideration influencing the governments of the day, and the
appeasement of minority fundamental factions" ..Rather, the
implementation of the DPSp'under Art 44 has been attempted
not by the elected representatives of the people. but by the
Judicial wing through a number of progressive pronouncements.
This is an example of "Judicial Activism" that the Courts in
India have taken up, specially with regards to the enforcement
of the mandate of the Constitution. This paper studies this
recent phenomenon in the context of the controversial Muslim
Personal Law of Maintenance. In doing so, particular emphasis
would be laid on the developments in this regard in the 1990's.

An overview of the Muslim Personal law of Maintenance

3. It would be helpful first to gain a basic understanding of

the Muslim personal law on the maintenance of wives, before
we venture into an analysis of the UCC vis a vis Muslim Law on
Maintenance.

4. It is mandatory provision of the Quran that a husband is

bound to maintain his wife irrespective of her being a Muslim,
poor or rich, young or old if not too young for sexual
intercourse 3 . A wife whose marriage was performed according to
2 Through the view is almost univesally held. for a lucid analysis see Jaya
Sagade, "Legislative Regulation of Muslim Personal Laws",. 9(1) 1982 Jour-.
nal of Bar Council on India at 90.
3. M.A. Qureshi, Muslim Law of Marriage and Maintenance 299 (New Delhi;
Deep and Deep PUblications, 1995)

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Muslim law and who has attained

an age at which she can
render conjugal. rights to her husband is entitled to receive
maintenance". A husband is not bound to maintain his wife who
refuse. herself to him or is disobedient unless the refusal or
disobedience is justified by non-payment of dower. The wife is
not entitled to maintenance if she is too young for sexual
intercourse or if she refuses to live with her husband without
reasonable excuses. Under Muslim law maintenance is known
as 'Nafkah' it includes in simple words food, clothing and
lodging 6 . Maintenance is due to a woman only during the period
of her Iddaf. The wife can receive maintenance from her
husband as per her social position, determined mostly by her
monetary standings.
An Account of the Initiatives For Reform.
Early Legislative initiatives:

5. The Code of Criminal Procedure, 1898 contained in the

form of s.488, which pertained to maintenance to a woman, a
provision that was interpreted several times against the woman

4. Ibid at 300
5. D.F. Mulla, principles of Mohammedan Law 227 (Sir S. Ragnekar ed., 12th
edn., Calcutta; Eastern Law House, 1944)
6. G.C.V. Subba Rao, Family law in India 440 (7th edn. Hyderabad: S. Gogia and
Co. 1998).
7. Id.
8. M.A. Qureshi, Muslim Law of Marriage and Maintenance 319 (New Delhi:
.Deep and Deep Publications, 1995)
9. Ashutosh Mookerjee, Marriage Sepration and Di~orce 192 (Calcutta: S.C.
Sarkar, 1991).

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herself". Under this code maintenance was not available to

ex-wives and hence the code never came into conflict with
Muslim Law on maintenance. The joint Select Committee of
the parliament in 1972 had recommended that the benefit of
maintenance in the Code of Criminal Procedure should. be
extended to divorced women 10. Therefore the provision was
enlarged in the 1973 code in the form of s. 125 to include the
ex-wife in its ambit; this positive step of the Legislature was
amply made use of by the Judiciary, which passed a number of
liberal decisions.
A Look at the Case law on Maintenance of Muslim
Wives on Divorce.

6. After the coming in force of the Constitution, and bearing

in mind the 'Equality of the Genders' --guaranteed in it, the
judiciary struck a different note. The earlier approach to
Personal Laws like in Aga Mohammad v. Koolsan Bee Bee"
was given up. An early notable attempt was made by the Andhra
Pradesh High Court in Chancia v. Mangamma 12 , but the ball
was really set rolling by a string of Supreme Court decisions.
The earliest one was Bai Tahira v. Ali Hossein Fissati'", followed
10 Report of the Joint Select Committee on the Criminal Procedure Code (1972)
atp XIII
11 241A 196 at 204. The Privy Council in this case laid down the rule that the
courts should accept the interpretations of the traditional authorities and not
interpret the Quran by itself.
12 (1969) CrLJ 684.
13 AIR 1979SC 362.

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by Fazlunbi v, Kader vali 1 4 which established the legality of the

secular provision of s.125 CrPC in the face of conflicting
provisions in Personal Laws. The culmination of th is reformist
trend is seen in the 1981 decision of Zohra Khatoun v.
Mohammad I brahim ", which held that by the operation of s.125
CrPC, a Muslim divorced wife is entitled to ornaintenance even
beyond the lddat'" period. Justice Murtaza Fazal Ali struck the
most radical note yet, observing in the judgement:

" The Code of 1973 has to some extent impliedly

overruled the provisions of Custom and Personal laws of the
parties." .

7.
A plethora of other progressive decisions followed
these three decisions ". But the common feature of all these
[udqernents was the delicate balance struck between the
religious laws and secular provisions of the Criminal Code!".
Fro mas i t u a t ion
0 f com pie t e j ud i cl a I s elf - res t raj n t
pre-independence, the [udiclal interpretation of Muslim personal
laws.
14 AIR 1980 SC 1730.
15 AIR1981SC1243.
16 This period is usally 3 lunar months from the date of the divorce, as per s.
3(1 )(b) of the Muslim Women's (Protection of Rights on Divorce) Act, 1986.
17 For instance the pronouricements in the cases of Shahzadi Begum v. Abdul
Gaffer, (1981) CrLJ 1523; and Sahida Begum V. Mofizul Haque, AIR 1986 Gau
171.
18 M.A. Quereshi, Muslim Law of Marriage and Divorce (New Delhi: Deep and
Deep, 1992)
19 AIR 1985 SC 945; delivered by a five judge bench of the Apex court headed

by Chandrachud, C.J.

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The Shah Bano 19 ca_se .

8.
The judgement of Shah Bano defined a watershed in
personal law issues in India. It has alternately been described
as a "reformist Juggernaut"20 and "a bull in a china ShOp"21,
the jUdgement sparked off
t~.biggest Personal
law controversy
that India had seen till then. It involved a pronouncement by
the Supreme Court on the Muslim personal law of maintenance,
and the question of maintenance to an ex-wife. It involved the
interpretation of s. 1250f the Code of Criminal Procedure, and
the question whether the provision overrides the personal law
of the community. It was a decision based on a number of solid
precedents on the topic as detailed above. But the decision
became the hotbed of debate due to some parts of it being
read to be against the Islamic religion as such. The comments
of Chief Justice Chandrachud regarding the "pious obligation
of the Muslim husband" were taken as the fodder for allegations
of "the destruction of Muslim culture and identity";!2.

9.
As a response to the demands made by a number
of orthodox associations within the Muslim community, the
Parliament passed the Muslim Women's (Protection of Rights
20 Ratna kapur, "Feminism, Fundamentalism and the Rights Rhetroic", The Indian
Journal of Social Work 1993 V (1) at 355.
21 Flavia Agnes, Procedure and
~ase Law on Maintenance 144 (Pune:
Majilis,1992).
22 For a detailed account of the protests and their nature, see Sundari Krishna,
"Personal laws and the Constitution", 3 Stud Adv (1991) 65: Zoya Hassan,
"Minority Identy, Muslim Woman's Bill Campagain and the Political Process",
EPW Jan 71989 XXVI (1) at 44.

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-eon Divorce) Act, 1986. This law is widely regarded as bein~in

the nature of an 'Invalidating Law', aimed at nullifying a deci5m'rf""<
of the Judiciary.

10.
The Legislation met with widespread criticism and
condemnation from all quarters>, A representative opinion is
one expressed by Justice Krishna Iyer:

"The bill is a dangerous mistake ..... public power gone awry. It

is against justice, which is a facet of the suprema lex, and
based on purely political conaiderations.":"

The Situation After the passing of the 1986 Act.

11.
It would be prudent now to examine the judicial
decisions that have followed the enactment of the 1986 Act,
as these represent a fine example of progressive Judicial
Activism by the Courts. In a number of decisions, we can
observe the Courts efforts to give effect to the Constltuticnat
mandates of Gender Equalfty and fair and humane persdl'lal
laws. In Kasam
v~ Janabhaj25 it was held that the Act did not
operate retrospectively as any such repealing clause was

23 For a representative opinion see Saleem Akhter, "Maintenance to Muslim

Divorcees", vol. 9(1) 1982 Journal of the Bar Council of India at 90; A.M.
Bhattacharjee, Maintenance Laws and the Constitution 29 (Calcutta: Estern
Book House, 1996)
24 In "An Open letter to the Prime Minister", (1986) 2 SCC Journal 1.

25 2(1987) DMC 15, the Act was held as not affecting previously passed orders
for maintenance.

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absent. A reconciliation between the CrPC and the new Act

was attempted in the case of A.A
Abdullah v. A.B.M.
Sayeidbhaf'", where it was specifically held that:

"The 1986 act does not degrade the Muslim women's right to
take recourse to the CrPC, as the Act is a Personal Law
subordinate to the CrPC"

12.
A similar reasoning was applied to uphold the
Muslim women's rights in the cases of Shahnaz Bano v. Baboo .
Khan ", Ali v. Sufaria 2 8 and Bashir Khan v. Jamilla Bi 2 9 . A
different reasoning has been followed by a few High Courts when
dealing with the matters of maintenance. S.3 of the Act, which
provided for "fair and reasonable provision as maintenance",
has been interpreted to mean provision of maintenance even
beyond the Iddat period. The leading decision in this case has
been the Andhra Pradesh High Courts pronouncement in
Mohammad Tajuddin v. Qamarunnissa Begum 30 .

13.
The decision of the Calcutta High Court of May 2000
in Sakila parvin v. Haider Ali 3 1, is a recent example of decision
of
26 AIR 1988 Guj. 141.
27 1(1986) DMC 106.
28 (1988) CrLJ 197.
29 (1994) CtLJ 361.
30 AIR 1989 AP 207; th9u9h this decision was overruled by a full-bench of the
same court in Usman Khan v. Fatheimunnisa Begum, AIR 1990 AP 225.
3I The Times of India, 16 June 2000 at 11.

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this sort. In a 2000 decision of the Bombay High Court

32 , the
same reasoning was upheld, with additional observations on
the mode of the payment of this sum. This 2000 decision makes
it clear that the judicial trend has been outlined in this section
shows no signs of abating.
An Unfinished Job: The Need for Legislative Action.

14. It is submitted that as a result of various recent [udiclal

decisions with regard of s.3 of the 1986 Act where there has
been a progressive interpretation of Muslim Personal law, the
practical effect has been the reform of the Muslim Personal
law benefiting women.
15. The argument against reform of these laws because they
are sacrosanct and of their being the accepted practice of Islam,
is negetived to a large extent by reforms carried out in a large
number of orthodox Islamic nations. In Pakistan as early in
1967 in Khurshid Bibi's Case heralded an era of liberal
interpretation of Muslim law by holding that reasoning will take
precedence over traditional Islamic teachings. 33 Further, the
1961 Family Act in the same country has reformed laws to the
degree of making monogamy the rule 34 . In 1995 the Bangladesh
Supreme Court followed suit, expressly overruling the Privy
Council's pronouncement in Aga Mohammed's case rejecting
32 Law Teller Sept. 2000 p 411-412; a decision of the Full Bench of the Bombay
High Coort.
33 PLD 1967 SC 97.
34 Keith Hodkin, Muslim Family Law-A Source book 355 (London; Grooms Heins,
1979).

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the contention that the Quran has to be interpreted solely on

the basis of traditional author itie s ". The same positive
response has been seen by reforms in cou ntries such as
Jordan, Egypt and Tunisia".

16.
It is indeed ironic and puzzling that such progressive
development in law has not taken place in India with its strong
democratic institutions and express Constitutional mandates
in this regard. For such a comprehensive and meaningful reform
in Personal Law to be effected, legislative action is. inevitable.
Lessons from the developments in Muslim Personal Law:

The Need for a Uniform Civil Code.

17.
From the arguments and opinions that have been
highlighted throughout this paper, the judiciary's vital and
significant role in attempting reforms and reiterating the need
for a UCC' is amply clear. The courts have distinguished
themselves in giving effect to both the Constitutional mandate
of equality between the sexes and Art. 44:

18.
A question that frequently raises its head is that of the
form that a UCC would take. Though Art 44 of the Constitution
provides a rough framework, it does not specify the exact from

35 Danial Latifi, "Arrested step towards Islamic Reformation", From the Lawyers
Collective Aug-Sep 1997 v. 12,no.8-9,p.16.

36 Supra note 35 at 326.

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that a UCC should take. A concern that has been raised is

that the UCC would end up compromising the plurality of the
India State. As has been observed.
"A gen uine democracy must have safeguards against
majoritarian authoritarianism ... the majority community should
not be allowed to run rough-shod over the sentiments of the
rninorttiea'?".
19. Though this paper would avoid going into this controversy,
it can be adequately addressed by following a careful line in
framing a UCC. The concerns and fears of all sections of
citizenry, and above all the criteria of Justice, should be kept
in mind while formulating the Code. The new civil code
formulated should be step forward in converting the goals of
our constitutlons into reality and also forwarding the directive
principles of state policy. S Krishna Iyer has aptly put it:
"It will be Indian, not Hindu. Nor will any Islamic group
be allowed to be a law unto itself. Some of the finest principles
of Islamic jurisprudence may find their way into the Uniform
Civil Code even as some of the noblest conceptions of the Hindu
in the area of Family Law will become the common estate for
alllndians. lt 3 8
******
37 Danial Latifi, "Arrested step towards Islamic Reformation", From the Lawyers Collective Aug-Sep 1997 v. 12,no.8-9,p.16.
38 VR Krishna Iyer, "The Shah Bano Case, The Consititutional and the Court"
(1986) vol.13 JBCI1 at 2.s