Yesterday (22 October 2008), a Division Bench of the Kerala High Court observed that India urgently needs a law (yet another!) to set up bodies at Central and regional levels to regulate, control and supervise Muslim marriages and divorces. Justice Kurian Joseph and Justice Harun-Ul-Rashid were passing their verdict in a matrimonial case involving a Muslim couple. On the face of it, this observation by the learned judges appears sensible and progressive, but I was actually disappointed by it.
India is a secular country where every community is allowed its own personal laws. Christians have the Indian Christian Marriage Act of 1872 and the Indian Divorce Act 1869, Hindus have the Hindu Succession Act, 1956 and the Hindu Marriage Act, 1976 and so on. Muslim personal law, based on the Sharia, is not codified. Since Muslims are governed by the Sharia, an Indian male Muslim is entitled to have four wives at any time. It is interesting to note that after independence, Pakistan modernised its personal law and made it quite difficult for a man to marry a second time. A written approval from a government appointed arbitration council must be obtained before a man can take on a second wife. Tunisia and Turkey have actually abolished polygamy.
The Indian Muslim male’s right to marry more than once is misused not only by Muslims, but also by men from other communities. I remember the case of a non-Muslim chap accused of bigamy managing to prove that he had converted to Islam prior to his second marriage. It is not unheard of for men who want to marry for a second time to convert to Islam.
Article 44 of the Indian constitution says that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Indian State has made very few ‘endeavours’ in this regard. Neither the ‘secular’ Congress Party nor the right-wing BJP has had the guts to introduce a uniform civil code which will apply to all Indian nationals irrespective of religion. The Supreme Court has on various occasions reminded the Indian government of its failure to implement a uniform civil code.
What am I to make of the Kerala High Court ruling that doesn’t call on the government to implement a uniform civil code, but instead asks for central and regional bodies to “regulate, control and supervise Muslim marriages and divorces”? Do the honourable judges who passed this verdict believe that a uniform code will not materialize in the near future? What sort of regulation will these bodies carry out? Will it be made mandatory to register each Islamic marriage and divorce with these bodies? Have 4 wives at any given time, but do register each wedding? If the government is to interfere in personal laws (and interfere it must), why go in for such a half-hearted measure? Any interference will be met with opposition from the fundamentalists and so, why not take the bull by its horns and do a thorough job?
I believe that most Indian Muslims would welcome a uniform civil code since Islamic personal law is one of the so-called ‘perks’ allowed to this community, which isn’t actually a perk at all. It is not as if the Koran calls on every Muslim male to mandatorily have four wives! However, we are yet to hear a popular demand from within the Indian Muslim community for a uniform code. I am not sure when such a demand will arise, but rather than wait for a moderate messiah to arrive, the government should put this code in place and worry about the consequences later.