Muslim Law of Marriage & Succession in India: A Critique with a Plea for Optional Civil Code

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am deeply indebted to the Indian Association of I Lawyer Madras Branch and the Bar Association, High Court, Madras for inviting me to deliver lectures on Uniform Civil Code in the Seminars conducted by them. This work is based on those lectures and has been ventured upon at the request of my advocate-friends to give expression to my views in a book form.

As a lawyer and as a Judge, I have always felt that Islamic law as administered in our country is not in accordance with the spirit of the Holy Quran or in tune with the spirit of the times. We have to take a fresh look as has been done in several Muslim countries. The pathetic condition of Muslim women who have been conferred valuable rights in the Holy Book and by the Holy Prophet, cries for reform. The codification of the Muslim Personal Law, or the framing of a compulsory Uniform Civil Code not being feasible at the present juncture, I have pleaded for introducing an optional common code of family laws. Religion is a matter of faith and those who harp on the freedom of religion and the Constitutional guarantees enshrined in Article 25 of our Constitution have no qualms of conscience in opposing an optional Code and conferring upon the citizen the freedom of being governed by the law of his choice in matters personal.

I am under no illusion that my views expressed in this work would receive acclaim or even approbation from Muslim theologians, but I shall feel amply rewarded if this work provokes a thinking among the intelligentsia and particularly the legal fraternity.

Let me express my gratitude to the authors of the several books I have referred to and in particular to Dr. Prof Tahir Mahmood, whose Crusade for the reform of Muslim Personal Law is well known. He has assiduously collected the modern Personal Law statutes of a number of Muslim countries and compiled a very useful book of reference, which must be on the table of every student of Islamic jurisprudence.

I am grateful to Mr. Justice V.R. Krishna lyer, former Judge, Supreme Court of India for his thought-provoking Foreword which must undoubtedly enhance the value and utility of this work of mine.

I must also thank M/s. Kraft Work Communications Pvt. Ltd., for their excellent laser printing work.

My thanks are due to the publishers for their help and co-operation in bringing out this edition.

Muslims form the second major community in India and in the whole world, and Islamic law known as the Shariat, evolved in the 7th Century A.D. is one of the most important Systems of jurisprudence. Shariat is not a complete, comprehensive or consolidated code as known to the science of jurisprudence, but a system evolved by jurists from the verses of the Holy Quran, the precepts and practices of the Holy Prophet, the consensus of the companions and disciples of the Prophet of God and personal judgment based on analogical deduction, leading to divergent juristic views and different schools of thought. Custom has also played its part in the evolution of Islamic law.

Law is never static; it is always dynamic. Law reflects the habits and customs of the community and is the manifestation of the throbbing aspirations and ambitions of the society. As observed by V.R. Krishna Iyer, J., (then of the Kerala High Court) in Yousuff Rowther v Sowramma¹:

"Law is largely the formalised and enforceable expression of a community's cultural norms".

The primitive man has transformed himself into a civilised human being and the primitive laws have yielded place to constitutional rights and remedies. Law always keeps pace with the progress of the society and the history of law is really the history of mankind through the ages.

Morality is itself a changing concept and moral and ethical values change with the times. For instance, in the days of Adam and his progeny, even the closest relationship was no bar to marriage. In those olden days marital union between the brother and the sister was an approved one. With the advent of civilisation such a union became a taboo and new rules of prohibited degrees of marital relationship came into force. Polyandry was a recognised practice in ancient days, but, no system of jurisprudence allows it today. Slavery was well established even during the middle ages and was sanctioned by the scriptures, but, the institution does no longer exist and no theologian-Hindu, Muslim or Christian-dare invoke the scriptures to justify this detestable system of human bondage. As observed by Lord Denning:

"Law does not stand still, but moves continually."