India’s Civil Code Conundrum: reflection of diversity or case for reform?

India is a land of many religions, castes, communities and their consequent customs and codes of conduct termed as civil codes or personal laws, which have evolved over centuries of mutual co-existence in the country. The various codes followed by different communities have been sought to be unified in the form of a Uniform Civil Code by an authority no less than the Constitution of India under Section 44 of its Directive Principles. In recent times, India’s Supreme Court has been called upon to revise some of these civil codes in a march towards a Uniform Civil Code, which, in its most recent pronouncement, the Honourable Court has refused to dwell upon.

Ancient India

Ancient India’s civil codes are believed to have evolved through many centuries from the Vedas, which were seen as the first form of divinely ordained laws. However, a set of formal laws evolved from them as a branch (Vedanga) initially for elaborating proper conduct of rituals and procedures. These further evolved into manuals for conducting domestic rituals (Grahya Sutras) and finally into manuals for ethical human conduct called the Dharmasutras. A number of authorities developed different manuals termed collectively as Dharmasutras from the sixth to the second century BCE. However, only the work of four jurists viz Gautama, Baudhayana, Vashista and Aapastamba have survived as manuscripts. These manuals were in poetic form and finally evolved into verse forms called Dharmashastras or Smritis of the four surviving Smritis, that of Manu called Manu Smriti or Manava Dharma Shastra, probably formed the basis of Hindu laws from 2nd century CE onwards, though they were never formally codified as laws. Manu Smriti is presented as a set of sermons by Manu and Bhrigu on human duties, rights, laws, virtues and other aspects of ethics as applied to various sections of the Hindu society. 

The only secular ancient Indian text which deals with the practical aspects of ancient Indian laws is the Arthashastra, purportedly written by Chanakya, the Chief Minister of Chandragupta Maurya. The later period of Indian History saw the rise of commentaries on Dharmashastras by new authorities, two of these, Mitakshara — a treatise on Yajnavalkya Smriti by Vijnaneswara, a courtier of the Karnataka ruler, Chalukya Vikramaditya VI, and Dayabhaaga — a treatise on inheritance by Jimutavahana, a Sanskrit scholar for  12th century Bengal. These two works became the influential basis of Hindu laws on inheritance during the British period.

Medieval India

The conquest of India by Islamic rulers, both foreign and home-grown dynasties did not affect the laws of Hindu society but introduced the Islamic Shari’a for India’s Muslim citizens. 

The Sharia evolved in the wider Islamic world from the eighth century onwards through interpretations of various jurists of the different passages in the Holy Quran and the Hadiths (the sayings and incidents in the life of Prophet Muhammad compiled by authorities after his death). The Sharia was, however, presented as the Holy Law by the Muslim clergy, and the Ulema (learned ones) while its human interpretations were deemed as Fiqhs.

Four major schools of Fiqh thought arose in the Sunni Islamic world under four jurists namely Hanafi, Hanbali, Maliki and Shafi’i. 

In the Indian sub-continent, the Hanafi school of thought named after Abūanīfa an-Nu‘man ibn Thābit (d. 767), gained ground and became the basis of its Islamic laws. The implementation orders of the Fiqh by the Ulema or Islamic law officers, the Qazis were termed as Fatwahs. 

Indian Sultans and the Mughals later did not impose the Sharia laws strictly keeping some space for customary beliefs under the system of Hiyal which was used to accept some laws not strictly acceptable according to the Sharia; Sharia laws were not applied to the Hindus who were left to their own courts. The Mughal Emperor, Aurangzeb appointed a board of Sunni Ulema to compile a set of governing laws based on Hanafi laws between 1664 and 1672 which were termed as the Fatwa-i-Alamgiri which gave direction to the laws of later Muslims especially in the colonial period.

Colonial India

“That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to.” — Warren Hastings, August 15, 1772.

The British first encountered the various laws of India when they were appointed as official representatives of the Mughal Emperor for collecting the Diwani rights of Bengal and Orissa in 1765. The initial British approach to personal laws of both Muslims and Hindus termed as the Anglo-Muslim and Anglo-Hindu Laws sought the easy way of referring these matters to the medieval sources of the Muslims like the Fatwa-i-Alamgiri and in case of Hindus, the Manu Smriti (translated by Orientalist, William Jones) and extracts from the Dharmashastras (translated by Henry T. Coolebrooke). 

However, later, British administrators especially Lord Bentinck, the Governor-General of British India from 1828 till 1835 pushed towards a uniform civil code based on humanism and succeeded in suppressing the Hindu custom of Sati and encouraging widow remarriage by passing the Widow Remarriage Act 1856. His efforts were lauded by reformers like Raja Rammohun Roy and Ishwarchandra Vidyasagar which led to their eventual acceptance. 

However, after the Indian revolt of 1857-58, the personal laws were cautiously dealt and the British left the personal laws of various communities unchanged. However, the Christian community got the first law in the form of the Indian Marriage Act in 1864 (later Indian Christian Marriage Act, 1872) and the Indian Divorce Act in 1869. Hindu Laws were slowly reformed as the Indian Succession Act was passed in 1865 which was succeeded by the Married Women's Property Act, 1923, the Hindu Inheritance (Removal of Disabilities) Act, 1928 and the Hindu Women's right to Property Act, 1937 which permitted and protected Hindu women's right to property. The Parsi community gots its Personal laws enacted under the Parsi Marriage and Divorce Act, 1936.  

The Special Marriage Act, 1872 gave Indian citizens an option of a civil marriage but had a limited application because it required those involved to renounce their religion and was applicable only to Hindus. The later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights. 

The Muslim elite resisted changes to its personal laws fiercely leading to the government passing the Sharia Law of 1937 which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance. The Sharia Act, 1937 was however fairly balanced by Dissolution of Muslim Marriages Act, 1939 which gave Muslim women some recourse to legal help. 

Post-Independence 

The initial debates in the Indian Parliament were a set of reforms proposed to lead to Uniform Civil Code for all Indian citizens. However, the findings of the Hindu Law Committee shifted the focus to Hindu law reforms which were strongly endorsed by the Prime Minister, Pt Jawaharlal Nehru and his law minister, Dr BR Ambedkar provoking resistance from orthodox Hindu members, who tried to stall the imminent changes on important subjects like monogamy, divorce and inheritance to daughters, which challenged the patriarchal system of the Hindu society. Thus, the Hindu Code Bill as it was called, was delayed till 1955 and when it was passed, it was diluted and made into a set of four separate laws on Hindu Marriage, succession, minority and guardianship and maintenance. 

The Hindu Laws were applied to a set of Indian religious groups like Jains, Buddhists and Sikhs along with the various Hindu castes with the exceptions of the scheduled tribes. The Uniform Civil Code was endorsed as an ideal under the Article 44 of the Directive Principles of the Indian Constitution, which some say was done to see that it was never implemented. 

The Special Marriage Act’s scope was further widened by the Special Marriage Act, 1954 to provide civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law. The Sharia Act, 1937 continued to govern the Muslim personal laws and its major challenge came in 1985 when it was challenged during the Shah Bano verdict. 

This verdict saw a strong reaction from the Muslim community which opposed the interference in its customs especially the All India Muslim Personal Law Board leading to the passage of the Muslim Women (Protection of Rights on Divorce) Act, 1986 by the Rajiv Gandhi government. Thus, the issue of Muslim law reform became a political hot potato with the formation of opposite political groupings. 

In recent times, some women groups have challenged the triple talaq in various Indian courts and thus, the Supreme Court is currently hearing a case for testing the legality of the triple talaq within the confines of the Indian Constitution and Islamic sources. However, keeping view of the community’s sensitivity, the Court has decided to keep the debate for Uniform Civil Code out of this discussion and look at the legality of the practice alone. 

In the meantime, the Supreme Court has dismissed last month the petition of a Christian petitioner who sought permission to allow Christians to seek divorce through church courts. The Supreme Court overruled the 80-year-old’s plea to equate Christian Personal Law with the Muslim Personal Law and tribal personal laws which allow a divorce on the pronouncement by community leaders. 

Thus, the twenty-first century seems to be a new age for India’s personal laws which are being increasingly challenged by members of its communities, civil rights activists and other citizen groups to herald changes in a march towards equity and fairness among all its citizens.