State’s Role in Shaping Muslim Personal Law
In the case of Muslim law, the motives behind reform using the state’s authority were more political than economic. The Muslim Personal Law (Shariat) Application Act, 1937 which provided that the “shariat” and not customary law or Anglo-Muslim law should be applicable to the Muslim community in India, was backed by the Muslim elite’s desire to project Indian Muslims as a unified “religious” community and hence one which was politically autonomous (Newbigin 2009: 95-96; Sturman 2012: 213-218). Interestingly, this was also advocated in the name of protecting the property rights of Muslim women.
The 1937 Act made “shariat” to be the law applicable to the Muslim community, not with respect to every area where a shariat rule existed in the Quran, but only with respect to certain areas of family life specified in the act: marriage, divorce, inheritance, women’s property, gift, waqf and so forth. Matters such as inheritance of agricultural property, contracts and debt were left out of the purview of shariat in Muslim Personal Law.
The key point is that shariat acquired exclusive jurisdiction over certain matters as “Muslim Personal Law” because the state declared it to be so, and that the choice of these matters and the final shape of the 1937 Act were determined by sociopolitical rather than “religious” considerations. This was not peculiar to India. Iza Hussin’s recent book, The Politics of Islamic Law, tells the fascinating story of the making of Islamic law in colonial Egypt, Malaya and India, that underscores “Islamic law, as a product of, and venue for, politics” (2016: 9).
To take another example, consider the Dissolution of Muslim Marriage Act, 1939, which provided grounds upon which a Muslim wife could seek divorce. This act mainly codified the rules of divorce of the Hanafi school of Islamic law, elaborating on some of them and substantially modifying some others. For instance, under Hanafi law, a minor cannot repudiate his/her marriage, unless, upon attaining puberty, he/she can show that the guardian who had given him/her in marriage had acted fraudulently or show that the marriage contract was to his/her disadvantage. This is called “option at puberty”. The 1939 act modified this rule for Muslim women (but not men) and provided that a woman who had been married before the age of 15 could repudiate the same upon attaining puberty, if she did it before turning 18 and if the marriage had not been consummated. Thus, today when a Muslim woman exercises the option at puberty to repudiate her child marriage, the source of her right is not religion, but the state.
The fundamental question that we need to ask is what religious or divine character remains of a command, when it is given statutory form and interpreted by state-appointed judges sitting in state-established courts? Justice Krishna Iyer seemed to be thinking along these lines when, disagreeing with Narasu’s rationale, he noted in a 1971 Kerala High Court judgment:
Personal law so called is law by virtue of the sanction of the sovereign behind it and is, for the very reason, enforceable through Court. Not Manu or Muhammad but the Monarch for the time makes ‘Personal law’ enforceable. (Assan Rawther v Ammu Umma 1971)
Since it is the state’s legislative authority that is the basis of personal law, there is no reason why it cannot be subjected to the Constitution, just like other actions of the state.
Ongoing Legal Change
Bano’s case has evoked the liberal nationalist dream of a uniform civil code in some quarters, based on their concern for the “religious” oppression faced by Muslim women. This is curious, since (i) Shayara’s petition itself makes no such demand, and (ii) there is no direct connection between reforming certain practices in Muslim family law and a uniform family law for the entire nation. Contrary to popular belief, personal laws, including Muslim personal law, have undergone a lot of changes in the last 30 years through piecemeal amendments introduced by the legislature, but much more significantly through judicial interpretation in cases brought by people like Bano (Subramanian 2008, 2014).
In the current case, instead of chasing the grand nationalistic vision of “one nation, one law”, the Supreme Court of India would do well to contribute to that ongoing process of legal change by setting aside the shadow of the 1951 Narasu judgement and holding personal laws subject to fundamental rights. This would enable not just Muslim women like Bano, but also women in other religions to challenge the discriminatory provisions in the personal laws applicable to them.
Ahmedabad Women’s Action Group v Union of India (1997): AIR, SC, p 3614.
Assan Rawther v Ammu Umma (1971): KLT, KER, p 684.
C Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil (1997): AIR, SC, p 1697.
Khursheed Ahmad Khan v State of UP (2015): Civil Appeal No 1662, SC.
Krishna Singh v Mathura Ahir (1980): SCR, 3, p 660.
Kunhimohammed v Ayishakutty (2010), KLT, Ker, 2, p 71.
Re, Smt. Amina v Unknown (1992): AIR, Bom, p 214.
Saumya Ann Thomas v Union of India (2010): ILR, Ker, 1, p 804.
Shamim Ara v State of UP (2002): SSC, SC, 7, p 518.
Shayara Bano v Union of India (2016): Writ Petition (Civil) No. 118, SC.
State of Bombay v Narasu Appa Mali (1952): AIR, Bom, p 84.
The State of Bombay v Narasu Appa Mali (1952): AIR, Bom, p 84.