Pakistan is about to codify Hindu personal law; India must consider codifying Muslim personal law

Last week, the Pakistan National Assembly passed a Hindu Marriage Bill to deal with marriage, divorce and maintenance rights for the approximately 3 million strong Hindu community in that country. The law provides for the mandatory registration of marriages, while recognising the customary rights and rituals through which a marriage is solemnised. Sixty-nine years after Independence, and sixty years after India enacted a Hindu Code for Hindus in India, Pakistan’s Hindus finally have a codified personal law. It has to be approved by the Pakistani Senate before it becomes law, nonetheless, some of the main provisions in the Hindu Marriage Bill are:

-It removes any doubt about the age of majority for marriage. In contrast to India’s Hindu Marriage Act, 1956, it fixes a uniform age of 18 as the age of maturity at which a person can marry.
-Interestingly while it ostensibly outlaws bigamy for Hindu men (and imposes criminal penalties for bigamy), it does not abolish it entirely. It allows men to marry a second time if it is medically proven that the first wife is unable to have children, without necessarily divorcing the first wife.
-It clearly lists out the grounds on which a Hindu marriage may be dissolved by court on grounds of cruelty, impotence, desertion, et al.
-While providing many grounds for divorce, it provides an additional ground for women who wish to divorce a man who had married twice prior to the coming into force of the Hindu Marriage Bill.
-Clear provisions in the law mandate that a divorce petition filed by a man will not be decreed unless the court is satisfied that there is sufficient maintenance being provided for the woman and any children born out of the marriage.
-It also clarifies an issue that was the source of much confusion – the right of Hindu widows to remarry. The Hindu Marriage Bill makes it clear that Hindu widows have a right to remarry, but curiously, not within six months of her husband’s death.

Given the vast and confusing body of Hindu religious personal law, which was judge made, often contradictory and not easy to understand, the Hindu Marriage Bill is a step forward for Pakistan’s largest non-Islamic minority community. It also removes a difficulty that Hindus had of proving their marriage for official purposes since, unlike Muslim marriages which are essentially contracts, there is no one document which could instantly prove the marital status. By making registration mandatory, the Hindu Marriage Bill makes it easier for Hindus to establish the fact of marriage for official purposes.

Representational image. Reuters

Representational image. Reuters

Apart from comparisons with the Hindu Code in force in India, the Hindu Marriage Bill is also relevant in the context of one area in Indian personal law: The reform of Muslim personal law. Personal law in Pakistan has been a mirror image of the personal law in India. While the majority community’s laws were codified within two decades of Independence, the largest minorities’ were still governed by non-codified customs as interpreted by courts. The personal laws of Parsis and Christians on the other hand had been codified under British rule and continue to apply in both countries (with subsequent amendments). With Pakistan having taken a step forward in codifying Hindu personal law, perhaps it’s time for India to seriously consider the codification of Muslim personal law.

The debate on reform of Muslim personal law in India is currently deadlocked between two extremes. On the one hand, an unsatisfactory status quo, and on the other, an abstract, shapeless Uniform Civil Code carrying uncertain benefits and the bogey of majoritarian imposition. Perhaps codification of Muslim personal law, with suitable provisions addressing problems with the law as it stands, may be a better solution. The debate over polygamy, talaq, property rights for women, and all the major areas of dissatisfaction can be engaged in without bringing in concerns of majoritarian imposition.

At present Muslim personal law is governed by Muslim Personal Law (Shariat) Application Act, 1937 which doesn’t actually codify the law but simply states that the personal law governing Muslims in India will be the shariat. The Dissolution of Muslim Marriages Act, 1939 which was introduced to clarify the grounds on which a Muslim woman may dissolve the marriage is one other law, but deals with a very narrow aspect of personal laws. The only post-Independence statute governing Muslim personal law is the Muslim Women’s Protection of Rights on Divorce Act, 1986 introduced by the Government to overturn the Supreme Court’s judgment in the Shah Bano case. The latter is perhaps a great example of how not to undertake law reform, and even though it carried out reform by stealth, by introducing a liberal provision for post-divorce maintenance, it can’t fully shake away the suspicions of having been enacted in bad faith.

Of course, the actual content of the proposed Muslim personal law will require debate within and without the community. As with Hindus in India, Muslims also cannot be reduced to a single monolithic religious identity and the interests of various sects, classes, castes and sections who are broadly classified under the label “Muslim” will need to be taken into account, in addition to end of achieving gender justice in the law. This will not be an easy task but it cannot wait another sixty-nine years to be brought to fruition.

Updated Date: Oct 04, 2016 14:05 PM

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