Conclusion

The issue of personal law and the Uniform Civil Code cannot be discussed by suppressing the issue of diverse practices of Indians in different parts of the coun­try. Even the Constitution of India has been framed considering this diversity.

Dr. Ambedkar had stated in his speech in the Constituent Assembly on 23 November 1948, that “it is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it..

The conflict between overlapping issues claimed by different communities as part of their fundamental rights under Articles 25 and 26 of the Constitution of India, has led to confusion and dissatisfaction amongst the various religious com­munities. The interpretation devised by the Supreme Court of India through the concept of “essential religious practice” has subjected different communities to unequal treatment. We need to see and interpret these articles without mak­ing the ‘essentiality of practice’ the basis for the examination of the residents of rights guaranteed under these provisions. Many judgements and opinions of the Supreme Court are reflective of the fact that it has not understood the religious practice of communities through their perspective. Many times it has. Moreover, personal law emanating from religion and the right to practice religion is very closely intertwined. While giving interpretation to a religion-based personal law, principles of modern day ‘constitutional morality’ need to be analysed through the concept of overall ‘religious morality’ or morality and rationale put forth by the practicing denominations. Religious practices cannot be brushed aside by presuming that it had missing ‘rationale’ because it had something to do with a religion. There must be an opportunity to the community to justify the standards of denominational morality by applying the same judicial standards as adopted to assert present day ‘constitutional morality’.

We are experiencing the taste of democracy when the legislatures have thought it appropriate to criminalise the very basic freedom of an individual to follow a religious belief, choose the items of food and choose a partner of his/her life. These regulations, under the garb of maintaining the public order, cannot be justified. On the ground, the decision making can be influenced by majoritarian choice (only by number), consideration of castes, religion of the person occupying public positions and the mindset of law and order—maintain­ing agencies. The strength and force of the guarantees under Articles 25 and 26 of the Constitution of India (for that matter, all the fundamental rights) are much more important for the weak, the marginalised and for minorities rather than the privileged who belong to the prosperous and educated class. The recent trend of legislations, regulating the rights under Articles 25 and 26, has been cruel to the minorities and has infringed the basic freedoms of the individual with which he or she was born. The expanded meaning of public order, morality and health has gone so far as to snatch the very basic values. It has impacted the natural right of an individual. This has been done on sheer strength of numbers. To rectify the damage caused through legislative mechanisms, we need an active and interactive judiciary that considers the impact of diversity and concerns of the underprivileged communities — while maintaining the ideals of the diverse constitutional scheme of India.

Notes

1 The author acknowledges the contribution of Ms. Nabeela Jamil, Advocate, for her detailed research and assistance. Assistance rendered by Mr. Arijit Sarkar, Advocate, is also appreciable.

2 Tahir Mahmood, Muslim Law in India and Abroad (New Delhi: Universal Law Publishing Co., 2012 Edition), 19.

3 Sk Ehtesham Uddin Ahmad, “Customary Practices and Muslim Personal Law in Colonial India,” Proceedings of the Indian History Congress 78 (2017): 643—651.

4 All religious groups have community specific personal laws. See four Hindu law enactments 1955—56 for Hindus, Sikhs, Jains, Buddhists. Christian Marriage Act 1872 for Christians, the Parsi Marriage and Divorce Act, 1936 for the Zoroastrians. Muslim law enactments 1937, 1939, 1986.

Special Marriage Act, 1954; Foreign Marriage Act, 1969; Succession Act, 1925; Guardians and Wards Act.

Dowry Prohibition Act, 1961; Child Marriage Restrain Act, 1929; Prohibition of Child Marriage Act, 2006; Family Courts Act, 1984; Provisions from the Indian Penal Code, 1860; Code of Criminal Procedure, 1973.

Existing Uniform Civil Laws: Arbitration and Conciliation Act, 1996; Companies Act, 2013; Consumer Protection Act, 2019; Contract Act, 1872; Evidence Act, 1872; General Clauses Act, 1897; Insolvency and Bankruptcy Code, 2016; Limitation Act, 1963; Motor Vehicles Act, 1988; Negotiable Instruments Act, 1881; Specific Relief Act, 1963; Transfer of Property Act, 1882, etc.

Section 265A to 265L- Chapter XXIA introduced in Code of Criminal Procedure in 2006.

M.R.Shamshad,https://timesofindia.indiatimes.com/india/why-islamic-law-allows- blood-money-to-let-a-killer-go-free/articleshow/83464090.cms

https://timesofindia.indiatimes.com/city/mumbai/rape-case-settled-out-of-court- hc-quashes-fir/articleshow/61057423.cms

https://www.article-14.com/post/how-india-s-rape-survivors-end-up-marrying- their-rapists

Crime and Punishment in Islamic Law by Rudolph Peter book.

WP(C) No 235/2018; By a common order in lead WP(C) No 222/2018 passed on 26 March 2018, this issue has been referred to a five judges Bench. It is pending as on date.

It is a marriage for a certain period with consent of the parties. A concept of the Shi’aIthna Ashari school though rarely practiced in the present times.

The WP(C) No 235/2018 has defined this concept of marriage as ‘pleasure marriage' without any financial obligation of the husband. It has gone to the extent of saying that ‘Misyar’ is a religiously sanctioned rape.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 para 230 (speaking through Dipak Misra CJI).

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 para 606 (speaking through Dr D Y Chandrachud, J).

Ibid.

Amartya Sen, Identity and Violence: The Illusion of Destiny (Allen Lane: Penguin Group, 2006), 60.

Section 26, Bombay Presidency, Regulation IV of 1827, Section 16 of the Madras Civil Courts Act, 1873.

supra Note 3.

The Collector of Madura v. Moottoo Ramalinga Sathupathy, 1868 SCC OnLine PC 3. Neelkisto Deb Burmono v. Beerchunder Thakoor, 1869 SCC OnLine PC 19.

Hirabae v. Sonabai.

The Khojas originally belonged either to Sindh or to Cutch. They converted from Hinduism to Islam. At present, Khojas are majorly settled in Cutch, Kathiawar (pres­ent day Gujarat) and Bombay (now Mumbai). Khojas generally belong to the Shia sect of Islam. (S.R. Dongerkery, the Law Applicable to Khojas and Cutchi Memons (1 January 1929).

The Cutchi Memons came originally from Sindh and settled in Cutch for the purpose of trade. Just like Khojas, they also converted to Islam from Hinduism. Memons who settled in Cutch came to be known as CutchiMemons while others who remained in the Halai region of Kathiawar are known as HalaiMemons. Some of them resettled in Bombay and came to be known as Bombay HalaiMemons. Khojas generally belong to the Sunni sect of Islam. (S.R. Dongerkery, the Law Applicable to Khojas and Cutchi Memons (1 January 1929).

Muhammad Ismail Khan v Lala Sheomukh Rai, 1912 SCC OnLine PC 37.

Abdul Hussein v Bibi Sona Dero, (1917) 45 IA 10.

Asaf A. A. Fyzee, Cases in the Muhammadan Law of India, Pakistan and Bangladesh Second Edition, (New Delhi: Oxford University Press, 2005), 85.

Mahomed Ibrahim Rowther v. Shaikh Ibrahim Rowther 1922 SCC OnLine PC 2.

See Mohammad Sandhukhan v Ratnam, AIR 1958 Mad 144, C. Mohammad Yunus v. Syedunnisa, (1962) 1 SCR 67.

Objects and reasons of the Shariat Application act inter alia reads as under: “Customary law is a misnomer in as much as it has not any song basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws.

Moulvi Mohammad v. Mohaboob Begum, AIR 1984 Mad 7.

Section 2 of the Shariat Act rules out custom or usage with reference to the enumer­ated subjects. However, a declaration under Section 3(1) has to be made to rule out custom or usage on the question of adoption, legacies and wills.

Lucas V Lucas ILR, 1932 Cal 187.

Collector of Madura V Motto RamalingaSathupathy, 12 MIA 397, 436.

Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461.

Article 366 Definitions: In this Constitution, unless the context otherwise requires, the following expression have the meanings hereby respectively assigned to them, that is to say.

(25) ‘Scheduled Tribes’ means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purpose of this Constitution.

Section 29(2) Hindu Marriage Act: (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

Dukku Lubudu Bariki vs Sobha Hymavathi Devi...

Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125 “Even under Section 3 of the Indian Succession Act the State Government is empowered to exempt any race, sect or tribe from the operation of the Act and the tribes of Mundas, Oraons, Santhals etc. in the State of Bihar, who are included in our concern, have been so exempted. Thus neither the Hindu Succession Act, nor the Indian Succession Act, nor even the Shariat law is applicable to the custom-governed tribals. And custom, as is well recognized, varies from people to people and region to region”.

Manaf Kottak kunnummal, “Indigenous Customs and Colonial Law: Contestations in Religion, Gender, and Family Among Matrilineal Mappila Muslims in Colonial Malabar,Kerala,c. 1910-1928,” SAGEOpen 4, no.1(2014). 10.1177/2158244014525416. Also See Mappila Marumakkathayam Act of 1939,

Also See Meghalaya Compulsory Registration of Marriages Act, 2012.

Faizan Mustafa, “Why Legal Pluralism Matters,” The Indian Express, November 16, 2015.

Faizan Mustafa, “Legal Pluralism in Personal Law,” The Hindu, October 30, 2019. Tahir Mahmood, “All States must be brought into the Mainstream of Family Laws,” The Indian Express, October 29, 2020.

Ibid.

Article 371A and 371G of the Constitution of India.

Sixth Schedule, The Constitution of India.

T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 Para 158.

159. Each of the people of India has an important place in the formation of the nation. Each piece has to retain its own colour. By itself, it may be an insignifi­cant stone, but when placed in a proper manner, goes into the making of a full picture of India in all its different colours and hues.;

160. A citizen of India stands in a similar position. The Constitution recognizes the differences among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of dif­ferent pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces.

Mr. Mohamed Ismail Sahab on 23 November 1948.

Mr. Naziruddin Ahmed on 23 November 1948.

Mr. Mehboob Ali Beg Saheb Bahadur 23 November 1948.

Mr. B. PockerSahabBahadur 23 November 1948.

Sh. K.M. Munshi 23 November 1948.

Sh. Alladi Krishna Swamy Iyyer 23 November 1948.

See Note 31.

Constituent Assembly of India Debates (Proceedings) — Volume IX, 6 September 1949, available at: https://www.constitutionofindia.net/constitution_assembly_debates/ volume/9/1949-09-06

ibid.

For instance, the law of anticipatory bail (Section 438 of Cr.P.C.) differs from state to state. In 2019, anticipatory bail has been restored in Uttar Pradesh with it not being available for around 43 years. Section 295AA added recently by Punjab to the IPC. 9th Schedule, Constitution of India.

Article 48, Article 25 (Explanation I), Article 290A, Article 371A-G.

Krishna Singh VMathura Ahir decided in 1979 [by S MurtazaFazal Ali & A P Sen, JJ]; reprted at (1981)3 SCC 689.

Page 2, Law Commission of India: Consultation Paper on Reforms of Family Law (31 August 2018).

Report given by the Law Commission of India to the Central Government in the shape of a Consultation Paper on: Reform of Family Law dated 31 August 2018.

Pew Research Centre, “The Gender Gap in Religion Around the World,” March 22, 2016, available at: https://www.pewforum.org/2016/03/22/the-gender-gap-in- religion-around-the-world/.

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Rehan Aindri, Privileging the Powerful: Religion and Constitutional Law in India, Cambridge.

Para 25, Jose Paulo Coutinho v. Maria LuizaValentina Pereira, (2019) 20 SCC 85.

Article 3, Decree of Gentile Hindu Usages and Customs of Goa, 1880.

Article 1086: Ecclesiastical Courts alone can nullify Catholic marriages.

Dr Ismail Faruqui V Union of India reported (1994) 6 SCC 360; Opinion of M N Venkatachalliah CJI, G N Ray J and J S Verma J.

M. Siddiq V Mahant Suresh Das, (2019) 18 SCC 631 (by Majority opinion of Dipak Misra CJI & Ashok Bhushan J; S Abdul Nazeer, J dissenting).

Dr. Ramesh Yeshwant Prabhoo vs Prabhakar Kashinath Kunte, (1996) 1 SCC 130. Mohammed Zubair Corporal No. 78467G vs. Union of India and Ors, (2017) 2 SCC 115 decideed by a Bench of Justices T.S. Thakur CJ, Dr. D.Y. Chandrachud and L. Nageshwar Rao JJ on 15 December 2016.

Regulation 425 of the Armed Force Regulations, 1964

“425. Growth of hair, etc. by Air Force personnel.—(a) Except as in sub-para (b), the hair of the head will be kept neatly cut and trimmed. The hair of airman under detention/sentence will be cut no shorter than is customary/throughout the service except on medical advice and except where on an application made by the airman he has been permitted to keep long hair. Face will be clean shaven. Whiskers and moustaches, if worn, will be of moderate length.

(b) Personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard. However, such hair and/or beards will be kept clean, properly dressed and will not be removed except on medical grounds or on application duly approved”.

Decided on 18 March 1954 by Five Judges Reported at AIR 1954 SC 338.

Jamshedji Cursetjee Tarachand v. Soonabai, [ILR (1909) 33 Bom 122: 10 Bom LR 417].

Decided on 21 January 1963 by Five Judges Reported at 1963 1 SCR 561.

Decided on 11 March 2004 by Three Judges Reported at 2004 12 SCC 770.

Justice A.R. Lakshmanan.

Bijoe Emmanuel Vs. State of Kerala, (1986) 3 SCC 615 at 55, Para 20.

Written by J. S. Khehar CJI.

This case originated with the suomotu direction of the Supreme Court (reported at [2016]1 SCC 36]). Finally the judgment was delivered by a five judge bench of the Supreme Court reported at (2017) 9 SCC 1.

Shamim Ara V State of UP, (2002) 7 SCC 518. https://indianexpress.com/article/india/seer-files-plea-in-sc-seeking-uniform- code-for-religious-charitable-endowments-7431932/

Leading Cases where Supreme Court made Observations on Uniform Civil Code

i. Mohd. Ahmed Khan v. Shah Bano Begum, [(1985) 2 SCC 556], Ms. Jorden Diengdeh versus S.S. Chopra, [(1985) 3SCC 62] Para 7, SarlaMudgal v. Union of India, [(1995) 3 SCC 635] Para 45, Ahmedabad Women Action Group [(1997) 3 SCC 573] Para 10, Lily Thomas v. Union of India, [(2000) 6 SCC 224], John Vallamattom v. Union of India, [(2003) 6 SCC 611], State of Tamil Nadu v. K. Shyam Sunder, [(2011) 8 SCC 737], ABC v. State NCT of Delhi, [(2015) 10 SCC 1], Supreme Court Women Lawyers Association [(2016) 3 SCC 680] para 5, Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, [(2019) SCC Online SC 1190].

Sarla Mudgal v. Union of India, (1995) 3 SCC 635.

Ahmedabad Women Action Group (AWAG) v. Union of India, (1997) 3 SCC 573.

The reliefs sought for were as under:

(a) to declare Muslim Personal Law which allows polygamy as void as offending Articles 14 and 15 of the Constitution;

(b) to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution;

(c) to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause VIII(f) of Section 2 of Dissolution of Muslim Marriages Act, 1939;

(d) to declare that Muslim Women (Protection of Rights on Divorce) Act, 1986 is void as infringing Articles 14 and 15;

(e) t o further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status, void as discriminating against females only on the ground of sex.

Maharishi Avadesh vs. Union of India, 1994 Supp (1) SCC 713.

Supra Note 91.

(2016) 2 SCC 36.

Ibid.

Ashwani Kumar Upadhyay.

W.P. (C) 819 of 2015 “After arguing the matter at considerable length, Mr. Gopal Subramaniam, Ld. Sr. Counsel for the Petitioner seeks leave to withdraw this peti­tion. The Writ Petition is accordingly dismissed as withdrawn”.

Supreme Court leaves Uniform Civil Code to Parliament, door ajar on triple talaq https://timesofindia.indiatimes.com/india/supreme-court-leaves-uniform-civil- code-to-parliament-door-ajar-on-triple-talaq/articleshow/50083462.cms

Ashwani Upadhyay vs. Union of India, W.P.(C) 202 of 2018.

Ashwani Upadhyay vs. Union of India, W.P.(C) 6483 of 2019.

Ashwani Upadhyay vs. Union of India, W.P.(C) 869 of 2020.

Ashwani Upadhyay vs. Union of India, W.P.(C) 1108 of 2020.

Ashwani Upadhyay vs. Union of India, W.P.(C) 1144 of 2020.

Ashwani Upadhyay vs. Union of India, W.P.(C) 1000 of 2020.

Ranjan Gogoi, CJI.

SC Raps Advocate Ashwani Upadhyay for Filing Meaningless PILs. dated 18 January 2018 retrieved on 06 August 2021. https://www.aninews.in/news/national/ general-news/sc-raps-advocate-ashwini-upadhyay-for-filing-meaningless- pils201811121709310004/

This Document is part of W.P.(C) No. 6483 of 2019 in the Delhi High Court.

Dipak Misra CJ, R Bhanumati and Ashok Bhushan JJ Reported at Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689.

Ibid. Three main questions framed for answer to be given by five Judges (First Set of Questions):

1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby vio­lates the very core of Articles 14, 15 and 17 and not protected by “morality” as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential reli­gious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it per­missible on the part of a “religious denomination” managed by a statutory board and financed under Article 290-A of the Constitution of India out of the Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices vio­lating constitutional principles/morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

110 DipakMisra CJ, A.M. KhanwilkarJ; R.F. Nariman and Dr. DY. Chandrachud, JJ con­curring and Indu Malhotra, J dissenting Reported at Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1.

111 Indu Malhotra, J.

112 Questions framed by majority judgment (of three judges) to review the judgment on Sabrimala Temple reported at (2019) 11 SCC 1 (Second Set of Questions).

(i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.; (ii) What is the sweep of expression “public order, morality and health” occurring in Article 25(1) of the Constitution.; (iii) The expression “moral­ity” or “constitutional morality” has not been defined in the Constitution. Is it overarching morality in reference to Preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective.; (iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be deter­mined by the head of the section of the religious group.; (v) What is the mean­ing of the expression “sections of Hindus” appearing in Article 25(2)(b) of the Constitution.; (vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.; (vii) What would be the permissible extent ofjudicial recog­nition to PILs in matters calling into question religious practices of a denomina­tion or a section thereof at the instance of persons who do not belong to such religious denomination?

113 R.F. Nariman and Dr. D.Y. Chandrachud JJ.

114 Question framed by a Bench of Nine Judges for consideration (Third Set of Questions).

(1) What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?; (2) What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?; (3) Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?; (4) What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?; (5) What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?; (6) What is the meaning of expres­sion “Sections of Hindus” occurring in Article 25(2)(b) of the Constitution of India?; (7) Whether a person not belonging to a religious denomination or reli­gious group can question a practice of that religious denomination or religious group by filing a PIL?

115 Affidavit submitted by All India Muslim Personal Law Board on 29 January 2020 in W.P.(C) No. 472 of 2019 in response to the Court’s notice dated 16 April 2019 inter alia states as under:

“The answering Respondent submits its reply purely in the light of religious doc- trine/tenets/belief in Islam. Considering the said religious texts, doctrine and religious belief of the followers of Islam, it is submitted that entry of women in the Mosque for offering prayer/Namaz, inside the Mosque, is permitted. Thus, a Muslim woman is free to enter Masjid for prayers. It is her option to exercise her right to avail such facilities as available for prayers in Masjid. The All India Muslim Personal Law Board does want to comment on any contrary religious opinion to this effect. Islam has not made it obligatory on Muslim women to join congregational prayer nor is it obligatory for woman to offer Friday Namaz in congregation though it is so on Muslim men. The Muslim woman is differently placed because as per doctrines of Islam she is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home”.