UNIFORM CIVIL CODE:PROBLEMS AND PROSPECTS THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF Bottor of $IitlO!0[opi)p IN LAW BY Mohd. Shakeel Ahmed Senior Lecturer Under the SuDervJsion of Prof. Saleem Akhtar Former Chairman & Dean DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 2001 T5734 SF^/^ 1 0 7 JUL 2005 Tcdt '«pi<v'^•»~wt6^ ALIGARH MUSLIM UNIVERSITY DEPARTMENT OF LAW ALIGARH-202 002 (U P) INDIA Dated. ; Prof. Saleem Akhtar Former Chairman & Dean Qltttlfitntt This is to certify that Mr. Mohd. Shakeel Ahmad, Senior Lecturer, Department of Law has completed the present research work entitled "Uniform Civil Code : Problems and Prospects" under my supervision. His research work is an original contribution towards the academic excellence. He has fulfilled all the requirements needed for submission of this research work. I further certify that the instant research work has not been earlier submitted elsewhere for the award of Ph.D. degree. I deem it a work of high quality and excellence for the award of Ph.D. degree. I wish him all success in life. (Prof. Saleem AEhtar) Supervisor Phone • Office (0571) 400547 Univ Extention 400920/271 Telex 564-230-AMU-tN Fax • 0571-400528 Wakafa Billah-e-Shaheeda (Surah Al-Fath, verse 28) "ALL SUFICIENT IS ALLAH AS A WITNESS" Dedicated to My Mother Mrs. Sajida Khatoon Acknowledgement All thanks are due to 'Allah', the Lords of the Worlds, who out of His infinite love for me made it possible to complete this work. Blessing and salutation on the noble prophets of Allah and the last of them 'Hazrat Mohammad (SAW)', his companions, his companions of the companions and religious elders. It is my moral and pleasant duty to express sincere gratitude and obligation towards all those who helped, with their kind guidance, encouragement and cooperation without which this study would never have appeared in the present form. First and foremost I must acknowledge my sincere debt of gratitude to my teacher and supervisor. Professor Saleem, Akhtar, former Chairman and Dean, Faculty of Law, A.M.U., Aligarh, under whose scholarly guidance this study has been conducted. His readiness to supervise the work, in spite of his various engagements, is a testimony of his affection for me as well as the keen interest he took in this academic venture. I am further obliged and grateful to him because he always encouraged me by offering valuable suggestions and thoroughly secrutinizing the manuscript. Without his sympathy and cooperation it would have been really difficult to complete the work. I feel deeply obliged to Professor Qaiser Hayat, my revered teacher. Chairman and Dean, Faculty of Law, A.M.U., Aligarh for his cooperation and encouragement for the work. Without his scholarly guidance and paternal affection this work would never have been submitted. 11 I am equally thankful and obliged to Professor Ishaque Qureshi, my ideal in the department, who always encouraged me to complete the work. In him, I find a sincere teacher, an honest administrator and disciplined guide with paternal affection. On this occasion I can not forget to make a very special mention of Prof. M. Zakaria Siddiqui, former Chairman and Dean Faculty of Law, A.M.U., Aligarh for his valuable help and suggestions for the work. Through out my career in Faculty of Law he acted to me like a goad and teacher. I have no hesitation in saying that he has been my mentor in the department. I feel bound to express my gratitude to Professor S.S.H. Azmi, former Chairman and Dean, Faculty of Law, Prof. N.H. Khan, Estate Officer (Gazetted), A.M.U., Aligarh and Prof. Mohd. Shabbir, Director Ambedkar Chair of Legal Study and Research, A.M.U., Aligarh for their encouragement and support in my research work. I am equally grateful to my colleagues in the department specially Dr. Iqbal Ali Khan, Dr. M. Afzal Wani, Dr. Waseem Ali, Dr. Mohd. Ashraf, Mr. Iqbal Hadi Rizvi, Mr. M. Zafar Mahfooz Nomani, Mr. Nafees Ahmad and Mr. Jamal Ansari, Semi-Professional, Z.H. College of Engineering and Technology, A.M.U., Aligarh. On this occasion I can not forget to make a special mention of my friend Mr, Muheebul Haq, Lecturer, Department of Political Science, A.M.U., Aligarh for his sincere advices during the completion of this task. To my mother, Mrs. Sajida Khatoon, former Lecturer S.G.I.C. Jaunpur, I owe everthing. Had she not been our mother the whole family would not have achieved the success which we have achieved. I wish and Ill pray to Almighty Allah that every household in this world should have a mother like her. Words alone can not express my indebtedness which I owe to my wife, Mrs. Anjum Tasneem for her invaluable contribution, unlimited patience and cooperation extended to me during this work. Had she not been my companion in life perhaps I would not have completed my work in such a short time. My son Master Abdullah Samdani and my daughter Baby Ayesha Samdani deserve mention here that whenever I got tired these two kids absolved me from all the tiredness when I saw them. I want to place on record my deep sense of gratitude and indebtedness to my elder brother Er. Shafiq A. Samdani, Senior Manager, Indian Oil Corporation, New Delhi and my younger brother Nadeem A. Samdani, Additional Superintendent of Police, Neemuch, for their sincere advices and co-operation throughout my career. It would be an injustice if I do not express my sense of gratitude to my brother-in-law Dr. Iqbal Ahmad (M.S.), a leading surgeon of eastern U.P. and Managing Director, Halima Hospital, Mau and my very beloved sister Dr. Sheema Samdani, a leading gynaecologist, Haleem Hospital who always boosted and helped me morally and financially. I would be doing great injustice if I do not express my words of gratitude to those of my students who helped me a lot in completing this academic venture specially Messers Sadiq H. Abidi, Ateeq Ahmad, Mohd. Ali Ansari, Zohair A. Mojahid. I am greatly indebted to Mr. Shadab Rahil Ansari, a student of M.B.B.S. (IV) year for his continuous help throughout my work. IV I am beholden to the library staff and the staff of the Chairman and the office of the Dean, Faculty of Law, A.M.U., Aligarh particularly to Mr. Wajid Hussain, Mr. Roshan KhayaL, Mr. Naeemuddin (Section Officer) and Mr. Shareef Ahmad. My special thanks are also due to Mr. Zubair Ahmad Khan, Section Officer, Faculty of Law for his special interest and support for me in the faculty. In the last I am beholden to Mr. Pradeep Sharma for typing this thesis very efficiently and sincerely. Last but not the least I am highly thankful to all of my friends and well wishers for their sincere advice and blessings. Date : (MOHD. SHAKEEL AHMAD) CONTENTS Page Acknowledgement Chapter - 1 Introduction 1-23 Statement of the Problem 1 Scope of the Study 14 - Objectives of the Present Study 15 Research Methodology 21 Chapter - 2 Historical Background of Personal Law 24-49 A Personal Laws in Ancient India 25 B. Personal Laws in Medieval India 28 C. Personal Laws in British India 34 D. Codification of Laws 40 Summary 45 Chapter - 3 Uniform Civil Code and The Constitution of India 50-70 A Constituent Assembly Debates on Uniform Civil Code 50 (i) The attitude of antagonists 51 (ii) The attitude of protagonists 58 B. Personal Laws and the Constitution of India 61 Summary 67 Chapter - 4 Uniform Civil Code : Misconception and Reality 71-100 A Dimensions of Personal Laws 71 (i) Diversities based on region and territory 71 (ii) Diversities based on specified group of persons 75 (iii) Diversities based on customs usages 76 B. Uniformity : An Enoneous Approach 78 C. The Great Fallacy About Muslim Personal Law 81 D. What Does Article 44 Demand? 88 Summary 95 Chapter - 5 Uniform Civil Code : Judicial Approach 101-161 A Narasu Appa Mali Case 102 B. Shah Bano Begum Case 107 C. Jorden Diengdeh Case 118 D. Sarla Mudgal Case 125 E. Ahmedabad Women Action Group Case 146 Summaiy 154 Chapter - 6 Fundamental Rights and Directive Principles of State Policy 162-187 A First Period (Champakam Dorai Rajan to Chandra Bhavan) 163 (i) Champakam Dorai Rajan case 163 (ii) Hanif Qureshi case 164 (iii) In re Kerela Education Bill 1957 167 B. Second Period (Chandra Bhavan to Minerva Mills) 168 (i) Chandra Bhavan's case 168 (ii) Minerva Mills case 173 C. Third Period (Post Minerva Mills cases) 177 (i) Sanjeev Coke manufacturing case 178 (ii) Unnikrishnan case 178 (iii) Bandhua Mukti Morcha case 178 D. Directive Compared with Fundamental Rights 179 Summary 185 Chapter - 7 Hindu Law Reform : The Goal of Uniformity and Gender Justice 188-222 A Hindu Law Refoims 189 B. Demand for Change 191 C. The First Hindu Law Committee 192 D. Source of Authority for Change 200 E. Applicability of Refoimed Hindu Law 211 (i) Who is a Hindu? 211 (ii) Uniformity 214 Summary 217 Chapter - 8 Reforms in Minority Personal Laws 223-301 A Legislative Activity with Regard to Muslim Personal Law 224 B. The Dissolution of Muslim Marriage Act, 1939 233 C. The Special Marriage Act, 1954 241 D. Hindu Law Reforms Acts 245 E. The Code of Criminal Procedure, 1973 (The controversy relating to the definition of the wife) Section 125(1) Explanation (b) 248 E The Adoption Bill, 1972 256 G. The Muslim Women (Protection of Rights on Divorce) 263 Act, 1986 (i) The Response of the Union Government 266 (ii) The Lok Sabha Debate on Muslim Women Bill 269 (iii) Reforms in other minority religious Personal laws 277 H.