This article is written by Sparsh Agrawal, a student from Symbiosis Law School, Hyderabad. In this article, he discusses a comparative analysis of personal laws with reference to India, Pakistan, and Bangladesh. Moreover, all the personal laws which are needed to be reformed have been discussed in length.
Personal laws are the laws that are applicable to a particular religion and those laws which govern the particular religion. Such laws can be based upon the legislations or the customary laws that are prevailing for a long period of time. Hindu personal law is one of the most primitive and ancient laws that is prevalent in today’s era and also known to the world at large. These laws refer to the laws of the Hindus which were applied during the colonial period beginning from the Anglo-Hindu law to the post-independent Modern Hindu law. These laws underwent major reforms over a period of time, which created political and social controversies throughout India.
Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act,1937. This particular law deals with various aspects such as marriage, succession, inheritance, and charities among the Muslim people. Further, the Dissolution of Muslim Marriage act enacted in the year 1939 deals with the relevant circumstances under which a Muslim woman can obtain for a divorce. Moreover, these laws are not applicable to Muslims who married under the Special Marriage Act,1955.
This article aims at making a comparative analysis of the conditions of the other countries- more particularly to Pakistan and Bangladesh with India in order to highlight the personal laws which are in need of early reconsideration.
Background of Personal laws
In India, at the time of the partition, both India and Pakistan had their religion-oriented personal laws. After the demarcation of both the countries, Independent India with regards to personal law advocated for a Common Civil Code to be applicable to all the citizens irrespective of religion. But India later realized the stage of such transition was prolonged.
Therefore, it introduced drastic amendments to Hindu Personal Law and also extended its applications to the followers of Buddhists, Jains, and Sikhs. In independent India, however, the Muslim personal laws are not that developed in comparison with Hindu personal laws. Nevertheless, it made available to all its citizens an optional secular law of inheritance and marriage which includes minorities also, under the provisions of the Indian Succession Act 1925 and Special Marriage Act 1954.
After demarcation between India and Pakistan, Pakistan on the other side of the boundary was formed on the basis of religion and as its political and social ideal it decided to base the reform programs on true Islamic doctrines. In 1955 a family law commission was constituted to suggest possible reforms in-laws of marriage, divorce, and inheritance. But it failed to get implemented due to instability and unrest in the country.
Likewise, India, Pakistan did not touch the personal law of the minority and as a result, the Hindu personal law remains where it stood in British India on 14th August 1947. Many years of Independence have brought no change for the Hindu minority in Pakistan in respect of their outmoded laws of adoption, marriage, and succession.
The Hindus in Bangladesh comprises a strong minority population, which is much more substantial as compared to Pakistan. The state of their personal law needs careful consideration. The Hindu Code movement launched by reformists in British India was only prevalent as late as 1955-56, and no Hindu community was able to benefit from it after that. Unfortunately, the ancient Hindu Law with unrestricted polygamy practices, unregulated customary divorce, religion-oriented adoption and classical scheme of Dayabhaga law still prevails in Bangladesh.
In Bangladesh, after its dismemberment from Pakistan, Islam has been ceased to the official religion of the country. Bangladesh can be considered as a third free nation appearing on the subcontinent and, like India, have accepted secularism in their constitution and socio-political nature of the country. After its separation from Pakistan, the new nation comprising Bangladeshi people built its own policies at home as well as abroad.
Unfortunately, one of the aspects which are related to the social life of the citizens is the unsatisfactory personal laws of the country. Many Historians have argued that it is too early to expect the new nation to give consideration to its personal laws as the nation is already suffering from pre-separation sufferings. But it is important in the present circumstances that it provides relief to the citizens against the drawbacks in the family laws.
The Indian subcontinent was divided into two parts i.e. India and Pakistan after the partition. Various religious communities were forced to leave their lands because of the religion-oriented conflicts in the nation. This particular system of separation was inherited from the rulers of British India. Moreover, this inheritance is said to be handed to the British rulers in succession by the Muslim Imperial Regime.
When India got independence from British rule, there were socio-economic reforms that were happening across the country. India opted for personal laws within its constitution. It stated that a common civil code shall be applicable to all the citizens of the country irrespective of religion. But it was decided that this particular will be secured gradually. The framers of the law in India thought that the stage of the transition might be prolonged, therefore accordingly they introduced several amendments to the Hindu Personal laws; and also they further extended the applicability of such laws to the followers of Sikhism, Buddhism and Jainism.
It has been stated by the Historians that Indian law frame workers were scared of the possible repercussions unequivocally because of the opinion of the minority community, therefore they did not attempt to make any reform in the branch of Muslim Personal Laws.
Nevertheless, Indian citizens have an optional secular law for marriage as well as inheritance, which is in accordance with the provisions of the Special Marriage Act, 1954, and the Indian Succession Act, 1925. However, Article 44 of the constitution for the sake of enactment of common civil code has been a frequent debate.
Scenario in Pakistan
Pakistan emerged as an independent state after the partition took place in the Indian subcontinent. The state of Pakistan chose Islam as their political and social ideal and decided that all their reform programs and legal frameworks shall be based on the Islamic doctrines. The family law commission in Pakistan which was constituted in the year 1955 to suggest important reforms related to laws of marriage, inheritance, and divorce. This was introduced in order to assure social status in accordance with the fundamentals of Islam, reforms related to personal laws in Pakistan which paled into insignificance in the wake of instability and unrest which may result in unskillful handful which is a newly created state.
After the country got its independence there was a scene that appeared related to socio-legal reform in Pakistan. The Muslim Family Laws Ordinance 1961 introduced by Field Marshal Ayub Khan’, was made applicable to both western wing and the eastern wing of the country
An ordinance was introduced by the government of Pakistan. The major achievement for this particular ordinance is that it had imposed several restrictions on the polygamous marriage and unilateral divorce. Moreover, the state was even successful in introducing the Doctrine of Representation into law of inheritance which talks about the rights of the predeceased children’s issues. After some time the government in Pakistan introduced several reforms under (West) Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
Like India, Pakistan too did not touch the personal laws of the minority. This had caused adverse effects on the Hindus living in Pakistan as it is the same law where it stood in the British era in 1947. After many years of Independence, the country has brought no reforms for the Hindu minority living in Pakistan and there are outdated laws of marriage, adoption, and succession.
Scenario in Bangladesh
Bangladesh is a nation of diverse religious communities and the major chunk of the population are followers of Islam. Muslim Personal Law (Shariat) Application Act,1937 is a law that was enacted in undivided India i.e. before ten years of Independence and it regulates laws regard to family law and succession. Moreover, [West] Pakistan Muslim Personal (Shariat) Application Act 1962, which was replaced at the time of pre-partition, was not extended to the eastern wing of Pakistan.
If we analyze the provisions of the Act of 1937, which is also applicable in India, there is no uniformity as to which various Muslim Personal Laws will be governing the family matters. Provisions with respect to marriage, succession, and divorce are invariably governed under Islamic Law.
In Pakistan, the life estates that were created in favour of women under the customary laws have been terminated and it is subjected to Islamic law, however, such types of settlements are still lawful in Bangladesh. Thus it is implicit that the scope and application of the Muslim Personal Laws in Bangladesh are similar to India. In both the states, Muslims are governed by two different legal systems i.e. customary law and Islamic Law.
Marriage, Divorce and succession are important personal laws in Bangladesh and it is regulated by the Personal law. But the scenario is different in India because still Indian Muslims are regulated by traditional laws in matters of Marriage, Divorce, and succession and there are no reforms introduced as such. In Bangladesh, the Muslim Family Ordinance Bill issued in 1961 (introduced by Pakistan) according to which men’s rights of polygamy and unilateral divorce- if it is exercised in an arbitrary manner in accordance with the traditional laws, then Ordinance shall restrict such practice.
The applicability of Muslim personal law in Bangladesh is more satisfactory as compared to India, because of the Ordinance of 1961. But such ordinance also suffers from several loopholes. Several sections of the society in both Pakistan and Bangladesh are dissatisfied with the reforms which were proposed in the Ordinance Bill. There are provisions related to polygamy and divorce which remain ineffective in most cases and also the law is unclear about the grandchildren’s succession rights. Moreover, the Ordinance has a limited scope in terms of applicability since there have been unchanged aspects of traditional laws, where change is needed since reforms have already taken place in several West Asian Countries. Such drawbacks in the substantive laws and outdated customary laws highlight the need for reforms.
As compared to India, the judicial trends in Pakistan with respect to the interpretation of Islamic laws are different. In Pakistan, courts have assumed the role of mujtahid which means interpreter of law under classical and Islamic Jurisprudence and have put a progressive interpretation of many traditional legal principles relating to marriage and divorce. Therefore it is implicit that all the judicial reforms with respect to Personal laws are introduced by the Supreme Court of Pakistan.
The Hindus in both Pakistan and Bangladesh constitute a strong minority. Therefore, the state of personal law in both countries needs careful considerations. The Hindu Code movement was launched in 1955-56 when a number of communities in Bengal were no more in a position to gain benefits. Unfortunately, ancient Hindu law which allows unrestricted polygamy, unregulated customary divorce, religion-oriented divorce are still prevailing in Bangladesh and Pakistan.
Further, the classical scheme of inheritance under the Dayabhaga law is outdated and it has already been reformed in India. Moreover, Hindu Women’s Right to Property Act, 1937 which was enacted in British India still prevails in Bangladesh and Pakistan and it gives insufficient relief to Hindu women in accordance with the Right to property act. The reforms which were introduced in 1955-56 in India are also adopted by some African countries, but it is still foreign to Hindus in Bangladesh and Pakistan.
Learnings from Hindu Code, 1955-56
In India, the Hindu Code Bill was intended to provide a civil code for the Hindu personal laws, which had been amended to an extent by British authorities. The main objective for proposing was to “The bill was presented to the Constituent Assembly on 9 April 1948 but it caused a great deal of controversy and was subsequently broken down to three more specialized bills which came before the Lok Sabha in its 1952-7 term. The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter-caste marriages and divorce procedures; the Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which till then had been little practised; the Hindu Succession Bill placed daughters on the same footing as widows and sons where the inheritance of family property was concerned.
Hindu Personal Laws in Bangladesh and Pakistan are miles away from the progress made by India in laws related to succession and family law. Unfortunately, the position of the Christian and Parsis in Pakistan and Bangladesh is the same as it was there in India, till they were in August 1947. Therefore, there is an urgent need for reforms in both the countries in accordance with the pattern that has been followed in the Hindu Code Bill.
Need for the codification of Muslim Personal Laws
The Muslim Personal laws board is the main authority which is an influential body in the Muslim community. There have been lots of support as well as criticisms that have been given to the Board. This particular Board has rejected the proposal for reforms under Muslim Personal Laws several times as they believe that such reforms would violate the principles of Islam.
Unfortunately, there are many male members on that board, whereas on the contrary Quran does not support a system that is only managed by a patriarchy System. In the absence of proper codification of laws in Muslim personal laws, there is unclarity in the various rights and various interpretations of the Quran.
Moreover, there have been instances where many baseless “fatwas” against the right of Muslim women. There is a great need for codification of Muslim laws today and it needs to be done as soon as possible. What is known to be as a Muslim Personal Law today, is either known as Anglo-Mohammedan Law or simply Mohamadden law from the British period. However, after India gained Independence the terminology has been changed for removing the British stamp, but contents are still the same and outdated.
As compared to India, Muslim law in Bangladesh and Pakistan is better in many aspects. However, with regard to many aspects, Bangladesh still suffers from drawbacks and also presents a contrast to the codes of personal status and succession enforced in recent years, in various Muslim countries like Morocco, Syria, Tunisia, Iraq, Egypt etc. On the contrary, Hindu Personal Laws in Bangladesh and Pakistan are miles away from the progress made by India in laws related to succession and family law. Unfortunately, the position of the Christian and Parsis in Pakistan and Bangladesh is the same as it was there in India, till they were in August 1947.
It can be stated that in the matters of personal laws various other countries have adopted different courses of action. Countries like Turkey and Albania are predominantly Muslims and they have been successful in replacing Muslim Personal Laws and other personal laws by a common civil code. Further, some of the secular countries like Senegal, Indonesia, Mali, Chad and Nigeria have retained their traditional law and Islamic Law, without any substantive reforms. Also, a large number of countries in West Asia and North Africa have been successful in reforming the laws related to personal status and succession.
The government and people of Pakistan and Bangladesh have to make a choice between a modern secular law of personal status that can be applied to all faiths of individuals and the ongoing system of communal laws based on the religions of the various communities. It can be stated that various personal laws are inevitable and reforms cannot be neglected for a long period of time. The possibility of codifying the Muslim personal laws and reforming the Hindu family law on the pattern of the Hindu Code of 1955-56, maybe considered as some temporary measures. It is duly suggested that the secularization of family law must have opted for a long term goal.
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