Muslim personal law

The mandate of our Constitution regarding a common civil code is viewed as a nightmare by the vast majority of Muslims Equally answerable for this unfortunate situation are those traditionalists who assert that every principle of the Muslim personal law now applicable in this country is a part of the Qur'an and those pseudo secularists who propagate the fallacy that a future common civil code will have nothing in it derived from Islamic legal principles

The predominance of these elements in our society leaves no room for the Muslim masses to ponder over and appreciate the true nature and implications of the noble mandate. The view that Muslim personal law is, unlike the Qur'an, open to change and adaptation appears quite obnoxious to them; and they find a camouflage in the suggestion that fundamentals of their law will find a place in the common civil code. They regard such a code as the "grave" of their personal law; any talk, however sensible, about the latter's reform by the state appears to them as a path of vainglory which leads "but to the grave." They therefore insist that the existing Muslim personal law, with its minutest details, should remain strictly pre served in this country.

During the last fifteen years or so the feasibility of replacing the system of communal personal laws by a common civil code and the need for an interim reform of the Muslim personal law (laws of all other communities being, to a large extent, already modernized) have been polemically debated in and outside the country. The debates have brought into focus conflicting attitudes prevailing among Muslims. These attitudes have so far been generally evaluated with reference to the reforms which, in the recent past, a large number of Muslim countries have, one after another, introduced in their personal laws. These developments in the world of Islam are quite relevant to such an evaluation.

More relevant, however, is the constitutional and legal status of Muslim personal law in this country itself. An ascertainment of the same requires a thorough study of the Indian statute book in its historical perspective. The position of Muslim personal law under ursisting Constitution, and the nature and implications of pou independence legislation having a bearing on that law, can best be understood in the light of the place which this personal law has occupied, at different stages, in the legal and constitutional history of the subcontinent.

This book begins with a survey of the legal documents which recognized Muslim personal law during the early days of British rule. It analyzes the legislative powers which the British had assumed in respect of that law while recognizing it: the laws which were enacted in exercise of such powers; and the reaction and impact of those laws. It then proceeds to discuss the demands voiced by certain sections of Muslims in regard to their personal law during the independence movement and in the Constituent Assembly. The discussion is then conducted in terms of the place which that law actually found in the Constitution enforced in 1950 and the way it has been treated in the Indian legislature since the advent of freedom. It is in the light of this survey and discussion that the right and wrong in the conflicting attitudes to a common civil code and personal law reform, now prevailing in various sections of Indian Muslims, may be judged; an illustrative and critical account of such attitudes being included in the book.

The constitutional status of Muslim personal law in the other two parts of the subcontinent-Pakistan and Bangladesh-its reform in those countries and the reaction of the people to the same, have great relevance to the objectives of the present study. A brief account of these has therefore been given in the last chapter.