India is a secular country. Secularism is the basic structure of the Constitution of India. The secular nature of the constitution resulted in unrestrained practice, profess, and propagation of their religion according to their own choice. Accordingly, religious diversity is freely practiced and propagated in the country. However, the fundamental religious practices of these religions and their dissimilarities have triggered serious debate in terms of gender justice and the Uniform Civil Code (UCC) of the country. It is a longstanding agenda of the government strategically avoided, but judicially continuously activated in the country. The argument put forward for the support of the UCC is that as the personal laws yield uneven and unjust practice, UCC should be materialized by the government. Contrary to this argument, the argument put forward for the recognition of personal is secular nature of the Constitution. In this context, it is interesting to note that the Indian judiciary has immensely contributed and heralded for the enunciation of secularism. Notwithstanding such decisions, the judiciary has equally articulated the inherent injustice associated with the personal practices of Muslim law. The purpose of this paper is to evaluate the Muslim personal law of the country in the backdrop of the judicial verdicts., {"references":["[1] . Art.34 & Art.36 of China (People's Republic of) 1982; Art.57, Constitution of Cuba2018; Art.4 of Constitution of Fiji,2013. [2]. See Art.18 of Universal Declaration of Human Rights, 1948; Art.14 of the Convention on the Rights of the Child, 1989 G.A. Res.44/25, U.N.Doc. A/44/736 (1989); Art.12 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990, A/RES/45/158, 2220UNTS3(July 2003); Art.1 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GAS 36/55 of 25 November 1981; Art.2 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GAS 47/135 of 18 December 1992; Art.18 of the International Covenant on Civil and Political Rights, 1966. [3]. See Art.12 of the Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador); Art.3 of the American Declaration of the Rights and Duties of Man; Art.8 of the African Charter on Human and Peoples' Rights of 1981; Art. 10 of the Charter of Fundamental Rights of the European Union, 2016; Art.9 of European Convention on Human Rights, 1950. [4]. Art.24 of the Constitution of Albania 1998; Art.51 of the Constitution of Algeria 2020; Art.11 of the Constitution of Andorra 1993; Art.41 of the Constitution of Angola 2010; Art.11 of the Constitution Antigua and Barbuda 1981; Art.41 of Constitution of Armenia 1995; Art.116 of the Constitution of Australia 1901; Art.48 of Constitution of Azerbaijan 1995; Art.22 of Constitution of Bahamas 1973; Art.22 of Constitution of Bahrain 2002; Art.41 of the Constitution of the Bangladesh 1972; Art.31 of the Constitution of Belarus 1994; Art.19 and Art.20 of the Constitution of Belgium 1831. [5] . Art.4 (3) of Constitution of Fiji 2013. [6] . Art.2 of Algerian Constitution; Art.2 of Bahrain 2002. [7] . for example, the amendment of the Constitution is limited by religion under Art.234 (3) of the Algerian Constitution. [8]. For detailed personal laws of the Muslim Community, see Tyabji, Faiz Badruddin. Muhammadan Law: the Personal Law Of Muslims. 13th ed. Bombay: N.M.Tripathi and Company, 1940. [9]. Asaf A, Fyzee. A Modern Approach to Islam. Bombay: Asian Publishing House, 2008, p.32. [10] . Hodson, H. V. The Great Divide: Britain, India, Pakistan. London: Hutchinson, 1969, p.ix. [11] . Act of 1781. [12] . Malleson George Bruce. Life of Warren Hastings, First Governor-General of India. London: Chapman & Hall, 1894. p.107. [13]. See Hindu Marriage Act,1955, The Muslim Law of Marriage (Shariat), The Parsi Marriage and Divorce Act,1936, The Special Marriage Act,1954, The Indian Christian Marriage Act, 1872, The Foreign Marriage Act, 1969 etc. [14]. G.B. Reddy, Woman and the Law, 8th ed., Gogia Law Agency, Hyderabad,2011, p.10. [15]. See Article 25 of the Constitution of India, 1950. [16] . B.K.Kapoor, Indian Society structure and change, Ritu Publications, Jaipur,2013,p.187. [17] . Before the adoption of these personal laws, Warren Hasting got it translated to English with the help of scholars. [18] . Penderel Moon. Warren Hastings and British India. London: Hodder And Stoughton Ltd, 1917, p.105. [19] . Ibid, p.274. [20] . For historical accounts of Hindu law, see generally, Jolly Julius. Outlines of a History of the Hindu Law of Partition, Inheritance, and Adoption. Calcutta: Thacker Sprink and Company, 1885. [21] . Ibid. [22] . Malleson George Bruce. Life of Warren Hastings, First Governor-General of India. London: Chapman & Hall, 1894, p.28 [23]. Penderel Moon, supra note, 18, p.352 [24]. Ibid, p.103. [25] . The congress has solemnly and repeatedly declared its policy regarding the rights of minorities in India and has stated that it considers it its duty to protect those rights and ensure the widest possible scope for the development of those minorities and their participation in the fullest measure in the political, economic and cultural life of the nation. The objective of the Congress is an independent and united India where no class or group or majority or minority may exploit another to its advantage and where all the elements in the nation may co-operate together for the common good and advancement of the people in India.\" This resolution was adopted by the Congress Working Committee in October 1937 in the backdrop of the stunning attack by Mr Jinnah. See, Hodson, H. V. . The Great Divide: Britain, India, Pakistan. London: Hutchinson, 1969, p.7 [27]Aqil Ahmad, Mohammedan Law, Central Law Agency, Allahabad, 26th Ed.,2016,p.3 [28] T.V. Rao &Vijender Kumar, Family Law in India, S. Gogia & Company, Hyderabad,9th Ed.,2006, p.525 [28] Subba Rao & Vijender Kumar, Family Law in India, Hyderabad: S. Gogia & Company,9th Ed.,2006, p.525. [29] Vishva Lochan Madan v. Union of India, AIR 2014 SC 2957. [30].The Act has affected the Muslim rule of Puberty. It lays down that the minimum age of marriage for girls is the completion of 18 years and for boys' completion of 21 years. [31] . which removes the disability of an heir arising on account of his apostasy or ex-communication. [32]. section 112 affects the Muslim law of gestation. The section lays down that a child born within 280 days of the dissolution of marriage shall be presumed to be the legitimate child of her father. [33] .it applies only to those Muslims who solemnizes or registers their marriage under the Act. [34] . If a Muslim solemnizes his marriage under the Act, the succession of his property is governed by the Indian Succession Act only. [35] . It confers a right of judicial divorce on a Muslim wife on certain grounds. [36] . Bhatnagar's, Commentary on Muslim Women & Their Rights, New Delhi: Whyte's & Company,4th ed.,2019-20, p.85 [37] . Paras Diwan, Muslim Law in Modern India, Haryana: Allahabad Law Agency, 13th ed., 2018, p.45 [38]. Ibid at 115. [39].Saadiya, Muslim Personal Law and Gender Equality Concerns in India, Advances in Social Science, Education and Humanities Research, International Conference on Law and Justice (ICLJ 2017) p. 162. [40] .S.K.Sinha, Muslim Law, Allahabad: Central Law Agency, 6th ed.,2006, p.281. [41] .Shayara Bano v. Union of India And Ors p.167 [42]. Supra note, 17 at 147. [43]. AIR 1985 SC 945. [44] . Shayara Bano v. Union of India And Ors [45]. Smith, Donald Eugene. India as a Secular State. London: Princeton University Press, 1963, p.105. [46]. S.A.Kader, Muslim Law and the constitution, Eastern Law House, Kolkata,3rd ed.,2016,p.1 [47] .The Muslim Women(Protection of Rights on Marriage) Act, 2019 ACT NO. 20 OF 2019, See the Preamble of the Act which is to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto. [48].Section 3 of the Muslim Women(Protection of Rights on Marriage) Act, 2019 [49] Article 81. The court shall summon the spouses and attempt reconciliation. If the husband deliberately abstains, this will be deemed to be withdrawal of the petition. If the wife abstains, the court will notify her that if she does not present herself the petition may be decided in her absence. If the husband has fraudulently given the wrong address for the wife, he may be prosecuted at her instance. [50] .Article 83. [51] Law on Talaq 1935 Judicial Proclamation No.4 of 1035. [52] .Article 89 [53] . Article 1 of Code of Personal Status 1959 Law 188 of 1959 as amended by Law 90 of 1987 [54] Article 4 [55] . NilabatiBehrav.The state of Orissa, AIR 1993 SC 1960; Maneka Gandhi v.Union of India, AIR 1978 SC 597; Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470; People\"s Union for Civil Liberties v.Union of India, AIR 1997 SC 1203; Vishakav. The state of Rajasthan, AIR 1997 SC 3011; Vineet Narain.Union of India, AIR 1998 SC 889; Githa Hariharan v.Reserve Bank of India, AIR 1999 SC 1149; Chairman Railway Board v. Chandrima Das, AIR 2000 SC 988; Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274; Dwarka Prasad Agarwal.v BD Agarwala, AIR 2003 SC 2686; Suman Sood v. the State of Rajasthan, AIR 2007 SC 2774; Anuj Garg v.Hotel Association of India, AIR 2008 SC 663. [56] . AIR 1952 Bom 84 [57] M.Mohammed Abbas v. The Chief Secretary, Government of Tamil Nadu, AIR 2015 Mad.237. [58]. Sec.5 (i) of Hindu Marriage Act, 1955, Sec.60 (2) of Indian Christian Marriage Act, 1872 and Sec.4 (i) of the Special Marriage Act, 1954 [59]. Sec.498 of Indian Penal Code, 1862 [60]. Sharaya Bano v. Union of India, AIR 2017 SC 4609 [61] . Ahmedabad Women's Action Group v. Union of India (AIR 1997, 3 SCC 573). [62]. 2003 (8) SCC 369. [63]. Decided on 9 February 2015. [64] . The law governing the maintenance of Hindu women are Sec.24 and Sec.25 of Hindu Marriage Act, 1955, Sec.18 to Sec.28 of Hindu Adoption and Maintenance Act, 1956; for the Christian community-Sec. 36 to Sec.38of Indian Divorce Act, 1861; [65]. AIR 1985 SC 945. [66]. Section 127 deals with the alteration of the Maintenance in certain circumstances. Section 127 (3) (b) says that.— (3) Where an order has been made under section 125 in favour of a woman who has been divorced by or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,— (i) in the case where such sum was paid before such order, from the date on which such order was made: (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been paid by the husband to the woman; [67]. Section 3-Mahr or other properties of Muslim woman to be given to her at the time of divorce. (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law, and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. [68]. The Muslim Personal Law Board emphasise maintenance under the following works1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed Abdul Latif; 2. Persian Translation of the Quran by Shah Waliullah Dahlavi; 3. Al-Manar Commentary on the Quran (Arabic); 4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; SiyarAlam-in-Nubla by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi; 5. Al-MaratuBayn Al-FiqhaWa Al Qanun by Dr. Mustafa As- Sabai; 6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi; 7. Commentary on the Quran by Baidavi (Arabic); 8. Rooh-ul-Bayan (Arabic) by Ismail HaqqiAffendi; 9. Al Muhalla by Ibne Hazm (Arabic); 10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abuZuhraDarulFikrul Arabi. [69]. Article 14, Article 15 and Article 21 of the Constitution of India respectively deals with the Equality Clause, Non-discrimination Clause and Life & Liberty Clause. [70] . AIR 2017 SC 4609 [71] .State of Punjab v. Khan Chand, (1974)1 SCC 549. [72] . Om Kumar v. Union of India, (2001) 2 SCC 386 [73] . Dr Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682; Dr Subramanian Swamy v. Director, CentralBureau of Investigation, (2005) 2 SCC 317. [74] . Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, 2004 (12) SCC 770 [75] . Khoday Distilleries Ltd. v. State ofKarnataka[(1996) 10 SCC 304; Indian ExpressNewspapers (Bombay) (P)Ltd. v. Union of India [(1985) 1SCC 641 : 1985 SCC (Tax)121]; Sharma Transport v. State of A.P. [(2002) 2 SCC 188]; State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453; State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Rajbala v. State of Haryana &Ors., (2016) 2 SCC 445; Binoy Viswam v. Union of India, (2017) 7 SCC 59 [76] . Shamim Ara v. the State of U.P., (2002) 7 SCC 518, [77] . Article 44: The State shall Endeavour to secure for the citizen a uniform civil code throughout the territory of India. [78].S In Md. Ahmed Khan v.Shah Bano Begum, AIR 1985 SC 945, Ms. Jrdan Diengdeb v.S.S. Chopra AIR 1985 SC 945 and also in Sarla Mudgal v. Union of India, AIR 1995 SC 1531and in many other similar cases the Supreme Court of India raised the voice against the non-implementation of the Uniform Civil Code. [79] . (1995)3SCC 635. [80] . AIR 2003 SC 2902. [81] .AIR 2006 SC 1158. [82]. Mary Sonia Zachariah vs Union Of India (UOI) And Ors.II (1995) DMC 27"]}