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News: Recently, the government introduced the Prohibition of Child Marriage (Amendment) Bill, 2021, to raise the age of marriage for women from 18 years to 21 years. Some Muslim MPs in Parliament have called the Bill an attack on personal laws because it proposes that it will override the personal laws of Muslims, Parsis, Hindus and Christians.
| Must read: Raising the legal age of marriage for women – Explained, pointwise |
What are the previous instances of corrections in Muslim personal laws?
The British government brought the Shariat Application Act way back in 1937. Two years later, the Dissolution of Muslim Marriages Act codified the divorce law and gave the right to Muslim women for divorce.
In the Mohd. Ahmed Khan v. Shah Bano Begum case, 1986, the SC favoured giving maintenance to an aggrieved divorced Muslim woman as envisaged under Section 125 of the Code of Criminal Procedure.
| Note: Section 125 of the Code of Criminal Procedure provides that any person who has sufficient means to maintain himself cannot deny the maintenance to the wife, children, and parents if they are not able to maintain themselves. |
In 1986, the government passed the Muslim Women (Protection of Rights on Divorce) Act to dilute the Shah Bano case judgement. But later in the Danial Latifi judgment the court reinforced the protection.
More recently, the triple talaq legislation came after Muslim women demanded intervention by the state to end this practice.
Overall, the Muslim personal law does not have fully codified laws, instead, they have only piecemeal legislation.
| Read more: Explained: Personal laws in marriage |
Does the state codify laws for religious minorities?
The Hindu Marriage Act was codified in 1955. It includes the Sikhs and the Buddhists, who are religious minorities. There are laws for the Hindu community, which includes Sikhs, Buddhists and the Jains, who are a religious minority. So, the state recognises that each community is to be governed by their personal laws and if there are problems with the personal laws, then it steps in.
What are the reasons for not codifying Muslim Personal Laws?
Muslim laws are not codified because of the kind of politics that played out at the time of Partition. The communalisation and the violence that Muslims faced during partition delayed the codification, and the issue of family law reform always took a back seat for that community.
For instance, the process of codification of laws began in 1937 for Muslims. If Partition had not happened, then Muslims would have had a codified law probably earlier than the Hindu community.
What are the drawbacks of non-codifying Muslim personal laws?
Muslims comprise 15% of the population of this country. But, Progressive laws were deprived to the Muslim community. For instance, 1. prior to Shah Bano Begum case, Muslim women were deprived of Section 125 of CrPC, 2. 18 years as the year of marriage for girls is not fully implemented in the Muslim community.
What should be done?
The state has to play its role whether you are a majority or a minority. Even if 21 years is not implemented and then the law as it exists today(18 years), should be made applicable to Muslims. To that extent, an amendment is necessary.
Source: This post is based on the article “Is it right to increase the age of marriage of women to 21? ” published in The Hindu on 7th Jan 2022.
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