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Although the NDA government has assigned the Law Commission to find out whether the uniform civil code could be implemented in the country, the going has not been easy for the Commission.

Among other complex issues staring at the Commission is the task to figure out the relevance of The Muslim Personal Law (Shariat) Application Act, 1937 and the Bombay High Court order upholding Muslim personal laws, says a Times of India report.

The Commission will need to examine Section 2 and Section 3 of the Act in detail before arriving at a conclusion, the report points out.

Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937 says: “regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Section 3 of the Act that deals with the power to make a declaration says that a Muslim “may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of (the provisions of this section), and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants…”

Justice Chauhan points out in the report that the influence of Section 3 on Section 2 and the number of Muslims who have taken advantage of Section 2 after the declaration needs to be examined.

The report further says that the commission is still collecting materials and judgments and has not yet decided if an all-party meeting needs to be convened on the issue.

However, many pro-pluralism advocates believe that it is an erroneous perception that India has different personal laws because of religious diversity. Different laws exist in different states. The framers of the constitution, the pluralism advocates say, did not intend total uniformity in the sense of “one law for the whole country”, because the power to legislate in respect of personal laws has been given to both Parliament as well as the state legislative assemblies.

Experts point out that the Narendra Modi government would find it extremely difficult to take a different position in the apex court when it submits its response on the uniform civil code. The apex court is examining the issue suo motu.

The government, however, is in favour of a uniform civil code but is cagey about proceeding before a consensus emerges, considering the issue is incendiary.

 

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