Asking for The Moon: Legal Uniformity in India from a Kerala Perspective

Professor Werner Menski, SOAS¹

This article discusses the impossibility of the original 194( 1950s plan of a Uniform Civil Code for India, if understood mean a complete restructuring of the Indian legal system, abolition of the personal law system and creation of one new Indian family law for all Indians. This was like asking for moon, totally unrealistic and simply not feasible.

Indeed, since 2001, it has become apparent (but has been widely noticed) that Indian law has now reached a mature stage of legal uniformity which is significantly different from the originally envisaged model but aims towards uniformity. Postmodern Indian uniformised law clearly retains the personal law system, but seeks to ensure that all these various laws contain more or less the same rules-notably despite Muslim reluctance to have codified family laws. India has thus achieved a different kind of Uniform Civil Code than originally anticipated. It came in through the back door, so to say, gradually developing more uniform family laws for the nation through a combination of legislative interventions and, where necessary, judicial activism.

The resulting picture is a kind of mirror image of the moon. It is an innovative and remarkable legal growth, but brings perhaps no surprise to lawyers living in plurality-conscious places like Kerala. The article also seeks to show that lawyers and Judges from Kerala have made significant contributions to our understanding of this restructuring of Indian law.

Kerala as a mirror of legal pluralism

Kerala has always had a special place in my heart when it comes to South Asian legal studies. While most of my students know this, some even experienced the joys of living and working in Kerala for themselves.² Introduced to the KLT, its founder-editor M.C. Mathew and his family by my illustrious predecessor, Professor.J.Duncan M. Derrett, who was fascinated by Kerala, too.³ I met Shri. M.C. Mathew on my first visit to Kerala in 1983, then recently appointed as a specialist in South Asian laws at SOAS in the University of London. I recounted this in my speech for the Golden Jubilee Celebrationsof the Kerala Law Times in December 1998.⁴ Shri. M.C. Mathew had founded the K.L.T. with much foresight in 1949 and then looked after it and expanded it for almost 40 years until his untimely death on 10 February 1988. Since then, Advocate Siby Mathew and his brother Advocate M. Mathew has been steering the ship, providing a reliable and crucial legal service to all lawyers in the State and much beyond.

In our initial meetings, we did not immediately analyse the uniform civil code issue In depth, nor didwe discuss the wonderful story of Mother Yashoda showing little Krishna, who had asked for the moon, the image of the moon in a mirror. But I was aware that Professor Derrett had described Kerala as a legal museum of great scientific interest to comparative lawyers and was myself beginning to lay foundations for what today I call ' global legal realism' and a plurality-conscious approach to the study of law worldwide.⁵ Shri. M. C. Mathew patiently guided me through his local museum of laws over many years, and we had many stimulating discussions.I found him an alert legal realist, a lawyer who talked commonsense. Aware of many politics in the field of law, he was determined to exercise calm leadership and guidance to ensure continuity and stability, not only for his own business and family, but for the legal profession in his State, Firm in his own beliefs and attitudes, he deeply respected difference and the beliefs and views of others. There was much to learn from such a wise man.

I was aware, much before I came to Kerala, that the State had an interesting political history and was composed of many diverse groups of people, basically various Hindu Communities, different Christian groups, and several Muslim communities of great interest to social scientists and scholars of religious studies and law. Kerala, so much became clear to me from the start of my involvement, had always been inherently plurality-conscious, and its people were deeply aware of differences, past and present, that would need to be taken into account for the successful negotiation of a bright future. I knew that Professor Derrett greatly admired the Judges of the Kerala High Court for being super-conscious of such diversities, but did not anticipate in 1983 that judges and lawyers from Kerala would play over time such a prominent pioneering role in guiding the whole of India towards a better understanding of its own identity as a nation state composed of many different peoples, traditions, cultures and religions. All of these pluralities, given the interlinked nature of law as a global phenomenon, could not remain without effect on how Indian law would develop over time. From a Keralite perspective, with Delhi very far away, any debate of national legal uniformity would inevitably have to be about 'unity in diversity' and law would face many limits. The "irresolution between the particular and the universal"⁶ was always a living legal reality here.

The pretentiousness of asking for a Uniform Civil Code

Southern Indian voices were, as far as I am aware, not very prominent in the early debates on the uniform civil code in India. When India asked for the moon by introducing Article 44 into the Indian Constitution of 1950 as a Directive Principle of State Policy⁷, it set agenda for the future development of the country's legal system that were clearly in line with then prevalent modern and early postcolonial thinking about 'development' and 'progress'. In essence, the underlying argument ran like this: We have a system of religiously-founded personal laws of great complexity and confusing diversity. We have to change this. We want to achieve a number of policy objectives at once by creating a secular uniform family law for all Indians.

One of those policy objectives was clearly nation-building through the tool of a Uniform Civil Code. But does one need a uniform civil law to create a harmoniously functioning nation? What if enforced unification of laws has the opposite effect? By the early 21st century, we can think of several examples of state-enforced uniformity gone terribly wrong.⁸

In my view, asking for total legal uniformity for hundreds of millions of Indians.in 1950 was clearly pretentious, asking for much more than the moon. The audacious proponents of comprehensive structural reforms, prominently around Dr. Ambedkar, evidently expected an eventual total remodelling of the Indian legal system along Western lines, assuming that modern Western states have family law systems that are the same for everyone in any particular country, irrespective of religion, community, local norms and other differentiating factors. In terms of jurisprudence, this would amount to a programme of implementation of legal centralism, a situation where the State, and the State alone, determines the legal rules. However, such kind of legal system and understanding of 'law' is clearly a fiction, and not a fact.⁹

I therefore say nothing new when I reiterate that the basic original assumptions underlying Article 44 of the Indian Constitution were quite wrong and inadequately thought through. In the USA, respect for difference seems a well-developed legal principle despite an outward impression of state-centric codified uniformity. Every US state has its own regime of family laws, with the result that there are huge differences within the USA on many points of detail, and lawyers have to be familiar with many different state-based and local laws - quite like in India. In fact US lawyers are so busy with administering their own jurisdiction of unity in diversity that most of them have little time for foreign laws. The same could be said for Indian lawyers.

A similar picture also prevails in Western European countries once one studies their laws carefully. English law makes specific exceptions for Jews and Quakers when it comes to getting married,¹⁰ treats Jewish and Muslim divorces, which raise similar problems over ‘limping marriages', differently even in recent legislation,¹¹ and now gives special privileges to people marrying under Anglican Christian law, but not others.¹²Italian law is outwardly secular and uniform, but retains many special favours for Catholics, Many European states have an enormous variety of local laws that any lawyers worth their salt have to be familiar with. Where is the case for total legal uniformity if eventhe alleged model of a codified Western legal system does not operate such a strictly uniformised pattern?

The idea of total legal uniformity itself is therefore an ideal, something that would make sense in principle, but is rather more difficult to achieve in legal reality. This ideal is strongly reflected in much writing, particularly in the Indian popular press. Which remainsa major source of information about law for the common citizen as Well as lawyers. Such writing remains generally quite misguided in the assumption That Western laws are uniform. For example Vijay Kumar Malhotra wrote in the Hindustan Times of 5August 1995,¹³ a few months after the much-debated case of Saria mudgal v. Union of India:¹⁴

Most European countries have a common civil code, and everyone including the Minorities are subject to the same set of laws. No exceptions are made and no protests are raised. Common laws in civil matters are not considered tyrannical by the minority communities.

I think that after 9/11 in New York and 7/7 and 21/7 in London many journalists would take a slightly different view of the absence of any protest about the imposition of uniform laws on all people in the newly pluralising multicultural states of Europe and Northern America. Europeans cannot even draw cartoons any longer as they please, without the risk of being pursued all over the world for alleged blasphemy and discrimination. There is now much evidence of violent protest against the refusal to officially acknowledge the presence of something like global shari'a in Western jurisdictions. Some Hindus in diaspora have become militant, too, pursuing some scholars through internet terrorism and other means. There are many copycat reactions now in this sphere.

More troubling still, particularly for Western-inspired legal centralist claims to Superiority, my own research based on mainly South Asian legal evidence shows Consistently that. there is much more silent private (rather than outwardly violent and Thus public) opposition and diligent undermining of enforced legal uniformity on a day- to-day basis by many members of ethnic minority communities living in Western countries.¹⁵ Experienced field researchers like the anthropologist Roger Ballard have shown that many Asians in the UK are restructuring their rule systems and behaviour ‘on their own terms', taking into account what the official law demands, but otherwise largely remodelling new rules for themselves, and as they see fit.¹⁶ My own research on legal patterns of assimilation among ethnic minorities in the UK consistently supports. such observations.¹⁷ More recent research and writing by younger scholars, such as Prakash Shah,¹⁸ strongly questions the claims of official legal systems to lay down uniformly binding rules for all. Worse, we now find evidence of state lawlessness in Europe, and particularly in the UK, as a desperate reaction of state legal centralism against some pluralising tendencies among the people subject to such laws. The major trouble is that the new laws are themselves discriminatory, and far from conscious of the need to promote legal uniformity, in effect singling out certain groups or categories of people for punitive treatment which is widely perceived as human rights violatioin.¹⁹

Even worse for the proponents of legal uniformity, recent developments in English marriage law suggest a newly emerging process of pluralisation which is almost inevitable, given the factual scenarios now presented by litigants. In the not yet widely known case of Chief Adjudication Officer v. Bath 2000(1) FLR 8, the English Court of Appeal found itself constrained to hold, in effect, that an unregistered Sikh marriage in the UK during the 1950s created a legal status equivalent to marriage under English law, thus entitling Mrs. Bath, a Sikh widow, to pension rights. As young people, this Sikh couple had married only in a religious ceremony in a London gurudwara, had never registered their marriage in the UK, and had otherwise behaved and been treated as a married couple, eventually with children. Following the husband's death, the formal requirements and expectations of English law became a key issue. Was the couple validly married under English law? Should Mrs. Bath be entitled to a widow's pension? The concerned officers of the government department dealing with welfare and pensions took a hard line, but Mrs. Bath fought back. The Court of Appeal ultimately achieved a just and fair outcome by applying principles of equity, certainly not uniformising equality.

Achieving justice in this particular case, which is significantly not treated as precedent, because that would have enormous implications on legal uniformity in English law, now poses huge dilemmas for what then, today, English law has to say about the uniform legal requirements for a valid marriage.²⁰ There are some test cases in the wings now, significantly from Muslims, questioning why an unregistered Sikh marriage could eventually become legally recognised, while a Muslim nikah contracted in Britain but not registered by the State, does not have that status. It is an age-old predicament of equity, the desire to find justice also in hard cases, that it cannot rely on the principle of equality. What, however, is wrong with equity? Of course equity involves consideration of difference and of the particular facts and circumstances of a case -how is that bad in itself in the never-ending search for justice? I am sure that Kerala's lawyers and Judges would have less trouble with this kind of scenario than man Western lawyers. If young lawyers in the State did not become sufficiently plurality conscious through their largely positivism-focused legal education, practising law would .aught them lessons about legal realism that are not unique to Kerala, but part of the daily routine of lawyers almost anywhere in the world.

Cultivating a faulty image of what Western laws are and holding this false ideal up as a for Indian laws of the future is, thus, deeply problematic in itself. Western laws were never uniform, and today's Western laws are re-pluralising as a result of ‘ethnic implants’.²¹

The foreignimage aspect of uniformity debates

Readers will be aware that in Europe, as in the West generally, anything Indian Used not to be valued as it should be, but maybe that is changing now. George Bush Has visited India as this article is being published, and it appears that writing about Indian law itself, which used to be a low-status occupation, is now carrying a higher Profile. Finally, the colonial shackles, and the Indian 'colonisation of the mind', as Ashis Nandy called it,²² are being broken. But of course such mental influences will Never be totally eradicated and one must expect to see continuing reflections of Western postcolonial superiority complexes and corresponding inferiority complexes among Indian legal professionals. Such presuppositions are strongly evidenced in the significant Inability or unwillingness among India's leading legal scholars to accept now that India Has actually managed to restructure its legal system on its own terms to achieve greater uniformity without introducing a full-fledged Uniform Civil Code as originally envisaged.

At first sight, the matter looks like this: India, like almost all other Asian and African Countries, has always operated a personal law system with different family laws for Muslims, Hindus and others. Article 44 as a Directive Principle of State Policy about introductionof a Uniform Civil Code reflected expectations of following Western legal models, perceived as superior forms of legal regulation. In reverse, most Western scholars but also many South Asian scholars, view and treat the continuation of personal laws as evidence of medieval backwardness.²³ Many Western people fail to understand that in places like Kerala Hindus, Muslims and Christians - and many different types of them - can actually live together peacefully and can be governed by one overarching legal system, admittedly very diverse, with many different local and community-specific Nations, but nevertheless a well-functioning legal system, and not anarchy or confusion. Complex, yes, but not impossible to operate, as experienced lawyers in Kerala know very well.

In Western contexts, we still tend to blame 'religion', 'culture'and 'tradition' for many of our problems and pride ourselves foolishly on having freed ourselves from 'customs' through formal legal enactments. Consequently, we look down on customary; and 'traditional' legal systems as evidence of backwardness. More evidently, though; religion is not abolished by the predominance of secularism even in the West. In Northern Ireland, not even Catholics and Protestants could for a long time co-exist without constant and grave sectarian violence. The ongoing break-up of the former Yugoslavia led to massive refugee movements and mass victimisation in the recent past, because some people are ethnically Serbs, while others are Croats or Bosnian Muslims. People of different backgrounds suddenly find (or are told in all kinds of ways) that they cannot live together and develop mechanisms to eliminate 'the other'. When the London bombers were found to be British Asians, more anguished questions began to be asked about such issues -but fortunately it is not an option to expel all Asians from the UK, one hopes. Ethnic cleansing is, however, happening all over the world, and is also a risk factor in the subcontinent today.²⁴ Significantly, most analysts continue to portray only countries in Asia and Africa as tradition-ridden and inferior, dependent on 'religion and 'tradition' and incapable of modernisation. Indian law is therefore either generously declared to be like English law, a hugely convenient myth, or it is perceived as an inferior cousin, a third world jurisdiction that better follows the West as fast as possible and gets rid of its vestiges of 'religion' and 'tradition' when it comes to law. As though the British had got rid of Anglicanism, the Italians of Catholicism, or the Turks o Islam!

Despite much evidence of the continuation of 'tradition' in Western legal systems, and the impossibility of a culture-neutral, plainly 'modern' legal system, the dominant expectation therefore remains that countries like India should follow a kind of Western trajectory of development in all respects. From this perspective, one of the central expectations remains still that India should have, or should work towards having, a Uniform Civil Code. This may partly explain why even recent decisions of the Indian Supreme Court reiterate the need for such a Code.²⁵ now evidently under some pressure from the arena of international law.

Adherence to old legocentric presuppositions further explains to a large extent why some learned Judges of the Indian Supreme Court continue to harbour the impression that central legal regulation by the Indian state in the area of family law is a possibility, even if delegated to state level. Thus, in Seema v. Ashwani Kumar, (2006 (1) KLT 791 (SC)decided by the Indian Supreme Court on 14 February 2006, Arijit Pasayat J, speaking on behalf of himself and S. H. Kapadia J. outlined in detail the complex and locally-coloured nature of Indian laws on marriage registration, noting the possible problems of absence of proof of marriage, and then held:

Accordingly, we are of the view that marriages of all persons who are citizens of India belongingto various religions should be made compulsorily registrable in their respective States. where the marriage is solemnized".

With respect. such an approach, as commonsensical as it may sound, is totally unrealistic and in fact positively dangerous, because India should never wish to have a system of law where the State alone decides when a person is married in accordance with the law, English law, having reached that supposedly advanced and sophisticated stage of legal regulation, is now faced with a scenario in which the government has recently curtailed the right of individuals to marry certain kinds of people, in this case mainly certain foreigners and asylum seekers, imposing a virtual ban on certain marriages in the larger public interest.²⁶ Not surprisingly, this new law is now being challenged on human rights ground. Here is a dangerous example of State lawlessness gone too far in a kind of control freakism that seems typical of the current British government.²⁷There are crucial warning signs here for civil rights groups in so-called developing Countries: This kind of 'Big Brother' State goes a few steps too far and is ultimately Not only going to be ineffective and too costly, but simply bad for 'good governance' and humanrights.

The emergence of the postmodern state in Asia and Africa

Excessively privileging the state in law-making thus carries enormous risks, as Indian lawyers and judges know very well.²⁸ There are evidently several ways ofbalancingthe relationship between the citizens and the State when it comes to familylaw matters. Total central legal regulation does not recommend itself as viable everywhere, maybe not even anywhere.²⁹ Observations about the continuing legalrelevance of 'religion', 'culture' and 'tradition' also in the West, which is certainly not a culture-neutral arena, as discussed above, raise further questions about whether Westernlegal developments could actually be a useful model for a country like India. I have .written a little about this in the past.³⁰

More recently I have observed that huge countries like India, Indonesia, Brazil,South Africa and Pakistan, with large populations and many poor people among their citizenry, do not find it feasible to operate along traditional state-centric lines of governance. Faced with the impossibility of operating legocentrism in practice, they are learning to delegate legal responsibilities and control functions to local level institutions and ultimately to individuals as members of socio-political groups.³¹ It is evident that major national 1 gal systems in the world today experiment with and operate such kinds of plurality -conscious legal mechanisms. These tend to encourage individual, communal and largely local self-reliance and self-regulation, privileging local forms of solidarity, right down to the family level, taking account of the individual’s voice, if she cares (or dares) to raise it.

India as a typical state in that category has seen a recent significant shift towards; panchayati raj, familiar to readers. This has elements of a reaction to globalisation in the form of glocalisation.³² This kind of pattern is now also found in Brazil, South Africa, and comparatively unknown little places like Namibia.³³

Thus, the legal world is changing in front of our eyes, with immense new implication for how national legal systems now look upon their own roles when it comes to family law matters. It even appears as though the entire field of law is being freshly carvedup in a re-assessment of the relationship between Hartian primary rules and secondary rules. Whereas a classic modernist strong State would claim to be governing both spheres of rules, virtually to the exclusion of other rule-making entities, today’s postmodern and reality-conscious States are beginning to understand that 'primary rules' are anchored in people's minds within local communities and have their cultural and religious postulates embodied in 'traditions' of various kinds. The postmodern state, rather than seeking to reform those postulates out of existence, appears to be learning to respect them, certainly to a larger extent than it did as a modern state Thus, it might seek to incorporate and use those traditional structures for its own benefit, concentrating perhaps on more important issues of governance than regulating every marriage or divorce, or getting formally involved in every single dispute that may arise between 'little' individuals. Of course there is no clear trajectory of the emergence of a new 'soft' state from the troubled remnants of a 'strong' state, but this development is increasingly noticeable.

The postmodern state, in other words, is slowly learning to delegate responsibility but this does not mean that it thereby gives up its overarching control functions. These supervisory functions are now exercised in two ways, it would appear. Firstly, the central state will continue to make what may be called 'symbolic legislation', seeking to influence the vast arena of Haitian 'primary rules' by changing opinions among the people. Such laws may state new postulates as ideals for the future, rather than rules which are to be obeyed to the last dot. This is classic social engineering through law the educative route, which will normally take a long time. This is one possible task of new state-made laws, not expecting to be implemented overnight, but laying down a programme for the future, a kind of educative agenda for future development. Indias anti-dowry law could be seen in this category, discouraging a common practice against all odds, and thus totally ineffective, as Kerala lawyers have confirmed to me recently Other examples would certainly be the existing laws on child marriage and their continued legal validity, but also the new Hindu Succession (Amendment) Act of2005 and, of more direct relevance to the present discussion, the low-key amendment to section 25 of the Criminal Procedure Code, 1973 through the Criminal Procedure (Amendment) Act of 2001, discussed further below.

A second type of central law-making which will continue to be of critical importance Also in a postmodern and 'soft' legal system would be the ultimate monitoring andsupervision of ‘justice' through the state and the Courts. This is where the Constitution and fundamental rights guarantees are coming in. In this arena, the Indian postmodern state is showing many signs of vigorous assertion of its supervisory role, often expressedin terms of judicial activism, frequently related to what has come to be known as ‘public interest litigation' or 'social action litigation', as some prefer to call it. The vigorous expansion of understanding the 'right to life' in Article 21 of the Constitutionis a strong indication of this kind of trend. This broadly supervisory function of state law, it appears, manifests itself in laying down certain minimum expectations as groundrules for all Indian citizens, fundamentally linked to basic expectations of fairness and justice,irrespective of 'religion', 'culture' and 'tradition'. One could call this a new kind of constitutional dharma, a form of equity. I will not, at this point, go into detailsof what that might mean.

Rather, I am concerned here to point out that this new supervisory mechanism may also involve various forms of social engineering through law, such as emphasis on the basic expectation that in a patriarchal society, it is mainly males who will have to face an obligation to use their powers over resources to the benefit of all those individuals who are in any form dependent on their support, especially women, children and aged or disabled persons. This, readers will realise, is also a strategy by the postmodern state to divert any expectation of social welfare support from the state itself.³⁴ Below I discuss further to what ingenious extent the postmodern Indian state has begun to utilise this strategy to strengthen a framework of uniform legal regulation in the country in the arena of family law. This is not only a matter of providing maintenance for divorced wives after divorce without spending a penny of state resources, but extends particularly to entry rules for marriage, exit rules for broken marriages, and related matters like polygamy, access to children and so on. Localised self-regulation may be an appropriate name for this not really new phenomenon.

The postmodern development of Indian uniform civil code agenda _;

Turning now specifically to Indian legal developments in relation to the uniform civil code debate, I identify two fairly recent significant elements. Firstly, the virtual unification of the ground rules for marriage and divorce across all communities by 2001. Secondly, the completion of the jigsaw puzzle of Indian post-divorce maintenance w, also by 2001 - and this is not an accident of history - forms the major argument to support my claim that India now virtually has a Uniform Civil Code, albeit not in the shape as originally envisaged. It seems therefore that the agenda of the 1940s with their demand for the moon have been superseded by a scenario in which we like Mother Yashoda, can now show impatient analysts and activists a mirror image of the moon.

First, to what extent are the Indian laws on marriage and divorce uniform? At first sight, of course, the Indian law on marriage is extremely diffuse and confusingly pluralistic, largely because of museum-like customary traditions that are giving lawyers; all over the world a lot of business and create from time to time some strange bogus arguments. Frequently found examples of legal confusion in the West (and also occasionally in India) include allegations that Indian law does not permit marriages between Hindus and Christians, that a saptapadi has to be a part of all Hindu marriages that Muslim women cannot marry non-Muslim men, or that the parties have to be at least 18 or 21 years old to be legally married in India.

If one looks at marriage law in India from a little distance, it transpires that this entire field of law is extremely plurality-conscious, for it allows two individuals who wish to marry all kinds of options. Indian law almost totally leaves it to the discretion of the parties and their families which method of entering a legally valid marriage is ultimately chosen. There is no difference here between Hindu law or Muslim law in particular. Section 7 of the Hindu Marriage Act of 1955 protects the right of Hindus to enter a legally valid marriage by following customary traditions, whatever these may be in particular cases. Muslims can follow their own customs, too, under the mantle of shari'a, which is part of Indian family law.

The most significant common element that one can identify is therefore that with very few exceptions, Indian marriages are dependent on customary traditions, which may be new forms of custom rather than ancient traditions laid down in stone and most crucially here, they are not required to be registered by the state. However,this is not clearly understood in India, and even Supreme Court judges appear to cultivate' misguided impressions about the extent to which marriages in India have to be registered. Thus, in Seema v. Ashwani Kumar, decided on 14 February 2006, (2006 (1) KLT 791 (SC)) and widely reported in newspapers the next day because the Supreme Court had said that all marriages in India must be registered, Arijit Pasayat.J. stated that "it appears that there are four Statutes which provide for compulsory; registration of marriages", listing in first place the Bombay Registration of Marriages. Act of 1953, which applies in Maharashtra and Gujarat. As far as I am aware, this old Act, coming into force prior to the Special Marriage Act of 1954. Facilitates the registration of marriages, but does not make this process in any way compulsory. Marriage registration in Gujarat and Maharashtra quite clearly remains optional under the 1953 Act. Registration of some marriages is. however, compulsory under the secular Special Marriage Act of 1954, an Act which very few Indians appear to use. I do not think there are many other Acts in India that require compulsory registration of a marriage by the state in the same way that a Western European state would expect this to happen. Providing documentary evidence of the solemnisation of a marriage is one thing, legally validating the existence of a marriage between two people is quite another. Plurality-conscious Indian lawyers know this very well, but there are many lawyers and apparently also Judges who lack such awareness of legal plurality.

The common and almost uniform element in Indian laws on marriage is therefore The near - total absence of a legal requirement for registration with the state authorities. The commonsensical view and guidance that registration would be useful to provide Evidence of the existence of a marriage does not damage this general conclusion, and Indian family lawyers (but not most of their European counterparts) will know that Indian law has swiftly realised that mere official documentation of a marriage is not sufficient proof of its legal existence.³⁵ So there is nothing wrong with calls for more registration of marriages in India, but a comprehensive uniform compulsory registration system of marriage for all Indians will never materialise.

One also has to note that the recent Supreme Court Directions in Seema v. Ashwani Kumar (12006 (1) KLT 791 (SC)) are not only targeted at state governments, but still assumethat the central government may eventually enact a Uniform Civil Code, though that phrase is studiously avoided.³⁶ For the time being, and in my view indefinitely, postmodern Indian marriage law displays the familiar Indian 'uniformity in diversity'. It remains the recommendation that all Indian marriages should be registered but with few exceptions, contains no general bar to the full legal recognition of unregistered " ages as legally valid. While this creates some work for lawyers, and demands alertness of individual citizens, this seems to me like a viable system. It is of course open to abuse, but all legal systems are open to abuse. Law is never a perfect remedy.

Thegradual emergence of a uniform Indian divorce law

If entry into marriage in India is largely determined by a grundnorm of 'unity in diversity', as explained above, so is exit from marriage. Not surprisingly, there have been lively debates about the uniform civil code issue with regard to divorce between the 1950s and the start of the new millennium. While the old Gandhian/Nehruviandichotomy has never gone away, at first the demands of modernisation, leading to westernizing, globalisation, supported a belief that India needed to follow Western models, particularly English law. In the early 1980s at postcolonial SOAS in the University of London, many teachers still taught students with some conviction aboutthe almost unstoppable march of the common law round the world. My predecessor in London, Professor Derrett, had argued vigorously until the early 1970s that when it came to family law reforms, India could do nothing better than follow the steps of modernisation taken in London.³⁷ This advice was not so much geared towards uniformisation of Indian laws as guidance towards a somewhat secular and culture blind form of modernisation, despite the detailed knowledge that Professor Derrett had of Hindu law and Indian cultural and legal traditions. It appears that a combination of English legal training and colonial experience got the better of Derrett for some time.

But something significant happened rather soon. When Professor Derrett began to see cases from India about how the new regime of Hindu divorce law after 19( made it easier for Hindu men to throw their wives out of the house, leading to the 'own wrong problem',³⁸ he swiftly expressed reservations about the direction that modern Hindu divorce law was taking.³⁹ Derrett evidently became aware that not to take Indian socio-cultural factors into account in the application of India's modern divorce laws would cause social disasters. Applying the principle of gender equality a patriarchally dominated legal system, where gender justice remains a dream for most women, was not a suitable progressive route. When more evidence of such legal abuses surfaced, especially after the Marriage Laws (Amendment) Act of 1976 Derrett wrote his final book on Hindu family law before he retired, virtually admitting defeat of his own modernising prescriptions.⁴⁰

Readers will be aware that, when the Indian state subsequently wanted to introduce further divorce law reforms in 1981, privileging the breakdown principle as happened in English law in 1973, even several Indian women's groups rose in opposition and the Bill never became law. India thus stopped copying English legal developments in the statute law on divorce around 1981, just as I came into the field.

At that time, it was possible for an Indian husband to enjoy the first night after the wedding and to claim in the morning that something material was wrong with his wife and there should be a virtually instant decree of nullity. It became a cruel joke, mainly applied in North Indian cases,⁴¹ while South Indian Judges warned about maintenance problems for women.⁴² Professor Derrett alerted me to such cases and we discussed the emerging problems. Shri. M.C. Mathew at the K.L.T. concurred that justice could easily become a casualty if the facts and circumstances of particular cases were not taken into account. Focus on situation-specific justice rather than legal uniformity became central to my thinking about reasonable family law reform in India.

The unsatisfactory situation in Indian divorce laws continued throughout the 1980s and into the 1990s, and divorce rates began to soar. Continuous pressure to apply the breakdown principle in divorce law led to cases where women were given no chance to plead their side of the story, they were simply expelled from the house and beaten with chappals everytime they tried to come back, so that the husband could then claim that she had failed to resume cohabitation. Actually, it became almost sufficient for a husband to state that the marriage had broken down, as far as he was concerned.North Indian Judges, in particular, egged on by 'progressive' academics like Paras Diwan, would simply decree divorce even though irretrievable breakdown did not exist on the statute book.⁴³

One could say much more about maldevelopments in Hindu divorce law in India During the period. What few scholars realized, though, was that modern breakdown- type divorce regimes silently began to approximate the traditional rule systems on divorce in shari’a law ever more closely. Instead of comments on this trend, complaints about the unwillingness of of Indian Muslims to submit to family law legislation have dominated Indian debates. In reality, it could be argued, Indian divorce laws have gradually beenadjusted to resemble Muslim law rules rather than attempting to abolish Muslim divorce law through uniformising codification. Indeed, Indian Muslim men continue to stay outside codified legal provisions in this field and can use the talaq, or can negotiate a mubaraat, a divorce by mutual consent. Their women can bring themselves under the provisions of the Dissolution of Muslim Marriages Act of 1939 if they are strong enough, or they can argue for a khula divorce, which may then become amubaraat, an agreement to divorce. Indian Muslim divorce law today,though uncodified, is therefore not really that different any more from Hindu divorce law in substance. Patriarchy everywhere means that many women would be stuck in unsatisfactory marriages, but we are not even beginning to debate how many men may be imprisoned in bad marriages, too. Does it really matter, then, that Indian Muslim divorce law is not codified?

I am not suggesting that the Indian Muslim law on divorce is perfect, but its largely uncodified state offers a low-cost solution (particularly for the state) and helps to avoid a scenario that India simply could not afford, namely that all divorces would have to go through a court of law. Significantly, Hindu divorce law continues to leave huge discretion for customary Hindu divorces in section 29(2) of the Hindu Marriage Act of 1955. The modernist lobby, in conjunction with Orientalist scholarship, has Sought to ignore this provision, but many Indian women's daily life chances depend crucially on such important outlets for gender equity.⁴⁴

Let us look at state regulation of divorce through a European lense. English law basicallydemanded compulsory registration of all divorces in the Matrimonial CausesAct of 1973, which embodies legal centralism. But a few years later, a torrent of divorce petitions flooded the courts, and English law introduced the so-called 'quickie divorce’ as an agreed formal procedure from 1977 onwards. Today, 98% of all English divorce follow this informal procedure of divorce by mutual consent. English divorce proceedings are therefore claiming to be judicial proceedings when in fact this has become an administrative process and all that happens at the end is that a Judge will pronounce the divorce decree in open court. Almost all English divorces occur therefore without a proper court hearing. While one wonders about the extent and the effectiveness of state supervision, the legocentric claim is made that all divorces in England and Wales have to go through courts.

I have seen Asian wives in the UK being forced to sign affidavit agreeing to a divorce on terms quite unfavourable to them. An English Judge might never notice that there was such duress, since English law does not have the protective mechanisms found in sections 23(l)(b) and (bb) of the Hindu Marriage Act of 1955 concerning force, fraud or undue influence in the process of agreeing to a divorce. In Hindu law, too, of course, there are no absolute safeguards for women against being forced out of marriage. It may well be for this reason that the Indian legislature has become so activist with regard to post-divorce maintenance. More about that issue further below.

The two major personal law systems of India and the secular provisions of the Special Marriage Act of 1954, thus, all allow various kinds of divorce on a large and growing number of grounds. The Paris law was streamlined by the Paris Marriage and Divorce (Amendment) Act of 1988. This left only the old Indian Christian law on divorce to be dealt with. As every lawyer in Kerala knows, that law used to be hopelessly outdated and was in need of reform. The Christian divorce law was codified in the Indian Divorce Act of 1869, at a time when divorce was granted with utmost reluctance and only in the most exceptional circumstances because of religious oppositions from various Churches. Christian divorce law therefore stood out by 1988 as an unconstitutional form of discrimination against Christian spouses in unhappy marriages. Until recently. Christian wives in particular were virtually imprisoned in their marriages, while their co-citizens of other religions could seek divorce on a number of grounds. This clearly demonstrated the urgency of having more uniform legal provisions. But was the right remedy to argue for and introduce a Uniform Civil Code?

Apparently the Indian answer to this has been a resounding negative. Earlier, there had been endless painstaking lobbying for reforms to Christian laws, much of it driven by Keralites.⁴⁵ Ultimately, perhaps wary and tired of asking Parliament to produce a Uniform Civil Code, Kerala's Judges resorted to drastic steps. In 1995, after several unsuccessful attempts, the High Court of Kerala removed certain restrictive words from section 10 of the old Indian Divorce Act of 1869, So that an Indian Christian wife could now seek divorce on grounds of cruelty, like any other Indian citizen.⁴⁶ Such judicial lawmaking never ceases to surprise my students in London - but it makes sense within the wider context of Indian judicial activism and public interest litigation. This skilful simple process of legal surgery instantly created

greater legal uniformity, at least for the Christians of Kerala, while keeping the personal law system intact.

India's Parliament evidently realised that now it was time to act and to reclaim the initiative in lawmaking, but it waited for the right time. This came, exactly two days after the important Danial Latifi case had been decided,⁴⁷ on 24 September 2001, when Parliament passed the Indian Divorce (Amendment) Act, 2001 (Act No.51 of 2001). This finally brought Indian Christian divorce law broadly into line with the other divorce laws of India under the various personal laws and the largely optional provisions of the secular Special Marriage Act of 1954.

Details of this Act are well known in Kerala. The new Act provides basically ten grounds for dissolution of marriage among Christians, plus an additional ground for wives who can prove that "the husband has, also since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality". Some lawyers and activists in India, especially in Kerala, have fought long and hard for these amendments, which clearly represent another piece of the jigsaw puzzle of Indian legal uniformity that is now in place after enormously long lobbying and many setbacks.

The persistence of legal difference

Hence, after the initial decade of modernising reforms mainly in Hindu law in the 1950s, India has remained a country, like almost all other countries in Asia and Africa, in which different personal laws for different groups of people are being applied. Criticism of this has remained vocal and resurfaces from time to time.⁴⁸ The most prominent example is that an Indian Muslim man could therefore have up to four wives at the same time, while all other Indian men could have only one.⁴⁹ At least, that is what it looked like from the outside, studying only the plain statutory law, or the absence of statutory regulation in the case of Indian Muslim law. Few lawyers would have the time and energy to examine what happens in socio-legal reality on the ground. While I would query whether permission to marry four women is a blessing, the issue that became inevitably prominent in Indian law was whether it was constitutionallyvalid to maintain such distinctions between Indian citizens merely on the basis of religion. Was it in accordance with the spirit and letter of the Indian Constitution that citizens should have quite different rights and duties merely because they belonged to a particular religious community? Since the law could not abolish communities, could and should Indian law wipe out all vestiges of legal consequences of being socially and religiously different?

This issue has remained controversial, and it has been most interestingly litigated under Indian law with reference to the thorny issue of post-divorce maintenance for women. Following the much-cited and heavily misused Shah Bano case of 1985,⁵⁰which is discussed further below and which even many people in the West know about (though they might know little else about Indian law), the verdict of Indian Supreme Court in Danial Latifi v. Union of India at 2001 (3) KLT 651 (SC) merely reiterated the old position, namely that making reasonable distinctions between citizens on the basis of certain criteria - in this case religion - would not be unconstitutional in itself. That decision therefore destroyed and virtually buried the argument that absolute legal uniformity is essential for India's development of a Uniform Civil Code.

Emergence of a gradually more sensitised judiciary

Like Professor Derrett, I deeply admire Indian Judges, their alertness in most cases, and their appetite for creative lawmaking. It is evident that some senior Indian Judges have been engaged in a rethinking of strategies for dealing with family law issues. Kerala, in particular, is blessed with the massive input and continued presence of former Supreme Court Justice V.R. Krishna Iyer, the Lord Denning of India.

We saw earlier that in Indian divorce law, blind modernisation was beginning to beseen as undesirable from the 1980s onwards, and a more careful approach was gradually but by no means systematically taken.⁵¹ Looking more specifically at the facts and circumstances of each case, more courts sought to ensure now that women and children would not suffer, since it was obvious that men could often afford better lawyers and had unfair advantages.

While Parliament basically stopped making new family laws, Indian Judge in several High Courts and especially the Supreme Court became the main motor for important but initially almost imperceptible legal developments which also concern the question of the Uniform Civil Code. To an extent, this shift to the judicial arena and the resulting judicialisation is not unique to family law; it seems in line with the emerging juristocracy in Indian law as a result of public interest activism. It is more significant in the present context, though, that not only differences between male and female litigants or the disadvantages faced by children, but the economic consequences of their decisions began to trouble Indian Judges more and more and made them think about the implications of their decisions. V.R. Krishna Iyer had earlier had much to say on this during his time on the Bench.⁵²

Since India does not have and will never have a Western-style welfare state, it became necessary to embark on a major restructuring of family law policies, especially regarding divorce and maintenance after divorce. There was, during this period of several decades, a gradual shift away from the dogged demand for a Uniform Civil Code and uniform legal regulation for all Indians towards a system in which justice or nyaya as a relative matter reasserted itself. Of course, there were always some cases in which courts criticised the absence of a uniform civil code, and this kind of argument can still be heard and read from time to time.⁵³ Such cases may still cause the press to produce catchy headlines, but they are becoming noticeably rarer, while some older academics still enthusiastically propagate legal uniformity as a desirable aim for India today.⁵⁴

Most Indian Judges, it seems to me, have now become postmodern realists the Hard way. Thus, it has been held that where a litigating couple is desperately poor, the husband or wife could not be expected by the law to maintain the other, they would both have to suffer this misfortune together.⁵⁵ Where, on the other hand, one spousewas significantly better placed than the other, then the man, normally, has an obligation to share his wealth.⁵⁶ But modern Hindu law, in its enthusiasm for modernity, had also introduced in 1955 a rule that a Hindu wife might have to maintain the husband, if she was better placed than him. It is highly significant to observe what happens to Hindu men who try to argue that they should be maintained by their wife: Virtually ridiculed by the courts,⁵⁷ they are told to go out and work, unless they are disabled and of necessity dependent on the support of others.

The coded sub-text in such decisions appears to be that men, as controllers of most of the property and resources in India, are primarily liable for the welfare of any women and children that may be in need of support. This kind of moral responsibility is increasingly being turned into a legal obligation by the quiet activism or occasional deliberate passivism of the Indian judiciary.

The Shabano case as a catalyst for legal uniformity

This new dominant concern for social welfare principles in India was earlier implanted into section 125 of the new Criminal Procedure Code of 1973, which defined a 'wife' as including a divorced wife. Because that Code applies to all Indians, not just to Hindus, it now became possible for Muslim wives to expect some maintenance beyond the traditional iddat period of three months and to ask for lifelong maintenance.

The Shah Bano case eventually surfaced from this legal issue.⁵⁸ Well before the Shah Bano case, however, the Indian Supreme Court, through V.R. Krishna Iyer J. (as he then was) had already established in 1979 that a Muslim ex-husband would be exempt from further support for his ex-wife if the payments were sufficient for her 'to keep body and soul together'.⁵⁹ Thus, important social welfare consideration introduced by a combination of judicial activism and legislative alertness to assist divorced wives against vagrancy and destitution. When Shah Bano's husband engineered his case to get around the social welfare argument by the Supreme Court, the Judges of the Supreme Court, incidentally five Hindu Judges, struck back and held, rightly in my view, that even under the Qur'anic provisions, there was an obligation on the divorcing husband to be good and generous to his former wife, so there was no conflictbetween traditional shari'a and India's general law.

This case created enormous political outcry, perhaps not so much about the issue of maintenance as about the politicised football of the Uniform Civil Code, on which the Judges pronounced towards the end of the judgment. This seems to have caused widespread riots and protests, leading to a chain reaction which ended allegedly in Rajiv Gandhi quickly giving in to the rioting Muslims, drafting the Muslim Women (Protection of Rights on Divorce) Act of 1986 in record time to take away, so the dominant popular and academic understanding, all rights of divorced Muslim wives to maintenance from their former husbands.⁶⁰^. Thus, we still read all the time that Muslim men were allegedly given exceptional privileges by the modern Indian state and got away, once again, on the basis of religious exemption. Closely linked to this was, then, the 'politically correct' argument that it would be much better to have a ur code for all Indians!

However, such politicised gossip constitutes cleverly engineered misinformation It is important to note that section 3 of the 1986 Act first of all holds the ex-husband liable for the continued welfare of the wife, and only after that the 1986 Act turns to her heirs and any Waqf Boards as potential support mechanisms. More significantly, no financial limits were laid down by the legislature in the 1986 Act. Despite much disapproval, there were no riots in India when this Act was passed, probably because the legislative and media-driven ploy worked, in that almost everyone was happy to believe that divorcing Muslim men now had no further legal responsibility for their ex-wives after the iddat period.

The Supreme Court, faced with many constitutional challenges to the 1986 Act, then sat on the Danial Latifi case for 15 years and kept a studied silence, leaving the 'hot' arena to the High Courts. Carefully testing the waters through obiter dicts in Noor Saba Khatoon 1997 (2) KLT 363 (SC), and some other cases, the Supreme Court gradually acknowledged that Muslim ex-husbands under the 1986 Act. like all Indian ex-husbands under the provisions of S.125 of the Criminal Procedure code of 1973, remained liable for the welfare of their ex-wife until they made adequate provisions for the woman's survival at a level that is appropriate to the parties.

But first of all there was deafening silence from the Supreme Court for 15 years perhaps a case of judicial passivism. Gradually an appropriate interpretation of the 1986 Act as an Act of personal law was documented in a large number of reported High Court cases, with particular strength and elaborate arguments in the Kerala High Court.⁶¹ The law of India gradually began to be that all Indian husbands would have to make provisions for the benefit of their ex-wives until they die or remarry, also Muslim men. Under the 1986 Act, Muslim husbands actually found with few exceptions that they were now subjected to a tougher regime of responsibility, since there were no upper financial limits and procedures were strictly time-bound, at least on paper.

Under section 3 of the 1986 Act, as interpreted progressively in Kerala and elsewhere, a Muslim ex-husband would firstly have to maintain the ex-wife during the iddat period. This is what a decent Muslim should do anyway, but many fail to do. In addition, the ex-husband also had to 'make and pay' provisions, designed for the timeafter the iddat period, during the iddat period. Thus, once a divorced Muslim wife reached the end of her iddat period and the husband had not maintained her properly and/or had not made reasonable provisions for her future welfare, the ex-wife could now go to court to claim both entitlements. While this may have strengthened the bargaining position of Muslim wives, fieldwork suggests that going to court to enforce one’s entitlements remains a major problem for most women in India, perhaps especially so for lower middle class Muslim ex-wives claiming their rights under the 1986 Act.⁶²So the 1986 Act does not really work so smoothly in practice, but to what extent is it useful as symbolic legislation or as a tool of bargaining within society?

Towards legal uniformity despite personal laws

More recent legal developments in Indian law throw further light on this issue.⁶³while S. 125 of the Criminal Procedure Code of 1973 had an upper limit of 500/-, more recently increased to Rs. 1500/-, there were no financial limits for the Muslim ex-wife's entitlements under the 1986 Act and the level of a divorced Muslim wife’s entitlements depended on the financial circumstances of the spouses. There is indeed an instructive case, again from Kerala, where a rich Muslim woman wanted more money from her millionaire husband, and she got it.⁶⁴ No riots or public protests followed this decision, as far as I know. This may have provided further re-assurance to the faraway Delhi lawmakers, who appear to have been watching this scenario, that the climate was eventually going to be right for further steps in securing better financial protection to all Indian women.

As the majority of judicial interpretations of the 1986 Act shows, and certainlyafterDanial Latifi v. Union of India in 2001,⁶⁵ the Indian state has been prepared to sacrifice or de-prioritise the principle of formal legal uniformity in favour of supervening social welfare concerns of basic justice for deprived women. As matters stand at present,if the higher object of securing equitable legal entitlements can be achieved in other ways, more so if this is fiscally prudent, legal uniformity drops off the agenda as a central policy aim. Thus Indian Muslims can have or keep their personal law want them, but they certainly cannot wriggle out of the particular kind of social welfare obligations that have since 1973 applied uniformly to all Indians.

Possibly to avoid arguments that Muslim men were treated less favourably than all other Indian men when it came to regulations of post-divorce maintenance for ex- wives, the provisions of the 1986 Act for Muslims and of S. 125 of the Criminal Procedure Code of 1973 were harmonised, significantly also on 24^th September 2001, two days after the Danial Latifi decision, when Act 50 of 2001, the Code ofCriminal Procedure (Amendment) Act of 2001, was passed. It is important to examine impact of this small but highly significant piece of legislation. As I have noted earlier no explanation of legislative intent was offered. Whether this is purposeful silence, legislation by stealth, or a new strategy to reinstate a higher level of legal uniform not clarified at all.

It is evident that this Act seeks to achieve three important things at once. Firstly, the Act removed the earlier ceiling for maintenance in section 125(1) of the Criminal Procedure Code of 1973 for all Indians, which will probably now also encourage litigation by middle class wives and other needy relatives. Secondly, the 2001 Act introduces in a new proviso strengthened rights to maintenance pendente lite or interim maintenance, a good measure, given that many claimants suffer on account of tardy implementation of the law and delays in the process of making claims.⁶⁰ Thirdly, and closely linked, another proviso in this new law promises speedy disposal of such cases as far as possible, within sixty days from the date of the service of notice.

Conclusions

The Indian legislature thus (i) strengthened the uniformity of Indian divorce laws and (ii) re-uniformised the country's law on post-divorce maintenance in 2001, merely two days after the Indian Supreme Court as gatekeepers of the Indian welfare state system had firmly brought Muslim males back into the postmodern Indian net of social welfare arrangements without insisting on formal legal uniformity and creating riots. All of this can hardly be accidental, the timing is rather impeccable. What does all this mean for the Uniform Civil Code debate?

The newly conceived (and yet ancient and traditional) social welfare orientation of the modern Indian state has, in my view, relegated the old political football of the Uniform Civil Code to an even lower rank in the league table of national agenda. Striving for better financial security for wives (including ex-wives) and children, the potential and often actual victims of broken marriages, has clearly become more important to the Indian state than endeavouring to secure legal uniformity for the sake of legocentric dogma. More sharply analysed, though, the Indian welfare state, by saving itself from welfare claims by its own disadvantaged citizens of all religions, and ire burden back to divorcing men and even to the joint family system to save its own coffers, has precisely fulfilled its own constitutional directive of securing uniform legal provisions for all citizens of India, at least in the field of maintenancefor divorced wives. If asking for a full Uniform Civil Code was like asking for the moon then we should now have learnt that a mirror image of the moon may be quite adequate as a substitute. It is certainly a much more realistic form of legal regulation than a total reconstruction of the entire Indian legal system.

It also seems that this uniformised postmodern Indian law, which clearly retains the personal law system, has begun to incorporate some begun to incorporate some benign elements of traditional shari’a law which today's patriarchal South Asian Muslims and their jurists (including leading scholars like Tahir Mahmood) may not fully wish to accept. But in fact, this would not be the first time that a useful principle of Muslim law has become adopted elsewhere in Indian law.⁶⁷

I note finally that the long-awaited decision by the Indian Supreme Court in Danial Latifi v. Union of India, 2001 (3) KLT 651 (SC) and its pro-women approach has not been debated fully enough. This was rightly observed by Flavia Agnes, one of the major analysts of developments in Indian gender justice today.⁶⁸ One major reason for this remarkable silence following Danial Latifi appears to be that the decision represents a defeat for legal modernism, and is thus embarrassing to most traditional positivism-focused legal scholars. This then becomes a matter of legal theory and wider legal policies but also of intellectual politics in legal scholarship.

Whatever the politics, the mirror image of the moon of Indian legal uniformity is now fully visible in Indian divorce law, as shown above, and a faint reflection of the moon’s sickle has made an appearance now even in relation to the Indian laws on registration of marriage. The full moon is clearly reflected when it comes to post-divorce maintenance law in India. Never mind that most analysts at present will disagree with such sightings or reflections of the moon. Indian law, so much is beginning to be increasingly evident, has learnt that it cannot just follow outdated ideals of the 1950s, or supposedly superior foreign models. Rather, it has to strive to develop what Professor Masaji Chiba so ingeniously called the 'identity postulate',⁶⁹ a method to match law and people and their culture-specific ideas about what is right and wrong. A realistic, reasonable Indian law of the present and the future, it seems, has to match the unity in diversity of the Indian people as a whole. It remains strongly evident to me that lawyers in kerala have known this all along.

FootNote:

1. Professor of South Asian Laws, School of Oriental and African Studies, University of London.

2. Most memorable, in 1986 three students accompanied me for field work, and we embarked on what was then pioneering work on legal aid clinics in Kerala, guided by an astute newly appointed Judge of the High Court of Kerala, now India's next Chief Justice.

3. Professor Derrett is soon going to be 84 years old. He was delighted when I told him about the present celebrations, the continuing progress of the KLT and the continued activisms of our favourite High Court in India.

4. See KLT 1999(2) J 15-19.

5. Menski, Werner (2006). Comparative law in a global context. The legal systems of Asia and Africa. Second ed. Cambridge: Cambridge University Press.

6. Fitzpatrick, Peter. 2001. Modernism and the grounds of law. Cambridge: Cambridge University Press, p. 129.

7. Article 44 reads: "44. Uniform civil code for the citizens. - The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

8. Examples would be the Federation of Russia and the erstwhile Republic of Yugoslavia.

9. Griffiths, John (1986). 'What is legal pluralism?'. No. 24 Journal of Leg, Pluralism and Unofficial Law, pp. 1-56, at p. 4.

10. In the Marriage Laws 1949-1994.

11. The Divorce (Religious Marriages) Act of 2002.

12. This is the effect of sections 19-25 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, a preposterous piece of legislation which raises serious human rights concerns.

13. SeeMalhotra.Vijay Kumar (1995): 'Why conflicting voices?'. The Hindustan Times, 5August 1995. Malhotra also wrote, tackling Muslim reluctance to submit to legal uniformity: "Religion and rites are two different things. The Hindus, Sikhs, Buddhis and Jains ave already forsaken their sentiments in the cause of the national unity. Other communities should also come forward and contribute to the integration of the Indian society to which they necessarily belong. No community should remain isolated on the . basis of religion and if everyone is really interested in weaving a fabric of commonnationhood, then parochialism should give way to more liberal and accommodative attitudes in matters like a common civil code".

14. AIR 1995 SC 1531 and 1995(2) KLT 45 (SC).

15. See Menski, Werner. 2002. 'Immigration and multiculturalism in Britain: New issues in research and policy' in Vol. XIIKIAPS: Bulletin of Asia-Pacific Studies, Osaka, pp.43- 66.

16. Ballard, Roger (1994). Deshpardesh. The South Asian presence in Britain. London : Hurst & Co.

17. Menski, Werner. 1993. 'Asians in Britain and the question of adaptation to a new legal order: Asian laws in Britain?' in Israel, Milton and Narendra K. Wagle (eds ) Ethnicity, identity, migration: The South Asian context. Toronto: University of Toronto pp. 238-268.

18. Shah, Prakash. 2005. Legal pluralism in conflict: Coping with cultural diversity in law. London: Cavendish.

19. Shah, Prakash. 2005.'Introduction: From legal centralism to official lawlessness?' in Shah, Prakash (ed.) The challenge of asylum to legal systems. London: Cavendish, pp. 1-11.

20. Borkowski, Andrew. 2002. 'The presumption of marriage'. Vol. 14No. 3 Child and Family Law Quarterly, pp. 252-266. Probert, Rebecca. 2002. 'When are we married? Void, nonexistent and presumed marriages'. Vol. 22 No. 3 (September) Legal Studies, pp. 398-419.

21. Menski, 2006, as note 4 above, chapter 1.3.

22. Nandy, Ashis. 1983. The intimate enemy: Loss and recovery and self under colonialism. New Delhi: Oxford University Press, p. xi.

23. Apart from the important earlier writings of Vasudha Dhagamwar, a typical recent example of such scholarship would be Pereira, Faustina. 2002: The fractured scales. The search for a uniform personal code. Dhaka: UPL and Calcutta: Stri.

24. An insidious form of this is found in Bangladesh today, where not only Hindus, but also all non-Sunni Muslims are put under pressure by a local brand of parochialism, which some studies see as Islamic fundamentalism. For details see Menski, Werner and Biswajit Chanda (eds.) (2005). Cancer of extremism in Bangladesh. Proceedings of the European Human Rights Conference on Bangladesh: Extremism, intolerance and violence. London: CEMS at SOAS and Bangladesh Conference Steering Committee.

25. V.N. Khare, CJI (as he then was), in John Vallamattom v. Union of India 2003(3) KLT 66 (SC), concluded the judgement at p. 80 with a telling comment on the uniform civil code: "It is a matter of regret that Art. 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies".

26. The relevant provisions are found in sections 19-25 of the Asylum and Immigration (Treatment of Claimants, etc.) Act of 2004. These have the effect that a British citizen may not be allowed to marry a person of his or her choice (or to enter a civil partnership under the recently promulgated law on this matter) if that persons belongs to a category of people subject to specific types of immigration control.

27. See Shah, Prakash. 2005, as note 19 above.

28. On this see Iyer, V. R. Krishna. 2004. Leaves from my personal life. New Delhi: Gyan Publishing House, p.

29, where he recounts the effects of thirty days of unjust incarceration on his thinking. 29. A long time ago, Allott, Antony. 1980. The limits of law. London: Butterworths, warned about this for English family law, taking the example of the 'house-mate', in other words, unmarried cohabitation, which has become a prominent phenomenon in many Western jurisdictions, partly as a reaction to excessive legal regulation and state intervention in marriage and divorce law. 30. See Menski, Wemer. 1990. 'Uniform Civil Code in India: A false model for development?' in 1990(2) KLT J 3-10.

31. Pakistan is a case in point, on which I cannot comment here in much detail. But I refer to the important case of Allah Rakha v. Federation of Pakistan, reported at PLD 2000 FSC 1, and now pending on appeal before the Shariat Bench of the Pakistani Supreme Court. I predict that this case will be treated like the Danial Latifi case in India and will have to wait, probably many years, for a final decision until a politically opportune moment. The Federal Shariat Court of Pakistan clearly recognised in its decision that traditional Shari’a law (as Hartian primary rules) was superior to the state-made provisions of Muslim law as found in the Muslim Family Laws Ordinance of 1961, which are just Hartian secondary rules, matters of procedure and legal administration. Nothing else should have been expected in an Islamic state, but what then are the implications of this kind of judgment for assessing the role of the Pakistani state as a guardian of gender-justice and human rights in the field of family law? There are many open questions here, and answers will not be forthcoming for a long time, but the key issue is similar as in Indian law: Can the central state really regulate minute details of relationships between spouses, or is this a matter to be delegated to the personal and informal level, with state law exercising some kind of 'soft' supervision through the protective human rights net of the Constitution, but otherwise leaving the field to facilitative administrative procedures which remain, in essence, optional?

32. On globalisation see Robertson. Robbie. 1986. The making of the modern world. London Zed Books and Robertson, Robbie. 2003. The three waves of globalization. A historyof a developing global consciousness. Nova Scotia, London and New York: Fernwood Publishing and Zed Books. From an Indian angle, see Doshi, S. L. 2003. Modernity. postmodernity and neo-sociological theories. Jaipur and New Delhi: Rawat.

33. See Hinz, Manfred O. (ed) 2006. The shade of new leaves. Governance in traditional. authority: A Southern African perspective. Muenster: Lit Verlag Berlin. Namibia independent since 1990, has recognised in the Traditional Authorities Act, 1995 and now the Traditional Authorities Act of 2003 that traditional chiefs have significant legislative, adjudicative and administrative functions and the Namibian Constitution protects 'custom' as a source of law and contains a fundamental right to culture in Article 66.

34. See on this in detail Menski, Werner. 2001. Modern Indian family law. Richmond: Curzon.

35. See Shaji v. Gopinath, AIR 1995 Mad 161, S.C. Shanthi v. P. Venkatesh AIR 1996Mad 150; also Joyita Saha v. Rajesh Kumar Pandey. AIR 2000 Cal 109.

36. The relevant wording in the third Direction issued by the Supreme Court is: 'As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny". One notes that this subtly re-asserts the supervisory functions of the Supreme Court once Parliament has enacted a Uniform Civil Code which will of course, in my view, never happen.

37. See Derrett, J. Duncan M. 1957. Hindu law past and present. Calcutta: A. Mukheriee &Co.

38. See eventually Derrett, J. D. M. 1981. 'When is an 'own wrong' not a wrong? in (1981) IMLJ, J 13-16.

39. Derrett, J. Duncan M. 1970. A critique of modern Hindu law. Bombay: N.M. Tripathi.

40. See Derrett, J. Duncan M. 1978. The death of a marriage law. New Delhi: Vikas.

41. For example, Bikkar Singh v. Mohinder Kaur AIR 1981 P&H 391 and Som Dutt v. Raj Kumari AIR 1986 P&H 191. For further details see Menski, 2001 ,as note 34, pp. 106-110.

42. Especially the powerfully worded case of Soundarammal v. Sundara Mahalinga Nadar, AIR 1980 Mad 294.

43. For details see chapter 11 of Menski, Werner. 2003. Hindu law. Beyond tradition and.-modernity. New Delhi: Oxford University Press.

44. An unpublished socio-legal PhD thesis from SOAS discusses this issue in excellent-detail. See Holden, Livia Sorrentino. 2004. Seeking equity through custom: Divorce and remarriage on the woman's initiative in Hindu law. London: SOAS.

45. The case of Mary Roy v. State of Kerala 1986 KLT 508 (SC) and AIR 1986 SC 1011 is particularly well known in this respect. See also Mary Soniz Zachariah 1990(1) KLT 130. On Christian law, see Champappilly, Sebastian. 2003. Christian law on marriage, adoption & guardianship and Canon Law on marriage. Cochin: Southern Law Publishers.

46. See Mary Sonia Zachariah v. Union of India, 1995( 1) KLT 644 (FB).

47. Danial Latifi v. Union of India, 2001 (3) KLT 651 (SC)

48. See earlier vigorously Dhagamwar. Vasudha. 1989. Towards the uniform civil code. Bombay: Tripathi.

49. This became an issue in the Sarla Mudgal case, as note 14 above.

50. Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.

51. See Menski, 2003, as note 43 above, chapter 11.

52. V. R. Krishna Iyer J (as he then was) declared in a Prefatory Statement to one of his landmark decisions in the Supreme Court. Bai Tahira v. Ali Hussain Chothia. AIR 1979 SC 362, at p. 362: Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Art. 15(3) of the Constitution must be light the meaning of the Section. The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. In the same case, at p. 365, the learned Judge found that a maintenance arrangement that "could not keep the woman's body and soul together for a day...unless she was ready to sell her body and give up her soul!" was totally unacceptable in Indian conditions of life and under any form of Indian law. Evidently, such fundamental lessons have not been forgotten.

53. One of the most recent examples of this is John Vallamattom v. Union of India, 2003(3) KLT66 (SC), cited in note 25 above.

54. See Kumar, Virendra. 2003. 'Uniform Civil Code revisited: A juridical analysis of John Vallamattom' in Vol. 45 Nos 3-4 [July-December] Journal of the Indian Law Institute, pp. 315-334.

55. In Sivankutty v. S. Komalakumari, 1988 (1) KLT 601, it was held that poverty is "a misfortune that has to be shared by the wife also".

56. In Gladstone v. Geetha Gladstone, 2002(2) KLT SN 126 (Case No. 155), it was held at p. 126 by K. Padmanabhan Nair, J that "[e]very Indian citizen is bound to maintain his wife and children. That is a tradition of the society".

57. Kanchan v. Kamalendra, AIR 1992 Bom 493.

58. Mohd Ahmed Khan v. Shah Bano, AIR 1985 SC 945.

59. Bai Tahira v. Ali Hussain Chothia, AYR. 1979 SC 362 and (1979) 2 SCC 316. See also note 52 above.

60. Even India Today, a major source of knowledge among middle class Indians and NRIs about Indian law, continues to rely on politicised hearsay, which has created serious misinformation in the general public. For an example of misguided academic writing along the same lines, see Sathe, S. P. 2002. Judicial activism in India. Transgressing borders and enforcing limits. New Delhi, Oxford University Press, p. 19.

61. See Ali v. Sufaira, 1988(2) KLT 94 and a large number of subsequent Kerala cases eventually also noted and cited by other High Courts.

62. See the important research reported by Vatuk, Sylvia. 2001. 'Where will she go? Whatwill she do?. Paternalism toward women in the administration of Muslim personal Law in contemporary India' in Larson, Gerald J. (ed.) Religion and personal law in secular. India. A call to judgment. Bloomington and Indianapolis: Indiana University Press, pp: 226-248.

63. See Menski, Werner. 2004. 'Reluctant legislative activism' in 2004 (1) KLT J 35-41.

64. Ahammed v. Aysha 1990 (1) KLT 172.

65. At 2001 (3) KLT 651 (SC)

66. See the research of Vatuk cited in note 62 above.

67. In 1976, the Marriage Laws (Amendment) Act inserted section 13(2)(iv) into the original Hindu Marriage Act, permitting a Hindu wife exit through divorce from a marriage into which she had been virtually forced, a rule taken from Muslim law.

68. Flavia Agnes, in conversation with Tanu Thomas K., in The Times of India, Delhi edition, 29th August 2003, said that "the press has chosen to ignore it and the general public unaware of it".

69. Chiba, Masaji. 1989. Legal pluralism. Towards a general theory through Japanese legal culture. Tokyo: Tokai University Press, p. 180.

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