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November 21, 2015

India: Flavia Agnes says Uniform civil code would would stir up controversial and gender discriminatory aspects; so what? can they not be fixed?

The Asian Age, Nov 21, 2015

Women & the uniform civil code

by Flavia Agnes

Initiating a debate around the enactment of a UCC would also be unpopular among its Hindu mass base as it would stir up controversial and gender discriminatory aspects plaguing Hindu laws which are generally not addressed by leaders and the media

The October 16 judgment of a two-judge bench of the Supreme Court, on a bunch of petitions in respect of whether the amendment of 2005 to the Hindu Succession Act (The Amendment Act) is prospective or retrospective, gave a renewed call for a Uniform Civil Code (UCC) in the context of discriminatory Muslim personal laws, on the ground that they violate the fundamental rights of Muslim women by permitting triple talaq and polygamy.

No one could be faulted for assuming that the issue before the Supreme Court was violation of the rights of Muslim women. On the contrary, the comments were made in a case filed by the Hindu woman to claim her due share in her father’s property.

In 1992, Phulwati had filed a partition suit, claiming an equal share in her father’s property, but she was awarded a measly 1/28th share by the district court at Belgaum, limiting her right only to her father’s own share of the joint property. In contrast, the male heirs were not just given shares in the joint family property equal to that of the father as they too were coparceneres (joint holders), but also additionally, a share in the father’s separate share of the joint property, as his legal heirs.

Finding this decision grossly unjust, Phulwati had filed an appeal and the Karnataka high court in 2011 upheld her claim, specially in the context of the amendment to the Hindu Succession Act in 2005, which finally awarded daughters an equal share in family property as coparceners, and gave her 1/7th share in her father’s property — a share equal to the male heirs.

The high court based its decision on the proviso which stipulated that the amended law would be applicable if the property had not been partitioned at the time of the amendment or if there was a dispute pending before any court at the time of the amendment. But the apex court reversed the judgment of the Karnataka high court.

A reading of the Supreme Court judgment makes it amply clear that gender discrimination prevailed within the Hindu Succession Act, enacted in 1956, several years after the Constitution which prohibited gender based discrimination.

The amendment in 2005 was meant to bring in greater equality between the male and female heirs of a Hindu male. Despite the amendment, the ground reality has not changed and daughters are routinely made to sign off their share at the time of their marriage in favour of their brothers, on the premise that the parents have already spent a large amount on the marriage of the daughter.

This only goes to prove that we are driven more by customs and traditions despite changes in statutory laws. There are very few women like Phulwati who stake their claim and engage in long-drawn litigation to secure their rights. Sadly, the decision of the Supreme Court came as a dampener to the spirit of such women.

One would presume that the Supreme Court would comment on the glaring disparity which prevails under the Hindu Undivided Family (HUF) property rules where daughters are routinely denied a share since this issue was directly before the court. A court concerned with equality before law would also comment on the fact that HUF grants an unfair advantage to Hindus by way of tax exemptions as compared to those governed by the more egalitarian Indian Succession Act.

Instead, the apex court took a populist stand and played to the gallery by once again raising the demand for Uniform Civil Code in the context of Muslim Personal Law as had been done in the earlier rulings of the apex court, including the Sarla Mudgal case in 1995 where the issue before the court was Hindu polygamy. Instead of choosing to secure the rights of Hindu women trapped within such relationships, the apex court had given a call for the enactment of UCC in the context of Muslim polygamy.

The enactment of the UCC has been an important political plank for the National Democratic Alliance — it was one of the key issues in its election manifesto. But during the five years in power, during the Vajpayee government, it did not broach this subject. This time the response of the government has been more restrained despite the fact that the ruling NDA has a majority in the Lok Sabha and is in a more advantageous position to initiate the debate within Parliament than before.

This is because the issue at hand is far more complex than what meets the eye. It is one thing to raise the demand as a stick to beat the Muslim minority with, in the context of Muslim polygamy and triple talaq in a clich├ęd manner, it is an entirely different ballgame to get down to the brass tracks and draft a uniform family law applicable to all Indians, ignoring all stipulations under all religions.

After the electoral bashing in Bihar, in the wake of the beef controversy and the lynching at Dadri and the flak it received for the climate of religious intolerance from writers, scientists and filmmakers, UCC would perhaps be the last thing the present government would wish to tackle at this stage. The government is well aware that any change in the Muslim Personal Laws would not be possible without entering into a dialogue with the Muslim religious leadership and this is the most inopportune moment for such a dialogue.

Initiating a debate around the enactment of a UCC would also be unpopular among its Hindu mass base as it would stir up several controversial and gender discriminatory aspects plaguing Hindu laws which are generally not addressed by our leaders and the media.

Though the Supreme Court has refrained from dwelling upon this aspect, the government is well aware that the UCC would necessarily mean making the Indian Succession Act applicable to all religious denominations across the board since it is egalitarian and gender just. It would also have to give up the sacramental character of the Hindu marriage which renders Brahminical rituals such as saptapadi (seven steps round the sacred fire) and kanya daan (offering the girl as a gift to the groom in marriage, a point of no return for the girl) as essential ceremonies of Hindu marriage.

And most importantly, it would have to deal with the issue of Hindu polygamy which, unlike Muslim polygamy, reduces women in such relationships to mistresses, denying them their basic rights.

In this context it is relevant to discuss an interesting case which came up before the Gujarat high court a few days ago. When a girl and her lover, a married man, were brought before the court on a habeas corpus petition filed by her father, the girl willingly gave up her right in her parental property to avoid any obstruction to living with her boyfriend. The man’s wife, an illiterate woman, was more concerned about her economic security than her husband’s polygamous relationship. So the husband gave up his right to his ancestral property in her favour and his father and brother assured the court that his share of land will immediately be transferred to his wife and children.

They also gave an undertaking that they will take care of the children’s education, marriage etc. So within minutes the matter was settled and the man and his girlfriend were allowed to live in a polygamous relationship, with the blessing of the high court and the consent of the first wife.

One wonders whether the lady, who is madly in love, is aware that her live-in relationship has no legal validity and she is devoid of all her rights. Had the parties been Muslim she could have performed a nikah which would have secured her rights and awarded her dignity.

This case starkly highlights that the issue of polygamy rests on economic security rather than moral posturing. It would be worthwhile to keep this in mind while the government sets itself the task of drafting the UCC.

The writer is a women’s rights lawyer