Uniform rights, not a uniform law
The enforcement of a uniform civil code
cannot be viewed in a simplistic manner as outlawing polygamy and triple
talaq—it is much more complex than that
Flavia Agnes
Union law minister Ravi Shankar Prasad recently requested
the Law Commission of India to examine the feasibility of ushering in a
uniform civil code. There is an assumption that it will pave the way
for national integration and strengthen secularism in the country.
However, many scholars and jurists have questioned this
presumption. They endorse the views of Faizan Mustafa, vice-chancellor
of NALSAR University of Law, Hyderabad, that a step-by-step approach
towards uniformity of rights would be an effective strategy—since the
enactment of a uniform civil code appears to be entrapped in communally
vitiated identity politics.
Justice K. Kannan, a former judge of the Punjab and
Haryana high court, has questioned whether this is an appropriate moment
to enforce such a code and whether personal laws can be withdrawn by
force, by trenching upon the most intimate emotions of an individual.
Is it prudent to have one overarching law that will be
opposed by every community and ultimately will neither be uniform nor
gender-just? Or would the concept of uniformity of rights across laws (a
concept far easier to implement) more suitable to ensure gender justice
and fulfil the constitutional mandate of Article 44?
The background
Family laws in India are governed by personal status
laws, which are based on religious affiliations. While some are
state-enacted statutes, others are based on customary practices or
religious precepts.
As these diverse laws are confusing and contradictory,
and rooted in outdated precepts, when India adopted its Constitution in
1950, a provision regarding the enactment of a uniform civil code to
govern family relationships was included in the Directive Principle of
State Policy.
The state was mandated to make every endeavour in this
direction so that gradually the new code, which initially could be
optional, will be accepted by the people of a pluralistic society. But
apart from enacting a few statutes such as the Special Marriage Act of
1954 (an optional civil law of marriage), the Medical Termination of
Pregnancy Act of 1971, and the Protection of Women from Domestic
Violence Act of 2005, there has been hardly any attempt by successive
governments in this direction.
Even these statutes have seldom been projected as a
progression towards uniformity of rights and the controversy is kept
simmering only to be brought to a boil every now and then. Over the past
several decades, within a communalized polity, the issue has become
embroiled in the majority-minority political dynamics.
There is, therefore, the need to evolve an alternative
framework that can help us move away from this polarized equation to
explore alternative solutions.
Hindu law reforms, a violation?
After the promulgation of the Constitution, the first
laws that were enacted along a religious identity were the Hindu law
reforms of the 1950s. Although these can be construed as a clear
violation of Articles 14 and 15 of the Constitution (equality and
non-discrimination on the basis of religion), they must be viewed in the
context of granting rights to Hindu women who were lagging behind women
of other religious groups.
The sustained pressure from social reformers helped to bring in these reforms in the mid-1950s.
The main focus of these reforms was to grant women equal
inheritance rights and to transform Hindu marriages into contractual
obligations by introducing divorce and other matrimonial remedies, along
the lines of English matrimonial laws. Conservative Congress leaders
were opposed to granting Hindu women the right of divorce and property
rights to daughters as they perceived that if women were granted these
rights, the Hindu society will disintegrate.
However, the reforms were pushed ahead, with the liberation of women as its primary plank.
Since there was a strong political resistance to
reforming Hindu laws, the state had to perform several balancing acts.
Crucial provisions empowering women had to be diluted to reach a level
of minimum consensus. While projecting the reforms as pro-women, male
privileges had to be protected. While introducing modernity, archaic
Brahminical rituals had to be retained. While claiming uniformity,
diverse customary laws had to be validated. While usurping the power
exercised by religious heads, the needs of emerging capitalism had to be
secured.
The resulting Acts were neither Hindu in character nor
based on modern principles of equality, but reflected the worst
characteristics of both.
Codified Hindu laws: A model for reform?
The attention to discriminatory provisions of Muslim law
tends to project it as archaic and retrograde. In contrast, the codified
Hindu law comes across as progressive and gender-just. This premise
needs an in-depth interrogation.
Since this law is applicable to around 80% of our
population, the question of whether it has helped bring social
transformation and changed gender relationships within Hindu society
becomes critical.
On rare occasions, the continuation of the Hindu
Undivided Family property is perceived as its main lacuna. However,
several discriminatory aspects of the Hindu cultural ethos that govern
the Hindu law of marriage, divorce and matrimonial life are seldom held
up for scrutiny.
The ritual of kanya daan (sacrificial offering of the bride to the groom), an essential condition of a Hindu marriage, the notion of girls as paraya dhan
(belonging to the other), the pious obligation of a Hindu father to
marry off his daughter, which then gives boost to dowry, and the view
that Hindu marriages are sacramental still dominate Hindu social ethos
and judicial discourse.
Despite amendments to the Hindu law, the sacramental
aspects still dominate social psyche and parents prefer to send the
daughter back to her matrimonial home rather than risk having a divorcee
on their hands. So, despite acute domestic violence, girls are sent
back to their homes even at the risk of them being killed or driven to
suicide.
In contrast, a Muslim marriage has always been a civil
contract—a view later adopted by continental and English laws. While the
Christian marriage started on the premise of a permanent and dissoluble
sacrament, gradually the perception has changed. While among urban,
middle- and upper-class Hindus there is greater likelihood of women
opting for divorce if needed, in rural areas women are less likely to do
the same even when faced with cruelty or desertion as marriage is
deemed to offer protection to women.
The concept of permanency of marriage is visible not just
in our public life, but in litigation in family courts, where women are
constantly advised by judges to return home to save their marriage even
at great risk to themselves. Women too believe that even if their
husbands are abusive, it is better to remain married, since the symbols
of marriage—the mangalsutra and sindhoor—are perceived as marks of respect, status and protection against advances from other men.
While the system of dowry has spread to lower castes and
minority communities, its roots in upper-caste Hindu cultural tradition
cannot be overlooked. Ironically, Muslim law started with the notion of mehr, an amount that must be stipulated in the marriage contract (nikahnama)
as a future security to the bride. Gradually, under the dominant Hindu
influence, the community has accepted the anti-women custom of dowry.
So, while mehr amounts have been reduced to a mere token, huge amounts are demanded as dowry.
While all religions are patriarchal and exert a strict
control over a woman’s sexuality, the hold of Brahminical patriarchy
reaches a high pitch when we examine the phenomenon referred to as
“honour killings”. A girl can be killed by her own parents for
transgressing caste boundaries and marrying someone from a lower caste—a
reality also captured in a recent popular Marathi movie Sairat.
This phenomenon was believed to be prevalent only in a
few north Indian states. But now several southern states have also
started regularly reporting these crimes. While the Hindu law provided
for marriages across all Hindu denominations, and integrate Hindu
society, rigid caste boundaries still prevail. At times, the young
couple is also killed for contracting sagotra and sapinda marriages
within certain communities, concepts unique to Hindus that have been
incorporated in the codified Hindu law.
Against this convincing evidence of anti-women social
practices, can we assume that the codified Hindu law has been
instrumental in bringing social transformation? Has it provided the
foundation upon which a uniform and gender-just family code for Indians
across religious communities can be mounted?
Judicial interpretations as a tool of reform
If it is accepted that all personal laws, customs and
practices are patriarchal, where does the process of change to bring in
gender-just laws begin? Here, we must accept two premises: First, our
laws are not uniformly gender-unjust. They contain specific forms of
gender injustice and each must be addressed within its own specificity.
Second, law is dynamic and gets formulated within the
contested terrain of litigation. Our Constitution provides us the
yardstick for testing its gender discrimination. A Supreme Court verdict
is the law of the land, and one from the high court is binding on all
lower courts under its jurisdiction. This provides scope to challenge
the specific oppressive provision.
For instance, the provision of unequal and stringent
grounds for divorce under the Christian law was struck down by several
high courts and finally the statute itself was amended. However, while
reform through the courts was easier, the legislative change could be
brought about only when women’s groups worked in coordination with state
and church authorities.
When a uniform adoption law was introduced in the 1970s,
it was opposed by all minorities. This right was secured for Muslims and
Christians through progressive interpretations of the Juvenile Justice
Act, and there wasn’t any opposition to it from the leaders of any
community.
Maintenance to divorced Muslim women granted through the
Shah Bano ruling in 1985 was opposed by the community, who then brought
about a legislation—the Muslim Women’s Act of 1986—which denied Muslim
women the right of maintenance under the uniform statute, Section 125 of
the Criminal Procedure Code (CrPC). Through a progressive
interpretation of this Act in Daniel Latifi (2001), the Supreme Court
(as well as various high courts) upheld the right of divorced Muslim
women to a fair and reasonable settlement for life. This right of
settlement is far superior to the earlier one under the secular statute,
Section 125 of the CrPC.
In 2002, the Supreme Court in a far-reaching judgement
Shamim Ara, invalidated instant and arbitrary triple talaq and
stipulated that talaq must be pronounced only as per the Quranic
injunction, after first holding arbitration between the concerned
parties. Today, this judgement has been used by thousands of Muslim
women across all trial courts in Maharashtra and elsewhere.
Unfortunately, this landmark ruling has been
under-reported and the impression continues that Muslim women have no
rights until a uniform civil code is enacted.
The way forward
Another strategy to break the stalemate is to enact
specific legislations, which will apply to women uniformly across
communities. The Protection of Women from Domestic Violence Act, 2005,
is an example. This legislation has reframed women’s rights within the
family by introducing the statutory right to shelter and to a
violence-free life. Women in various situations—married women,
divorcees, widows and daughters—are entitled to access its provisions.
However, in the communalized media hype after a victim of
domestic violence, Shayara Bano, approached the Supreme Court for a ban
on triple talaq, there was hardly any discussion as to why she did not
use the provisions of this statute to secure her rights to maintenance,
residence, injunction and child access in a local court and also
challenge the instant talaq, relying on the Shamm Ara ruling.
It seemed that the domestic violence suffered by Muslim
women must be placed on a different plane than that suffered by Hindu
women due to her minority identity.
The Prohibition of Child Marriage Act, 2006, is another
statute that prescribes a uniform age of marriage across communities. It
does not invalidate a marriage but provides for its dissolution within
two years of its solemnization and protects the rights of women and
children. It is a prudent provision as it will not render the marriages
of minor girls invalid, nor deprive women of their right of maintenance
and legitimacy.
While these have been important statutes, yet another way
out appears to be an optional code. However, the Special Marriage Act,
1954, suffers from disuse due to its stringent procedure for registering
the marriage. No efforts seem to have been made to make this law
relevant to those venturing into inter-religious marriages, which have
now been given a communally-tinted term, “love jihad”.
So, despite the prevalence of this Act, conversion and
hasty marriage seems to be the only option for those venturing into
marriages of choice against the wishes of their parents. In a communally
charged atmosphere, the one-month notice period stipulated under the
Act may pose a threat to the life of the couple. There is an urgent need
to modernize and popularize this statute.
Hindu and Muslim polygamy
One major area of disgruntlement, as evidenced in State
of Bombay vs Narasu Appal Mali, which continues to the present, is the
perceived “appeasement” of Muslim men by privileging them with the
option of bigamy/polygamy against the imposition of monogamy on Hindus.
This discontentment gets projected in public discourse as
a concern for the plight of Muslim women, who need to be liberated from
their barbaric laws through the enforcement of a uniform civil code.
However, outlawing polygamy by enacting such a code or
codifying the Muslim law does not appear to be an effective solution.
This is because of the prevalence of bigamy among Hindus. Official
reports reveal that despite the statutory restraint, incidents of bigamy
are more frequent among Hindus (a term which includes Buddhists, Jains,
Sikhs and other reformed sects) than Muslims.
Ironically, the worst sufferers of this have been Hindu
women, who are denied their basic right of maintenance and sustenance
when the husband pleads that the woman is his second wife. In
comparison, the Muslim woman in a bigamous marriage fares better since
she is entitled to rights of maintenance, shelter, dignity and equal
status.
The Hindu second wife is not only disentitled of her
rights, but is also divested from her status as wife and humiliated as
mistress or concubine in judicial discourse. An example is the adverse
comments made by justice Markandey Katju in 2001 in D. Velusamy vs D.
Patchaiammal.
It is the Hindu husband who enjoys the privileged of
denying maintenance to a woman with whom he has cohabited, and may even
have fathered children, merely by pleading during court proceedings that
he has violated the mandate of monogamy without any criminal
consequences visiting him.
The reported cases in law journals bear testimony to the
frequency with which Hindu men adopt this tactic. Sympathetic judges are
constantly trying to find ways to secure the rights of women entrapped
in such marriages and provide them dignity.
In 2005, in Rameshchandra Daga vs Rameshwari Daga, the
Supreme Court conceded that despite codification and introduction of
monogamy, the ground reality had not changed much and that Hindu
marriages, like Muslim marriages, continued to be bigamous. The apex
court was trying to award maintenance to a woman whose husband had
challenged the validity of their marriage because of his previous
subsisting marriage.
The court commented further that though such marriages
are illegal as per the provisions of the codified Hindu law, they are
not “immoral” and hence a financially dependent woman cannot be denied
maintenance on this ground.
In 2014, in Badshah vs Urmila, the Supreme Court upheld
the right of a Hindu woman who had been duped into a bigamous marriage
and thwarted the attempt of her husband to subsequently deny her
maintenance. The judgement emphasized that while dealing with the
application of the wife, the court was dealing with the marginalized
sections of society.
“The purpose is to achieve ‘social justice’ which is the
constitutional vision, enshrined in the Preamble of the Constitution of
India. Therefore, it becomes the bounden duty of the courts to advance
the cause of social justice,” the judge commented.
If Hindu women, like Muslim women, become entitled to
rights, the destitution and humiliation that they suffer will be greatly
reduced.
The enforcement of a uniform civil code cannot be viewed
in a simplistic manner as outlawing polygamy and triple talaq. The issue
is far more complex and would require a nuanced analysis of the gaps
within existing laws of all communities, from the perspective of women’s
empowerment, to explore a solution which, in its essence, is
gender-just.
Flavia Agnes is a feminist legal scholar and a women’s rights lawyer.
