August 28, 2016

India: Uniform rights, not a uniform law (Flavia Agnes)

livemint.com - 28 August 2016

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court, has questioned whether this is an appropriate moment to enforce such a code and whether personal laws can be withdrawn by force, by trenching upon the most intimate emotions of an individual.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As these diverse laws are confusing and contradictory, and rooted in outdated precepts, when India adopted its Constitution in 1950, a provision regarding the enactment of a uniform civil code to govern family relationships was included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.