The Wire - 27 June 2017
Beyond Triple Talaq, India Needs a Debate on How to Reform Muslim, Hindu Law
India
needs a UCC that draws not on the norms of one religion but on the most
promising aspects of its various dynamic cultures so as to democratise
families, religious groups, and the nation.
Muslim
women attend Eid al-Fitr prayers to mark the end of the holy fasting
month of Ramadan in Srinagar July 6, 2016. Credit: Reuters/Danish Ismail
In the
Shayara Bano v. Union of India case currently before
the Supreme Court, the petitioners, some women’s organisations and
community organisations, and the Indian government have pressed the
court to introduce certain desirable changes in Muslim law and, more
importantly, to approach all personal laws in new ways.
In 2002, the Supreme Court invalidated triple
talaq or
talaq al-ba’in (unilateral irrevocable male repudiation) in
Shamim Ara v. Union of India,
following the lead provided by certain high courts since 1978, and made
the validity of talaq dependent on the man providing “good reasons” for
his decision and proof of having attempted reconciliation involving the
relatives of both partners.
It could proceed further now, by specifying standards by which the
reasons for repudiation are to be assessed, making talaq’s validity
contingent on the wife’s consent or judicial approval (for which
Aaqil Jamil v. State of UP (2017) is a recent high court precedent), or invalidating unilateral repudiation. This has a bearing on how many Muslim marriages are terminated.
The court has refused to consider the other two changes demanded – banning polygamy and
nikah halala
– which were irrelevant to the petitioner’s circumstances. The
government’s broader plea is that the courts should amend personal law
systematically based on various international covenants and the
fundamental rights recognised in the constitution, specifically the
rights to equality and non-discrimination, and the right to dignity that
judges consider implicit in the constitutional right to life.
Global practice
Let’s consider some aspects of the global and national context. About
a third of the world’s population is governed by personal laws based
partly on religious and other cultural norms. This is a recognition of
the widespread feeling that cultural identities are expressed in family
life, even if these laws provide unequal rights for the genders and
limit individual liberties in various ways.
Most contemporary governments recognise equality and liberty as
constitutional values, but feel torn between promoting these values and
accommodating sentiments favouring personal laws and other forms of
cultural recognition that grant unequal rights. Broadly speaking, they
have sought to resolve the tensions between these goals in different
ways.
Turkey, Senegal and Tunisia increased women’s rights and individual
liberties substantially – Turkey by introducing a civil code, Senegal by
adopting a civil code while allowing Muslims to have Islamic law govern
their matrimonial lives, and Tunisia by changing colonial Islamic law
extensively. While Lebanon and Syria retained most colonial-era personal
laws, many countries including India took the moderate path of
increasing women’s rights and individual liberties in some ways while
retaining the authority of men, joint families, and community leaders in
other ways.
Hindu law reform not driven by fundamental rights
The Indian government tried to resolve the tensions between
constitutional rights and unequal and illiberal personal laws by
changing Hindu law and pointing toward a future uniform civil code
(UCC).
However, neither parliament nor the courts changed personal law
by systematically invoking constitutional values. The Hindu law reforms
of the 1950s were not based on the fundamental rights enshrined in the
cobnstitution, but on the Mitakshara and Dayabhaga schools of Hindu law
as colonial officials had understood them, selections from the
dharmashastras
and commentaries on them, and regional and caste customs, as well as
the Western legal model of marital monogamy. Hindu norms influenced
later changes in Hindu law too.
When certain personal laws were contested, the courts resisted assessing them based on the fundamental rights, starting with
State of Bombay v. Narasu Appa Mali
(1952), now under challenge. They changed minority personal laws from
the 1970s, but only when they found support in the laws, norms, and
initiatives of the concerned groups. It was on such grounds that courts
restricted the conditions under which talaq would be valid (based on the
mode of repudiation the Quran recommends,
hadith that report the Prophet Muhammad to have considered triple talaq revocable, and reputable commentaries, in cases such as
Sri. Jiauddin Ahmed v. Mrs. Anwara Begum (1978) and
Shamim Ara), increased
the support Muslim husbands owe their ex-wives (based on interpreting
the Muslim Women (Protection of Rights on Divorce) Act in view of
constitutional principles and on Qur’anic verses on
mata (provision to ex-wives), as interpreted by classical jurists, in cases such as
Arab Ahmedhia Abdullah v. Arab Bail Mohmuna Saiyadbhai (1988) and
Danial Latifi v. Union of India
(2001)), and increased Christian women’s divorce rights – relying on
the doctrines and demands of Christian churches and lay organisations,
in
Mary Sonia Zachariah. v. Union of India (1995) and
Pragati Varghese v. Cyril George Varghese (1997).
The more extensive and imaginative application of constitutional and
international law principles to personal law could inspire many
worthwhile changes. The most important changes that civil society actors
are currently demanding are the entitlement of all Muslim women to
inherit agricultural land (only about half of them have this right now),
the grant of equal shares to conjugal partners in matrimonial property,
the restriction of rights to will Hindu property which are often used
to disinherit women, and the decomposition of jointly owned Hindu
property into individual shares. These would be more consequential to
the rights of women than Shayara Bano’s demands. While courts are
unlikely to introduce such major changes, they could press legislators
to do so if they have a mandate to assess personal law based on
constitutional rights.
Muslim demands for reform
While such changes would be valuable, the Indian government’s
submission in this case misrepresents crucial aspects of the development
of personal law, community orientations, and social reform, reflecting
widespread misunderstandings. It claims that Hindu law was changed based
on constitutional values, but minority laws were not. This claim is
part of a larger story told by many political and legal elites since
independence. This story presents the emphasis on Hindu law reform as
reflecting greater Hindu support for reform, and assumes that Muslim
backwardness is the main constraint to introducing a UCC, which would
best enable gender justice. Versions of this discourse inform the
current government’s call for a UCC and the law commission’s public
consultation about this.
Contrary to this view, support for personal law reform was not weaker
among Muslims than among Hindus in the last colonial decades. Reform
mobilisation helped Muslim women gain rights to inherit substantial
family property and to divorces in the 1930s, two decades before Hindu
women did. Soon after independence, important Muslim leaders wanted
further reforms imagined through Islamic reasoning, such as entitling
women to inherit agricultural land and control their dower, restricting
or ending polygamy and talaq, and increasing the minimum marriage age.
Maulana Abul Kalam Azad, Naziruddin Ahmad and Hussain Imam were open
to the future adoption of a UCC formed through the confluence of India’s
various religious and cultural traditions, rather than the imposition
of Hindu norms or Western codes. The leaders who designed personal law
policy after independence, such as Nehru and Ambedkar, were disengaged
from Muslim initiatives and outlooks, mistook Muslim demands to retain
religious laws for resistance to changes in these laws, and missed an
opportunity to change minority laws. They focused their modernisation
projects on Hindus and their visions of the modern family on Hindu law.
Limited gains for Hindu women
Nevertheless, we saw that the Hindu law reforms of the 1950s did not
systematically promote constitutional rights. The main changes extended
divorce rights, banned polygamy, accepted inter-caste marriages, and
granted daughters equal shares in separate property (to which their
parents have individual titles) that had not been willed. However,
divorce rights were only offered based on spousal fault three years
after judicial separation. Testamentary rights over separate property
were not limited. Moreover, ancestral property remained largely under
the joint control of male relatives, and testamentary rights over such
property were increased although people usually willed most of their
property to their sons. This signalled that leaders valued women’s
rights and marital monogamy without seriously curtailing the authority
of men and joint families. Reform was limited because of the political
influence of groups that valued or benefitted from unequal cultural
norms.
The rights of Hindu women can be enhanced by
incorporating valuable minority laws such as Islamic restrictions on
testamentary rights and the matrilineal customary laws of certain
Adivasi groups into Hindu personal law.
As a result, despite the focus on changing Hindu law to enhance the
position of women in family matters, Christian and Muslim women had
greater rights than Hindu women after the reforms to ancestral property.
The inheritance rights of Muslim women were more secure because
testamentary rights were restricted to a third of one’s property in
Muslim law, and Muslim women had greater divorce rights. Although reform
continued to focus on Hindu law even after the 1950s,
Hindu testamentary rights remain unlimited and Hindu widows still get only small shares of jointly owned family property.
Despite their roots in patriarchal traditions, India’s personal laws
have been changed moderately to promote women’s rights and individual
liberties. Personal laws have been changed more extensively along these
lines in Tunisia and, more recently, in Morocco, demonstrating that
group rights are compatible with egalitarian liberal reform. The basing
of the Tunisian reforms in Islamic jurisprudence gained them broader
support, enabling the sustenance of reform. There was much opposition,
by contrast, to the import of the Swiss Civil Code to Turkey, which
could be maintained only through periodic authoritarian rule. This
contrast indicates that reforms are more often considered legitimate if
they are based in the relevant group’s norms, in societies with personal
laws, where many want to express group culture in family life.
What kind of UCC?
Hindu nationalists have nevertheless pressed for a UCC, which they
claim would best promote gender equality. As certain minority laws
favour women more in some respects than Hindu law does, a UCC can best
promote women’s rights only if it includes aspects of the various
personal laws and civil laws regarding family life such as those of the
Special Marriage Act. In these circumstances, official statements that
Hindu law was changed to promote constitutional values and that Hindu
law reform paved the way to a UCC are problematic. This is particularly
so when initiatives to reform Muslim law and devise a UCC are piloted by
a Hindu nationalist government that propagates stereotypes of Muslims
as backward. Such stereotypes and attachment to Hindu hegemony limited
official receptivity to minority reform demands even when
multi-religious parties were in power – demands such as giving all
Muslim women rights to inherit agricultural land (which even
conservative organisations like the All India Muslim Personal Law Board
support) and, until recently, for Christian adoption rights. They have
also contributed to resistance to improving Hindu law by incorporating
valuable minority laws such as Islamic restrictions on testamentary
rights and the matrilineal customary laws of certain Adivasi groups.
These problems have only become greater under BJP rule. The limited
reform of minority laws and the tendency to connect Hindu law with a UCC
would make a UCC drawn largely from Hindu norms and laws more likely.
Such a UCC would have limited minority support. Moreover, it would not
effectively draw from the most promising aspects of India’s various
dynamic cultures for democratising families, religious groups, and the
nation.
Narendra Subramanian is Professor of Political Science at McGill University, Montreal, Canada, and the author of Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India
(Stanford University Press, 2014).
In May last year, a special CBI court charged the 12 accused in the
Babri Masjid demolition case of criminal conspiracy under Section 120B
of the Indian Penal Code.
