UNIFORM CIVIL CODE: EQUALITY AND GENDER JUSTICE?
By Dr. Priya O. ,Assistant Professor, Department of Philosophy, University College, Kerala, India. Email: priyagprm@gmail.com.
https://doi.org/10.5281/zenodo.14077263
ABSTRACT
The whole debate on the need for a uniform civil code across the country is centered mainly on the skewed application of the personal laws relating to family including marriage, succession, adoption, divorce and maintenance. As far as these subjects are concerned, the existing personal laws are discriminatory in nature and consequentially lead to gender injustice. To a very large extent the Uniform Civil Code is seen as an endeavour to codify these personal laws in a secular way to end the gender discrimination inherent in these laws. However, we have to analyse the states where uniform civil code has been implemented. The judicial stand in this matter too has not been uniform. Rather than exploiting UCC for political gains, political and intellectual leaders should strive to build a consensus on the issue. The matter at hand is not just about protecting minority rights or ensuring national unity, rather, it fundamentally revolves around treating every individual with dignity-an aspect that personal laws have yet to adequately address.
Keywords- Quagmire, Iddat, Triple talaq etc.
Introduction
The progress of a society relies heavily on the advancement of its individual members, with the socio-economic development of its members serving as a key criterion for evaluation. For a society to prosper, its institutions, such as family and marriage, must adhere to sound practices, ultimately contributing to the process of nation-building. In many legal systems, a civil code is responsible for regulating private law, governing interactions between individuals in a society. Its primary focus lies in family-related matters, encompassing marriage, succession, adoption, maintenance, and other civil aspects like contracts and agency. In the Indian context, the Uniform Civil Code (UCC) specifically addresses secular aspects within personal laws, tackling issues such as marriage and succession.
My paper is an attempt to analyse two important points from a judicial perspective:
1. Whether personal laws are in conformity with the fundamental rights guaranteed in our constitution?
2. Is UCC the need of the hour and whether it can ensure gender justice?
A Brief History
In 1949, there was a passionate discussion in Parliament about the Uniform Civil Code (UCC). Although Nehru personally supported the bill, he faced difficulty in persuading others between 1951 and 1954. Consequently, the decision was made to assign the responsibility of the UCC to the states by incorporating it into the Directive Principles of State Policy. Article 44 of the Indian Constitution asserts that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India"(Pandey, Constitutional law of India 392). However, as clarified by Article 37, these directive principles are not legally binding and cannot be enforced by any court, but it serves as a moral and political obligation for the state to strive towards achieving the goal outlined in these principles. Thus marks the conclusion of the initial debates and the emergence of various personal laws and law boards that established customs and practices for their respective communities.
Quagmire of Personal Laws
Currently, diverse religious communities in India abide by their specific religious laws when it comes to managing personal matters. The Hindu Code, applicable to Hindus, Buddhists, Sikhs, Jains, and those not adhering to Islam, Christianity, Parsi, or Jewish faiths, serves as a guiding framework. Muslims follow the Muslims Personal Laws (Shariat) Application Act of 1937, The Dissolution of Muslim Marriage Act of 1939, and The Muslim Women (Protection of Rights on Divorce) Act of 1986. Christians reference the Indian Christian Marriage Act of 1872, the Indian Divorce Act of 1869, and the Indian Succession Act of 1925 for issues related to marriage and
succession. Parsis adhere to the Parsi Marriage and Divorce Act of 1936. Individuals from diverse religious backgrounds have the choice to marry under the Special Marriage Act of 1954. Matters of personal law, covering marriage, divorce, and succession, are part of the Concurrent list of the seventh schedule, contributing to the diversity in addressing these issues. These matters are recognized as secular in nature.
Personal laws and discrimination against women
The enactment of the Hindu Code, a vision championed by Dr. B.R. Ambedkar, came to fruition with the determined efforts of then Prime Minister Jawaharlal Nehru, who steered it through Parliament despite strong opposition. However, the enacted code fell short of achieving complete gender equality between Hindu men and women. Amendments to the Hindu Succession Act in 2005 were necessary for women to become coparceners (heirs to property).
While the Hindu Code was a progressive step, it had its shortcomings. In cases of separation, a woman had no legal claim regarding her non-financial contributions to the marital home. Although the Hindu Marriage Act prohibits bigamy, it remains prevalent within the community, albeit not widely publicized. A 1971 survey revealed that a significant number of Hindu men (one crore) had more than one wife, compared to 12 lakh Muslim men. According to the 2011 National Family Health Survey, 1.7 percent of Hindu men and 2.1 percent of Christian men had multiple wives, in contrast to 2.5 percent of Muslim men. A concerning consequence of this trend is that the second wife lacks legal status and is not entitled to spousal maintenance protection. In contrast, Muslim Law, which permits polygamy, provides legal protection and maintenance entitlement to all four wives.
Muslim law
The Holy Quran gives equal rights to both men and women and places women in a respectable position. However, there are certain aspects in Quran that render the position of women inferior and insecure. The Shah Bano case1 was a milestone in the Muslim women's search for justice and the beginning of the political battle over personal law. A 60-year-old woman went to court asking maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 2of the Criminal Procedure Code like any other Indian woman.
But a voluble orthodoxy deemed the verdict an attack on Islam. Under the pressure of the orthodoxy the congress government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the period of iddat 3(about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under secular law.
In the midst of this burning controversy, the Supreme Court in Daniel Latifi 4 India approached a middle path that the liability of husband to his divorced wife to pay maintenance is not confined to iddat period but also ‘’reasonable and fair’’ provision for future maintenance.
The practice of triple talaq is another hot controversy in which a Muslim man can legally divorce his wife instantaneously by uttering talaq three times in a row, or by indicating his intention to end the marriage. This practice is a clear violation of fundamental right of equality and women’s dignity, which are safeguarded by Article 145 and 21 6of the Indian Constitution.
The misuse of triple talaq was questioned in the Shamim Ara7 (2002) case, where it was determined that the husband did not have the unilateral right to talaq and had to provide reasons for divorce. The court emphasized the need for the husband to participate in reconciliation efforts before resorting to divorce. The issue of instantaneous triple talaq, involving three utterances in one go, has been challenged in court, citing the gross misuse of laws. In Shayarabhano8 case, a mother of two kids appealed for the declaration of triple talaq as unconstitutional when her husband ended their 15-year-old marriage by sending her a letter with the word talaq written on it thrice. Here the honourable SC has delivered a historic judgement declaring instantaneous triple talaq as unconstitutional. The learned judges consider the practice as un-Islamic and arbitrary and disagreed with the view that triple talaq as an integral part of religious practice. From Shahbano to Shayara Bano and numerous less famous cases, the pointer is towards an uncertain state of affairs in personal laws which demand clarity by way of well codified laws.
Christian Law
The Christian personal law regime also exhibited elements of inequality that required legislative amendments and progressive court rulings for correction. The 2001 amendment to the Indian Divorce Act addressed the practice where women needed two grounds of fault to initiate divorce, while men required only one. Following the amendment, women could claim more than one-fifth of their husband's income as alimony.
The Mary Roy 9case was a landmark legal battle that overturned provisions of the Travancore Syrian Christian Act, 1916, and the Cochin Succession Act, 1921, limiting the rights of Syrian Christian women to paternal property. On February 24, 1986, Mary Roy, mother of activist-writer Arundhati Roy, secured equal rights over her father's property, challenging discriminatory laws.
In this case, the Supreme Court determined that the Indian Succession Act, 1925, recognizing equal succession rights for daughters and sons, would apply to Christians in Travancore and Cochin (now Kochi). Before this ruling, Christians in these areas were governed by the Travancore Christian Succession Act, 1092, and the Cochin Christian Succession Act, 1097.
In the Father Vallamattom case1othe court removed the prohibition on Indian Christians' right to bequeath their property for religious and charitable purposes. The court cited the inequality between Christians and non-Christians as violative of Article 14 of the Constitution.
The analysis above highlights that personal laws tend to be discriminatory towards women, and any reforms typically occur only through judicial intervention.
The effect of implementation of Uniform Civil Code in Goa
Goa stands out as one of the states in India where the Uniform Civil Code (UCC) is implemented. The Goa Civil Code includes a progressive provision known as the communion of assets, making both spouses joint owners of the property. This arrangement prohibits one spouse from disposing of these assets without the explicit consent of the other. In cases of legal separation, the woman is entitled to fifty percent of her husband's income. Despite these positive aspects, the Uniform Civil Code has not ensured complete equality in certain areas. For instance, it permits second marriage for men if their previous wife has not born any children before the age of 25 or if she has not given birth to a male child by the age of 30.
The need of the hour
From the above analysis it becomes obvious that personal laws are discriminatory towards women and any reformation happens only at the behest of judiciary. In the well-known Sarla Mudgal11 case. Justice RM Sahai, the second judge on the Supreme Court Bench expressed that the desirability of a uniform civil code is undeniable. However, he cautioned that its implementation requires a conducive social climate urging leaders and the elite to rise above personal gains and enlighten the masses for accepting such a change. On the other hand, in the Pannalal v Union of India 12case, a compassionate judge, K Ramaswami, emphasized that while a uniform law is highly desirable, enacting it all at once might be counterproductive to the unity and integrity of the nation.
What is crucial is a comprehensive overhaul of all religions by eliminating certain practices that act as impediments to the moral and material development of both genders. Reforms should be implemented within communities without an abrupt transition to a common code. Instead, a progressive hermeneutics should be adopted, grounded in principles of equality and gender justice. Article 14 of the Constitution, which emphasizes equality before the law without discrimination based on caste, religion, sex, or gender, serves as the basis for a progressive code. Such a code would prioritize rights over rituals, acknowledging the inherent aspects of culture and religion.
To develop such a code, the opinions of all communities must be sought in a democratic manner. Ultimately, the goal is to ensure that equality and gender justice prevail. We need a unifying civil code rather than a uniform civil code. Justice Krishna Iyer's words aptly conclude this perspective: "It is not scholarship in the Quran, or delving into Vedas, nor quoting the Bible that is going to solve the problem. It is telling every man, please remember that you are an Indian, and if India dies, everyone dies, and if India lives, all of us live."13 (Journal of Dharma, 218-226.)
End Notes:
1. Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844).
2. Section 125 of the Code of Criminal Procedure serves as an essential economic umbrella to the weaker sections of the society who the lack of means to support their survival and to maintain themselves. The main objective of this section is to alleviate the status and economic condition of the neglected wives and the divorcees who are discarded.
3. In Islam, iddah or iddat is the period a woman must observe after the death4 of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known.
4. Daniel Latifi v. Union of India, 2001 AIR 3958, 2001( 3 )Suppl. SCR 419.
5. A.14 Equality before Law and Equal protection of Law
6. A.21 Protection of Life and personal Liberty
7. Shamim Ara v. State of U.P. & Anr [2002] INSC 4417.
8. Shayara Bano v Union of India(2017)9SCCI
9. Mrs Mary Roy Etc. Etc. v. State Of Kerala & Ors,1986 AIR 1011, 1986 SCR (1) 371.
10. John Vallamattom v. Union of India, (2003) 6 SCC 611.
11. Sarla Mudgal v. Union of India, AIR 1995 SC 15341.
12. Pannalal Binjraj v. Union of India [1956] INSC 86; AIR 1957 SC 397.
13. Journal of Dharma: Dharmaram Journal of Religions and Philosophies, vol no.11, issue no 3 pages 218-226.
LITERATURE REVIEW
14. Prof. Narendra Kumar-Constitutional Law of India, Eighth Edition, Allahabad Law Agency, Faridabad.
15. P.Krishnaswamy-V.R.Krishna Iyer:A Living Legend- Reprint 2015- Universal Law Publishing Co.Ltd-Lexis Nexis Butterworth, Lucknow.
16. Tahir Mahmood -Uniform Civil Code: Fictions and Facts- New Delhi 1995.
17. Dr.M.P.Raju- Uniform Civil Code: A Mirage? 2003 Edition-Media House, Delhi.
18. Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency, Allahabad.
19. H. M. Seervai, 4th Edition, Vol 2 - Introduction to the Constitution of India
22. Professional’s Bare Acts- The Constitution of India.
23. Professional’s Bare Acts- The Code of Criminal Procedure, 1973.
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