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A wind of change: Personal law and the question of gender justice
The latest issue of debate doing the rounds is whether personal laws should be repealed in the favour of a Uniform Civil Code. Since the inclusion of UCC in the Directive Principles of State Policy, the debate has surfaced frequently. While the background has ranged from a concern for inculcating national unity and integrity to ensuring gender justice for women of various communities, many a times it has been critiqued as a tool of majoritarian imposition. The Indian Parliament has the authority of introducing reforms within religious personal law to ensure that they are not antithetical to the ethos of Constitution, those making a case for uniform civil code demand a complete overhaul of the provision of personal laws.
Very few family related issues like marriage, divorce, inheritance etc are placed under the personal laws restricting its ambit. However, there is often a tendency to pin all problems that the marginalized within any community face on ‘regressive’ personal laws. A diverse country like India where customs not only vary but may be opposed to each other should take refute to legal pluralism which promotes the idea of multiple sources of law as this will accommodate cultural relativism – a cornerstone of human rights. Sadly time and again the concept of uniform law has been raised at the cost of these cultural rights.
The latest issue which brought forth this age old debate which even saw the Constituent Assembly divided is the divorce of Shayra Bano and a PIL supporting nullification of the regressive practice of triple-talaq which allows a husband to divorce his wife at one sitting. While the case is going on in the Supreme Court, the Law Ministry prepared a note for the Law Commission to look into the feasibility of a UCC. The response to this step has been varied but what overt politicization is doing is simplifying the debate. There is a need to understand the nuances of the debate to look for a feasible solution which can fulfill the main aim of ensuring gender justice.
Personal laws are neither absolute nor sanctimonious. They have been subjected to reforms from time to time. The source of Muslim Personal Law is the Muslim Personal Law (Shariat) Application Act, 1937. It is a colonial anachronism in dire need of reforms to respond to changing times. However archaic practices like triple-talaq, halala and polygamy are continued to be justified in the name of Shariah laws. Quran is clear that triple-talaq cannot be given at one sitting and steps like mediation and compromise should be allowed before finally ending a marriage. While dictates of triple-talaq has been regulated in most of the Islamic countries, India – with the third largest Muslim population – allows its continued practice. So much so that men are unilaterally ending marriages by sending texts or mails repeating the word talaq thrice. A national study by Bharatiya Muslim Mahila Andolan (BMMA) found that roughly 1 out of 11 Muslim women are survivors of triple-talaq.
Most personal laws, which are again a product of a patriarchal set up, are biased against women. While Muslim Personal Laws recognized the right of individuals including women to inherit property as early as in 1930s, it allowed practices like halala and triple-talaq to continue. The Hindu Code of 1955-1956 did not place Hindu women at par with Hindu men. It was only after the 2005 amendment of Hindu Succession Act that daughters could claim a share of Hindu joint family property including agricultural land. But a positive development is that more and more women are approaching courts against unjust personal or customary laws and courts have also intervened in a number of stances in a positive way.
In Shamim Ara’s case of 2002, the court held that husband cannot have the unilateral right to triple-talaq. If marriage is a contract between two parties then both the parties should have an equal right to end the contract. New family law interventions have tried to improve the condition of women across religions. One can give the example of Domestic Violence Act 2005 which seeks to protect women across religions from abuse in their families. Many people opt to get married under the Special Marriage Act and laws like Muslim Women (Protection of Rights on Divorce) Act 1986 is used to deal with polygamy.
Women from different communities are gradually becoming more vocal against unjust personal laws. Parsi women challenged laws that do not allow them entry in their holy temple if they marry outside the community. The basis of divorce is different for Christian men and women. Tribal women have challenged customary laws that deny women the right to cultivate jungle land and inherit ancestral property.
In case of personal law, there is definitely a wind of change with women asserting their rights. And this change is reflected in movements questioning the taboo about menstruation or denial of rights of women to enter different places of worship.
But instead of acknowledging this positive development that initiates demands of reforms from within the communities and empowering these voices, talks of replacing personal law with a common law of which no draft exist even now gives the debate a different colour. Uniform Civil Code which may be eventually desirable is then shown as a majoritarian ploy to impose unjust laws on religious minorities. Self appointed representatives of Muslims, like the All India Muslim Personal Law Board, easily uses the UCC to whip up a frenzy and give a call to boycott any discussion on uniform civil code by quoting an imagined danger to Islam. This conveniently forecloses any debate on reforms in personal laws which may wrench power from the hands of bodies like AIMPLB. In fact, it is only the apex body of Sufi Muslims, All India Ulama and Mashaikh Board, has taken the questionnaire put forth by the Law Commission on the feasibility of UCC in a positive light.
The step by AIMPLB seems like a ploy to maintain its hegemony. Instead of acknowledging that practices like triple-talaq, halala and polygamy steeped in patriarchy should go, they are making personal laws a holy cow which cannot be interfered with. While Advocate Flavia Agnes in an interview to Firstpost stated that any debate on UCC must focus on all personal laws which discriminate against women, extreme positions like the ones held by AIMPLB and the government dismisses the possibility of finding a way out. There is a need to make way for moderate voices who are demanding reforms within personal laws as the first step to end gender injustice.
Uniformity may not mean equality and the universality of a law is not an end in itself. At present a just code is a better deal than a uniform code which tries to brush aside cultural diversity and will end up being an unwanted imposition. UCC is not hailed by all not because women of minority communities don’t want equal laws but because they are still not at par with each other and suffer from insecurity. The way ahead to a just equal law in the absence of a common code is immediate codification of personal laws that would usher in the much needed clarity and consistency and not leave them to whimsical interpretations. The BMMA have come out with a draft code of Muslim Personal Law. The UCC debate should not be carried out by placing minority rights against women’s rights. Reasonable equal rights can be assured through meaningful legal interventions and reforms of personal laws. This is crucial to ensure that the secular values, religious plurality and cultural diversity which define the greatness of this country is not compromised.