Debate on uniform civil code would be meaningless without contextualizing inequities prevailing in personal laws

??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????By Teesta Setalvad*

Among the numerous weapons stock-piled in the saffron brigade’s propaganda arsenal, the one labeled uniform civil code arguably has the most lethal potential. The ‘One Country, One Law’ demand appears to appeal to reason. Why should a secular society have different laws for different segments of the population? The Muslim insistence that the Union government change the law of the land to nullify the Supreme Court judgment in the Shahbano case in 1986 and the All-India Muslim Personal Law Board’s callous disregard of the demand for an end to the instant divorce (talq-talaq-talaq) practice in the middle of 1993 created a public perception which were totally hostile to any idea of social reform. This  only added emotional charge to what also appeared to be a fairly rational argument. Nothing could better serve the propaganda needs of the Sangh Parivar.

If Muslim orthodoxy has done its bit to aid the RSS cause, the women’s movement In particular and secular-democratic forces in general, too, cannot escape their share of the blame for letting the Hindutvavaadis totally dominate and distort the debate on badly needed reforms in all family laws in India. Through its constant argument that enacting a uniform civil code will bring about national integration, the Sangh Parivar has succeeded in making many Hindus believe that, one, only “separatist-minded” Muslims are opposed to a uniform law, and, two, the uniform civil code will only affect Muslims.

But a dangerous, if unintended, result of this silence was the smug belief among large sections of the Hindu majority, including no communal people, that while the law-abiding, secular-minded Hindus peacefully accepted the codification of Hindu family laws in the 1950s, the Muslim personal law is still thickly laden with gender inequities. The Sangh Parivar’s propaganda machinery played a big role in generalizing and accentuating this false perception.

The lapse seems even more unforgivable because the ground-level experience of women’s groups throughout the country has shown that women living under all the existing personal laws – Hindu, Muslim, Christian – are victims of harassment and discrimination.

Those demanding a uniform civil code provide a glaring example of the sorry status of Muslim women. But thousands of Hind women who are deserted or denied their right to equal share in family property are of no concern to them. Polygamy is today an offence under Hindu personal law but the Muslim personal law still has a provision for four wives: The Sangh Parivar which never tires of highlighting this inequity in law, never breathes a word about the fact that the practice is more widely prevalent among Hindus than among Muslims.

Less known is the fact that, while an anti-woman bias pervades among all existing personal laws, a communal bias is evident not only in some of the provisions of Hindu family laws, but even the supposedly-secular Special Marriages Act. The laws of the land predictably discriminate against all women; they also treat Hindus as a special category as compared to non-Hindus.

Examples of how laws discriminate women

* The anti-women enactment of a special law for divorced Muslim women in the wake of the Shahbano controversy happened in the floodlight of negative publicity. However, an amendment to the Special Marriages Act in 1978, with the primary objective of preventing property accruing to Hindu women, was enacted almost clandestinely and with hardly any murmur of protest. Following this amendment in the avowedly secular law, on contracting a civil marriage, a Muslim, Christian, Parsi or Jew no longer has access to her or his personal law of succession. They are governed by the Indian Succession Act, 1925. But a Hindu, Buddhist, Jain or Sikh shall, on contracting the same civil marriage, retain his or her personal law of succession. The obvious beneficiary of this amendment is the Hindu male and the loser, the Hindu woman.

* Under the Hindu Succession Act, 1956, the female heirs (of Class 1) do have a right to reside in a portion of the family home. But the right to claim partition is given exclusively to male heirs.

* Under the Hindu Marriage Act, 1955, the post-marriage conversion by either spouse furnishes to the other a ground for divorce. In other words, change of religion is treated under this Act as an unpardonable matrimonial offence. But this right to divorce is given only to the spouse who continues to remain a Hindu.

* Under the Hindu Succession Act, 1956, children born to a Hindu after she/he has adopted another religion and the descendents of such children are disqualified from inheriting the property of a Hindu relative.

* Under the Hindu Minority and Guardianship Ad, 1956, if either parent renounced Hinduism, the person who has committed this “offence” is automatically deprived of the right to remain the natural guardian of a minor child. There exists a gender bias too: the Hindu mother cannot act as guardian of her child unless the father is dead or otherwise disqualified.

* Presently, adoption is a legal right available only to Hindus. This leads to extremely discriminatory conditions to the non-Hindu partner. Under the same Act, the natural father of a Hindu child can give or take in adoption without, in law, caring how his non-Hindu wife reacts to it. But the wife can veto his action only if she is a Hindu. Most significantly, only a Hindu child can be adopted and the right to adopt a son is denied to any person who has a Hindu son, grandson or great-grandson.

* In the case of maintenance, too, similar gender and communal biases exist: a non-Hindu wife cannot claim maintenance from the Hindu husband (either while living with him or separately). But a Hindu wife enjoys the right to live separately from her husband on grounds of his conversion without forsaking the right to be maintained by him

*Certain income-tax benefits accrue in secular India only to Hindus who can prove that their income comes from the proceeds 0fa”Hinduundivided family. The Supreme Court has held that “there need not be more than one male member to form an HUF and the tax benefits in such a case should be levied on the joint family and not on the male as an individual.”

De-communalizing debate on civil code

Instead of maintaining a silence on all these anti-women and pro-men or pro-Hindu provisions of family laws, shouldn’t secularists reframe the debate on reforms in family laws incorporating all these arguments with a correct perspective?

First and foremost, this will help in de-communalizing the argument for change. By creating a public awareness that anti-women provisions exist in all personal laws and that the necessity and urgency for change is to remove these biases, the anti-Muslim thrust of the saffron campaign will be blunted.

When that happens, Hindutva’s unstated demand of a Hindu hegemony on family laws will stand exposed. Then both the supporters and opponents of reforms can be expected to cut across the religious divide with the holy hierarchies of different faiths possibly standing on the same side.

The battle is not going to be easy. The hijacking of a debate which should have centred round the question of gender justice by Hindu communalists has accentuated among the minorities, who see the demand for a uniform civil code as an attempt to rob them of their religious and cultural identity. The communalization of the debate has helped strengthen the hold of Muslim orthodoxy which in any case is resistant to change. But it is a battle that will have to be fought. And fought squarely. Not merely to regain lost ground from the saffron brigade but to strive towards gender just family laws.

Even among the secularists, opinion is sharply divided on whether tactically and on principle, the argument should be for a uniform civil code or for simultaneous reforms and parallel codification of separate family laws. While one viewpoint argues strongly for a gender equal family code that culls out the best principles from all existing family laws and offers a legislation that is both pluralistic and nondiscriminatory, the second still favours reform within existing personal laws.

Says Prof SP Sathe from Pune who had been working on drafting a gender equal family code: “Personal laws were never considered a part of freedom of religion.” In his view, the freedom of religion, a fundamental right guaranteed under article 25 of the Indian Constitution, is not absolute and has been carefully drafted to subject it to prevailing notions of public order, morality and health.

He adds, “Is preservation of your personal law tantamount to your sense of identity? No community’s identity should depend upon how badly we treat our women. The inclusion of the Directive Principle of State Policy (Article 44) that clearly lays down the intention of the State to work towards a uniform civil code makes this clear.”

Other advocates of a similar position argue that such a change must come, and come quickly. “Otherwise; the aggressive argument of Hindu communalists will gain more credence. We must take the debate to a different plane, argue for plurality within the same code. The whole issue must be re-framed to create a reformists v/s status quoits polarisation,” argues a leading feminist from Bombay who preferred anonymity.

“The moment we do this and show that Hindus, and Hindu males also benefit from preferential treatment like the income-tax exemption granted for the HUF, communalists of all hues will unite together on the same side of the fence.”

Others like noted researcher and Bohra reformist, Asghar Ali Engineer have felt that “it is not, strategic at this stage to talk I of uniform civil code as it may be misunderstood.” But he is in complete agreement that principles of gender justice must be fought for. “If on this question the individual communities, whoever they are, do not take the initiative then the state may have to take step,” he adds.

The first viewpoint argues for a comprehensive code on personal laws based on the best provisions of existing Muslim, Hindu, Christian or secular-western laws as the only practicable solution This, it is argued, is not merely desirable but also more feasible in practice since the trappings of tradition, custom and faith would make it very difficult for women to seek justice under separate personal laws. The second position maintains that reform and codification of the existing personal laws is more realistic as it would be more easily accepted by different communities; this would not threaten ethnic and religious identities: and rights concerning marriage, divorce and  inheritance that are so much a matter of custom, tradition and religious belief would be easier for a larger numbers of women to assert. Either way, women’s organizations and all secular-democratic forces would do well to urgently initiate and alter the terms of the debate.

Diversity within personal laws

The Hindutvavaadi clamour for a uniform civil code is justified on the ground that it will help bring “national interaction”. How a commonality in personal laws can realize this ideal when a common criminal law has failed in eradicating crime is a question only they can, answer. Brahmanical cultural hegemony, not national integration, is more likely to be their real objective. The oft-peddled argument of the saffron camp is based on yet another falsification: except for the minorities uniformity in personal laws already exists. In fact, there is a lot of diversity within all the existing personal laws.

For example,

# Despite the Hindu Marriage Act, customary law still works as far as divorce is concerned. If you can prove it is a custom, out of law divorce is possible Both Hindu Marriage Act and Hindu Succession Act allow many other customary laws.

# Tribals who form 8 per cent of the population are governed by customary tribal law. Among the Santhal and Bhil tribals, women cannot hold property. It’s only now that they have started demanding protection against polygamy..

# Christians in Assam and Coorg and other Christian tribes in Bihar and Orissa have been application of the Indian Succession Act, 1925.

# Even the Shari’at Act of l937, codifying Muslim law and binding civil courts to apply its provisions to all Muslims relating to matters of family laws and relations is out of bounds for Muslims of J & K where the existing customary law takes precedence over it.

# For the Muslims of Goa, the Portuguese family and succession laws still apply.

# For the Sunni Bohras of Gujarat and the Muslim Ghirasias of Bharuch, Hindu customary law has been applied pre-and post- Independence “in the Interests of uniformity.”

# Muslims in Kerala have retained their marrumakadaym system. It is not shared by Muslims in other parts o India.

*Abridged from Revised version of article published in Communalism Combat (March 1994) 

One thought on “Debate on uniform civil code would be meaningless without contextualizing inequities prevailing in personal laws

  1. How can party elected by only the votes of the majority community seek to impose its will and tinker with the rights of minority, that opposes it? Is it not pushing the rule of majority principle a bit too far, when it seeks to flout minority rights? Mandate to rule on the votes of majority cannot mean the mandate to erase the constitutional safeguards of minorities, else how different will it be from the rule of Mursi or Maliki? Actions that led to republican crises.


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