First, existing laws are adequate to break the stalemate over the Uniform Civil Code.
Second, the Uniform Civil Code is not only about Muslims and Christians. The story is more complex.
The first article in a two-part series.
Since BJP is the only political party that has made a longstanding commitment in its manifestos to introduce a Uniform Civil Code (UCC) when in power, all those parties that are desperate to bring down the BJP-led government at the Centre have found a convenient tool to mobilise anti-BJP hysteria among Muslims and Christians using fear of “Hinduisation” through UCC. This is happening despite the fact that Article 44 of the Directive Principles of the Indian Constitution clearly mandates that “the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India”. And the Constitution was drafted under the ultra secular leadership of Jawaharlal Nehru! Yet, anyone raising this issue today is promptly dubbed an anti-minority communalist, a “Hindutvavadi fascist” wanting to impose majoritarian norms on religious minorities.
Fortunately, Muslim women are today in the forefront of the battle for the reform of Muslim personal law. And most of the reform-minded Muslim women also don’t express fears about UCC. Given the clear stand taken by the Modi government in the Supreme Court with regard to the historic petition filed by Shayara Banu challenging some of the obnoxious aspects of Muslim personal law, it is very likely that triple talaq and a few other outrageous practices will be outlawed by the Supreme Court very soon.
But that still does not get the BJP any nearer its manifesto promise of bringing about a UCC applicable to all citizens irrespective of religion, caste, region or gender. The resultant stalemate threatens to tear asunder our polity. But the solution to this contentious problem is actually quite simple. I had proposed it way back in 1985 at the time of the Shah Bano controversy and I propose it again because the remedy I suggest is still relevant and potent. At that time, several Muslim newspapers and organisations had endorsed my proposed solution. Various legal and social developments since then have fully vindicated my stand.
Do Only Muslims follow Personal Laws?
In popular perception, the stalemate on the UCC is on account of the intransigent attitude of rabid Islamists who insist that the Indian state has no business to tamper with their religious freedom by imposing man-made laws on them. They assert that Quranic injunctions and Shariah are Allah’s own commandments. But the story is more complex.
Most people rooting for the enactment of UCC are under the mistaken impression that only Muslims and Christians follow their customary or religiously ordained laws. The reality is that even Hindus by and large follow the customary practices prevalent among their respective castes, sects and communities. For instance, despite amendments in the Hindu Succession Act that gives women equal inheritance rights, daughters in many parts of India do not get equal share in parental property. Instead, parents seek to “compensate” daughters by giving them dowry at the time of marriage, which has been declared illegal by the Dowry Prohibition Act. Dowry giving is justified as a customary practice, even though it is of 20th century vintage.
Similarly, most Hindu groups continue to avoid intra-gotra marriages because they consider people belonging to the same gotra as sharing a brother-sister bond. Therefore, in their moral universe, a sagotra marriage is as good as incest. An overwhelming majority upholds this belief with passionate zeal even though there is no bar on sagotra marriages in the Hindu Marriage Act.
Likewise, the custom of marrying within one’s caste and community continues among Hindus, Muslims, Christians alike, even though neither Hindu nor Christian or Muslim law require people to marry within their caste.
Just as marriage among Hindus gains sanctity only when recognised and celebrated by the community, so also among poorer sections of society, divorce or separation is often settled through biradari panchayats rather than through law courts which are too distant and intimidating for those with meagre incomes. Such divorces are considered valid by samaj even though the criteria used for community-negotiated divorces are very different from the provisions of the state-enacted divorce law. These are merely illustrative examples of the fact that customary practices have not vanished among Hindus after the government enacted new laws.
The Shah Bano Case Judgement Was Not The First of Its Kind
Most people think that the Supreme Court judgement in the Shah Bano case delivered by Chief Justice Y.V. Chandrachud was the first of its kind revolutionary step since it ruled that Muslim women were entitled to getting maintenance from their husbands after divorce under a secular law, namely Section 125 of the Indian Penal Code. Even in 1985, I wrote a long piece in Manushi explaining that the reality was different to the impression created by the media coverage of the Shah Bano case:
Justice Chandrachud was not the first judge ever to have granted maintenance to a Muslim woman under Section 125. In doing so, he did not overrule Muslim personal law.
In actual fact, while delivering this judgment, Justice Chandrachud and his companions on the bench, merely confirmed two existing Supreme Court precedents:
• Krishna Iyer’s, Tulzapulkar’s and R S. Pathak’s judgment in the case of Bai Tahira vs Ali Husain Fissalli, 1979.
• Krishna Iyer’s, Chinnappa Reddy’s and A.P. Sen’s judgment in the case of Fuzlunbi vs K. Khader Vali, 1980.
In both these cases, the right of the divorced woman to maintenance was upheld. No furore was created by either judgment.
Before the stirring up of a storm over the Shah Bano judgment, a number of Muslim women were routinely granted maintenance by various courts under Section 125. Just a year before the Shah Bano case uproar, Manushi had assisted Qaisar Jahan in fighting a case against her husband, Ghalib Husain, a reader at the Jamia Milia University, Delhi. He had remarried after divorcing Qaisar and left her alone to support their 10-year-old son, Feisal Ghalib.
Manushi helped her file a petition for maintenance under Section 125, and in October 1984, a woman metropolitan magistrate, Deepa Sharma, awarded Rs 500 per month for Feisal, this being the maximum maintenance possible under this section for any person, regardless of religion. Separate maintenance would have been granted to Qaisar too, had she been unemployed.
Why then such a furore over Chandrachud’s judgment, which did not set any new precedent? Even a cursory reading of the three Supreme Court judgments mentioned above unravels this mystery. Justice Krishna lyer, in the two judgments delivered by him, dwells upon social injustice to women. Not once in the Bai Tahira judgment does he mention the word “Muslim”. He emphasises that under Section 127 Cr PC, any amounts paid to a divorced woman under the personal law of the parties will be taken into consideration, while settling the maintenance. If such amounts are sufficient to maintain the woman, no further maintenance need be granted to her. But if they are insufficient, then maintenance has to be granted to safeguard the woman from destitution.
Likewise, in his judgment in the Fuzlunbi case, Krishna Iyer makes no adverse comments upon Muslim personal law. His emphasis throughout is on the need to curb what he refers to as “masculine injustice” and to help “a woman in distress”. In fact, he extensively quotes Muslim authorities to show that mehr is a token of respect for the wife, a settlement upon her, and not a divorce payment.
By contrast, every substantive paragraph of the judgment in the Shah Bano case dwells obsessively upon the word “Muslims” and “Muslim personal law”. Take, for instance, the following statement: “Undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all.’’ If the word “Muslim” were deleted from this sentence, would it not hold equally true for men in many parts of the world?
Men exercise this privilege, regardless of their religion or lack of religion. By singling out Muslim men and Islam in this way, Justice Chandrachud converted what is essentially a women’s rights issue into an occasion for an avoidable provocation to the politically volatile Muslim community.
This is not to deny that Muslim personal law, as practised in India, is heavily biased against women, and that rabid Islamists have so far resisted all attempts to introduce necessary changes, thus causing great harm to their own community, especially women. The success of self-appointed Muslim leaders in forcing the government to overturn the Supreme Court judgement through the newly created platform called the All India Muslim Personal Law Board (AIMPLB), bolstered their belief that they could use vote bank politics and threat of mob violence to put their communal agenda above the law of the land, overriding the mighty Supreme Court and even the Constitution of India. This aggressive assertion brought back memories of the bloody Partition of 1947 among Hindus who felt that Muslim separatism of Jinnah vintage was becoming triumphant again.
This was seen as the penultimate example of Muslim appeasement even at the cost of trampling on the dignity of the Supreme Court and the secular fabric of Indian polity and statecraft. The enactment of the Muslim Women’s Protection Act unleashed political furies and divides that have not subsided yet.
The Politics behind the Muslim Women’s Protection Act
Rajiv Gandhi, who succumbed to the pressure of Islamists, was a “modernist” by instinct and wanted to usher in radical social and political reforms. To start with, Rajiv had openly encouraged reformers like Arif Mohammad Khan to speak in favor of UCC.
Khan has openly alleged that it was not the rabid mullahs but liberal Muslims of the Congress like Najma Heptullah who persuaded Rajiv to go against his own instinct and take a U-Turn on the issue. Leading the pack were people like Syed Shahabuddin, who had then recently retired from the prestigious Indian Foreign Service. Wajahat Habibullah, who was then an officer in the PMO, has revealed that another modernist liberal face of the Congress, M.J. Akbar played a key role in convincing Rajiv Gandhi that he should capture the Muslim vote bank by yielding to the demand of AIMPLB against his own better judgement.
Similarly, Prof Tahir Mehmood and Justice Ahmadi, otherwise wearing the progressive hat, became advisors of AIMPLB. This ensured handsome rewards for both. Mehmood was appointed chairman of the Minorities Commission as a quid pro quo and Justice Ahmadi became Chief Justice of the Supreme Court in later years.
Khan has also gone on record to say that heavyweight Congressmen like Arjun Singh and N.D. Tiwari supported the overturning of the Supreme Court order arguing, why should Hindus care if Muslims prefer to rot in the ghettos of obscurantism, so long as they remained a loyal vote bank of the Congress?
So it was not special love for Muslims but disdain for the community that led to the Congress U-Turn.
Far More Discrimination in Tribal “Customary’ Laws
Our obsession with Muslim personal law has led to total amnesia about the fact that in many ways much greater injustice is being done to women of communities that have come to be identified as Scheduled Tribes. They constitute more than 8.6 per cent of India’s population. While ST communities are supposed to be beneficiaries of protective measures, tribal women continue to be targets of discrimination because men alone are assumed to be representatives of tribal interests.
A characteristic feature of tribal communities is that traditionally their land was collectively owned. The concept of individual ownership was altogether alien to these groups. Labour participation of women in agriculture, forest gathering and other economic activities is far higher than among non-tribal groups. It is no exaggeration to say that women are the economic mainstay of tribal communities.
However, since these groups offered the toughest resistance to British rule, as part of attempts to subjugate them, the British did their best to convert them into settled agriculturalists and circumscribe their traditional rights over forest produce. While forcing them to become agriculturists so that tribals could be tamed, the British carried out settlement operations and enacted special tenancy laws for the tribal regions of India. Almost all these tenancy laws are heavily weighted against women because the Victorian-minded British of the 19th century took it for granted that all families are male-headed and men alone have the right to hold property. Laws born out of such patriarchal mindset created havoc for tribal women since they were given very limited usufructory or maintenance rights under certain conditions.
To the best of my knowledge, in 1981, I was the first one to challenge the highly discriminatory aspects of these laws on behalf of two Ho tribal women, 55-year-old widow Maki Bui and her daughter Sona Muni who were facing a life-threatening situation because their male relatives were determined to get them out of the way and take over their land. They had been dubbed witches by those determined to eliminate them.
As soon as my PIL became public knowledge, women from several other tribes also filed intervention petitions. The law we challenged was the Chhota Nagpur Tenancy Act of 1878. This was meant as a test case because the severe discriminations institutionalised by the British through this Act are typical of what they did in the rest of India. Mary Roy, a Syrian Christian woman (mother of Arundhati Roy), also filed a PIL challenging discriminatory provisions in the Christian laws pertaining to inheritance rights of women. Fortunately for her, she succeeded while our PIL produced very mixed results.
As per the Chhota Nagpur Tenancy Act, women only have limited usufructory rights, which means they have to right to labour on and be maintained from the family land. The ownership rests solely with men. As daughters, women are allowed to live off family land till their marriage. After that they lose the right to be fed from the produce of their parental land. If a tribal woman is a victim of rape by an outsider, her right to be maintained is also nullified. Even as a wife, a tribal woman’s right to land is fragile. If her husband brings in a second wife and throws her out—a fairly common phenomenon—she cannot claim her right to a share of the produce or a portion of the land, except if she has able-bodied sons as claimants to the father’s land.
Widows are allowed a lifetime right to work on the land but its enforcement is difficult, often dangerous, unless the woman has grown-up sons to back her claim. In case she only has daughters, the male relatives on her husband’s side often adopt very lethal means to push her and her daughters out of the land. It is the same with women who choose to remain unmarried (the percentage of such women is much higher among tribals than non-tribals). They too risk being eliminated or simply beaten out of the house unless their brothers require a free helping hand on the farm. Unmarried daughters and widows without sons are often branded as witches and done to death. I presented evidence of such land-related witch killings in my PIL to the Supreme Court.
There is nothing really “customary” about these debilitating provisions for women since tribal societies never had the custom of individual land ownership vested exclusively in the men. Women as prime workers on the land, contributing more than 90 per cent of labour, were traditionally highly valued by their families. Hence, they practice bride price as opposed to dowry.
My PIL created quite a stir and the denial of land rights to women became a hot issue. Sadly, some tribal leaders, especially those connected with church organisations of the area, created a hysterical uproar alleging that the PIL was aimed at destroying the tribal way of life and a conspiracy to let non-tribals acquire tribal lands. The hysteria was very similar to the one unleashed by Muslim leaders alleging that Muslim women’s demand for reforms in personal law are aimed at Hinduising Muslims.
The case dragged on for 15 long years in the Supreme Court. Maki Bui and Sona Muni were forcefully driven out of their village by their male relatives and ultimately died under mysterious circumstances. I had repeatedly begged the Supreme Court to ensure protection for the two women but the bench hearing the case expressed helplessness. Instead of taking a principled position on the subject, the Supreme Court kept pleading with the state government to bring about necessary reforms in the law. Once again, vote bank politics triumphed over fundamental rights of women guaranteed under the Constitution. The state government expressed unwillingness to incur the wrath of male tribal leaders. The Supreme Court paid generous lip service to the cause of women’s equality but in the end gave the most confused and cowardly judgement, which in effect conveyed the message, “We dare not stir this hornets’ nest.”
The result is that tribal women remain the most vulnerable of all. When deprived of even their maintenance rights in their parental or marital homes, they migrate to work in brick kilns, stone quarries and in other menial insecure occupations where they are easy targets of sexual exploitation. But their plight does not evoke the kind of emotion that Muslim women’s vulnerabilities do for obvious political reasons. Even for media, their issues are not “sexy” enough to merit serious attention.
Since then, challenging these anti women practices and laws in tribal regions has become much harder because in the last three decades, most of these areas have become hotbeds of Maoist insurgency. Many of these Maoist groups have close links with influential missionary organisations. Both of them together are openly hostile to raising issues concerning women’s rights because their mobilisation of tribals is on the basis of aggressive identity assertion, which invariably means crushing women’s rights. Ironically, the cultural and spiritual practices of tribals are much closer to various Hindu groups than to Christian theology and moral universe. Nature worship and ancestor worship, twin pillars of tribal culture, are common to all Hindu groups. But missionaries indoctrinate them to believe otherwise. Strengthening women’s rights in land is projected as a threat to “the tribal way of life”, even though women are the primary earners and mainstay of the tribal economy.
That these attitudes are much more hardened among tribal groups in the North East became evident when Nagaland exploded into violence and mayhem over the move to reserve 33 per cent of seats for women in local body elections. Male Naga leaders are also peddling the hackneyed argument that women’s participation in political bodies goes against the customs, culture and traditions of Naga society. As pointed out by Monalisa Changkiya in an article in Indian Express on 7 February 2017: “the core of the issue—like most other issues—is the ownership of land and resources. Naga culture and customs debar women from land ownership; hence our customary laws preclude women from inheriting land.
“In the opposition to women’s reservation in urban local bodies (ULB), the most pertinent aspect is the economic connotations inherent in politically empowering women through reservations. With political power comes economic power, and with economic power, political power is reinforced and consolidated, all of which has the potential to disrupt the status quo in Naga society that has marginalised women politically and economically.”
She has given several interviews describing how those supporting women’s entry into urban local bodies have been banished from their villages by the all-male Naga tribal councils and are living under serious threat to their lives.
Changes in Muslim Law through Judicial Interventions
However, Muslim leaders have met their nemesis through their own doublespeak and rigid adherence to practices that majority of Muslims, especially women, find abhorrent. Today, there is a countrywide rebellion by Muslim women, many of whom have acquired solid scholarship regarding the origins and interpretations of Muslim personal law. The maulanas and muftis who try to defend the indefensible appear buffoonish and mal-educated in comparison to these well-informed women who seem determined to become equal partners in defining the parameters of women’s rights.
But the nemesis of the rabid Islamists is born from the fact that they do not even have the competence or capability to ensure that the rights promised under the Muslim Women’s Protection Act of 1986—a law they invoked on themselves with determined fury—are actually delivered. As per that law, if none of the relatives of a divorced Muslim woman are in a position to support her, the Waqf Board of the area is duty-bound to provide her financial support. Clearly, this has not been happening. Secondly, the 1986 Act requires proper practice of Quranic injunctions when a husband wants to dissolve his marriage. The All India Muslim Personal Law Board has failed to bring about even this minimal discipline among Muslim men. Similarly, the financial settlement due to divorced wives as per Shariat is often denied. Consequently, numerous women have taken recourse to secular law courts in order to get their “Islamic” rights enforced.
If Muslims were really serious about maintaining the integrity of their religiously sanctioned laws, they would not have so readily surrendered the authority of adjudicating disputes on the basis of their religious laws to the secular courts and judges of India.
It is only to be expected that judges in India’s secular courts cannot and will not think with the mindset of madrasa-trained maulvis. Their entire education and orientation is geared towards upholding constitutional principles, ensuring equality before the law with special protective measures for protecting women in vulnerable circumstances. This is not to suggest that all judges act as per these dictums in all cases. Very often they do buckle under political pressure and deliver unconstitutional verdicts as they did with the tribal women’s land rights case. But they are well aware that if they violate these basic mandates of the Constitution, the concerned persons have the option to appeal to a higher court for review and reversal of a lower court verdict.
This is how several district courts, high courts and the Supreme Court of India have interpreted various provisions of the Muslim Women’s Protection Act in ways that have given a stronger foothold to aggrieved Muslim women. For instance, the landmark 2002 verdict in the Shamim Ara Case invalidated arbitrary triple pronouncement of the word “talaq”. The Court also laid down the procedure for dissolving Muslim marriages, thus bringing in a measure of restraint on the arbitrary acts of husbands. As a consequence, women aggrieved by triple talaq can seek judicial scrutiny. Even halala, a practice that accompanies only instant divorce, becomes invalid.
The most pathbreaking of all was the creative interpretation of Section 3 of Muslim Women’s Protection Act by the Lucknow bench of the Allahabad High Court. Section 3 lays down that a woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband. The judges asked, where in the Act was it written that the husband’s liability was confined to the iddat period? They read it to mean that a fair settlement must take place within the iddat period of three months, thus providing grounds for speedy settlement, rather than limited settlement meant only for three months of the iddat period.
As Arif Mohammad Khan explained in an interview to Scroll, the leaders of the All India Muslim Law Board were left with no option but to accept this judgement since it was based on the very same law they had worked hard to get enacted in the hope of relieving men of the burden of maintaining their wives after divorce. Had they made a fuss, it would have become public that they are incompetent in understanding legal intricacies despite having legal luminaries like Salman Khursheed, Justice Ahmadi and Prof Tahir Mehmood as their advisors. This opened the way for many more liberal judgments by various high courts as well as by the apex court of India.
The most far reaching is the interpretation of “fair and reasonable settlement” by the Supreme Court in 2001 in the Danial Latifi case by laying down that a Muslim woman is entitled to a fair and reasonable provision for her entire life—that too to be settled within the three months of the iddat period. It also stated in no uncertain terms that Muslim husbands can’t be indemnified against proceedings under Section 125 of CrPC which, as the law of the land for all citizens, overrides personal laws of parties.
The Court quoted the Aiyats of the Quran Chapter II, Suras 241-242, saying they leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.
Shayara Bano, who too, like Shah Bano, was subjected to the humiliation and misery of instantaneous triple talaq after 15 years of marriage, has thrown a far bigger challenge at the power games of the Muslim Personal Law Board than it confronted in 1985. Unlike Shah Bano, Shayara Bano did not confine her battle to one of maintenance, mehr or mata payments. Instead, she went on to challenge the very provision of triple talaq (talaq-e-bidat) as well as polygamy and nikah halala—a practice that forces divorced women willing to go back to their husbands to consummate a second marriage before returning to their first husband. She wants all three practices to be declared unconstitutional by the Supreme Court as they violate Article 14, 15, 21 and 25 of the Constitution.
Once again the Muslim Personal Law Board members have taken a laughable position and are making utter fools of themselves by offering the most bizarre justifications for continuing blatantly unfair practices. Shayara Bano is being supported in the court by the Bharatiya Muslim Mahila Andolan (BMMA) which has more than one lakh registered members, and growing. This organisation is giving the rabid clerics a tough fight on public platforms, including the media. They clearly have the support of the silent majority as well as the avowedly liberal sections of Muslim society. In all likelihood, the apex court will rule in favour of Shayara Bano and BMMA. Triple talaq and the practice of polygamy may well be declared unconstitutional in the soon-to-be delivered Supreme Court judgement.
Thus, slowly but surely, the obnoxious aspects of Muslim personal law are getting knocked out at least for those who have the economic resources, family support and will power to take their battle to court. Needless to say, such women constitute a tiny minority—whether among Muslims, Hindus or Christians. For those who don’t have the means and or the will power to fight prolonged court battles, these progressive changes in law mean very little, unless they get social support from within their community to pressure their erring husbands.
However, it defies comprehension why those who defend the divine sanctity of Muslim personal law have willingly submitted to adjudication by India’s secular courts where non-Muslim judges unfamiliar with the intricacies of Islamic law and zero knowledge of Arabic decide matters ostensibly based on Sharia and Quran. It is akin to having IAS officers manage the affairs of mosques and deliver Friday sermons or lead Eid prayers. By seeking answers to this elementary question from Islamists who resist reform in Muslim personal law ,we can easily break the stalemate over UCC.
Towards Breaking the Stalemate
The only way to break the stalemate on UCC is to undo the damage done by the Nehru-led government by forcing India’s secular courts to assume the responsibility of arbitrating family disputes on the basis of laws claiming religious sanction. This poses a key challenge to constitutional propriety. The following question needs a considered answer from the government—What is the constitutional status of the Directive Principles of the Indian Constitution?
While it is understandable that the government of the day may not be able to make the rights and promises made in the Directive Principles, should any government be allowed to get away with enacting laws that are patently contrary to and violate the mandate of the Directive Principles?
Starting with the premise that the Directive Principles ought to retain their sanctity, I present below a proposal I had offered way back in 1985. Even today it has the potential to break the stalemate on UCC without coercing Muslims and Christians into reform or compromising the constitutional promise of equal citizenship rights to all. It also enables the government to follow the Directive Principles of our Constitution that mandate that “the state shall endeavour to secure for the citizens Uniform Civil Code throughout the territory of India”.
• The secular courts of our country should stop adjudicating disputes on the basis of personal laws of any community—be it Hindu, Muslim, Christian or Parsi.
• Instead, the state should confine itself to adjudicating cases only under the already existing secular laws such as the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, Indian Wards & Guardianship Act. In fact, we do not enact a new Uniform Civil Code. The already existing “Indian” laws should be applicable to all citizens that decide to approach the secular courts, irrespective of their caste, creed, gender or religion. But these laws may need to be carefully reviewed and improved in order to make them truly egalitarian and gender-just.
• Those who wish to continue with the customary practices of their community claiming religious sanctity or attachment to their traditional system should be free to do so, provided they don’t expect secular courts of India to adjudicate and enforce religious laws. They should get their traditional customs enforced through consensually acceptable authority of that community—be it the local imam or granthi or the family priest, caste panchayats or the spiritual gurus of the concerned sects. Let the onus of ensuring compliance with what passes under the guise of the Muslim, Christian, Sikh, or Hindu customary law rest with the consensually accepted leaders of that community instead of putting it on India’s secular law courts.
• However, if even one party to a family dispute feels dissatisfied with the verdict of the authority adjudicating customary law, he/she should have the right to approach the secular courts set up by the state where the dispute should be adjudicated only within the framework of the secular laws applicable to all citizens.
One of the plus points of not forcing uniformity is that there are several communities where women’s rights have been better protected through their established customary practices than in the reformed Hindu laws. For instance, even today there are matrilineal communities in India (though shrinking in number and influence) where property devolves in the female line, from mothers to daughters, instead of going from fathers to sons, as in patrilineal communities. This will allow those communities to protect their pro-women culture and inheritance patterns and family structure.
Laws Apply only When People Seek its Protection
Those who think this amounts to giving a free hand to regressive elements among Hindus, Muslims, Christians, Sikhs et al would do well to keep the following facts in mind: Family laws enacted by the state, including provisions of the Indian Penal Code, come into play only when someone invokes their protection through the police and law courts.
They cannot be imposed on people who do not wish to avail of the rights under those laws. For example, beating up one’s wife or preventing a daughter from continuing with her studies through physical violence are both punishable offences. But if a battered wife or a daughter held captive by her father to prevent her from studying, chooses not to seek redress, or refuses the offered help, the best of laws cannot be of help to her.
A Muslim woman who accepts the second or third marriage of her husband or doesn’t legally protest being abandoned is not going to benefit even if the arbitrary triple talaq is declared illegal. Similarly, the current ban on bigamous or trigamous marriages works in favour of only those Hindu women who choose to sue their husbands in a court of law. This is true not just for India but true also of all those countries which give no legal recognition to Muslim or Hindu personal law, as does India.
There is now concrete evidence that when better options are available, neither Muslim nor any other group of women hesitate from availing of them. Today a growing number of Muslim women are filing cases under the Dowry Prohibition Act as well as the law against domestic violence, even though these laws don’t draw legitimacy from the Holy Quran or the Shariat. Neither the AIMPLB nor any mulla or maulvi has dared openly prohibit Muslim women from doing so. This is because these laws don’t have the word “Hindu” attached to them.
Similarly, no Muslim leader has dared to say that if a Muslim woman is raped, she can seek redress only under provisions of the Shariat which are obnoxiously loaded against women.
Though these community-neutral laws have several flaws, they have had the salutary effect of bringing Hindu, Muslim, Christian, Sikh, Buddhist, tribal, non-tribal women on a common platform to fight for what are problems for women of all communities. There is much to be learnt from the spontaneous and voluntary use of secular laws by affected women of all religions. Therefore, if we are serious about a Uniform Civil Code, let us do away with laws with a communal tag and let the two systems compete with each other on the basis of voluntary compliance.
However, no amount of reforms in personal laws or even the enactment of a radical UCC are likely to be help to the vast majority of women in India, if approaching courts remains the hellish experience it is at present. The solution lies in setting up efficiently functioning Family Courts in every city and town of India so that aggrieved individuals can get speedy redressal in a time bound manner without needing to hire lawyers who can fleece you to death while dragging on the case for years and decades on end. In rural areas, gram panchayats should be officially trained and empowered to resolve family and matrimonial disputes within the parameters of state enacted laws.
If seeking justice remains a high-risk venture in our country, the best of laws will remain paper tigers.