Why A Uniform Civil Code Is The Need Of The Hour
The government must make good use of the communal harmony right now and enact the Uniform Civil Code and close the chapter of regressive personal laws for good.
The much-awaited verdict in the case of Shayra Bano versus the Union of India clubbed with four other petitions was pronounced by the apex court on 22 August 2017. To the delight of all progressively thinking citizens of the country, the Supreme Court has declared the practice of Triple Talaq, as 'unconstitutional'.
Talaq-e-bidat, commonly known as Triple Talaq, was a form of divorce where the Muslim man can instantly divorce his wife by uttering the word ‘talaq’ thrice. Instantly here means utterance during any period in a single tuhr ( the period between two menstrual cycles of the wife). After such an utterance, the divorce becomes final and binding. There has been a narrative in the media for the past few days that this form of divorce is only valid for Sunni Muslims and that too Hanafi Sunni Muslims. Even if one is to take this argument on merits, it is pertinent to point out that Hanafi Sunni Muslims are almost 80 per cent of the total Muslim population in India. Hence, the use of such an argument to not debate on the legality of Talaq-e-bidat is not only redundant but also absurd. This form of divorce being a paragon of inequality in its original form itself has attained heights of absurdity in the recent past where men have been divorcing their wives through skype, WhatsApp, SMS etc.
Nothing therefore can’t be more heartening to see than the Supreme Court striking the practice down.
There is now a debate on the grounds given by the apex court for declaring it unconstitutional. Nevertheless, we need to focus our attention now on the constitutional mandate under Article 44 of the Constitution of India - a uniform civil code throughout the territory of India.
In the dissenting opinion over the judgement, Chief Justice of India Jagdish Singh Khehar and Justice Abdul Nazeer argue that since the government of India has joined hands with the petitioner to oppose the practice of Triple Talaq, a legislative remedy is the best option, whenever the government shows an intent for this. The Justices acknowledge that it is wrong for them to direct the legislature to legislate on a subject, but use the above logic to do the same.
Though there is no power vested in the Supreme Court to direct the Parliament under any circumstance, but perhaps there is some wisdom in the point which the justices are seeking to drive home. The personal laws of all hues of our country are ridden with regressive practices. These practices are often discriminatory against women and it make little sense to have legal sanctity for them in modern times. For instance, Nikah Halala is one such horrendous practice in Islam. Under this, when a husband divorces his wife, both of them are forbidden to marry each other again; unless the divorced wife marries another man and consummates that marriage and the new husband also agrees to divorce her. An example of such a practice can be found in the case of Nagma Bibi wherein her husband, in a state of intoxication divorced her, but wanted to annul the divorce next day himself. But Muslim community leaders sent Nagma to her home and pressurised her to marry another man before remarrying her husband. This practice makes a woman pay for the deeds of her husband by forcing a sexual intercourse upon her if she just wishes to remain with her husband. This is equivalent to treating women like chattel and property.
Therefore, a one stop legal solution is the enactment of a Uniform Civil Code under Article 44 of our Constitution. The only reason why our Constitution makers put this provision under Directive Principles of State Policy, and not enacted it at that time itself, was the communal atmosphere prevailing in the country due to partition. Those reasons are not relevant today. Our society as a whole did accept the verdict against Triple Talaq, as evidenced by an absence of strong protests or agitations.
A Uniform Civil Code can be drafted by qualified legal scholars with varied backgrounds. ‘Uniform’ doesn’t even remotely mean a majoritarian code. In fact, it can derive best practices from all religions. It is pertinent to highlight here that the Hindu society, which constitutes a majority in our country, was already subjected to a modern law at the time of Independence itself. Hindu law was codified and enacted in 1955. This codification stripped the Hindu religious leaders of their authority to adjudicate, and courts were conferred with the same. This was a step in the right direction. But even after codification, Hindu personal also has some regressive provisions which need to go.
In any modern society, the existence of personal laws by itself is a violation of not only fundamental right to equality but also basic human providence. It is entirely arbitrary and has no place in a modern and progressive society, which all progressively thinking Indians seek to achieve.
The government must make good use of the environment right now and enact the Uniform Civil Code and close the chapter of regressive personal laws for good.
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