Comment
A major political issue confronting the country today is the controversy over the Uniform Civil Code versus the Personal Laws of various religious groups. It has led to a bitter polarisation of opinion, aggravating relations especially between Hindus and Muslims. In the situation the question ultimately is how to reconcile the inherent pluralism of the Indian social order with a demand for uniformity. This assumes relevance as on the one hand the notion of legal uniformity is supposed to promote unity but it mitigates the very spirit of cultural diversity. On the other hand, the existing personal laws promote cultural diversity but fail to provide social justice particularly equal rights for women. Besides, the controversies and implications of the issues have been inextricably linked with the political agendas of the various political groups. The Government policy on this has always been based on narrow, myopic political considerations. The genesis of these controversies and diverse implications can be traced, first, to British colonial rule.1 Between 1860 and 1870 the British had carried out a number of reforms with several legislations being passed. Two of these were the Indian Penal Code and Indian Contract Act that form the bedrock of our present-day judicial system. For the British rulers these were important enactments as it helped them in their colonial policy -- indirect rule in administrative affairs and divide-and-rule in military affairs -- of consolidating their political control when laying down uniform laws for civil transactions and for governance of crime and punishment.1 It was during this period the term `personal' came to be applied in the legal sphere.
Strictly speaking, there are only two broad categories of laws -- civil and criminal -- and laws by their very nature are public. The British however made a distinction between `public' and `personal' sphere of every-day life, leaving the `personal' domain out of the realm of uniform legislations for fear that this would spark off unnecessary conflict and unrest.1 The relevant point, however, in the current context of the controversy is the manner and form in which the Hindu personal law had been codified and "reformed" virtually in total disregard of women's interests. And today, forty-one years later the noble sentiments and high expectations that this reformed law was supposed to achieve for women is intrinsically male-chauvinist.
At another level, the debate on personal laws reveals an utter confusion of the scheme of values. Right from the Constituent Assembly debate on the present Article 44 of the Constitution directing the State to endeavor to secure a uniform civil code for all citizens to the Supreme Court Judgment on the Sarla Mudgal case and all that has occurred since, it becomes obvious that the major source of confusion is the obsessive and maniacal insistence on uniformity especially by communal groups as against the demand for equal rights and justice for women. Reacting to the almost unanimously orchestrated view of these communal forces for a uniform civil code, deriving from their spurious concerns on appeasement of minorities and polygamy among Muslims, the Muslim fundamentalists have also been equally paranoid with the notion of their religio-cultural identity being threatened, as if the body of laws improvised and enacted by British colonialists are the centre-piece of their identity!
Against the communal demand of the forces like the RSS for a Uniform Civil Code, any debate on the reform of personal laws and gender justice is projected as a challenge and a threat to their tenous security by the Muslim fundamentalists. Thus, when a woman seeks justice to establish her rights, it at once becomes a subject of claims arising from these and other religious communities for reasons other than gender justice. And in the power play of the various communal forces, etc., women's welfare becomes the battering ram in their campaigns for and against this issue. The objectification of women in this can be traced to a number of popular prejudices and fallacies rooted in the communal demands of not just Hindu and Muslimm but in all personal laws that are heavily loaded against women. In de-communalising [You may wish to consider how important it is to democratise society for achieving this and also for building a consensus on Uniform Civil Code] these demands the need is also to expose the various misconceptions and stratagems of the communal forces on these issues.
* The Hindu Marriage Act prohibits marriage between two persons within the prohibited degrees of relationships. For example, a Hindu cannot marry his own brother's or sister's daughter. However, the Act immediately adds that such marriages are valid if permitted by the customs governing the parties to the marriage. In the South there is a custom to marry one's sister's daughter, while in the North it is prohibited; * Though `Saptapadi'is essential for solemnising the marriage but not so if it is not required under the customs governing the parties to the marriage. * In the matter of succession and inheritance, the `mitakshara' and `dayabhaga' schools have different rules of succession with even different sub-schools within the former. For example, while in the North, in a partition between father and sons, the mother is given a share equal to that of a son. In the South, this practise has fallen into disuse and hence the mother would not get a share;
Elaborating further, Communalism Combat 9 illustrates the ernormous diversity within all the personal laws, viz.,
* The different rules for taking a child in adoption * Adivasis who are governed by customary law. Among the Santals and Bhils women cannot hold property.It is only recently they have begun demanding protection against polygamy;
* Christians in Assam and Coorg and other Christians among Adivasis in Bihar and Orissa have been exempted from the application of the Indian Succession Act,1925;
* Even the Shari'at Act of 1937 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 Law and Succession Laws continue to 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 interest of uniformity",
* Muslims of Kerala have retained their `marrumakathayam' system. It is not shared by Muslims in other parts of the country. Undoubtedly the reform of Hindu law through codification did have some positive impact. It carried forward the tradition, already established during the national movement, of legitimising notions of women's equality in the policy and in society at large. It paved the way for further gradual reform, e.g. the introduction of divorce by mutual consent into the Hindu Marriage Act. On the whole, however, the impact of codifying law only for Hindus without giving them any option, and of trying to eradicate diversity in the name of "Hindu Unity"10 was very detrimental. In the process it diffused the myths that
* Hindu women had achieved equal legal rights; * the reformed Hindu law is "secular", not "religious" or "personal" like the Muslim personal law which apart from being "backward" can therefore be secularised only by Hinduising it;
* Hindu men were worse off than Muslim men because the former have been deprived of `rights' that the latter enjoy; Studies of the statutes of the Act reveal that the legal uniformity leads to the sacrifice of women's right by the deletion of several local customs which granted rights to women.
MYTH The recognition of her economic dependence and the right to maintenance which is legally available to women is adequate to protect especially her economic interests and compensate her for the contribution she makes to her family and society at large.
FACT For the amount of labour she provides by way of child-bearing, child-raring, and domestic labour like cooking, washing and running the home the maintenance that has been made available to her is woefully inadequate and unenforced. As researchers Gangoli and Solanki pointout(Times of India, 27.9.95)
* Women have known to have received maintenance as little as
Rs.50/- for themselves and Rs.25/- for their minor children under HAMA (as in a 1992 judgment of the Bombay high court in the case of Viswanath Pundlik Chauhan vs Nirmala & others)
* The IDA applicable to Christian women holds that a woman
after divorce is entitled to an amount that "shall in no case exceed one-fifth of the husband's net income". Above all women find it very difficult to secure this rights speedily, without going to the lengthy battle. Even under the SMA while Section 125 has been communalised especially after the Shah Banu controversy. At any rate, maintenance can neither in principle nor in practice adequately compensate women. Firstly, the very basis of a right to property, more specifically to matrimonial property, is a recognition of a contribution to the acquisition of property. It recognises that, but for a woman's non-monetary contribution to the family, her husband would not have been able to acquire the property.
The right to maintenance, however, is based on a recognition of women's economic dependency.It is not an entitlement based on contribution, but rather, based on providing for an economic need.15 Maintenance rights are also governed by Section 125 of the Code of Criminal Procedure (Cr.P.C). However, this right is qualified by the personal laws,thus restricting the scope of a women's entitlement to the same. For example:
* Section 25(3) of the Hindu Marriage Act, 1955, providing for permanent alimony and maintenance, allows the Court to rescind the order of maintenance if it is convinced that the wife has not remained chaste; * Section 37 of the Special Marriage Act,1954 and Section 40 of the Parsi Marriage & Divorce Act, 1936 provides the same; * Section 125 of the Cr.P.C. states that the wife's claim for maintenance would be defeated if she lives in adultery; * The Muslim Women's (Protection of Rights on Divorce Act.1986,Section 125 has been made optional for a divorce Muslim women (though it continues to apply to Muslim married women, daughter and mothers). This Act provides that the former husband is to maintain the divorced woman during the period of `iddat' upto 2 years from the date of the birth of their children, after which the burden is shifted to her paternal relations.
All this only reveals that the purported objective of maintenance, is hardly realised.
Reference:
1. Agnes, F."The Hidden Agenda Beneath The Rhetoric of Women's Rights", Towards Secular India, #1,Bombay,1996
2. Engineer, A.A."Uniform Civil Code: An Indian Perspective", Centre For the Study of Society & Secularism, August,Bombay 1995.
3. Code & Conduct, Communalism Combat, # 8-9,1995
4. Kishwar, M."Stimulating Reform, Not Forcing It" Manushi, #89,New Delhi 1996
5. Uniform Civil Code, The Secularist, # 154, Pune, 1995
6. Mahmood, T."The Hold-back Factor", The Secularist. #154,Pune 1995
7. Karat, B."Uniformity vs Equality", Frontline, November 17,1995
8. Seervai, H.M. "Judiciary Oversteps its Brief", The Secularist, # 155,Pune,1995
9. Uniform Civil Code or Gender Justice, Communalism Combat, March, Bombay 1994
10. Kishwar, M."Codified Hindu Law", EPW,# 33,Bombay 1994
11.Yasin, M."Hindu Code Bill & B.R.Ambedkar", EPW, #25, Bombay 1994
12. Kannabiran, K.G. "Outlawing Oral Divorce", EPW, # 25, Bombay,1994
13. Saumya, "Bigamous Marriages by Hindu Men",The Lawyers, No.10-11, Bombay 1995
14. Agnes, F."Hindu Men, Monogamy & Uniform Civil Code", EPW, # 50, Bombay 1995
15. "Community of Property Regime", National Law School Journal, National Law School of India University, Bombay, 1993.
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