India stepping towards a bigger reform

by Suyash Pande

Upholding the supremacy of fundamental rights granted by the constitution, Hon’ble Supreme Court of India on 22nd August, 2017 inscribed another milestone in the series of its historical judicial pronouncements.A judgement by five judges constitutional bench declared the prevalent practice of triple talaq under Muslim personal laws in India as unconstitutional and discriminatory against Muslim women. The court has put an injunction for six months on this practice and asked the Parliament has initiated the process to bring an appropriate legislation regarding talaq under Muslim laws within six months. This ruling can be seen as longawaited justice for Muslim women who are till now hard-pressed by heinous customary practices sanctioned by law of the land.

The question now comes whether this decision will suffice the purpose or anything more is to be done. Looking at the bigger picture we can say that this is only a step, indeed a great one, towards delivering the ideals granted by our constitution. A bigger reform is on the way to free Indians from unjust and unequal societal setup.

Amidst all the challenges our society is facing we often hearshouts hat “Hume chahiyeaazadi, Manuvaad se aazadi, Purushvaad se aazadi!.” Another fact is that majority of population in India got aazadi from the anti-women features of manuvaad right after the passage of Hindu Marriage Act, 1955. But not all communities enjoy this aazadi. The reason behind this disparity among the communities in our Sovereign Socialist Secular Democratic Republic state is prevalent due to different personal laws for different communities, irrespective of the fact that whether these laws are in consonance with ideals of our constitution or not.

Before moving ahead let us understand what personal laws are. The people of India belong to different religions and faiths. They are governed by different sets of laws in respect of matters relating to family affairs, i.e., marriage, divorce, adaption, succession.[1]We inherited this system of having different set of personal laws from the British colonial rule as our law makers at the time of independence preferred not to interfere with religious issues. But by providing a provision in our constitution, they clearly manifested their vision about uniform India.

Article 44 of the Constitution of India asserts that “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Although this article is not enforceable in courts as a fundamental right but it is a provision underDirective Principles of State Policy which means that Parliament should make law for establishing a common code for all citizens. The aim of constitution makers was to gradually move towards a common civil code for all citizens in future.

The Law Commission of India last October issued questionnaire inviting public opinion on the need for Uniform Civil Code and codification of personal laws in India. The 17 questions in the survey touched upon controversial points in various personal laws which are alleged to be discriminatory and unjust. Let us go through some of these significant issues from the questionnaire.

Maintenance to Divorced Women

The Supreme Court of India in the famous case of Md. Ahmed Khan Vs Shah BanoBegam[2]entitled Muslim divorced wife maintenance from her husband under Section 125 of Cr.P.C. 1973 1973. This was seen as new dawn in the lives of dependent Muslim women who were earlier only entitled to Mehr, a prefixed amount of consideration and left on to survive on themselves thereafter. But due to strong opposition and dissatisfaction among major faction of Muslim community against this decision, the Rajiv Gandhi government securing its vote bank passed the Muslim Women (Protection of Rights on divorce) Act, 1986 nullifying the above decision of Hon’ble Supreme Court.

Section 3 of this act states that a Muslim wife at the time of divorce is entitled to –

  • Reasonable and fair maintenance within iddat period.
  • Reasonable and fair maintenance for children for two years from date of birth of that children, whether such children are born before or after divorce.
  • Amount of Mehr agreed to be paid.

Unlike Hindu law which provides maintenance to dependent wife for the lifetime and dependent child up to 18 years of age, this law is unconcerned about maintenance of women and children after divorce.

Under this act, if a Muslim couple files an affidavit in the court at the time of marriage or anytime thereafter to be governed by Section 125 ofCode of Criminal Procedure, 1973, then this section will be applicable on them. Ironically, very few couples avail this option due to societal stigma.

Question no. 10 asks whether there should be a uniform age for consent of marriage?

We know that age for valid marriage of a girl is 18 years and boy is 21 years. Under Muslim law marriages of children under 16 years age is allowed with permission of Sharia authorities.

In question no. 11 it is stated that different religions have different grounds on which divorce can be granted. Should these grounds be uniform across all religions? One feasible option given in the questionnaire is that there should be same grounds for divorce within the personal laws. Another option is that the grounds should be as per cultural differences.

Another issue is raised in question no. 9 regarding the Christian Divorce Act

For mutual divorce among Christians, a twoyearwaiting period is compulsory before divorce. This is found to be unjust and harassing as two years is a very long time for a person to survive alone. Although the Supreme Court for a particular case reduced this period to one year but by the law this separation period is still two years.

Question no. 4 asks that will the UCC or codification of personal laws ensure gender equality?

The answer is yes because a codified law enacted by state cannot arbitrarily or unreasonably discriminate anyone on the ground of gender by virtue of Article 14 & 15 of our Constitution.Also, it will enable the legislature to make laws in favor of women.  For example, as Hindu Succession Act is codified, the Parliament by amendment in 2005 granted the coparcenary rights to daughters as equivalent to that of a son in father’s property which was earlier not given by the law.

Further as asked in question no. 5, UCC should not be optional.It should be applicable to all the citizens without choice because if given option, very few people have the tendency to be willingly governed by such laws. We have seen the case of Muslim Women (Protection of Rights on Divorce) Act, 1986 that how very few couple registers themselves to be governed by Section 125 of Cr.P.C. 1973.

Question no. 7 seeks public opinion on one of the most heated and debated issue these days, that is triple talaq. A practice sanctioned by Muslim personal law board under section 2 of Shariat Act, 1937 that has made thousands of Muslim women suffer mercilessly. In Hindu law, marriage is a sacrament and in Muslim law it is a contract. But this contract is not like a contract of supply of goods and services that can be allowed to be revoked anytime at the will of one party. Although marriage is a contract but still is a pious agreement which should give a fair and equal chance to both husband and wife to set apart their lives.

The Muslim law acknowledges various forms of talaq which include Ahasan, Hasan, talaq-e-bidat, Ila etc. Among these Ahsan, Hasan and Ila are revocable within certain time period, but the most controversial and criticized sinful form is talaq-e-bidat which is instant and irrevocable.The Muslim personal laws of India permitted the practice of talaq-e-bidat or talaq-i-badai till the recent verdict, which includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable instantaneous triple talaq at one go.

Instances of triple talaq have been recorded via whatsapp, skype chats etc. in which the marriage was terminated by husband in a flash. This inflicts havoc in to the lives of many women and children, especially those belonging to the weaker economic sections of the society. This violates the right to dignity of every woman.

In September 2015 after complaints by Muslim women organizations, the Supreme Court took Suo moto cognizance of this issue in Re: Muslim Women Quest For Equality[3] (Suo moto writ petition no. 2 of 2015) along with ShayaraBano Vs. Union of India and others[4]in which the court asked the central government and Muslim Personal Law Board to submit their stance by affidavits.

Central Government submitted that ‘gender equality and dignity of women are non-negotiable.’

The MuslimPersonal Law Board point wise defended the practice and relevance of triple talaq. In affidavit the board stated that[5]:

  • “If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive,”
  • “Granting a husband the right to divorce indirectly provides security to the wife. Marriage is a contract in which both parties are not physically equal. Male is stronger and female weaker sex.”

In the same affidavit a submission justifying the practice of polygamy states that “polygamy is a social need and a blessing for women because an unlawful mistress is more harmful for social fabric than a lawful second wife.”

The board later on turned defensive in subsequent hearings and stated that it will ask Muslim men not to resort to instantaneous triple talaq and board will socially boycott those whoever practices this. This bent was done to neutralize the demand of codified and uniform personal laws for Muslims. The Supreme Court delivered the verdict on this issue on 22ndaugust holding triple talaq as unconstitutional. But from the above discussed issues it is clear that a bigger reformative step is needed ahead of this.

Another dreadful practice that is prevailing in India got attention during this debate is NikalaHalala. This can give you a shock if you don’t know about it till now. Under Muslim law a husband and wife cannot remarr after the talaq is complete. If they want to remarry again the strategy is that the wife performs nikahhalalaand when the new husband dies or gives her talaq she can marry her former husband. So,a woman must consummate her marriage with another man if she wants to go back to her former husband, with whom she has been divorced. A number of maulvis avail themselves for one night stand to help people execute nikahhalala against some monetary considerations. The relevance and moral aspects of this practice need not be discussed. The purpose of sharia law has been beautifully explained by Islamic scholar Asaf A.A.Fyzee in his book Outlines of Muhammadan Law as “What is morally beautiful that must be done; and what is morally ugly must not be done. That is law or Shariatand nothing else can be law.[6]

Today, in India no longer these religious boards are followed and respected by the people as they were at the time of inception. All India Muslim Personal Law Board claims its laws to be as per Quran but on numerous occasions Muslim scholars like Maulana Madoodi have proved that many provisions by Muslim personal law board are not as per the text given in Quran.

UCC and Minorities

A very common myth is perpetrated to intimidate the minorities is that a UCC will entirely take away their customary laws and axe their culture. Legally, UCC will be a common civil code for all citizens that will have codified personal laws for all religions. It can be assumed that the UCC in India will have different parts for each religion sanctioning customary practices in matters of marriage or divorce, for example the Hindu Marriage Act, 1955 sanctions practices like Saptpadi or kanyadaan in reference to valid marriages, but as it will be an enacted legislature, the possibility of the provisions infringing fundamental rights (like instant triple talaq) will be ruled out.

Also, these matters will be shifted in the domain of legislature from the clutches of religious boards. This will enable the legislature to asses and modify the laws to meet requirements of changing time.

The Goa Civil Code

Reference can be made to the Goa Civil Code, 1961 which is very close to the UCC with few exceptions. Very few people know that Goa has a common civil code for all citizens in state. The Portuguese Civil Code existed there till Goa got independence in 1961, which later became the Goa Civil Code. In 1981, the then Prime Minister Mrs. Indira Gandhi appointed a commission to impose non-uniform personal laws in Goa identical to rest of India. This move was stringently opposed by the Muslim Women Association and Youth Welfare Association thereafter which Goa continued with the same civil code.

UCC as it is portrayed is above Hindu-Muslim issues. It is a solution against discrimination of women by reforms within the communities. Rather we can say that it’s a secular step. When Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956 and Hindu Succession act, 1956 was passed after independence, Nehru government faced stiff resistance against passage of such laws. We can observe the long-term benefits of firm decisions taken then that how these laws have played substantial reformative role in uplifting the status of women in Indian society.

After the UP election mandate and overall public readiness inside and outside courts, a desire of uniform and non-discriminatory uniform personal code can be felt among people. The time of realization of words enshrined in Article 44 of Constitution has arrived now. And as now the court has once again shifted the ball to legislature’s domain, the legislature should act boldly without crafting the consequences of vote bank.  A reasonable UCC will not solely be confined upto the codification of uncodified laws but will eradicate all the unreasonable discriminatory provisions regarding adoption, succession, inheritance, guardianship, marriage, divorce and maintenance in Hindu, Muslim, Christian and Parsi laws. These practices cannot be defended citing religious faith or essential practices, if so, then child marriage or sati pratha would never have been ended. The Supreme Court in various occasions has emphasized on the prerogative of legislature to take call on enacting a UCC.

Although India has a historically and culturally imbibed feature of tolerating and accommodating diversity but a diversity which leads to discrimination of women is of no glory.

“यत्रनार्यस्तुपूज्यन्तेरमन्तेतत्रदेवता”: – Where women are honored, god resides there.

(The author Suyash Pande is a graduate of Hidayatullah National Law University, Naya Raipur and National Executive Member, Think India)

[1] http://www.archive.india.gov.in

[2](1985 SCR (3) 844)

[3] Suo moto writ petition no. 2 of 2015

[4]Writ Petition (C) No. 118 of 2016

[5] http://indianexpress.com/article/india/india-news-india/triple-talaq-islam-Muslim-law-board-supreme-court-prevents-killing-wife-divorce-3010683/

[6] Tahir Mahmood (ed.), Asaf A.A. Fyzee Outlines of Muhammadan Law, 5th edition 2008 Page 10.

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