Uniform Civil Code, Gender-Justice and Personal Laws: Putting Things into Perspective

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Article 44 of the Indian Constitution is couched in such phraseology that it is replete with controversy when analyzed in the light of the broader constitutional scheme. The directive that has been laid down as, “The state shall endeavor to secure a uniform civil code to all the citizens throughout the territory of India.” is often made a subject of wanton abuse by the political parties in the run up to elections. The constitutional imperative behind this Article, however, was to “unify” and “integrate” the laws that had not been “invaded” by the legislators of that time i.e. the laws pertaining to Marriage, Maintenance, Divorce, Adoption and Inheritance. After a lengthy debate in the Constituent Assembly, the directive was defeated by one vote from becoming a Fundamental Right.

But, why Uniform Civil Code? The ongoing hubbub to demand the unification of personal laws has a rich judicial history. The Supreme Court in the case of Mohammad Ahmed Khan v. Shah Bano Begum said, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others; the Apex Court held, “Where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.” In several other cases, the Court has emphasized on the need to enact the Uniform Civil Code. It has been a rather vague conception that Uniform Civil Code would necessarily imply gender-just laws, something that is far from the original intent behind this directive principle of state policy. The seemingly inherent contradiction between gender-justice and personal laws, particularly the Muslim Personal Law compels one to study the impugned provisions. Instantaneous Triple Talaaq, Nikah Halala and Polygamy have been subject to widespread controversy. In the ‘age of ignorance’ wherein women were deemed to be playthings in the hands of men, to be used and misused as per their own whims and fancies, husbands used to pronounce talaq twice and withheld the third pronouncement to keep their wives in a state of constant dilemma. The Quran put a stop to this kind of exploitation of women and highly discourages instantaneous divorce.  Essentially, the most-approved concept of divorce under the Islamic law i.e. Talaq-e-Ahsan that involves enormous scope of reconciliation between spouses is admittedly the most humane form of divorce under any legal system; Talaq-e-Hasan being the next best which also allows ample time for reconciliation. Instantaneous Triple Talaq traces its roots in the caliphate of the second caliph of Islam, Umar Farooq. When the areas of Syria, Egypt, Persia, etc. were conquered by the Arabs, they found their women more charming and good-looking than the Arab women and therefore many were tempted to marry them. Since the Arab men used to be already married, those women demanded that they pronounce divorce thrice to their wives back home, not knowing the fact that the Islamic legal system had already abolished instantaneous divorce. The men, fully aware of the fact that triple divorce pronounced in a single go would not effect divorce with their wives back home, deluded women by keeping them under cover. When the women learnt about this, they reported the matter to the Caliph and in order to check this capricious use of the law and to protect the dignity of women, Caliph Umar enforced the legal effectiveness of instantaneous triple divorce as a deterrent and punitive measure. He did this to uphold the spirit of Islamic law of divorce which is to check the abuse of women at the hands of their husbands. The whimsical practice of pronouncing triple divorce to their wives in the hope of retaining the marriage with them on their return back home was checked by the caliph and he held that anybody found indulging in it would have his marriage irrevocably dissolved and would not be able to retrieve conjugal relations with his wife until she has already been in a marriage with another man and consummated it. It is important to note that it was a punitive measure for the husbands and hence the legal possibility of revoking marriage with one’s former wife in this case which involves the wife entering into marriage with another man and consummating it, is simply to make the revocability almost impossible. The fanciful concept of nikah halala that is rampant today has absolutely no place in Islam for the Islamic law does not acknowledge time-bound marriage which is close to institutionalized prostitution.  Revocability of marriage in this case was made difficult by the Caliph arguably to assert that a man that has shown clear signs of disrespect to his wife by not following the correct procedure and thereby abusing her status, is not worthy to retain ties with her. Caliph Umar would call for the man who would be found to have divorced his wife in this manner and have him whipped. The maintenance of such a woman would become the State’s responsibility. The writer argues that when the intention of the man is clearly to ill-treat his wife, criminalizing instantaneous triple talaq would serve the cause of gender-justice better; rather than simply outlawing it. The source of her pension should also be fixed as per the original intent. As regards polygamy, the question that needs to be addressed is- Does the ban on polygamy work? Statistically speaking, Hindus are more polygamous than Muslims (Adivasis 15 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent and Muslims 5.6 per cent), despite the fact that polygamy is banned under the modern Hindu law. At present when a Hindu man deserts his lawfully wedded wife to live with another woman, the only remedy available to the deserted first wife is divorce on grounds of adultery or desertion. However, most abandoned wives may not view divorce as a viable option because of the sacramental nature of Hindu marriage. In any case, prosecution of the husband does not help the first wife. Hindu men who contract bigamous marriages are allowed to go scot-free without legal obligations towards their partners due to the insistence on the “solemnisation” of marriage. Even their registration of marriage is not accepted as proof. Clandestine bigamy among Hindus is worse than open polygamy among Muslims. Muslim men who take more than one wife are legally bound to provide each wife not only residence but also proper maintenance and equal care and love. . . Thus, she is better off in comparison to the “second Hindu wife” who has no legal status or rights.The second Hindu wife cannot even claim maintenance from her husband. The Supreme Court in the D.Velusamy case did deny maintenance to a second Hindu wife by holding her as “mistress” and “keep”. Thus banning polygamy amongst Muslims would simply have an equalising effect of making a second Muslim wife as destitute and vulnerable as a second Hindu wife,” writes Prof. Faizan Mustafa (VC, NALSAR University of Law) in his article “Multiple Ways to Equality’ (The Indian Express; October 28, 2016)

Gender-justice amongst Muslims can be attained by way of reconciling the present laws with the original intent and spirit with which they came into being. The non-existence of a blueprint of what we call the Uniform Civil Code has given way to heedless back-and-forth squabble with no ground for substantial debate and a lot of space to arouse the ignorant masses. To say that Uniform Civil Code would be the panacea for all forms of gender-injustice is as ridiculous as saying unicorn is a better mode of transport than airplanes!

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