As NDA II seeks to open a debate without contextualising the inequities of all personal lawys, here is a piece that clears the cobwebs
MARCH
1994
COMMUNALISM COMBAT
UNIFORM
CIVIL CODE OR
GENDER
JUSTICE?
By Teesta Setalvad
COVER STORY
Caught between the Sangh Parivar which has communalised an
essentially secular concern for a uniform civil code and the orthodox Muslim leadership
resistent to any change, the women's movement and other secular-democratic
forces seem to have been gripped by - an intellectual -- paralysis. Unless
these organisations de-communalise the demand and shift the focus of the debate
to gender justice - not just Muslim, but all peronal laws in India are loaded
against women - the uniform civil code issue may prove to be a lethal weapon
UNIFORM CIVIL
CODE OR GENDER JUSTICE?
Among the numerous weapons stock-piled in
the saffron brigade’s propaganda arsenal, the one labelled 'Uniform Civil Code'
arguably has the most lethal potential. NO doubt, the Ramjanmabhoomi movement carried
the BJP and the Sangh Parivar to dizzying heights in a very short time. But ultimately,
the Ayodhya dispute to be self-limiting. Devoid of any rational content, it had
only an emotive appeal.
The 'One Country, One Law' demand, on the
other hand, appeals to reason as well. Why should a secular society have different
laws for different segments of the population? The Muslim insistence that the Union
government change the law of the land to nullify the Supreme Court judgement in
the Shahbano case in 1986 and the All India Muslim Personal Law Board's callous
disregard of the demand for an end to the instant divorce (talq-talaq-talaq)
practice in the middle of 1993 has created a public perception are totally
hostile to any idea of social reform. This has only added emotional charge to
what also appears to be a fairly rational argument. Nothing could better serve
the propaganda needs of the Sangh Parivar. But for the fact of its electoral
reverses in the assembly elections last November, the saffron brigade was expected
by many to open up a new-battle front.
If Muslim orthodoxy has done its bit to aid-
the RSS cause, the women's movement In particular and secular-democratic forces
in general. too, cannot escape their share of the blame for letting the Hindutvavaadis
totally dominate and distort the debate on badly needed reforms in all family
laws in India. Through its constant argument that enacting a uniform civil code
will bring about national integration, the Sangh Parivar has succeeded in making
many Hindus believe that, one, only “separatist-minded” Muslims are opposed to
a uniform law, and, two, the uniform civil code will only affect Muslims.
But a dangerous, if unintended, result of
this silence was the smug belief among large sections of the Hindu majority,
including no communal people, that while the law-abiding, secular-minded Hindus
had peacefully accepted the codification of Hindu family laws in the '50s, Muslim
personal law was still thickly laden with gender inequities. The Sangh
Parivar's propaganda machinery played a big role in generalising and accentuating
this false perception.
The lapse seems even more unforgivable
because the ground level experience of women's groups throughout the country
has shown that women living under all the existing personal laws- Hindu, Muslim,
Christian – were victims of harassment and discrimination
Nafisa Hussain, a BJP office bearer who has
petitioned the Supreme Court of India demanding a Uniform Civil Code, is for
Hindu communal forces a glaring example of the sorry status of Muslim women. But
the thousands of Hind Women who are deserted or denied their right to equal share
in family property are of no concern to them. Polygamy is today an offence under
Hindu personal law but the Muslim personal law still has a provision for four
wives. The Sangh Parivar which never tires of high-lighting this inequity in
law, never breathes a word about the fact that the practice, is more widely prevalent
among Hindus than among Muslims.
Last June, the Ahl-e-Hadith sect inadvertently
sparked a nationwide debate by reiterating their long-held stand that the widely
prevalent practice of instant divorce (talaaq-fa1a.qtalaaq) among Indian Muslims
was un-Islamic. But the ulema took the strange position that though triple-talaq
is reprehensible in the eves of Islam, its legality cannot be questioned.
Undaunted b this, a large number of
Muslim men and women publicly demanded an immediate end of this anti-women and
anti-Islamic practice. It was an opportunity for women's ground and other secular-democratic
minded people to intervene and to reinforce the reformist voice would-it not
have been pro: woman and secular to demand that the talaaq-I-tafwid and khul,
the corresponding right for the Muslim woman to unilaterally divorce her
husband must be in all fairness available to her?
Christian women in India have so far
fought unsuccessfully for their right to divorce. Only now, there are indications
hat they may succeed in seeing a long overdue amendment to the Christian
Marriage Act passed. The Hindu women's battle for a just and equitable share in
property still has a long way to go.
A gender bias does undoubtedly exist in
Muslim personal law. But it is undeniable that Hindu, Christian, Sikh,
Buddhist. Jain and tribal women also carry the same unfair burden because of
the family/customary laws applicable to them.
Even less known is the fact that while an
anti-woman bias pervade; all existing personal laws a communal bias is evident
not only in some of the provisions of Hindu family laws, but even the supposedly-secular
Special Marriages Act. The laws of the land predictably discriminate against all
women; they also treat Hindus as a special category as compared to non-Hindus.
To cite a few examples:
* The anti-women enactment
of a special law for divorced Muslim women in the wake of the Shahbano
controversy happened in the floodlight of negative publicity. However an
amendment to the Special Marriages Act in 1978, with the primary objective of preventing
property accruing to Hindu women, was enacted almost clandestinely and with
hardly any murmur of protest. Following this amendment in the avowedly secular
law, on contracting a civil marriage, a Muslim, Christian, Parsi or Jew no
longer has access to her or his personal law of succession. They are governed by
the Indian Succession Act, 1925. But a Hindu, Buddhist, Jain or Sikh shall, on
contracting the same civil marriage, retain his or her personal law of succession.
The obvious beneficiary of this amendment is the Hindu male and the loser, the
Hindu woman.
* Under the Hindu Succession
Act, 1956, the female heirs (of Class 1) do have a right to reside in a portion
of the family home. But the right to claim partition is given exclusively to
male heirs.
* Under the Hindu
Marriage Act, 1955, the post-marriage conversion by either spouse furnishes to the
other a ground for divorce. In other words, change of religion is treated under
this Act as an unpardonable matrimonial offence. But this right to divorce is
given only to the spouse who continues to remain a Hindu.
* Under the Hindu
Succession Act, 1956, children born to a Hindu after she/he has adopted another
religion and the descendents of such children are disqualified from inheriting
the property of a Hindu relative.
* Under the Hindu Minority
and Guardianship Ad, 1956, if either parent renounced Hinduism, the person who has
committed this “offence" is automatically deprived of the right to remain the
natural guardian of a minor child. There exists a gender bias too: the Hindu
mother cannot act as guardian of her child unless the father is dead or
otherwise disqualified.
* Presently, adoption
is a legal right available only to Hindus. This leads 'to extremely discriminatory
conditions to the non-Hindu partner. Under the same Act, the natural father of
a Hindu child can give or take in adoption without, in law, caring how his
non-Hindu wife reacts to it. But the wife can veto his action only if she is a
Hindu. Most significantly, only a Hindu child can be adopted and the right to adopt
a son is denied to any person who has a Hindu son, grandson or great-grandson.
* In the case of
maintenance too, similar gender and communal biases exist: a non-Hindu wife
cannot claim maintenance from he Hindu husband (either while living with him or
separately). But a Hindu wife enjoys the right to live separately from her
husband on grounds of his conversion without forsaking the right to be maintained
by him
* Certain income-tax
benefits accrue in secular India only to Hindus who can prove that their income
comes from the proceeds 0fa"Hinduundivided family."(HUF). The Supreme
Court has held that 'there need not be more than one male member to form an HUF
and the tax benefits in such a case should be levied on the joint family and
not on the male as an individual.”
Instead of maintaining a silence on all
these anti-women and pro-men or pro-Hindu provisions of family laws, should not
the debate on reforms in family laws be re-framed by secularists incorporating
all these arguments with a correct perspective?
First and foremost, this will
First and fore most, this will help in de-communalising
the argument for change. By creating a public awareness that anti-women provisions
exist in ail personal law and that the necessity and urgency for change is to
remove these biases, the anti-Muslim thrust of the saffron campaign will be
blunted.
When that happens, Hindutva's unstated
demand of a Hindu hegemony on family laws will stand exposed. Then both the
supporters and opponents of reforms can be expected to cut across the religious
divide with the holy hierarchies of different faiths possibly standing on the
same side.
The battle is not going to be easy. The
hi-jacking of a debate which should have centred around the question of gender
justice by Hindu communalists has accentuated anxisty among the minorities, who
see the demand for a Uniform Civil Code as an attempt to rob them of their
religious and cultural identity. The communalisation of the debate has on1
helped strengthen the hold of Muslim orthodoxy which in any case is resistant
to change. But it is a battle that will have to be fought. And fought squarely.
Not merely to re-gain lost ground from the saffron brigade but to strive
towards gender just family laws.
Even among the secularists, opinion is
sharply divided on whether tactically and on principle, the argument should be
for a uniform civil code or for simultaneous reforms and parallel codification
of separate family laws. While one viewpoint argues strongly for a Gender Equal
Family Code that culls out the best principles from all existing family laws and
offers a legislation that is both pluralistic and nondiscriminatory, He second
still favours reform within existing personal laws,
Says Professor S. P. Sathe from Pune who
has been working on drafting a Gender Equal Family Code: “Personal laws were
never considered a part of freedom of religion." In his view, the freedom
of religion, a fundamental right guaranteed under article 25 of the Indian
Constitution, is not absolute and has beer, carefully drafted to subject it to
prevailing notions of public order, morality and health.
He adds, 'Is preservation of your personal
law tantamount to your sense of identity? No community's identity should depend
upon how badly we treat our women. The inclusion of the Directive Principle of
State Policy (Article 44) that clearly lays down the intention of the State to
work towards a uniform civil code makes this clear."
Other advocates of a similar position
argue that such a, change must come and come quickly. “Otherwise; the aggressive
argument of Hindu communalists will gain more credence. We must take the debate
to a different plane, argue for plurality within the same code. The whole issue
must be re-framed to create a reformists v/s status quoits polarisation,"
argues a leading feminist from Bombay who preferred anonymity.
“The moment we do this and show that
Hindus, and Hindu males also benefit from preferential treatment like the
income-tax exemption granted for the HUF, communalists of all hues will unite
together on the same side of the fence."
Others like noted researcher and Bohra
reformist, Asghar Ali Engineer feel that 'it is not, strategic at this stage to
talk I of uniform civil code as it may be misunderstood.’ But he is in complete
agreement that principles of gender justice must be fought for. 'If on this question
the individual communities, whoever they are, do not take the initiative then
the State may have to take step,” he adds.
The first viewpoint argues for a
comprehensive cote on personal laws based on the best provisions of existing Muslim,
Hindu, Christian or secular-western laws as the only practicable solution This,
it is argued, is not merely desirable but also more feasible in practice since
the trappings of tradition, custom and faith would make it very difficult for women
to seek justice under separate personal laws; The second position maintains that
reform and codification of the existing personal laws is more realistic as it
would be more easily accepted by different
communities; this would not threaten
ethnic and religious identities: and rights
concerning marriage, divorce and inheritance
that are so much a matter of custom, tradition and religious belief would be easier
for a larger numbers of women to assert. Either way, women's organizations and
all secular-democratic forces would do well to urgently initiate and alter the
terms of the debate. Failure to do so now will leave them as paralysed when the
'One Country, One law' demand builds into a storm as they were when the kar
sevaks assembled in Ayodhya in December. 1992.
BOX
Diversity
within personal laws
The Hindutvavaadi clamour for a
uniform civil code is justified on the ground that it will help bring “national
interation".
How a commonality in personal laws can
realise this ideal when a common criminal law has failed in eradicating crime
is a question only they can, answer. Brahmanical cultural hegemony, not
national integration, is more likely to be their real objective.
The oft-peddled argument of the
saffron camp is based on yet another falsification: except for the minorities a
uniformity in personal laws already exists. In fact, there is a lot of diversity
within all the existing personal laws.
For example,
# Despite the Hindu Marriage act,
customary law still works as far as divorce is concerned: if you can prove it
is a custom, out of cow? divorce is possible Both
HMA and Hindu Succession Act allow many other customary laws.
# Tribals
who form 8 per cent of the population are governed by customary tribal law: Among
the Santhal and Bhil tribals, women cannot hold property. Its only now that
they have started demanding protection against polygamy. .
# Christians
in Assam and Coorg and other Christian tribes in Bihar and Orissa have been application
of the Indian Succession Act, 1925.
# Even
the Shari'at Act of lB37, 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 and succession laws still 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 Interests of
uniformity."
# Muslims
of Kerala have retained their marrumakadaysm system. It is not shared by
Muslims in other parts o India.
