Common code, uncommon challenges
By Flavia Agnes
5 January 2016
Does the debate on the Uniform Civil Code in India uphold a majoritarian value system?
Family laws in India are governed by personal status laws which are based on religious affiliations. While some are state-enacted statutes, others are based on customary practices or dictated by religious precepts. As these diverse laws are confusing, when India adopted its Constitution in 1950, a provision regarding the enactment of a Uniform Civil Code (UCC) to govern family laws was included in the Directive Principle of State Policy as an endeavour towards progress and development from an earlier regime of feudal and status-oriented personal laws. While the main concern was to enact a secular, civil and gender-just family law, over the last six decades, the UCC has become embroiled in the majority-minority political dynamics of the country and it has been used as a stick to beat the Muslim minority within a Hindu-majority state.
While the demand for the UCC was pushed during the 1980s and 1990s by liberal, modern and progressive intellectuals, after the communal attacks upon Muslims in the state of Gujarat in 2002, the issue was relegated to the back burner. But the debate came to centre stage again when the Supreme Court, in a judgment in October 2015, gave a call for enforcing the UCC in the context of Muslim polygamy and triple talaq (unilateral and arbitrary oral divorce), which is sanctioned under Muslim law. While there is widespread reportage about these comments, the core issue which was litigated before the Supreme Court, denial of rights to ancestral property to a Hindu woman, remained obscured.
The constant projection of only the discriminatory provisions under Muslim law by the media tends to project it as archaic and backward while the Hindu Law is perceived as progressive and gender-just. To dislodge this misconception, we need to examine the personal laws in their historical context of constitutionalism and legal pluralism; one that takes into account jurisprudential negotiations between community and state, and between codified laws and more fluid customs. For this, we must understand the system of personal laws in India before entering into a discussion on the pros and cons of the enactment of Article 44, or the Uniform Civil Code.
The resulting Acts were neither Hindu in character nor based on modern principles of equality, but reflected the worst tendencies of both.
With its rich and diverse cultural heritage, religious beliefs and customary practices, India provides a vast, complex, and at times, contradictory field of personal laws where the traditional coexists with the modern, and the scriptural intermingles with the statutory. The term ‘personal laws’ was first introduced during the colonial period, when a system of pre-colonial, non-state arbitration was being transformed into a state-regulated, adjudicative system.
The manner in which women lost many of their customary or scriptural rights becomes evident when looked at from the prism of women’s rights. At one level, several legislations enacted under the British Raj carved out a space for men’s individual property rights within a system previously based on joint family property, and laid the ground for the introduction of a capital mode of production in an urban setting. At another level, during litigation, women lost their traditional rights of stridhan (right of a woman over her separate property within a regime dominated by succession through the male heirs), a concept recognised by both Hindu customary and scriptural law.
The decisions of various high courts as well as the Privy Council (the final court of appeal during colonial rule situated within the House of Lords of the British Parliament), granted women limited rights over their stridhan property and assigned the property to the male heirs of their husbands, in contrast to scriptural dictates which awarded a line of succession to stridhan property through the female line of descendants. The British administrators, familiar with a system of denial of property rights to married women in England, could not grasp the complex system of stridhan property.
To undo the harm caused by these adverse rulings of the Privy Council, the Hindu Women’s Rights to Property Act in 1937 was enacted, which awarded a limited right of inheritance to Hindu widows. Around this time, other important statutes which were enacted were the Muslim Personal Law (Shariat) Application Act, 1937, to protect the property rights of women enshrined in the Quran; the Dissolution of Muslim Marriages Act, 1939, which granted Muslim women the right of statutory divorce; and the Parsi Marriage and Divorce Act, 1936, which widened the grounds for divorce. Indian Christians were governed by the Indian Divorce Act and the Indian Christian Marriage Act, enacted in the latter half of the 19th century, which were based on the English matrimonial statutes that granted a limited right of divorce.
Hindu law reforms
After the promulgation of the Indian Constitution, the first laws which were enacted along a religious identity were the Hindu law reforms of the 1950s. The main focus of the reforms was to grant women equal inheritance rights and to transform sacramental Hindu marriages into contractual obligations by introducing divorce and other matrimonial remedies, along the lines of English matrimonial laws. The reforms were met with severe opposition from conservative nationalistic leaders who criticised the notion of divorce as well as the concept of granting property rights to women. However, the reforms were pushed ahead, foregrounding the liberation of women as its primary plank. The codified laws continued to reflect a patriarchal ideology and validated Hindu rituals.
Although the reforms can be construed as a clear violation of Article 14 and 15 of the Constitution (equality and non-discrimination on the basis of religion), it must be viewed in the context of the pressing need for granting rights to Hindu women who were lagging behind women of other religious groups. Hence, social reformers galvanised the campaign in the decade immediately preceding independence, and sustained pressure gave rise to legal reforms in the mid-1950s.
The constant projection of only the discriminatory provisions under Muslim law by the media tends to project it as archaic and backward while the Hindu Law is perceived as progressive and gender-just.
The reforms privileged modernisation, codification and unification as key elements of progress and development. Hence, several pro-women customary practices were discarded for the sake of uniformity. Since there was a strong political resistance to reforming Hindu laws, the state had to perform several balancing acts. Crucial provisions empowering women had to be diluted to reach a level of minimum consensus. While projecting the reforms as pro-women, male privileges had to be protected. While introducing modernity, archaic Brahminical rituals had to be retained. While claiming uniformity, diverse customary laws had to be validated. While usurping the power exercised by religious heads, the needs of emerging capitalism had to be secured. Only by adopting such manoeuvring tactics could the state reach its goal of enacting the statutes. The resulting Acts were neither Hindu in character nor based on modern principles of equality, but reflected the worst tendencies of both.
Provisions of equality and non-discrimination enshrined in a modern constitution on the one hand, and the prevalence of gender-discriminatory personal laws on the other, has led to a contestation between individual claims to equality, and the right of religious communities to assert themselves as collective units of a democracy. Indian courts have adopted various approaches to circumvent these complexities. Initially adopting a stance of non-interference, the courts ruled that the personal laws are not amenable to the test of Part III of the Constitution, which enshrines fundamental rights.
The Bombay High Court in 1952, in State of Bombay vs Narasu Appa Mali, ruled that personal laws are not ‘laws in force’ under Article 13 of the Constitution as they are based on religious precepts. Hence, the principles enshrined in Part III of the Constitution cannot be applied to them. The petition was in defence of the prerogative of the Hindu male for polygamy. The petitioner pleaded that the norm of monogamy imposed upon him by the Bombay Prohibition of Bigamous Marriages Act, 1946, violated the provision of equality under Article 14, non-discrimination under Article 15, and freedom to practice religion under Article 25, of the newly-enacted Constitution on the ground that Muslim men could contract polygamous marriages. For several decades, this judgement became a stumbling block to test the constitutionality of personal laws, as several courts followed the principle laid down by this ruling.
In later decades, the courts tested the personal laws against the touchstone of fundamental rights. The approach adopted has been either ‘reading down’ a statutory provision, re-interpreting it to harmonise with Part III of the Constitution, or a limited striking down of the offending section. This approach is evident in cases of statutory personal laws. In Mary Roy vs State of Kerala, 1986, the Christian law of inheritance which discriminated against daughters was challenged and struck down. But this was based on the technical ground that after Independence, the laws enacted by the erstwhile princely states that had not been expressly saved had been repealed.
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (Muslim Women’s Act or MWA for short) was challenged in Danial Latifi vs Union of India, 2001. This law was passed after the controversial ruling in the Mohd. Ahmed Khan vs Shah Bano Begum, 1985 case where the Supreme Court had upheld the right of a divorced Muslim woman to post-divorce maintenance. Some adverse comments against Islam led to a backlash from the orthodox Muslim community and under pressure, the then-ruling Congress government enacted a law to exempt divorced Muslim women from the purview of the secular provision of maintenance. This move was perceived as retrograde by human-rights groups. However, the apex court in 2001 upheld the constitutional validity of the enactment by inscribing it within a gender-just interpretation. The court explained that the Act had substituted the earlier right of recurrent maintenance under Section 125 of the Code of Criminal Procedure (Cr.PC), with a new right to claim a lump sum amount as a divorce settlement. If the husband fails to make such a settlement, a divorced Muslim wife has the right to approach the court for enforcement of the right under Section 3 of the Act. This was seen as a landmark ruling which supported the economic rights of divorced Muslim women.
British administrators, familiar with a system of denial of property rights to married women in England, could not grasp the complex system of stridhan property.
Another important intervention in the realm of Muslim law was the Supreme Court ruling in Shamim Ara vs State of U.P., 2002, which invalidated arbitrary divorce and laid out clear guidelines as per Quranic injunctions for pronouncing talaq, so that Muslim women are not deprived of their right to maintenance while proceedings are pending in court. This ruling outlawed the fraudulent tactics adopted by lawyers, of sending a talaqnama (divorce deed) along with their reply to the maintenance application, under a misconceived notion that a divorced Muslim woman is not entitled to maintenance or economic settlement. In this case, the Supreme Court upheld the Quranic stipulation and overruled the interpretations of it in various legal texts of Muslim law, as well as the rulings of colonial courts, in defence of gender justice.
The enactment of UCC
The genesis of the demand for uniform family law also came from nationalist women’s groups of the pre-Independence era, who had a gender justice perspective of it. They raised this issue within the larger political debates of the Indian National Congress. At this stage, the UCC was perceived to be an optional code that could gradually replace the various personal laws. A decade later, within the Constituent Assembly debates, the focus shifted to the concerns of nation-building. At this historical juncture of India’s freedom, the overarching concern of the founding fathers was the formation of the new nation-state and its smooth governance. Within this paradigm, the provision of a UCC was debated primarily in the context of the authority of the state to regulate civil life and family relationships of the majority and the right of minorities to their cultural identity. Within the political turmoil surrounding Partition and the bloodbath that followed, an insecure Muslim minority had to be reassured of their right to religious and cultural freedom.
What emerges is a duality of concerns for the newly-evolving Indian state. At one end, it was deemed necessary that the various sects, castes, and tribes – from the erstwhile princely states, tribal kingdoms, and the British Raj – be integrated by enacting a uniform set of family laws through a concept of ‘legal Hinduism’. The flip side of this objective of smooth governance was an assurance to minorities (not just Muslims, but also Christians, Parsis, Jews, linguistic groups and tribal communities) of their right to separate religious and cultural identity, symbolised by the continuance of their personal laws or customary practices, by incorporating Articles 25-30 (or the Right to Freedom of Religion) as fundamental rights. The minorities’ rights sub-committee headed by Sardar Patel repeatedly assured the minorities that their interests would be safeguarded as per their satisfaction within the new nation-state.
In the years immediately following Independence, the matter of enacting the UCC did not figure prominently in any important national debate. While enacting a code for Hindus, the attempt was not to abandon ancient scriptural law or established community customs, but to assimilate them within a Code along with principles of English law. And, while doing so, to establish the law-making authority of the newly-independent nation, which was, until then, vested with the heads of various religious sects.
Despite this, the misconception that Hindus have forsaken their personal laws and have embraced a secular, egalitarian and gender-just code that must now be extended to minority communities to liberate ‘their’ women persists. Adverse comments against minorities in some Supreme Court rulings have added fuel to this tension. For instance, in Sarla Mudgal vs Union of India, 1995, while examining the issue of polygamy by Hindu men converting to Islam, the Supreme Court, endorsed this view and commented, totally out of context, that oneness of the nation, as well as loyalty to it, would be at stake if different minority groups follow different family laws. While it is a matter of debate whether a UCC will ensure national integration and communal harmony, such comments are sometimes blown out of proportion in the public sphere, and pose insurmountable obstacles in the path of family law reforms from the perspective of gender justice.
Scope of legal pluralism
It is important to understand the pluralistic scope of India’s Constitution while debating the enforcement of a UCC under Article 44. Rather than a unitarian scheme, the Constitution provides for diversity and cultural plurality. While sections of Fundamental Rights and Directive Principles are held to form the basic structure of the Constitution, the courts have also provided for their stratification, and in this stratification, Article 44 cannot be viewed as a priority concern for the country.
The enactment of a UCC is not a categorical constitutional obligation. Both the legislature and the courts must be wary of the serious repercussions of attaching undue significance to the same during adjudication and while initiating reforms within personal law. Personal law as a socio-legal institution can co-exist alongside the written constitution and legal standards. Doctrines and principles need to be evolved to deal with specific cases in which personal laws come in conflict with certain provisions of the Constitution by invoking the doctrine of multiculturalism and a critical understanding of democracy.
Faizan Mustafa, an expert on constitutional law, argues that the abolition of personal laws of minorities, or bringing it in line with so called reformed personal law of the majority, would not be a positive move for enactment of a UCC. Such a move would reinforce the ‘majoritarian construction’ of personal laws of minorities and will be marked as a serious erosion of secular values; it will obstruct the scope to bring into public domain the discriminatory character of the personal laws of the majority. Hence, he concludes, the approach adopted in South Africa, where the issue of customary law has been tackled politically by ensuring active participation of all the communities during the process of law reforms would be better suited for India.
India’s constitutional framework envisages the formation of a diverse and accommodative political society that guarantees the right to equality and respect not only to individuals, but also to varied religious and cultural groups. It protects the rights of citizens having a distinct language, script or culture, to conserve the same. All minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice and to receive equal grants from the state for running them. They are also free from certain obligations which non-minority institutions must fulfil.
Advocating the premise of legal pluralism, M P Singh, another expert on constitutional law, argues that legal uniformity is a myth while legal pluralism is the reality. In other words, legal diversity is natural while legal uniformity is forced. Communities live by their group norms, which differ from region to region and from group to group. He insists that “our Constitution fully recognises and accommodates the social and legal heterogeneity of the country.”
India’s courts, then, have granted recognition to the prevalence of personal or customary laws even while testing them against the touchstone of fundamental rights. Simultaneously, they have recognised the authority of Parliament and state legislatures to convert personal laws into state laws. Arguing against the enactment of a UCC, Mustafa states that the enactment of a UCC will merely generate passions and communal disharmony. The better course would be to bring about piecemeal reforms. Amendment to a community’s personal law with a view to bringing about changes for betterment is one thing. But to tinker with the enactment for the sole purpose of introducing ‘uniformity’ is another issue. The former may be an act of reform, while the latter, an arbitrary action that minority communities may reject.
The way forward
Many scholars endorse the views advanced by Mustafa and hold that a step-by-step approach towards uniformity of rights would be a more effective strategy to break away from the communally-vitiated identity politics within which the controversy over the enactment of a UCC appears to be entrapped at present.
Another way out appears to be an optional code but here we must examine the Special Marriage Act, 1954, which suffers from disuse due to its stringent procedure for registering the marriage. No efforts seem to have been made to make this law relevant to those venturing into inter-religious marriages, which have now been given a communally-tinted term – ‘Love Jihad’. So despite the prevalence of this Act, conversion and a hasty marriage seems to be the only option for those venturing into marriages of choice against the wishes of their parents, since within a communally-charged atmosphere, the one-month notice period stipulated under the Act may pose a threat to life and limb. There is an urgent need to modernise and popularise this statute.
Another strategy to break the stalemate is to enact specific legislations which will apply to women uniformly across communities. The Protection of Women from Domestic Violence Act, 2005, is an example. This legislation has reframed women’s rights within the family by introducing the statutory right to shelter and to a violence-free life. Women in various situations – married women, divorcees, widows, those in ‘marriage-like’ relationships and in natal families – can access its provisions. The statute adopts an inclusive, rights-based, humanistic approach.
The Prohibition of Child Marriage Act, 2006, is another statute which prescribes a uniform age of marriage. It does not invalidate marriages but provides for its dissolution within two years of its solemnisation. It is a prudent provision that neither renders the marriages of minor girls invalid, nor deprives women of their right of maintenance and legitimacy.
The provisions under Section 125 Cr.PC, the Protection of Women from Domestic Violence Act and the Muslim Women’s Act, have helped to secure the maintenance rights of women across communities. The outlawing of triple talaq in the Shamim Ara ruling has proved to be additional armour for protection of Muslim women’s rights. With these developments there appears to be a gradual but definitive move towards uniformity of rights.
One major area of disgruntlement, as evidenced in State of Bombay vs Narasu Appal Mali that continues to the present, is the perceived ‘appeasement’ of Muslims by privileging Muslim men with the option of bigamy or polygamy and the resulting ‘disentitlement’ caused to Hindu men through the imposition of monogamy. This discontentment gets projected in public discourse as a concern for the pitiable plight of Muslim women, who need to be liberated from their barbaric laws through the enforcement of a UCC.
However, outlawing polygamy by enacting a UCC or codifying the Muslim law does not appear to be an effective solution to the problem, going by evidence at the ground level as well as hard statistics, regarding prevalence of bigamy among Hindus. Official reports reveal that despite the statutory restraint, incidents of bigamy are more common among Hindus (as also with Buddhists, Jains, Sikhs and other sects) than Muslims. Ironically, the worst sufferers of this trend have been Hindu women, who are denied their basic right of maintenance and sustenance, when the husband pleads that the woman is his second wife.
In comparison, the Muslim woman in a bigamous marriage fares better than her Hindu counterpart, since she is entitled to rights of maintenance, shelter, dignity and equal status. She cannot be discarded as a used doormat. The Hindu second wife, meanwhile, is not only disentitled of her rights, but is also divested from her ‘wife’ status and humiliated as ‘mistress’, ‘keep’ or ‘concubine’ in judicial discourse. The comments made by Justice Markandey Katju in 2010, where he referred to women in live-in relationships as “keeps” and “mistresses”, in D.Velusamy vs D.Patchaiammal are an example.
Contrary to the feeling of perceived disentitlement, it is the Hindu husband who enjoys the privileged position of denying maintenance to a woman with whom he has cohabited, and/or produced children with, merely by pleading during court proceedings that he has violated the mandate of monogamy, without any criminal consequences visiting him. A Muslim husband in a polygamous relationship cannot similarly escape from his legal obligation of providing maintenance to each of his wives, since the option of pleading that he has divorced her and hence he is not obligated to maintain her, has been closed on him through the Danial Latifi and Shamim Ara rulings.
The reported cases in law journals bear testimony to the frequency with which Hindu men adopt this tactic (of taking a second wife and denying maintenance to the first), while sympathetic and sensitive judges are constantly trying to find ways in which to secure the rights of women entrapped in such marriages and to provide them with dignity.
In 2004, the Supreme Court tried to contend with this complex problem in Rameshchandra Daga vs Rameshwari Daga. In the case, maintenance was awarded to a woman whose husband had argued that their marriage was not valid on the ground of a previous subsisting marriage. The court asserted that despite codification and introduction of monogamy, the reality on the ground had not changed much and that many Hindu men, like Muslim men, continued to be bigamous. It was further stated that though such marriages are illegal as per the provisions of the codified Hindu law, they are not ‘immoral’, and hence, a financially dependent woman cannot be denied maintenance on these grounds.
It is important to understand the pluralistic scope of India’s Constitution while debating the enforcement of a UCC under Article 44. Rather than a unitarian scheme, the Constitution provides for diversity and cultural plurality.
More recently, in 2013, in Badshah vs Sou. Urmila Badshah Godse, the Supreme Court upheld the right of a Hindu woman who had been duped into a bigamous marriage and thwarted her husband’s attempt to subsequently deny her maintenance. The judgment emphasised that while dealing with the application of a destitute wife, the Court is dealing with the marginalised sections of the society. “The purpose is to achieve ‘social justice’ which is the Constitutional vision, enshrined in the Preamble of the Constitution of India… Therefore, it becomes the bounden duty of the Courts to advance the cause of social justice,” the judge commented. If Hindu women, like Muslim women, become entitled to rights, the destitution and humiliation which they suffer will be greatly reduced.
In November 2015, an interesting case came up before the Gujarat High Court. A girl and her lover, who happened to be a married man, were brought before the court because of a habeas corpus petition filed by the girl’s father. To avoid any obstacle to living with her boyfriend, the girl willingly gave up her right to her parental property. The wife of the man, an illiterate woman, was more worried about ensuring her economic security than challenging her husband’s polygamous relationship. The husband gave up his right to his ancestral property in her favour. Further, both his father and brother assured the court of the immediate transference of the husband’s share of land to his wife and children. They also gave an undertaking stating that they would take care of the education and marriage of the children. The matter was settled within minutes, and the man and his girlfriend were able to live in a polygamous relationship, with the blessing of the high court and the consent of the first wife.
One wonders whether the lady, who is madly in love, is aware that her live-in relationship has no legal validity and she is devoid of all her rights. Had the parties been Muslim, she could have performed a nikah which would have secured her rights and maintained her dignity. This case starkly highlights that the issue of polygamy rests on economic security rather than moral posturing by those who oppose it.
Enforcement of a Uniform Civil Code cannot be viewed in a simplistic manner only as outlawing polygamy and triple talaq among the Muslims. The issue is far more complex and would require a detailed analysis of the gaps within existing laws of all communities, from the perspective of women’s empowerment. Rather than excluding women from the realm of rights, we need to adopt an inclusive approach, using the constitutional provision of Right to Life under Article 21, which is the cornerstone of all fundamental rights. This would ensure that women at the margins are not deprived of their right to a life of dignity and sustenance by adopting moralistic principles which are alien to their cultural ethos and customary practices.
~Flavia Agnes is a feminist legal scholar and a women’s rights lawyer.
~This essay appeared in our December 2015 quarterly ‘The Marriage Issue‘.