Uni­form Civil Code, Gen­der­just ice and Per­sonal Laws .......................................

Putting Things into Per­spec­tive

Libertatem Magazine - - Content - By Nada Zaim Faruqi

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 gen­der­just 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 re­spon­si­bilty.

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 is­does 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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