Gender Justice And Equality Not Communally-Defined 'Uniformity'

WHILE fully supporting the Muslim women’s groups in their struggle for abolition of various patriarchal practices in Muslim Personal Laws, the bid to open the debate on ‘Uniform Civil Code’ must be viewed with caution and opposed in the current communal climate.

The manner in which the Law Commission and the NDA Government frame the issue of Uniform Civil Code and reforms in personal laws suggests that they are concerned more with imposing a communally-defined uniformity on minorities in the country, rather than address concerns of gender justice. The communal framing of the debate does serious damage to the urgent questions of gender justice.

BJP and RSS propaganda of ‘One Nation One Law’ is a direct assault on the Constitutional norms of respect for India’s religious and cultural diversity. This propaganda implies that it is only the personal laws of the minorities – especially the Muslim minority – that need reform – and that ‘Uniform Civil Code’ is a matter of bringing Muslim or Christian personal law in line with Hindu Personal Law.

In fact, most religious and secular personal laws governing marriage, divorce, inheritance and succession are in need of reform to bring them in line with Constitutional norms of gender justice and equality.

From within the Muslim community itself, there have for long been demands for scrapping of the practices of triple talaq and halala that are inscribed in Muslim personal law. Unfortunately, the Indian State and ruling parties have been cynical and opportunist rather than principled in their obligations both towards women’s rights and the rights of minority communities. The Supreme Court verdict in the Shah Bano case was overturned by a Congress Government in a bid to pander to conservative leaders of the Muslim community, even as the same Government pandered to Hindutva by opening the locks of the Babri Masjid. The BJP gave the demand for a Uniform Civil Code a distinctly communal tone and colour – leading most women’s movement groups to emphasise that they demanded gender-just reform in diverse personal laws – preferably reform from within religious communities themselves – rather than imposition of Hindutva-tinted uniformity.

In 2015, in the course of a Supreme Court hearing on Hindu women’s succession rights, the matter of discrimination faced by Muslim women also came up. In response the SC ordered the filing of a PIL on ‘Muslim Women’s Quest for Equality.’ Subsequently there have been several instances of Muslim women who approached the Supreme Court seeking that the provisions of triple talaq and halala be struck down as unconstitutional. The All India Muslim Personal Law Board, responding to these petitions in Court, have argued that the Court cannot encroach on the domain of personal laws. Meanwhile the Law Commission has issued a questionnaire to reopen the debate on the need for a Uniform Civil Code – and the AIMPLB has refused to participate in this process, deeming it to be part of the BJP Government’s communal agenda to undermine diverse personal laws and impose uniformity.

The Law Commission questionnaire’s format is undoubtedly flawed and biased, and misgivings about its agenda have a strong foundation. By reopening the issue of a Uniform Civil Code and polarising the discussion for or against the UCC, the Law Commission is only furthering the communal agenda of the ruling party. The BJP that sheds crocodile tears for discrimination faced by Muslim women is the same party that colludes in the rape and murder of Muslim women during communal violence in Gujarat and more recently Muzaffarnagar.

The vociferous demands by a variety of Muslim women’s groups and individual Muslim women for reforms in personal laws are an extremely welcome development. These groups (such as the Bhartiya Muslim Mahila Andolan, Bebaak Collective and others) and individual women have put both the communal BJP as well as the patriarchal AIMPLB on notice. They have made it clear that they will no longer brook any delay in addressing their demands for equality and justice. If the self-proclaimed custodians of Muslim personal law prove unwilling to heed the demands for change, they have asserted their rights to approach the Courts and the State for justice.

The AIMPLB is defending the indefensible – and ignoring the fact that practices like triple talaq are not in place even in many Islamic countries, and are not recognized by many Muslim sects within India also.

There are some opinions that these women’s groups and individuals, by approaching Courts, have opened the door to the slippery slope towards a Uniform Civil Code, which in the present context of communal intimidation and violence can only be a bid to destroy diverse personal laws especially of religious minorities. These arguments do not hold water.

The argument of ‘change from within communities’ can carry weight only if backed by a will by the self-proclaimed custodians of Personal Laws to heed the demands for change being made by women from within the communities. The AIMPLB has stonewalled all attempts at scripting change in Muslim Personal Law, leaving Muslim women with little option but to approach the Court. The onus for strategising against imposition of a Hindutva-scripted UCC must be placed primarily on the AIMPLB rather than on the women’s groups. If the AIMPLB is serious in its concerns about the principle of achieving changes in personal laws with minimum State or judicial intervention, it must delay no further in heeding the demands of the Muslim women’s groups for progressive reforms in personal laws, and it must withdraw its atrocious affidavit in the Supreme Court that reeks of disrespect for women’s rights, personhood and dignity.

The recommendations of the High Level Committee (appointed by the Women and Child Development Ministry) on the Status of Women can be useful in orienting gender-just changes in all personal laws. Some of the key recommendations are summarized below.

The Left and progressive forces in the country, while firmly opposing any agenda of forced imposition of a communally scripted Uniform Civil Code, must support the ongoing women’s movements demanding personal laws that uphold women’s equality and dignity.

Recommendations of High-Level Committee on Reforms in Personal Laws

(Excerpts from recommendations of the High Level Committee report on Status of Women in India, headed by Pam Rajput. These recommendations give an idea of the scope of reforms needed to ensure that personal laws do not discriminate against women.)

The Committee opines: “Article 44 of the Constitution requires the State to endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. This aspect however seems to have been given a new meaning through the enactment of laws such as the Protection of Women from Domestic Violence Act 2005, the Prohibition of Child Marriage Act 2006 and the Medical Termination of Pregnancy Act 1971, all of which are applicable to women irrespective of their religion. Thus, the way ahead to safeguard women’s rights appears to be two-pronged, firstly through a step-by-step approach of either through enactment of laws which are universally applicable to women of all communities and secondly through introduction of a particular aspect of reform in all existing laws….

“… The approach should be not one of ensuring that there is one law for all, but rather, that all women, whether they choose to be governed by secular laws or their personal laws, enjoy equality which the Indian Constitution promises them. This requires addressing several aspects in the legal domain in specific ways rather than a diktat of ‘uniformity’, which is conceived of in fundamentalist/majoritarian ways.”

It recommends that “the State recognizes the unpaid contributions of women in their families,” and “enact laws in areas of matrimonial property in which no personal laws exist and ensure women’s right to property and assets in the natal and as well as in the matrimonial home.”

It recommends deletion of the provision of “restitution of conjugal rights” which is used to deny women’s claim for maintenance, and “is against human rights of a person as no one can be or should be forced to live with any other person.”

It notes the gender bias in interpretations of ‘cruelty’ in divorce cases by the Supreme Court, and the ‘paternalistic role’, whereby “courts…looked upon men’s education and social status fabvourably…Women’s education and work, however, seemed to detract from their role as wives and mothers.” It sought better definitions of ‘cruelty’ in HMA and other laws, also that “a provisio be added to the definition of cruelty stating that the patriarchal notions of a wife’s behaviour will not constitute cruelty.” We may recall here the recent shocking Supreme Court judgement which declared that a wife demanding that her husband live separately from his parents amounts to ‘cruelty’ and can be grounds for divorce, since a son is obligated to care for his parents and parents need a son to care for them.

The Committee recommended changes in archaic and sexist adultery law that treats the wife as property of the husband; and amendment of the law to inclue all children including those born outside wedlock, also that the term “illegitimate” should not be used in any statute or document.
With regard to the Muslim Personal Law, the Committee observed that “Some of the key features of a Muslim marriage which seek to protect rights of women in marriage are provisions like the mehr; the right to personal allowance or maintenance (mewa khori) and right to enter into a pre-marriage agreement.” But it notes that the existing Muslim Personal Laws “provide very limited and partial solution (sic) to the existing socio-legal problems such as marriage, divorce, custody of children, polygamy etc.” It also notes that socio-cultural change has eroded the right of mehr to a “mere token being replaced by exorbitant demands in the form of dowry.”

The committee notes that marriage is contractual in Islamic law, allowing both women and men to divorce and remarry, and providing procedures for divorce. However, it notes that the right of husbands to unilaterally divorce their wives by pronouncing talaq thrice in one sitting leaves Muslim women extremely vulnerable and insecure. It notes that the Supreme Court has invalidated triple talaq in the Shamim Ara case of 2002. It recommends a complete ban on the oral, unilateral triple divorce (triple talaq).

The committee notes that Muslim law allows for polygamy and calls for regulating polygamy by “stiplulating strict conditions … and by stating that no man should be free to take another wife according to his whims.” But it adds that “by regulating polygamy, we should not end up subjecting Muslim women to a similar plight as Hindu women who are trapped, knowingly or unknowingly, in bigamous marriages or ‘marriage like’ relationships. This is an important concern which needs to be clearly stated while suggesting reforms within personal laws.”

The committee also recommends that the amount of mehr should be fixed as not less than the amount of the groom’s annual income and payment of maintenance to wife and children be made mandatory both during marriage and in the event of separation or divorce.

The committee does not support codification of Muslim personal laws since “many a times codification of laws affects its flexibility which may be against the interests of women. It can lead to imposition of traditions which deny justice and equality to women and have a negative impact on women’s human rights. Therefore, instead of codifying laws, the existing laws should be amended to include progressive reforms in line with constitutional values like equality and justice.

It also recommends various changes in the Christian and Parsi personal laws, laws governing marriages with foreigners or NRIs, and also in the secular Special Marriages Act. It recommends reduction of the notice period in the SMA from one month to 7 days, and that the notice not be displayed publicly since it puts young people contracting marriages of choice at risk. It recommends that the exception for Hindus marrying under the SMA should be deleted, which means that for everyome who marries under the SMA, succession would be governed by the Indian Succession Act, not the Hindu Succession Act which gives tax exemptions to the Hindu Undivided Family. It also suggests deletion of the tax exemptions to the Hindu Undivided Family.

It recommends that the Hindu Adoption and Maintenance Act should be revised since it “views maintenance as an award to be given to deserving wives alone and not as an entitlement.” It recommends deletion to “any reference to conduct in maintenance provisions” since “Maintenance has nothing to do with conduct and is a right which accrues to the woman because of the loss of capacity to work and the loss of opportunity that she suffers from as a result of her contribution to housework and as a result of her being involved in care work.” It recommends that all judges and Magistrates adjudicating the rights of Muslim women be made cognizant of various landmark judgements of the Supreme Court that have safeguarded the rights of Muslim women to maintenance post divorce.

It recommends that Section 125 CrPC be amended to delete the clause “which allows maintenance to be stopped if the woman has been unchaste or has refused to live with her husband.” It also recommends several measures to protect the rights of women (including Hindu women) in bigamous or technically defective marriages. It also recommends the framing of guidelines to correct the paltry amounts of maintenance and the lengthy time and procudural obstacles for obtaining maintenance.

It recommends equal provisions for both parents in Hindu, Musllim, Christian and Parsi guardianship and custody laws which still fail to give rights to mothers as natural guardians of the child.

The Committee recommends many changes in Hindu inheritance laws also. State laws governing agricultural land and tenancy rights continue to exist and be used to undermine women’s rights to inheritance of such property despite an amendment to the Hindu Succession Act in 2005. The right to will away property is also used to undermine women’s right to inherit. Daughters are coerced into “giving up” their rights as coparceners – provisions are needed to restrict this. Preference for male line in recognition of heirs needs to be deleted, and disqualification from inheritance rights of descendants of a person who has converted to another religion from Hinduism need to be deleted. A statutory definition of ancenstral property is required. Discrimination against women and preference for male line in inheritance in Muslim laws need to be amended, as also in laws pertaining to Christian and Parsi women. Land allotted by Government under various laws should be in joint names of husband and wife, and treat sons and daughters as equals.

Statement On Triple Talaq And Uniform Civil Code

(Released on October 20, 2016 by a large number of Muslims and people of Muslim descent)

We, ordinary citizens, artists, intellectuals, writers, poets from the Muslim community, want to emphasis that the Muslim community in India is diverse, plural and heterogeneous. No single organization or group of people/organisations can claim to speak on behalf of the whole community. Muslims and people of Muslim descent living in India follow different customs and celebrate a large number of festivals some common to all and some different from each other depending on the local cultural practices of the region where they reside. They speak different languages and engage at multiple levels of the thought process.

We Muslims and people of Muslim descent want to unequivocally state the following:

1. We are against the instant arbitrary triple talaq as practiced in India and we support the demand of the Muslim women to abolish it.

2. The present regime and their earlier avatars have used Uniform Civil Code as a stick to frighten and demonize the Muslim community and polarize opinion by projecting that the Muslims of this country are backward, anti-women and not open to any progressive laws. Uniform Civil Code has been always been projected by such regimes and right wing politics as a Hindu v/s Muslim tool. The fact of the matter is that many of the personal laws irrespective of which religion they belong to are archaic and anti-women.

3. We do not have any faith in the sudden found ‘love for women’ and ‘gender justice’ as articulated by Venkiah Naidu recently. Since the new regime has come to power we have seen heavy budget cuts on schemes for women, we have heard horrendous statements about women which have gone unopposed by the members of the regime, and we have witnessed growing violence against women as well as dilution of gender just laws such as the Domestic Violence Act (section 498A).

4. We do not believe that in a country with over 4500 communities and over 400 spoken languages uniformity or tweaking of present unequal laws can ensure equality for men and women.

5. We believe that social change is a slow process for which conditions on the ground need to be created where people have basic needs of housing, employment, food and good education. There is a need to first bring in progressive, gender just enabling laws which can be accessed by people from all religions. We have a Special Marriage Act under which people from any community or across religious communities and castes can marry each other. People have a choice to opt for Special Marriage act ( which is also being diluted by various right wing state governments by adding caveats to it) , similarly JJ Act has now provisions for people of any religion to adopt a child whether their personal laws allow it or not. More such laws which give equal rights to women in property and matters of marriage, divorce, inheritance, custody of children etc should be brought in.

6. We also strongly disapprove of the highly objectionable affidavit filed in the Supreme Court by the All India Muslim Personal Law Board regarding the triple talaq matter.

7. We believe that to suppress the progressive demands for equality, led by various Muslim women’s organizations, the most conservative sections of the Muslim community are creating a Shah Bano campaign like situation so that they can keep the women subjugated and strengthen the patriarchal stronghold on the Muslim women.

8. We appeal to all liberal, progressive sections of the Muslims as well as all other citizens to support the struggle of the Muslim women for reform and to expose the nefarious designs of both the present regime as well as of the patriarchal conservative Muslims who are colliding with the retrogressive forces to take the attention away from the most important issues and the failures of the present government on all fronts. 

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