UNIFORM CIVIL CODE AND GENDER JUSTICE
R. Rebecca Vasanthini Percy, IV Year of B.Com., LL.B(Hons), from Tamil Nadu Dr. Ambedkar Law University, School of Excellence in Law, Chennai.
The Earth consists of sundry countries and each country has distinct laws, culture, tradition and custom followed. India is one such democratic country which consists of rich heritage, culture, traditions, customs and usages. It is also contemplated as a secular country wherein each individual residing in the society can choose and follow any religion one likes.
Each and every religion has certain perceptible customs, traditions, scriptures and beliefs followed. Every religion has its own personalized law dealing with marriage, divorce, maintenance, succession and guardianship.
There are numerous cases brimming in bundles before the court of law each day regarding different personal laws and different grievances and redressals. The judges find it difficult to render judgments under each peculiar law as one personal law specifies certain procedure as legal whereas another personal law tell certain procedure as a sin. Women are mostly victimised under these circumstances as Hindu law specifies a second marriage without divorce as a crime whereas in Muslim law a man can marry maximum 4 women at a time and maintain them. In variance with thoughts and laws women are subjected to mental cruelty, and the harsh truth is that they should accept whatever is specified in their personal law. What is the remedy for this trammel?
Uniform civil code should be implemented keeping one single law applicable to all religions, which does not put at a disadvantage any gender nor does any gender need to be victimised by various personal laws. Even though article 44 of the constitution specifies that the state should secure uniform civil code to all its citizens, it is yet to be implemented whereas the uniform criminal code is discharged irrespective of the religion or the personal laws which each religion contains.
PROBLEMS FACED BY WOMEN DUE TO PERSONAL LAWS:
India is a home for 8 major religions and faiths. Personal laws were executed in each religion so that every individual can live according to their faith. There are so many personal laws, but each law discriminates or limits the freedom of women from doing the second marriage, not getting share in the property while partition takes place, offering their bodies when her spouse calls, irrespective of whether she gives consent or not. These personal laws still remind us that India though achieved its freedom from the Britishers, yet it is not fully independent, and there is not much freedom among the feminine classes in the society. Women are subjected to various clampdowns under different personal laws, they are listed below as per each religious personal law.
Under Hindu personal law-
Under the Hindu religion there were a lot of traces that women were considered as goddesses, and many women were great sages and saints in the Upanishad and Vedas. Women played a tremendously important role in the olden times, and they were considered as a personage with spiritual wisdom. She stands as the highest form of dignity and purity, whereas after various customs and by the introduction of the personal laws they have very much limited power. Women were made not to step out of their houses and they were also considered as humans with lack of knowledge as they never considered the slant of women in any discussions. They became subjected and surprised only towards household work and taking care of the family members, in a simple form to say “a maid without salary”. The were considered as a property rather than a human being.
Consent of girls during marriage was not bothered nor considered as an issue. Suicidal, dowry deaths and killings is considered very common, and thus married life is not considered as equal partners as women are considered one step lower than men.
Under Muslim personal law
Quran was the first holy scripture which gave equal importance to male and female and also considered them robust and intelligent. They were given equal rights in property, ownership and inheritance. Certain Islamic people never agreed to this concept and by framing of personal laws, the women’s rights came to a standstill as they were subjected to serving their husband and children and also their education system was getting affected as they were given in marriage at a very young age immediately on attaining puberty.
A Muslim man is permitted to get married 4 times in a while, and during the Muta period he has no limitation, he can marry as much as he can. It is not the same as in the case of females as they are restricted in marrying only one male and they are also made to suffer just by imposing Triple Talaq on them. Even though the Quran does not support this divorce system, it still exists under the Muslim personal law.
Under Muslim personal law there was also another gruesome concept in which a wife should have to cohabitation whenever the husband feels. This law made the women’s discomfort and cries buried. They were psychologically tormented and physically abused according to her husband's own whims and fancies.
Regarding the concept of maintenance, the personal law holds that the women is entitled to maintenance amount only till the Iddat period, which is highly discriminatory.
Women were truly considered as a property as the boy was given in marriage only on acceptance of the dowry, and she had to agonize all her life with the person who harasses and tortures her.
Under Christian personal law
The Christian women were subjected to looking after their household, family and other family chores. They were supposed to cover their heads, and they had no right to speak in the synagogues or in public places. If they had any clarification towards the scripture, they were supposed to clarify it only with their husband and not with any other priests or other respectable people in the churches.
In the olden days they were not given the opportunity to talk or spread the word of Jesus Christ. Later on they got power to become nuns and pastors, and they preached in churches and synagogues. God has created everyone equal and in his own image, he never discriminated anyone on the basis of gender as there were bold and God-fearing ladies mentioned in the Bible like Ruth, Esther, Mary, Martha etc. So the personal laws made women to be subjected towards certain limitations.
Under Parsi personal law
The Parsis are the only class of people with 90% of literacy rate, but women are discriminated on the basis of sex, and they were not made to study in accordance with the religious personal laws. They were not involved in any other discussions and are considered as paucity in the field of knowledge.
The Zoroastrian women after divorce are not given maintenance from their ex-husband. They are supposed to live with their bridal money which is payable on demand.
Under Judaism Personal Law
As per Judaism, husbands are given more privilege than wives like they have the authority to divorce a woman and marry another, whereas the woman does not have such right. Women do not have the right to own property on their own except their father’s property through inheritance. A barren wife can be divorced without a second thought. The divorced wife does not have the right to get maintenance from her ex-husband.
NEED FOR UNIFORM CIVIL CODE:
The uniform civil code is the need for the hour, and it is mandatory to be encompassed because all the women’s rights will be equal and their dignity will not be lost. Right to equality is provided to women in par with men in the society. If the uniform code is not provided or implemented, then women’s right to equality and other social political issues faced by the women will be at stake.
In reference to the constitution of India-
Though article 44 of the constitution of India deals with the concept of uniform civil code, still it comes under part IV of the constitution (i.e.) under the directive principle of state policy, and so it cannot be forced to be enforced in the court of law. It is the prerogative right of each state to implement the code in their respective states.
Our constitution framers had knowledge about the gender discrimination and sexual inequality occurring in the society, and so they introduced article 44 in view that it would be administered later on by the states in which there are grave offences and injustice happening based on sexual inequality.
In fact, the judiciary has noticed many prominent cases and incidents which were happening in the society, and they have rendered judgements accordingly which does not lower the rights of women based on their gender. The judges also have pronounced various judgments with the need for implementing uniform laws for all religions and eradicating various personal laws. Some of the leading cases which discuss uniform code are as follows-
In the case of Mohd. Ahamed Khan V. Shah Bano Begum
The issue was whether should a Muslim husband maintain her ex-wife even after the Iddat period for which the judges have proclaimed section 125 of Crpc as applicable to all religions irrespective of their personal laws.
In the case of Sarala Mudgal V. Union of India, a Hindu male wanted to convert himself to Islamic religion only for the sake of preventing himself from a bigamous marriage. The court held that converting to another religion on this basis is void under the court of law and invites penal action under section 494 of the Indian Penal Code. The court stated that till the implementation of uniform civil code to all the Indian citizens, there will exist an inducement to a male husband who wants to marry another woman after his first marriage.
In the case of Ahmedabad Women Action Group V. Union of India
The court held that the muslim personal law which deals with polygamy, unilateral talaq and discriminating women are considered to be void and also mentioned regarding the enactment of uniform civil code.
In the case of Lily Thomas V. Union of India
When a wife is alive, the second marriage concept under the hindu law is considered as void and derogatory, and thus the court held that section 494 and 495 of the IPC will apply to all the religions irrespective of the personal laws if the second marriage is done when the first wife is alive and no divorce is given.
MERITS OF UNIFORM CIVIL CODE:
1. Numerous litigations filed under various religious personal laws will be reduced and will come to a standstill.
2. The code fulfils the constitutional mandate enshrined under part IV of the constitution (i.e) under the directive principle of state policy.
3. So many personal laws leads to chaos and confusion in the personal matters existing in the family and also before the judges, thus uniform civil code eliminates the overlapping of laws.
DEMERITS OF UNIFORM CIVIL CODE:
1. It interferes with all the personal matters and religious beliefs existing in a particular religion.
2. Leads to communal harmony threat.
3. Difficult and time-consuming task.
4. Problems will occur due to the diversity of India.
CHALLENGES FOR IMPLEMENTING UCC:
1. One of the biggest hurdles is that there will be a lot of oppositions from various religious groups.
2. Implementation of uniform civil code will automatically violate article 25 and 26 of the constitution of India which deals with religious affairs and policies.
3. Many false perceptions and involvement of fake media news for the TRP rating will be at its peak.
4. Vast number of personal laws makes the process very difficult to be completed.
5. It involves high sensitive thoughts as it involves people’s faith in a particular religion.
6. Freedom of religion will be grossly encroached.
7. Will have to overcome many political issues.
In India each and every individual is awarded with a crown known as fundamental rights which is enshrined under Part III of the Constitution. The right to equality, life and personal liberty is granted to all individuals irrespective of their caste, creed, religion, sex, status etc. From times immemorial women under various personal laws were considered as the weaker section of the society. Women never gave any voice against these happenings because of family background and other societal fears. Women from the olden age have devoted their whole lives to their family and their other dependents. It has become a trademark that women are considered only for household chores and sacrificing their dreams for their loved ones and for their family background was their only option.
Patriarchy is the basis of all the personal laws existent in the society, and as such we live in a male dominant society, in which male are given more importance and privilege than women. Daughters are considered to be a burden in the family, and their only aim is to get them married when they attain the age of puberty and do the household service for the rest of their lives.
In modern times, the courts and judges have given many dissenting opinions and judgments regarding the personal laws and have also spoken on the framing of uniform civil code to bring gender justice, equality and dignity, especially among the feminine class. Thus, as how uniform criminal code is implemented irrespective of various religious personal laws, in the same consonance uniform civil code must be implemented for betterment of justice and upliftment of all gender on equality basis. Education for the feminine class must also be upgraded and supported as there is a famous saying that, “if a man is educated in a family that credits him only, whereas if a woman is educated in her family, her whole generation is credited with knowledge and wisdom”. A famous female jurist stated that until there is equality in education, there won’t be equality in the society. Thus stop gender discrimination and strive towards uniform laws and equality.