UNIFORM CIVIL CODE AND GENDER JUSTICE
Qasim Abbas Kazmi, II Year of B.A.,LL.B, from Department of Law, Aligarh Muslim University, Aligarh
The "Uniform Civil Code" mechanism and "Gender Equality" share a close form of relationship with each other. Since the very early times when India was not free and even as a country when it got its independence, in the form of becoming a free country and having its own constitution, there is a constant struggle from the inner side to call up for a change in the system which provides for equality in rights to its constituents. The Article 44 of the Indian Constitution advocates the same perspective. The issue of gender equality has created a lot of buzz among people globally. "Gender Equality" is something which comes up along with the calls of contemporary issues like of freedom, equality, liberty etc.
These all go hand-in-hand. There is a very serious vitality of this issue and which is in great need to be addressed. But so far the progress with respect to this issue is not really good. This issue attacks upon the very old mind-set of the people, which makes them quite uneasy. The step towards gender equality is a time-consuming process as it would deal with a form of a reform movement which will be lead by the people and authorities together.
The time has changed a lot. The mentality which things women's right place is at home has only experienced a gradual shift in its stance. The issue of women empowerment has started getting place in the manifestos of various political parties during elections, no matter from which background these parties come from. This issue of gender equality is nowadays considered to be one of the prime issues of the state. Article 44 of the Indian Constitution communicates: "The State shall endeavour to provide for its citizens with a Uniform Civil Code (UCC) throughout the territory of India". This was done so as to accommodate a very diversified population of the country harmonically without any sort of discrimination. But so far this has been adopted only in the Criminal Law system and the Civil Law in the country was left intact for a considerable period. Upon this, Dr. B.R. Ambedkar commented that UCC is good, but for that moment it must be kept as is without any force. For the Civil Law system the personal laws are followed which are very much diversified in its nature as accordingly with the population.
The laws which deal with marriages, divorce, guardianship etc. for a particular person of a particular religion are different from that of the person from other religions. For the purpose of national integration, the Apex Court had directed the central government to look into the UCC. To initiate UCC in the legal system of the country, the issue of gender justice or equality is the only possible avenue through which they can proceed.
For Hindus there is another set of laws, for Muslims there is another, Christians follow other, and various religious groups also follow different set of laws. Amid different personal laws, there is no sort of likeness among them, and they provide unequal rights depending upon what a personal law, religion says for its people irrespective of gender.
Discriminatory Personal Laws And Women
The various personal laws consider women as inferior to men which is depicted in its rulings. The element of equality is missing from them.
Prior to codification, polygamy was there in Hindu Laws. The codification of Hindu Law in 1955 and 1956 did provide some equal status to Hindu women as that of Hindu men which they were enjoying, but still a lot of room for betterment was left in Hindu laws. With the codifications, the Hindu personal law was diluted into four subsets: The Hindu Marriage Act,
Minority and Guardianship Act,
Adoptions and Maintenance Act.
Even though the Hindu Law is codified, but still there are, many discriminatory provisions are there in it which discriminate on the part of Hindu women. Today itself, until now, the Hindu women are considered as coparcener in Hindu countries in very few states of India. Thus, codification is not sufficient enough to eradicate gender inequality in a real sense.
The issue with divorce persists, and the female child also experiences injustice when it comes to inheritance and its related laws. Beside this the issue with that of the property of the daughter-in-law in which the bride's side has nothing in it. The inheritance and related issues are made with the contention that the wealth of the family remains in the family itself through male members. Males are also the heads (Karta) of the families. These codifications failed to address the faults in Hindu Laws. Eventually, the final sufferer remains women who face injustice or discrimination in the names of various heads.
Before Prophet Muhammad and the religion he propagated, the Arabia was suffering from injustice, inequality and a lot more atrocities against women. Prophet Muhammad and Islam strived hard to establish women at a respected position in the society. Although the men and women have been provided equal rights, but with the passage of time some changes emerged in the ruling system – sharia, with respect to various rulers in the Islamic world which had made the position of women a bit weaker, especially the Muslim women as wives. This has created a sense of insecurity and inferiority in their minds when they got themselves educated and become aware about their respective rights.
The component like polygamy which is permissible in Islam although it is not compulsion upon a Muslim man to do so, creates a sense of insecurity in the mind of Muslim women. There are a lot of misconceptions with respect to what Islamic countries and polygamy see. Ironically, in most of the Islamic countries, namely Tunisia, Syria, Pakistan, Iran etc. have codified the Muslim personal laws in their respective countries, and either there are no such practices or the system has given up rulings with respect to that matter. The temporary marriages and the matter of "Triple Talaq" are discriminatory on the part of women's rights.
The Iddat period also bars her from maintenance and has complexities when she is divorced from her husband. The sharia rulings and Islam has taken care of both men and women, but the ignorance of a man and his dominance has so far taken birth to a situation where the rights of women are being compromised with. There is very famous Shah Bano Case related with maintenance and the Iddat period, after which Parliament passed Muslim Women (Protection of Rights on Divorce) Act,1986 to overrule the judgement in that case as a controversy has taken its shape. In Danial Latif v. Union of India (2001), the SC Constitution Bench held that, ‘Where the constitutional validity of the Act of 1986 was taken up, and upheld that a Muslim husband is liable to make a reasonable, fair provision for future of the divorced wife which includes her maintenance, even beyond Iddat period must be made within, under Section 3(1)(a) of the Act.
Similarly, if we see other personal laws like of Christians and Parsis, we will observe differences in rights given to men as compared to women.
Uniform Civil Code and the Constitution of India
Separate personal laws provide an access to the citizens of India to exercise their right to practice and propagate one’s religion which is given in Article 25 of the Constitution of India. With the advent of the Common Civil Code, this right which is given in the Constitution will be compromised a bit where there will be no place for personal laws and the distinct identity which they bear through this will not be observed. The UCC can be used as a tool to erode this right away from the surface. The Law Commission has also pointed towards the danger in its adoption, meaning, thereby, the vulnerable consequences for the country and especially for the minorities of India.
The Indian Constitution talks about Uniform Civil Code in part IV Article 44 where it directs the state to implement it at the whole country level. Since it is only a Directive Principle of State Policy, so it cannot be enforced in the Court of Law. There was very much opposition to the idea of Uniform Civil Code through this Article 44 in the Constituent Assembly.
The idea of UCC deals with reforms at a basic level. The right-wing community, irrespective of their religions, are resistive to reforms introduced in the society. So as a result, there was very much opposition from this community to this idea. In June 1948, Rajendra Prasad, President of the Constituent Assembly warned Jawaharlal Nehru that to introduce 'basic changes' in personal law was to impose 'progressive ideas' of a 'microscopic minority' on the Hindu Community as a whole. When the issue of the Hindu Code Bill was further raised, he also threatened to use his powers of returning the Bill or vetoing it. Dr.Ambedkar eventually resigned.
The reforms in Hindu Law were opposed by Sardar Patel, Pattabhi Sitaramaiyya, M A Ayyangar, M M Malviya, Kailash Nath Katju and others. Against the reforms in Muslim Law were mainly Naziruddin Ahamed, Mohd. Ismail Sahib, Pocker Sahib Bahadur, Hussain Sahib and others. K.M. Munshi, one of the prime members of the Assembly, had a strong feeling that if personal laws and religions are together, then the Gender Equality is unachievable.
Dr.Ambedkar also thinks of India as a practical civil code to be uniformly implemented in a real sense. The debates-discussions in the Constituent Assembly clearly depicts that the members were aware about gender inequality, and they introduced Article 44, hoping that it would solve this issue in the future when time comes.
Judiciary and Uniform Civil Code
The judiciary in India has taken note of the sufferings of the women in the matter of various personal laws. It has addressed the matters itself where the court felt it must look into. In Mohd. Ahamed Khan v. Shah Bano Begum, the Supreme Court held that Section 125 Cr.P.C which imposes obligations on all husbands is secular in character and applicable to all religions. In Ms. Jordan Deigndeh v. S.S. Chopra, D Chinappa Reddy referred to Justice Chandrachud's observations in Shah Bano case as "The present case is yet another event which focuses on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of uniform civil code is exposed by the facts of the present case."
Again in Sarala Mudgal v. Union of India, SC advocated the introduction of a uniform civil code in India. SC held that conversion of a Hindu male to Islam only for the purpose of establishing bigamous relations circumvents Section 494 of the Indian Penal Code. Such marriages have been considered as void. The Court felt that as long as there is no uniform civil code, there is a window for one if he wishes to have more than one wife which would be considered as unjust on the part of the woman who is presently in marriage with that person. It also directed the Law Commission and the government to look into the matter. Later the direction was treated as 'obiter dicta' by the Court itself.
In Lily Thomas v. Union of India, similar situation has arisen where the husband for the purpose of his second marriage converted himself to Islam, in which the Court looked in subsequently at the need for a common civil code in the system to avoid such situations in the future.
This issue has been in the headlines since a very considerable period of time. Post independence when the Constituent Assembly was framed, it had people from diverse backgrounds respectively as its members. This is because India is famous for its 'Unity in Diversity' which it maintained in the Assembly while preparing the Constitution for the country.
There were people from the right background and also from the left were also there, and in between at the centre there was the government itself, as Jawaharlal Nehru, the first prime minister of the country taking up the characteristics of both the sides and considering their ideas too. Gender Equality was there since the beginning and so far they have discussed the common civil code, but this issue has faced up a lot of oppositions as the respective parties want to contain their identities as they were seeing this code as an attack upon their identity.
Further Ambedkar resigned and that's the other story. The Legal System of the contemporary world sees these personal laws as discriminatory against women specially, where the women are being exploited in the name of personal laws and their rights are compromised with it as the civil matters largely affects the life of women. Several rulings in various personal laws due to culture, ideologies and social system and took a solid shape in these system which has nothing to do with religion or sharia in case of Islam or Vedas in case of Hindus and others etc.
The concerned authorities must counter that thing instead of targeting the whole system. With different political parties supporting different backgrounds, this UCC is presented as something which is a weapon to attack the identities of various other backgrounds. With rallies, manifestos they try to produce apprehension in the minds of others which creates doubts in their minds.
They try to make GENDER EQUALITY as an issue to entertain their political benefits rather than working to eradicate gender inequality in a real sense. This needs to be stopped. UCC implementation is a long process, this cannot be implemented at once altogether. First there is a need to talk with people, and authorities must try to educate them with respect to this issue and its outcomes.
Gender Inequality is everywhere irrespective of religions and cultures, so the follow-up action must be dynamic and widespread rather than that of targeting a specific side. There must be a dialogue so as to avoid any trouble, the Court and government considering their say must open up an avenue in such a way that suits the diverse nature of the country in a way that the sufferers, i.e., the women, get the place they deserve in the society. In this way, the issue of justice and gender equality will be served.