Uniform civil code needed for gender justice

Three days after a 26-year-old Noida resident reportedly told her husband about her pregnancy, she received a talaq e-mail citing her dark skin as the reason. Four months into the marriage, she says her husband harassed her from day one. While the Noida resident filed a police complaint earlier this week, scores of Muslim women suffer because of the 'triple talaq' divorce system. Ironically, there is no law to regulate this. It is for issues like this, considered part of personal laws, there is a demand for a uniform civil code. Article 44 of the Constitution says the state shall endeavour to secure, for the citizens, a uniform civil code throughout India.

Earlier this month, the government informed the Lok Sabha that it has received representations from various quarters supporting implementation of a uniform civil code. It also informed the lower house of the Parliament that in view of the sensitivity of the matter, wider consultations are required to evolve a consensus.

Uniform civil code seeks to replace the personal laws based on customs of each religion with a common set governing every citizen. Such laws address four broad areas: Marriage, divorce, maintenance and succession. Each of the major religion in the country has its own set of personal laws. Hindus have four Acts including the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. For Muslims, there are two Acts - Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (protection of rights on divorce) Act, 1986. Christian and Parsi personal laws are also governed by similar laws.

Experts say most such laws are inadequate and outdated. Almost all of them fail the test of gender justice. "All personal laws suffer from major shortcomings. There are many infirmities even in the laws enacted by Parliament after the commencement of the Constitution," says Tahir Mahmood, former chairman of National Commission for Minorities.

Experts point out several provisions in Hindu personal laws which are discriminatory. According to the provisions of Hindu Adoptions and Maintenance Act, while giving a child for adoption, the consent of the mother is mandatory. But she loses her right in case she converts and ceases to be a Hindu. Similar provisions apply in case of adopting a child. In case of inheritance of property, while a successor is entitled to his or her rights, even after conversion, but the children of these converts lose that right.

MINDING THE GENDER GAP

• Experts point out several provisions in Hindu personal laws which are discriminatory
• According to the provisions of the Hindu Adoptions and Maintenance Act, while giving a child for adoption, the consent of the mother is mandatory. But she loses her right in case she converts and ceases to be a Hindu
• In case of Muslims, the two existing laws cover very few aspects - divorce sought by women and maintenance following the dissolution of marriage
• Experts say personal laws have undergone significant changes in most Muslim countries. In Pakistan, for instance, both Muslim men and women have equal right to divorce and there is no system of triple talaq

"The Hindu Marriage Act brought in monogamy but Hindu men continue to be bigamous or polygamous. While they go scot-free, it is the second wife that has to pay the price and she is denied her rights," says Audrey D'mello, programme director at Mumbai-based Majlis Legal Centre, an organisation that helps women fight for their rights. In case of Muslims, the two existing laws cover very few aspects - divorce sought by women and maintenance following the dissolution of marriage. And there is no law covering aspects like marriage, divorce sought by men, and succession. As a result, men follow the practice of 'triple talaq'. Similarly, with regard to succession, the entitlement of daughters is significantly less than sons.

Experts say personal laws have undergone significant changes in most Muslim countries. In Pakistan, for instance, both Muslim men and women have equal right to divorce and there is no system of triple talaq.

"Triple talaq is a horrible practice which most Muslim countries have done away with. It, most certainly, has no Quranic sanction. In almost all Muslim countries significant reforms have taken place with regard to marriage, divorce and maintenance," says Tahir Mahmood.

In view of such shortcomings in personal laws of different religious communities, experts argue that sincere efforts must be made to have a uniform civil code. But given political opposition to such a move, how should the government go about the task?

Peter Ronald deSouza, a fellow at the Centre for the Study of Developing Societies and author of several scholarly papers on the subject, says reforming personal laws must be done with a view to achieve gender justice. "With that objective in mind, you change laws so that women feel safe at workplaces, at home and in public places. The effort should also be made to encourage various communities to reform their own personal laws," says deSouza. He adds that "to argue that personal laws cannot be changed because they are part of religious tradition is incorrect. Codification was done earlier by the Colonial ruler. I see no reason why the state cannot do it now."

Another option, he says, is that of Goa model: Goa has common civil code for all communities and has found acceptance by all. It mandates registration of marriages and equal treatment is given to sons and daughters in terms of inheritance of properties. Under the Goa model, "the state undertakes the obligation to extend protection" since marriages and wills are to be registered and the onus shifts to the state to ensure compliance.

But Tahir Mahmood says the idea of Goa model is a myth. "Application of the Portuguese Civil Code in Goa to the Hindu is subject to the provisions of the Goa Hindu Usages Decree of 1880 which remains in force." He suggests a drafting committee "consisting jurists from all communities" should be constituted. And the draft should be put in public domain for suggestions.