The Crusade For Uniform Civil Law: Personal Laws And The Crisis Of Muslim Women’s Rights In India

Article 44 of the Indian Constitution directs the Indian state to implement the Uniform Civil Code across the country. In a pluralist multi-ethnic and multi-religious country, the Uniform Civil Code would pave the way for national unity and integration. Yet, as India steps into the seventy-fifth year of its independent existence, this goal remains a far-fetched dream.

The Uniform Civil Code will ensure fairer laws, essential for the marginalized sections of society and particularly women. Avowedly patriarchal personal laws of Indian communities, for example the Hindu Code Bills and the Shariat of Islam, are extremely discriminatory in nature and breed inequality at the very outset. In the years following India’s independence, the Hindu Code Bill was reformed. The Shariat remained untouched, leaving the Muslim women grappling with the gender discrimination in marital relationships.

Historic opportunities to implement the Uniform Civil Code has already been lost. In the seventies, debates around Muslim personal laws rocked both India’s parliament and society when Shah Bano, a sixty-two-year-old Muslim widow was divorced by her husband Mohammad Ahmad Khan, a well-known advocate in Indore. Fourteen years after his marriage with Shah Bano, Khan married a younger woman and began living with two wives. In 1978, when Khan stopped giving Shah Bano a sum of 200 Indian rupees (INR) which he had apparently promised, she went to the local court under section 125 of the Code of Criminal Procedure, demanding a maintenance amount of INR 500 for herself and her children. Months later, Ahmad divorced Shah Bano by invoking the irrevocable triple talaq which allows a Muslim man to arbitrarily divorce his wife verbally or by email or on phone. Khan took recourse to the Islamic personal laws which relieves the husband from the burden of shouldering the responsibility of his divorced wife. Khan also was already in a second marriage, permitted under Islamic law.

The verdict of the Madhya Pradesh High Court went in favour of Shah Bano and ordered Khan to provide a higher maintenance than the initial amount. When Khan appealed against this verdict before the Supreme Court, a two-judge bench reaffirmed the judgement stating the Section 125 also applied to Muslim women. Vast sections of Muslims were enraged at the decision which they considered was an attack on their religion and an attempt of the court to interfere with personal laws. As the country erupted with protests, the Congress-led Indian parliament passed a special legislation overriding the court judgement, exempting Muslim women from the purview of section 125, and depriving them of the rights of maintenance after divorce. Already a weaker segment of society, Muslim women were further relegated toward subjugation. They would, henceforth, be deprived of rights which their counterparts belonging to other religious communities would continue to enjoy.

The motives for this decision were political. The Congress government was unnerved by an imminent loss in the impending elections if any attempts toward implementing the Uniform Civil Code would be seen as tantamount to intervening with the personal laws of Muslims. The uniformity in laws was a far-fetched dream. An apparently secular country was destined to be governed by laws rooted in religion, even as the laws were evidently discriminatory and exploitative.

For a country where religious denominations have exerted considerable influence over the political spectrum, it is difficult for the government to overlook religious connotations. Specifically with the Indian variant of secularism which seeks to provide equal protection to all religious communities, the task of administering and balancing the relationship between religion and politics is a herculean enterprise. Yet, it is essential that the country does not leave the weaker sections of society to languish amidst patriarchal injustice. A way forward will perhaps be to draft the Uniform Civil Code by keeping in mind the inclusive and best practices of personal laws drawn from all religions. A committee of eminent jurists and constitutional experts in consultation with stakeholders of all sections of society, alongside participation by intellectuals, academia, and civil society should be constituted to promote social justice and social progress.

Major Islamic states which continue to be governed by the Shariat have adequately reformed their legislative framework by abolishing polygamy and triple-talaq. Despite India’s emergence on the world platform as a growing economic power, India’s concomitant promise of social justice on the domestic front remains largely unfulfilled. A comprehensive legislation where the progressive tenets of religion are compatible with the tenets of equality and justice should be drafted and incorporated to ensure the advancement of the marginalized sections of Indian society, address gender discrimination, and foster social and legal equality.

Sucharita Sen

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