October 17, 2016 12:50:36 am
On October 7, the union government filed its gingerly-worded affidavit in the Supreme Court supporting a ban on talaq-e-bidat, nikah halala and polygamy. The caution it exercised in not mentioning the Uniform Civil Code (UCC), however, came undone the same day when the Law Commission issued a questionnaire eliciting public opinion on “the viability of a uniform civil code”. Anchored in the issue of women’s rights, the stated objective of the survey is to end discrimination against vulnerable groups, and the need to “harmonise the various cultural practices”.
While criticism by the All India Muslim Personal Law Board, which has taken an adversarial position even in the triple talaq case, is no surprise, many of the progressive proponents of reforms within the community too have been wary of broaching the subject of the UCC. Muslim scholars have often been critical of the very binary choice offered to the community between maintaining status quo and accepting a UCC steeped in a majoritarian value-system.
If gender justice was indeed the concern, the union government didn’t have to look very far for solutions. While hearing the Shayara Banu plea against triple talaq, the apex court had in March directed the Centre to place before it the report of the high level committee on Status of Women in India (2015). This voluminous report by the Pam Rajput panel lies forgotten with the Ministry of Women and Child Development, which had commissioned it, and is yet to be placed before the Supreme Court.
The report straddles the fine line between ensuring gender justice and maintaining the plurality of family laws. It reiterates the need to protect diversity, and rejects uniformity as a way to push for women’s rights.
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“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,” the report states.
The report’s relevance extends far beyond the stand it takes against triple talaq and polygamy. Using the prism of gender equality, it recommends reforms in personal laws of all communities in matters of marriage, divorce, custody and succession. Carrying forward the debate first triggered by the landmark Shah Bano judgment of 1985, the report asserts that Muslim law must be reformed to make it mandatory to provide maintenance to wife and children during marriage, separation or divorce. It points out that the state needs to recognise the unpaid contribution of women to their families, and faults the Hindu Marriage Act for being the only one that also gives husbands the right to claim maintenance. This should be done away with, it states, as should be the provision where payment of maintenance can be stopped to a deserving wife if she has been “unchaste” post separation.
The panel also asks for reform of Muslim succession laws wherein a daughter gets only half the share of the son. At the same time, it acknowledges the superiority of Muslim law in aspects such as ensuring that the daughter is not disinherited — the law limits the right to will away property to only a third of the total. The report argues for insertion of similar safeguards in the Hindu Succession Act under which, in practice, women often get a raw deal.
It recommends that the 2-year separation period for divorce by mutual consent for Christians should be shortened to 1 year as is the case with most others. The panel observes that under Hindu law, “cruelty” as a ground for divorce must be clearly defined to put an end to patriarchal notions of “cruelty” dictating court judgments.
Its stress on the UCC notwithstanding, the Law Commission’s questionnaire does seek opinion on Christian divorce laws, the Muslim triple talaq and polygamy, and maitri karaar (friendship deed), a practice that disadvantages Hindu women in Gujarat by allowing their men to enter into bigamous relationships. However, it leaves out crucial questions such as whether the Hindu Undivided Family would be willing to give up the unique tax exemption that it enjoys. In fact, even under the secular Special Marriage Act, exemption is granted to Hindu couples in matters of succession so as to keep this entitlement intact. The Pam Rajput panel recommends that not only should this benefit be done away with, the revenue thus generated could be for used for the welfare of women.
The current debate on triple talaq arises from the fact that the Muslim personal law is not codified, but is based on the wider framework of the Shariat. Many blame this absence of codification for the negation or dilution of rights that were traditionally granted to women. A case in point is how talaq-e-bidat (unilateral, instantaneous divorce given by men) has no foundation in the Quran or Hadith (utterances of the Prophet). Muslim scholar Tahir Mahmood traces its origin to the time when the first caliph Abu Bakr allowed it once so as to grant instant divorce to a few women who no longer wanted to stay with their husbands. The religious orthodoxy continues to uphold the sanctity of such practices as “bad in theology but good in law”.
Among the Muslim women’s groups that oppose the UCC but are proponents of personal law reforms, there are two divergent views. Those such as the Bharatiya Muslim Mahila Andolan insist on codification to pre-empt hegemonic interpretations by the clergy. Groups such as Bebaak Collective ask for reforms while shunning attempts at codification as, according to them, it will fail to address the “multiple realities of an identity, multiple practices of beliefs and pluralist envisions of family structure”.
Feminist writer Nivedita Menon has shown how the Hindu code bill codified vast heterogeneous practices and brought them in conformity with Hindu upper caste practices, often to the detriment of both diversity and the rights of women. For example, the Hindu Succession Act, 1956, nullified the superior position of daughters in matrilineal communities. The Pam Rajput panel report subscribes to this view. It takes a stand against codification of Muslim law on the grounds that it will “affect its flexibility which may be against the interest of women”, and argues instead for amending existing laws “to include progressive reforms in line with constitutional values like equality and justice”.
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