In need of urgent reform

Unfair Personal Laws

While not favouring a Uniform Civil Code (UCC) right now, the Law Commission has suggested significant changes in family and personal laws of all faiths to make them non-discriminatory, especially from a gender point of view. In the absence of any consensus on UCC, the commission felt that the best way forward may be to preserve the diversity of personal laws while at the same time ensuring that these laws do not contradict constitutionally guaranteed fundamental rights.

After reviewing more than 75,000 responses during two years of deliberation, the law panel came to the conclusion that UCC was neither necessary nor desirable at this stage. In its 185-page consultation paper, it has sought to strike a balance between freedom of religion and right to equality, emphasising that there should be no compromise on the latter aspect.

The law panel’s consultative paper came in response to a reference made to it by the NDA government with regard to the UCC in June 2016. This issue has also been part of the BJP’s election manifesto for long but one that it could not pursue during NDA-1 due to the compulsions of coalition politics. This time, its Lok Sabha majority encouraged it to seek a detailed view from the commission.

For the Constitution, under the non-binding Article 44, enjoins the State to secure for its citizens a uniform civil code. The Supreme Court, too, in the past has repeatedly reminded the union government to enact a UCC, stressing that such a code would remove disparate loyalties to personal laws which have conflicting ideologies.

All this notwithstanding, the commission suggested comprehensive changes in laws of marriage, divorce, inheritance, property, maintenance and adoption to remove existing bias and discrimination towards women, rather than legislating a UCC. The law panel is fully justified in doing so, for obvious reasons.

Biased laws

The Muslim community, by and large, seems to be hostile to the idea of a civil code and wishes to preserve its own personal law. Hence, any move in this direction against their sentiments is bound to create more ill-will, mutual suspicion and weaken the fabric of the nation. In this atmosphere, it would not be advisable to enact UCC, optional or otherwise, until a consensus evolves. However, not all opponents of the civil code are opposed to the reform of their personal law. Many progressive and forward-looking Muslims say that not only is their law as practised in India unfair to women, it is contrary to the basic tenets of Islam.

In any case, not only Muslim Personal Law (MPL), but also the personal laws of other communities are pro-male in character, grossly biased in nature and blatantly discriminatory against women. For instance, a woman cannot inherit ancestral property under Hindu Law. If she is abandoned by her family, she can’t claim maintenance from her natal family, either.

A Hindu woman cannot adopt a child in her own name. Nor has she guardianship right over a child who is above five years. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to determine their share.

Whatever the other virtues of Muslim law, the position of women is no better under it. While monogamy is the rule of law for a Muslim woman, the husband is entitled to have four wives at a time. He can dissolve the marriage any time at his will. The wife, on the other hand, can divorce only with her husband’s consent. She also cannot be a guardian of her minor child. Under the law, the share of a male heir of the same degree is twice that of a female. Polygamy, Nikah Halala and no maintenance after Iddat period to a divorced woman are other disturbing aspects of the law.

Similarly, the Christian laws of marriage, divorce, maintenance and succession appear to be archaic, harsh and biased towards women. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for any couple to get mutual divorce. However, in other statutes, like Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the mandatory requirement of separation is just one year — a patent discrimination on the face of it. This discriminatory provision, however, is under challenge before the apex court. Also, the Succession Act of 1925 gives Christian mothers no right in the property of their deceased kids. All such property is to be inherited by the father.

The lot of women in India is miserable simply because personal laws of the different faiths have not been subjected to contemporary social reforms. On the contrary, efforts are made to deny, in the name of religion, even the rights and privileges the Constitution liberally grants to them. To allow things to remain as they are would mean that more and more provisions of such personal laws have to be tested before the law courts to determine how far they are in conformity with the Constitution.

In attempting to reform and codify Hindu Law in the first instance, the idea was that if it succeeded, other communities would follow suit, but this didn’t happen. However, all this does not mean that existing personal laws should remain unaltered.

Laws cannot be static. They evolve and change with the times. While the judiciary’s role in attempting to rectify gender and other biases in community-specific legislation is welcome, the legislature cannot escape its responsibility of making laws and modifying them from time to time. There should be equal rights and equal laws for all women, irrespective of their caste and religion, to ensure gender justice.