According to a news item in a Hindi daily published on 11th June, the Law Commission has a detailed draft on how the Uniform Civil Code (UCC) will be implemented in India. The report says that the Commission has been working on it for the past eight months and the draft will be passed over to the Law Ministry after a couple of more meetings. The news report did not confirm when it will be presented in the form of a bill in Parliament but some media reports indicate that it might come either in this year monsoon or winter session.
One hopes that before the introduction of the bill, the draft will be put up for a nationwide public debate so that all forums get a chance to place their objections and suggestions. But given the suddenness and stealth with which this government works, that remains a hope.
The country has been debating the issue of a UCC since it attained freedom. It is mentioned in the Directive Principles of the Constitution that the state shall endeavour to attain it. Also, there are various court judgments which have mentioned the need to look into the issue. The Shah Bano judgment of the Supreme Court also ended up with a plea that the legislature should find ways to formulate a Uniform Civil Code.
India is a huge country and the idea of a UCC might appear to militate against maintaining its diversity and pluralism. After all, marriage patterns, rules regarding choice of spouses, laws relating to property, etc. differ from region to region, often even within the same religious community. Will the UCC be levelling such diverse practices? This is practically impossible to do, again given the extraordinary cultural and religious diversity of the country.
But what a UCC can do is to take away some of the inequalities that exist within religious communities due to the application of personal laws which are in direct contravention of our constitutional morality.
Muslim Opposition To The UCC
The Muslim clergy has always been opposed to the idea of a UCC. Under their influence, Muslims have come to believe that the UCC is patently anti-Islamic and that it will lead to the loss of their religious identity. The clergy have argued that Article 25 of the Indian Constitution guarantees the freedom of religion and hence the state cannot make any law which is detrimental to it. However, they forget that the same Constitution says that Article 25 is “subject to public order, morality, health and other provisions”. The same Article has a further rider which states that “this article shall not affect any existing law and shall not prevent the state from making any law relating to social welfare and reform”. It becomes amply clear, therefore, that the state can indeed intervene in the personal laws of a community if it deems that the issue is one of social welfare and reform or even if it feels that the issue is one which involves public morality. The very same Article which gives all Indians the right to freedom of religion also throws open temples to “all classes and sections of Hindus”. Thus, religious communities cannot hide behind this Article and continue with practices which are discriminatory or regressive. The freedom to practice and propagate a religion does not automatically mean freedom to discriminate. The argument of the Muslim clergy that the state cannot intervene does not hold any ground.
By all measures, the draft of the UCC will be guided by various constitutional principles but non-discrimination on the basis of sex would perhaps be the major one. That men and women should be treated equally, that both of them should have equal rights is something that any modern society takes for granted. However, it is the Muslim personal law which has consistently refused to abide by this principle.
Four Contentious Issues
There would be four points on which the Muslim clergy have always opposed a UCC and they will certainly do so this time too as and when the draft comes out in the public domain.
The first of these relates to the issue of marriage and divorce. In Muslim law, while the proposal for marriage can be initiated by any of the sexes, the right of divorce rests solely on the man. In other words, a Muslim woman, in order to escape an abusive marriage, has no recourse but to request her husband to grant her a Khula, which he can refuse. While most religious laws have been antediluvian, they have been able to reform themselves but one can’t say the same about the Muslims. So, while a Hindu or a Christian woman in this country can approach the court and ask for the dissolution of her marriage, a Muslim woman cannot do the same.
The clergy will also be nervous about the fact that the UCC might make the system of triple Talaq obsolete. It is worth recalling that the present government has only outlawed the practice of “instant triple Talaq” through which husbands could divorce their wives in one sitting, and at times over a phone call or email. Some Muslim groups like the Shia and the Ahle Hadis anyway never approved of this practice. But the large majority of Sunni husbands are even today free to divorce their wives in three sittings which is the Islamic way. It is expected that the UCC will outlaw this method of divorce and like all husbands, Sunni Muslim husbands would also be obliged to seek such a decree from a court of law. Moreover, like in other religious communities, Muslim husbands would also be made liable to provide maintenance to a divorced wife.
There is also the most inhumane problem of halala of Muslim women. If a Muslim man divorces his wife but then regrets his actions and wants to be in matrimony with her again, it is not easy for him. The ex-wife will have to marry another man who will then divorce her in order that the first husband marries her again. This must be a real ordeal for women but it is something which exists in Muslim societies across the world. There are “dealers” (many of them Mullahs) who marry such women for a night and ask money for their “service”. Why should women (and men) go through such an ordeal when it is a simple question of two consenting adults willing to stay together by contracting their marriage again? The UCC may (and should) outlaw such practices in any community whose sole purpose is to demean women for no fault of hers.
The second issue will be that of succession and inheritance. It is widely documented that the extant Muslim law in principle discriminates against women. Daughters do not get equal share in the familial property as compared to sons. It is for this reason that conscientious Muslim parents have been registering their marriages under the Special Marriage Act, so that they can bequeath their property to their children fairly. Almost all religious communities have now resolved this problem and legally both sons and daughters can inherit equally. But the Muslim law on succession and inheritance has remained unchanged since 1937. If the state intervenes and ensures this reform through the UCC, it will be a big win for all Muslim women, especially those who are at the forefront of a struggle to change such outmoded personal laws.
The third contentious issue will be that of guardianship. In case of the death of the father, the guardianship of a minor Muslim passes on to the grandfather but not the mother. As if the Islamic law assumes that women are unable to handle anything and that they lack worldly sense, it has deprived even a mother of executing decisions on behalf of her children. This is patently absurd in today’s times when even Muslims predominantly live in nuclear families. This needs to change and the UCC, which is likely to address this question, will be doing nothing but to restore the dignity to Muslim mothers.
The fourth issue likely to rile the Mullahs will be the standardization of adoption. All religious communities can legally adopt, pass on their property to the adopted heir, with the exception of Muslims. For Muslim couples who want to adopt, this has always been a major problem. Thankfully, they can now adopt under the Juvenile Justice Act 2015, but many such parents still do not know about such a provision. Moreover, high courts in recent years have pronounced varied judgments to the effect that prospective Muslim couples have been hesitant to adopt. If all other religious communities can have the right of adoption, there is no reason why Muslim couples should be denied the same. The Mullahs have often cited the example of the Prophet himself, who married his daughter-in-law, the wife of his adopted son. Hence, they decree that there is a fundamental difference between a “natural” and an “adopted” son or daughter. But then, should such standards be applicable to Muslims today? The community and the clergy need to ask this question of themselves.
To recap, most religious communities have already reformed their personal laws and more or less there is gender parity in them. The Hindu law, in particular, is hardly Hindu in terms of theology or orientation. Similarly, Christianity never conceived of divorces as marriages were made in heaven but today, they are able to do so. There is nothing extraordinary about the Muslim religion; like all other religions, it has to change with the times. To think otherwise is to live in a fool’s paradise.
In case a UCC draft is floated, it should not appear that it is only the Muslim community which is opposing it. This will be used by those who want to paint a regressive picture of Islam and Muslims. Unfortunately, going by the tone and tenor of the Mullahs, who speak of opposing the UCC even without context, it appears that those trying to malign the community will eventually win.
It is, therefore, only pragmatic that Muslims should not irrationally reject the UCC draft. Rather, they should study it carefully and dispassionately, and see how changes in law can benefit their society immensely.
A regular contributor to NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam and Muslims in South Asia.
Courtesy: New Age Islam