Gender discriminatory laws of all religions should be annulled and that should be the primary focus of the Uniform Civil Code (UCC), constitutional experts have told The Sunday Guardian. They also called for codifying Muslim personal laws keeping in tune with the progressive judgements delivered by the Supreme Court and other courts in India.
“Triple talaq and polygamy are abhorrent to which everyone agrees. But UCC is not the need of the hour. The need of the hour is to codify Muslim laws just as Hindu laws have been codified post Independence. Law making has to be done according to the procedure. The legislature has to take opinion from every sector and they have to see what the SC rulings are, as they are obviously the source of law. What have been the customary practices and what the Quran says about these particular aspects have to be considered also. But the interpretations should not be based on the whim and fancy of the maulvis alone. We have to get modern scholars to debate them,” well-known advocate Anant Bhushan told this newspaper.
He was referring to the Shamim Ara ruling in 2002, which has, according to some scholars, invalidated instant and arbitrary triple talaq and laid down the procedure for dissolving Muslim marriages. There have also been important high court judgements on this issue since 1981 and, post Shamim Ara, several high courts have upheld this position. Many lawyers believe that if any woman who has received an arbitrary talaqnama approaches the court relying upon these judgements, the courts will strike down the talaq.
“In the Shamim Ara judgement, the Hon’ble Court noted that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The said judgement further cites the decision of Hon’ble Kerala High Court in A. Yousuf Rawther v. Sowramma, MANU/KE/0059/1971 wherein it has been noted that that it is fallacy that a Muslim male enjoys unbridled authority to liquidate the marriage,” Delhi High Court lawyer Gaurang Kanth explained to this correspondent.
‘The SC has also said common civil code means not the common substantive law to regulate all these different religions by one basket or one statute or one system.’
In view of the above judicial observations, it has been noted that the rights conferred upon the husband to pronounce talaq have to be in consonance with the Islamic law. However, it does place a blanket ban and does not absolutely abrogate the practice of Triple talaq. “Mere execution of Talaqnama is not sufficient to render a valid Talaq, reference Shakil Ahmad Jalaluddin Shaikh vs. Vahida Shakil Shaikh MANU/MH/0501/2016,” Kanth added.
Ghulam Rasool Dehlvi, national spokesperson of World Sufi Forum and media manager of All India Ulama & Mashaikh Board (AIUMB), has already said that they are going to “organise a seminar as soon as possible where Islamic scholars who believe in the Hanafi school of law from all over the country including women scholars would be present” to discuss the issues that have cropped up following a renewed debate on the UCC. He told this newspaper: “Currently, we subscribe to the Hanafi school of Islamic jurisprudence which says that talaq is valid only when talaq is said three times in a formal meeting in the presence of a witness and evidence to justify claims. The person saying talaq should be composed and not in a rage or emotionally unstable.”
IN EVERY RELIGION
According to experts, several anti-women laws exist in every personal law, not just the Muslim personal law. If UCC is implemented, Kanth said, some of the provisions under the Muslim personal law that may be struck down are the (a) Muslim Personal Law (Shariat) Application Act 1937; (b) the exclusive right of the husband to pronounce talaq or delegate the same to his wife at the time of nikah. He further said that, at present, a wife in the Muslim community can approach the Darul Qaza to get divorce from her husband, however, she has to prove the atrocities committed towards her by her husband. Kanth said this calls for reform, citing the Vishwa Lochan Madan Vs Union of India [(2014)7SCC707] case in which the issuance of fatwas by Dar-ul-Qaza had been declared not to be legally binding.
In the Hindu personal law, a widow has limited right to her husband’s property or estate, a female heir cannot ask for partition of the residence until and unless the male heirs ask for their respective shares and the right of residence exercised by the daughter is limited by her marital status. Most constitutional experts believe there should be a renewed debate under the UCC to increase the scope of a woman’s rights. They pointed out that the property of a deceased Hindu woman who dies without an heir goes to her husband’s mother and father, even if she had been ill-treated in her marital home, but not to her own parents.
“The provisions governing succession of property of women who dies interstate, without any heir need to be amended as to cater to the contemporary scenario. Even the Law Commission in its 207th Report has suggested the changes in Section 15 of the Hindu Succession Act to provide equal rights to the parental heirs of women with the heirs of her husband, in case of succession of women who dies intestate without any heirs. In addition to the above recommendation of the Law Commission, the Hindu Succession Act shall also be amended to expressly exclude the succession of property to in-laws under Section 15, in cases of any harassment or violence or ill-treatment to the women in her marital home,” Kanth argued.
In Goa, a Hindu man can remarry if his wife does not give birth to any male children till the age of 30. Similarly, a non-Parsi woman, who is a wife of a Parsi, cannot inherit. Their children still can, although those born to a Parsi woman married to a non-Parsi man are not considered part of the community.
Another major issue plaguing the Hindu laws is child marriage. Although there is a general opinion that child marriage is banned in India, the Constitution actually has no definite provisions to this end. The Prohibition of Child Marriage Act prevents the marriages of children; but it does not render them illegal once they actually happen. According to the United Nations, this is one of the main reasons why the custom still flourishes in rural areas of India.
“It is true to state that Prohibition of Child Marriage Act (PCMA) does not per se illegalise the concept of child marriage. Even though it recommends punishment for child marriage, but does not completely declare child marriage void and illegal. Under PCMA, a child marriage is voidable at the option of the parties i.e. a child marriage is illegal only when it is challenged by either of party to marriage. Before the enactment of PCMA, Child Marriage Restraint Act, 1929 (CMRA) used to govern the issues related to child marriage in India, which has fixed the age limits of boys and girls for marriage. Even under CMRA there was no provision as to nullify a child marriage,” Kanth further revealed.
But noted advocated K.C. Mittal, who is the former chairman of the Law Council of Delhi, said there are serious problems with the UCC and it’s not applicable, while batting for a uniform procedural law in some cases. “There are marriage, adoption and inheritance laws which are all in relation with customs and traditions. Even within Hindus and among the different castes, traditions change within 50 kilometres. Is it possible for anyone to say that for all these legislations, we can have a common law for the entire country, which can regulate each and every community? In Hindus we have undivided families, but Muslims do not have this concept. Under Hindu inheritance laws, there are Mitakashara and Dayabhaga laws which are inherently different,” he contended.
Mittal, however, feels that there can be a uniform procedural law in some cases, like Section 125 of the CrPC, maintenance, which applies to all. “You can have common courts. Now Muslims also come to the civil courts and they file cases whosever wants to have a divorce,” he pointed out. He said that in one of the SC judgements, the SC has also said common civil code means not the common substantive law to regulate all these different religions by one basket or by one statute or by one system. He said as far as gender discrimination is concerned, it is a “complex area where you do not have a straight answer”.
But the anti-women provisions abound. In Goa, a Hindu man can remarry if his previous wife does not give birth to any male children till the age of 30 years. Similarly, a non-Parsi woman, who is either a wife or widow of a Parsi, cannot inherit. Their children still can, although those born to a Parsi woman married to a non-Parsi man are not considered part of the community.
With inputs from Akhay Sharma