India is a vast country with 1.28 billion people, spread over 3270000 sq. kms. It has 22 official languages and other 1527 unofficial languages, which is a very unique thing. The country inhibits people from various religions out of which, there are 7 major religions and 4 of them, took birth in the country itself. Having a 5000 year old civilization, the country is also known as a ‘land of religions’. Religious values have been deeply rooted in the lives of the people. The personal laws today, that dictate our conduct, trace their history back in time when the society was ruled by the male counterparts whereas women were considered not more important than a doormat. Texts of Manu clearly lay bare the status of the fair sex. Women were considered as an object for ‘distracting’ men and they were supposed to be in the custody of their fathers, husbands, brothers and sons. They were not allowed to live independently under any circumstances as they were termed as ‘incapable’ in doing so. Men, at the time, were advised not to fall prey to the beauty of a lustrous woman. This has also been reflected in the personal laws made at that time, which ipso facto favored men. Article 39 of the Indian Constitution lays down certain duties which the State has to achieve overtime, though these are not legally binding i.e. DPSP (Directive Principle of State Policy). Amongst one of these, is Article 44, which states that the State shall endeavor to achieve a uniform civil code throughout the territory of India. However, even after over 6 decades of independence, the country is still governed by the old patriarchal laws that continue to govern the civil domain.
Before the British came to India, people belonging to different religions were subject to the customary laws of their religion in both the civil and criminal domains. The Hindus were governed by the texts of Vedas and Upanishads, along with various other religious texts. For the Muslims, Quran has been the main source of law. However, these texts got manipulated overtime which resulted into certain social evil practices like that of sati, child remarriage, concept of ‘blood money’ cropped up. However, when the British came, they took serious measures to curb all the heinous acts and made a uniform criminal law barring the enforcement of all the personal laws in the criminal domain. Acts like IPC and CrPC were enacted. Civil laws too were enacted to some extent like, The Indian Contracts Act 1872 and CPC. However, no measures were taken to interfere with the laws that involve practices like adoption, marriage, divorce and succession, as this would have invited criticism from the communities resulting into a political unrest. The Second law Commission of India, 1833, constituted under the Presidentship of Master of the Rolls observed: “it is our opinion that no portion either of the Mohammedan law or of Hindu law ought to be enacted as such in any form by a British legislation….The Hindu law and Mohammedan law derived their authority respectively from Hindu and Mohammedan religion. It follows that, as a British legislature cannot make Mohammedan or religion, so neither can it make Mohammedan or Hindu law”. Hence, to maintain cordial relations among both the communities, these were left untouched. Also, after the independence of the country, during the meeting in the parliament while framing the Constitution, it was accepted that the idea is to secure harmony through uniformity but for that purpose, it wasn’t necessary to regiment the civil law of people including the personal laws and the society was not ready to accept a uniform law and give up on their ideas. This was thus, considered to be a gradual goal to be achieved overtime and must be progressed with passing time. That’s the reason why Uniform Civil Code was included in Article 44 as a part of DPSP. Much part of the Hindu law was codified after Independence whereas the Muslim law was left untouched and is still not codified to a great extent. People from other communities apart from Hindus, Muslims and Christians were brought under the purview of the Hindu law, as it being an act made by the legislatures. Different religions have different ideologies e.g. marriage amongst Hindus is considered to be a sacrament and unison of souls while amongst Muslims, it is a kind of contract, though it has religious values too. What is more surprising, is to notice that even in a particular religion, not all the people are governed by the same laws. Further bifurcation has been made under different schools which have different laws. The Muslim law, for instance, has 3 different schools namely Shia, Sunni and Motazila and the Hindu law has 2 schools named Dayabhaga and Mitakshara. Even now, as far as the grounds of adoption, divorce, succession and marriage are concerned, people are subject to their personal laws, and not a uniform law.
MARRIAGE and DIVORCE
The laws of marriages in India are majorly governed by The Hindu Marriage Act 1955 and Muslim personal law. For people from other communities, Special Marriage Act 1954 was enacted, which can also be an alternative for the Hindus and Muslims, if they do not want to marry under their personal laws. Marriage (nikah) among Muslims is not a sacrament but a civil contract. The Quran specifically refers to marriage as “MithaqunGhalithun” which means, “a strong agreement”. The Rajasthan HC, in the case of HasinaBano Vs AlamNoor, held that marriage in Islam is a “permanent and unconditional civil contract” made between two persons for mutual enjoyment and procreation and legalizing of children. However, the relationship of both the contracting parties is not determined as a pure civil contract, but is determined in a combination with the religious connotation.There are 3 types of marriages in the Muslim law which are valid (sahih), irregular (fasid), void (batil) and different rules are there for Shia and Sunni. There are restraints imposed on Muslim males as he can marry either a Muslim or a kitabia (Jew and Christian) girl. If he marries a non Muslim and a non-kitabia girl, it shall be termed void in the Shia law and irregular under the Sunni law. An irregular marriage can be made valid when the religion of the wife is converted to Islam. These retrains are however, even tighter with the Muslim women as they cannot marry any non Muslim male, lest the marriage be void.
As per section 4(c) of Special Marriage Act 1954 in which the minimum age to get married for a boy is 21, while that of a girl is 18. However, J B Pardiwala, in Mujamil Abdul SattarMansuri Vs State of Gujarat ,set aside an FIR and followed the Muslim law by allowing a Muslim girl of 17 years to marry as she had already attained puberty. Countries like USA, Australia, where there is a uniform civil code, the marriageable age is the same for all the people in the country irrespective of which religion they belong to. Another horrific provision is the concept of having four wives at the same time (Polygamy). This provision allows men to have up to 4 wives at a time. However, there is one more provision which is backed by Quran which states the conditions to be fulfilled before having more than one wife. In the Quran, it is written that if a man is neither supporting any orphans, nor being entrusted to protect the possessions of orphans, then it is not lawful for him to marry more than one wife. Also, if and only if a man is able to treat all his wives justly, he has a right to marry four wives or else he should marry one, which is practically impossible to achieve in today’s time. But the Muslim law fails to recognize the importance of these lines and simply allowed a man to marry four wives which has led to widespread exploitation of the provision with non-Muslims converting themselves to Islam specifically for the purpose of polygamy, e.g. Dharmendra, the practice which was banned in the SarlaMudgal Case.
The Hindu Law, on the other hand, considers marriage as a sacrament because it is said to be completed on the fulfillment of sacred rites and rituals. Even The Hindu Marriage Act, 1955, recognizes saptapadias an essential ingredient for the recognition of a Hindu marriage. Since, it being a sacrament and not just a contract, Hindu marriages are irrevocable and the dissolution of marriage is considered a sin. So, both the husband and wife try to adjust to work it out. Since the act was enacted after the independence, much of the unjustified provisions were done away with e.g. the practice of sati, bigamy and dowry that was to be given by the wife’s parents to the husband’s parents. However, even though the act was formulated 6 years after independence, it didn’t give freedom to Hindus to marry out of their religion. Hence, it was limited to all those who were Hindus which include four communities namely Jains, Sikhs and Buddhist and any other person who was a Hindu by religion. Before the enactment of the act, bigamy was a common practice, which was prohibited later by the act. Discrimination however, arises in the Hindu Law, as in a case when the wife converts to a Muslim or a Christian. After the conversion, she loses all her civil rights that she has, against her husband. Another sexist, controversial and debated issue, is the practice of triple talaq which has raised criticism against the Mohammedan law, as it is so oppressive against women and also violates Sec 494 of the Indian Penal Code, 1860. The primary reason that the Muslim laws were not codified was that, doing the same would uncover the blanket of invisibility that it wore, which would invite animosity from other communities and consequently greater insecurity for the Muslim community. Along with this, Muslim women are not allowed to have more than one husband. A Mohammedan woman marrying another man during the lifetime of her husband is liable to be booked under sec 494. How can a law be justified if it prima facie violates the law of the land? The women are thus, forced to live an insecure life as her husband can divorce her as per his whims and fancies. There have been many cases that have come up in the court in which the wife didn’t even have a clue that she had been divorced. What is more astonishing to know is that ironically, the methods of divorcing wives have reached an all new level with divorces happening over chats and Skype. In the case of Mohamed Ahmad Khan Vs Shah Bano, the wife approaches the court, as after the divorce the husband stopped paying the maintenance after the period of iddat, which is the minimum period after the divorce or the death of the husband, a wife cannot remarry. This was however, in contradiction with Sec125 of CrPC which provides for the maintenance of the ex-wife. The Judges however, decided in favor of the wife by saying that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife, who is unable to maintain herself. This judgment was however, overruled owing to the political pressure and resistance from the Muslim community, by passing a new act in the parliament which was The Muslim Women (Protection of Rights on Divorce) Act 1986, which restricted the maintenance to be paid up to the period of iddat. This provision has been greatly misinterpreted as going back in the time will explain the real reason behind it. In those days, after being divorced, the wife used to remarry just after the iddat period, as it used to be a common practice in those times. Three decades after the case, another woman (Shayara Bano Vs Union of India) has filed a writ petition in the Supreme Court for inter alia,declaring Sec 2 of The Muslim Personal Law (Shariat) Application Act, 1937, unconstitutional, which validates triple talaq as valid divorce along with the practice of polygamy. The act doesn’t take account of the rights of a woman, provided to her by the customary laws, to seek divorce. This system is known as Khula which is a counterpart to divorce by men, which is on the behest of women. In this, the wife has to just approach the qazi for divorce and the husband doesn’t even have the right to know the grounds of divorce. This also, has been ignored and not brought into recognition.
Yet another difference which arises in different laws is the minimum separation period which is necessary after filing for divorce by the couple. It is 1 year amongst the Hindus, while the same is of 2 years amongst the Christians. For this, a Christian couple moved to court, challenging its validity. The judges, however, asked the government of its stand as to whether they want to make it happen or not. The bench remarked that it has become ‘confusing’ to decide.
Article 25 of the constitution provides for the freedom to profess, practice and propagate any religion. Every person has a right to practice his religion freely, subject to public order, morality, health and other provisions relating to fundamental rights. In the case of Javed Vs State of Haryana, it was held “what are protected under Article 25 are religious faiths and not a practice which may run counter to the public”. Also, in the case of Khureed Ahmad Khan Vs State of U.P. & Ors., it was held by the SC, that the matter is no longer res integra,as polygamy was not an integral part of the religion, and a practice does not acquire a sanction simply because it was permitted. Though the personal law of Muslims permits having four wives, but it could not be said that having more than one wife is part of religion.
There is no general law of adoption in India, and people are subject to their various laws of adoption based on the religion they belong to. While the adoption laws among Hindus are governed by the Hindu Adoption and Maintenance Act 1956, Muslims and Christians have no concept of adoption in their customs. Hence, they have to approach the court as per the Guardians and Wards Act, 1890 to legalize adoption. Adoption among Hindus is more of a sacrament then a secular act. Also, the Supreme Court has held that adoption in Hindus, is a two-fold objective; for the performance of funeral rights and for the continuance of one’s lineage. Among Hindus, the father has a better right over the mother when the child is above 5 years of age and the prior right of mother is claimed only when the child is below 5 years. As per the act, a Hindu man cannot adopt a non Hindu child i.e. Muslims and Christians, and the adoption of a non-Hindu shall not be recognized by the Act. Also, there are restrictions imposed, like a couple cannot adopt a boy if they already have a Hindu boy and same applies in the case of girls as well. Also a legally wedded Hindu cannot adopt a child by her own. This can only be done under the name of her husband. The act is not child-oriented but parent-oriented, as it is a religion specified act, which gives more weightage to the religion of the child than his betterment. However, the Juvenile Justice (Care and Protection) Act 2015 places no restriction on the adoption of child of same sex and allows even a single person including a single woman to adopt a child, as is restricted in Hindu Adoption and Maintenance Act, 1956. A major discrimination that Hindu law provides for, is in the case where the son converts to another religion apart from those who are allowed. In such a situation, this has to be seen whether the son converted before or after the children were born.
Since there is no concept of adoption among Muslims, ‘Kafala’ system has been recognized, under which a child is placed under a ‘kafil’, who provides for the well being of the child, including financial support and thus, is legally allowed to take care of the child though, the child remains the true descendant of his biological parents and not that of the “adoptive” parents. This has also been recognized by the United Nations. Parsis and Jews too, are subject to the laws of the Guardian and Wards Act, 1890.
The intent behind every adoption is to serve a two way benefit. One, it helps the childless couples to have the pleasure of raising a child and second, the greater and the more important objective, to fill colors in the life of an orphan and giving him all the love and comforts of life which he is deprived of, so that he can earn a living for himself and live his life like a normal person. Religions can’t be allowed to pose an obstacle in this. Justice P.N. Bhagwati in his landmark judgment in LaxmikantShukla Vs Union of India said “no child can grow his full stature, outside the framework of a family.” Article 39 of the Constitution of India directs the government to make special provisions through legislation programme& approaches to ensure that the tender age of children is not abused & that even those living under extremely difficult circumstances are given facilities to develop in a healthy manner & in condition of freedom and dignity. India has the second largest child population in the world and it is estimated that there are over 32, million destitute children in one country. The religion-specific nature of adoption law was a very retrograde step. It reinforced practices that were unjust to children and hindered the formation of a Uniform Civil Code. The SC has however, held in the case of Shabnam Hashmi vs Union of India that personal laws cannot dictate the operations of provisions of an enabling statute like Juvenile Justice (Care and Protection) Act 2015, which is a secular law and the act would prevail over all personal and religious codes in the country. A major step has been taken by the apex court towards the achievement of Uniform Civil Code by nullifying all the provisions of all the acts inconsistent with the Juvenile Justice(Care and Protection) Act 2015. The court also said that the personal laws could continue to govern any person who chooses to be governed by them until a uniform civil code is achieved.
There is no concept of Joint family as a legal entity among Muslims, like it is in Hindus, and there is no distinction made between movable and immovable property. When the members of a Mohammedan Family live in commensality, they do not form a joint family, in the sense in which the expression is used in the Hindu law. Also, in Mohammedan family, the right of husband over cash and household furniture is presumed.Also, when daughters are excluded from inheritance either by custom or by a statute, they should be treated as non-existent, while determining the shares. Another astounding provision, as per the Holy Quran, is given in IV: 11 which states as follows “Allah directs you concerning your children (their inheritance), to the male a portion equal to that of two females”. How can this discrimination be justified in the eyes of law? Those who back this provision, are of the view that since the girl gets dower from her husband after marriage, she doesn’t require much of the property. It’s the husband who has to use the property that he has got in inheritance for the welfare of the family. But, this also cannot be the ground for not giving equal share. These provisions show prima facie the dominance of males and their intent to make the women dependent on them. Even in the case of testimony, two female witnesses are equal to one male witness. This is clearly absurd and in violation of Article 14, which guarantees equality to everyone on the grounds of race, religion and sex.
The law governing the succession among Hindus, is governed by the Hindu Succession Act 1956, prior to the enactment of which, it was governed through shruti, smriti, commentaries, digests and customs. The position of women was however, minimal as she didn’t have any independent rights and had to be dependent on the male counterparts of the family. The Hindu Succession Act 1955 basically, has two schools namely Dayabhaga, which is also known as Bengal School of law and is applicable in West Bengal and Mitakshara, which is applicable in the other parts with variations. While the Mitakshara school doesn’t give women of the house any right to take part in the management of the business as coparceners,which also meant that she couldn’t demand partition as only coparceners have that right, Dayabhaga school of Bengal allowed women to be coparceners. This came as a shock as even after 6 years of the making of the constitution, which recognizes equality as a fundamental right, the legislatures could come up with such biased laws, making a mockery of the constitution and uniform civil code. Discrimination against women is so pervasive that it sometimes surfaces on a bare perusal of the law made by the legislature itself particularly in relation to inheritance and succession. The amendments brought in the act in 2005 give daughters equal status as sons. Now, daughters can be coparceners and take part in the management of the business while the same right is not available to mothers and wives and widows as this concept has not been modified substantially. Women were however, not recognized as a Karta of a Hindu Undivided Family. The oldest male member of the family becomes the karta who has all the powers and under his names all the business undertakings take place. But the Delhi HC, in the case of Sujata Sharma Vs Manu Gupta, Justice Waziri held that Sec 6 of the Hindu Succession Act is a socially beneficial legislation which gives equal rights of inheritance to Hindu males and females and hence, if a male can become a karta by virtue of his age, then even a female has that right.
THE GOAN CIVIL CODE
If there is any region in India which has been possible in achieving a Uniform Civil Code, it is Goa. Owing to its majority population of Christians, the law is largely based on the Portuguese Civil Code of 1867, with some modifications to suit different religions apart from Christians. Article 372(1) of the constitution specifies, “All the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority”. Article 372(3) further reads, “law in force in this article shall include a law passed or made by a legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas”. Since, Goa was not a part of India at the time of independence; these provisions didn’t apply to Goa, when it came under the territory of India on 19 December 1969. For divorce, there are severe provisions. The practices of triple talaq have been banned and no Muslim man can have more than one wife. During the course of marriage all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce, is entitled to a half share of the property and if one dies the ownership over half of the property is retained by the other. Also, if all their children (both male and female) have got married, then their parents cannot disinherit any of their children completely. Parents can only inherit half of their property as per their will. The other half is divided amongst all the children equally, irrespective of the sex. In the Uniform Civil Code in Goa, a citizen’s juridical capacity is understood in one’s identity as an individual, and not as a member of a religious community. Although uniform to a great extent, there are some specific provisions which exist among different religions. There is ‘limited’ polygamy allowed among the Hindus when the wife is not able to give birth to a child, up to a certain age. This is however, prohibited among other religions. Also the Church has not been separated from the State. Those who opt to solemnize their marriage in Church, the Church can annul the marriage at the instance of one of the parties, as is laid down in Church law. The difference in treatment is also seen in the cases of adoption as Goa, like rest of the states doesn’t have a uniform civil code of adoption. This means that no Muslim couple can legally adopt a child.
CONCLUSIONS AND RECOMMENDATIONS
Women empowerment is a much talked about reform. As Swami Vivekananda once said “All nations have achieved greatness by paying proper respect to women and a country can’t progress by neglecting its womenfolk, just as a bird cannot fly only on one wing”. However, our personal laws have made sure that the fair sex doesn’t get a chance to stand up on its feet, as they have become subject to many social constraints curbing their advancement, and ultimately the nation suffers due to this. This has greatly affected the achievement of women empowerment. Article 14 and 15 of the Constitution do not give anyone the authority to discriminate anyone, on the basis of race, caste, place of birth and sex. However, personal laws are being given the authority to have an overriding effect of the law of the land. Different laws governing people belonging to different religions has led to many differences being cropped up. Political parties have many times lured on this opportunity to take advantage by playing politics on such a sensitive issue, delivering hate speeches and targeting a particular religion. This has led to the mob getting violent, and Babri Mazjid attacks and the Gujarat riots are the consequences of these. One more thing that needs to be noticed here is that earlier, people used to stay closely attached to their religions and it used to play a huge role in their lives. Due to industrialization and modernization and scientific advancements, religion has lost the social influence that it had on the lives of a common person and has only become a post- retirement thing. People are so busy in their personal lives, trying to earn a living, that they have become ignorant of religious practices. Hence, it can be rightly said that personal law boards especially the All India Muslim Personal Law Board (AIMPB) are trying to sustain the socially, ethically, and legally unjustified laws and practices under the guise of religion. God doesn’t discriminate among his children. It is only the so-called religion gurus and maulvis who have manipulated the ancient scripturesas they please, so as to promote their evil intentions. Especially the Mohammedan laws, many provisions of which have been so badly misinterpreted that people who preach Islam are unaware of the actual Quranic knowledge. The hold of maulvis has been so strong on the Muslim community that there is absolutely no scope for the reform in Muslim laws. Prof. Tahir Mahmood in his book, ‘Amid Gods and Lords’ wrote an anecdote: A maulvi and a pandit go to God and both complain that their communities don’t accept social reform. After a long argument, God counsels them to be patient with their community and that a time would come when they would accept reform. The pandit asks, “When would that time come?” God said, “Not in your lifetime.” Then the maulvi asked, “When would that time come for my community?” God said, “Not in my lifetime.” Every sensible Hadith is declared false, every sensible verse of the Quran has been abrogated. Bad customs need to be done and over with. It is only sheer ignorance, obstinacy and blind belief, that have sustained the existence of personal laws. Even the Muslim countries like Tunisia, Israel and Turkey have banned polygamy and other unjustified laws. The word ‘Secular’ was included in the preamble of the Constitution by way of the 42nd amendment. Unlike the typical meaning where the state doesn’t recognize any religion, secularism in the Indian context means that every religion is given equal respect. However, it only seems that no measures have been taken by the parliament for the betterment of the women among Muslims. The Muslim Protection Act was apparently enacted by the Rajiv Gandhi government for providing protection to the Muslim women, worsened the situation by making the wrong interpretation, so as to negate the breakthrough judgment of Shah Bano case. Uniform Civil Code being just a DPSP cannot be enforced by the courts. It is only the duty of parliament to achieve this object. However, our legislators have turned a blind eye on the issue. No concrete steps have ever been taken. Perhaps, it seems that they don’t want to annoy their voters as this might take a toll on their vote bank. A huge population in India, being uneducated are often deceived into false beliefs. It is a bitter truth to swallow, but the voters see the religion of their leaders before voting. That is the only reason that no action has been taken. What is more shocking to see is that, apart from the legally established courts, there are private courts functioning, which are run by imams, and also in the rural parts of Haryana, which have time and again delivered horrific and terrifying judgments, such as issuing absurd fatwas and allowing honor killing, which shakes the conscience to core. Though their decisions are not at all binding, but their functioning however, cannot be justified. The Constitution doesn’t provide with anything for the protection of personal laws. Contrary to this, it provides for amending any personal law, as per Entry V of the Concurrent list. The unity of the nation is threatened, and if, appropriate and timely measures are not taken to give equal treatment to every person irrespective of his religion, the day is not far when this religious segregation will break the country. India, being a vast country, cannot accommodate each and every religion’s views while enacting the laws. To start off with, reforms can be made within the community e.g. same laws for Shias and Sunnis and same laws of succession among the Hindus. This internal uniformity can later be expanded by bringing uniformity among all the religions in the civil domain. This however, should not prescribe the way, a ritual should be performed. This should be left to the customary practices. Attention should also be given while amending laws for the North-eastern regions, as it has been provided by the Constitution, that any amendment in their personal laws shall be made by their Parliament only. A Uniform Civil Code is the need of the hour for unifying the nation. With no measures being taken by the Legislature, Judiciary seems to be the only hope. Judiciary though, is taking steps towards the goal of Uniform Civil Code and has sent many reminders to the government regarding the issue, but of no avail. It is high time for our leaders to stop playing dirty politics and take steps for the betterment of the nation.
By: Hunney Mittal
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