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The Uniform Civil Code in India has been in a complex place, since the Shah Bano’s case. Here is brief an analysis on where it stands now.
‘It was we, the people; not we, the white male citizens; but we, the whole people, who formed the Union… Men, their rights and nothing more; women, their rights and nothing less.’
– Susan B. Anthony
Shah Bano Begum (aka Shah Bano) took the fight for her rights to the highest court in the country which in 1985 ruled in her favour and directed her ex-husband to provide financial maintenance under Section 125 of the CrPC. This decision triggered nation-wide debates and agitated religious leaders and organizations pressurized the government to reverse it. The then Rajiv Gandhi led government overturned the Shah Bano case by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125.
This moment was the starting point of what became a long and hotly discussed topic with no immediate end in sight.
The Uniform Civil Code (UCC) is meant for all sections of the society irrespective of their religious beliefs and they are to be treated equally according to a national civil code which shall be uniformly applicable to all. The civil code covers areas like marriage, divorce, maintenance, inheritance, succession of property and adoption. Article 44 in the Constitution is a Directive Principle of State Policy (DPSP) and states that ‘the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’
The middle path to the dilemma can be found after understanding the main ideological stands that have been taken on this issue.
Uptil the 1990s, the issue of the UCC was seen as one of ‘national integrity’ or the lack thereof. Proponents would allude to the need for all citizens to foster national integrity by accepting a UCC and the opponents would cry foul about the threat of cultural and religious appropriation by the majority if such a legislation comes through. From the 1990s onwards owing partly to the interventions of the women’s movement, the issue of the UCC was seen as one about women’s rights and specifically of those belonging to a minority community.
Articles 25 and 26 grant fundamental rights to communities to profess and propagate one’s religion under reasonable restrictions; these automatically give rights to minorities to be governed by their own ‘Personal’ Laws. The tussle is therefore seen between the provisions of the fundamental rights mentioned and Article 44 of the DPSP.
Nivedita Menon in her piece on Kafila compares provisions in the Muslim Personal Law vis-à-vis the codified Hindu laws and finds that the concepts of mehr and Muslim marriage contracts are progressive and work in favour of Muslim women. Suraiya Tabassum defines Mehr as ‘the money or property of any kind, which is an obligation of the man towards the woman as a result of the marriage on its consummation.’
However, both of these would not find mention in the UCC as they go against the long-standing traditions followed in Hindu marriages.
The supporters of UCC often quote the ‘success’ story of the implementation of UCC in Goa. Lawyers and activists have pointed out discrepancies in this practice which has been in place since the time of the Portuguese.
The supporters of UCC often quote the ‘success’ story of the implementation of UCC in Goa. Lawyers and activists have pointed out discrepancies in this practice which has been in place since the time of the Portugese. Nevertheless, Menon points out a positive aspect which is the ‘Community Property Law’ that guarantees each spouse half of all assets owned and due to be inherited at the time of marriage. In addition, each spouse needs to take permission from the other before disposing off any of those assets.
The criticism coming from the more liberal quarters of Islam (activists, teachers, lawyers, feminists) highlight how the conversation on the Muslim Personal Law has been limited where judgements are only looking at anomalies within these laws and focusing on how ‘vague’ and ‘obscurantist’ they are. There is a burning need to interact with the women from these communities to truly understand where they see themselves as far as these laws are concerned. Gender- just reforms are required both in secular and personal laws in India as there is no denying the structural patriarchy that exists and gets justified through these laws.
Shah Bano had to recant her stand when religious leaders and politicians descended on her and made her feel guilty for demanding something that was her right recognized by the Supreme Court. Many such Shah Banos have come and gone. The question remains whether the political and social classes of our country are prepared to find a just and fair middle-ground on this contentious issue and whether they are ready to grant women the equal status they deserve?
Cover image via Shutterstock
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