Debating India


The affects of a Common Civil Code

Times of India

Tuesday 5 August 2003

Dossier du Times of India sur les effets de la mise en place d’un code civil commun aux diff?rentes communaut?s religieuses de l’Inde.

Politics apart, the case for a Uniform Civil Code - which will cover the entire gamut of laws governing rights relating to property, marriage, divorce, maintenance, adoption and inheritance - has been most argued on behalf of women. There is universal agreement that personal laws, regardless of the community, are skewed against women.

A Universal Civil Code will most affect:

Marriage: In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the divorce provisions in Muslim law as well as that polygamy be declared illegal. The Supreme Court asked her to approach Parliament, refusing to entertain the petition.

Bigamy is punishable by law in all communities save the Muslims, who are governed by the Sharia law. The Muslim Personal Law (Shariat) Application Act 1937 was passed by the British government to ensure that the Muslims were insulated from common law and that only their personal law would be applicable to them. Bigamous marriages are illegal among Christians (Act XV of 1872), Parsis (Act II of 1936) and Hindus, Buddhists, Sikhs and Jains (Act XXV of 1955). Enactment of a Uniform Civil Code would impinge upon Muslim rights to polygamy.

In almost all recent cases where the need for a Uniform Civil Code has been emphasised women were at the receiving end of torture in the garb of religious immunity. Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there have been several other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife.

Julekhabhai had sought equality with Muslim men, requesting court to declare that "dissolution of marriage under Muslim Marriage Act, 1939, can be invoked equally by either spouse". It also requested the court to strike down provisions relating to "talaq, ila, zihar, lian, khula etc ", which allowed extra-judicial divorce in Muslim personal law.

Mohammed Abdul Rahim Quraishi, secretary, All India Muslim Personal Law Board, says: "It is also to be seen that the subjects of marriage and divorce, infants and minors, wills, intestacy and succession, partition etc, are enumerated in the concurrent list of 7th Schedule of the Constitution. These are subjects on which both the central and state governments have the power to make laws. As a result, we find many regional variations affected by the state legislatures in the Hindu Laws."

"To conserve the cohesion of Hindu society, the Hindu laws made allowances for customs and usages. The imposition of uniformity would have undermined Hindu social cohesion. If matters relating to family laws and customs fall under the jurisdiction of parliament and state legislatures, the country will have a variety of regulations. The State amendments have made many in-roads in the Hindu laws damaging the uniformity of theses laws, affecting many substantive rules. "

Interestingly, when the BJP and affiliates make a case for a Uniform Civil Code, they talk more about national integration, less about equality. "There is a need for progressive laws and all communities should come together," says BJP leader V.K. Malhotra, confirming that the party will try to bring legislation for a common civil code.

Many progressive thinkers are now propagating the Special Marriage Act for the registration of marriages without reference to caste or religion. The Special Marriage Act is considered a secular method compared to the Hindu, Christian and Muslim methods of marriage.

Divorce: The thrice-uttered talaq has been much dramatised by Hindi filmdom and Muslim-bashers alike, but leaders of the minority community point out that it is not all that simple under Quranic principles. Between each utterance of talaq there has to be an interim period to encourage reconciliation and the divorce is binding only after such attempts have failed. But a number of cases have been filed in courts where wives have alleged that this was not done.

Muslim women would benefit if divorce laws were made universal. Apart from the act of divorce, a change in law would also force Indian Muslim men to pay alimony to their former wives. The Muslim Women’s Act of 1986, brought to overturn the Supreme Court ruling in the Shah Bano case would then be superseded.

When a 65-year-old Muslim woman fought a lonely battle for maintenance, it took almost a decade and the highest court of the country to award her the right to 180 rupees a month as alimony. Shah Bano’s lawyer husband appealed, pleading that according to Muslim Personal Law she was entitled to maintenance only for the period of Iddat - for three months following divorce.

Leaders like Syed Shahbuddin took up the chant and the Rajiv Gandhi government brought in a law to revoke the apex court award - the Muslim Women (Protection of Rights in Divorce) Act.

This reinstated the legitimacy of the law under the 1937 Act, and held that Section 125 of the CrPC does not apply to the divorced Muslim woman. Her husband is only obliged to return the mehr (dowry) and pay maintenance during the Iddat period.

For long Christian women too had the law loaded against them. A Christian man could obtain a divorce on the basis of adultery, a woman had to establish an additional charge like desertion or cruelty under the Indian Divorce Act 1869. But in 1997, cruelty, physical and mental torture were made ground enough for a Christian woman to obtain a divorce, with the Bombay High Court recognising cruelty and desertion as independent grounds for the dissolution of a Christian marriage.

Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of adultery, cruelty, desertion for two years, conversion in religion, an unsound mind, suffering from venereal disease or leprosy or if the spouse has renounced the world and not been heard from for seven years. Also no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights, or if the husband is guilty of rape, sodomy or bestiality.

All major religions thus have their own laws that govern divorces within their own community, and there are separate regulations under the Special Marriage Act, 1956 regarding divorce in interfaith marriages. Under a common civil code, one law would govern all divorces.

Inheritance: Deputy Prime Minister L K Advani, while endorsing the need for a Uniform Civil Code, had sought to allay fears that it would target any one community. The law would be uniform, he said, not formulated with a Hindu majority in mind.

To bolster his argument he admitted that one law that could have to go would be the Hindu Undivided Family Act. The law, in as much as it pertains to succession, is unequal in the way it treats men and women. Inheritance rights are loaded in favour of male heirs. And with the stress on inheritance in the male line, Hindu personal law has concessions for the Hindu undivided family. Until the Hindu Code Bill was passed in 1956, Hindu law prohibited women from inheriting any property.

Similarly under Muslim Personal Law, women have subordinate rights of inheritance.

The Indian Succession Act of 1925, modified in 1997, is applicable to persons other than Hindus but not of Islamic faith - like Christians and Parsis. This Act does not recognise women’s right to succession. Recently the Supreme Court decided in favour of women’s right to inheritance, to intestate and testamentary succession when a Christian woman challenged the Act in court

Patriarchy, thus, is the basis of personal law, regardless of community. Inheritance laws have created less noise and debate than marriage and divorce laws, mainly because in this regard social inequity has cut across communities. And women, for most part repressed and unaware of even the rights that exist, have been unable to secure them.

Interestingly, the matter that sparked the Uniform Civil Code debate this time was to do not with a threat to minority identity or a marriage related personal law. Father John Vallamattom, a Christian priest, along with an associate pleaded against the provisions of that Section 118 of the Indian Succession Act, 1925, which prevents Christians from bequeathing property for religious and charitable purposes.

Father Vallamattom pointed out in his petition that Sec 118 imposed a restriction only on Indian Christians and was not applicable to people of other religions, including Parsis. The Act makes it mandatory for anyone who wants to donate property for religious and charitable purposes, to have a will on record at least 12 months prior to death. Otherwise the will is invalid.

The priest has argued that Christian personal laws are flawed and discriminatory. Such laws will be affected under a Uniform Civil Code.

Adoption: Of all aspects of personal laws, those of guardianship, custody of children and adoption are the most inextricably linked to religion and culture. This is about bloodlines and perpetuation. And with children and young people involved, can have serious implications.

A Universal Civil Code will affect laws on adoption and therein could lie a lot of resistance.

Islam, for instance, does not allow adoption as only blood relations are recognised by Islamic jurisprudence. It has been argued that if adoption is made legal, then the adopted child has all rights to succession that a biological child has. But if a biological child is born subsequently, to the same mother or through another wife of the father, which child would have succession right?

Hindus may adopt but a stress on inheritance in the male line, male children get favoured during adoption adding to a social problem. Hindus, Sikhs, Buddhists and Jains and any other person who is not a Muslim, Christian, Parsi or Jew is governed by the Hindu Adoption and Maintenance Act, 1956.

Like Muslims, personal law for Parsis, Christians and Jews too do not recognise complete adoption. So if anyone from these communities has to adopt a child, he can do so only in "guardianship". This does not give the child equal status to that of a biological child.

Church groups have been seeking better adoption laws as the adopted child of Christian parents does not enjoy the same rights as the adopted child of Hindu parents under the existing laws.

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