The recent progressive decisions of the Shani Shingnapur and Trimbakeshwar temple trusts to allow entry of women in the wake of a series of protests constitute a welcome development in what has been a long march towards gender equality. They also served to rekindle a countrywide debate on ending widespread gender discrimination, especially on religious grounds. It is a matter of concern that close to seven decades after Independence, women continue to battle discrimination in matters of religion even as they march shoulder-to-shoulder with men in various fields.
Perhaps, the time has come for us to take a close, hard look at the Goa Family Law and see if it could be emulated in the rest of the country. The Portuguese Civil Code of 1867 was continued in Goa after its liberation, and it should be the model for other States. The progressive law provides for equal division of income and property regardless of gender between husband and wife and also between children. It is also applicable in the Union Territories of Dadra and Nagar Haveli and Daman and Diu.
Importance of a Common Code
A Common Civil Code that would put in place a set of laws to govern personal matters of all citizens irrespective of religion is perhaps the need of the hour. It is, in fact, the cornerstone of true secularism. Such a progressive reform would not only help end discrimination against women on religious grounds but also strengthen the secular fabric of the country and promote unity. However, it can be implemented only when there is wide acceptance from all religious communities after discussing all the pros and cons as no decision, however reformatory, could be thrust on the people without their acceptance. All misgivings would have to be squarely addressed for progress to be achieved on this count.
In fact, Article 44 of the Constitution declares that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. During the debate in the Constituent Assembly, Dr. B.R. Ambedkar, while supporting the need to frame a Uniform Civil Code, expressed the hope that its application might be purely voluntary. He also said: “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequities, discriminations and other things which conflict with our fundamental rights.” Babasaheb’s pragmatic words are of great relevance to the Indian social context today.
While there is a criminal code which is applicable to all people irrespective of religion, caste, tribe and domicile in the country, there is no similar code when dealing with respect to divorce and succession which are governed by Personal Laws. The Uniform Civil Code seeks to administer the same set of secular civil laws to govern all people.
Repeated judicial reminders
In 1985, the Supreme Court ruled in favour of Shah Bano, who had moved the apex court seeking maintenance under Section 125 of the Code of Criminal Procedure after her husband divorced her. The then Chief Justice, Y.V. Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. The Court directed Parliament to frame a Uniform Civil Code.
In the Sarla Mudgal v. Union of India (1995) case, the Supreme Court had observed: “Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said, ‘I do not think that at the present moment the time is ripe in India for me to try to push it through’. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80 per cent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil Code for all citizens.”
In the John Vallamattom v. Union of India case in 2003, Chief Justice V.N. Khare had observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country.”
In fact, the Supreme Court in October 2015 said there was total confusion due to various Personal Laws and sought to know if the government was willing to implement a Uniform Civil Code. It observed: “What happened to it? Why don’t you (the government) frame and implement it?” However, the apex court later declined to direct Parliament to bring in a Uniform Civil Code while allowing a PIL filed in this regard to be withdrawn.
A secular project at heart
Several eminent people, representing diverse fields, have put forth different arguments against the introduction of a Common Civil Code. The most common refrain has been that even the British did not try to codify Personal Laws based on religion and any attempt to bring in a common codification of laws would be tantamount to the state’s interference in religious affairs, particularly of the minorities. Nothing can be farther from truth. It would be apt to remember the words of Mahatma Gandhi, who once said: “We should get out of the miasma of religious majorities and minorities.” That, in reality, would be the precise endeavour of such a unified code. If one were to be wedded to rigid and bigoted views, why should there be any statutes and changes in them in sync with the times? As a society evolves, it enacts laws which protect and safeguard the rights and interests of all its citizens.
Contrary to a sustained campaign of misinformation, the whole concept of a Common Civil Code is not aimed against any particular religion or its customs, but to prevent oppression in the name of religion. It would naturally be based on internationally accepted principles of jurisprudence and would go a long way in providing a sense of security to people of various religious denominations.
Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, in a letter to Prime Minister Narendra Modi in November 2015, observed: “From the Shah Bano case in 1985 till date, Muslim women have never been heard in matters concerning their lives thanks to the politics in our country. Certain orthodox and patriarchal males have… stonewalled any attempt towards reform in Muslim personal law. In the process, Muslim women have been denied their Quranic rights as well as their rights as equal Indian citizens. Almost all Muslim countries the world over, such as Morocco, Tunisia, Turkey, Egypt, Jordan and even Bangladesh and Pakistan in our neighbourhood, have codified personal laws governing marriage and family matters… Indian Muslims are denied this opportunity. As a result, we see instances of triple talaq and polygamy in our society.” They further stated that they had just published national research findings “with a primary sample of 4710 Muslim women across 10 states. An overwhelming 92.1% women want a total ban on oral/unilateral divorce and 91.7% are opposed to polygamy. 83.3% women said that codification of Muslim family law will help Muslim women get justice”.
It was also mentioned that BMMA had prepared a draft Muslim Family Law based on Koranic tenets concerning the age of marriage, mehr, talaq, polygamy, maintenance, custody of children etc. The important provisions of this draft law include a minimum marriage age of 18 for girls and 21 for boys and that the consent of both parties must be obtained without force or fraud, minimum mehr to be equivalent of one full annual income of the groom to be paid at the time of nikah. Further, it said that Talaq-e-Ahsan should be adopted as the method of divorce requiring mandatory arbitration over a 90-day period, oral unilateral divorce to be declared illegal, polygamy to be declared illegal, daughters to get equal share as sons through hiba or gift deed or will, compulsory registration of marriages, and the qazi to be held accountable for violations during talaq, polygamy and other such matters.
From Shah Bano to Shayara Bano, who recently filed a PIL in the Supreme Court, the focus has been on gender-friendly reforms of Personal Laws. With changing times, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and constitutional rights are protected. Nobody need have qualms on this count. While emphasising that the foundations of secularism would only get further strengthened by introducing a Common Civil Code, I would like to recall the words of Mahatma Gandhi: “I do not expect India of my dreams to develop one religion, i.e., to be wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant, with its religions working side-by-side with one another.”
With the government seeking the opinion of the Law Commission to examine all aspects pertaining to Uniform Civil Code, the time has come for an enlightened debate in the country to arrive at a consensus at the earliest