Is Gender Justice the Real Concern for the Modi Sarkar, Look at the Injustices in All Personal Laws

Written by Teesta Setalvad | Published on: May 18, 2017
(Archives)

Uniform Civil Code or Gender Justice? was the question raised by the 1994 cover story of Communalism Combat, 23 years ago. Then as now, the ostensible concern of the far Hindutva right for justice for Muslim women--as being articulated in the Supreme Court presently--was not out of any gender concerns but only out of a desire to hegemonise both discourse and justice delivery in the area of gender rights. Today, unlike then, when they were a marginal but aggressive political force, they hold the instruments of state power.

During the arguments before the Supreme Court, Attorney General, Mukul Rohatgi did not answer queries put by some members of the Five Member Bench as to whether the Modi Government was concerned about righting the patriarchial norms in all religion based personal laws. Then as now, the false concerns for Muslim women arise out of a desire to hegemonise even the injustices through gender,



Illustration: Amili Setalvad

Is Gender Justice the Real Concern for the Modi Sarkar or are we Witnessing a Sinister Design to Hegemonise Gender Justice Delivery Further?

Caught between the Sangh Parivar which has communalised an essentially secular concern for a uniform civil code and the orthodox Muslim leadership resistent to any change, the women's movement and other secular-democratic forces seem to have been gripped by - an intellectual paralysis. Unless these organisations de-communalise the demand and shift the focus of the debate to gender justice - not just Muslim, but all personal laws in India are loaded against women - the uniform civil code issue may prove to be a lethal weapon
 
Among the numerous weapons stock-piled in the saffron brigade’s propaganda arsenal, the one labelled ‘Uniform Civil Code’ arguably has the most lethal potential. No doubt, the Ramjanmabhoomi movement carried the BJP and the Sangh Parivar to dizzying heights in a very short time. But ultimately, the Ayodhya dispute has proved to be self-limiting. Devoid of any rational content, it had only an emotive appeal.
 
The ‘One Country, One Law’ demand, on the other hand, appeals to reason as well. Why should a secular society have different laws for different segments of the population? The Muslim insistence that the Union government change the law of the land to nullify the Supreme Court judgement in the Shahbano case in 1986 and the All India Muslim Personal Law Board's callous disregard of the demand for an end to the instant divorce (talaq-talaq-talaq) practice in the middle of 1993 has created a public perception that Muslims are totally hostile to any idea of social reform. This has only added emotional charge to what also appears to be a fairly rational argument. Nothing could better serve the propaganda needs of the Sangh Parivar. But for the fact of its electoral reverses in the assembly elections last November, the saffron brigade was expected by many to open up a new battle front.
 
If Muslim orthodoxy has done its bit to aid the RSS cause, the women's movement in particular and secular-democratic forces in general, too, cannot escape their share of the blame for letting the Hindutvavaadis totally dominate and distort the debate on badly needed reforms in all family laws in India. Through its constant argument that enacting a uniform civil code will bring about national integration, the Sangh Parivar has succeeded in making many Hindus believe that, one, only “separatist-minded” Muslims are opposed to a uniform law, and, two, the uniform civil code will only affect Muslims.
 
But a dangerous, if unintended, result of this silence was the smug belief among large sections of the Hindu majority, including non-communal people, that while the law-abiding, secular-minded Hindus had peacefully accepted the codification of Hindu family laws in the '50s, Muslim personal law was still thickly laden with gender inequities. The Sangh Parivar's propaganda machinery played a big role in generalising and accentuating this false perception.
 
The lapse seems even more unforgivable because the ground level experience of women's groups throughout the country has shown that women living under all the existing personal laws- Hindu, Muslim, Christian – were victims of harassment and discrimination.
 
Nafisa Hussain, a BJP office-bearer who has petitioned the Supreme Court of India demanding a Uniform Civil Code, is for Hindu communal forces a glaring example of the sorry status of Muslim women. But the thousands of Hindu women who are deserted or denied their right to equal share in family property are of no concern to them. Polygamy is today an offence under Hindu personal law but the Muslim personal law still has a provision for four wives. The Sangh Parivar which never tires of high-lighting this inequity in law, never breathes a word about the fact that the practice, is more widely prevalent among Hindus than among Muslims.
 
Last June, the Ahl-e-Hadith sect inadvertently sparked a nationwide debate by reiterating their long-held stand that the widely prevalent practice of instant divorce (talaaq-talaaq-talaaq) among Indian Muslims was un-Islamic. But the ulema took the strange position that though triple-talaq is reprehensible in the eyes of Islam, its legality cannot be questioned.
 
Undaunted by this, a large number of Muslim men and women publicly demanded an immediate end of this anti-women and anti-Islamic practice. It was an opportunity for women's groups and other secular-democratic minded people to intervene and to reinforce the reformist voice among Muslims. For example, would it not have been pro-woman and secular to demand that the talaaq-i-tafwid and khul, the corresponding right for the Muslim woman to unilaterally divorce her husband must be in all fairness available to her?
 
Christian women in India have so far fought unsuccessfully for their right to divorce. Only now, there are indications that they may succeed in seeing a long overdue amendment to the Christian Marriage Act passed. The Hindu women's battle for a just and equitable share in property still has a long way to go.
 
A gender bias does undoubtedly exist in Muslim personal law. But it is undeniable that Hindu, Christian, Sikh, Buddhist, Jain and tribal women also carry the same unfair burden because of the family/customary laws applicable to them.
 
Even less known is the fact that while an anti-woman bias pervades all existing personal laws, a communal bias is evident not only in some of the provisions of Hindu family laws, but even the supposedly-secular Special Marriages Act. The laws of the land predictably discriminate against all women; they also treat Hindus as a special category as compared to non-Hindus. To cite a few examples:
 
*          The anti-women enactment of a special law for divorced Muslim women in the wake of the Shahbano controversy happened in the floodlight of negative publicity. However, an amendment to the Special Marriages Act in 1978, with the primary objective of preventing property accruing to Hindu women, was enacted almost clandestinely and with hardly any murmur of protest. Following this amendment in the avowedly secular law, on contracting a civil marriage, a Muslim, Christian, Parsi or Jew no longer has access to her or his personal law of succession. They are governed by the Indian Succession Act, 1925. But a Hindu, Buddhist, Jain or Sikh shall, on contracting the same civil marriage, retain his or her personal law of succession. The obvious beneficiary of this amendment is the Hindu male and the loser, the Hindu woman.
 
*          Under the Hindu Succession Act, 1956, the female heirs (of Class 1) do have a right to reside in a portion of the family home. But the right to claim partition is given exclusively to male heirs.
 
*          Under the Hindu Marriage Act, 1955, the post-marriage conversion by either spouse furnishes to the other a ground for divorce. In other words, change of religion is treated under this Act as an unpardonable matrimonial offence. But this right to divorce is given only to the spouse who continues to remain a Hindu.
 
*          Under the Hindu Succession Act, 1956, children born to a Hindu after she/he has adopted another religion and the descendents of such children are disqualified from inheriting the property of a Hindu relative.
 
*          Under the Hindu Minority and Guardianship Act, 1956, if either parent renounced Hinduism, the person who has committed this “offence” is automatically deprived of the right to remain the natural guardian of a minor child. There exists a gender bias too: the Hindu mother cannot act as guardian of her child unless the father is dead or otherwise disqualified.


*          Presently, adoption is a legal right available only to Hindus. This leads to extremely discriminatory conditions to the non-Hindu partner. Under the same Act, the natural father of a Hindu child can give or take in adoption without, in law, caring how his non-Hindu wife reacts to it. But the wife can veto his action only if she is a Hindu. Most significantly, only a Hindu child can be adopted and the right to adopt a son is denied to any person who has a Hindu son, grandson or great-grandson.
 
*          In the case of maintenance too, similar gender and communal biases exist: a non-Hindu wife cannot claim maintenance from her Hindu husband (either while living with him or separately). But a Hindu wife enjoys the right to live separately from her husband on grounds of his conversion without forsaking the right to be maintained by him.
 
*          Certain income-tax benefits accrue in secular India only to Hindus who can prove that their income comes from the proceeds of a “Hindu undivided family.” (HUF). The Supreme Court has held that “there need not be more than one male member to form an HUF and the “tax benefits in such a case should be levied on the joint family and not on the male as an individual.”
 
Instead of maintaining a silence on all these anti-women and pro-men or pro-Hindu provisions of family laws, should not the debate on reforms in family laws be re-framed by secularists incorporating all these arguments with a correct perspective?
 
First and foremost, this will help in de-communalising the argument for change. By creating a public awareness that anti-women provisions exist in all personal laws and that the necessity and urgency for change is to remove these biases, the anti-Muslim thrust of the saffron campaign will be blunted.
 
When that happens, Hindutva's unstated demand of a Hindu hegemony on family laws will stand exposed. Then, both the supporters and opponents of reforms can be expected to cut across the religious divide, with the holy hierarchies of different faiths possibly standing on the same side.
 
The battle is not going to be easy. The hi-jacking of a debate which should have centred around the question of gender justice by Hindu communalists has accentuated anxiety among the minorities, who see the demand for a Uniform Civil Code as an attempt to rob them of their religious and cultural identity. The communalisation of the debate has only helped strengthen the hold of Muslim orthodoxy which in any case is resistant to change. But it is a battle that will have to be fought. And fought squarely. Not merely to re-gain lost ground from the saffron brigade but to strive towards gender just family laws.
 
Even among the secularists, opinion is sharply divided on whether tactically and on principle, the argument should be for a uniform civil code or for simultaneous reforms and parallel codification of separate family laws. While one viewpoint argues strongly for a Gender Equal Family Code that culls out the best principles from all existing family laws and offers a legislation that is both pluralistic and nondiscriminatory, the second still favours reform within existing personal laws.
 
Says Professor S.P. Sathe from Pune who has been working on drafting a Gender Equal Family Code: “Personal laws were never considered a part of freedom of religion.” In his view, the freedom of religion, a fundamental right guaranteed under article 25 of the Indian Constitution, is not absolute and has been carefully drafted to subject it to prevailing notions of public order, morality and health.
 
He adds, “Is preservation of your personal law tantamount to your sense of identity? No community's identity should depend upon how badly we treat our women. The inclusion of the Directive Principle of State Policy (Article 44) that clearly lays down the intention of the State to work towards a uniform civil code makes this clear.”
 
Other advocates of a similar position argue that such a, change must come and come quickly. “Otherwise, the aggressive argument of Hindu communalists will gain more credence. We must take the debate to a different plane, argue for plurality within the same code. The whole issue must be re-framed to create a reformists v/s status quoists polarisation,” argues a leading feminist from Bombay who preferred anonymity.
 
“The moment we do this and show that Hindus, and Hindu males also benefit from preferential treatment like the income-tax exemption granted for the HUF, communalists of all hues will unite together on the same side of the fence.”
 
Others like noted researcher and Bohra reformist, Asghar Ali Engineer feel that “it is not strategic at this stage to talk of uniform civil code as it may be misunderstood.” But he is in complete agreement that principles of gender justice must be fought for. “If on this question the individual communities, whoever they are, do not take the initiative then the State may have to take steps,” he adds.
 
The first viewpoint argues for a comprehensive code on personal laws based on the best provisions of existing Muslim, Hindu, Christian or secular-western laws as the only practicable solution. This, it is argued, is not merely desirable but also more feasible in practice since the trappings of tradition, custom and faith would make it very difficult for women to seek justice under separate personal laws. The second position maintains that reform and codification of the existing personal laws is more realistic as it would be more easily accepted by different communities; this would not threaten ethnic and religious identities; and rights concerning marriage, divorce and inheritance that are so much a matter of custom, tradition and religious belief would be easier for a larger numbers of women to assert. Either way, women's organisations and all secular-democratic forces would do well to urgently initiate and alter the terms of the debate. Failure to do so now will leave them as paralysed when the ‘One Country, One law’ demand builds into a storm as they were when the kar sevaks assembled in Ayodhya in December, 1992.

(Archived from the March 1994 issue of Communalism Combat where this appeared as a cover story)
 
 

Diversity within personal laws

 The Hindutvavaadi clamour for a uniform civil code is justified on the ground that it will help bring “national integration”.
 

How a commonality in personal laws can realise this ideal when a common criminal law has failed in eradicating crime is a question only they can answer. Brahmanical cultural hegemony, not national integration, is more likely to be their real objective. The oft-peddled argument of the saffron camp is based on yet another falsification: except for the minorities a uniformity in personal laws already exists. In fact, there is a lot of diversity within all the existing personal laws.
 
For example,

Despite the Hindu Marriage act, customary law still works as far as divorce is concerned; if you can prove it is a custom, out of court divorce is possible. Both HMA and Hindu Succession Act allow many other customary laws.
Tribals who form 8 per cent of the population are governed by customary tribal law: Among the Santhal and Bhil tribals, women cannot hold property. Its only now that they have started demanding protection against polygamy.
Christians in Assam and Coorg and other Christian tribes in Bihar and Orissa have been exempted from the application of the Indian Succession Act, 1925.
Even the Shari'at Act of l937, codifying Muslim law and binding civil courts to apply its provisions to all Muslims relating to matters of family laws and relations is out of bounds for Muslims of J & K where the existing customary law takes precedence over it.
For the Muslims of Goa, the Portuguese family and succession laws still apply.
For the Sunni Bohras of Gujarat and the Muslim Ghirasias of Bharuch, Hindu customary law has been applied pre-and post-Independence “in the interests of uniformity.”

Muslims of Kerala have retained their marrumakadayam system. It is not shared by Muslims in other parts o India.
 
(Archived from the March 1994 issue of Communalism Combat where this appeared as a box to the cover story)