Tuesday, 12 November 2019

Triple Talaaq & UCC Time To Reform

Updated: November 17, 2016 11:23 am

The question of triple talaq is once again in the news and has triggered a national debate. This is not as a reaction to a fatwa or a judgment, but because the issue has been raised by Muslim women and is also being discussed in the Supreme Court.  The Central government has for the first time opposed triple talaq which is a violation of Muslim women’s basic right to equality. The Law Commission of India (LCI) has asked for suggestions on a uniform civil code (UCC) which will have one law for all Indians from birth, marriage, divorce and succession, never mind religion. The concept of one nation, one law is more than a neat hashtag and goes back to the drafting of the Constitution. Back then, the issue was hotly debated—some members of the Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, while others believed that this was a goal to be achieved in stages. The directive principle—“shall endeavor to secure for citizens a uniform civil code”—was a compromise since the time was not right.

But the time has indeed come. The country is in a new mood. It’s a mood that is looking with considerable less tolerance at existing gender gaps, particularly where personal laws and religion are concerned. As women threaten to storm male-only mosques and temples, as the courts gird up to examine existing inequities, the timing seems quite right now.

Historically, the idea of a UCC has received support from two seemingly opposed constituencies: women’s rights groups and right-wing parties and organizations. Yet, the first stage of reform of the personal laws of Hindus—giving women the right to choose or divorce their partners, some rights in the property of their fathers and husbands, abolishing bigamy—faced considerable opposition from the then Jana Sangh—the precursor of the Bharatiya Janata Party (BJP) as well as the Rashtriya Swayamsevak Sangh (RSS). For many, it’s ironic that the push for a UCC now comes from the BJP.

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But the Congress’ track record is no better and it will, in all probability, never live down the shame of pushing back the rights of Muslim women by passing the perversely named Muslim Women (Protection of Rights under Divorce) in 1986. The passage of the Act by the Rajiv Gandhi government effectively reversed a Supreme Court judgement that granted maintenance to divorced Muslim women.

Despite the preamble of the Constitution proclaiming India is a secular state, and justice is guaranteed to all, Muslim women have never been equal to their men – on the specious ground that this law was ordained by Allah and is the most perfect of laws for all time to come.

Article 44 of the Constitution directs that the state shall enact a UCC while other provisions mandate that the state shall not discriminate between citizens on the ground of religion, caste, gender, place of birth or language. But by allowing Muslim men to marry four wives and divorce any of them by triple talaq, the state in effect denies Muslim women their right to equality.

Once enacted, a UCC will supplant and replace all personal laws of Hindus, Muslims, Christians, Parsis and Jews. It will mandate monogamy which was introduced by colonial Christians in British India who also outlawed Sati in 1829 and banned child marriage.

Before that, polygamy was common and polyandry was not uncommon as seen from the fact that Draupadi in the Mahabharata was married to the Pandavas while Krishna had 16,000 wives. In fact, if a Hindu wife was unable to bear sons, this was a valid ground for keeping a second wife.

Polygamy apart, both the Hindu Marriage Act and the Christian Marriage Act list 21 years as the legal age for marriage whereas under Muslim personal law, a man can marry a girl on attaining puberty which is 15 years of age which violates women’s rights.

This made the Portuguese enact a UCC in Goa during their 450-year-rule.The UCC in Goa will be used as a model by the LCI while drafting a UCC for the entire country .Be that as it may, Muslims believe the Quran is the eternal, literal word of God, preserved and collated in a divinely commanded order. It was written during the Prophet’s lifetime in the seventh century by 29 scribes who would record the revelations on palm leaves and animal skins. Many of the Prophet’s companions would memorise the entire Quran with the Prophet.

Other discrepancies which will be replaced by the UCC are that under Hindu personal law, divorce can be granted on the ground that the couple have been living separately for one year or more while canon law does not grant divorce at all except on the grounds of insanity and impotence. Muslim personal law allows a man to divorce his wife after saying ‘talaq’ thrice.

An amendment to the Hindu Succession Act in 2005 gave daughters the right to ancestral wealth equal to that of the son. According to Muslim personal law, “a daughter’s share is equal to one-half of the son’s, keeping in mind that a woman is worth half a man.” It is ironic how Muslim imams still assert that the shari’a emancipates their women.

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In February 2016, the PIL, titled “Muslim Women’s Quest for Equality,” came up before a bench headed by the Chief Justice. While the Court asked the Attorney General to assist it in the matter, it also accepted the application of the Jamiat-Ulema-e-Hind (JeH) seeking to be made a party in the case. The JeH stated that Muslim Personal Law could not be challenged for violating fundamental rights, as it had not been passed by a legislature but was derived from the Quran; hence it did not fall under the definition of “law in force.’’ The All India Muslim Personal Law Board (AIMPLB) followed suit.

Have your cake and eat it too, pretty much sums up the attitude of the AIMPLB (and its liberal cheerleaders) to the proposed Uniform Civil Code. It’s comforting to live in a secular nation, as long as secular notions don’t interfere with the exercise of gender discriminatory personal law. Chucking polygamy and triple talaq, it would appear, will deal a death blow to pluralism.

The UCC is an idea whose time has come. The arguments against it are compelling in their foolishness, from the AIMPLB’s contention that polygamy is actually good for women to the mystifying assertion (by Left liberals) that a uniform civil code is a good idea, but not when a BJP-led government is in power. That, somehow, makes the whole concept of equality before law useless.

The perfectly plain and simple question, whether women – Muslim, Hindu, Christian or Sikh– merit the same protection under law that all citizens of India enjoy, is met with knotty dissertations on why the existing system of Muslim personal law is actually quite nice to women. Shah Bano, or for that matter Sayara Bano, didn’t think so. Nor do the millions of Muslim women who live in fear of the three little words (80 per cent of divorcees in the community are women, says the 2011 Census.)

A third set of apologists says reforms towards gender justice should be left to the community. This grudging acknowledgment of judicial pressure and growing unrest among Muslim women, who’ve had it up to the gills with conservative interpretations of personal law, is hardly credible. The clerics’ disinclination to change was evident in 1986, when it bullied the Congress regime into nullifying the Supreme Court judgment upholding a divorced Muslim woman’s right to maintenance. It’s been 30 years and women have come a long way, which makes the AIMPLB’s stance downright anachronistic and about as graceless as Donald Trump’s groping stories.

It’s not about women, shouts the Left. They see the UCC as an insidious attempt to dilute the identity and curb the freedoms of India’s most vocal minority. But then, the infamous law which set aside the Shah Bano judgment was called the “Muslim Women (Protection of Rights on Divorce) Act, 1986”. Talk about getting it backwards. If it is simplistic to see a UCC in gender parity terms, how about in terms of equality before law?

The Judiciary, in its wisdom, has been in favour of a UCC and clearly does not see it as impinging on religious freedoms mandated by the Constitution of India. The other way round, in fact. Starting with the Shah Bano judgment, the apex court has repeatedly coaxed and sometimes hectored Parliament to draw up a law that ensures justice and legal parity for all. Parliament has been wary of doing so, for fear of alienating India’s most powerful minority. The introduction of a universally applicable gender-just succession law, which the UCC would entail, is unlikely to go down well with the patriarchy, regardless of faith. So, hats off to this or any other dispensation brave enough to bring in a Uniform Civil Code.

For the sake of argument, let’s assume a Uniform Civil Code – a key point in the BJP election manifesto of 2014, is a part of the RSS agenda. Why the fuss? The RSS has, on occasion, come up with some pretty good ideas. Like backing the Congress on the Land Acquisition and Food Security Acts and on the shelving of Bt Brinjal. To junk the UCC because it has Nagpur’s fingerprints all over it is like opting for a drastic rhinoplasty gone wrong. It’s quite as silly as the widely circulated Whatsapp post inviting Muslim clerics opposed to the UCC, to adopt Sharia law in all its severity.

Likewise, saying that the UCC will lead to an unconscionable dilution of the secular fabric of India makes no sense. After all, it is not directed at one community alone, the AIMPLB’s paranoia regardless – everyone will be affected and will, in all probability, protest quite as loudly. A code which applies to all citizens, regardless of gender, caste, creed or community, cannot be sectarian. In a secular democracy, religion-based personal laws whether ordained by God or not must give way to the supremacy of the Indian Constitution.

By Nilabh krishna

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