Many, including the prime minister, have welcomed the recent Supreme Court verdict in Shayara Bano v. Union of India that confirmed that courts would not recognize triple talaq (unilateral irrevocable male repudiation).
After this, some have also revived calls to introduce a Uniform Civil Code. How far does this judgment reduce the gender inequalities in Muslim law? How legitimate is the inference that a UCC is the next logical step to equalise rights in the family? Several high courts had invalidated triple talaq from 1978 onward. The Supreme Court upheld this in Shamim Ara v. Union of India (2002), making talaq’s validity dependent on the man providing “good reasons” and proof of having attempted spousal reconciliation.
This invalidated most instances of unilateral repudiation that do not follow such a careful process. The Shayara Bano bench did not raise the bar for the validity of talaq, for instance by requiring either the wife’s consent or judicial approval. Extra-judicial divorce remains more readily available to Muslim men than to Muslim Women, who access it mainly through khula, which requires a qazi’s approval and the husband’s consent. India’s Muslim law gives women less rights than men in other respects too. It gives women only half their brothers’ share in family property, disentitles about a half of Indian Muslim women to inherit agricultural land, and allows polygamy but not polyandry. Hindu law also disadvantages women in various ways — for example, allowing families to jointly own property that is usually controlled by men, giving widows only limited shares of such property, and not limiting testamentary rights which are very often used to disinherit women.
Two judges on the Shayara Bano bench ventured in a new direction by requiring personal law to be compatible with the fundamental rights recognised in the Constitution, and assessing triple talaq to be contrary to these rights. But the court also relied on the divorce procedures recommended in the Qur’an, hadith that report the Prophet Muhammad to have considered triple talaq revocable, reputable commentaries, and legislation in many countries that abrogated triple talaq. In doing so, it followed the tendency of postcolonial Indian courts to rely on the laws, norms, and initiatives of the concerned groups, rather than constitutional rights or international legal principles alone, when reforming personal law. This approach is meant to reconcile the recognition of cultural norms in family life with constitutional values.
Imaginative courts could base themselves on Shayara Bano’s call to assess personal law based on constitutional rights to either amend provisions that disadvantage women or press legislators to do so.
This could realize the most important current civil society demands — the entitlement of all Muslim women to inherit agricultural land, the decomposition of jointly owned Hindu property into individual shares, the restriction of rights to will property, and the grant of equal shares to conjugal partners in matrimonial property.
While such changes would be valuable, the government’s recent personal law initiatives misrepresent the development of personal law and community orientations. The government claims that Hindu law was changed based on constitutional values, but minority laws were not; that greater Hindu support for reform drove the emphasis on changing Hindu law; and that Muslim backwardness is the main constraint to a UCC, which would best enable gender justice.
Contrary to this view, community reformist mobilisation helped Muslim women gain rights to inherit substantial family property and to judicial divorces in the 1930s, two decades before Hindu women did. Soon after independence, important Muslim leaders wanted to entitle women to inherit agricultural land and control their dower, restrict or end polygamy and talaq, and increase the minimum marriage age. Maulana Abul Kalam Azad, Naziruddin Ahmad, and Hussain Imam were open to a future UCC formed through the confluence of India’s various religious traditions. Nehru and Ambedkar were disengaged from such Muslim initiatives, mistook Muslim demands to retain religious laws for resistance to changing these laws, and failed to change minority laws. The Hindu law reforms of the 1950s were not based on constitutional egalitarianism, but on the Mitakshara and Dayabhaga schools of Hindu law as colonial officials had understood them, commentaries on the dharmashastras, and regional and caste customs, as well as the Western model of marital monogamy.
Although policymakers focused on changing Hindu law, due to the limited scope of these changes, Christian and Muslim women had greater rights than Hindu women to ancestral property until 2005, Muslim women had greater divorce rights than Hindu women until 1976, the inheritance rights of Muslim women remain most secure because Muslim law restricts testamentary rights to a third of one’s property, and the matrilineal customary laws of certain Adivasi groups give women more property rights.
Parliament and the courts have changed India’s personal laws moderately to promote women’s rights and individual liberties. Personal laws were changed more extensively in Tunisia and Morocco, demonstrating that group rights are compatible with egalitarian liberal reform. The basing of these reforms in Islamic jurisprudence gained them broader support, enabling the sustenance of reform. There was much opposition, by contrast, to the adoption of the Swiss Civil Code in Turkey, which could be maintained only through periodic authoritarian rule. This indicates that reforms are more often considered legitimate if they are based in the relevant group’s norms in societies where many want group culture expressed in family life.
Hindu nationalists have nevertheless pressed for a UCC. As certain minority laws favour women more than Hindu law does, a UCC can best promote women’s rights only if it includes aspects of the various personal laws — for example, the Indian Succession Act currently applied to Christians that gives children equal inheritance rights and Muslim law’s limitation of testamentary rights — as well as civil family laws such as those of the Special Marriage Act that provide greatest conjugal autonomy.
A BJP government that promotes Hindu hegemony and stereotypes of Muslim backwardness and polices community boundaries seems unlikely to adopt such a code. Its orientations make a UCC drawn largely from upper caste Hindu norms and Hindu laws more likely. Such a UCC would not effectively draw from the aspects of India’s various dynamic cultures most conducive to democratise families, religious groups, and the nation, and would have limited minority support.
The writer is founder dean at the School of Law, Tata Institute of Social Sciences, Mumbai
Source : timesofindia