GENDER JUSTICE BEYOND A UNIFORM CIVIL CODE
Contemporary debates swirl around the idea of establishing a uniform civil code in a country celebrated for its unparalleled cultural, ethnic, and religious diversity. Central to thisconversation is the pursuit of equality, which prompts us to delve into the credibility of theconcerns raised. Can the effective implementation of a civil code genuinely lead to rectifyingthe deep-rooted disparities in women's rights and dismantling the constraints imposed bypersonal laws governing inheritance, succession and matrimonial affairs? While a uniformcode seemingly promises equality, it's crucial to scrutinize the legitimacy of concerns raisedby discerning stakeholders.
The historical foundation of the uniform civil code was shaped by similar codes drafted inEuropean nations during the 19th and early 20th centuries, notably the French code of 1804.This code abolished existing customary and statutory laws and replaced them with a uniform code. Broadly, it aimed to "civilize" the nation as part of a colonial effort in the wake ofWestern influence. However, the 1857 First War of Indian Independence sent a clear message to the British to respect India's social fabric and honor the personal codes governing marriage, divorce, inheritance, adoption, and succession.
Post Independence and the simmering societal discontent of Partition, attempts to repeal the personal laws were met with resistance. This resulted in accommodating the uniform civil code as a directive principle. Despite efforts, a comprehensive Hindu Code Bill, which aimed at providing women equal inheritance rights, was unable to gain traction in the Parliament. It wasn't until September 5, 2005, that the Hindu Succession (Amendment) Act, 2005 was enacted to eliminate discriminatory provisions in property rights from the Hindu Succession Act, 1956.
Through the constitutional assembly debates, its noteworthy to mention that the intent never favoured a mandatory uniform civil code with only one way to marry, divorce, adopt, or inherit land. With an exception to the Portuguese Civil Code, though not uniform, no monolithic system ever existed in Indian history. Nations, on the other hand, are adopting India's model of having parallel legal systems coexisting for family law, termed legal pluralism. As societies grow diverse, this is seen as inclusive and tolerant, not divisive. These systems can also be faith-based with constitutional adaptations. A quasi-UCC already exists – a voluntary, though incomplete one. It involves the Special Marriage Act, the Indian Succession Act, and the Guardians and Wards Act. It needs to evolve to be gender-neutral, progressive, and less prejudiced. Regrettably, this seems to be ignored by those in power, who are more focused on curbing interfaith and inter-caste relationships.
Despite being held up as a shining example of a uniform civil code, Goa's common code remains unequal by permitting situational bigamy for Hindus. Under specific conditions in the
* Ms. Amaal Sheikh, Advocate, B.A., LL.B (Hons.), Jamia Hamdard University.
codes of usage and customs for Gentile Hindus of Goa, a Hindu woman failing to conceive by25 or give birth to a boy by 30 grants the man the right to a bigamous relationship. This contrasts with the state's duty to uphold fundamental equality via common code legislation, a sit clashes with women's pursuit of distinct identities aligned with cultural and religious freedom under Article 25 and Article 26.
Since the Central Government has been advocating for the adoption of a uniform code, it is crucial that this code recognize same-sex marriages, grant unrestricted access to all places of worship, end instances of "love jihad" violence, and provide protections against marital rape in addition to placing a strong emphasis on achieving gender equality. Regrettably, recent events raise questions about the true intent of the uniform civil code's pursuit of justice and gender fairness. Despite the prohibition of triple talaq, which brought Muslim marriages under the jurisdiction of Indian law, the state strongly opposes the offense of marital rape in courtrooms. Furthermore, there are concerns that the UCC's true goals may go beyond its broader pursuit of justice, especially in relation to collective land rights. Inequalities relating to gender and socioeconomic class tend to get exacerbated by the change from traditional laws managing tribal land to modern land regulations. A prime example of this is the 2005 amendment, which supported neo-liberal objectives that promote individual land ownership and gave Hindu women coparcenary privileges. This change, meanwhile, might not properly address worries about inclusion and equitable representation.
Women in particular Rajasthani groups have unrestricted access to marriage and divorce. However, the Hindu Marriage Act's acceptance of Saptapadi as a legal form of matrimony gives males the opportunity to circumvent bigamy prohibitions. This Act also renders illegitimate matrilineal communities like the Nairs in Kerala's practice of contractual marriage, undermining its goal of empowering women. The Prohibition of Child Marriage Act and Dowry Prohibition Act, which both overlook religion, have failed to alleviate the dowry and child marriage concerns, as shown by UNICEF's 2019 statistics, which show that these issues remain among non-religious groups as well.
Amiruddin v. Musammat Khatun Bibi (1917, Allahabad High Court) was one of the first court cases in India to recognize "triple talaq" as a valid method of unilateral divorce. Amiruddin had repeatedly issued Khatun Bibi an instantaneous talaq, but since it wasn't legally recognised, he would withdraw and apologize. But after a while, Khatun Bibi staunchly refused to come back to him, sparking a legal dispute. Due to the facts, the court decided in favor of the wife and gave triple talaq a legal standing in the Indian courts.
It seems reasonable to picture a Muslim family law in India that is based on proper interpretations of religious texts and aligned with the ideals of justice and equality. The entrenched hold of patriarchal traditionalism that appears to rule the attitudes of clergy and customary authorities, however, poses a significant obstacle to this vision. The situation becomes more complicated when Indian Muslims follow the Shari at Application Act of 1937,a historical artifact that fails to adequately address pressing issues. Surprisingly, this legal structure conspicuously omits important issues like consent, the right to meher, marriage age, divorce laws, guardianship and child custody, women's lawful property rights, and even the contentious area of polygamy. Despite the Quran's own affirmative provisions, this absence creates an aperture, leading one to wonder where the complete textual expression of the Shari at that purportedly rules Indian Muslims is.
In particular for women in the community, the apparent lack of a systematized version raises concerns about clarity, consistency, and the capacity to assure justice and fairness. Given the evolving state of women's rights and the broad constitutional guarantees of equality, this aperture is made even more acute. The need to address this conflict between tradition and modernity, religious doctrine and contemporary values, and to continuously recognize and defend the rights of women grows more pressing as the wheels of change revolve.
What’s rather concerning is that the need for a uniform civil code has held a decisive stand to abolish the personal laws, that anyway have or will be codified. Gender discrimination, and gender equality is an idea that is itched for a future so far ahead. While personal laws may show promise in their potential for reformation through the inclusion of various acts, one must question whether the government can guarantee that a UCC will be the panacea for all gender-related issues. The very issues that continue to persist and haunt our society are not limited to personal laws alone. We have, though delayed, a significant win in sentencing the perpetrators in the case of Nirbhaya; we still have to deal with the disturbing case of Bilk is Bano, whose culprits are still at large. Where is the guarantee that a unified civil code can genuinely provide gender equality in the face of such pervasive injustices? While individual legislation may be important, we must consider how successful our efforts to advance gender equality will be as long as justice for these heinous crimes against women's bodies is not readily effective. The need of the hour is not just the alteration of legal frameworks; it's the cultivation of a society that unequivocally condemns such abhorrent acts and stands united against them.
The blatant need for severe accountability and swift redress for perpetrators cannot be over shadowed by the plea for a UCC. While theoretically promoting equality, a unified civil code must also be carefully considered for its ability to combat the profoundly rooted patriarchal mindsets that support such crimes. The elimination of the underlying factors that lead to these crimes, ensuring that our judicial institutions work tirelessly to provide justice, and cultivating a generalised social consciousness that upholds the rights and dignity of everywoman should be our main priorities.