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Or are uniform laws meant to ensure justice for women in marriage and inheritance? In that case, a Uniform Civil Code would simply put together the best gender-just practices from all Personal Laws. So yes, polygamy and arbitrary divorce would be outlawed (a feature derived from Hindu Personal Law). But conversely, as feminist legal activist Flavia Agnes has often pointed out, a Uniform Civil Code would require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus, and all citizens of India would have to be governed by the largely gender-just Indian Succession Act, 1925, currently applicable only to Christians and Parsis.
Updated: July 15, 2016 01:11 IST
It isn’t about women
The talk of a Uniform Civil Code has nothing to do with gender justice. It has entirely to do with a Hindu nationalist agenda to ‘discipline’ Muslims
For nearly eight decades, the women’s movement has discussed and debated the desirability and feasibility of a Uniform Civil Code, and has ended up posing a simple question — what is the value of uniformity? Is it for the “integrity of the nation” that uniformity in laws is required, as some judicial pronouncements have suggested? If so, who exactly is the beneficiary? Which sections of people benefit from “integrity of the nation”, that abstract entity which is not exactly at the top of your mind as your husband throws you out on the street?
Or are uniform laws meant to ensure justice for women in marriage and inheritance? In that case, a Uniform Civil Code would simply put together the best gender-just practices from all Personal Laws. So yes, polygamy and arbitrary divorce would be outlawed (a feature derived from Hindu Personal Law). But conversely, as feminist legal activist Flavia Agnes has often pointed out, a Uniform Civil Code would require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus, and all citizens of India would have to be governed by the largely gender-just Indian Succession Act, 1925, currently applicable only to Christians and Parsis.
A stick to beat Muslims with
Muslim Personal Law is already modern in this sense, since it has since the 1930s enshrined individual rights to property, unlike Hindu law, in which the family’s natural condition is assumed to be “joint”. In the decades of the 1930s and 1940s, contrary to later discourses about Muslim law being backward, it was Hindu laws that were considered “backward” and needing to be brought into the modern world of individual property rights.
Muslim Personal Law is already modern in this sense, since it has since the 1930s enshrined individual rights to property, unlike Hindu law, in which the family’s natural condition is assumed to be “joint”. In the decades of the 1930s and 1940s, contrary to later discourses about Muslim law being backward, it was Hindu laws that were considered “backward” and needing to be brought into the modern world of individual property rights.
Again, since the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as sacrament, all marriages would have to be civil contracts. Mehr, in Muslim Personal Law, paid by the husband’s family to the wife upon marriage, is the exclusive property of the wife and it is hers upon divorce, offering her a protection Hindu women do not have. So, the Uniform Civil Code would make the practice of mehr compulsory for all while abolishing dowry.
The patent absurdity of these suggestions arises not from the ideas themselves, but from the fact, recognised by everybody, that the talk of a “Uniform Civil Code” has nothing to do at all with gender justice. It has entirely to do with a Hindu nationalist agenda, and is right up there with the beef ban and the temple in Ayodhya. A Uniform Civil Code is meant to discipline Muslims, teach them (if they didn’t know it already) that they are second-class citizens, and that they live at the mercy of “the national race” (the Hindus), as M.S. Golwalkar decreed.
The real issue of gender justice
So let us pose the question differently — who suffers in the absence of a Uniform Civil Code? Is it Muslim women, victims of polygamy and triple talaq, as Hindutvavadi wisdom has it? But for decades, feminist legal practice has successfully used both the Protection of Women from Domestic Violence Act, 2005 — that is available to all Indian citizens regardless of religious identity — as well as the Muslim Women (Protection of Rights on Divorce) Act, 1986, to deal with polygamy and triple talaq, and to obtain maintenance, child custody and rights to matrimonial home for countless Muslim women. In addition, feminist legal activists have used the landmark Shamim Ara v. State of U.P. (2002) ruling to buttress their claim that arbitrary triple talaq is invalid.
So let us pose the question differently — who suffers in the absence of a Uniform Civil Code? Is it Muslim women, victims of polygamy and triple talaq, as Hindutvavadi wisdom has it? But for decades, feminist legal practice has successfully used both the Protection of Women from Domestic Violence Act, 2005 — that is available to all Indian citizens regardless of religious identity — as well as the Muslim Women (Protection of Rights on Divorce) Act, 1986, to deal with polygamy and triple talaq, and to obtain maintenance, child custody and rights to matrimonial home for countless Muslim women. In addition, feminist legal activists have used the landmark Shamim Ara v. State of U.P. (2002) ruling to buttress their claim that arbitrary triple talaq is invalid.
Moreover, polygamy is not exclusive to Muslims. Hindu men are polygamous too, except that because polygamy is legally banned in Hindu law, subsequent wives have no legal standing and no protection under the law. Under Sharia law, on the contrary, subsequent wives have rights and husbands have obligations towards them. If gender justice is the value we espouse, rather than monogamy per se, we would be thinking about how to protect “wives” in the patriarchal institution of marriage. “Wives” are produced through the institution of compulsory heterosexual marriage, the basis of which is the sexual division of labour. This institution is sustained by the productive and reproductive labour of women, and almost all women are exclusively trained to be wives alone.
Thus, when a marriage fails to fulfil its patriarchal promise of security in return for that labour, all that most women are left with is the capacity for unskilled labour. Or they remain trapped in marriage with children to provide for, while men marry again, legally or otherwise, producing still more dependent, exploited wives and children for whom they take no responsibility. If gender justice is the point of legal reforms, the centrality and power of the compulsory heterosexual, patriarchal marriage, and the damage it can do to women, is what must be mitigated. This would mean recognising the reality of multiple “wives” as a common practice across communities, and the protection of the rights of all women in such relationships.
In this sense, recent Supreme Court rulings that have granted rights to second wives in Hindu marriages dilute the legal standing of monogamy for Hindus but empower women.
A survey conducted by the Bharatiya Muslim Mahila Andolan, a significant voice in the debate, found that more than 90 per cent of Muslim women in India want a ban on “triple talaq” and polygamy in Muslim Personal Law. That is, the demand is made within the framework of codifying Muslim Personal Law, not in favour of a Uniform Civil Code, partly because there is no clarity on what a uniform code would look like, but also because the demand comes from clearly Hindutvavadi quarters which have shown that both women and minorities are expendable for them.
Lessons from the Goa experience
The only example of a uniform code in India is the Portuguese Civil Procedure Code (1939) of Goa, which is neither ‘uniform’ nor gender-just. Marriage laws differ for Catholics and people of other faiths, and if a marriage is solemnised in church, then Church law applies, permitting, for example, arbitrary annulment at the behest of one of the parties. The “customs and usages” of the Hindus of Goa are recognised, including “limited” polygamy for Hindus.
The only example of a uniform code in India is the Portuguese Civil Procedure Code (1939) of Goa, which is neither ‘uniform’ nor gender-just. Marriage laws differ for Catholics and people of other faiths, and if a marriage is solemnised in church, then Church law applies, permitting, for example, arbitrary annulment at the behest of one of the parties. The “customs and usages” of the Hindus of Goa are recognised, including “limited” polygamy for Hindus.
The positive aspect of Goa’s Civil Code is the Community Property Law, which guarantees each spouse 50 per cent of all assets owned and due to be inherited at the time of marriage. However, this provision can be sidestepped in practice, given the power relations in a marriage, and studies show that it has not made any impact on the incidence of domestic violence.
Clearly, if gender justice is not prioritised, both uniformity as well as its dilution can reinforce patriarchy and majoritarianism.
The woman at the centre of this recent round of debate on the Uniform Civil Code is Shayara Bano, who received talaq by post. Her lawyer, instead of using any of the three recourses available discussed above — the Protection of Women from Domestic Violence Act, 2005, the Muslim Women (Protection of Rights on Divorce) Act, 1986, or the citation of the Shamim Ara v. State of U.P. (2002) judgment — decided to file a Public Interest Litigation in the Supreme Court challenging triple talaq on the grounds of violation of Fundamental Rights. Ms. Bano is now in the media spotlight, spiritedly criticising patriarchy in the Muslim community.
Revealingly, a recent interview with her in a national newspaper concluded with a startling question — “What about the ‘Bharat Mata ki Jai’ slogan controversy?” Ms. Bano replies, “I feel all Muslims should say Bharat Maa ki Jai.”
Does the question seem irrelevant in the context of Ms. Bano’s fight for personal justice? What does compulsory chanting of “Bharat Mata ki Jai” have to do with a woman fighting patriarchy?
But the question does not seem irrelevant at all; it seems to be at the heart of the interview. This alone should alert us to what the demand for a Uniform Civil Code is actually about.
Nivedita Menon, a feminist scholar, is a professor at Jawaharlal Nehru University, New Delhi.
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177 comments
- AAmardeepThe problem with the opponents of UCC has always been an inability to accept a discussion on the merits of UCC. More than 65 years after it was put onto our constitution, not by Hindutava proponents, but by people who hated Hindu majoritism to their core, we are still not ready to discuss it. It is almost as if certain sections do not want to see themselves as Indians under the law but as various religious identities, Hindu, Muslim, Christians, etc under the law. It is not a question of questioning their patriotism but is a question of what is seen more effective, a law drafted by Manu in ancient India or in Arabia centuries ago or a law drafted in Europe in the dark ages or a law drafted in contemporary India for our contemporary problems irrespective of the religious faith of the person on whom it is applicable? I would choose the later. Moreover having different civil laws violates the principle of secularism of our constitution as it brings religion into public space.about 22 hours ago155
- AAmardeepThe author says this,
"Mehr, in Muslim Personal Law, paid by the husband’s family to the wife upon marriage, is the exclusive property of the wife and it is hers upon divorce, offering her a protection Hindu women do not have. So, the Uniform Civil Code would make the practice of mehr compulsory for all while abolishing dowry."
Why would Meher be made a part of the UCC? Just as triple talaq would be abolished the failure of payment of maintenance would also be abolished. Moreover does the author want regressive practices like Meher to be followed? Yes unlike Hindu Dowry it is paid to the bride family, but it is not a ridiculous amount of Rs 25. So whether it is better than dowry or more is moot. That is the problem with the various civil code of India. They are not fair. But just because one existing civil code is not good in one aspect does not make UCC should not be discussed or implemented. UCC can overcome most of the drawbacks of various civil codes of India.about 22 hours ago155 - OIOpinionated IndianThe tone of this article is shocking. A Uniform Civil Code is just that, a Uniform Civil Code, not a Hindu Civil Code applied to all communities. I am ashamed that my country has different rules for different people. Believe it or not, there are many people like me with no Hindutva agenda who think like this.Ms. Menon seems to suggest that it doesn't matter that Shayaro Bano was humiliated. It is the soft bigotry of lowered expectations to think that there are no people within the community who also want the removal of triple Talaq."Feminists" who put ideology and Regressive Leftism above all else, and throw women under the bus because they are inconvenient to their narrative are not feminists at all.2 days agokinky Down Voted
- SSunilThe writer seems to have ridiculous arguments and laughable opinions. UCC is much needed to give more rights and for protection of women. All are citizens of this country and have equal rights and duties. Parallel laws and government is not acceptable. The people support the present government with absolute majority, thanks to such non-sense opinions. Pls ask the writer not to misguide the nation in the name of liberalism..2 days agokinky Down Voted
- SPSajeev PMs Menon's opinion is one sided. It is loaded with the stigma usually associated with the social science department of the JNU. UCC is not a question of Hindus or Muslims. Our country is a democratic republic. so, as we adhere to common criminal procedure coded, it is customary to follow civil laws. Personal laws hasn't any relevance. what if the citizen of India behave as his own, according to certain personal laws of his choice?2 days ago
so that is not the case. We should adhere to our constitution. Women are discriminated under various personal laws. the most obvious case is Muslim personal law. Through Hindu code bill Hindu personal laws are codified. Undivided Hindu family is another case. whenever the case of UCC arises, it is divided on Hindu-Muslim lines. It is pertaining to all religion. Indian citizens should follow once set of rules in matters of marriage, inheritance, maintenance and other similar issues. The archaic laws of the middle ages haven't any say in the modern times.kinky Down Voted - VVenkatamvSelective interpretation of rights and equality is the norm of some. No wonder these so-called activists and liberals write so...Uniform civil code is needed and it has nothing to do with a Hindu and Muslim. Of Course, it can and has to debated before implementation. When in a democracy everyone has equal rights., why not this?2 days agokinky Down Voted
- AMAshish Mattooi would like to make it clear to Miss Nivedita Menon that the Uniform civil code is not the invention of BJP but honorable Supreme court of India 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.2 days ago
Supreme court of India has, on number of occasions directed the central govt. to implement uniform civil code and adhere to Article 44 of our constitution.
So referring this decision, as communal doesnt make sense. - SsamAuthor seems quite biased here... Indeed hindutava forces have been demanding it for UCC for a while. But it is not for appeasing the hindu brigade. this code would be the betterment of muslim community. laws,written 1400 years ago, do not fit in to modern world. Author like menon gives rise to hindutava forces. They usually forget people of this nation have become smarter than before and i see people commenting here , mostly disagree with the views of author. We dont need a pseudo intellectual who could speak on the behalf of Indian youth. today we have social media sites and comment sections on every news paper site on which we express our views and the views of intellectual common people are always against the pseudo intellectuals like menon. So u just keep ur views confined to urself .. Youth of india has been risen from the ashes. it is the first step in the advancement of the nation. Knowledge of all kind has been divided among the youth and this trend is on rise. We dont need u2 days agokinky Down Voted
Suchindranath Aiyer Protean, polyglot, polymath, healer, global human, Brahmin.
True to PANGOLIN* type:
*Note: PANGOLIN: An enemy of India who believes in inequality under law, exceptions to the rule of law and persecution of some for the benefit of others. At present, the sole purpose of the Indian Republic, Constitutional or otherwise, is to pamper and provide for certain constitutionally preferred sections of society who the British found useful to hold and exploit India at the cost of those who the British hated and persecuted. The Pangolin is a creature that is unique to India and feeds on ants that are known in nature to be industrious and hard working if not quite as fruitful as bees who flee to better climes. (PANGOLIN is an acronym for the Periyar-Ambedkar-Nehru-Gandhi-Other (alien) Religions-Communist Consensus that usurped the British Mantle and has worn it with elan to loot, plunder, and rape India since 1921 and re write History and laws to their exclusive benefit since 1947) 2 days ago265kinky Down Voted- VVaibhavpeople talk about gender equality , independent women etc,. and there are people who talk about obtaining their share of property after divorce...hypocricy all over..2 days ago
And about polygamy today with the rising divorce cases specially in the so called educated class represents that none of the gender is ready to accept the imperfections in the other. so its really about understanding the sanctity of marriage and not just playing with by just making laws then and now. polygamy should not be apart of any law. you can be attached to a single woman emotionally not plenty in todays times its challenging to save the institution of marriage... UCC should be debated to its fullest before coming in shape by all religious scholars (scholars and not frauds please.)
And please dont take the issue of feminism and women empowerment in wrong direction.. like deepika s my choice etc....kinky Down Voted - RLRoshan LalThere couldn't be more atrocious or ridiculous statement than what M/S Menon , Professor of JNU made that BJP is using Common Civil Code as stick to beat Muslims ! All,of us swear by Our Costitution & our Secularism day &! day out hence it passes over my head as why so far Common Civil Code was not implemented! To my mind not having Common Civil Code is against basic tenets of ou Constitution Human Rights ! In the name of personal civil code , untold cruelty has been & is still inflicted by Muslims on women that one shiver at the thought of it ! Besides making numerous other follies by Mr.Nehru & congress not having Common Civil Code for our country too is one of them ! There can't be any compromise on not having Common Civil Code at the earliest ! Further no compromises should be allowed to come in the way to adopt modern & humane Civil Code keeping in view our basic tenets of Secularism as enriched in our country's constitution!2 days ago105
