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What minority women want? Debating the Uniform Civil Code

Aug 01, 2014

With the Bharatiya Janata Party forming the new government at the Centre, the issue of the enforcement of a Uniform Civil Code has gained ground once again, as the ruling party had included it in its election manifesto stating that “there cannot be gender equality till such time as India adopts a Uniform Civil Code, which protects the rights of all women…”.

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Article 44 of the Indian Constitution calls for the implementation of a Uniform Civil Code that would usher in secular laws applicable to every citizen irrespective of his/her religion. Even as a heated debate rages on, with strong voices emerging both in favour of and against this move, what is the opinion of young minority women? Do they see the Uniform Civil Code as a threat to their cultural and religious identity? Or is it, in fact, a tool that will further gender equality, especially in matters pertaining to marriage, divorce, inheritance adoption and maintenance?

Hyderabad-based Huma R. Kidwai, the celebrated author of ‘The Hussaini Alam House’, poet, writer of travelogues, guest lecturer at the University of Hyderabad, and an independent researcher in the sociology of Muslim societies around the world, makes this point, “Presently, we have personal laws for Muslims, Hindus, Parsis, and so on. While each of these laws has their own pluses and minuses, I think we need to adopt a uniform civil law that will give women of all communities a shot at empowerment. If we are governed by a common criminal law, why do we need religion-specific civil laws?”

Talking about her own community, she points out that the Sharia, or Islamic religious law, is not the Quran. “The Sharia is something that men had created and propagated some 200 years after the death of Prophet Mohammad in 632 AD. People tried to collect the Prophet’s sayings and the Mullahs put their own interpretation and opinions to come up with their own Sharia. In fact, there are as many as four Sharias for Sunnis and at least three for Shias. So the bottom line is that it is traditions that have been hardened as the Sharia and then transformed into personal laws. They are not beyond amendment.  However, at the same time, the Uniform Civil Code in India can’t be Hindu dominant. The country needs a common civil code that is fair to all communities and to every citizen,” asserts Kidwai.

Expressing another line of thought are women like Munira Daniel Khasamwala, a Chennai-based Relationship and Programme Manager, who feel that Muslim women are better off adhering to their own personal laws. “I definitely don't see the Uniform Civil Code as a threat to my community’s religious and cultural identity. But each community is well set in its ways. Muslim law based on Sharia is quite balanced. It gives full protection to the women of the community especially with regard to social security and inheritance in property. Muslim women can freely sue their husbands, seek divorce and can ask for maintenance,” she claims.

Religious traditions and dictates apart, won’t a Uniform Civil Code make life easier for all practical purposes. Take for instance the issue of inter-caste/community/religion marriages that are on the rise these days. How are such unions to be governed? Don’t religion-based personal laws complicate matters? “I know of couples who marry across communities getting stumped by legal issues. A Uniform Civil Code would avert such complications,” states Rizwana, who works in an architectural agency in Chennai. The Special Marriage Act, 1954, is a step in the right direction, but it’s not enough. As Rizwana puts it, “It is absurd that one nation judges different people by different yardsticks.”

But, for now, the way ahead is fraught with challenges. “The fear among minorities is that a Uniform Civil Code will thrust Hindu laws on them,” shares Nasreen, a university lecturer based in the city. Adds T.K. Ramkumar, an advocate with the Madras High Court, “While I am in favour of a Uniform Civil Code I think the time is not right just yet. The government should inspire more confidence among the minorities before taking this step. What would prove more useful is making changes in legislation related to personal laws on the lines of the Hindu Succession (Amendment) Act 2005 that has made financial security and inheritance more equitable for Hindu women.”

Of course, there are others who fully support an unbiased Uniform Civil Code. Deborah Thiagarajan, sociologist and founder of the iconic Dakshina Chitra that celebrates South India’s art and craft heritage, says, “A Uniform Civil Code is an excellent idea, although I think we will have to look at how other countries have modernised their laws before we embark upon such an exercise here. Leaders of all communities should come together, discuss the modalities and shape it in a way that it is just to all. Moreover, the world has changed so much in the last 200 years, so our laws have to be relevant to the times we live in. When we reform laws, we need to look at the current state of affairs and factor in the nature of vulnerabilities that women face today. For instance, more and more women are now the bread winners of their family. A century back, very few women were stepping out to make ends meet.”

Meanwhile, Hafeeza, a young student who wants a Uniform Civil Code in place, suggests, “Each religion has some good aspects in their personal laws. Perhaps the Uniform Civil Code can absorb the best from everywhere.”

Kidwai, however, finds it incongruous that people should want to look up to religious leaders to help evolve a Uniform Civil Code. “Why should we leave it to the religious leaders to work out a civil code? Neither should we vest the responsibility in the hands of self-appointed boards or khaps. This has to be a constitutional effort. We should evolve the best civil law consulting legal experts and referring to the UN human rights charter. Further, once there is a draft in place, it should be placed before the people as well as the civil society for queries and suggestions,” she recommends.

Religious orthodoxy across faiths tends to be patriarchal. For instance, Hindu orthodox laws used to discriminate against women by depriving them of inheritance, remarriage and divorce. The status quo began to change with the passage of Acts like the Hindu Widow Remarriage Act of 1856, Married Women's Property Act of 1923, the Hindu Inheritance (Removal of Disabilities) Act, 1928, the Hindu Women's right to Property Act of 1937, the Hindu Code Bill, 1956, and the Hindu Succession Amendment Act (2005). Unfortunately, many other personal laws in India remain largely unreformed, even as countries such as Egypt, Iraq, Pakistan and Indonesia have improved their personal laws in tune with the times.

Curiously, there is a popular misconception that only Muslim personal laws will be affected by a Uniform Civil Code. In reality, it will impact Hindus, Christians and others as well. For example, it will obliterate the restrictions on adoption posed by Christian personal law. Without much ado, Goa shows us one possible way ahead, perhaps an intermediary step. The Goa Family Law, a set of common civil laws based on the Portuguese Civil Code, continues to be implemented in the state even now, and it co-exists with various personal laws.

The overwhelming sense that emerges from this discourse is that when it comes to putting in place a Uniform Civil Code India needs to arrive at a consensus, learn from the world and take progressive actions. And women have to take the lead here, because they are the most vulnerable stakeholders under personal laws.

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