Recently, the Supreme Court in Shayara Bano v. Union of India[i] declared the ongoing practice of triple talaq unconstitutional. The Court further instructed the central government to make appropriate laws for this. Consequently, the Muslim Women (Protection of Rights on Marriage) Act, 2019 has been introduced by the government which even criminalizes this practice with the imprisonment of up to three years.[ii] In one more recent decision in Indian Young Lawyers Association v. the State of Kerala[iii], the apex court allowed the entry of women in the premises of Sabrimala temple. The court declared the ongoing exclusionary practice unconstitutional since it was violating the fundamental rights of women.
Now in both cases, the two common threads were religion and women. In both cases, it was argued that the practice which is being carried in the name of religion is violating women’s right invariably. The verdict of the top court in these cases received extreme opposition from one section of the society led by tradition leaders respectively. These instances own described the contrary relation between women and religion as we have seen since the time immemorial that how religion has been instrumentalized to exploit the women. From burning the bride after the death of husband to the prevalence of patriarchal practices there are numerous examples of it that ultimately find their origination in the religion.
However, things become worse in the context of Religious Personal Laws (Hereinafter as ‘RLPs’) precisely on two grounds. Firstly, the traditional leaders who are advocating such laws claim that no one can interfere in RLPs since it regulates their domestic sphere which should not be disturbed by any provisions. Secondly, it is also been claimed by them that RLPs can’t be checked on the touchstones of Part III of the constitution of India. So, even if a practice is violating the fundamental rights of a person it would still be continued, further, they also claim the continuation of such practices as their fundamental right provided under the article 25 and 26 of the constitution of India.
Religious Personal laws are those laws that regulate the realm of marriage, divorce, adoption, etc.[iv] It is noteworthy that women faced sharp discrimination in this sphere and allowing this sphere with such arbitrary claims consequently violating the fundamental rights of women as there are lots of practices going on without any interruption in this sphere which is violating women’s rights to equality primarily. Therefore, there is a dire need to look into this lacuna immediately; given this, the author in this piece has given the idea of introduction of Uniform Civil Code (Hereinafter as ‘UCC’).
The author claims that introduction of UCC will eventually be struck down all these discriminatory practices going on in the guise of RLPs and will able all the women to stand equally with the men. The paper starts first with the establishment of the discriminatory nature of RLPs, this further followed by the elaborately part where the author has suggested the introduction of UCC. While in the next part the author rebuts all the claims of traditional leaders. While in the last, few suggestions have been given to effectively implement the UCC.
Discriminatory Nature of RLPs
There are numerous prejudicial practices in these religious laws which are one-sided against women as a rule. For examples, as per the dissolution of the Muslim Marriages Act 1939 a husband while separating from his wife doesn’t have to give any explanations behind separation. However, a wife is permitted to separate from her husband only if she states one of the specified grounds referenced under the act.[v]
Besides, under the Muslim law, a male beneficiary and a female beneficiary of a similar degree don’t get the equivalent property share in the ancestral property. Male beneficiaries are qualified to get double the portion of the property as their female partner.[vi] Likewise, Muslim wives after the passing of their husbands get only one-fourth part of the property of the husband paying little heed to the numbers of wives man had and on the off chance if they have any kid; the portion of the widows will be diminished further. In contrary to this the husband gets one-fourth property of every wife after their death despite the nearness of son(s).[vii]
Also, in Muslim law, a mother can get only the physical custody of the children, not the legitimate guardianship which consistently stays with the father.[viii] Considerably, even after the death of the father, it won’t be the mother but the grandfather or executor of the father who will get the legitimate guardianship of the kid.[ix] Physical guardianship too would be given only for a specified time. Further, while a Muslim man is allowed to marry a non-Muslim lady, Muslim women can’t wed a Non-Muslim man. Since inter-religious marriages are void ab-initio for the women in Muslim law.[x]
Muslim men are also permitted to separate from their wives through formal legal procedures as well as through different extra-legal procedures. Muslim ladies are unfavourably enduring by such arrangement as this makes them more helpless and vulnerable in contrast to Muslim men and women of other religions. It turns out more noticeably awful with the fact that Muslim men are even allowed for polygamy under which they can marry up to four women.[xi]
Furthermore, under the Muslim law apostasy of a Muslim man results in the dissolution of his marriage while apostasy of a Muslim woman doesn’t. Even in Hindu law, Parsi law and Christian law such apostasy of the husband doesn’t result in the dissolution of marriage however in option to sue for separate.[xii]
In other religions, while a woman can wed her past husband whenever with no condition. In Muslim law after the divorce with her husband if she wishes to marry him again she has to follow a procedure where at first she has to wed someone else, consummate the marriage with him and afterwards of it either the separation with this new husband or his normal demise will qualify her to marry again her first husband.[xiii] It is a discrimination that depends on religion but what’s more significant here is to understand the question of why only women? Why only they have to face such kind of discrimination in the name of religion through RLPs? Is this the necessity of the religion of the male commanded society?
Muslim women are permitted for divorce through a procedure known as Khula, however; divorce through this procedure denies them of their entitlement to get maintenance and right to resident from their husband.[xiv] Additionally, this Practice of khula can’t be exercised by the women without the acknowledgement of their husbands. Therefore, even this practice essentially depends more on the choice of a husband than the wife. This again places women in an incredible disincentive and violates their equality right.[xv]
Moreover, under the Hindu Succession Act 1956, arrangements of a male’s progression are given from Section 8 to Section 13 HSA. While for women, sections 14 to section 16 are relevant. Different-2 set of rules and laws for the men and women under this act is itself giving the evidence of existing discrimination and an idea that is against the concept of sex equity. Furthermore, in Hindu law while outlining property rights, the wellspring of obtaining of a Male’s property isn’t significant for him to guarantee his right; it is in any case, a matter of great importance for females when they guarantee theirs directly over the property. This training again puts them on a weak side and abuses the standards of equity.[xvi]
Section 125 of Criminal Procedure Code (CrPC) is a secular arrangement which gives a right to every religion’s women to claim the maintenance from their husband.[xvii]However, Section 5 of the Muslim Women (Protection of Right to Divorce) Act 1986 determines that the earlier assent of the husband is necessary for Muslim women to secure their privilege under this section.[xviii] Considering this, it is not wrong to say that personal laws appear to have stretched out their ambit to general laws of the nation also, by giving abrogating impact over government assistance laws of the nation, for example, Section 125 Cr.P.C.
In addition to this, Women, on numerous occasions, have also been denied their innate option to prevail as a Pujari of a sanctuary.[xix] Which is again explicating the contrary relation between women and religion. Unfortunately, there are not any Supreme Court decisions where such limitations were declared unconstitutional. Consequently, these practices are continuing in society.
However, as of late there is an acknowledgement of women’s right, for example, women currently can turn into a co-parcenary of a Joint Hindu Family[xx], the abolishment of talaq-e-biddat.[xxi] In any case, there are still proliferate of escape clauses that exist in various RLPs that reliably attach women with ropes of imbalance and their expectations of getting delivery are decreasing step by step.
UCC – A Solution
UCC provision has been enshrined under article 44 of the constitution of India. It is one of the Directive Principles of state policy (Hereinafter as ‘DPSP’) which states that “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”[xxii] UCC was introduced in the constitution to govern the realm of RLPs based on sacrosanct principles like gender justice and human rights. However, it still hasn’t been implemented in the nation which consequently has resulted in the prevalence of discriminatory practices. (As the above discussion suggests)
The stand of the constitution assembly for the UCC itself illustrates their intention which was completed towards the proper and immediate implementation of UCC. The draft of UCC was introduced in the assembly with the primary object of providing equal civil rights to everyone in this domestic sphere.[xxiii]However, when the draft of Article 35 came for debate in the assembly. (Later becomes article 44 of the constitution) it received strong opposition from the minority sect leaders who demanded the immediate withdrawal of this provision.
Interestingly, the female members of the assembly belonging to different-2 religions – Minoo Masani (Parsi), Raj Kumari Amrit Kaur (Christian), and Hansa Mehta (Hindu) unequivocally supported the concept of UCC. They even demanded the earliest implementation of the same. Further, Dr Ambedkar and K.M.Munshi also supported the implementation of a uniform law throughout the territory of India.[xxiv]
Also, though all the five Muslim members of assembly opposed the functioning of UCC. One of the members Hussian Imam recognized the importance of UCC by advocating its implementation.[xxv] In addition to this assembly’s rejection of the proposals of Mohammed Ismail and Mohammed Ali Beg where they stated that “no community will be obliged to give up its personal law in favour of UCC”[xxvi], “such Uniform law will not affect the personal laws of any community”[xxvii] respectively is ostensibly showing the intention of the assembly on UCC implementation.
Furthermore, the apex court in the John Vallamattom case[xxviii] explained the UCC concept where it stated that UCC denotes to us that there is no relation between the personal laws and religion. It also stated that UCC tends to remove the religion web from this so-called domestic sphere or personal laws. The court also stated that all such practices are secular in nature therefore, religion should not be considered while directing these practices. In addition to this, the apex court of the nation in several cases has recognized the dire need for UCC implementation.
In Shah Bano case [xxix] the court itself confessed and regretted the non-implementation of UCC. Further, in Sarla Mudgal v. Union of India [xxx]also, the top court realized the need for UCC implementation. The court also recognized the UCC implementations as a step towards one nation community theory since the introduction of UCC will remove all the diversity existing currently in the nation. Thus, also strengthening the basic spirit of our constitution that is the unity of the people of India.
Currently, in India in the name of RLPs too many diverse practices are going on which needless to say also damaging the unity of our nation. In India, every religion has its own set of practices whether it is Hindu, Muslim, or Christian. However, by now it is only Hindu Law that has been codified. Nevertheless, even then in the states like Goa and Daman and Diu different sets of Hindu laws are applicable. In Pondicherry French civil Code is applicable which is also a completely different set of practices even for the Hindus. In addition to this most of the states have also made some significant changes that have to widen this diversity even more.
For example, Tamil Nadu and Uttar Pradesh have made several amendments in the laws which consequently have changed the course of law completely in both the states. Further, Kerala and Andhra Pradesh have also made some supplementary laws. While the prevalence of the Custom practice in the north-east states and Nagaland (through Article 371A) has furthered this gap.[xxxi]
Additionally, the application of different-2 sub-schools like Mitakashara, Dayabhanga, Shia, and Sunni[xxxii] different-2 castes, sub-castes have given us myriad practices that eventually raise the possibility of women discrimination.[xxxiii] This is mainly because all such customs and practices are continuing from decades and are based on the patriarchal interpretation of religion since at the time of such interpretations women didn’t have equality rights. However, now allowing and continuing with such old patriarchal practices are nothing but a blot to our constitution which as suggested by the author could be removed with the introduction of UCC.
Rebutting the Claims
Now, talking about the claims of traditional leaders who are protecting the RLPs adamantly and opposing the implementation of UCC. They claim that RLPs can’t be interfered with by any law or decision of the court checked on the touchstone of Part III of the constitution of India. For this claim, they completely rely on the rationale of Narasu Appa Mali [xxxiv] where the court, admittedly stated that RLPs can’t be checked or balanced on the touchstone of Part III of the constitution since they aren’t subjected to article 13 of the constitution.[xxxv]
However, here it is necessary to take the whole picture of this rationale rather than in parts. In the latter part of the judgment justice Chagla himself stated that though, practices of marriage–divorce, etc. happen as per the religious practices, the right of a state to regulate them can’t be taken away.
While Justice Gajendragadkar stressed that our constitution drafters have put the personal laws outside the purview of part III of the constitution but they were also aware that reforms are needed in personal laws and that’s why they have put the provision of UCC in the constitution.[xxxvi] So, now considering this whole picture this argument of traditional leaders can easily be rebutted. In addition to this, the courts itself in several cases have given its decision again this ruling. For example, Mary v. the State of Kerala[xxxvii], Ammini EJ v. Union of India [xxxviii]and Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil.[xxxix]
Now, discussing the second argument where they claim that the continuation of RLPs is their fundamental right under Article 25 and 26 which should not be disturbed. As we have already discussed above that practices such as marriage- divorce is secular in nature as has been prescribed by the apex court as well as by the constitution assembly.[xl]
However, even if we consider such practices as their part of the right to religion even then their claim will not stand. Article 25(b) of the constitution explicitly mentions that reforms can be made in the religious practices for social welfare.[xli] No welfare can be more vital than giving the women their right to equality in this society. In addition to this, an outside argument is also from their side is that since UCC is only a DPSP while RLPs are a matter of right to religion which is a fundamental right.
Therefore, preference should be given to RLPs as they are parts of fundamental rights which are justiciable in the court, unlike the DPSP. However, this position has already been denied unanimously by the Supreme Court[xlii], Juristic writings[xliii], and by constitutional changes as well.[xliv] Therefore, even if we consider all the claims of traditional leaders the introduction of the UCC would still be a valid step since all their claims can be rebutted comprehensively.
Implementation and Concluding Remarks
Through the above discussion, we realize the need for implementation of UCC. A practical implementation of the UCC, needless to say, would be an uphill task. Considering the large population and diversity of our country. However, this can’t be a valid reason to deprive women of their essential rights. Therefore, the ways of implementation are necessarily be founded. One of the primary requirements of such ways would be a compromising approach from all the people of different religions.
In addition to this, a more co-ordinated and co-operative approach among the people will also be required. With such approach and with the assistance of tests like the social subversive test, suspect legislation, solution formula, test we can figure out only fair and reasonable practices from each religion which further with a co-ordinated and co-operative can be converted into a single act where only those practice could be placed which are more just, fair and reasonable.
Social Subversive Test– Originated in the US case of Reynolds v. The United States [xlv] it states that if any practice is against the conscience of society then it would not be considered as a valid practice irrespective of its religious supremacy.
Suspect Legislation– Originated in the US it states that secular matters like marriage- divorce cannot be regulated oppressively based on the freedom of religion.
Solution Formula– Originated in South Africa it states that if a religious practise is against the principle of gender equality then it would be gender equality which will be preferred over religious Practices.[xlvi]
So, by these methods, we can achieve the dream of having a uniform law for practices like marriage-divorce as well. However, for this, the political government of the country also needs to play an active role. The recent judgments of the court have undoubtedly given us a ray of hope towards this. We hope that these small steps will one day shape into a whole movement which will introduce the concept of the Uniform Civil Code not on the papers but in reality as well and with this hope the author through this paper has contributed in this benign direction.
[i] Shayara Bano v. Union of India (2017) 9 SCC 1.
[ii] Muslim Women (Protection of Rights on Marriage) Act, 2019.
[iii] Indian young lawyers association v State of Kerala, (2017)10 SCC 689.
[iv] Virendra Kumar, UNIFORM CIVIL CODE REVISITED: A JURIDICAL ANALYSIS OF “JOHN VALLAMATTOM” 45 ILI 315, (2003).
[v] Karishma Assudani, GENDER EQUALITY VIS-A`-VIS PERSONAL LAWS, 3 International Journal of Law and Legal Jurisprudence Studies 398.
[vi] ARCHANA Parashar, WOMEN AND FAMILY LAW REFORM IN INDIA, 46 (1992).
Muslim law is a combination of pre-Islamic customary law and Koranic law. The shares of Koranic heirs are specified and the remainder of the estate is divided among the customary heirs. Wives and daughters are Koranic heirs. Islamic law remedied the situation under customary law whereby females were excluded from inheritance.
[ix] DAVID PEARL, A TEXTBOOK ON MUSLIM PERSONAL LAW 27 (1979); John H. Mansfield, The Personal Laws or a Uniform Civil Code?, in RELIGION AND LAW IN INDEPENDENT INDIA 145-47 (Robert D. Baird, ed., 1993).
[x] PARAS DIWAN, FAMILY LAW 43 (1991).
[xi] Linda Serck, Polygamy in Islam: The women victims of multiple marriages, BBC ( June 1, 2012) https://www.bbc.com/news/uk-england-berkshire-18252958,Werner F. Menski, The Reform of Islamic Family Law and a Uniform Civil Code in India, ISLAMIC FAMILY LAW 253, 281 (Chibli Mallat & Jane Connors eds., 1990).
[xii] M. P. Singh, On Uniform Civil Code, Legal Pluralism and the Constitution of India, 5 J. Indian L. & Soc’y (2014).
[xiii] Radhika Iyengar, What is Nikah Halala, how it was established and where it stands in modern India, The Indian Express (26 March 2018), https://indianexpress.com/article/what-is/what-is-nikah-halala-how-it-was-established-and-where-it-stands-in-modern-india-triple-talaq-4618415/.
[xiv] A.S.Parveen Akthar v. The Union Of India (MANU/TN/2472/2002).
[xv] Correspondent, Personal laws exempt from fundamental rights: Indian Union Muslim League, The Times of India ( Feb. 21, 2014), https://timesofindia.indiatimes.com/city/kochi/Personal-laws-exempt-from-fundamental-rights-Indian-Union-Muslim-League/articleshow/30761616.cms.
[xvi] Om Prakash v. Radha Charanthe (2009)15 SCC 66 – When the wife was thrown out of the matrimonial home after the unfortunate death of her husband by her in-laws, she acquired considerable wealth through her job and lived along with her parents. Later she died intestate. Her mother and her in-laws filed for grant of a succession certificate under S.372, Indian Succession Act. The Supreme Court held that in case the intestate women dies issueless, the heirs of her husband would be given preference over her parents in the light of section 15 of the Hindu Succession Act 1956.
[xvii] The Code of Criminal Procedure, 1973, § 125, Acts of Parliament, 1973 (India).
[xviii] The Muslim Women ( Protection of Right to Divorce) Act,1986, § 5, Acts of Parliament, 1986 (India).
[xix] Raj Kali Kuer v. Ram Rattan Pandey, (1955) 2 SCR 186.
[xx] The Hindu Succession ( Amendment) Act, 2005, § 6, Acts of Parliament, 1955 (India).
[xxi] Shayara Bano v. Union of India (2017) 9 SCC 1.
[xxii] INDIA CONST. art. 44.
[xxiii] M. P. Singh, On Uniform Civil Code, Legal Pluralism and the Constitution of India, 5J. Indian L. & Soc’y V (2014).
[xxiv] B.SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION: SELECT DOCUMENTS.
[xxv] Constituent Assembly Debates, Vol.VII, p.546.
[xxvi] Id, p.540
[xxvii] Id, p.541
[xxviii] John Vallamatom v. Union of India (2003) 6 SCC 611.
[xxix] Mohd. Ahmed v. Shah Bano (1985) 2 SCC 556
[xxx] Sarla Mudgal v. Union of India, (1995)3 SCC 635.
[xxxi] Shakeel A. Samdani, Uniform Civil Code: Myth and Reality, 23 ALJ 92, (2015-16).
[xxxiii] Correspondent, Why the government must now hasten to enact a Uniform Civil Code, The Economic Times (Aug.27, 2017), https://economictimes.indiatimes.com/news/politics-and-nation/why-the-government-must-now-hasten-to-enact-a-uniform-civil-code/articleshow/60238970.cms.
[xxxiv] The State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84.
[xxxv] INDIA CONST. art. 13.
[xxxvii] 2014 (14) SCC 272.
[xxxviii] AIR 1995 Ker 252.
[xxxix] (1996) 8 SCC 525.
[xl] Constituent Assembly Debates, Vol.VII, P.574.
[xli] art.25, cl. (2)(b)- Nothing in this article shall affect the operation of any existing law or prevent the state from making any law.
[xlii] Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
[xliii]P.K.Tripathi, Directives Principle of State policy: The Lawyer’s Approach to Them Hitherto, Parochial, Injurious and Unconstitutional, 17 SCJ 7, (1954).
[xliv] The Constitution ( First Amendment) Act, 1951, § 2.
[xlv] 98 U.S. 145 (1879).
[xlvi] HELEN IRVING, GENDER AND THE CONSTITUTION, ( Cambridge University Press, 2008).