The Supreme Court has reminded the Centre thrice of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. Similar sharp reminders from the court also came in the past, but the ruling orthodoxy in all religions resisted the idea.
The Muslim community, by and large, seems to be hostile to the idea of the civil code and wishes to preserve its own personal law. In this atmosphere, it would not be advisable to enact a UCC, optional or otherwise, though such a code is desirable.
However, not all opponents of the UCC are opposed to reform of their personal law. Many progressive-minded and forward-looking Muslims say that not only is their law as practised in India unfair to women, it is contrary to the tenets of Islam.
Not only Muslim Personal Law (MPL) but also personal laws of other communities are pro-male. For instance, under Hindu law a woman cannot inherit ancestral property. If she is abandoned by her husband, she cannot claim maintenance from her natal family either. A Hindu woman cannot adopt a child in her own name. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to partition it for determining their share in the property.
Nor is the position of women any better under Muslim law. While monogamy is the rule of law for a woman, the husband is entitled to have four wives. He can dissolve the marriage at any time. The wife, on the other hand, can divorce only with her husband’s consent. Under law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and no maintenance after the iddat period (the period after divorce when a woman is supposed to remain unmarried) to a divorced woman are other disturbing aspects of the law.
Similarly, the Christian laws on marriage, divorce, maintenance and succession appear to be similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for mutual divorce. In other statutes like the Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year. Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased kids.
In attempting to reform and codify the Hindu Law in the first instance, the idea was that if it succeeded, other communities would follow suit, but this didn’t happen. However, this does not mean that existing personal laws should remain unaltered.
While the judiciary’s role in attempting to rectify gender and other biases in community-specific legislation is welcome, the legislature cannot escape its responsibility of law making.
The author is an advocate of the Supreme Court and the Delhi high court. The views expressed are personal.