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Another one slips through

Religious sentiments of different communities must be respected, but marriage and divorce laws can be made uniform without tinkering much with personal laws. Sudhanshu Ranjan elaborates.

india Updated: Feb 04, 2009 22:25 IST

From Chander Mohan to Chand Mohammed and back again: the first deserting his first wife Seema and converting to Islam to marry Anuradha Bali (now Fiza); and the second deserting his latest love. Such farces are enacted because of gaping holes in our legal system.

This is not the first time that a Hindu has embraced Islam in order to re-marry. Actors Dharmendra and Hema Malini did the same. Kishore Kumar became Abdul Kareem and married Madhubala. When the Hindu Marriage Act of 1955 made bigamy illegal for Hindus, an escape route was found in Muslim personal law.

The Supreme Court (SC) tried to plug this loophole in Sarla Mudgal v. Union of India when it held the second marriage of a Hindu convert to Islam illegal, ordering prosecution for the same. Under Muslim personal law, such marriages are not void.

The apex court invalidated the second marriage in the spirit of the law. But there is an error in the judgement as one can be prosecuted for bigamy under section 494 of the Indian Penal Code only if the second marriage is void, which is not the case under Muslim personal law. It is understandable why no criminal case against Chander Mohan has yet been filed.

The court, aware of its handicap, directed the government to implement the mandate of Article 44 of the Constitution that enjoins the State to implement a uniform civil code. But Article 44 is a non-justiciable directive principle of state policy, and it is debatable whether the court can direct the government to implement it.

Men take refuge in such loopholes, causing cruelty to their first wives — in this case both wives — only because India lacks a common civil code. We are a signatory to the International Covenant on Civil and Political Rights, 1966, and International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979. India is under a legal obligation to ensure gender equality, but it has hardly taken any steps to comply. It accepted the prevalence of discrimination against women under various personal laws of different communities before the UN Committee on the Elimination of Discrimination Against Women in 2000. The committee noted India’s failure and had warned that “the government’s policy of non-interference perpetuates sexual stereotypes, son preference and discrimination against women”.

When the SC directed the government in Vishakha v. State of Rajasthan to make a law to stop the sexual harassment of women at work places, it ruled that the provisions of the Constitution have to be interpreted as informed by CEDAW. The SC has been emphasising the need for a uniform civil code since the 1985 Shah Bano case when it lamented that Article 44 has remained “a dead letter”. But in the Ahmedabad Women’s Action Group case, the court, held that the removal of gender discrimination in personal laws fell in the domain of state policies in which the court could not interfere.

The first major step towards enforcing a uniform civil code was taken when the Hindu Code Bill was enacted, engendering the Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoptions and Maintenance Act of 1956, and Hindu Minority and Guardianship Act of 1956. These acts did away with the prevailing personal laws among Hindus which permitted men to keep more than one wife, denied women the right to divorce and rights over their ancestral property. Making bigamy an illegal and bequeathing the right of divorce to wives was revolutionary, since a Hindu marriage was considered sacrament.

Religious sentiments of different communities must be respected, but marriage and divorce laws can be made uniform without tinkering much with personal laws. Without that, discrimination against women cannot be stopped.

(Sudhanshu Ranjan is a Delhi-based journalist)