Why regressive personal laws must be codified

Sayan Ganguly
·5-min read
Why regressive personal laws must be codified
Why regressive personal laws must be codified

Instant triple talaq became a cognizable offence a year ago on August 1, 2019.

While this was a welcome change, it only partially solved Muslim women’s problems. For a complete resolution to this, codification of personal laws of minorities is the only panacea.

But previous governments have avoided addressing this issue because of the pressure from minority community leaders, mostly men folk. Also, politicians were worried their voters might be upset.

So why is there a need to codify personal laws?

Discriminatory towards women

Personal laws have always been contentious and an emotive matter, a cat many have refrained from belling. The founding father of Indian Constitution, Dr BR Ambedkar, had to step down as Union Law Minister when the codification of Hindu laws were being introduced.

Three decades later, Mohammad Arif Khan had to resign from the Congress Cabinet when he protested against the then Rajiv Gandhi government for passing an Act to overturn a Supreme Court ruling in favour of Shah Bano in matters of divorce and maintenance.

Under the Muslim Personal Law (Shariat) Application Act, 1937, Muslim women are only entitled to a 3-month compensation for the length of the idaat (waiting) period unlike Hindu, Sikh and Jain women who are entitled to compensation for their entire lives after divorce.

Under the 1937 Shariat Law, Muslim women didn’t have the right to initiate a divorce. After cases of Muslim women converting to Hinduism in order to get rid of their ‘cruel’ husbands were being cited, The Dissolution of Muslim Marriage Act, 1939 came into being.

Even after women were granted the right to divorce in certain cases, there were still limitations. One of them was that the woman can only file a divorce where she was married or where her husband lives.

In matters of inheritance, the Shariat law doesn’t provide for equal share to a woman, be it a daughter, a wife or a sister. For example, a boy gets double the share than his sister if they jointly hold a property.

Muslim personal law doesn’t recognise adoption. “In Islam, all relations are ordained by Allah. Physical intimacy with a person with whom nikah and sexual relations are possible, is not permissible. So an adopted son cannot live in the same house as the mother or a biological daughter,” an All India Muslim Personal Law Board member was quoted saying to The Print in 2018.

In the landmark Shabnam Hashmi case of 2014, adoption rights — irrespective of religion — were allowed by the Supreme Court under the Juvenile Justice (Care and Protection of Children) Act, 2000.

Genesis

In India, there is no discrimination on grounds of religion when it comes to criminal laws. However, this is not the case with civil laws.

Personal laws, a subset of civil laws, related to marriage, divorce, adoption and inheritance are archaic and anti-women in nature. After Independence, only Hindu personal laws were codified that allowed for inter-caste marriages and provided inheritance rights to women. Sikhs, Buddhists and Jains were also included within the ‘Hindu’ spectrum.

A recent amendment in 2005 allowed women equal inheritance rights to their ancestral property.

As the spectre of Partition was still fresh and under pressure from Muslim orthodoxy, few of our Constitution makers decided to steer clear from codifying personal laws of the minorities.

Instead, there was Article 44 formed under the Directive Principles of State Policy (DPSP) that read, “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” However, DPSPs are just a directive to a state and are non-enforceable in a court of law, unlike Fundamental Rights.

The inter-religion marriage act (Special Marriage Act, 1954)

When the Hindu Code Bill was being debated in Parliament, Dr BR Ambedkar had to resign as he faced strong opposition from Congress members and orthodox Hindus. Many were against inter-caste marriage and giving Hindu women the right to divorce.

They felt that it would ruin the fabric of the society as marriage was considered ‘indissoluble’.

In order to seek support from the members of Congress for passing Hindu Code Bill, the then Prime Minister Jawaharlal Nehru had to dilute the Special Marriage Act that allows for inter-religious marriage.

As a result, what was supposed to be a secular solution to inter-religious marriages turned out to be a hurdle instead. The original Act III of 1872 required both parties to give up on their religions if they were to marry, as after the 1857 revolt, the British did not want to interfere with religious beliefs.

Instead, the 1954 law turned out to be regressive, paving the way to forced conversions and turning India into a sort of a khap panchayat.

During the fifties debates, not only the Jan Sangh and the Hindu Mahasabha led the growing clamour for a Uniform Civil Code in the Parliament, but even the Communist party and some Congress members, like Sucheta Kriplani, joined them.

However, Pandit Nehru felt that the moment was not ‘ripe’ in a country that had just witnessed a partition.

What the Law Commission says

The Law Commission report in 2018 calls for reforming and codifying all the personal laws, instead of batting for a Uniform Civil Code.

The way Ahead

Instead of referring the matter to the Law Commission, which is neither a statutory nor a constitutional body, the matter should be passed on to either the National Human Rights Commission or the National Commission for Minorities.

Uniform Civil Code and personal laws both deal with human rights as well as rights of minorities. The recommendations of a Law Commission are not binding on the government. However, both the other commissions have more teeth as they are statutory bodies and can bring a lot more purpose.

The government should look to constitute an expert committee to draft a Uniform Civil Code at the earliest.

After more than seven decades since Independence, many personal laws cry out for reform.

Without government intent, basic fundamental rights like gender equality and justice will continue to remain a dream.