Article

Gender Justice through the glass of Uniform Civil Code

Author : Sivapuram V. L. Thejaswini

This is an essay which highlights ‘Uniform Civil Code’ as a prerequisite of Gender Justice.

As our Indian Constitution is democratic that provides both ‘Equality before law & equal protection of law’ through ‘Article 14’. Thus the Indian Constitution through it’s various provisions ensures that is no discrimination amongst the citizens on basis by caste, religion, sex, race, etc. 

Regarding the women exploitation; renowned poet Rabindranath Tagore viewed;

     “O lord why have you not given women the right to conquer her destiny ? 

     Why does she have to wait head bowed ?

     By the roadside, waiting with tired, patience, hoping for miracle in the morrow ?”

Then here comes the question,

‘Whether there exists equality for women in India?’

The answer would be No. 

Because we can often see women as sufferers in society. They are being degraded by the patriarcal setup of the society and the traditional atrocities imeded in the roots of the Indian society . 

So, as to put an end to this kind of happenings against women at an alarming rate ‘Gender Justice’ is very crucial.  

What is a Personal law ?

It means a law that applies to a specific class (or) group of people based on their religion, culture & faith.

Eg – Hindu Personal law

       Muslim Personal law

Are personal laws discriminatory ?

Both the Hindu & Muslim personal laws are discriminatory towards women. 

In ‘Harvinder Kaur v. Harmander Singh Choudhary’, 

• A plea was rejected by the court that personal law was discriminatory towards gender inequality in India.
• It was observed that the introduction of constitutional law into the personal law was most inappropriate.

Glance of Hindu Personal law :

• Hindu law got codified during the years of 1955-1956;

• The Hindu Marriage Act, 1955
• The Hindu Adoption & Maintenance Act, 1956
• The Hindu Minority & Guardianship Act, 1956
• The Hindu Succession Act, 1956

Beforemath codification –

• There was no equality for Hindu women as Hindu men.
• Polygamy was a practice before 1955.
• Absolute ownership to property was not possible among Hindu women except in the case of Stridhana.
• Even in the case of adoption a Hindu woman can’t be the natural guardian during the life of her husband.

In ‘Jijabai Vithalrao Gajre v. Pathankhan’, 

• It was held that, under Hindu law, the father is the natural guardian of his minor legitimate children, though the mother is entitled to custody of the child up to the age of 5 years.
• Mother is the natural guardian of her illegitimate children and after the death of father of her illegitimate children. 

These above provisions illustrate that there exists discrimination before codification.

Aftermath codification –

• Even after the stage of codification, there exists discrimination.
• A Hindu woman has no right to partition in case of a dwelling house, though she is a legal heir.
• A Hindu woman could not claim a share in the coparcenary property except in some states like Andhra Pradesh, Maharashtra, Karnataka, Tamil Nadu.

                         The codification of Hindu law has brought some changes but could not eliminate the discrimination to a full extent.

In ‘Sarla Mudgal v. Union of India’, 

          It was pointed out that the Hindu Personal law has been reformed to make it secular but the Muslim Personal law is yet to reform still. Thus, the court urged the government to have a fresh look at the issue of Uniform Civil Code.

Glance of Muslim Personal law :

• During the British era, this law was known to be Mohammedan law (or) Anglo-Mohammedan law. Later the terminology got changed after the independence period to ‘Muslim Personal law’.
• The ‘Shariat Act’ was passed in 1937 before which Muslims were governed by their customary laws. 
• There is an ongoing debate regarding the Muslim personal law as it is not codified.

Marriage –

• Muslim marriage is known to be Nikah, a civil contract made for the purpose of procreation.
• Option of puberty – If a Muslim girl gets married when she is a minor/of unsound mind, then she can use this option either to ratify (or) repudiate the marriage.
• The option of puberty can be exercised by a Muslim girl only when she can support herself (or) if there is someone to support her.
• A Muslim man can marry either a Muslim/Christian/Jewish girl, but a Muslim girl has to only marry a Muslim man.

Dissolution of marriage –

• A Muslim man has unlimited rights to dissolve the marriage.
• But a Muslim woman has to dissolve the marriage only according to the provisions of ‘Dissolution of Hindu Marriage Act, 1939’.

Maintenance –

• A Muslim divorced wife can get maintenance only during the iddat period from her husband. 

• Iddat period – It is observed by Muslim women after the dissolution of marriage due to her husband’s death (or) divorce so as to make sure whether she is a pregnant and also to avoid paternity issues before she gets lawfully married again. 
• After this period if she has no means to maintain herself & children the liability will be imposed in the following order;

• Her parents, relatives who will inherit property on her death
• Otherwise the court may only order the State Wakf board to maintain her.

Polygamy –

• According to the Quran, a Muslim man can have four wives.

‘marry of the women, who seem good to you, two (or) three (or) four, if you fear that you cannot do justice to so many, then one (only)’.

• But polygamy is not permitted for a Muslim woman.
• During the subsistence of a 1^st marriage, if a Muslim woman contracted second marriage then it stands void. 

Property rights –

• The amount of property inherited by a Muslim woman is half to that of a man even if they are in the same degree of relationship to the deceased Muslim man.

             Thus, these provisions exhibit that there is no equality among Muslim women. 

In ‘Ahmedabad Women Action Group (AWAG) v. Union of India’,

• This PIL was filed by a voluntary organisation challenging polygamy, unilateral talaq and some traditional practices of Muslims as being violative of ‘Articles 14 & 15’ of the Constitution.
• It was observed by the court that;

• Polygamy may cause agony & can be a form of cruelty upon the wife.
• The talaq also leaves the women high without giving any resort in courts.
• Even the laws of inheritance are discriminatory.
• Thus, these provisions violate ‘Articles 14 & 15’ of the Constitution.

Take of Judiciary :

In ‘Mohd. Ahmed Khan v. Shah Bano Begum’,

The issue in this case was ‘To what extent there will be a liability upon Muslim husband to maintain his divorced wife under Section 125 of Cr.P.C, 1973’ ?

• It was held that a Muslim divorced woman has a right to be maintained by her husband if she has no means to maintain herself even after the iddat period.
• Also the provision of maintenance under ‘Section 125, Cr.P.C’ is a secular law applicable to all irrespective of religion.
• Thus, this judgement paved a way for the enactment of ‘Muslim women (Protection of Rights on Divorce) Act, 1986’.

In ‘Danial Latifi v. Union of India’,

The issue was about the constitutionality of ‘Muslim women (Protection of Rights on Divorce) Act, 1986’.

• It was challenged as violative of ‘Articles 14 & 21’ of the Constitution.
• The court held that ‘legislature doesn’t intend to enact unconstitutional laws’ which merely is not a ground to uphold an Act as constitutional.
• Finally this Act was upheld by the court as valid.

In ‘Noor Sabha Khatoon v. Mohd. Quasim’,

The issue was ‘Whether children are entitled to maintenance after the divorce of Muslim couple’ ?

• It was held that the children are entitled to maintenance under ‘Section 125, Cr.P.C & Muslim women (Protection of Rights on Divorce) Act, 1986’.
• Father shall be liable to maintain;
• His son till he attains majority & able to stabilize himself
• His daughter till she gets married.

So as to put an end to this kind of discrimination & gender inequality there comes a need for Uniform Civil Code.

What is Uniform Civil Code (UCC) in Indian Constitution ?

• ‘Article 44’ provides for UCC throughout the territory of India. It is enshrined in ‘Part IV’ of the Constitution under Directive Principles of State Policy (DPSP).
• The word ‘uniform’ in this Article means that all communities must be governed by the uniform principles of gender justice & human justice.  
• Through UCC, a similar code will be established among all the citizens who are governed by different personal laws relating to marriage, divorce, succession, maintenance etc. 

Need for Uniform Civil Code to achieve gender justice :

• It will ensure equality among the citizens.
• It promotes gender equality.
• It would accelerate national integration & national spirit.
• There will be a decrease in litigations of personal law.
• The objective of Unity & Integrity of our Preamble can be achieved through enforcement of ‘Article 44’.
• The stigma & prejudice of the personal laws would be eliminated. 

The Best example :

• The only state in India that follows UCC.

• The State of Goa has adopted the Goa Civil Code known as ‘Goa Family Law’.
• It was introduced in the year 1870 which is based on ‘Portuguese Civil Code 1867’.

Highlights of the code are as follows;

• Compulsory registration of every birth, death & marriage.
• There are strict provisions relating to divorce.
• Among the couples there has to be an equal division of property in case of divorce.
• And if one of them dies then the other person will retain the property.
• The Muslim residents of Goa can’t practice polygamy.polygamy

Way forward :

 In the month of ‘August, 2018’, the Law Commission submitted a report ‘Reform of Family Law’.

This report states regarding the diversity of Indian culture & also about weaker sections that they should not be ‘dis-privileged’.

Conclusion :

Hindu law towards Gender justice;

Amendment of Hindu Marriage in 1976 – Mutual consent theory has been recognized so as to liberalize the concept of divorce.

Amendment of Hindu Succession Act in 2005 – Under Mitakshara law, the right of a daughter over coparcenary property was recognized.

Law of Adoption – It recognized the right of Hindu women to adopt a child.

There are some changes that took place in Hindu Law. But we could not trace out any reforms in Muslim Law. It is the duty of the government to modernize these personal laws to make them gender just. 

It’s high time to make all these changes in the personal laws. Even if there are some challenges in implementing UCC, but to a large extent the amendments can be made in the personal laws itself so as to achieve gender justice & protect the rights of women.

‘UNIFORM CIVIL CODE IS NOT THE MAJORITY CIVIL CODE.

                             This means that the archaic practices and family laws of the medieval times will be replaced by codes which are SECULAR, MODERN & AGREEABLE to all the sections of the society’.

~ Arvind Adityaraj

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