1 Aug 2003, 2142 hrs IST, Nilanjana Bhaduri Jha, TNN
Politics apart, the case for a Uniform Civil Code - which will cover the entire gamut of laws governing rights relating to property, marriage, divorce, maintenance, adoption and inheritance - has been most argued on behalf of women. There is universal agreement that personal laws, regardless of the community, are skewed against women.
A Universal Civil Code will most affect:
Marriage: In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the divorce provisions in Muslim law as well as that polygamy be declared illegal. The Supreme Court asked her to approach Parliament, refusing to entertain the petition.
Bigamy is punishable by law in all communities save the Muslims, who are governed by the Sharia law. The Muslim Personal Law (Shariat) Application Act 1937 was passed by the British government to ensure that the Muslims were insulated from common law and that only their personal law would be applicable to them. Bigamous marriages are illegal among Christians (Act XV of 1872), Parsis (Act II of 1936) and Hindus, Buddhists, Sikhs and Jains (Act XXV of 1955). Enactment of a Uniform Civil Code would impinge upon Muslim rights to polygamy.
In almost all recent cases where the need for a Uniform Civil Code has been emphasised women were at the receiving end of torture in the garb of religious immunity. Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there have been several other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife.
Julekhabhai had sought equality with Muslim men, requesting court to declare that "dissolution of marriage under Muslim Marriage Act, 1939, can be invoked equally by either spouse". It also requested the court to strike down provisions relating to "talaq, ila, zihar, lian, khula etc.," which allowed extra-judicial divorce in Muslim personal law.
Mohammed Abdul Rahim Quraishi, Secretary, All India Muslim Personal Law Board, says: "It is also to be seen that the subjects of marriage and divorce, infants and minors, wills, intestacy and succession, partition etc, are enumerated in the concurrent list of 7th schedule of the Constitution. These are subjects on which both the Central and state governments have the power to make laws. As a result, we find many regional variations affected by the state legislatures in the Hindu Laws."
"To conserve the cohesion of Hindu society, the Hindu laws made allowances for customs and usages. The imposition of uniformity would have undermined Hindu social cohesion. If matters relating to family laws and customs fall under the jurisdiction of parliament and state legislatures, the country will have a variety of regulations. The State amendments have made many in-roads in the Hindu laws damaging the uniformity of theses laws, affecting many substantive rules. "
Interestingly, when the BJP and affiliates make a case for a Uniform Civil Code, they talk more about national integration, less about equality. “There is a need for progressive laws and all communities should come together," says BJP leader V K Malhotra, confirming that the party will try to bring legislation for a common civil code.
Many progressive thinkers are now propagating the Special Marriage Act for the registration of marriages without reference to caste or religion. The Special Marriage Act is considered a secular method compared to the Hindu, Christian and Muslim methods of marriage.