Uniform Civil Code – Outside the Constitution

Please Read the Uniform Civil Code – The Constituent Assembly before reading this for a better understanding. This can be read as a stand-alone article also.

Based on constituent assembly debates, we can see that inclusion of Uniform Civil Code in DPSP was not a random event but by choice after considering all possibilities in the constituent assembly, and not only Muslims but others including Hindus had oppositions to it. But constituent assembly after due deliberations accepted it and most importantly, there were no uniform personal laws among any of the communities in India be it Hindus or Muslims and the prospect of UCC affected all, minorities and majorities alike.

Throughout India, preference for scriptural or customary laws varied, because, in many Hindu and Muslim communities, these were sometimes at conflict; such instances were present in communities like the Jats and the Dravidians. The Shudras, for instance, allowed widow remarriage—completely against to the scriptural Hindu law. The Judicial system during British Raj was leaning towards Brahmanical system as the official Hindu Custom, ignoring the other systems due to convenience as well as due to its wishes to appease the upper castes.

When it comes to Muslims, it is more surprising as the Muslim Personal Law (based on Sharia law), was never strictly enforced in India and had no uniformity in its application at lower courts. Hence, in practice, Muslim customs became often more discriminatory against women. Women, mainly in northern and western India, often were even restrained from property inheritance and dowry settlements allowed by Sharia. The Shariat law of 1937 stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance putting an end to this.

The Hindu customs were more discriminatory against women as it deprived them of inheritance, remarriage and divorce and the situation of women especially that of Hindu widows and daughters were pathetic. Social reformers from Hindu religion forced the British to bring about changes in this. Thus reforming laws were passed which were beneficial to women like the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman’s right to property, for the first time.

The women associations in India like All India Women’s Conference (AIWC) were desperate about the need for equal status of women and they even criticised the male dominance in the constituent assembly as the reason for the delay in reforms.

In between, there was a Special Marriage (Amendment) Act passed in 1872 that allowed Hindus to go for a civil marriage by renouncing their religion and the right to property. Later this was amended in 1923 to allow marriage either under their personal law or under the act without renouncing their religion as well as retaining their succession rights and extended this to Buddhists, Sikhs and Jains.

The attempts for a Uniform Civil Code started immediately after the independence but was met with stiff opposition from Orthodoxy in Hindu as well as Muslim religions. While a majority of Muslim leaders opposed the reforms, Hindu opinion was divided and there were demands from women’s organisations in India. The government decided to use this opportunity to reform personal laws at the least for Hindus and moved the wishes for Uniform Civil Code to DPSP to ensure its implementation at a later time when the minorities can be convinced.

As Law Minister, B. R. Ambedkar was in charge of presenting the details of this bill and argumentum ad hominem against Ambedkar as he had severely criticised Hindu social structure to the level of abuse, did not help the matters either. Ambedkar’s frequent attack on the Hindu laws and dislike for the upper castes made him unpopular in the parliament.

Apart from that, the Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce and inheritance to daughters including the President of India. The fundamentalists called it “anti-Hindu” and “anti-Indian”, and to delay the Hindu Code Bill they demanded a uniform civil code.

Initially, the women members of the parliament, supported the fundamentalists, but reversed their position and backed the Hindu law reform as they realised that allying with the fundamentalists would cause a further setback to their rights in the long run. This was a huge morale booster for Nehru-Ambedkar team.

Due to all the opposition and controversies, Nehru hesitated to move further and it said that Ambedkar threatened Nehru with resignation to persuade him. Finally, a lesser version of Hindu code bill was passed by the parliament in 1956, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. It was decided to add the implementation of a uniform civil code in Article 44 of the Directive Principles of the Constitution.In 1954, The Special Marriage Act was also passed, to allow civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law without renouncing the religion. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law.

The controversy again was raked up during the Shah Bano Case. When Shah Bano aged 73 years was divorced by a triple talaq and was denied maintenance quoting Islamic Law, the honourable Supreme Court had to interfere and provide her with the rights based on the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion.

There were national level campaigns against the Supreme Court decision. To appease the Muslim minority and put an end to the controversies, the government under Rajiv Gandhi passed the Muslim Women’s (Protection of Rights on Divorce) Act in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.

The politicisation led to argument having two major sides: the Congress and Muslim conservatives versus the Hindu right-wing and the Left. We can see that the politicisation began as a delay tactic for Hindu Code Bill by Hindu fundamentalists and reached its peak in the argument against Shah Bano judgement by Muslim patriarchy.

Ironically, Muslim Personal laws as applied in India right now are “Anglo-Mohammadan” rather than solely Islamic and it is sometimes more regressive than the actual teachings of the Prophet and Quran. It even includes some provisions which are rejected by Islamic countries like triple Talaq. The clergy must be sticking to these laws to ensure their control over the community rather than for any religious reasons. Lower literacy rates in Muslims, lesser social awareness in Muslims and lesser political and social empowerment of Muslim women are the reasons for the continuance of this issue. The religion of Islam does not make it essential for a Muslim to follow the personal law word by word and there is enough scope for Muslim rituals to be practised within Uniform Civil Code off course without limiting the rights of women.

Politicisation and Uniform Civil Code identified as a Right Extremists agenda also created suspicion in the community. Now, we need the educated Muslims to stand up for equal rights, Muslim women to renounce clergy and demand Uniform Civil Code and the secular-minded people to educate as many Muslims as possible about the need for Uniform Civil Code. That is the only hope for an egalitarian society for Muslim women in India.

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