A Uniform Civil Code: It isn’t about women

Nivedita Menon in The Hindu

The talk of a Uniform Civil Code has nothing to do with gender justice. It has entirely to do with a Hindu nationalist agenda to ‘discipline’ Muslims

For nearly eight decades, the women’s movement has discussed and debated the desirability and feasibility of a Uniform Civil Code, and has ended up posing a simple question — what is the value of uniformity? Is it for the “integrity of the nation” that uniformity in laws is required, as some judicial pronouncements have suggested? If so, who exactly is the beneficiary? Which sections of people benefit from “integrity of the nation”, that abstract entity which is not exactly at the top of your mind as your husband throws you out on the street?

Or are uniform laws meant to ensure justice for women in marriage and inheritance? In that case, a Uniform Civil Code would simply put together the best gender-just practices from all Personal Laws. So yes, polygamy and arbitrary divorce would be outlawed (a feature derived from Hindu Personal Law). But conversely, as feminist legal activist Flavia Agnes has often pointed out, a Uniform Civil Code would require the abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus, and all citizens of India would have to be governed by the largely gender-just Indian Succession Act, 1925, currently applicable only to Christians and Parsis.

A stick to beat Muslims with

Muslim Personal Law is already modern in this sense, since it has since the 1930s enshrined individual rights to property, unlike Hindu law, in which the family’s natural condition is assumed to be “joint”. In the decades of the 1930s and 1940s, contrary to later discourses about Muslim law being backward, it was Hindu laws that were considered “backward” and needing to be brought into the modern world of individual property rights.

Again, since the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as sacrament, all marriages would have to be civil contracts. Mehr, in Muslim Personal Law, paid by the husband’s family to the wife upon marriage, is the exclusive property of the wife and it is hers upon divorce, offering her a protection Hindu women do not have. So, the Uniform Civil Code would make the practice of mehr compulsory for all while abolishing dowry.

The patent absurdity of these suggestions arises not from the ideas themselves, but from the fact, recognised by everybody, that the talk of a “Uniform Civil Code” has nothing to do at all with gender justice. It has entirely to do with a Hindu nationalist agenda, and is right up there with the beef ban and the temple in Ayodhya. A Uniform Civil Code is meant to discipline Muslims, teach them (if they didn’t know it already) that they are second-class citizens, and that they live at the mercy of “the national race” (the Hindus), as M.S. Golwalkar decreed.

The real issue of gender justice

So let us pose the question differently — who suffers in the absence of a Uniform Civil Code? Is it Muslim women, victims of polygamy and triple talaq, as Hindutvavadi wisdom has it? But for decades, feminist legal practice has successfully used both the Protection of Women from Domestic Violence Act, 2005 — that is available to all Indian citizens regardless of religious identity — as well as the Muslim Women (Protection of Rights on Divorce) Act, 1986, to deal with polygamy and triple talaq, and to obtain maintenance, child custody and rights to matrimonial home for countless Muslim women. In addition, feminist legal activists have used the landmark Shamim Ara v. State of U.P. (2002) ruling to buttress their claim that arbitrary triple talaq is invalid.

Moreover, polygamy is not exclusive to Muslims. Hindu men are polygamous too, except that because polygamy is legally banned in Hindu law, subsequent wives have no legal standing and no protection under the law. Under Sharia law, on the contrary, subsequent wives have rights and husbands have obligations towards them. If gender justice is the value we espouse, rather than monogamy per se, we would be thinking about how to protect “wives” in the patriarchal institution of marriage. “Wives” are produced through the institution of compulsory heterosexual marriage, the basis of which is the sexual division of labour. This institution is sustained by the productive and reproductive labour of women, and almost all women are exclusively trained to be wives alone.

Thus, when a marriage fails to fulfil its patriarchal promise of security in return for that labour, all that most women are left with is the capacity for unskilled labour. Or they remain trapped in marriage with children to provide for, while men marry again, legally or otherwise, producing still more dependent, exploited wives and children for whom they take no responsibility. If gender justice is the point of legal reforms, the centrality and power of the compulsory heterosexual, patriarchal marriage, and the damage it can do to women, is what must be mitigated. This would mean recognising the reality of multiple “wives” as a common practice across communities, and the protection of the rights of all women in such relationships.

In this sense, recent Supreme Court rulings that have granted rights to second wives in Hindu marriages dilute the legal standing of monogamy for Hindus but empower women.

A survey conducted by the Bharatiya Muslim Mahila Andolan, a significant voice in the debate, found that more than 90 per cent of Muslim women in India want a ban on “triple talaq” and polygamy in Muslim Personal Law. That is, the demand is made within the framework of codifying Muslim Personal Law, not in favour of a Uniform Civil Code, partly because there is no clarity on what a uniform code would look like, but also because the demand comes from clearly Hindutvavadi quarters which have shown that both women and minorities are expendable for them.

Lessons from the Goa experience

The only example of a uniform code in India is the Portuguese Civil Procedure Code (1939) of Goa, which is neither ‘uniform’ nor gender-just. Marriage laws differ for Catholics and people of other faiths, and if a marriage is solemnised in church, then Church law applies, permitting, for example, arbitrary annulment at the behest of one of the parties. The “customs and usages” of the Hindus of Goa are recognised, including “limited” polygamy for Hindus.

The positive aspect of Goa’s Civil Code is the Community Property Law, which guarantees each spouse 50 per cent of all assets owned and due to be inherited at the time of marriage. However, this provision can be sidestepped in practice, given the power relations in a marriage, and studies show that it has not made any impact on the incidence of domestic violence.

Clearly, if gender justice is not prioritised, both uniformity as well as its dilution can reinforce patriarchy and majoritarianism.

The woman at the centre of this recent round of debate on the Uniform Civil Code is Shayara Bano, who received talaq by post. Her lawyer, instead of using any of the three recourses available discussed above — the Protection of Women from Domestic Violence Act, 2005, the Muslim Women (Protection of Rights on Divorce) Act, 1986, or the citation of the Shamim Ara v. State of U.P. (2002) judgment — decided to file a Public Interest Litigation in the Supreme Court challenging triple talaq on the grounds of violation of Fundamental Rights. Ms. Bano is now in the media spotlight, spiritedly criticising patriarchy in the Muslim community.

Revealingly, a recent interview with her in a national newspaper concluded with a startling question — “What about the ‘Bharat Mata ki Jai’ slogan controversy?” Ms. Bano replies, “I feel all Muslims should say Bharat Maa ki Jai.”

Does the question seem irrelevant in the context of Ms. Bano’s fight for personal justice? What does compulsory chanting of “Bharat Mata ki Jai” have to do with a woman fighting patriarchy?

But the question does not seem irrelevant at all; it seems to be at the heart of the interview. This alone should alert us to what the demand for a Uniform Civil Code is actually about.

Nivedita Menon, a feminist scholar, is a professor at Jawaharlal Nehru University