Uniform Civil Code and Gender Justice

Uniform civil code(UCC) has been a heated issue since time immemorial and is seen on and off making headlines. Many Jurist, Feminist, Social workers and political leaders see UCC as harbringer of gender justice. They see this intervention by the state in the form of uniform code as the only option to bestow gender justice upon minority women. Personal laws are seen as inimical to equality. The gender concerns raise a demand for uniform civil code,which they see as a magic wand which will ameliorate the oppression and sufferings of Indian women in general and Muslim women in particular.

Before we dive into a discussion on UCC and gender justice let’s see what UCC actually is.

Uniform civil code aims at replacing personal laws based on scriptures and Customs of each major religious community in India with the common set of rules governing every citizen. Enshrined in Article 44 of the Indian Constitution which states that the “state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The framers of our Constitution included this vision as a directive principle of State Policy and left it upon the state to implement it in due course. Years and years have rolled by governments have changed but we do not see implementation of Article 44.

However, we have witnessed judicial intervention as and when changes demanded or ambiguity arose in the personal laws classic examples being the triple talaq judgement[1] and the vineeta Sharma case[2]So when the judiciary is authorized and has testified to ensure gender justice then do we really need a UCC? I am a firm believer of the fact that we do not need a UCC at all.Gender justice is something that doesn’t need transformed laws but a changed social attitude. Personal laws are considered to be female oppressive and patriarchal in nature. I believe it’s because they have evolved in a male dominant society and definitely menfolk would never want to give up on privileges which are easily available as a custom or given by their respective personal laws. That’s when the judiciary comes to the rescue.

Hindu succession act,1956 never gave females coparcenary rights. Even the 2005 amendment to the act was ambiguous as to whether a daughter could claim coparcenary rights if father expired before the implementation of the amendment (9september,2005). It was then in vineeta Sharma case[3]where the court clarified that daughters have coparcenary rights by birth as the son and can claim it regardless of time when father died. Shah bano case[4] relating to maintenance also contributes to a thought and emphasis by courts on a UCC. In this case Shah bano was divorced by her husband 40 years after marriage and was denied maintenance.

The supreme court rejected the contention of the husband that section 125 of the criminal procedure code providing for the maintenance of divorced women who are unable to maintain herself is applicable to Muslims.it was held that the Muslim divorced woman who cannot maintain herself is entitled to maintenance from her former husband till the time she gets remarried. It was said that the religion professed by a spouse or the spouses has no place in the scheme of section 125 of The Criminal Procedure Code which is a measure of Social Justice founded on individuals obligation to the society to prevent vagrancy and destitution.[5]This case clearly shows that it’s required that loopholes of respective personal laws and their misuse has to be identified and rectified.

In the case of Shayara Bano v. Union of India[6], the triple talaq issue required judicial intervention because muslim men innovated a particular form of divorce which doesn’t even has Quranic or shariat sanction. A practice of pronouncing talaq three times and thereby ending the marriage was prevalent amongst certain class of Muslim men.

This practice resulted in an insecurity among Muslim women who could just be left by their husbands at anytime on any trifle instance by mere utterance of the word “talaq” thrice, while as ordained by holy Qur’an the talaq must be for a reasonable cause and must be preceded by attempts at reconciliation. So the court rightly held in Shayara Bano v. Union of India that triple talaq is against basic tenets of Holy Qur’an and violative of Sharia. Reform in personal laws is a worthwhile goal but implementation of UCC is difficult and unwelcoming for a religiously and culturally diverse nation like India.

There are not just various personal laws but these personal laws also have distinction as per the sect that follows it. Like the Sunnis and Shias in the muslim community itself have distinctions in their personal laws likewise the various layers of Hindu community have different cultures thus a difference relating to personal laws like with regard to inheritance, succession,joint family and rights of women etc.. Implementation of UCC is an invitation to havoc and smothering of cultural diversity which we boast about all around the world.Though it’s very correct that religion and personal laws are entirely different things.At the same time one must not forget that the personal laws of various religious groups are based upon customs.So if we bring a UCC we will indirectly attack upon the customs of individuals the protection of which is guaranteed by the constitution. 

What’s important to ensure gender justice is that the provision of  personal laws which are gender discriminatory shall be struck down. Personal laws shall be tested on constitutional compliance. One must not forget that our Constitution recognises customs and gives autonomy to respective groups of equality as well as religion. So neither a woman can be discriminated nor shall anyone be restricted from following his or her personal laws which in turn are the gift of their varied customs.The Constitution provides for a space of reasonable classification.

For example under the Muslim quantum of share of women is half that of man. Prima facie it might seem to be gender discriminatory but actually it is because a Muslim women shall receive dower from her husband as well the maintenance, while a Muslim man shall only get the property inherited and is also responsible for keeping up his wife and children.So in this way laws of inheritance under the Muslim law are just. It must be noted that diversity of law is not a problem until they stand just.

The need of the hour is a dialogue and debate addressing the laws that discriminate against women, keeping in mind that not the religion be targeted but the situation of women. The minority, majority and vote bank politics revolving around UCC should stop. It shall not be our concern to adopt a uniform code but a just code. A uniform civil code is neither feasible nor desirable.Piecemeal reforms of personal laws are the way forward. From the ban of sati to verdict on triple talaq we have empowered our women and shall continue doing so.Uniformity in law is not the goal but justness.I repeat,UCC is neither feasible nor desirable.


[1] Shayara Bano v union of India AIR 2017 SC 4609

[2]Vineeta Sharma v Rakesh Sharma & ors. (2020) AIR 3717 (SC) 

[3] Ibid. 2

[4] Shah Bano Begum v. Mohammed Ahmed Khan AIR 1985 SC 945

[5] Aqil Ahmad, Mohammedan Law, Pg. 243 (central law agency,27th edition,2021)

[6] Ibid. 1


Author: Zikra Mansoor from Aligarh Muslim University.


One comment

  1. What a progressive thinking. The author had made the Constitution an outdated concept, the makers of which thought the UCC as Fundamental right first, then due to the prevalent situation had to move it to DPAP, and now we want to do away with it altogether. I think the makers lacked the vision of the author. Kudos to her fanatic view for daring to challenge the basic tenets of the Constitution !

    Like

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