After the Supreme Court’s consistent reminders in personal law cases, the Modi Government recently attempted to execute one of the major aspects of its manifestos, the Uniform Civil Code. In a letter by the PMO to the Law Ministry, the Law Ministry was asked to prepare a draft in the light of some of the most successful Civil Codes of the world. However, keeping in mind our diversity and the way religion impacts our every day life, what is needed is not a blind copy of earlier codes but a carefully drafted code keeping in mind the needs of the Indian people.
Article 44 of the constitution of India envisages the enactment of a Uniform Civil Code, amongst other goals such as bringing solidarity in the nation, this code is expected to be a one stop solution against all the sexist practices in the society. However, the question remains if such a code would really help curb these practices to a great extent in the light of all the other gender-biased laws.
The prospective code would for the starters govern marriage. Undoubtedly, the instances of unfair triple talaqs in the Muslims, unequal rights to inherited and matrimonial properties for wives and other sexist practices would be a thing of the past. Taking its place would be the present day religously neutral legislations. Initially, this seems like a fair idea, however, we fail to ignore the fact that these legislations too have their share of discriminatory provisions.
To begin with the Special Marriage Act, 1954, Section 4 (c) of the act makes 18 as legal the age of marriage for the girl and 21 as the legal age of marriage for the boy. The general rationale behind this is given that since girls strike puberty before boys do, they are more mature and hence should be married early. This is a whishy-washy logic with its basis in the 19th century India, to progress, India needs to make its citizens strong irrespective of their gender. An equal age of marriage would go a long way in ensuring that both the boy and the girl are educated and financially sound before getting married.
Take another instance of Section 25 of the Act which talks about the grounds on which a marriage becomes voidable. One is when the husband finds out that the wife was at the time of marriage was pregnant by some person other than him. Now one can understand the noble intentions behind this section, but one cannot definitely ignore the discrimination that this section imposes. The provision makes the 19th century argument strong that, if there is anything wrong in a marriage it is solely, a woman’s fault. Grounds for void-ability of marriage have to be equal for both the genders.
With the society’s structure rapidly changing, he concept of a house-husband has evolved. This takes us to the issue of adoption and maintenance. Section 36 of the act lays down alimony procedure for women only. Men are still completely ignored from the list. When such a code comes in existence, it would utterly fail to keep up with the changing times, where men need as much protection as women.
The above illustrations are not in the personal laws which would go away once a uniform code is passed, but, in the legislation, which would replace the current personal laws, with the passing of the Uniform Civil Code. Hence, India primararily needs to remove laws causing gender disparity and then, subsequently move on to enact a common code.
Apart from such provisions in the prospective code, to ensure total gender parity, we would have to amend even the Indian Penal Code to criminalise marital rape and decriminalise adultery, and if adultery is indeed to be a crime, it should be for both men and women unlike only men, as is the case currently under Section 497 of the Indian Penal Code (IPC).
Besides this, there is also an enrage on the issue of child marriages. Ever wondered why in spite of an effective legislation, children are still whisked off into matrimonial alliances? That’s because the prohibition of child marriages act 2006 does not make a child marriage unlawful per say. It merely says that such a marriage, if solemnized, can be declared unlawful subject to a petition filed by any of the parties. However, upon attaining legal age, if they want to enter into a marriage then that can be done upon. I like to call these legislations as cobweb-laws, they are merely there to increase the judicial burden. India can do better than enacting for a uniform civil code, if such laws are not repealed and made a thing of the past.
If a uniform civil code is envisaged in the background of such ancillary laws, then we would have a crippled system with no effective remedies.
It is not that I do not support the enactment of a common code. However, a code enacted in isolation of these amendments would be of little use. With these changes, the enactment of a common code for all might be a refreshing change from the present unequal sexist personal laws.
Ultimately, the major reason for the opposition of a common code in India is the belief that religion is a personal matter and the government should not be allowed to mess up with it. An apt reply to this belief, would be a reminder of Dr. Ambedkar’s view on the issues. He has observed in the constituent assembly that the scriptures of all faiths, be it the Holy Quran, the Bible or the literature of Hindus, deals exhaustively on every aspect of human life, be it the criminal or civil matters. When you have accepted the legislations of the union to govern you in criminal matters, then applying similar analogy, laws of the union can be made applicable to civil matters as well.
Ultimately, it is the fear of the unknown and our habits of thousands of years which is inhibiting us from enacting a common code. It is for the long term benifit and in India’s interest that, the legislation must be enacted for the purpose of quick resolution of disputes and unity in the land.
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