This article is written by N. Apoorva Rao
Table of Contents
Introduction
The makers of our constitution always dreamt of building a country with secularism as one of the pillars on which it will stand, others being equality for all and a socialistic society. It would not be wrong to say that the dream of building a secular nation that is inherently pluralistic was an ambitious one, it still is (however there is no denying the fact that we have come a long way), and yet one of the most important and indispensable goals as ensuring justice and equality for all religions should be a top priority in a pluralist country.
In an attempt to bring this goal to life the constituent assembly after much deliberation and discussion added the provision of the Uniform Civil Code under Article 44 of the constitution, giving it a status of a Directive Principle – a guiding light for the future governments to further deepen the secular character. Sadly, even after 73 years of independence, this provision remains a “dead letter”.
The discussions about the Uniform Civil Code reactivated much recently after the judgment of the Supreme Court on the triple talaq custom of divorce under Muslim Personal Law. An argument that is generally made is the importance UCC can have on empowering women, which would be the area of discussion in this paper.
We will understand the meaning of the Uniform Civil Code and the impact it will have on the rights of Muslim women especially concerning Marriage and Divorce if it is brought to application. The article can be divided in 2 parts as follows
- The Uniform Civil Code and the purpose behind it and
- Women’s rights under Muslim law and the impact of UCC on it.
In the first part an attempt has been made to give a brief explanation of the Uniform Civil Code, the vision it was made with and the purpose it sought to deliver in contemporary times.
In the second part of the paper Muslim women rights regarding marriage and divorce. The aspects of the age of marriage, polygamy in case of marital rights and divorce rights of women are covered. In the end, a concluding paragraph will summarize the core of the paper.
Uniform Civil Code and the purpose behind it
Article 44 of the constitution deals with the Uniform Civil Code which goes as follows, “Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The most primary aim that can be inferred from the language of this provision is having a common code for the citizens of the country, in other words, the various personal laws will be replaced with this code giving more uniformity in terms of personal laws which otherwise are religion-specific. The Civil Code has a motive to inscribe in itself all the basic human values which would help in reducing discrimination and promoting equality across religions and genders.
The constitutional makers saw it as a tool that could bring reformation in the society, bring a change in the status of women, empower them which the archaic personal laws were unable to do. This was one among the main reasons to include it in the Constitution, although a question which might instantaneously come to the mind of the readers is if it was of such great importance then why was it not made as a fundamental right?
The answer to this is originally it was planned to be a fundamental right under Article 35 but the constituent assembly could not reach a consensus for the same as they thought that it might be violative of the religious rights of the people.
The above-mentioned was the vision of the framers of the constitution which is almost 7 decades old. Let us also take into consideration the need for the UCC in contemporary India. The first being the violation of fundamental rights as stated under Article 14-18 of the constitution which deals with the right to equality and prohibition of discrimination based on sex and religion.
The personal laws concerning marriage and divorce are unjust and biased especially towards women and UCC can be a positive step in reducing this discrimination. This would be dealt with in greater detail further in the paper.
In the present times the country is being increasingly driven by religious agendas as a result of the development of women, their rights have taken a back seat. The implementation of the Civil Code will catalyze reinventing the ideas of national integration and development keeping the social distinctions of religion, caste, and gender aside which would pave way for women empowerment and equality.
One of the main arguments which are given for not implementing UCC is the tussle it will create between Article 25 which talks about the freedom of practising, professing, and propagating your religion and this directive principle being violative of it if implemented. But this argument loses its potential in the very exception of Article 25 which states that any reformative law which is brought in the future will not be trapped by the operation of this fundamental right.
‘Which law can be more reformative than the one which can tackle issues like women empowerment, religious equality, and bringing down the ambiguity because of the varied personal laws?’ is a question which has to be thought before putting forth the argument that the civil code would be violative of Article 25.
In the coming section an analysis of the Muslim laws about the social institution of marriage and divorce, the rights women have under it, and what changes UCC can bring to these rights.
Women’s rights under Muslim Law and the impact of UCC on it
In this section the rights of Muslim women about Marriage and Divorce will be dealt with, to be more specific aspects like polygamy, age of marriage, divorce, and maintenance and how its aspects can put women in a disadvantaged position will be looked into. An interpretation of how this situation will change if the UCC is brought to applicability will be mentioned.
Age of Marriage
Unlike most of the personal laws, the age of marriage is not based on the age of majority as mentioned in the Indian majority Act, 1875. In Muslim law, a person is a major for entering into the contract of marriage from the onset of puberty. The traditional Muslim law has given rights to the individuals who have reached the age of puberty to enter into a contract of marriage at their own will.
In the case of Attika Begum v. Mohmand Ibrahim, the age of majority was considered to be 15 years for both boys and girls, it has also been mentioned in this case that if evidence can prove that the girl child has reached the age of puberty before 15 then it will be considered. It is also important to be noted that even girls who have not reached the age of puberty can be entered into a contract of marriage by their guardians.
This presents the idea that there is no restriction on child marriage when it comes to Muslim law and this marriage can only be repudiated by the girl before attaining the age of 18 years, only if it is not consummated.
The point of mentioning this is the fact that even when the women become capable of fulfilling the basic motive behind the contractual marriage in Muslim marriage i.e. procreation of children it does not mean that they are mentally and physically prepared and willing to fulfill that purpose. Moreover, this has deprived women of basic education and making them completely dependent on the whims and fancies of their husband.
In addition to all this, it also harms the health of females as early age pregnancies can leave a lifetime of impacts on the body of females, this is accompanied by the never-ending desire of having a male child in a patriarchal society, lack of decision making and hence almost no control over the family which can hurt the mental health and minds of young girls, generally, most when girls are married before they enter adulthood their husbands are quite elder to them, as a result, her voice and opinions would be curtailed.
A possible impact which application of the Uniform Civil Code will bring is that child marriages will no longer remain without repercussions as a result of which women can have a better chance to get an education, get married at an age when they are physically and mentally for it and cannot be forced into marriage at an early age.
Polygamy
Under Muslim law, men have a right to be contractually entered into four marriages at a time and women on the other hand are bound towards their husband and cannot enter into multiple marriages, this in itself is putting the women in a disadvantaged position and there is not much doubt that they are seen as a mere childbearing machine which is against basic human rights of anyone.
Sometimes a justification which is given supporting polygamy is the incapacity of women to procreate and a reasonable rebuttal keeping in mind the contemporary paradigm of science and technology is that there are methods like IVF, adoption, and other clinical and non-clinical methods which have come to the rescue of people in the modern-day.
With the application of the Uniform Civil Code, the practice of polygamy under Muslim law would be abolished. It would be a reformative step in bringing a positive change in the society which is far due. It will improve the status of women and their status will be more secured and safe in society.
The chances of their exploitation can be reduced. Another important point that has to be noted is that this practice has been abolished even in countries where Islam is the state religion like Pakistan, Iran, Tunisia, etc. and it is about time for a secular country like India which believes in the basic human rights to take an action on the same.
Divorce
Unlike Muslim men, Muslim women only have one way in which they talaq their spouse under Muslim law. It is called Talaq-e-Tafweez which is like a delegated power on the wife by her husband. It is like an agreement that tells about the circumstances in which the woman can get separated from her husband. If the conditions so prescribed are practiced by the husband then in that case the wife can dissolve her marriage or the woman has to approach the court under the dissolution of the Muslim Marriages Act, 1939.
While on the other hand, a Muslim man can pronounce talaq in many different ways. Some relief was brought to the women after the Supreme court decided that the practice of triple talaq or Talaq-e-biddat is invalid and banned in the case of Shyara Bano v. Union of India which was a ray of hope for Muslim women as the end of this practice with legal protection has made them more secured.
In addition to divorce, traditionally a woman under Muslim law is entitled to maintenance only till the end of the iddat period which got a much-needed modification in the Danial Latifi &Anr. v. Union of India as a result of which Muslim women have become entitled to maintenance under section 125 of CrPC. These were the much-needed changes that had to be brought to ensure that women had greater standing and well protected.
Similar to the developments that came by the judgments, the application of UCC will ensure a greater balance between the rights of women have regarding talaq and divorce as in my opinion there would some stipulated legally accepted ways through which Muslims can dissolve their marriage which would be common to both men and women, as a result of which it will empower women.
Before concluding this paper it is essential to note that the application of the Uniform Civil Code will not take away the religious freedom and personal entitlements of a person. It will only make those entitlements unenforceable in the eyes of law, if an individual still wants to practice those entitlements they will be free to do so until a specific law makes it punishable otherwise they will not be taken aback from the freedom to practice their religion, only those practices will not hold value in the court of law.
Conclusion
In conclusion as the implementation of any law which aims for reformation is not easy and has its pros and cons so will the application of the Uniform Civil Code, it would be a time taking and tedious task but the pros which its application will bring outweighs the cons and will lead to greater integration of our society, empower the women and hence is something which requires to be deliberated in greater detail by the governments keeping the benefits which it can bring to the women as a top priority for the development of the society.
References
Articles
- Ahmed, S., 2006. UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION) A DEAD LETTER. The Indian Journal of Political Science, 67(3), pp.545-552.
Blogs
- Arya, A., 2020. Rights of Muslim women in India.
- Mahajan, A., 2020. Child Marriage and its Impacts, Consequences and Effects on the Girl Child
Books
- Malik, S., 2020. Law of Marriage and Divorce. 3rd ed. Eastern Book Company.
Cases
- Attika Begum v. Mohmand Ibrahim, 16 Ind Cas 597.
- Shyara Bano v. Union of India, [2017] SCC 963 (SC).
- Danial Latifi &Anr. v. Union of India, (2001) 7 SCC 740 (India).
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