May 25, 2020
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OPINION | To Show Muslims Their Place, A Hindu Rashtra Is Imposing Its Writ By An Uniform Civil Code

The criminalisation of triple talaq is part of the Hindutva strategy of further criminalising Muslim men. Gender justice needs legal pluralism, fine-tuned judging practices, writes Nivedita Menon

OPINION | To Show Muslims Their Place, A Hindu Rashtra Is Imposing Its Writ By An Uniform Civil Code
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A mass wedding organised by a Calcutta NGO
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OPINION | To Show Muslims Their Place, A Hindu Rashtra Is Imposing Its Writ By An Uniform Civil Code

After the law criminalising triple talaq was passed, home minister Amit Shah wrote that PM Narendra Modi would “go down in history as a social reformer in the league of Raja Rammohan Roy and Ishwar Chandra Vidyasagar”. The difference is that the latter addressed patriarchy in their own community, while Modi and the BJP are solely concerned with saving Muslim women from Muslim men, to paraphrase Gayatri Spivak. Spivak used the phrase “white men saving brown women from brown men” to describe colonial governments invoking women’s rights to justify their civilising mission in the colonies. Farah Naqvi too has pointed out the discourse of the “saved Muslim woman” that underlies the Islamophobic state policy of the US and now India. After triple talaq and Article 370, the next two items on the Hindutva agenda are the Ram temple and the Uniform Civil Code (UCC)­—issues central to the core ideology of the BJP’s parent organisation, the Rashtriya Swayamsevak Sangh (RSS). An all-male organisation that sets the agenda for the current regime, its women’s wing, the Rashtra Sevika Samiti, is confined to women’s work. Unlike the male RSS, the female RSS members are ‘servants of the nation’, swayam or self being conspicuously absent from the organisation’s name. It is no accident that Article 370’s abrogation produced a spate of comments such as “now we can marry Kashmiri women”, even from the Haryana CM. The violent implication—Kashmiri women are for Indian men to do with as they will. So forgive my scepticism regarding the Sangh formations’ commitment  to gender equality, or to the security of Muslim women, invariably the target of sexualised attacks during communal violence generated by its politics. The RSS agenda is of conflating the nation and Hindutva, for the project of homogenising and consolidating Hindus, while assimilating or expelling Muslims.

Once the Supreme Court ended triple talaq (due to petitions filed by Muslim women), why criminalise it? Divorce, maintenance and custody of children are civil matters. As it is, Muslim men are in prison far in excess of their proportion in the population. The criminalisation of triple talaq is part of the Hindutva strategy of further criminalising Muslim men—false cases of cow slaughter, terrorism, and now desertion of wives. If all men who deserted wives were to be imprisoned, large numbers of men from all communities, especially NRIs, would be behind bars. Clearly, the BJP is only concerned with showing Muslim men their place in Hindu Rashtra.

The Congress too has pandered to religious patriarchies. The Shah Bano judgment was overturned by the Rajiv Gandhi government despite protests by Muslim women who wanted it retained. The same analytical spirit must be applied to the BJP’s spurious concern for Muslim women.

While the BJP repeats its age-old slogans, the women’s movement moved from full support for UCC between the 1930s and the 1990s to rethinking the value of legal uniformity for women. Is uniformity necessary for the “integrity of the nat­ion”, as some judicial pronouncements have suggested?  If so, who exactly is the beneficiary? Is a wife being abandoned by her husband without maintenance or a roof over her head protected by the “integrity of the nation”? Or are uniform laws meant to ensure justice for women in marriage and inheritance?

Uniformity or not isn’t the point. Gender ­justice needs legal pluralism, fine-tuned judging practices.

If a UCC puts together the best gender-just practices from all personal laws, what would it look like? Abolition of arbitrary divorce would be accompanied by abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus. All citizens of India should be governed by the largely gender-just Indian Succession Act, 1925, currently applicable only to Christians and Parsis. 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 UCC should make the practice of mehr compulsory for all, while abolishing dowry. Obviously, not one of these suggestions will be taken under consideration by the current dispensation, or indeed by any dispensation. So let us ask the opposite question: Who suffers in the absence of a UCC? For decades, feminist legal practice has successfully used both the Protection of Women from Domestic Violence Act available to all citizens regardless of religious identity; as well as the Muslim Women Protection of Rights on Divorce Act, 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 UP (2002) ruling to buttress their claim that arbitrary triple talaq is invalid.

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 what we want is gender justice rather than to protect monogamy as an institution, we should think 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 fulfill its patriarchal promise of security in return for that labour, most women are left with no means of earning a livelihood. 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. If gender justice is the point of legal reforms, the ­reality of multiple “wives” as a common practice across communities must be recognised, and the rights of all women in such relationships protected. Some Supreme Court rulings that have granted rights to second wives in Hindu marriages, in fact, dilute the compulsoriness of mon­ogamy for Hindus, but protect women better.

SC rulings granting rights to second wives dilute Hindu law of ­monogamy, but also ­protect women.

We have no idea what a BJP/RSS-generated UCC would look like. 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 a 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 it has made no impact on the incidence of domestic violence. So it is not uniformity or its opposite that is the point. The point is gender justice, which ­requires legal pluralism and fine-tuned judging practices in court.

Meanwhile, as a PIL is heard in the apex court against female genital mutilation (FGM) in the Bohra community, Congress lawyer A.M. Singhvi represents the org­anisation opposing the PIL, claiming it is an ancient and essential religious practice. The present government, which had initially supported the PIL, backtracked in September 2018, soon after the PM met the Syedna, leader of this wealthy community. The attorney general agreed to the referral of the matter to a five-judge bench. Masooma Ranalvi, founder of NGO WeSpeakOut, which had intervened in the case, said that the referral reframes the issue from violation of constitutional rights, to one of protecting a discriminatory practice under the garb of religious freedom. This was exactly the spurious argument made by the BJP to distinguish between their opposing Sabarimala temple entry for women while abolishing triple talaq. The former was about religious freedom, BJP spokespersons said, the latter about women’s rights.

The Congress and the BJP both back religious patriarchies, but the BJP is concerned about Mus­lim women’s rights only as a weapon against Muslim men. Violation of Hindu women’s rights is justified, and if a non-Hindu community is sufficiently wealthy, and can be used to show the BJP’s concern for religious freedoms, then even the guise of women’s rights can be dropped.

(The writer is a Delhi-based academic and activist)

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