31 October 2016 National Triple Talaq

Inheritance Of Customary Injustice

Uniform Civil Code or not, family laws need to change for women to be equal citizens
Inheritance Of Customary Injustice
Photograph by Getty Images

What Do Muslim Women Want?

Key findings of the Bharatiya Muslim Mahila Andolan’s 2013 survey of 4,710 Muslim women in 10 states on reforms in the Muslim personal law

  • 92.1% wanted a total ban on oral/unilateral divorce
  • 85.7% wanted mehr to be given at the time of marriage
  • 91.7% did not want their husbands to marry another woman while the first marriage continued
  • 93% wanted arbitration process to be mandatory before divorce
  • 95.6% wanted ex-husband to pay for children’s maintenance even if she holds their custody
  • 87.9% felt activities of Dar-ul Qazas should be monitored by the state
  • 83.3% believed codification of Muslim family law would help Muslim women get justice

***

What was meant to be a discourse about the viability of a uniform civil code in India and its relevance to promoting gender justice has become entangled in the political differences ­between the BJP-led government at the Centre and the All-India Muslim Personal Law Board, which has the support of many Muslim organisations. Family laws of all religions and a wide diversity of customary practices tie women down, leaving them little scope to live with equality and dignity. The attempt to int­roduce a uniform civil code was meant to carve out a space that would enable women to be at par with men across communities and ­religions.

The Law Commission of India has put out a 16-point questionnaire soliciting opinions from the public on reforms in family laws that can be carried out in an “integrative” manner, without compromising the diversity of the country’s social fabric. It includes questions such as whether steps should be taken to ensure that Hindu women are better able to exe­rcise their right to property, which, more often than not, is bequeathed to sons under the customary practices.

In the case of Christians, just a decade ago, a couple had to live separately for seven years before they could part ways. The period has now been ­reduced to two years after much struggle by Christian women organisations. Fortunately, many from the clergy also supported the change. The Law Commission has now posed a question to the public on whether the two-year wait for finalising divorce violates Christian women’s right to equality as the other religion-based mar­riage acts or personal laws stipulate only a one-year period of separation.

Speaking to Outlook, Neerja Prasad, president of the women’s wing of the Church of North India, expressed her helplessness when she comes across cases where the woman doesn’t care to get her marriage registered. Explaining the need to have the marriage registered, she said it benefits the woman when she attempts to move the court for inheritance of property at a later stage of her life. “Unfortunately, the church has no mechanism to make marriage registration mandatory,” she says. “The women only get a certificate from the church.” The Law Commission has thrown open the matter to the public, asking for suggestions on how compulsory registration of marriages, across religions and communities, can be implemented better.

Among the other issues that the Church needs to address are inter-­religion ­marriages in churches. The Church of North India still considers it a taboo for a Christian to marry outside the community and the marriage is not allowed to be held in the church.

The Law Commission has put out a questionnaire soliciting opinions from the public on reforms in family law.

On women’s equality in property rights with their male siblings in the family, feminist writer and ­co-founder of publishing house, Kali for Women,  Ritu Menon says that alt­hough the law does not discriminate between the genders, an individual can be willed out. “One has to distinguish between discrimination in personal law and discrimination in an ind­ividual will,” says Menon. “A discriminatory law sanctioned by the State has discrimination written into it, which cannot be willed out.” When a parent wills out a daughter from property, it is the daughter who has to take the initiative to move the court and fight for her rights to that property. When novelist Arundhati Roy’s mother Mary Roy won a case for equal rights in property, many Syrian Christians did not take kindly to the court ruling.

Indeed, women are often treated as second-class citizens in India. They are always looked down upon as ‘inc­ompetent’ components in the male-­dominated world of competence. The Supreme Court, for instance, has just one woman judge, Justice R. Banumathi, who is only the sixth woman to be a judge in the apex court since independence. The first woman judge in the Supreme Court was M. Fathima Beevi from Kerala. “Is it that all woman lawyers are so incompetent that only six could be ele­vated to the position of judge in the past almost 70 years?” wonders Supreme Court lawyer Mary Scaria. It should not, therefore, surprise us that there is no woman bishop in the Church of North India since its inception 46 years ago.

“Is there sincerity in the efforts for women’s emancipation and equal treatment in society?” asks Scaria, especially when there is no movement forward on 33 per cent reservation for women in Parliament. She doesn’t support reservation as the only way to achieve equality with men, but it saddens her when she sees every sector being dominated by men, be it the executive, the government or the private sector. “I am not sure what they mean when they say that the uniform civil code is meant to bring equality for women,” she says. “Unless we rem­ove the patriarchal mindset, nothing would work. The patriarchal mindset is the stumbling block and until we discard it, there can be no change. It is so benumbing and suffocating.” She suggests removal of all discriminatory cla­uses from all personal laws across religions, such as triple talaq in the Muslim personal laws, as soon as possible.

Jyotsna Chatterjee, director of Delhi-based NGO Joint Women’s Programme (JWP), agrees that discriminatory clauses could be removed and then the existing laws effectively implemented. “Despite growing demands for equality, the patriarchal mindset has undergone little change,” she says. No wonder questions on how much say women really have in matters of property and decision-making continue to prick the conscience of those who care for women’s rights.

There was a time a man could divorce his wife in case of adultery under Section 10 of the Indian Divorce Act, but a woman couldn’t. The JWP and some progressive sections among Christians struggled tooth and nail to get similar rights for women too. The law was subsequently amended,  but it is rarely used by women.  

“Unfortunately, a kind of ‘Indianness’ that is full of customary practices and culture is being encouraged so much that now we are backtracking from whatever little progress had been made earlier in terms of changes,” says Chatterjee. “While many Muslim women accept in private that triple talaq is not right, many others question the logic behind overlooking the customary practices.” As far as Hindu laws are concerned, while there are provisions ensuring the daughter’s share in parents’ property and the wife’s share in husband’s property, the reality is a different story altogether as  the people are attuned more to the cultural practices rather than the law. Even after so many decades of independence, there is constant struggle in people’s mindset bet­ween traditional practices and modern law and the constant struggle in the long run weakens the application of law.

“Personal law has nothing to do with religion. Customary practices have been codified to be used as a tool of patriarchy,” says Ranjana Kumari.

There is a large section of Muslim women who have been seeking gender justice not just as citizens but also based on Quranic injunctions. ­Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA) says triple talaq is not mentioned in the Quran and yet it takes place in our society. “This unilateral, arbitrary and instant divorce is un-Quranic, unjust and unfair. It should be abolished forthwith,” she says. “This is what we have pleaded for in the Sup­reme Court. The personal law board and some other male-dominated bodies are imposing their own patriarchal and ort­hodox worldview on Muslim women. They do not even represent Indian Muslims, leave alone Islam. There is no place for intermediaries in the Quran; the relationship between Allah and the ind­ividual Muslim is a direct one. Muslim women can read, understand and imbibe Qura­nic teachings on their own.”

Soman believes gender justice is a fundamental principle of ­Islam, but this  has got distorted because of “the self-­appointed custodians of the faith” who enable tyranny over women through practices like triple talaq, halala and pol­ygamy. “They think women are second class and they cannot accept women’s voices for justice. They believe in male domination and mis­ogyny,” she says. “The Muslim personal law needs to be reformed. Just like the Hindu Marriage Act, the Hindu Succession Act and the Christian Marriage and Divorce Acts, we too are entitled to a codified Muslim family law.”

The BMMA has prepared a draft and wants Parliament to enact a law based on it. “At the same time, a secular code such as the Special Marriages Act should be expanded, strengthened and popularised,” says Soman. “It should include all aspects of marriage, family, property, guardianship of children and so on. It should be the prerogative of an Indian citizen to decide whether s/he wants to marry as per the Saptapadi-Kanyadaan or nikah or church marriage or secular law. This is not an either/or question; it is a question of achieving gender justice and upholding religious diversity. Male dominance needs to be done away with.”

Flavia Agnes, a lawyer specialising in marital, divorce and property law, stresses on the need for uniformity of rights across religions rather than the much-debated and pol­iticised Uniform Civil Code. “For this, we need to follow the premise of ‘reform from within’ in the same way that Hindu law was ref­ormed, as well as the law for Christians and the law for Muslims. All these laws were reformed without triggering any major political controversy.”

Ranjana Kumari, director of the Centre for Social Research, an NGO working for women’s empowerment, recommends doing away with all religion-specific personal laws. “Everyone should abide by the law of the land,” she says. “Personal law has nothing to do with religion. These are only customary practices that have been codified and are now being used as a tool in the hands of patriarchy.”

Maja Daruwala, former director and now senior advisor  of the Com­monwealth Human Rights Init­ia­tive, bel­ieves that a fair and equitable civil code is des­irable but warns that “it is not a task that can be und­ertaken without careful thought”. “A Uniform Civil Code can’t be used as a quick-fix solution,” she says. “Law comes from the mindset of the people, but it is also expected to change the existing social practices when they are unfair. The government is expected to lead the change, not force it on people.”

Daruwala believes that it is not a good idea to make laws without a prior process of open and wide consultations, public education and building of cap­acity within the bureaucr­acy and the judiciary to implement and enforce those laws consistently and fairly. “There is no dearth of laws that exist ostensibly for the benefit of women, but are selectively or wrongly administered, or just ignored in the face of prejudice entrenched in State institutions,” she says. “Despite the constitutional mandate that recognises how ­women have long been discriminated against in our country, women are still treated shabbily and subjected to vio­lence. They continue to be economica­lly weak and their education is not given equal importance compared to men.  They are equal neither in employment nor in opportunity or access to justice. There has to be serious commitment to bring about palpable changes. Unfortunately, successive ­governments have shown no deep and abiding commitment to overturn traditional disadvantages and bring equality and equity to women in all spheres. When a government supports only the obscurantist voices, then it signals its uncertain intention like what the Congress did in the Shah Bano case which clearly indicated that it didn’t care about women as much as it did for its imagined vote bank.” Similarly, the everyday slurs denigrating women heard repeatedly these days  from high quarters, and which repeatedly go unc­hallenged, only signal the legitimisation of inequality, not a commitment towards women’s empowerment.

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