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Whose Code Is It Anyway?


Let’s begin with a story.

A poor woman, a mother of five, is divorced by her husband. Uneducated, with no means of income to support her, she approaches the court for alimony to keep her body and soul together and take care of her children. After the usual delay that the legal procedure is wont to take, the court grants her a monthly maintenance. The government in power heartily approves of the court’s action and holds it up as an example of a forward-looking, women-friendly judgment. The people welcome the judgment, as they see it as a precursor to several such cases where women fighting for what is due to them will get their dues without much trouble. The woman in question is hailed as a pioneer, a champion of women’s rights.

Now, THAT was an imaginary tale. Here is what actually happened.

A poor woman, a mother of five, is divorced by her husband. Uneducated, with no means of income to support her she approaches the court for alimony to keep her body and soul together and take care of her children. After the usual delay that the legal procedure is wont to take, the court grants her a monthly maintenance. The Government of the day, instead of welcoming the verdict, makes an ill-advised decision to challenge and overturn the verdict of the court. And instead of being criticized for being obscurantists, the people in power are accused of playing favourites. The Prime Minister, not wanting to appear appeasing of one group of people, and in a desperate measure to show that he is an ‘’impartial ruler” opens the gates of a long-disputed religious structure to allow periodic prayers… And the rest as they say, is the bloodied history of India, in the last 30 years.

A step back in history:

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well-known advocate in Indore. The couple had five children from the marriage. After 14 years, Khan took a younger woman as his second wife and after years of living with both wives, he threw Shah Bano and her five children out of the house, with a promise of giving them Rs 200 for their monthly expenditure. Shah Bano was then 62 years of age. In April 1978, when Khan stopped giving her the promised Rs 200 per month, Shah Bano filed a petition in a local court in Indore, against her husband under Section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of Rs 500 for herself and her children. Following this, her husband gave her an irrevocable talaq (divorce), which was his prerogative under the Islamic law and took up the defence that since Bano had ceased to be his wife, said he was under no obligation to provide maintenance for her.

In August 1979, the local court directed Khan to pay a sum of Rs 25 per month to Shah Bano by way of maintenance. On 1 July 1980, based on a further plea by Shah Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 179.20 per month. Khan, then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because he was not married to her and under the Islamic law he was not obligated to give her any maintenance. In 1985, the Supreme Court, in its verdict, said that “there is no conflict between the provisions of Section 125 of the Criminal Procedure Code, and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.”

The Mohd. Ahmed Khan v. Shah Bano Begum case of 1986 literally opened a can of worms in the already checkered political history of the country. While on one hand sections of the Muslim community took umbrage over the Supreme Court judgment which they believed to be in contravention to their religious code, many leaders in the ruling Congress party advised the then Prime Minister Rajiv Gandhi to enact a law in Parliament, overturning the Supreme Court judgment.

As a result, in 1986, the Indian Parliament (in which the Congress had an absolute majority) passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which gave the Muslim women no protection and limited her right to maintenance/alimony for just 90 days after divorce after which the onus of taking care of her and her children was shifted to her parents, siblings, relatives, and if they were found unwilling to take on the ‘burden’ to the Wakf Board.

And funnily enough, this law, which completely negated the interests of the Muslim women, was hailed as progressive by a large section of the Muslim Community. On the other hand, the Bharatiya Janata Party, a party with just TWO MPs in Parliament at that point, called it `appeasement’ of the minority community and discriminatory to non-Muslim men, because they were still bound to pay maintenance under Section 125, Cr. PC.

Now comes the interesting twist in the tale:

The Ruling Congress, which, in an attempt to safeguard its voter base, enacted the law in such a hurry, was taken aback by the charges that the law was discriminatory to non-Muslim men. In an attempt to set the record straight, and to ‘restore the balance’ and to give something to the Hindus, the Prime Minister ordered the locks on the Ramjanmabhoomi-Babri Masjid to be removed. Until that point, only an annual pooja was being performed by a priest. (See Outlook, 23 August, 2004)

Years before the Rath Yatra, and more than a decade before the BJP-led NDA Government could come to power, the Uniform Civil Code had become a potent weapon in the hands of politicians to pit one religious community against another in their march to power. Rajiv Gandhi’s short sighted and ill informed decision to overturn the Supreme Court verdict in the Shah Bano case was in a way the precursor to the marginalistion and victimization of the Muslim community in the years to follow.

Today, a full 30 years after the Shah Bano verdict and the Congress’s imprudence, the debate on the Uniform Civil Code has reared its head once again. This time, masquerading as a ‘concern’ for the Muslim women. While it doesn’t take a genius to know that the ruling establishment has not one iota of Muslim welfare on its agenda, the fact is that the Muslim Personal Law, which is said to be based on the Sharia, is a medieval, outdated, anti-woman law which has resulted in the victimization of hundreds of women through practices such as forced child marriages, unequal inheritance rights, triple talaqs and halala.

Repeated attempts by people to point out to the anomalies in the Muslim Personal Law and how incongruous it is with the modern, civilized thought process evokes a barrage of criticism from the exponents of the Sharia. The supporters of the Personal Law are quick to quote statistics to prove how ‘special provisions’ like triple talaq or even polygamy are sparingly used, if at all, by the Muslim community. Infact, it has now become routine to see every discussion on the Muslim Personal Law end in one or the other supporter of the personal law saying things like, only 5% of the Muslim women have been divorced using the triple talaq provision or polygamy is far more prevalent in Hinduism or among tribal communities, or the Halala… well no one speaks about the Halala, which to this day remains the Muslim Personal Law’s best kept secret.

But to come back to the discussion, while it may be true that only a minuscule percentage of the Muslim women are divorced through the triple talaq, and multiple wives may be more common among the Buddhists and the tribals, there are two major problems with this line of argument.

The first: The existence of a medieval law, any medieval law, backed by religious sanction, is in itself detrimental to the cause of women, and antithetical to their basic human rights. Such laws can be used, as it has been demonstrated time and again, to infringe upon the rights and dignity of a woman with impunity, and in the complete confidence that no matter how regressive an action is, it can escape all censure so long as it is within the bounds of this existing law.

For instance, it is not unusual to hear of men pronouncing triple talaq in anger, in a state of drunkenness, or in jest thereby instantaneously dissolving the marriage and making the woman ‘haram’ for them. What is worse, the Personal Law also allows such men to invoke the reprehensible law of halala to help them ‘undo their mistake’ and make the woman ‘acceptable’ again.

The fact is that in any civilised society, the rights of the women should be a given and rules like triple talaq and halala should be relegated to where they belong- into the dustbin of history. On the other hand, the Muslim Personal Law by the very virtue of its existence advocates and celebrates this medievalism.

The second and more important reason why a Personal Law should not exist is that over a period of time, the Muslim Personal Law has become a very potent weapon in the hands of the Hindu Right to beat the ordinary, everyday Muslim with. Starting from the time when Rajiv Gandhi, in a bid to set right the balance, allowed Shilanyaas at the disputed site in Ayodhya right upto the statement on the triple talaq made by the current Prime Minister during a campaign rally a few days ago, the Personal Law Vs the UCC debate has become something with which the Muslims are bludgeoned into silence.

Put the two points together and you have a whole community of people with their backs to the wall, trying to carve out a defense for an outdated law, which by its very existence negates the basic human rights of one half of the very group of people whose ‘religious freedom’ it claims to protect. Not a great place to be in, for the Muslim community, if you ask me.

Going by how political games are played in this country, it would not be wrong to say that all the fire and smoke that one has seen around the Uniform Civil Code in the last few days, will die down after the elections in Uttar Pradesh.

And, that will be the time for the thinking liberal Muslim to pick up the issue. To debate it rationally, taking cognizance of the fact that unless this weapon is taken away from the hands of the politicians, it will continue to remain an election issue and the Muslim community will continue to be treated as vote banks.

Instead of raising the bogey of ‘religious interference’, the Muslim community should realize that, while the Universal Civil Code may never be implemented in India because no political party will be willing to slaughter the goose that lays the golden eggs, it will continue to a trump card in the hands of every random ‘trouble maker’. It is for the Muslims themselves to ask for the Universal Civil Code and make sure it is implemented in full and complete measure. It is for the Muslims to disarm those who beat them both in private and public spaces. It is for the Muslims to defuse this ‘weapon of mass destruction’ by asking for and ensuring that the Uniform Civil Code is implemented in India.

The implementation of the Uniform Civil Code will also have a far-reaching impact on the Muslim Psyche. They will no longer be viewed as people marching to a regressive tune whose popular image is of a bearded man with his four wives, but will be viewed as a modern people who can keep pace with the changing world. As a result they will not have the need to feel defensive about their medieval burden that they did not CHOOSE to carry.

A secular democracy should have a common legal code – to deal with both civil as well as criminal matters. While the Indian Jurisprudence has a common criminal code, the civil legal code differs not just from community to community but also from state to state, and is often open to multiple interpretations depending on the opinions of various religious leaders, who are said to rely on texts and examples which have nothing to do with the present, here and now. And it is thanks to this loophole that successive governments have gotten away with implementing criminal justice in a partisan and discriminatory manner, favouring one community over another, the rich over the poor, the upper castes over the lower castes. A common civil code will not only pave the way, but will become a pressure point for this government and successive governments to enforce a fair criminal code.

While it is has become fashionable to steamroll any discussion on the possibility of introducing a Uniform Civil Code as a ‘saffron agenda’, the enactment of the Uniform Civil Code, will and should pave the way for the criminal code to be implemented in a uniform fashion.

It is time that the liberals in this country – both Hindus and Muslims demand that, in a secular country, there be one law for all its citizens. A common law for marriage, divorce, maintenance, property sharing etc. And a common law to try murder, homicide, rape, theft, vandalism etc.

No preference should be given to anyone based on their religious or caste identity. Hence, no Muslim man should be allowed to marry four times. No Hindu fundamentalist should be allowed to escape after lynching someone. And you don’t get to hang someone just to satisfy the ‘ collective conscience’ of the nation.

Asma has done her Masters in Journalism and worked with several newspapers in Bangalore and Chennai. She is an activist, a full-time mother, and a sometime media consultant with several organizations.

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