By Audrey D’Mello
Oct 23, 2014
Picture for representational purpose
The recent comments of Justice Markandey Katju, a retired Supreme Court judge, in support of the uniform civil code on the ground that the Muslim personal law is “barbaric, backward and unjust” has raised many eyebrows. Citing the reversal of the controversial ruling in the Shah Bano case, these comments seem to lend support to the political agenda of the present government. Coming from a legal luminary, these comments sound almost pedestrian as they overlook the gains made by the apex court during the last three decades since the Shah Bano ruling in 1985, more particularly the path-breaking judgments such as Shamim Ara (2002) and Daniel Latifi (2001) which have placed Muslim women’s rights on a firm ground, outlawing arbitrary triple Talaq as well as securing the post-divorce economic rights of Muslim women. Ironically, it is Justice Katju’s own judgments such as D. Velusamy (2010) which have placed the rights of Hindu women on a precarious footing.
There had been several earlier rulings which had upheld the rights of Hindu women in bigamous relationships by invoking a legal premise that “marriage need not be strictly proved while awarding maintenance under section 125 of CrPC”. But one negative judgment, can thwart these efforts. It is ironic that in the past 60 years there has not been a sustained campaign to secure the rights of such women. The Velusamy ruling which labelled such women as mistresses, keeps and concubines has served to add insult to injury.
Official reports brought out in 1974, almost 20 years after the enactment of the Hindu Marriage Act (Towards Equality) highlighted the disturbing fact that polygamy among Hindus, Buddhists and Jains (communities governed by the codified Hindu law) is higher than among Muslims (Muslims 5.6 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent). These percentages conceal the actual number of women who live in legally invalid marriages, which is huge. Around 65 per cent of the Hindu women who approach us for help are trapped in these situations. Here are some real life stories.
Fifty-five-year-old Lalita, a Maharashtrian Brahmin, is a school teacher. Her husband has deserted her and is now living with a younger woman. Lalita has a 20-year-old daughter with severe retardation who needs constant care, making it difficult for her to work. She cries inconsolably. While she is aware that she can file for divorce on the ground of adultery or even claim maintenance for her daughter, this is not an option for her. She needs the support of her husband to care for their daughter.
Sumitra is much younger, in her early 30s, mother of two teen-aged children. She is a Gujarati. Her husband too has abandoned her and lives with another woman. Sumitra has proof that her husband has a child of that relationship. The birth certificate of the child bears his name as the father. Sumitra lives with the hope that her husband will, someday, come back to her. When we suggest divorce, she is distraught.
Sixty years after the passing of the Hindu Marriage Act, Hindu men continue to be bigamous or live in adultery. When a Hindu man deserts his lawfully wedded wife to live with another woman, the only remedy available to the deserted first wife is divorce on the ground of adultery or desertion. However, the abandoned wife does not view divorce as an option. Raised in the belief that marriage is a sacrament and the marital bond is permanent, when confronted with the reality of the husband’s bigamy or adultery, they are left feeling cheated and violated.
Even more heart wrenching is the plight of the “Hindu second wife”. Let us take the case of Chhaya who used to work in a call centre. She hails from Hyderabad. She fell in love with Amit, a Maharashtrian, and got married. The marriage is registered. When Amit moved up the career ladder, he convinced Chhaya to give up her job so she can be a full-time stay-at-home mother to their two children. Ten years later, when Amit abandoned her, she filed for maintenance. Amit pleaded that Chhaya is not his real wife as he has an earlier wife in his village in Amravati. He produced photographs of the marriage and a copy of the daughter’s birth certificate as proof. The court rejected her claim for maintenance. The verdict has deprived her of her status as a “wife” and rendered her children “illegitimate” in society.
Manjamma is a Dalit (neo-Buddhist) from North Karnataka. She is a construction worker. Her community follows the practice that if the first wife is childless, the husband can remarry. Manjamma is the second wife, but she failed to produce a son. Her husband’s lawyer has sent her a notice that she has no rights and she and her three daughters should vacate the house immediately, a house built with her own earnings.
Section 5 of the Hindu Marriage Act stipulates that neither of the party should have a spouse living at the time of marriage. Section 11 of the Act, renders polygamous marriages void. Due to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any legal obligations towards their partners.
Faced with this travesty of justice, it is important to compare the legal provisions under the Muslim Personal Law:
Muslim marriage is a contract; hence the consent of a bride is essential;
Women can stipulate conditions which are binding (including monogamy) in the marriage contract;
Mehr which is stipulated on the basis of the husband’s status at the time of Nikah is the exclusive property of the wife;
The Right of Khula through Which the Wife Can Dissolve Her Marriage;
Muslim men who marry more than once are legally bound to fulfil their legal and social obligations towards each wife including residence and maintenance. An un-Islamic or arbitrary Talaq does not extinguish the rights of a Muslim wife.
Apart from approaching a Dar ul-Quaza, Muslim women can also approach a civil court to safeguard their right of maintenance, return of her Mehr, custody of children or for dissolution of marriage under the civil law and for a fair and reasonable settlement upon divorce.
Despite this, there is a skewed perception that Muslim women have no rights because the Muslim law is barbaric. It is rather shocking that even a jurist of Justice Katju’s stature endorses this view. This notion has also been internalised by some Muslim women’s groups, who wish to reform the Muslim law along the lines of the Hindu Marriage Act. For instance, a draft prepared by a group, Bharatiya Muslim Mahila Andolan, attempts to ban Muslim polygamy.
Feminist legal scholar Flavia Agnes has cautioned that attempts to codify the Muslim law to bring in legal monogamy “should not end up subjecting Muslim women to a plight which is similar to that of the ‘Hindu second wife’”. That polygamy cannot be controlled by codification is a painful lesson which multitude of Hindu women have learnt.
Audrey D’Mello is the programme director of Majlis, a legal centre that provides socio-legal support to women survivors of violence