By Flavia Agnes
November 17, 2016
The affidavit filed by the government of India before the Supreme Court and the questionnaire released by the law commission on the uniform civil code have rightly given rise to apprehensions among the Muslim community. These apprehensions could have been avoided since the concern towards gender justice is directed towards the Muslim community and projects Hindu law as egalitarian, uniform and gender-just. The media seems to echo this position and most talk shows are also framed within this faulty framework. But nothing can be farther from the truth. It is time to examine Hindu laws, customs and social ethos for their gender-unjust practices.
While examining the discrimination within Hindu law, the continuation of the Hindu undivided family property is perceived as its main lacuna. Several discriminatory aspects of Hindu cultural practices that govern the laws of marriage, divorce and matrimonial life are seldom held up to scrutiny. The ritual of Kanyadan (sacrificial offering of the bride to the groom), an essential condition of a Hindu marriage, the notion of girls as Paraya Dhan (belonging to the other), the pious obligation of a Hindu father to marry off his daughter, which then gives boost to dowry, and the view that Hindu marriages are sacramental, still dominate Hindu social ethos and judicial discourse.
Only last month, a judgement of the Supreme Court held that a wife’s refusal to live within a joint family, and her demand for a separate residence, amounts to cruelty to the husband. Such a verdict would never have been delivered on a marriage governed by Christian or Parsi laws. It could only have been delivered in a case governed by Hindu law since the notion of separation violates the Hindu ethos of a joint family. Though Hindu marriage was transformed into a contract in 1955, sacramental aspects still dominate the social psyche and parents prefer to send the daughter back to her matrimonial home rather than risk having a divorcee on their hands. Despite acute domestic violence, girls are sent back to their homes even when there is a risk of them being killed or driven to suicide.
In contrast, a Muslim marriage, since its inception, is a civil contract — a view later adopted by English and continental European laws.
Conditions are incorporated into the contract. While among urban, middle and upper-class Hindus there is greater likelihood of women opting for divorce, in rural areas women are less likely to do the same even when faced with cruelty or desertion as marriage is deemed to offer them protection. The concept of the permanence of marriage is visible not just in our public life, but in litigation in family courts, where women are constantly advised by judges to return home to save their marriages even when they face great risks. Women, too, believe that even if their husbands are abusive, it is better to remain married, since the symbols of marriage — the Mangalsutra and Sindoor — are perceived as marks of respect, status and protection against advances from other men.
Statistics show that divorce among Muslims is higher. But it is seldom highlighted that desertion among Hindus is far higher. In Maharashtra, a popular term used to describe such women is “Paritatya Mahila” or “discarded women”.
While the system of dowry has spread its tentacles across castes and communities, its roots in upper-caste Hindu cultural tradition cannot be overlooked. Muslim law started with the notion of Mehr, an amount that must be stipulated in the marriage contract (Nikahnama) as a future security to the bride. Gradually, under the dominant Hindu influence, the community has accepted the anti-women custom of dowry. So, while the Mehr amounts have been reduced to a mere token, huge amounts are demanded as dowry.
While all religions are patriarchal and exert strict control over a woman’s sexuality, the hold of Brahmanical patriarchy reaches a high pitch when we examine the phenomenon referred to as “honour killings”. While the Hindu law provided for marriages across all Hindu denominations, rigid caste boundaries prevail. A girl can be killed by her own parents for transgressing caste boundaries and marrying someone from a lower caste — a reality captured in the recent popular Marathi movie, Sairat. At times, young couples are also killed for entering into sagotra and sapinda marriages, concepts unique to Hindus that have been incorporated in the codified Hindu law, while in parts of South India marriages between first cousins and uncle and niece are the norm.
While Muslim polygamy is projected as a major bane affecting Muslim women, outlawing polygamy does not appear to be an effective solution when we examine the prevalence of bigamy among Hindus. Official reports reveal that despite the statutory restraint, incidents of bigamy are more frequent among Hindus than Muslims. Ironically, the worst sufferers of this have been Hindu women, who are denied their basic right of maintenance and sustenance when the husband pleads that the woman is his second wife.
In comparison, the Muslim woman in a bigamous marriage fares better since she is entitled to rights of maintenance, shelter, dignity and equal status. A Hindu second wife is not only stripped of her rights, but also divested from her status as “wife” and humiliated as mistress or concubine in judicial discourse. An example is the adverse comments made by Justice Markandey Katju in 2011 in the D. Velusamy vs D. Patchaiammal case. A Hindu husband enjoys the privilege of denying maintenance to a woman with whom he has cohabited, and may even have fathered children, merely by pleading during court proceedings that he has violated the mandate of monogamy without any criminal consequences visiting him.
In 2005, in the Rameshchandra Daga vs Rameshwari Daga case, the Supreme Court conceded that despite codification and introduction of monogamy, the ground reality had not changed much and that Hindu marriages, like Muslim marriages, continued to be bigamous. The apex court was trying to award maintenance to a woman whose husband had challenged the validity of their marriage because of his previous marriage. The court also commented that though such marriages are illegal as per the provisions of the codified Hindu law, they are not “immoral” and hence a financially-dependent woman cannot be denied maintenance.
If Hindu women, like Muslim women, are given rights, the destitution and humiliation that they suffer will be greatly reduced. Against such convincing evidence of anti-women practices, can we assume that the codified Hindu law has been instrumental in bringing social transformation? It has not provided the foundation upon which a uniform and gender-just family code for Indians across religious communities can be mounted.
If it is accepted that all personal laws, customs and practices are patriarchal, where does the process of change to bring in gender-just laws begin? Here, we must accept two premises:
First, our laws are not uniformly gender-unjust. They contain specific forms of gender injustice and each must be addressed within its own specificity.
Second, the law is dynamic and gets formulated within the contested terrain of litigation. Our Constitution provides us the yardstick for testing its gender discrimination. Supreme Court verdicts provide scope to challenge specific gender unjust provisions. Judgements such as Shamim Ara (2002) and Danial Latifi (2001) have shown the way forward. Unfortunately, these landmark rulings have been under-reported due to which the impression continues that Muslim women have no rights until a uniform civil code is enacted.
Flavia Agnes is a legal scholar and a women’s rights activist