By A.J. Jawad, New Age Islam
03 November 2016
For the past several weeks there have been screeching debates on prime TV on the Muslim Personal Law and the need for a Uniform Civil Code. Unfortunately, these issues are being dealt with only from the following three perspectives:
a. A patronizing patriarchal perspective - which assumes the sub-ordination of women to men;
b. The religious perspective – pertaining to the validity of certain practices under the religion;
c. The economic perspective – concerning the rights of the “second” wife.
In this context, two articles “Multiple ways to Equality” by Mr. Faizan Mustafa, Vice-Chancellor of NALSAR, Hyderabad (published in the Indian Express dated 28-10-2016) and “Situating law in the land” written by Mr. Faizur Rehman, a Chennai-based independent researcher (published in the Hindu dated 28-10-2016) are also relevant. Both the authors have relied on empirical data to show that delegitimisation of bigamy under the Hindu law has not succeeded in curtailing the practice of bigamy among Hindus. In my humble view these are incorrect premises for such a debate.
Constitutionality as the Focal Point:
The entire argument on triple Talaq and polygyny is centred around the argument whether these practices are valid or not under the Sharia. The opinions of several medieval jurists are batted around to either justify or condemn these practices.
The point that is being missed here is the geographical and political location of the issue. The debate should be on the rights of women within the geographical territory of India governed by a Constitution that promises equal rights to all its citizens and not on the religious validity of practices that impinge on such rights. The question should be not what is valid in a particular religion but what is valid under the Constitution.
Articles 13, 14 and 21 of the Constitution are relevant here. Article 13 declares that all the laws, customs and practices prevailing prior to the enactment of the Constitution would be invalid to the extent of being violative of the provisions of the Constitution. Article 14 promises equality before the law. Article 21 promises the right to life of dignity. Unfortunately, some earlier judgments of the Supreme Court diluted the provisions of Article 13 to exempt personal laws. As a result, pernicious practices under the guise of personal laws continued.
The Muslim Personal Law (Shariah) Application Act of 1939, one such pre-Constitution enactment, thus continues to hold fort. It merely states that in all matters concerning marriage, divorce, inheritance, etc. the Muslims of India will be governed by the Shariah. It does not define what is “Shariah” nor does it prescribe any rights, obligations, remedies or procedures. The constitutionality of this enactment needs to be re-examined in the light of Articles 13, 14 and 21.
Dissolution of Muslim Marriages Act, 1939:
In almost every Muslim country, divorce to be valid needs the imprimatur of the court. India cannot be an exception. The best option would be to codify the personal law applicable to Muslims. However, an easier option would be to amend the Dissolution of Muslim Marriages Act, 1939, (a law that entitles a Muslim woman to approach the court for dissolution of marriage on grounds prescribed)to facilitate either or both spouses to approach the court to get the divorce ratified, regardless of whether it is Talaq, Khula, Mubaraat or Lian. The court would then enquire into the causes of disagreement, try counselling, mediation or conciliation and if it appears that the marriage is irretrievably broken, pass verdict confirming divorce. Penalizing the offending party can also be included. Muslims cannot have any objection to such an amendment as it is in essence the Quranic method and also fulfils the constitutional mandate.
The argument that delegitimizing bigamy for Hindus has not curtailed the practice, that it negatively impacts the rights of the “second” wife and that polygyny should be retained not only for Muslims but also extended to Hindus is puerile. It is a negation of the concept of gender equality, ignores the rights of the first wife and reduces her to a mute spectator consigned to a life of ignominy. It does not consider the psychological impact arising from the humiliation, mental anguish, trauma and social stigma that she has to undergo. Therefore, polygyny has no place under the Constitutional scheme.
In law (regardless of the religion of the parties), marriage is a contract between equals. One party cannot enjoy the special privilege of entering into similar contract(s) with third parties when the first contract is still subsisting. Even in case women exceed men, polygyny is not the answer. Women need to be empowered through education and economic development. Section 494 of the IPC should be applied to all communities and considered an offence against the state and not merely a personal injury to the first wife alone.
Uniform Civil Code:
In the heated debate for and against the uniform civil code, what is forgotten is that there is already an optional uniform civil code existing in the form of the Special Marriages Act, 1954 and the Indian Succession Act, 1925. Any person in India can get his/her marriage registered under the Special Marriage Act and section 21 of the Act prescribes that, upon such registration, the parties will be governed by the Indian Succession Act and not their personal law.
More than a mandatory uniform civil code, what is needed is the strengthening of the existing institutions. The conditions of the family courts in the country are appalling. In Chennai, for instance, there are only three family courts which are overcrowded, the judges overworked and the infrastructure pitiable.
What needs to be done is to increase the number of courts manned by judges specially trained in family issues, locate the courts outside the regular court campuses, provide an environment conducive for parties, streamline and expedite procedures for quicker resolution of cases, provide alternate processes like mediation and conciliation through well-trained and skilled personnel and make available full-time psychologists and counsellors to assist the courts.
The family is the fundamental unit of society and harmony in the family is a sine qua non for a healthy society. The State needs to give importance to the welfare of its citizens by providing the necessary means for peaceful resolution of family disputes. Absent this, a uniform civil code may not be a panacea but a curse.
I am an advocate and trained mediator in Madras High Court. I am also a trainer in mediation and I have done several successful matrimonial mediations.
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