The judgment of Justice Bradley of the US Supreme Court in Bradwell vs Illinois (1872) exemplifies the myth of patriarchal societies that women are the weaker vessel: “Civil law, as well as nature herself, has always recognised the wide difference in the respective spheres and destinies of man and women. Man is, or should be, women’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” The US Supreme Court rectified its stand in Reed vs Reed (1971). Yet, in jurisdictions like India, patriarchy is still ruling the roost and personal laws play a vicious role in making women a marginalised lot.
Feminism endeavours to address the subjugation of women in social and domestic life. As Clare Dalton pointed out, feminism is a range of committed inquiry and activity dedicated first to describing women’s subordination, exploring its nature and extent; second to asking both how, through what mechanisms, and why, for what complex and interwoven reasons, do women continue to occupy that position; and third to change the subordinated position of women. Feminist jurisprudence focuses on the role of law in perpetuating patriarchy and propounds reforms for demolishing male hegemony.
Nicola Lacey observed in her book Unspeakable Subjects (1998) that the public/private dichotomy allows the government to wash its hands of any responsibility for the state of the private world and depoliticises the disadvantages that inevitably spill over the alleged divide by affecting the position of the privately disadvantaged in the public world. This phenomenon is palpable in the case of religious personal laws in India. The state has assigned the family law to the private domain and almost shied away from its reform, which has insidiously affected the women.
The instances of bias against the woman in religious personal laws in India are plenty. The provisions of the Hindu Marriage Act, 1955, treat the Hindu joint family, traditionally led by a patriarch and lineage traced through exclusive male relations, as central to all matters of inheritance. The Act tries to retain property within the husband’s family as far as possible when a woman dies childless. This results in unfair discrimination against the woman’s natal family. Even when the woman has acquired the property through her skills and efforts, the husband’s natal family has a stronger claim over it than her parents.
Both in Sunni and Shia law, a woman is given half the property share of the man. Polygamy and unilateral divorce by husband (talaq) are other severe anti-women provisions in Muslim Personal Law. As per Parsi Law, a non-Parsi woman who is either a wife or widow of a Parsi cannot inherit but their children can inherit. Children of a Parsi woman born to her from a non-Parsi man are not considered Parsis.
Hence, the Uniform Civil Code should essentially be conceived as a feminist agenda. Hansa Mehta, Minoo Masani and Rajkumari Amrit Kaur, pioneers of the feminist movement in India, stated in the Constituent Assembly that “one of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion, which keeps the nation divided into watertight compartments in many aspects of life. We are of the view that the Uniform Civil Code should be guaranteed to the Indian people within the period of five to ten years.” They suggested that the clause regarding the Uniform Civil Code might be transferred from the Directive Principles to the Fundamental Rights. But, alas, their sagacity was voted down for the sake of expediency!
Marriage, divorce, inheritance and other aspects of personal status are purely secular activities that should be synchronised with societal changes. The Hindu Code of 1955-56 departed from the Puranic notions of Hindu Law by borrowing some legal concepts even from Muslim Law, like the option of puberty and the contractual nature of marriage, deviating from the well-established Hindu notion of marriage as a sacrament. The fact that the reformed Hindu Law still retains some pockets of rules that treat women less favourably than men is not overlooked.
A Uniform Civil Code with the rules of just family law is to be framed. It should be independent of religious personal laws and contain only the best from every system. A draft Code should be proffered as the terms of reference for a national debate over the Uniform Civil Code. The focal point should be justice, fairness and equity for women. Such a move should not be misinterpreted as a transgression into religious or minority identity.
Allowing cultural practices as exemptions from liberal rights and freedoms, the use of the so-called cultural defence, can lead to women being denied constitutional protection. The cultural defence enables the rights of a group to prevail over the interests of female members of that group who are likely to have had little input into the formation of such norms. In India, the patriarchal community leaders have been using cultural defence as a bulwark against family law reforms and the Uniform Civil Code.
The Supreme Court observed in the Minerva Mills Case (1980): “A promise of a better tomorrow must be fulfilled today, a day after tomorrow it runs a risk of being conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning.” The tale of the Uniform Civil Code, a forgotten constitutional promise, vindicates this axiom. The Uniform Civil Code is a promissory note drawn by our founding fathers in favour of the woman of India. The promissory note has now gained its maturity for encashment.
Faisal C K
Under Secretary (Law) to the Government of Kerala
(faisal.chelengara10@gmail.com)
(Views are personal)