Course Code/Name: MADVS2003C04 / Gender & Development Instructor’s Name : Samapika Mohapatra Contact Details: E-mail: [email protected] Mobile/ WhatsApp:9414642472 Topic: Personal Laws, Uniform Civil Code & Gender Justice in India Focus of discussion: In today’s lecture, I will discuss, ‘Personal Laws’ from gender perspective and how this law reinforces ‘Patriarchy’ and thereby ‘gender inequality’ in India so far women’s rights is concerned. At the same time my discussion will focus on whether a ‘Uniform Civil Code’ will solve the problem of gender inequality? Whether we should abolish personal laws in India so far gender justice is concerned? I will also discuss how the social and political factors contribute towards the growth and retention of personal laws in India over the period of time, even if most of its aspects are not favourable to the status of women in our society. I. What is ‘Personal Law’? The Personal law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture. It is one of the unique components of Indian legal system. India is a multicultural society where we find different religious groups have their own faith and belief. Their belief is decided by the sets of laws. And these laws are made by considering different customs followed by that religion. So in India, different religious groups have their separate personal laws. Indians are following these laws since the colonial period. The personal laws tells the stories about the culture, behaviour, beliefs and values ( of the concerned religious group ) that are considered as the ‘social constructs’ which shape the views of the people of the concerned group/ groups, about their antecedents and roots. In India such ‘social constructs’ has received legal recognition. Over centuries, through invasions and migrations various religious groups like Islam, Parsi, and Christians have made India their home. The invasions and migration have led to the advent of various personal laws in India. 2. Sources of Hindu , Muslim & Christian Personal Laws in India: Historical overview 1. Hindus personal laws are found in:- The ‘Shruti’ which contains all the four Vedas, namely Rig Veda, Sama Veda, Yajurva Veda, and Atharva Veda. The ‘Smritis’ which are handed down teachings and sayings of Rishis and holy men of Hindu religion and the commentaries written by many historic authors about the ‘Smritis’. There are three types of Smritis, namely: Codes of Manu, Yajnavalkya, and Narada. Personal Laws and customs as recognized by the statutory law regulate the Hindus. These are applicable to the legal issues related to the matters of :- ● inheritance, succession, marriage, adoption, co-parenting, the partition of family property, obligations of sons to pay their father’s debts, guardianship, maintenance ,religious and charitable donations etc. 2. Sources of Muslim Personal Laws are found in :- The Holy Quran The sayings and teachings of Prophet Mohammed carefully preserved in tradition and passed down generation to generation by holy men. Ijma, the agreement of Muslim scholars, companions, and disciple of Prophet Mohammed on matters of religion. Kiyas, an analysis made using Quran, sayings of Prophet Mohammed, and Ijma when any individual one of them is not applicable to a particular case. Digests and commentaries on Muslim law, written by ancient Muslim scholars. The most famous include Hedaya(composed in the 12th century) and Fatawa Alamgiri, compiled under the instructions of Mughal emperor Aurangzeb Alamgiri. Personal laws and customs govern the Muslims are applied to all matters relating to :- ● inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship and pre-emption. 3. Christian Personal Law in India :- The Christian Marriage Act, enacted during 1972 has instructions on dealing with matters related to matters of marriage. Indian divorce act enacted during 1869 contains matters related to divorce. Under the directions of this act, the husband can appeal for divorce on grounds of adultery by the wife. Similarly, the wife can appeal for divorce on the grounds that the husband has converted to another religion or has married another woman or if he is found guilty Under that section the husband can seek divorce on grounds of adultery on the part of his wife and the wife can seek divorce on the ground that the husband has converted to another religion and has gone through marriage with another woman or has been guilty of any of the acts mentioned in the act. Why did we need personal laws in India? The history of personal laws in India is rooted in India’s colonial past. Both Hindu and Muslim Personal Laws were brought in the early 20th century to protect the private realm of the household from the colonial state. Issues/ problems of personal laws in India : In India, the “Hindu” and “Mohammedan” laws were largely retained by the Constitution at the time of independence. Consequently, personal laws as they exist today have largely been drawn from the customs that were favourable to the native patriarchy. Taking this argument forward, Nalini Rajan compared two seminal cases of personal laws being challenged at court—Rakhmabai (a Hindu woman) and Shah Bano (a Muslim woman)—to suggest that “owing to the complicity between religion and patriarchy”, reforming personal laws may not be a tenable idea unless it is driven by women. Even after independence, when Hindu Personal Law abolished polygamy, there was a violent public backlash where Hindu men threatened to convert to Islam because they felt that they were being stripped of their “customary rights.” Feminists’ arguments against the Personal Laws : Religious Texts Vs Gender Justice Should we be discussing the significance of Koranic or Hindu sacred texts in India or should we be discussing equity and gender justice today? While feminists are wary of vesting too much faith in legal state institutions for the sake of ensuring gender justice in society, they are equally suspicious of political parties’ capacity to treat communities with equal respect and concern. Feminists’ remarks about ‘how personal law is oppressive for women’: Cases from India Case of Shah Bano : Mohammad Ahmed Khan v. Shah Bano Begum is mainly known as Shah Bano Case. Shah Bano, 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christianity, Islam and Hinduism) allowed the husband to do so without his wife's consent: since under Muslim law, the husband just needs to speak the word Talaaq before witnesses for a valid divorce. In the year 1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The Supreme Court gave verdict in favour of Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens irrespective of religion. Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC. On the other hand Rajiv Gandhi Government was not satisfied from the court decision; instead of supporting it the government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the Supreme Court judgement in Shah Bano Case and let the Muslim Personal Law prevails in divorce matter. In this act it was mentioned that Muslim woman has right for maintenance only for three months after the divorce i.e. iddat and then shifted her maintenance to her relatives or Wakf Board. Case of Imrana: The Imrana rape case is the case of the sexual assault of a 28 year-old Indian Muslim woman by her father-in-law on 6 June 2005 in Charthawal village in the Muzaffarnagar district of Uttar Pradesh, India (located 70 km from Delhi). The village elders and subsequently, several levels of Islamic legal opinion regarded Imrana's marriage with her husband null, as the Sharia regards sexual relations with both the father and son as incestuous. This sparked nation-wide controversy as critics argued the case was treated as adultery and not rape. Case Analysis: From the above case analysis, it is however incorrect to say that only Muslim Personal Laws are regressive only in India. As Ayushi Singhal, in her article on the Hindu Succession Act has pointed out the many peculiarities that make this act discriminatory towards married Hindu women also. She pointed out that Succession in Hindus is governed by the Hindu Succession Act (HSA), 1956. A peculiar fact about this act is that it differentiates between men and women in matters of intestate succession. Female intestate succession is dependent on the source from which the deceased female received the property. Does India Need a Uniform Civil Code? Keeping the problems in mind the question may arise, whether India at all needs a Uniform Civil Code. What is after all a ‘Uniform Civil Code’? Uniform Civil Code : Uniform Civil Code (UCC) is defined in our Constitution under Article 44 of Directive Principles of State Policy. It states that it is the duty of the state to secure for the citizens a Uniform Civil Code throughout the territory of India. In other words we can say that it means one country one rule. Let us find out more about Uniform Civil Code, its pros and cons. ● The Uniform Civil Code place a set of laws to govern personal matters of all citizens irrespective of religion is perhaps the need of the hour and ensuring that their fundamental and Constitutional rights are protected.