| Originally posted by : Indian Citizen |
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Dear All,
Now that implementation of UCC is just a matter of time, i just wanted to understand the ramifications of it from a divorce perspective. Will request the honourable experts here to throw some light on my queries:
In the case of UCC coming into law:
1) Will the husband have to part with half of his salary to his wife even if she is working?
2) Will inherited/inheritable property also have to be shared/divided with the wife?
3) Will there be joint custody for the kid?
Look forward to hearing from you all on this.
Best Regards |
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Uniform civil code is the proposal to replace the personal laws based on the scripttures and customs of each major religious community in India with a common set governing every citizen. Article 44 of the Directive Principles sets its implementation as duty of the State. Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce, polygamy in the country and putting it among the nations legally applying the Sharia law. The Bano case made it a politicised public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity. In contemporary politics, the Bharatiya Janta Party and the Left support it while the Congress Party and All India Muslim Personal Law Board oppose it. Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Goa has a common family law, thus being the only Indian state to have a uniform civil code. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law. Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere. The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women's rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition. The Constitution of India, under Article 44, directs the government as follows: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." However, ever since the Constitution came into force on January 26, 1950, no attempt has been made by the Indian government to draft a Uniform Civil Code (UCC) for fear that political parties could lose Muslim votes. Even civil society organisations and human rights activists have shied away from advocating a UCC for Indian citizens. This is a result of the prevailing erroneous belief that the uniform civil code is meant to curb personal laws, especially only of Muslims. Contrarily, a uniform civil code was desired by the framers of the Constitution to ensure that basic fundamental rights of citizens, irrespective of their religious and other identities, are protected within a larger human rights framework. The issue of UCC has emerged into India's political discourse recently because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. Therefore, more than ever before a realisation is gaining ground that a UCC will protect the constitutional rights of Indian citizens. At present, no draft UCC exists that could enlighten the people of India regarding the specifics that will constitute such a code. Therefore, I began drafting a UCC and in this process was assisted by two gentlemen, Satya Prakash and Siddharth Singh, in their personal capacity. Consider the following facts – It’s lawful for a Muslim man to keep more than one wife but not for a Hindu man. Of course no woman Hindu or Muslim can have more than 1 husband in our patriarchal society. Hindus can form an undivided family (HUF) to manage their assets better and in the process reduce their taxes but not Muslims or Christians. Christians can’t file for divorce before completion of 2 years of marriage while other communities can do so after 1 year of marriage. Christian women get no share in the property of deceased children while different rules apply to other communities. These observations prompt one to ask, whose law is it anyway! This chaotic situation is the result of religious laws governing matters relating to marriage, divorce, succession, inheritance, maintenance etc. The question of uniform civil code had been raised time and again since independence but post supreme court judgement in 1985 on “the maintenance a divorced Muslim woman would be entitled to receive”, this question has acquired a distinct communal overtone. In this mini series we discuss the tale of Shah Bano case . This is the story of a judgement which would lead to politics of Mandal- Kamandal and set off a chain reaction which would set ablaze fires of communalism and set off one of the biggest communal riot in the post independence history of India. It would change the politics of India and relationship b/w 2 major communities forever. But before we come to the judgment, let us briefly have a look at the constitutional provisions relating to religious freedom, secularism and supreme court interpretations of the same. Art 15– No discrimination on grounds of religions, race,caste, s*x, place of birth only. Art 25– Freedom of conscience and free profession, practice and propagation of religionsubject to reasonable restrictions on the grounds of public order, health and mortality. Art 25 (2) provides for regulating secular activities associated with religious practices and social welfare and reform. Art 26– right to establish and administer religious institutions. Art 27– Prohibit state from levying tax proceeds of which are used for the benefit of a particular religion. Art 28– deals with issue of religious instruction in educational institutions. Art 44- A DPSP provides for uniform civil code CAA 42nd inserted secularism in preamble. In S.R.Bommai vs Union of India case, supreme court held secularism as a basic feature of the constitution. Origin of different personal laws #1. The Lex Loci Report of October 1840 It emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract. It also recommended that personal laws of Hindus and Muslims should be keptoutside such codification. #2. Queen’s 1859 Proclamation promised absolute non-interference in religious matters. So while criminal laws were codified and became one for the whole country, personal laws continue to be governed by separate codes for different communities. What was the reason? Indians resisted British attempts to change their religious and customary practices and British realized it the hard way with various sporadic localized revolts and massive mutiny of 1857. Charter act of 1813 had allowed missionaries to come to India and promote Christianity. To impress the liberal govt in Britain (2 main parties in Britain that time were liberals and conservatives, labour party came later ) to grant them another 20 years of trade monopoly, EIC, promoted activities of missionaries and under leadership of Bentinck passed many social reform legislation like abolition of Sati in 1829. But primary motive being money and loot, they abandoned it when they saw it hurting their commercial interests. The same situation was allowed to continue post independence. Constitution was written in the shadow of partition. There was tremendous anxiety among the minority community so founding fathers thought it fit to prescribe principle of UCC in DPSP. It was their fond hope that with time, minorities will feel safe and parliament would be able to legislate a uniform civil code. Apart from very chaotic situation different codes for different communities create, religious laws of every community discriminated against women. .Laws had to be reformed and for that very reason art 25 (2) provides for state intervention in secular practices associated with religion. To reform Hindu laws, Hindu code bill was piloted by Dr Ambedkar which legalized divorce, provided for only monogamy, gave inheritance rights to daughters. Amid intense opposition of the code being anti Hindu, a diluted version was passed via 4 different legislation. the Hindu Marriage Act, Succession Act, Minority and Guardianship Act Adoptions and Maintenance Act. For instance diluted Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act in 2005. Similarly in Gita Hariharan case, supreme court while interpreting Minority and Guardianship Act, declared mothers also the natural guardian of child even when father is alive. Special marriage act was enacted in 1956 which provided for civil marriages outside of any religious law . Other personal laws remained unreformed and most visible aspect at least in public consciousness of unreformed laws were provisions of triple talaq and polygamy in Muslims. Let’s come back to the judgment Shah Bano, a 73 yr old woman was divorced by her husband by triple talaq and was denied maintenance. She approached the courts. District Court and high court ruled in her favour that led to her lawyer husband moving to supreme court. Facts of the case Under Muslim personal law, maintenance was to be paid only till period of iddat( roughly 90 days ). Section 125 of crpc (criminal procedure code) that applied to all citizens, provided for maintenance of wife. A five judge constitutional bench of supreme court unanimously ruled in her favour. But it also passed some adverse remarks about Muslim personal laws and failure of parliament to legislate UCC. Note that judgement came not very long after 1984 anti Sikh riots. Muslims felt under siege and all India Muslim personal law board and conservatives vigorously defended the application of their own personal laws. Govt was accused of imposing Hindu culture on minorities. It was seen as a threat to Muslim personal law which they considered theiridentity. The fact that none of 5 judges who advocated for uniform civil code was Muslim did not help the matter but was evidence of imposition of Hindu values over Muslims. Media sensationalism did not help matters either. Aftermath and impact Rajiv Gandhi govt. buckled under pressure and passed The Muslim Women’s (Protection of Rights on Divorce) Act (MWA) was passed in 1986, which madeSection 125 of the Criminal Procedure Code inapplicable to Muslim women. This law was exact opposite of its name as any sane person can see it was passed to neutralize supreme court judgement in Shah Bano case. Rajiv govt was accused of minority appeasement and perhaps to compensate the other side or by sheer coincidence, magistrate in Ayodhya ordered opening of the gates of disputed Babri masjid. Bofors scandal wrecked his Mr clean image and govt fell in 1989 and in ensuing general election VP Singh of national front became the PM. He played the Mandal card and in response, Advani started rath yatra. Politics of kamandal had begun . All of this would have very tragic consequences but that’s the story for some other day. Daniel Latifi case MWA was challenged on the grounds that it violated right to equality (art 14, 15) as well as right to life (art 21). Supreme court while holding the law as constitutional, harmonised it with section 125and held that amount received during iddat period should be sufficient to maintain her during iddat as well as provide for her future. Different personal laws for different communities esp provision of polygamy for Muslim men gave rise to the phenomenon of converting into Muslim just for the sake of remarrying without divorce. Everyone would have heard the tale of Chand Mohammad(deputy CM of Haryana) and Fiza. Sarla Mudgal v.Union Of India Supreme Court in its judgement in 1995 held such practice as illegal and criminal. Again an appeal was made to parliament to have a re look at UCC. Supreme court parroted Sarla Mudgal lines again in Lily Thomas case 5 years later but still many Hindus convert to Islam just to remarry. in spite of the chaotic situation and denial of rights to women, governments hav failed to even put out a draft UCC.
