Why
Muslim Women Should Welcome the move to Introduce the Uniform Civil Code?
The
BJP has stirred a hornet’s nest by starting the discussion on a uniform civil
code (UCC) in India. The government has requested the Law Commission to inspect
the issues related to UCC and make appropriate recommendations. On the other
hand, the practices like triple talaq, halala (which is the practice which bars
a woman from remarrying a former husband unless you have married another man in
between) and polygamy had been contested in the Supreme Court in Saho Bano vs
Union of India, with the petition that these are unconstitutional. The All
India Muslim Personal Law Board (AIMPLB) has opposed the enactment of a UCC by
filing an affidavit before the Supreme Court.
Amid
all the chaos surrounding the UCC, many Muslim women in India are unsure on
which side they should be. On one hand, Muslim personal law decrees certain
practices that are derogatory to the rights of women; but the governing party
has been unsuccessful to instil confidence in India’s Muslim population. But one
thing is clear, gender equality cannot be accomplished through personal laws,
especially when it comes to Muslim women. Muslim personal law in India is innately
biased against women and leads to their exploitation. Additionally, because personal
law is applied in the matters of marriage, divorce, maintenance, inheritance
and the like, Muslim women cannot enjoy the benefits given to them through
secular law, which their equals from other religious communities enjoy.
Maintenance
Maintenance
is the best example to understand the dilemma surrounding the rights of women
under Muslim personal law. The Shah Bano case and its repercussion appropriately
demonstrated the problem that has arisen due to the lack of a UCC in India. The
petition filed in the court in the Shah Bano case was whether a Muslim woman can
claim maintenance under section 125 of the Criminal Penal Code (or secular law)
from her former husband when the period of iddat has expired. The former husband
said that he is not liable to pay maintenance any longer as Muslim law states that
maintenance should only be paid during the period of iddat and not after it is
over. The court, taking into consideration a secular view, allowed Shah Bano to
claim maintenance even after the iddat period.
The
judgement in Shah Bano's case was seen as a blow to Muslim personal law and,
with the pressure from the religious orthodoxy, the government was forced to
pass the Muslim Woman (Protection of Rights on Divorce) Act, 1986. The Act states
that reasonable maintenance shall be paid by a man to her divorced wife within the
iddat period. The validity of this Act was contested before the Supreme Court
in the Danial Latifi case. The court, though upheld the legitimacy of the Act, also
stated that the duty of a Muslim man to his divorced wife is not over when the iddat
period is over and that a practical and fair provision extending beyond that
should be made by the former husband in the iddat period.
Had
the Supreme Court not favoured the woman where former husbands refused to pay
maintenance then thousands of Muslim women who have been divorced would have
been forced to live without any support. It is because of the judgement given
by the Supreme Court in the Danial Latifi case that Muslim women can avail the
benefits under Section 125 of the Criminal Penal Code similarly to Hindu and
Christian women.
Although
the matter regarding the maintenance of Muslim women has been settled by the
Supreme Court, the judicial decisions are a long-drawn litigation process with cumbersome
legislation and political chaos. Shah Bano to Danial Latifi case took 15 years
for Muslim women to get some equal rights. Things would have been much easier
for them from the start had a UCC been effective before.
Triple
talaq
The
ancient practice of triple talaq is not only against women but is also against Islam.
It has already been revoked in more than 20 countries, including countries like
Pakistan and Bangladesh. A triple talaq divorce is legal even if the husband
says “talaq” three times either on the phone or in a letter or even on
WhatsApp.
The
AIMPLB has many times opposed the eradication of triple talaq in India by stating
that it is based on sharia law. However, there is no mention of triple talaq in
the Quran as a method for divorce. According to the Quran, the correct way for
divorce is to say it three times but on three different occasions after a
three-month waiting period wherein there is plenty of opportunity for the
couple to reunite. Another method the Quran states for talaq is to say it
during two successive periods of purity (tuhr), during which the talaq can be revoked.
If the talaq is not revoked after saying it two times and is said a third time,
it is irreversible.
Even
if the AIMPLB agrees to abolish triple talaq and replace it with the form of
talaq described in the Quran, the right to divorce and the right to revoke
stays with the husband. But some Islamic scholars argue that Islam has given
women the right to divorce their husbands by khula (in which a wife can separate
from her husband after returning a payment). However, khula and talaq are not equal
because a woman can only seek khula from her husband after returning her Mehr
(dowery) to him.
Nikkah
Halala
Halala
is the process that pertains to the rules for remarrying his former partner.
The procedure involves the former wife marrying another man, consummating the said
marriage and then getting a divorce by the same elaborate procedure. Only after
following this procedure, she is eligible to marry her first husband again.
While Muslim scholars have rightly argued that halala should not be seen as a practice
to legalise the reunion, problems concerning the validity of a marriage arise when
a husband remarries his wife without halala.
This
issue came to light when singer Adnan Sami challenged the validity of his
marriage before the Bombay high court. He married his wife in 2001, divorced
her in 2004 and then got remarried to her in 2007. As halala was not observed
by both parties, the family court said the second marriage is not legal. The
Bombay high court, however, held favoured the petitioners saying a wife should
not perform halala before remarrying the same husband if she is divorced by
khula or talaq-e-ahsan (the prescribed method of divorce under the Quran)
methods. Halala is only necessary if the couple has divorced using triple
talaq, the court said.
Imagine
the plight of a woman whose husband divorced her using triple talaq in a fit of
anger or a drunken state. And now they both want to be married again. The wife remains
with two choices – either she can marry another man, consummate the marriage
and hope that her second husband also divorces her so that she can finally remarry
her first husband, or she can remarry without performing halala (against the beliefs
of Islam) losing all her matrimonial rights in the marriage as the validity of
the second marriage will be questionable. She will have no court enforcing her
matrimonial rights because if she tries, her husband can claim that the second
marriage between them was not legal.
A
UCC is urgently needed in this archaic practice of halala, which is degrading
the basic rights and dignity of a woman.
Polygamy
There
are many reasons given by Muslim scholars to justify abhorrent practices like polygamy.
The Quran is often alluded to show that polygamy is allowed only under certain
special situations, that it is not a rule but an exception and that Islam actually
limits the number of wives a man can have and that limit is four. But the focus
of polygamy shouldn’t be the limits that Islam puts on polygamy rather it
should be whether polygamy as a practice should be acceptable in the 21st
century. If the wife of a Hindu or Christian man has the right to charge a
criminal case against her husband for double marriages, then why a Muslim wife
should be deprived of this right?
An
often-cited argument to justify polygamy is a woman’s fertility, if she cannot bear
children, her husband can marry another woman to produce more babies instead of
divorcing the first wife. However, with the progress society has made in the
field of medical sciences and the number of options available for the couple
who cannot conceive, this argument has become redundant.
Contrary
to the general belief the implementation of UCC will not take away all the
personal rights of an Indian Muslim; it will only make those rights
unenforceable in a court of law. Communities will still be free to practice
their religion the way they want, though the legality attached to these
practices will be extinguished. The law will not limit a woman’s choice – she
is free to practice halala if that is what she wishes. However, if a wife
chooses not to observe halala and still remarries her first husband, he cannot
claim before any court that such a marriage is not legal.
Of
course, this being said that UCC has its own pros and cons, and political
parties who are promoting a UCC may have ulterior motives. But for Muslim
women, the implementation of UCC will definitely be a boon – it will bring forth
more gender equality in personal laws and increase their rights in the matters
of marriage, divorce, inheritance, guardianship and other personal matters.