Uniform Civil Code's Impact on Muslim women's Marriage and Divorce rights.
The
creators of our constitution always dreamt of building a nation with secularism
as one of the pillars on which it will stand, while others being equality for
all and a socialist society. It would not be wrong to say that the dream of
building a secular country that is fundamentally diverse was an ambitious one,
it still is (however there is no denying that we have come a long way), and yet
one of the most imperative and necessary goals to ensure justice and equality
for all religions should be a top priority in a multicultural country.
In
an attempt to make this goal realistic the constituent assembly after much planning
and discussion added the provision of the Uniform Civil Code under Article 44
of the constitution, making it a Directive Principle – a guiding measure for
the future governments to further deepen the secularism. Sadly, even after 73
years of independence, this provision remains just a piece of paper.
The
discussions about the Uniform Civil Code rekindled recently after the verdict
of the Supreme Court on the triple talaq practice of divorce under Muslim
Personal Law. An argument that is usually made about the importance of UCC is to
empower women.
Uniform
Civil Code and the purpose behind it
Article
44 of the constitution deals with the Uniform Civil Code which states, “ The
State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.”
The
primary aim that can be interpreted from the language of this provision is to
have a common code for the citizens of the country, in other words, several
personal laws will be replaced with this code which will give more uniformity to
personal laws which otherwise are religion-specific. The Civil Code has a reason
to inscribe in itself all the basic human values which would help in decreasing
discrimination and promote equality among all religions and genders.
The
constitutional creators saw it as an instrument that could bring change in the
society, in the status of women, and empower them which the ancient personal
laws were unable to do. This was one of the main reasons to include it in the
Constitution, although a question which comes to the mind of the readers is if
it was of such great importance then why was it not made a fundamental right?
The
answer is that it was initially planned to be a fundamental right under Article
35 but the constituent assembly was unable to reach a consensus for the same as
they believed that it might violate the religious rights of the people.
The
above-mentioned was the idea of the framers of the constitution which is almost
70 years old. Let us also take into consideration the need for the UCC in present-day
India. The first is the violation of fundamental rights which comes under
Article 14-18 of the constitution which states the right to equality and
prohibition of discrimination based on sex and religion.
The
personal laws about marriage and divorce are unfair and biased, especially
towards women and UCC can be a positive step in reducing the discrimination.
In
current times, the country is increasingly driven by religious agendas and the development
of women and their rights have taken a back seat. The implementation of the
Civil Code will revive the ideas of national integration and development
keeping the social discrepancies regarding religion, caste, and gender aside
which would pave way for women's empowerment and equality.
One
of the key arguments given for not implementing UCC is the conflict it will
create between Article 25 which gives the right to the freedom of practising,
professing, and propagating your religion and this directive principle of UCC will
violate it if implemented. But this argument is not valid as Article 25 states
that any reformative law brought in the future will not be trapped by the process
of this fundamental right.
Which
law can be more reformative than the one which tackles issues like women
empowerment, religious equity, and bringing down the vagueness because of different
personal laws? It is a question which has to be discussed before arguing that
the civil code would be in violation of Article 25.
Let
us look at an analysis of the Muslim laws regarding the social institute of
marriage and divorce, the rights women have under it, and what changes UCC can
bring to these rights.
Women’s
rights under Muslim Law and the impact of Universal Civil Code on it
In
this section, the rights of Muslim women regarding Marriage and Divorce will be
dealt with, and aspects like polygamy, age of marriage, divorce, and
maintenance and how these aspects can put women in vulnerable positions will be
looked into. An interpretation of how this situation will change if the UCC is implemented.
Age
of Marriage
Unlike
most personal laws, the age of marriage is not based on the age of the majority
as stated in the Indian majority Act, 1875. In Muslim law, a person is an adult
if they enter into the contract of marriage from the start of puberty. The Personal
Muslim law has given rights to the people who have reached the age of puberty
to enter into a contract of marriage if they want.
In
the case of Attika Begum v. Mohmand Ibrahim, the age of majority was regarded to
be 15 years for both genders, this case also mentions that if evidence can show
that the girl child has reached the age of puberty before 15 then it will be
considered. But even girls who have not reached the age of puberty can enter
into a contract of marriage by their guardians.
This
gives the idea that there is no limit on the age of child marriage when it
comes to Muslim law and this marriage can only be renounced by the girl before she
turns the age of 18 years, only if it is not consummated.
The
point of stating this is the fact that even when the women fulfill the basic
reason of the contractual marriage in Muslim marriage i.e., giving birth to children
it does not mean that they are psychologically and physically prepared and
willing to accomplish that purpose. Moreover, this has deprived women of basic
education and they are completely dependent on the notions and desires of their
husbands.
Additionally,
it also harms the women’s health as teen pregnancies can leave a lifetime of effects
on the body, this accompanied by the desire of having a male child in a
patriarchal society, lack of decision making and virtually no control over the
family which hurts the mental health of young girls, generally, most girls who are
married before they enter adulthood their husbands are quite older to them, due
to this, her voice and opinions would be diminished.
A
possible impact which the implication of the Uniform Civil Code brings is that
child marriages will no longer be without consequences as a result women can
have a better chance to get an education, get married at an age when they want and
cannot be forced into marriage at an early age.
Polygamy
Under
Muslim law, men can enter a contract of four marriages at a time and women on
the other hand cannot enter into many marriages, this in itself puts the women
in a vulnerable position and they are seen as a meagre childbearing machine
which is against basic human rights.
Sometimes
a justification given in support of polygamy is the inability of women to
procreate and a reasonable rebuttal of a contemporary example of science and
technology is that there are methods like IVF, adoption, and other clinical and
non-clinical methods which can rescue a couple who are unable to conceive.
With
the implementation of the Uniform Civil Code, the practice of polygamy under
Muslim law would be eradicated. It will be a favourable step in bringing a
positive change in the society which is far due. It will improve the position
of women and they will be more secure and safe in society.
The
likelihood of their exploitation can be reduced. Another important point is
that this practice has been eradicated even in Islamic countries like Pakistan,
Iran, Tunisia, etc. and it is about time for a secular nation like India which
believes in the basic human rights to take an action.
Divorce
Unlike
Muslim men, Muslim women have only one way where they can divorce their spouse
under Muslim law. It is called Talaq-e-Tafweez which is like a substitute power
to the wife given by her husband. It is an agreement which dictates circumstances
in which the woman can be separated from her husband. If the conditions agreed upon
are practiced by the husband, then in that case the wife has the right to
dissolve her marriage or the woman can approach the court under the dissolution
of the Muslim Marriages Act, 1939.
While
a Muslim man can announce talaq in different ways. Some respite was brought to
the women after the Supreme court declared that the practice of triple talaq or
Talaq-e-biddat is illegal and banned in the case of Shyara Bano v. Union of
India. It was a ray of hope for Muslim women as the end of this practice with
legal protection has made them more safe.
In
addition to divorce, conventionally a woman under Muslim law is entitled to
maintenance only in the iddat period which was modified in the Danial Latifi
&Anr. v. Union of India which resulted in Muslim women being entitled to
maintenance under section 125 of CrPC. These were the much-needed changes that
had to be done to ensure that women had greater standing in society and were well
protected.
Similar
to the developments that came by the verdicts, the implementation of UCC will
ensure a greater balance between the rights of women regarding talaq and
divorce there would be some other stipulated legal ways through which Muslims
can dissolve their marriage and it would be common to both men and women, as a
result, it will empower women.
It
is essential to note that the implementation of the Uniform Civil Code will not
take away the religious freedom and entitlements of a person. It will only make
those entitlements enforceable in the eyes of law, if an individual still needs
to practice their privileges they will be free to do so till a specific law
makes it punishable otherwise, they will not be restricted by the freedom to
practice their religion, only those practices will be of any value in the court
of law.
Conclusion
In
conclusion, the implementation of any law whose objective is reformation is not
easy and has its pros and cons so will the introduction of the Uniform Civil
Code be, it would be a time consuming and tedious task but the pros outweigh
the cons and will lead to a greater amalgamation of our society, empower the
women and hence is something which requires to be reflected in greater detail
by the governments keeping the benefits it can bring to the women as a top
priority for the progress of the society.