Which laws would dictate marriages in a Uniform Civil Code?
The need for a Uniform Civil Code that equitably manages personal relations like adoption, marriage, divorce and inheritance, has been debated for a long time. Those who are likely to lose power and control mediate the discussion about the Uniform Civil Code. So you have the reactionaries amongst all communities arguing for the status quo – witness the Parsi orthodoxy resisting the notion of a more permissive adoption law for fear of diluting their ‘pure’ lines of descent, even as they face dying out as a community for want of numbers. The Muslims fear that their traditions – fair or unfair – will be overrun by a different morality. They point out that the reformed code of Hindu law retained the notion of the Hindu Undivided Family, which many see as nothing more than a tax dodge.
Some folks see a solution in allowing the code or some parts of it to be voluntary. So you can opt in or out as you wish. But even seemingly reasonable ideas like registration of all marriages have different effects at different levels. If registration is considered proof of marriage and the only proof of marriage, then it disadvantages all the other forms of marriages where say, a man can shirk all responsibility on breakdown by saying “She is not married to me actually” after cohabiting and even having children after performing a religious ceremony in villages and small towns. Requiring registration as proof is pretty useless in reality until the State’s machinery can assure proper uniform and universal registration and all the concomitants of legal protection, like identity proof, licensed authorities who can solemnise a marriage, equitable rules for custody and maintenance and most importantly that illusive thing in India — speedy and fair access to justice for all.
Then there is the issue of the elements of the Uniform Civil Code. Which elements do you take? For instance, is marriage to be treated as a contract as it is amongst the Muslims or as a sacrament? The former is seemingly the more modern idea but the notion of marriage as a sacrament is deeply ensconced amongst other social groups. There is also the whole issue about equity between the sexes. Can it be solved by forcing everyone to have only one wife or husband at one time or do we solve it by allowing everyone – man or woman – to have any number at one time? While one idea may sound more acceptable and the other outlandish there is no reasonable basis for deciding that one at a time has more merit than many at the same time, except personal opinion, which in itself is based on one’s own upbringing and not on any objective truth.
Victorian ethics
When it comes to personal relationships, the present Criminal Code is based on Victorian ethics – hence you have breach of promise still included in it or compensation for sleeping with the wife of another, but not if you sleep with the husband of another. Ideally, a new code should be guided by the need to ensure gender equity and destroy all elements of gender discrimination that plague us today. But too often the debate cannot get past loudly shouted morality. But whose morality shall we use? Shall we go for the living societal customs and practices of the Hindus or of the Muslims or the variations among the Buddhists or the Jains, or Sikhs, Parsis or Christians? Is there uniformity within religions that law makers can rely on? Are tribal customs more sensible than all of these? Will they ever be countenanced let alone be influential in the mix?
Each time the issue is discussed it gets mired in politics and the voices of power take control of the discussion. Inevitably it is the all male padres, mullahs and sants who usurp the debate. The women shout from the sidelines and eventually the positive potential of a uniform code gets drowned in the cacophony. That is why the debate has never evolved beyond polarized religious objections into a reasonable code able to provide equity for all and taking into itself the best of all social norms.
Nehru and others prevailed by dint of their own patrician reputations and the trust they commanded as leaders, which is why they could pass the reformative Hindu Code. But they had not the courage to do the same for the Muslims and other minorities. They also prevailed because all power was concentrated then in the hands of a few so they could make changes in law and social relations without too much demur from the public at large. Now for better or worse democracy has diffused power to many more centres and fragmented it into the hands of multiple communities and their leaderships. It is easy now to block and resist change. It is also easy for obscurantists to dominate on the pulpits of retrogression and insist that changes must conform to some imagined ancient glory.
The Supreme Court may want to the spur the government to some sort of changes at law, which will smooth out all the unfairness and anomalies that exist. But the best intentions can often pave the way to hell. Who can forget that when Mary Roy got the Supreme Court to agree that the Christian rules of intestate succession were unfair, the priests reacted by creating a structured program to teach their flock how to make a will that would disinherit women? Recall too Shah Bano and the pittance that was denied her by an amendment act during the Rajiv Gandhi regime. It was passed specifically to nullify the Court’s insistence that Muslims too must pay something to an abandoned wife to keep body and soul together. Today, the tremendous distrust between communities and suspicion of government’s every intention doesn’t auger well for either debate or decision. For the moment, “approach with extreme caution” seems the best advice.
Maja Daruwala is Director of the Delhi-based Commonwealth Human Rights Initiative