The issue of triple talaq has once again ignited the age-old debate on the desirability of the Uniform Civil Code (UCC) in India. The Law Commission of India sought the views of people on the implementation of UCC. It put out a questionnaire on 7 October, which faced stiff opposition from the All India Muslim Personal Law Board (AIMPLB) and some legal experts as it was alleged that it focuses mainly on the Muslim laws, ignoring discriminatory practices perpetuated by personal laws of other religious communities.
Firstpost in an interview with Flavia Agnes, a prominent legal scholar and director of the Majlis Legal Centre, Mumbai, tries to find out the sticking points of the current debate. Agnes provided a detailed legal analysis of the issue.
FP: Do you feel that the debate on UCC and 'triple talaq' is progressing in the right manner, given that it is centred on Muslim personal law?
FA: No, I don’t think it is going in the right direction because it is only directed at the Muslim law and the discriminatory aspects of the Hindu law are not coming into focus. It is not just law, we also need to examine the Hindu ethos and cultural practices which are anti-women.
FP: In your article in ‘The Oxford Handbook of The Indian Constitution’ you make a very important observation where you write, "The enforcement of a UCC cannot be viewed in a simplistic manner as outlawing 'polygamy and triple talaq' among the Muslims. The issue is far more complex and would require a detailed analysis of the gaps in the existing laws of all communities, from the perspectives of women’s empowerment." Seemingly, these fine points have been ignored to a great extent in the current debate. What are your views on this?
FA: Yes. Rather than having consultations and trying to understand the issue in depth, the questionnaire framed by the Law Commission reflects a superficial engagement with personal laws. It also targets the Muslim community. The current polarisation and the reaction by the AIMPLB are the results of framing the questionnaire in this manner.
Rather than bringing communities closer, it is framed as an attack on minorities. This was totally unwarranted. All along it was stated that the UCC would comprise of best practices of all communities, but the questionnaire does not provide the scope for this.
FP: In your article, you highlight how personal laws of other communities (apart from Muslims) too have so many discriminatory provisions against women. Why do you think they miss the intensity of scrutiny that the Muslim law attracts?
FA: This is unfortunate. While the negative aspects of Muslim law are highlighted, the positive rulings and community practices are not given prominence. One can observe this even within the judiciary. When discriminatory practices within Hindu law and cultural practices are discussed they are not framed as “Hindu” but are discussed in general terms as "women's problems".
For instance, the problem of dowry-related violence and dowry deaths. There is no research conducted as to how many women who are murdered for dowry are Hindus. A research done by our organisation about cases which have reached the Supreme Court and the Bombay High Court revealed that more than 90 percent were Hindus. Less than 10 percent were Muslims and others.
What do these figures tell us? Take for instance the latest judgement where a husband was granted a divorce on the grounds that the wife refused to stay with his parents. The notion of 'joint family' and 'joint family property' is a Hindu notion. Such a judgement would not be delivered if the woman was from another community. But we don’t term it as an anti-women 'Hindu' cultural norm.
FP: In your article, you dwell on the socio-political circumstances in which personal laws were given some sort of legal sanctity in the colonial era. Why is it that even with the change in the socio-political setup, we have not been able to bring significant reforms?
FA: After the Constitution was enacted, the first set of reforms was for Hindus, which violated the mandate of Article 44. The justification was that the Hindu law is extremely gender unjust compared to laws of other communities and needed immediate reforms. Daughters had no right to inherit property; the right of widows was a limited life estate. Women had no right to divorce and there was no restraint upon men regarding polygamy. Child marriage, abandonment of widows, etc were problems faced by women.
Institutions like mistress and concubinage were recognised. The urgency was to reform Hindu laws. However, though this was the stated objective, there was a political motive to acquire the legislative power over Hindus which until then was in the hands of religious heads of different sects. The aim was also to bring all reform religions such as Buddhism, Sikhism and Jainism etc within the broad Hindu fold.
Finally, the laws enacted were not even made to be gender sensitive because a common consensus had to be reached by diluting women’s rights. At the same time, the state did not want to get into the realm of a Uniform Civil Code and ruffle minority sentiments soon after the bloodbath of partition.
It was presumed that as time passed, communities would get more integrated. The communal violence in subsequent years pushed communities further apart and today the faith of Muslim communities in the present right-wing government is at very low ebb. Hence the political climate is not conducive to reforming laws of minorities or for bringing in a Uniform Civil Code.
FP: The government has said that triple talaq violates the right to equality of women as well as their dignity and that it "has no place in a secular country." Your comments on this.
FA: The entire affidavit filed by the government is a totally redundant and unwanted exercise because the SC in the Shamim Ara ruling in 2002 has already invalidated instant and arbitrary triple talaq and laid down the procedure for dissolving the Muslim marriages.
Even halala is a practice which accompanies only instant divorce and not a divorce over three months. So that too is rendered redundant. Since that landmark ruling did not receive media attention, most people are not aware of it. There have also been important high court judgments on this issue since 1981 and post Shamim Ara, several high courts have upheld this position.
If any woman who has received a talaqnama approaches the court relying upon these judgements, the courts will strike down the talaq and will give her the rights as though she is married. Hence, there was no need to make such comments on an issue on which the SC had already ruled in a noncontroversial manner.
FP: The government has also asked for the re-examination of a 1952 Bombay High Court judgment that held that Article 13 of the Constitution doesn’t cover personal laws? Your views on this.
FA: I have no issue with that but it only acquires a political hue in the present climate. The 1952 judgment is a high court judgment and not binding on the SC. But various SC judgments have upheld this decision and so it is not only the 1952 judgment but also the subsequent SC rulings that one needs to examine.
But at the same time, there are a number of judgments of various high courts and the SC which have examined both Muslim and Christian laws and have struck down certain discriminatory aspects or laid down the correct procedure.
Shamim Ara ruling is an example, and there are many more. The discriminatory aspects of Christian laws were also struck down. While hearing those cases, the issue did not get politicised. But in this case, there is a deliberate attempt to politicise the issue.
FP: Many Muslim scholars and personalities have asserted that triple talaq is being given an 'un-Islamic' interpretation and that its practice is being 'wrongly interpreted', as the concept of one-time triple talaq does not exist. If this is the case then what is the basis of defending it?
FA: I agree. But once we accept that the Shamim Ara judgment is binding, then this question does not arise at all. Surprisingly, the affidavit filed by AIMPLB has also conceded that Shamim Ara has laid down the law regarding the triple talaq and that is the law of the land today. Later they made contradictory statements, but the fact that they accept Shamim Ara ruling is a positive step.
FP: The Law Commission of India sought a public vote on the implementation of UCC. Do you see this development as a precursor to some significant changes in personal laws in India?
FA: I feel it has opened up a debate, but the manner in which the questionnaire is framed to target the Muslim community was totally unwarranted. The AIMPLB has given a call to boycott this questionnaire. This makes it difficult to have any dialogue.
We should have started with the process of dialogue first and should have got the consensus of minority communities and then prepared a draft and presented it to various stakeholders. I disapprove of the manner in which this entire process has been done.
FP: MPLB's Hazrat Maulana Wali Rahmani, at a press briefing a few days ago, said, "A uniform civil code is not good for this nation. There're so many cultures in this nation, (they) have to be respected. India can't impose a single ideology." How do you react to such claims?
FA: I agree. My own position is that uniformity of rights is more important and not a uniform law which will not be accepted by minority communities. We need to first see where we have uniformity of rights and strengthen them. And where there is discrimination, bring reforms in small measures.
All personal laws discriminate against women but the discrimination is not similar. Each has to be addressed separately. It has to be a step-by-step approach which will work better for the culturally diverse Indian communities. Even Hindu law is not uniform and takes within its ambit the cultural diversity of the Hindu population and accepts their customs and traditions.
FP: Implementation of UCC means that along with Muslims other minorities, like Christians and Parsis, would also lose their existing right to apply for their own civil code or laws for family matters, including marriage, divorce and inheritance. Yet, the most vehement opposition comes from the MPLB. Why is it so?
FA: This is because the issue has been polarised along the Hindu-Muslim binaries. Even when issues concerning other communities have come up before the SC, such as the John Vellomatham case or the Sarla Mudgal case, which involved Hindu women who were victims of Hindu polygamy, the SC have made a call for a UCC in the context of Muslim law. The media too has played into this which is indeed tragic.
FP: Arif Mohammed Khan, who took a very strong stand against the discriminatory practices perpetuated by Muslim personal laws, while commenting on UCC and the functioning of MPLB wrote that, "The Imrana case, for that matter many other cases, including the famous Shah Bano case, are merely symptoms of a much deeper malaise – the desire to maintain and perpetuate disparity between the sexes. MLPB, since its inception, has been the votary of this trend." Do you think that the MPLB will succeed in stifling any attempt of implementing the UCC this time as well?
FA: Since I myself am opposed to the implementation of UCC on an unwilling community or polity, I refrain from answering this question. With due respect to Arif Mohammed Khan, when we address the malaise only within the Muslim community, we are framing the issue in a lopsided manner.
As lawyer defending women's rights, women of all communities approach our organisation. In court proceedings, we do not find that Muslim women are more discriminated than Hindu women. In fact, the reverse is true. It is very difficult to prove a Hindu marriage when the husband denies it. There is no proof of Hindu marriage except through photographs and witnesses.
When the husband claims a prior marriage, the woman is termed as a 'mistress' even by judges. Muslim marriage is a contract and the mehr is an integral part of it, whereas Hindu marriage continues to be viewed as a sacrament and dowry is an integral part of such a marriage. Though banned by law it continues unabated.
The Hindu rituals under Section 7 of the Hindu Marriage Act, such as kanya dan are also discriminatory. Once a girl is married, she is seen as paraya dhan and doors of the natal family are closed on her.
Due to these women, who are facing domestic violence, get depressed and commit suicide. Incidents such as Imrana are not unique to Muslims, they occur within Hindu families as well. The important point about Imrana is that she had the courage to file a complaint and get her father prosecuted.
The fatwa itself was an attempt to politicise the issue by a journalist, as Imrana herself never asked for the same and the positive aspect is that she ignored the fatwa and continued to live with her husband in her natal home. Media never discusses these nuances and the attempt is only to tarnish the Muslim community through these media discussions.
FP: In your article, you write that "another strategy to break the stalemate is to enact specific legislation, which will apply to women uniformly across the country." Though desirable, is it possible given the hostility towards UCC, especially by the Muslim law board?
FA: It has been done before. We have laws such as the Special Marriage Act of 1954. Anyone can marry under it. But all communities prefer to marry under their own personal laws and the government has done very little to popularise it. The medical termination of pregnancy, the Dowry Prohibition Act, the dowry-related criminal proceedings under IPC such as Section 498A (cruelty to wives) section 304B dowry murders are uniformly applicable.
Similarly, the Protection of Women from Domestic Violence Act, which was enacted in 2005, applies to Muslims and others alike. This law protects shelter, residence, maintenance, child custody and also compensation for the violence suffered to women during their marriage, in their natal home and even after their divorce.
In my EPW article and in a subsequent article in Scroll, I had explained that Shayara Bano ought to have used these remedies to claim her rights rather than rushing to the SC. As a divorced woman, she is also entitled to a fair and reasonable settlement for her entire life under the Protection of Women upon Divorce Act, 1986 which has been awarded a wide interpretation by the SC in 2001 in the Danial Latifi judgment.
But due to illiteracy, ignorance, and denial of access to justice, most women who are victims of domestic violence are unable to use these beneficial provisions. It is poverty, illiteracy and the lack of resources to approach the court that prevent the women victims from approaching the courts to protect their rights.
FP: In an EPW article published in May 2016, you questioned the positive media coverage of Bano’s petition and maintained the same view in another piece published two weeks ago highlighting the "few positive aspects" in the affidavit filed by AIMPLB. Many people expressed serious disagreement and discontentment on this. Please share your views on this?
FA: No, in the EPW piece I was very critical of the media publicity and the focus upon the domestic violence faced by Shayara Bano as though it is unique to a Muslim woman, and because similar violence suffered by Hindu or other community women would not be highlighted in the same manner.
I explained the various legal remedies she was entitled to and that no one was addressing it. So, I had felt that the media was extremely communal in highlighting this aspect. In the later article, I addressed the positive aspect in the affidavit filed by the AIMPLB which endorsed my views and accepted the ruling of Danial Latifi, which has held that a Muslim woman is entitled to a fair and reasonable provision for her entire life and they also advised that Shayara Bano should have approached the local court regarding the domestic violence she was facing.
This was positive because earlier when we talked to people working with Muslim communities there was a feeling that Muslim women cannot approach the courts and must approach only the Mullahs. So the Board accepting this was indeed positive.
The disagreement and discontentment are from those who have not worked with the law and have never helped Muslim women to access the courts. I do not think many of them even read the Board’s detailed affidavit and have gone by media reports.
I have not engaged with people making these comments because the comments are based on a total misreading of my article. After the Board’s affidavit, we are able to reach out to Muslim women and help them to understand their law better and are also able to tell them that the Board advises them to approach the court. So they feel more comfortable in enforcing their rights in a court of law.
Published Date: Oct 19, 2016 18:30 PM | Updated Date: Oct 19, 2016 18:39 PM