In the much-hyped debate on the Uniform Civil Code and the Islamic conception of talaq-e-salasa (triple talaq), news media has understated a very crucial point. Just as the landmark developments in law brought about by judicial pronouncements could not receive the required attention of media, the misreading of religious texts has been wholly ignored in the debate.
One thing should be patently clear. It is the self-styled religionists, particularly the priestly class, who are vehemently opposed to equal rights for women. Religion per se is adaptable to and compatible with any civil code providing justice, equality and dignity for women regardless of caste and creed. No religious scripture attaches sanctity to the men who let their womenfolk down. But the current political polemics over religion vs constitution depict a diametrically different phenomenon. The Uniform Civil Code has become such a controversial and confusing issue that it now seems 'better to be put out of the discussion'. It is only being misused by the political pundits and the male-centred clergy as a ploy to maintain their hegemony.
Inevitably, the evolution of a Uniform Civil Code seems as much of a constitutional quandary as the abolishment of personal laws of religions. Therefore, the first thing that all religious communities need to do is undergo an introspection to make sure whether their personal laws guarantee justice, equality and dignity for all.
In this context, the noted women's rights lawyer Flavia Agnes has rightly pointed out to the need for uniformity of rights across religion and internal reforms in place of the 'politicised' Uniform Civil Code. In her interview to Outlook, Agnes spoke: "What we need is not a Uniform Civil Code but uniformity of rights across different religions. For this we need to follow the premise, "Reform from Within" in the same way Hindu law was reformed, the Christian Law was reformed and the Muslim law has been reformed without invoking any major political controversy. The present controversy is entirely unwarranted and best avoided."
The Muslim case
However, in keeping with the above line of thinking, I would beg to differ in the Muslim case. Certainly, Hindus and Christians have engaged in an internal reformation over a period of time. But the Muslim masses have hardly been exposed to any such 'reform from within', thanks to their clergymen ruling the roost. Politicisation of the personal laws in the Muslim case is an indirect outcome of the whim and fancy of the self-seeking maulvis. Muslim laws could long have been refined and standardised with the Qur’anic injunction of ijtihad (creative rethinking). They too could have been codified as per the necessities of the time. But unlike the codification of the Hindu laws in the post-Independence era, Indian Muslim society kept strictly adhering to the dictates and fatwas of the maulvis. Worst of all, Indian governments, regardless of their political affiliation set their eyes on the electoral benefits amassed from the clerical circles. No political party in India seriously approached the progressive Islamic scholars to debate these issues.
Most importantly, the current Indian establishment, which has lately shown an avowed criticism of the ‘Muslim triple talaq’ and the ‘Hindu female feticide’, is accused of playing out in the communal cauldron of Uttar Pradesh. Let alone the Uniform Civil Code, even if a genuine call for gender justice is raised in a communally vitiated atmosphere, it will turn out a pointless sloganeering with an adverse impact.
The only way forward is to urge all the religious communities and minorities to brainstorm internal ways to ameliorate their personal laws and customary practices. It will involve an undying spirit of bringing in social reform with a gradual process.
Misreading of religious texts
The baffling problem with Muslims is that they are inadvertently buying the misuse and misreading of religious texts by the orthodox maulvis, mostly serving in the mosques as imams. For instance, the concept of Halalah, which finds mention just once in the Qur’an (2: 230), is one of the grossly misconstrued texts in the primary Islamic scripture. In this verse, Qur'an has elucidated a logical procedure of divorce (talaq) commanding the gradual approach in it. But regrettably, it has been abused by the half-educated and male-chauvinist maulvis without penetrating the essence behind this Qur’anic injunction.
First, it was laid down in the contextual historical conditions of the time. Second, Halala implies that it would be Halal (lawful) for the first husband to remarry his divorced wife only after she gets married to another person and gets divorced through the same logical process. But it is a brazen violation of the verse prevailing today that the former husband, knowingly and intentionally, stage-manages the ‘nikah-e- halala’ (marriage of his former wife to another person in a bid to reclaim his reunion with her). And he does it so blatantly without even regretting over his guilt of divorcing his wife. This stands brazenly against the Qur’anic notion of halala. Disgustingly, it degrades the divorced women to the downtrodden status of a sex-object who has to lose her dignity in a one-night stand with a strange man.
Similarly, there is a rampant misreading of the Qur’anic verses (4:2, 3 and 127) pertaining to polygamy. Any insightful person would realise that polygamy in the Qur’an was validated under conditional circumstances. At a time when scores of women in Arabia were widowed with orphaned children, it was only then Qur’an had permitted polygamy. So, it was primarily aimed at safeguarding women and orphaned children living in a beast-like Arabian society. But it is quite difficult for the short-sighted minds of the mullahs to comprehend it today.
The Hindu case
Undeniably, gender discriminatory laws and anti-women provisions are still retained in all religious communities in various forms and fashions. Latest impact studies conducted by well-established researchers confirm that bigamy is still practised by a section of Hindus, in a manner worse than the polygamy in the Muslim society. Since the Hindu Marriage Act, 1955 outlaws bigamy and Section 494 of the Indian Penal Code (IPC) declares it a punishable act, it exists unofficially in the Hindu society.
Likewise, Census Data 2011 shows that among divorced women in India, 68 percent are Hindu, and 23.3 percent Muslims, as mentioned in this Firstpost article. However, the census reveals that gender skew is particularly sharp among Muslims (79:21), followed by "other religions" (72:28), and Buddhists (70:30).
In some cases, customary practices in the Hindu society are terribly more misogynistic. In Goa, for instance, a Hindu man can remarry if his previous wife does not give birth to a male child till the age of 30 years.
Flavia Agnes has tried to find out the crucial points of the current debate in her interview to Firstpost which carries a detailed legal analysis of the issue. She opines that the UCC debate is not moving in the right direction, as it is mainly focused on 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," she said.
Muslim polygamy vs. Hindu bigamy
In his op-ed article in The Indian Express, Prof Faizan Mustafa, a noted legal analyst and VC of the NALSAR University of Law (Hyderabad), tried to buttress the same point, but in a different way. He contends that polygamous Muslim men are legally bound to provide each wife not only residence but also proper maintenance and equal care as the Qur’an permits polygamy only in exceptional situations with very stringent conditions. "Thus, she is better off in comparison to the 'second Hindu wife' who has no legal status or rights... The second Hindu wife cannot even claim maintenance from her husband," he wrote.
However, there is no need for such fruitless attempts aimed at drawing a parallel between the Muslim polygamy and Hindu bigamy. Instead, it would be expedient to impose conditions first rather than randomly abrogate the personal laws
Polygamy or bigamy for that matter could only be considered as a conditional customary practice. It cannot be retained as an unfettered licence to Muslim or Hindu men. At the same time, all the reactionary arguments justifying the contextual and conditional practices as 'immutable' laws of religion need not be given primacy over the constitutional rights of women in India.
Another major issue plaguing both the Muslim and Hindu personal laws is child marriage. While the retrogressive Muslim clergy still validates this medieval-age practice in India, statistics tell that child marriages in Hindu society outnumber the child marriages among Muslims. Thus, both religious communities have not yet completely shunned the obnoxious practice which the government of India has made unlawful with the prohibition of Child Marriage Act (PCMA) in 2006.
According to the Indian law, if the girl is below age 18 or the boy is below age 21 while getting into the wedlock, it is regarded 'child marriage'. But Zakir Naik, the influential Islamist preacher with a huge following in India, justified child marriage under the pretext of preaching Shariah. He exhorted: "The only requirement for marriage in Islamic Sharia is that girl and boy both must attain the age of puberty that can occur at age 12, 11 or even 10."
The Islamist televangelist not only validated the marriage consummated at the age of 9 but also encouraged it as something 'scientifically, medically and religiously perfect'.
Similarly, child marriage is a common practice in the Indian Hindu society in most rural areas, though the Child Marriage Restraint Act prescribing minimum age of 18 for girls has reduced it among Hindus. Although child marriages are constitutionally banned in India, but they are not declared unlawful once they actually happen. The Prohibition of Child Marriage Act does prevent the marriages of minor children but the Constitution actually has no definite provisions to this end. Even though the Act recommends punishment for those involved in a child marriage, but it does not completely declare child marriage null and void.
The author is a scholar of Comparative Religion, Classical Arabic and Islamic sciences, cultural analyst and researcher in Media and Communication Studies. Views are personal. He tweets at @GRDehlvi. Email: firstname.lastname@example.org
Updated Date: Oct 29, 2016 16:56 PM