The Debate Continues

The Supreme Court has recently asked the Central government to come to a conclusion regarding framing and implementing the Uniform Civil Code. The actual issue is to keep prodding the government to ponder over it in the interest of national integration and gender parity

The future of the world lies evidently not in simplistic legal uniformity, but in considered, carefully weighed respect for diversity. Globalisation comes out prominently as localisation, creating new hybrid entities of ever-growing plurality. Therefore, we must learn to handle and understand more deeply how plural legal arrangements operate and what their potential is for making progressive improvements to human lives and sustainable development.”

Professor Werner Menski, a world renowned lecturer and advisor on ethnic minorities and the law, wrote these lines on legal pluralism for an article on the uniform civil code for the German Law Journal. And as the issue of implementing a Uniform Civil Code in India once again resurfaces, with the Supreme Court recently questioning the government, it would be prudent to keep Menski’s arguments in mind.

Ostensibly, the rationale given for the need for a uniform civil code includes, among other things, the undeniable requirement to protect the rights of women as well as to ensure that every citizen has access to a similar, equitable and benevolent system of law. Yet, a cursory look at the subtle - and not so subtle - engineering of the various personal laws reveals that this object has been achieved where desired and completely ignored when unwanted.

A glaring example of where this object of a protective and benevolent law has been expressly overlooked pertains to the issue of marital rape. In India, according to lawmakers, a woman who is married apparently loses her rights over her person and body.

So even though the legislators have ‘kindly allowed’ her some recourse under the Protection of Women from Domestic Violence Act, 2005, in case she gets beaten or is physically abused by her husband, in their infinite wisdom, they have decided that sexual abuse does not include marital rape.

The courts - and recently the Delhi High Court - have, in a series of judgments, ‘helpfully’ clarified that marital rape is not rape as per Indian law. And to add insult to injury, it has been declared that the rape of a woman past menopause is not rape.

Unless the woman is forced by her husband into acts of an ‘unnatural’ manner, such as proscribed by the Indian Penal Code (IPC), another gift from our erstwhile colonial overlords, she cannot claim protection under any law currently in force in the country.

In fact, though child marriage is outlawed in India amongst all communities, despite considerable opposition to legislation on a ‘personal law’ subject, the ‘husband’ of a woman less than 18 years cannot be prosecuted under rape laws, as under the existing legal provisions the offence is not considered rape unless she is less than 12 years of age! So, even though the girl may be underage, the marriage itself would not be legal as per the law and that the IPC recognises that rape may have been committed, the man shall not be prosecuted.

Considering such glaring anomalies, the obvious question that any right thinking person must then ask is: can a uniform civil code address such manifestly daft regressions existing within the Indian society and legislation? How does the institution of marriage suffer if a woman is given power over her body?

Another example of the blinkered attitude of our whole dialogue on personal laws is the law on bigamy. According to current law, Muslims in most states are allowed to have more than one wife but Hindu men are not. Hindu men nevertheless go right ahead and marry as many women as they please, as evidenced by cases that regularly come up even before the Supreme Court by women on the verge of destitution pleading for recourse to maintenance.

Whereas the court has agreed that this section of society is marginalised and social justice would only be achieved if the spirit of maintenance is recognised and a strict proof of marriage not required, there has been no move so far to re-examine this unjust state of affairs. Under the laws in force in the country the second wife of a non-Muslim bigamist is not recognised so she does not have any rights to property and her children are deemed to be illegitimate.

Therefore, even though the Hindu law is considered ‘reformed’, the rights of the Hindu second wife, who has knowingly or unknowingly married a man who has a subsisting marriage, are non-existent. She is rendered destitute and responsible for her child (presumably this hurts the man so much that he immediately changes his deviant ways and reforms himself!).

Would a uniform civil code then address such a situation, given that it surely could not uphold polygyny? Taking away the protection of the law available to Muslim second wives, thus rendering equality to communities would, in effect, render vast swathes of India unequal due to the existing gender realities.

Countries such as Germany and France - that have civil law jurisdictions - have had to take note of the religious aspects of persons when applying laws to them. So they start from a position of legal uniformity, but as a result of mass migration and increasing multi-culturalism they have had to become more conscious of legal pluralism.

The UK has become ever more aware of the need to take into consideration the requirements of personal laws when deciding matters that concern family, including property. Policy-makers in this jurisdiction have gone so far as to admit that parties in a dispute may draft orders in accordance with their personal laws and file this in a UK court for the judges to check if they are in consonance with statutory law.

An example of this is a case known as AI v MT [2013] EWHC 100 (Fam), wherein the English court endorsed the order of the Jewish religious court. Thus recognising that religion or community beliefs play a role in how persons wish to be governed and that ‘culture’ (and religion) cannot be wished or legislated away.

Bearing in mind these different aspects, today, the question we should be asking in our debates around the uniform civil code is not whether ridiculous, half-baked laws - some examples of which have been mentioned earlier - born of positivist urges should be uniformly applied. The actual issue is whether the tapestry of laws that necessity and reality have forced us to weave can be strengthened.

It is important to realise that this enforced multi-view approach is something to be proud of and upheld as a living symbol of diversity. Thus allowing for recognition of multi-cultural realities without imposing top-down statute law on a population that has patiently accepted both reform to their personal law systems as well as clear counter intuitive legislation.

By:Lavanya Regunathan Fischer