Modi government’s plan to bring about a Uniform Civil Code receives flak    

The Narendra Modi government has announced a plan to bring about a Uniform Civil Code (UCC) in India to do away with a multiplicity of marriage, divorce and inheritance laws varying from community to community and region to region. But this has run into rough weather in all quarters, especially the minority Muslims.

The ruling Bharatiya Janata Party (BJP) sees the UCC as a unifying instrument that is also entirely in accordance with the Directive Principles of State Policy contained in the Indian Constitution. But the opposition feels that it is a futile and politically motivated venture which will destroy communal harmony and adversely affect India’s economic growth trajectory.

The opposition, both political and societal, points out that it is impossible to draft a UCC given India’s great diversity in cultural, social and religious terms. The opposition points out that it is in view of this difficulty that the makers of the Indian Constitution had put the UCC in the Directive Principles of State Policy and not made it a justiciable statute.

The most worried and vocal opponents are the 200 million Muslims who have been resisting any change in their personal laws. Muslim religious and secular leaders equate any change in their personal laws with a change in their religious laws, the Shariah. Hence the extreme sensitivity.

The Muslim Personal Law Board had even opposed the abolition of the system of divorcing a woman by uttering “talaq” three times. The Modi government nevertheless abolished “triple talaq” to “render justice to Muslim women”.

Few Indian Muslims would know that their Personal Law was a creation of the British Indian government in 1937. It is a man-made law that could be changed for the betterment of society if need be.

Be that as it may, the real issue with the UCC is not Muslim opposition, but the impossibility of framing a single socio-cultural code for a very diverse India. The framers of the constitution were aware of this, which is why they said that the State shall “endeavour” to bring about a UCC. Not surprisingly, UCC has eluded lawmakers for the past 73 years.

As a matter of fact, all communities, the majority of Hindus included, have problems with the UCC. The Hindus, especially, are very heterogeneous in social, cultural and linguistic terms. They are divided into castes and sub-castes, each with its own customs and mores. Inter-caste and inter-religious marriages are rare.

The Constitution recognizes this. Article 13 of the Constitution, says that the term “law” includes “customs” and “usages”.

To give an idea of diversity, among North Indian Hindus, marrying a first cousin or a maternal uncle would be incestuous but among the Tamils, it is preferred. Among the Pahadis of the North, a man’s wife is shared with his brothers in case he is employed away from his village. Among the Nayars of Kerala, descent and property are handed down the female line, not the fathers.

The other problem is that the BJP government has not indicated the contours of the UCC it has in mind. All that is known is that Prime Minister Modi has said that he will introduce the UCC in parliament and that he has appointed a fresh Law Commission (the 22 nd.,) to draft one. The 21 st., Commission had said in 2018 that UCC was “neither necessary nor desirable.”

One of the notable elements in the debate on the UCC is the proposal’s apparent link to electoral politics. India is to have State Legislature elections in Madhya Pradesh, Chattisgarh and Rajasthan, and the all-important parliamentary elections between now and May 2024.

The Hindu-nationalist BJP is believed to be wanting to garner Hindu votes by promising a UCC which is seen as a way of exposing and isolating the Muslims. The BJP is clothing its electoral ploy by portraying the UCC as a unifying project. But the opposition sees it as a communally divisive project.

Muslim intellectuals like Prof.Faizan Mustafa of Aligarh Muslim University believe that the government will not be able to draft an implementable UCC and that the proposal is only an expedient to capture the Hindu vote that will be shelved after winning the elections.

But others like Prof.Muqtedar Khan of Delaware University fear that it will shortsightedly widen the Hindu-Muslim cleavage, eventually derailing India’s plans to become a major economic power.

However, both Mustafa and Khan see the need for reform of Muslim Personal Law. But they want it to come from the Muslim community itself. Both also recommend step-by-step piecemeal reform.

In fact, the 21st. Law Commission of 2018 recommended precisely this. But the government rejected its recommendations. It suggested that the Hindu Marriage Act, 1978, allow divorce “in a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a façade remains.” As regards maintenance after divorce, it is recommended that the divorced wife should get an equal share in property or income gained after marriage.

Illnesses that could be cured or controlled with adequate medical treatment or counselling, could not be grounds of divorce, it said. Children born out of wedlock should be entitled to a share of the property. The term ‘illegitimate’ should not be used in any statute or document.

As regards age of consent for marriage, it held that the current stipulation that 18 should be the age of consent for girls and 21 for boys “contributes to the stereotype that wives must be younger than their husbands. ” This distinction must be abolished, the commission said.

Muslim Law:

As regards Muslim law reforms, the commission avoided going into details of polygamy, ‘nikah halal (serial marriage and divorce) and adultery because they were sub judice. However, it states that The Dissolution of Muslim Marriage Act, 1939 should be amended to contain ‘adultery’ as a ground for divorce and should be available to both men and women.

The Nikahnama should make it clear that polygamy is a criminal offence. It should be so in the case of all communities. The paper suggested the formulation of a complete code, i.e., a Muslim Code of Inheritance and Succession, applicable to all Muslim sects.

As regards the Special Marriage Act, it said that the 30-day notice period for registration of marriage was too long, as it was being misused to discourage inter-caste or inter-religious marriage.

It recommended amendment of Section 6 (a) (natural guardians of a Hindu minor) of the Hindu Minority and Guardianship Act, 1956, to substitute the term “parents”, for “father” or “mother”, in order to leave no room for the interpretation of the law in a manner that it gave a preferential right to one parent over the other.

In the case of Muslim law, in the absence of a clear codified law on the custody of children, the principle of the “best interests of the child” should continue to be of paramount consideration.

In the Juvenile Justice (Care and Protection of Children) Act, 2015, the use of the term ‘parents’ should be used in place of ‘mother and father’ in the adoption provisions under the Act, to enable individuals of all gender identities to avail of the Act.

It also recommends that the word ‘child’ replace ‘son’ and ‘daughter’ so as to ensure that ‘intersex’ children are not excluded from being adopted.

 “The current law, even after the amendments under the Act 2015, does not permit a male adult to adopt a female child. The gender of the parent or the child should not matter”, the commission said.

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