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Women don't need a uniform civil code, but better access to courts: Flavia Agnes

Praneta Jha | Updated on: 10 February 2017, 1:46 IST

The Uniform Civil Code (UCC) debate has the whole country divided. While most are enraged by the questionnaire sent out by Law Commision of India, others have added their bits to the discussion by saying that the country is not ready for a UCC keeping the current socio-political situation in mind.

Catch spoke to lawyers, activists, academics and feminists to bring you an informed perspective on the UCC. After speaking to Professor Mary John from Centre for Women's Development Studies, Delhi, we speak to Flavia Agnes to take the debate forward.

Flavia Agnes is an eminent lawyer, who has worked extensively on women's rights and law reforms. She is the co-founder of reputed feminist organisation Majlis, a legal and cultural resource centre for women. Agnes is among the pioneers of the women's movement in India.

Here are excerpts from the chat:

The personal laws of all religions are discriminatory towards women. Do you think, in principle, a UCC is a good idea to address this problem?

Flavia Agnes (FA): All personal laws are gender unjust, but they are not gender unjust in the same way.

For instance, among certain Hindus communities, the marriage rituals include kanyadaan where the daughter is "given away" as though she is a commodity, and girls are considered as paraya dhan (someone else's wealth) and once married, are considered as outsiders. This is one of the essential marriage rituals under Section 7 of the Hindu Marriage Act.

Women are made to give dowry, indicating their subordinate status, and then harassed for more dowry, despite a law prohibiting this practice. Since marriage is considered a sacrament in Hinduism, there is a stigma regarding divorce and women prefer to stay on in an unhappy or a violent marriage rather than be known as a divorcee.

There is no clear proof of a Hindu marriage and a man in multiple relationships can easily wriggle out of his obligations to the woman with whom he has cohabited with. When the husband claims a prior marriage, the woman is termed as a "mistress" even by the judges.

Falvia Agnes: There is no 'proof' in Hindu marriage & a man can easily wriggle out of obligations

In contrast, a Muslim marriage is a contract and conditions can be incorporated into the contract to protect women. 'Mehr', which must be stipulated by the husband as a future security for the wife, is more advantageous to women than the dowry system.

Among Christians, divorce was difficult and mutual consent was not a ground till 2001, whereas Muslim law, since its inception, advocates negotiations and arbitration prior to divorce and a divorce with consent was accepted.

These are just a few examples. Each of them needs reform, but it cannot be done through a uniform law.

What are the concerns and complications that arise when it comes to actually framing a UCC?

FA: Currrently, the debate is only focussed on the discrimination within Muslim law which was considered to be progressive at the time of Independence when the debate around codification of Hindu law was going on.

We need to broaden the debate and examine the cultural and legal discrimination within different cultures and communities. That is the first step.

Muslim feminist groups such as Bharatiya Muslim Mahila Andolan (BMMA) have been demanding a ban on practices like the triple talaq and polygamy, but they are asking for a change within the framework of Islam. BMMA demands codification of the Muslim personal laws, and has even prepared a draft Muslim family law for marriage, divorce and maintenance. Why have voices like theirs been ignored?

FA: BMMA has been demanding a ban on practices that have already been invalidated by the Supreme Court.

For instance, in the Shamim Ara judgement in 2002, the Supreme Court held that arbitrary oral talaq or a talaqnama sent by post is not valid and arbitration prior to divorce is essential. The practice of 'nikah halala' (whereby a woman wanting to remarry her divorced husband must first marry and divorce another man) that is associated with oral arbitrary triple talaq has also been rendered redundant.

Instead of using this judgement and empowering women and helping them to access the law, BMMA is set on a confrontational path. Instead of negotiations within the community, they approached the prime minister asking him to ban the practice of triple talaq and for enforcing their code. "Banning" means criminalisation and many Muslims opposed this move.

Later, in the Shayara Bano case, they again demanded the invalidation of a practice that has already been invalidated.

Many progressive Muslims who are opposed to the stand adopted by the Board were not happy with the approach adopted by the BMMA as they felt that this would unnecessarily polarise the issue and should be best avoided.

The current debate about the UCC in the mainstream media seems to be revolving largely around Muslim personal laws. But is the Hindu code actually all that progressive?

FA: When we look around we can see how Hindu women suffer, the violence they experience and the humiliation they have to endure. But this is seldom termed as "Hindu" and is couched in general terms as "women's issues".

I already discussed dowry and dowry-related violence in the first question. However, there are several other derogatory practices. Let us take the issue of caste-based violence -

A Hindu girl can be killed by her own parents for transgressing the caste boundaries and eloping with a boy of a lower caste. We saw this in the recent Marathi movie Sairat. At another level, sapinda and sagotra marriages are prohibited, and in many communities a girl who contracts such a marriage is killed or humiliated and her partner is killed.

Recent statistics on child marriage revealed that 12 million girls are married below the age of 10 years and 86% of these are Hindus.

What do these figures tell us?

Similarly, if we examine suicides among married women you will find that a large number are Hindus. Take another example of the latest Supreme Court judgement where a husband was granted divorce on the ground that the wife refused to let him stay with his parents.

The notion of "joint family" and "joint family property" is a Hindu notion. Such a judgement would not have been delivered if the woman was from another community. But we don't term it as an anti-women "Hindu" cultural norm.

The notion of the "Hindu Undivided Family" (HUF) property is retained so that Hindus can get tax benefits. This would have to be abolished if a UCC is enacted.

Flavia Agnes: Atrocities Hindu women face are seen as 'women's issues' not 'Hindu issues'

There is a fear among Muslims that the BJP wants to enforce Hindu hegemony by standing on the plank of gender justice and that the UCC could simply be a version of the Hindu law (considered relatively progressive). How valid are such fears?

FA: Their fears are absolutely valid. We can arrive at this conclusion after examining the questionnaire circulated by the Law Commission where there is hardly any mention of the issue of denial of rights to the Hindu second wife, or any mention of all the derogative practices in the Hindu law. So Muslims feel this is a sham exercise to deprive them of their religious and cultural identity.

Muslims consider their marriage laws to be far superior to Hindu laws that are based on the concept of a sacrament.

To begin with, the Muslim law was contractual and this notion then spread to Europe, England and then entered the Hindu law. Consent of the wife is essential for marriage. Even today, there is no provision for the woman to consent within the Hindu marriage ceremony. What we have is homa, saptapadi and kanyadaan, where the woman's agency is not recognised.

But today, their law is seen as anti-women due to the un-Quranic distortions that have crept into it and their laws are considered as regressive.

Now the UCC is being used as a stick to beat them with and to deny them their Muslim identity which is being opposed by many Muslim organisations.

Do you think the rhetoric of gender equality, especially with respect to the oral divorce, is being used to rouse public sympathy and gloss over other concerns? Will a UCC actually benefit women at all?

FA: I doubt whether a UCC will actually benefit Muslim women. It may even rob them of their traditional security. We can see around us whether Hindu law can be a model of reform. See the desertion among Hindus, see polygamy, see dowry-related violence and dowry deaths. Regarding the extent of desertion of women, we need not go very far.

The prime minister is now claiming to liberate Muslim women of discriminatory practices is a glaring example, yet this seldom comes into discussion.

Recently, the All India Muslim Personal Law Board (AIMPLB), while opposing the prospect of the UCC, made statements such as that the triple talaq is not really problematic. Do you think this hurts the cause of Muslim women?

FA: This is too complicated a question. One needs to have a practical experience of how the law works within communities. The issue is exaggerated and remedies within the Muslim law are not explored.

Islam believes in quick divorce and that divorce proceedings should not drag on indefinitely like the way it is being done in our courts under the legal system incorporated from the British, where the parties incur hefty legal fees.

In Muslim law, when there is dispute, it is necessary to appoint arbitrators one from each side and sought out differences and reconcile the marriage. Only when differences are not sorted out, final talaq has to be pronounced after three months of waiting period called Iddat.

Before pronouncing talaq, the wife's belongings and mehr, valuables, etc. must be returned, she must be paid maintenance for the iddat period and also a fair and reasonable settlement for the future. This right has been upheld by the Danial Latifi ruling in 2001.

After arbitration, when the divorce is pronounced by the husband we cannot name it as "arbitrary" triple talaq. There is also the concept of "mubarah" where parties agree to mutally part ways.

But all these diverse practices today are swept away in the current wave of highlighting only instant and unilateral triple talaq. At times, when women who have undergone extreme domestic violence receive talaqnama, it comes as a respite, and women are then free to claim their rights under the Muslim law.

What do you think of the contents of the Law Commission's questionnaire on the UCC?

FA: The questionnaire circulated by LC deals with issues only superficially. It is framed in such a way that only gender discrimination in minority laws is foregrounded but very little is stated about the discriminatory laws and practices among Hindus. Due to this the issue got polarised.

Say, if we were to go ahead with a UCC, what should be the ideal way to go about formulating it?

FA: It is best to avoid a confrontational approach and work towards a consensus which would be far more beneficial for women across communities. We need greater dialogue between the government and the minorities.

All said and done, what is the recourse left to Muslim women, who suffer from regressive religious laws at the end of the day?

FA: Please read my article published in Economic & Political Weekly, where I have said precisely this that the media has unnecessarily and sensationally foregrounded the victimhood of a Muslim woman.

The manner in which the domestic violence that Shayara Bano suffered was played up by the media is a glaring example. Thousands of Hindu women suffer in the same way, which the media ignores. It is the Muslim-ness they were highlighting and not the domestic violence.

Flavia Agnes: In Shayara Bano's case the media highlighted the 'Muslim-ness' & not the violence

I must pause here and explain the rights which were available to Shayara Bano, which are not very different from the rights to which a Hindu woman is entitled to - invalidating triple talaq using the Supreme Court ruling in Shamim Ara case in 2001, approaching the court under the Domestic Violence Act to secure her rights and in case she wished to accept the talaq - then she could have claimed her economic rights post-divorce. But for this, she needs a good lawyer at the local level and not a lawyer in the Supreme Court.

Since a large part of the domain covered by the personal laws involve women, do you think women should be given more agency in the matter? And how?

FA: What we need is not a UCC but greater access to courts under existing laws for all women, not just Muslim women.

All women have sufficient laws to protect them. What they lack is the means to access the courts. In our country, poor women do not have access to courts, it is expensive and lawyers can be exploitative.

Women will be able to secure their rights under existing laws when they receive good legal advice and lawyers who will help them access courts and when courts function in an effective manner and state legal aid functions in an efficient manner.

What could be a more inter-sectional approach to the concerns regarding gender, religion and even class, all of which are implicated in this issue?

FA: I am glad you brought class into this discussion, which is most important. It is the poor women in our country across religions who suffer due to non-access to courts and do not get adequate legal representation. Rather than a UCC, the government must work to strengthen this.

Edited by Jhinuk Sen

Also read: What exactly is the Uniform Civil Code in India? Here's your guide

Also read: Uniform Civil Code is impractical; can't implement personal law to govern lives of people: Veerappa Moily

Also read: Uniform Civil Code: India's coercive search for a common code

First published: 22 October 2016, 9:32 IST