In a landmark case nearly 128 years ago, Rukhmabai, all of 25 then, told a British India court that she would suffer imprisonment rather than choose to cohabit with her husband. Rukhmabai was married when she was just 11. She was perhaps the first Hindu woman to have challenged the notion of marriage as a sacred institution, as opposed to the modern concept of two consenting individuals deciding to stay together. Implicit in her defiance was the idea that the consent of the bride was equally necessary.
It took 68 years for our society, not without a fair share of drama, to finally accept that Rukhmabai made a valid point by her act of defiance. The Hindu Marriage Act, passed in 1955, recognised the need for consent of both the parties as the binding principle in a conjugal relationship.
Seven decades later and after several feeble attempts, we are back to debating what should have been settled long ago. In fact, during the Constituent Assembly debate, stalwarts like B R Ambedkar wanted to settle the issue once and for all. Since the debate on Uniform Civil Code (UCC) started in the Constituent Assembly following the traumatic Partition, members decided to put UCC as part of the Directive Principles.
Multiple Codes Can Co-Exist
- Coercive change is not required if we are serious about bringing personal laws of various communities in line with modern jurisprudence
- At the same time, we cannot allow the principle of gender justice compromised in the name of personal laws
- The Goa model, a common civil code for all communities cannot be extended to other parts of the country, given the sensibilities attached
- No need to integrate various codes of religion into one single code, there can be multiple codes in line with contemporary thinking
Ambedkar Wanted Secular Laws To Prevail
But Ambedkar’s contempt for personal laws are well known. He observed that “the religious conceptions of this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved I am sure about it that in personal matters we will come to a standstill.” Ambedkar was wedded to the principle of social justice and he wanted all laws, civil or criminal, to reflect that even if it meant enforcing change from above.
The situation has changed since the Constituent Assembly deliberated on the issue. Coercive change, however, is neither desirable nor required now if we are serious about bringing personal laws of various communities in line with modern jurisprudence. But we cannot allow the principle of gender justice, among others, to be compromised in the name of personal laws. How should we go about the task of having a Uniform Civil Code?
The Goa Model
One of the options is to follow the Goa model. Goa has a common civil code for all communities and it has found general acceptance. Peter Ronald de Souza of the Centre for the Study of Developing Societies writes in the November 28 issue of the Economic and Political Weekly that “in the Goa civil code, all areas of civil law, such as civil capacity, citizenship, contracts, succession, matrimony, property, etc are interwoven together.”
It mandates registration of marriage and equal treatment is given to sons and daughters in terms of inheritance of property. He adds that “in the civil code in Goa, the state undertakes the obligation to extend protection since the marriage is registered and all transactions such as wills, etc, also have to be registered. These aspects of the common civil law are an advance over many of the other personal laws prevalent in India, especially when seen from the viewpoint of gender justice.”
Can the Goa model be extended to other parts of the country? Not possible, given the sensibilities attached. What is required is a model that seeks to celebrate our diversities. It should by no means be seen as an attempt to destroy cultural pluralism.
Legal Pluralism Needs To Be Given Primacy
How do we do that? It can be achieved by changing the terms of the debate. Let us remember that pursuit of a uniform civil code is not a Hindus versus Muslims issue. It is a debate about legal uniformity versus legal pluralism. But neither legal uniformity nor legal pluralism are ends in themselves. They are means to attain gender justice, a fair inheritance system and a non-discriminatory family. We should have a civil code that protects individuals from the diktats of khap panchayats. It should ensure that divorced women get fair maintenance. That women are protected from bigamy. That the abhorrent practice of female infanticide does not take place. That society is free of domestic violence.
If legal pluralism is required to attain these goals, so be it. Let there be a Muslim Personal Law or a Hindu Personal Law. Let Scheduled Tribes have their own version of the civil code. And make all of them compatible with the broad principles of individual liberties and social justice. Subject them to the crucial test of gender justice.
In order to achieve all this we have to begin by reforming the personal laws of different communities. There is no need to integrate all of them into one single code. Let there be multiple codes and bring them in line with contemporary thought on marriage, family, inheritance and whatever else that falls under the domain of personal law. Such an approach will be non-threatening and therefore easy to implement.
(This article was first published on 14 October 2016. It is being reposted from The Quint’s archives to mark the Supreme Court’s verdict, on 22 August 2017, that declared triple talaq ‘unconstitutional’.)
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