The Law Commission circulated a questionnaire on UCC to gather opinion from legal experts and the civil society about a common code of family law. The questionnaire is cursory, and with due respect, seems to have been developed to elicit responses in favor of UCC with no debate about the manner in which it is to be achieved and the actual implementation.
The Uniform Civil Code debate is complex because of its deep impact on the cultural, political and social roots of citizens.The point is that while UCC may be a useful and desirable end, the process towards it is fraught with inflammable issues such as identity politics and fundamental right to practice religion which includes the personal laws that define it.
While the surface argument is that a UCC is necessary to empower women socially and economically, the view has to be in the context of community, meaning thereby that it is for the women of each community to decide on the process of their empowerment, rather than have other communities judge their position with rhetoric arising from each feeling superior and consequently deriding the other. This device of deriding other communities has unfortunately been used/ misused to polarize the nation on communal lines to achieve electoral results that are not necessarily a true reflection of who would be in power if the communal agenda was not played as the trump. In this communally charged political context the timing of the UCC needs to be scrutinized with care and caution.
The questionnaire seems to be framed to elicit responses that will lead to the conclusion that UCC is a desirable end but a separate question on the triple talaq implies that the agenda to make triple talaq illegal is treated as an important milestone for the government. This is surely a misunderstanding because a thinking liberal government will know that the final goal is not to end triple talaq but to end patriarchy, and that women will be truly equal when patriarchy is dismantled. The focus on triple talaq in the present political climate tends to obfuscate the larger issue of a UCC that truly empowers women of all communities.
Many questions in the questionnaire circulated by the commission reiterate well settled propositions of law and besides being unnecessary are misleading. For example, questions about polygamy have been asked, encouraging and reiterating the refrain of the unfairness of the law in permitting Muslims to practice polygamy, while prohibiting men in most other communities from practicing it. The right to have four wives is treated as an integral part of Islamic personal law that the Prophet has pronounced upon with the caveat that they must be treated equally.
This complex issue needs to be looked at in the context of whether it is better for a Muslim man to marry four times, rather than a man of another community have several relationships outside of marriage and leave those women in extra-marital relationships without the protection of legal consequences associated with a marriage. While the right of women in a relationship in the nature of marriage is seemingly protected under the Protection of Women from Domestic Violence Act (PWDVA), there are too many loopholes for that protection to be truly secure.
A woman, for example, may be in a live in relationship with a married man, for the reason that the couple has a fundamental right to continue with their lives rather than waste their lives waiting for the legal system to dissolve a marriage in prolonged litigation around the fault theory and yet the Court has found that if she lives with a man knowing that he is married, protection may be denied to her.
Question 8 of the questionnaire again does not address the fundamental issue that law, while stating the constitutional ideal cannot be completely out of step with social realities. Thus, while women do have a right to property under the Hindu law, patriarchy is still perpetuated by men who hold 75% of the property in the country which they have the legal right to bequeath to their sons thus ensuring patrilineage. It is significant to note that in Islamic law, no person has the right to disinherit a legal heir under Sharia by device of will or gift. This raises the question of whether good practices from all personal law communities will be assimilated to form a UCC.
Keeping good practices in mind, it is important to note that classical Sharia law (unpolluted by patriarchy) is fairly egalitarian. For example, marriage is contractual and thus divorce is simple. Marriage contracts can negotiate alimony including Mehr thus ensuring a fair distribution of wealth between men and women. This is just one example and there are several others; such as dowry in Hindu law was supposed to be only for the benefit of women and it has become a social evil after patriarchy took away her control over it. Similarly, under classical Hindu law, rights of ownership over property were never absolute but variegated into types of ownership, ensuring a commonwealth for the security of the joint family.
Even in the process of moving towards a UCC, of which the Special Marriage Act is an example, the Hindus have retained a right to maintain a distinct identity by Sections 19 and 21: consequent to which, a Hindu is severed from the joint family once he/ she marries under the Special Marriage Act. This acts as a deterrent from moving away from the HUF idea.
The political bias of the proponents of the UCC becomes apparent from the nature of petitions that have been moved in the Supreme Court. A recent instance reveals the political bias favoring not only an anti minority position, but also anti-women. It reiterates that while Hindu women should have equal rights, the right to make a Will must also be protected, which simultaneously empowers a man to will his property to his sons, and takes away from a woman what it ostensibly gives her. It should be noted that a Will as a concept is alien to classical Hindu law and was brought in only to make palatable the Hindu Code Bill.
Another aspect of the problem of a discourse around the UCC is that the focus on laws of succession detracts from the right that a woman earns in marital property. Thus, there is no clear law on the matter of alimony except for a general vague principle of the lifestyle rule left to the discretion of judges who tend to exercise it colored by their own patriarchal socialization.