At city’s inaugural iwespeak, prominent divorce lawyer argues against bringing religion-based norms under a common law.
Mumbai: On the Devon coast, in the south of England, sits a small village called Clovelly. It has less than a hundred buildings and fewer than 500 residents, and has been privately owned for around 800 years.
Once a fishing village, it is now primarily a tourist attraction, which visitors pay to enter. John Rous, current lord of the manor, in effect if not in title, has his work cut out for him keeping the family estate in good repair while also retaining its character and tradition.
His wife, Zeenat Rous, has played a part in putting Clovelly on the map too. She founded the Clovelly Lectures, a series which brings in policy makers and leaders to address an audience (who pay for the privilege). She likes to describe the series as ‘a soft backdrop for hard questions.’ The lectures have since expanded into a set of Clovelly Talks in London, and Land Talks. And Ms. Rous has just launched iwespeak (pronounced ‘I We Speak’) in India, which she hopes will be a space for discussion that informs choices.
The inaugural lecture in Mumbai over the weekend, in Monica Chudasama Vaziralli’s penthouse apartment overlooking the CSM museum, saw 50 or so city luminaries who began drifting in fashionably late and impeccably turned out.
Malavika Rajkotia, Delhi-based lawyer and founder of Rajkotia Associates, who has a reputation as a very successful divorce lawyer, and has written Intimacy Undone: Law of Marriage, Divorce and Family in India, spoke on the state of the Indian marriage, with specific reference to the ongoing debate on whether the country needs a uniform civil code (UCC).
Relation politics
Marriage and a UCC, Ms. Rajkotia began, are linked only at the level of politics. Marriage, she says is a right, but divorce is not, because we in India subscribe to the fault theory — that there should be some fault with one of the partners — and India has among the lowest rates of divorce in the world, but it’s a number which is growing exponentially. Gender is the stress, she said, and changing gender equations, women becoming more empowered and breaking traditional stereotypes, that conflict leads to marriages collapsing. One spouse — and it could be either one — has an expectation of the traditional gender stereotype. Divorce is highest, she said, in the upper middle class and middle class, people in their 30s and 40s coming to terms with the gender stereotypical expectations; post the 50s, when children have grown up and settled, is another set, with people re-evaluating their lives. She conceded that all these were more the affluent, and therefore a small segment of society.
On a UCC, Ms. Rajkotia said, “The easiest thing would be to say that of course it is a marvellous idea,” with everyone having the same rights — regardless of community — with regard to property, alimony and so on. Separate the spiritual, the rituals, the religious aspect, from the secular, and what you are left with is the laws relating to inheritance, succession and so on, which has nothing to do with religion. But that, she said, is a “surface answer.”
A UCC, Ms. Rajkotia believes, is not a good idea, and certainly not at the moment, for two reasons (which she emphasised, are broad, with many nuances to consider). One is that with the present dispensation, “when an UCC is discussed, it should not be a Hindu civil code”; we are a democracy, and should not be a ‘majoritarianocracy.’ The other reason is a response to a feminist perspective — that all personal law is unfair to women, and a UCC would redress that — which is that just as Hindu reform has happened over a period of time, the movement has to be organic, from within each community, for gender equality in each community.
Ms. Rajkotia’s position is: “It would be a shame to give up on the intuitive pluralism and inclusiveness practised in the subcontinent” for a legislation that would not have deep consequences on prevailing customs. All communities must have better rights for women, she said, but those rights should be defined within their own cultural parameters. The Islamic tradition is that marriage is a contract (which is why divorce is easy) and the Hindu stance is that it is sacred: the first step towards a UCC would be to decide which stance to adopt. She noted here that the debate is usually in terms of Islamic versus Hindu law, which us a pity, because, as a society, from prehistoric times, the beauty is that the oldest texts were not religious, or discussions about god: they were philosophical, a living ethic, which could include questioning and dissent. Before Islam and Christianity became factors in the subcontinent, there were competing schools of thought, some of which were atheist in nature.
Citing writing from the Vedas and from ancient texts to say that the subcontinent has always done ‘light governance’ well and that there was freedom of belief and practice, and some caste mobility, she then went on to speak of some ossification, of patriarchal practices settling in. A UCC makes governance easy, she said, but that in our times, “it’s not our job to make governance easy for the state”; it is their job to ensure that individuals can fully realise themselves within their own cultural and intellectual parameters.
Raj legacy
Ms. Rajkotia then stepped back into history to buttress her argument. “The trouble began in 1857,” she said. Prior to that, the British did set up common commercial courts, but did not set up common personal law courts. Under Queen Victoria’s proclamation, there was a resolve to not enter into personal law and religion. It is pertinent to note that Indian women did have rights, in Hinduism for centuries before, and in Islam when it made its entry into the subcontinent, at a time when women in Britain women had none.
The officers of the Raj, when talking to village leaders and so on to codify laws of property and the like, she says, did not speak to women at all, “perhaps due to purdah, perhaps due to the sahib’s inability to comprehend that ‘native’ women had far better rights than the memsahib did; but this writing down marks the end of the existence of the rights of the Indian woman.” Such reform as did follow was after her rights had been stamped out. During the Raj, the British — unlike previous invaders who had become part of India and invested in the land — were the rulers from afar, who ruled for the benefit of commercial investors back home. They were The Other, and they needed to divide those whom they ruled, and create another Other. They cobbled together competing ideologies — Vedic, Buddhist, Jain and many others — and called them what they didn’t call themselves: Hindu. And The Other, then, became Muslims, who had been living in the region for centuries in a coexistence referred to as the Ganga-Jamuni tehzeeb or culture. This divide and rule strategy, she says, was for ease of governance, and why she believes that it is essential to present day India to not contribute to such expedient measures for ease of governance.
Socialist and communist states have ease of governance in this kind of matter, she said, but democracy is not ‘easy’ to do.“Ease of governance must not come through homogenisation, but by focussing on ethics, where one is not ashamed of one’s history. The current dispensation needs to say that when they talk Hindutva, it is actually a Hindutva of inclusiveness, that vasudhaiva kutumbakam [the Sanskrit phrase which translates to ‘the world is one family’] means unity in diversity.” That, she says, is the philosophical response to why a UCC is not a good idea. Practically, the movement towards better rights for women and other matters are an evolving process, “and we might well get there, but that’s another point.”
The spirited discussion that followed, had many contradicting specifics of Ms. Rajkotia’s lecture, but was marked by civility and a willingness to hear out other points of view, a spirit frequently missing from public discourse in India. Initiatives like iwespeak may speak to only a few — and their challenge is in widening their audience —but they can fill a space that needs to be filled.
