Women & the uniform civil code

The October 16 judgement of a two-judge bench of the Supreme Court, on a bunch of petitions in respect of whether the amendment of 2005 to the Hindu Succession Act (The Amendment Act) is prospective or retrospective, gave a renewed call for a Uniform Civil Code (UCC) in the context of discriminatory Muslim personal laws, on the ground that they violate the fundamental rights of Muslim women by permitting triple talaq and polygamy.

No one could be faulted for assuming that the issue before the Supreme Court was violation of the rights of Muslim women. On the contrary, the comments were made in a case filed by the Hindu woman to claim her due share in her father’s property.

In 1992, Phulwati had filed a partition suit, claiming an equal share in her father’s property, but she was awarded a measly 1/28th share by the district court at Belgaum, limiting her right only to her father’s own share of the joint property. In contrast, the male heirs were not just given shares in the joint family property equal to that of the father as they too were coparceneres (joint holders), but also additionally, a share in the father’s separate share of the joint property, as his legal heirs.

Finding this decision grossly unjust, Phulwati had filed an appeal and the Karnataka High Court in 2011 upheld her claim, specially in the context of the amendment to the Hindu Succession Act in 2005, which finally awarded daughters an equal share in family property as coparceners, and gave her 1/7th share in her father’s property — a share equal to the male heirs.

The High Court based its decision on the proviso which stipulated that the amended law would be applicable if the property had not been partitioned at the time of the amendment or if there was a dispute pending before any court at the time of the amend-ment. But the apex court reversed the judgement of the Karnataka High Court.

A reading of the Supreme Court judgement makes it amply clear that gender discrimination prevailed within the Hindu Succession Act, enacted in 1956, several years after the Constitution which prohibited gender based discrimination. The amendment in 2005 was meant to bring in greater equality between the male and female heirs of a Hindu male. Despite the amendment, the ground reality has not changed and daughters are routinely made to sign off their share at the time of their marriage in favour of their brothers, on the premise that the parents have already spent a large amount on the marriage of the daughter.

This only goes to prove that we are driven more by customs and traditions despite changes in statutory laws. There are very few women like Phulwati who stake their claim and engage in long-drawn litigation to secure their rights. Sadly, the decision of the Supreme Court came as a dampener to the spirit of such women. One would presume that the Supreme Court would comment on the glaring disparity which prevails under the Hindu Undivided Family (HUF) property rules where daughters are routinely denied a share since this issue was directly before the court. A court concerned with equality before law would also comment on the fact that HUF grants an unfair advantage to Hindus by way of tax exemptions as compared to those governed by the more egalitarian Indian Succession Act.

Instead, the apex court took a populist stand and played to the gallery by once again raising the demand for Uniform Civil Code in the context of Muslim Personal Law as had been done in the earlier rulings of the apex court, including the Sarla Mudgal case in 1995 where the issue before the court was Hindu polygamy. Instead of choosing to secure the rights of Hindu women trapped within such relationships, the apex court had given a call for the enactment of UCC in the context of Muslim polygamy.

The enactment of the UCC has been an important political plank for the NDA — it was one of the key issues in its election manifesto. But during the five years in power, during the Vajpayee government, it did not broach this subject. This time the response of the government has been more restrained despite the fact that the ruling NDA has a majority in the Lok Sabha.

This is because the issue at hand is far more complex than what meets the eye. It is one thing to raise the demand as a stick to beat the Muslim minority with, in the context of Muslim polygamy and triple talaq in a clichéd manner, it is an entirely different ballgame to get down to the brass tracks and draft a uniform family law applicable to all Indians, ignoring all stipulations under all religions.

After the electoral bashing in Bihar, in the wake of the beef controversy and the lynching at Dadri and the flak it received for the climate of religious intolerance from writers, scientists and filmmakers, UCC would perhaps be the last thing the present government would wish to tackle at this stage. The government is well aware that any change in the Muslim Personal Laws would not be possible without entering into a dialogue with the Muslim religious leadership and this is the most inopportune moment for such a dialogue.

The writer is a women’s rights lawyer