Mainstream, VOL LIV No 27 New Delhi June 25, 2016
Common Civil Code
Sunday 26 June 2016, by
There is a good deal of misunderstanding about the subject itself, which is aggravated by the language of Article 44 of the Constitution. Most people believe that we do not have common civil laws in this country. The reality is, all civil laws are common, except one law, namely, the personal law which varies with the religious groups. The personal law relates to marriage, divorce, succession and inheritance, main-tenance, custody of children and adoption. By tradition, the personal law is treated as religious, though religion has nothing to do with it. It is interesting to note that the Hindus, who are clamouring for the common civil law, had themselves, led by the iconic leaders like B. G. Tilak, claimed that the Hindu personal law was a religious law and had warned the then British regime not to interfere with it, when the minimum marriageable age of the female was sought to be raised from 12 to 14 years by a bill tabled by Mr Vithalbhai Patel in the then Imperial Council. No wonder, therefore, that when a small section of Hindus—and of Hindus alone—is insisting today on a common civil code. that is, common personal law, the minorities, and particularly the Muslims, are raising the bogey of interference in their religious affairs.
It is therefore first necessary to correct or to read correctly, the language of Article 44, to mean that the direction is to secure a uniform “personal” law. Secondly, it must be borne in mind that Chapter IV of the Constitution, which contains Article 44, is a chapter on Directive Principles of the Constitution. There are other more vitally important and crucial Directive Principles contained in the Chapter which need to be implemented in the interests of all sections of the people and of the nation as a whole. But the Hindu fundamentalists do not even take cognisance of them.
The insistence of the Hindu bigots on uniform personal law is not borne out of any principles or values. This is not to deny the desirability of a uniform personal law consistent with human rights and the principles of equality, fairness and justice. In fact, these norms have to be observed in all human transactions in any civilised society. The question is of the appropriate method to be adopted for enacting the law. The subject being sensitive and almost certain to give opportunity to the religious diehards to raise communal controversies and create clashes, is it the proper time to secure such a law? What is the urgency of the law? Which national interests are in danger for want of the a law? Which aspect of progress or development is threatened, obstructed or impaired but for the law? Whose welfare is to be secured by the law?
Those clamouring for the law, are not concerned with the welfare of the minorities or any section of them. Their only concern is the permission given to Muslim men to marry four women by their personal law as practised in this country. They fear that on that account, the Muslim population in the country may soon outstrip the majority community. If therefore only that licence given to the Muslims is withdrawn, they will have no longer any interest in agitating for a common personal law. It is also on this account that they have started preaching that their Hindu brethren should have as many children as they can—a preaching which is contrary to the norm of two children laid down by the family planning programme of the national and State governments, from the inception. That also bares their hypocritical tears shed for the plight of Muslim women. In fact, one of their icons, Shri V. D. Savarkar, had advocated killing of Muslim women rather than men, since they give birth to Muslims. According to him, the killing of one Muslim woman was equivalent to the killing of ten Muslim men.
We may ponder the reality in this respect. First, the bugbear of more Muslim population on account of the licence to marry four women. The all-India statistics show that the percentage of Muslims marrying more than one woman is sharply dwindling throughout the country on account of various factors including poverty, spread of education both among men and women, increasing exposure to modern life-style, desire for improved standard of living, decreasing means of livelihood, unemployment etc. Secondly, the ratio of females to males born is the same for all communities in the country, and the said ratio shows 986 females to 1000 males. The Muslim females are not surplus that Muslim males may marry more than one woman. The Muslim females further have not remained as dumb as they might have been in the past. The Prophet had permitted men to marry more than one woman (but not more than four women) at that time, because on account of the constant internecine wars, the population of men had dwindled frightfully, and the number of widows and unmarried girls had risen abnormally. That later, even when the normalcy was restored, the selfish men continued to use the permission as a right is another thing. But even then who could afford the luxury of marrying more than one woman and which women would enter the wedlock knowing fully well that they had to contend with the co-wife or wives? The justification for permission to marry more women was that the unmarried girls and the widows should not be left to their fate. But do the Hindu bigots know or they conveniently forget that till the year 1955, the Hindus had a right to marry and many of them married, unlimited number of women, and not only four? The Hindu Marriage Act of 1955, which for the first time restricted the Hindu to marrying only one women, has even now, in some parts of the country not prevented polygamous marriages. Let us also remember that the illegitimate progeny of men, whichever the religion they may belong to, has been thriving all the same, and proportionately, of the Hindus more than of the others. The child marriages, the deserted and divorced women and the fatherless and abandoned children in all religious communities, and the prohibition of widow remarriage in vast sections of the Hindus even today, is the awesome baggage of human hardship that this country has to carry to date. What is the burden each religious community shares of this human misery? Does not the majority community share it more in proportion to its numbers?
The Hindu bigots’ logic in this respect is self-defeating. Assuming that all or some Muslims marry four, or more than one woman. If they were not to marry more than one woman, in any case the other women would be married to some other men. Would that prevent increase in the Muslim population? On the other hand, the increase would be more. More than one woman sharing the intimacy of one man, would certainly lead to less births than when each woman has a separate spouse. Does not the Muslim law therefore act in its own way as a measure of controlling the population? Not that the law intended to control the population as such or that it should be commended on that account. The question is posed only to expose the hollowness of the fear raised by the Hindu supermacist.
Coming now to the triple-talaq practised by the Muslims. There is no doubt that it is not consistent with either morality, rationality or human rights, and needs to be done away with as early as possible. It is also not sanctioned by the Quran. Many Muslim countries have modified the provisions of the personal law prohibiting bigamy and divorce by voice-talaq. No doubt the Muslim women also have a similar right which is known as khula. But it is accompanied by many restrictions, and in the patriarchal system, it is as good as ineffective. It is however not the plight of Muslim women, resultant on the exercise by men of their so-called right to triple-talaq, that pains the Hindu extremists agitating for the common personal law. They are least concerned with their misery. On the other hand, following the teachings of their mentor, they are their first target, since they give birth to Muslims. They are using the triple-talaq only as a ruse in support of their demand.
It further appears that they are under an impression that the uniform personal law means the Hindu personal law for all religious communities. There is no doubt that all personal laws have to be just and equitable to both men and women and hence the good from all personal laws has to be accepted and the bad to be discarded. Hence the uniform code, if and when enacted, will have to be a different one from the personal laws of all religious communities. It will have to be framed by consensus among all the religious groups and will have to conform to the norms of modern values of freedom, equality, rationality, justice and humanism, for both men and women. A deeper reading of all personal laws will reveal that each of them contains some good and equitable provisions, which are worth incorporating in an ideal code.
It is true that if a rational common personal law is enacted, it will help eradicate many evil, unjust and irrational practices prevalent across the communities, and will also strengthen the unity and integrity of the country. However, it is wrong to assume that the process of integration is thwarted for want of such a law. Such simplistic assumptions may be a good propaganda material in the hands of the fascist religious forces, but is a harmful method of achieving unity. Apart from being counter-productive, it may divert our attention from the crucial socio-economic and political causes which need to be attended to, to achieve the integration of the communities.
Justice Sawant, a former judge of the Supreme Court and an erstwhile Chairman of the Press Council of India, is currently based in Pune.