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Tuesday, July 10, 2018


(First Published on Volume 01 Issue 03, November 2016) 
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Maintenance: Under Indian law, the right to maintenance is civil in nature but it is also placed under the criminal code and can be pursued therein. Under Hindu law, a wife has a right to be maintained during her lifetime as per the provisions of the Hindu Adoptions and Maintenance Act, 1956. In what can be called an attempt to reinforce the conservative idea of a Hindu wife, an “unchaste” wife is not entitled to separate residence and maintenance.
As far as Muslim law is concerned, many interpretations of the shari’a do not grant divorced women a right to maintenance from their former husband’s beyond the three-month waiting period following the divorce, called the iddat period. In India, the Dissolution of Muslim Marriages Act, 1939 denies divorced Muslim women the right to claim maintenance. In the famous Shah Bano judgment1, the judiciary attempted to get rid of this anomaly by explicitly bringing such Muslim women under the purview of the secular Code of Criminal Procedure, 1973 (wherein a wife is entitled to claim maintenance against the husband on the ground of the husband’s neglect or refusal to maintain her). Shah Bano case was a classic conflict situation between the secular criminal code and religious personal law. In this case, an old Muslim woman had been divorced by her husband who invoked the Muslim personal law to deny maintenance to his wife. The Supreme Court, however, applied and interpreted the secular law, the Criminal Procedure Code, to grant maintenance. Though the judiciary is to be commended for giving a humane and holistic meaning while applying the relevant provisions, the judgment is often criticized for entering into a discourse of the Quran, taking pains to explain that the secular law was not in conflict with the Quran and in the process, sidelining the constitutional question of examining the personal law of husband on the anvil of equality and deciding the dispute as an equality issue. The deliberate use of Quran and the endeavors to interpret it in a particular manner evoked the wrath of the Muslim conservatives, who stressed community fears of the loss of freedom of religious practice. Finally, the Government, yielded to pressure from the orthodox members of the Muslim community and, without any consultation, passed the Muslim Women’s Act, 1986, in spite of protest from progressive Muslims and feminists. This Act ostensible protects women but in reality protects the husband by not requiring him to pay maintenance. It is highly discriminatory towards Muslim women in that they are now precluded from the purview of S.125 of the Criminal Procedure Code which had originally protected Shah Bano. Specific requirements of the new Act also make it much more likely that a Muslim woman will be required to conduct a court case in order to obtain any maintenance at all. Thus, although the Act nowhere stipulates this, the rights available to the Muslim women at the time of enactment of this Act were abrogated. By indulging in votebank politics, the government of the day hastily drafted this piece of legislation so as to confirm to the conservative and traditional view of the Muslim law governing ‘maintenance’ of divorced women.

Inheritance: Under the Hindu law, the Mitakshara branch of law that primarily governs succession amongst Hindus in the country denied to a Hindu daughter a right by birth in the joint family estate and this flowed logically from the fact that her place in the paternal family was only temporary as she was belonged to her husband’s family on marriage. Modern day amendments to Hindu law of succession gave Hindu widows the right of succession her husband’s estate. Till recently, Hindu law was still discriminatory in that the Hindu Succession Act, 1956 excluded the daughter from coparcenary ownership of ancestral property. In 2005 the Parliament, by an amendment, took a radical but much-awaited step towards ensuring equality between Hindu men and women as far as succession is concerned, and conferred upon daughters the status of coparceners in the family of their birth, thereby bringing an end to the centuries-old rules of Hindu inheritance that have lost their relevance and justifications. Though the full extent of implications of this amendment are yet to be observed, it is nonetheless a commendable and desired step in the effort to check in-built biases against women in personal laws of this country. More importantly, this radical amendment was brought by the Parliament without facing any resistance or impediment on the part of the Hindu community. Islamic law prescribes, in almost all instances, that a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased. This aspect of Islamic rules is most vehemently criticized for its discrimination against women, as it is a manifest sample of unequal treatment. 

Guardianship and Adoption: A mother has been assigned a statutorily subservient position in the matter of guardianship and custody of her children. The father is designated the first natural and legal guardian of his minor; the mother is the natural guardian only after the father. Under Muslim law, the father is the sole guardian of the person and property of his minor child. Adoption is a salient feature of Hinduism, more so because the concept is alien to Christian, Muslim and Parsi law unless custom and usage among the above sects permit it. The Hindu Adoptions and Maintenance Act, 1956 statutorily recognizes adoption and is applicable to Hindus. The Act brought about significant changes to the law of adoption amongst Hindus and has improved the position of women in this regard. However, despite these changes, adoption is another area in family relations where a female suffers discrimination based purely on her marital status. As with other aspects of Hindu personal law, amendments have recently been proposed so as to give women the same rights as men to guardianship and adoption of children irrespective of marital status.

The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum2, popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that, "A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies" After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for enacting the UCC, not binding on the government or the Parliament and that there should be no interference with the personal laws unless the demand comes from within. The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India3. In this case, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnised after converting to Islam would be an offence under Section 494 of the Indian Penal Code. Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu personal law and held, "Where more then 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India." The Supreme Court’s latest reminder to the government of its Constitutional obligations to enact a UCC came in July 2003 when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act was discriminatory against the Christians as it impose unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Chief Justice Khare stated that, "We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies." Thus, as seen above, the apex court has on several instances directed the government to realise the directive principle enshrined in our Constitution and the urgency to do so can be inferred from the same. 

The framers of our Constitution did not impose the uniform civil code because it was believed that there was insecurity within minorities and that with time they would grow in confidence and articulate the need for reforms within the community. Unfortunately, each time a communal riot takes place and the perpetrators go scot-free, it shatters the confidence of minorities and halts the process of reform. But seven decades is a long time to wait for justice. The debates in India have gone the way of the secularists and recent rulings of the Supreme Court calling for Uniform Civil Code has not witnessed the protests and alarms that took place following the Shah Bano case in 1985. It is quite possible that different orthodox communities see a Uniform code as a fait accompli after 67 years of India’s independence. The matter is far more political than legal. Every time the issue has come up, there have been angry words from both sides of the debate. Religious fundamentalism must go, social and economic justice must be made available to the so-called minority and oppressed groups and their dignity should be ensured to achieve this dream of one India, one society and one Law. The uniform civil code will ensure equality, unity and integrity of the nation and justice for both men and women. We must depoliticize the uniform civil code. The secular country like India needs a uniform civil code.


1 AIR 1985 AIR 945
2 AIR 1985 SC 945
3 AIR 1995 SC 153

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