Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Explained: Uniform Civil code — the debate, the statusExplained

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Read the attached story

Mains level : Debate over UCC



  • Recently while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code.
  • The court observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

What is a Uniform Civil Code?

  • A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
  • Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
  • These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Greater role for State

  • Fundamental rights are enforceable in a court of law.
  • While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
  • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
  • All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

  • There is no doubt that fundamental rights are more important.
  • The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
  • To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
  • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

  • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
  • States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
  • Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

  • If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
  • But “personal laws” are mentioned in the Concurrent List.
  • Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

  • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
  • Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
  • In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
  • The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

  • Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
  • Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
  • In the Northeast, there are more than 200 tribes with their own varied customary laws.
  • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
  • Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

  • Article 25 lays down an individual’s fundamental right to religion;
  • Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
  • Article 29 defines the right to conserve distinctive culture.
  • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
  • In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
  • By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

  • Some members sought to immunize Muslim Personal Law from state regulation.
  • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
  • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
  • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
  • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
  • Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
  • Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

  • In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
  • Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
  • When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
  • On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
  • Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Uniform Civil CodePriority 1SC Judgements

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UCC

Mains level : Need for UCC



  • The Supreme Court said the nation has still not endeavored to secure for its citizens a Uniform Civil Code (UCC). The government has till date taken no action, said the Court.

A Case for Uniform Civil Code (UCC)

  • UCC is the ongoing point of debate in Indian mandate to replace personal laws which are based on the scriptures and customs of religious community in India.
  • It aims for a common set of rules governing the individuals of their religion.
  • Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Goa has a common family law, thus being the only Indian state to have a UCC.
  • Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
  • The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
  • The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.

Hopes of founders

  • The founders had penned their hope that a uniform set of rules would replace the distinct personal laws of marriage, divorce, etc. based on customs of each religion.
  • Whereas the founders of the Constitution in Article 44 in Part IV dealing with the DPSP had hoped and expected that the State shall endeavour to secure for the citizens a UCC.
  • The court said that the Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country.
  • Despite exhortations of this Court in the case of Shah Bano in 1985, the government has done nothing to bring the UCC.

Goa: Leading by example

  • The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code applicable to all, regardless of religion except while protecting certain limited rights”.
  • Under this Code practised in Goa, a Muslim man whose marriage is registered in the State cannot practice polygamy.
  • A married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.
  • The judgment came in a case concerning the question whether succession and inheritance of a Goan domicile is governed by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925.
  • Goa was once a Portuguese colony until it was made part of India.

Law panel’s stand

  • In 2018, a Law Commission of India consultation paper had however said the UCC is “neither necessary nor desirable at this stage” in the country.
  • The Commission said secularism cannot contradict the plurality prevalent in the country.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Triple talaq is criminal offencePriority 1SC Judgements


Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: Ordinance Making Power of President, Bail Provisions of the ordinance

Mains level: Triple talaq and issues related to it.


News

Ordinance cleared against instant Triple talaq

  1. The Union Cabinet has cleared an ordinance as well as Presidents assent has been received that makes talaq-e-biddat, or instant triple talaq, a criminal offence that will attract a maximum jail term of three years.
  2. The new law incorporates safeguards, including a provision for bail to an accused before the start of the trial.
  3. The offence of instant triple talaq has also been “compoundable” or a provision that allows the wife to withdraw a complaint or approach the magistrate for a dispute settlement.

Cases are on rise

  1. 201 cases had been reported from across the country after the Supreme Court banned triple talaq in August 2017.
  2. Since January 2017, 430 cases had been reported until September this year.
  3. The practice of triple talaq continues in spite of the Supreme Court having annulled it and the Lok Sabha having passed a Bill that is pending in the Rajya Sabha.

Improvised Bail Provisions

  1. While instant triple talaq will continue to be a “non-bailable” offence the police cannot grant bail at the police station the accused can approach a magistrate for bail even before trial.
  2. The magistrate could exercise discretion to grant bail “after hearing the wife”.
  3. The magistrate would also have power to decide the quantum of compensation and subsistence allowance for the victim and her minor children.
  4. Another safeguard that had been added is that the police can lodge an FIR (first information report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage.
  5. Non-relatives or neighbours cannot lodge a complaint under the proposed law.

Back2Basics

Ordinance making powers of the President (Article 123)

  1. Ordinance can be proclaimed by the President only during recess when the Parliament is not in session
  2. It can also be issued when only one house is in session.
  3. The decision of the President to issue an ordinance can be questioned in a court on the ground that the President prorogued one house or both the houses of the Parliament deliberately with a view to issue an ordinance on a controversial subject.
  4. Ordinance issued by the President must be laid before both the houses of Parliament when it reassembles.
  5. From the date of reassembly the ordinance is valid for a period of six weeks.
  6. The President can withdraw an ordinance at any time.
  7. Ordinance cannot be issued to amend the constitution.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

No need for uniform civil code now, says law panelDOMRPriority 1SC Judgements


Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: UCC

Mains level: Arguments in favor/against of Uniform Civil Code


News

Context

The Law Commission of India said a Uniform Civil Code (UCC) is neither necessary nor desirable at this stage.

A Unified Nation doesn’t need Uniformity

  1. The commission said secularism cannot contradict the plurality prevalent in the country.
  2. The commission argued that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.
  3. A unified nation does not necessarily need to have “uniformity.”
  4. Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights, the commission said.
  5. Difference does not always imply discrimination in a robust democracy, the government’s topmost law advisory body said.
  6. The term ‘secularism’ has meaning only if it assures the expression of any form of difference.
  7. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority, the commission said.
  8. At the same time, it said, discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy.

Codify all personal laws

  1. It said the way forward may not be UCC, but the codification of all personal laws.
  2. This will bring to light the prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution.
  3. By this, one can arrive at certain universal principles that prioritize equity rather than imposition of a Uniform Code, which would discourage many from using the law altogether.
  4. It said that matters of marriage and divorce can also be settled extra-judicially.
  5. It suggested certain measures in marriage and divorce which should be uniformly accepted in the personal laws of all religions.

Key Suggestions

  1. The panel asked for amendments in personal laws includes fixing the marriageable age for boys and girls at 18 years.
  2. This helps them marry as equals, making adultery a ground for divorce for men and women and to simplify divorce procedure.
  3. The commission said the filing of Section 498A IPC (dowry harassment) cases is actually done by women wanting a quick exit from a difficult marriage.

Polygamy- a criminal offence

  1. It suggested that nikahnamas make it clear that polygamy is a criminal offence and this should apply to “all communities.
  2. This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives, which is unfair.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Law Commission to finalise report on ‘Family Law Reform’Priority 1


Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: Not Much

Mains level: Arguments in favor of Uniform Civil Code


News

Uniform Civil Code in making

  1. What started off as an exercise to examine the possibility of a common civil code, as was evident in the release of the Law Commission’s ‘Questionnaire on Uniform Civil Code’ in 2016, is soon set to culminate in the submission of a report on ‘Family Law Reform’.
  2. It will suggest ways to codify and reform personal laws of all religions.
  3. With the two-year-long consultation process drawing to a close on July 31, the Law Commission is expected to finalise its report before the end of its term under Justice B S Chauhan in August.

Most consultative process ever

  1. This has been the most widespread consultative process of the Law Commission involving 70,000 responses, 50-odd face-to-face consultations.
  2. These include women’s rights groups, advocates, sexual minorities, religious groups and experts in Muslim personal.

Expected outcomes of the report

  1. The aim is not to identify an identical procedure for all but to correct the gender discriminatory nature of family laws across religions.
  2. This would be done with reference to the precedents already available in the law said the Law Commission.

Other aspects of the Report include:

  • Parenting issue after divorce
  1. For instance, with reference to child custody laws among Shias this, in case of a divorce, allows the father the custody of the son above the age of two years.
  2. The Commission will refer to the Githa Hariharan vs Reserve Bank of India Supreme Court order of 1999 where it ruled that women were as much the natural guardians of their children as men.
  3. Similarly, with adoption being disallowed or restricted under Muslim and Christian personal laws, the Commission will refer to the Shabnam Hashmi vs Union Of India 2014 Supreme Court order that gives prospective parents the right to adopt children irrespective of their religious background.
  • Reconsidering Divorce
  1. With the Supreme Court already declaring instant triple talaq unconstitutional, the Law Commission is also expected to look at how to bring men under the purview of Dissolution of Muslim Marriages Act, 1939, under which currently women have to approach the court of law if they want a divorce.
  2. The three months period in fact means far less agony for the women as opposed to personal laws of Hindu or Christian or even the Special Marriage Act, wherein it takes anywhere from one year to three years.
  3. Even if the man chooses to approach an extra-judicial authority like a Qazi for talaq, he has to qualify the reasons for the divorce.
  4. Likewise, the Hindu personal law doesn’t allow for unilateral filing of no fault divorce, which also needs to be looked at.
  • Reforming Property Rights
  1. In terms of property rights, the Muslim personal law which allows daughters only half the share of sons will be examined as will be the Hindu personal law which, while it allows for an equal share.
  2. For property, there has been a very low claim rate for women, and the Parsi law wherein a girl marrying outside the community is disinherited.
  3. The report is also sought to address these issues.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

SC seeks Centre’s views on polygamy, ‘nikah halala’


Note4students

Mains Paper 1: Social issues | Role of women & women’s organization

From UPSC perspective, the following things are important:

Prelims level: Nikah halala, nikah mutah, and nikah misyar, Muslim Personal Law (Shariat), Section 494 of IPC

Mains level: Triple talaq and issues related to it


Revisiting issue of polygamy

  1. Seven months after it declared instant triple talaq unconstitutional, the Supreme Court decided to look into the constitutional validity of the prevalent practices of polygamy, ‘nikah halala’, ‘nikah mutah’ and ‘nikah misyar’ in the Muslim community
  2. While quashing the triple talaq in its 2017 verdict, a five-judge Constitution Bench had kept open the issue of polygamy and ‘nikah halala’

Checking constitutional validity of the personal law

  1. A five-judge Constitution Bench will decide whether certain sections of the Muslim Personal Law (Shariat) Application Act go against the Constitution
  2. Petitioners have contended that the Muslim Personal Law rendered Section 494 of IPC (which prescribes punishment for marrying again during lifetime of husband or wife) as inapplicable

Back2Basics

Nikah halala, nikah mutah, and nikah misyar

  1. ‘Nikah halala’ is a Muslim law that requires a woman to marry another man and consummate the marriage and then get the divorce from him in order to remarry her first husband
  2. ‘Nikah mutah’ and ‘nikah misyar’, literally means ‘pleasure marriage’ and is a verbal and temporary marriage contract that is practiced by Muslims
  3. In this, the duration of the marriage and the ‘mahr’ (a gift which the bridegroom must make to the bride) is specified and agreed upon in advance
  4. It is a private contract made in a verbal format
  5. At the end of the contract, marriage ends and women undergo iddah, a period of abstinence from marriage (intercourse)
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

No law provides change of woman’s religion after marriage: SC


Note4students

Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Religious rights, Fundamental rights

Mains level: Issue of inter-faith marriages and need of uniform civil code


Woman does not lose her religious identity if she marries a man from a different religion

  1. The Supreme Court said the law does not sanction the concept of a woman’s religion getting merged with her husband’s faith after an inter-religion marriage
  2. A five-judge Constitution Bench headed by Chief Justice was dealing a legal question whether a Parsi woman loses her religious identity if she marries a man from a different religion

About the case

  1. Applicant has challenged the customary law, upheld by the Gujarat High Court in 2010, that a Parsi woman marrying a Hindu loses her religious rights in the Parsi community
  2. Hence, she loses the right to visit the ‘Tower of Silence’ in the event of her father’s death to perform the last rites

SC order

  1. There is no law which says that a woman loses religious identity after marrying a man from another faith
  2. The Special Marriage Act is there and allows that two persons can marry and maintain their respective religious identities
  3. The bench said it was only the woman who can decide about her religious identity by exercising her right to choice

What is ‘Tower of Silence’?

  1. The Tower is used for funerary purposes by the adherents of the Zoroastrian faith, in which the traditional practice for disposal of the dead involves the exposure of the corpse to the sun and vultures
  2. Agiari, a Parsi temple hosts the ‘holy fire’ and the ‘Tower of Silence’
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Instant triple talaq: Draft Law


Note4students 

Mains Paper 2  : Indian Constitution- significant provisions and basic structure.
Prelims level: Not Much
Mains level: Rights of Women vs minority rights; State’s role in people’s religion

News
Context
  1. Over three months after the Supreme Court “set aside” the practice of instant triple talaq or talaq-e-biddat, the Centre has drawn up a draft law.
  2. Majority Ruling (3/5 judges): the practice is un-Islamic and “arbitrary” and triple talaq is not an integral part of religious practice.
  3. Minority Ruling: the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny.
  4. Parliament should consider an “appropriate” law to deal with the issue of talaq-e-biddat.
  5. 244 cases of triple talaq — 177 before the Supreme Court’s verdict and 67 after that — were reported from across the country this year.
Provisions of Draft Law – Muslim Women (Protection of Rights on Marriage) Act 
  1. Applies to instant triple talaq in “oral, written, electronic or any other form”.
  2. Any declaration of talaq-e-biddat by a Muslim man shall be “illegal and void”
  3. Instant triple talaq or talaq-e-biddat is a “cognizable and non-bailable” offence.
  4. Allows a woman who has been given instant triple talaq to move court.
  5. Seek “subsistence allowance” for herself and dependent children, as well as custody of minor children.
Rationale behind new law
  1. The practice of instant triple talaq has not stopped despite the Supreme Court order.
  2. The Muslim Personal Law Board had not been able to do anything on the issue despite its assurances to the apex court.
Further Steps
  1. The Centre has forwarded the draft law to states, and asked them to send their views soon.
  2. The Centre thought it proper, in view of the recommendations of the Sarkaria Commission, to consult the states.
  3. The law, however, will not apply to Jammu and Kashmir.
  4. A Bill to this effect is likely to be tabled in the winter session of Parliament.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

To make instant triple talaq a crime, Govt looks to change Shah Bano law


Note4Students

Mains Paper1: Role of women and women’s organization, population and associated issues, poverty and developmental issues, urbanization, their problems and their remedies.

The following things are important from UPSC perspective:

Prelims: Triple talaq, The Muslim Women (Protction of Rights on Divorce) Act, 1986

Mains level: The newscard discusses the draft legislation being discussed by the government to make instant triple talaq a criminal offence.


News

Context

Moving to make instant triple talaq or talaq-e-biddat a criminal offence, the government is considering, among changes in existing laws, amendments to The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Background

  1. On August 22, the Supreme Court, in a landmark 3-2 verdict, “set aside” the centuries-old practice of instant triple talaq in which Muslim men divorce their wives by uttering talaq three times in quick succession.
  2. Three of the five judges on the Constitution Bench called the practice un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.
  3. But the minority ruling underlined the primacy of Muslim personal law and said the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny.
  4. They were of the view that Parliament should consider an “appropriate” law to deal with the issue of talaq-e-biddat.
  5. While divorce is a civil matter, government sources pointed out that the legislature was free to declare any unlawful/illegal offence, in this case triple talaq, as criminal.
  6. A senior government functionary said ‘non-maintenance of wife and children’ after triple talaq, declared illegal, can be legislated to invite penal provisions.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

  1. Commonly known as the Shah Bano Act, the 1986 law was enacted by the Rajiv Gandhi government under pressure from the Muslim clergy to overturn the Supreme Court ruling in the Shah Bano case.
  2. This law allowed, in line with Muslim personal law, maintenance to a divorced woman only during the period of iddat, or three menstrual cycles/three lunar months after divorce.
  3. Officials said that changes to The Muslim Women (Protection of Rights on Divorce) Act, 1986 was “one of the options discussed” and a final decision would be taken by a Group of Ministers (GoM) constituted to draft a law to make triple talaq a criminal offence.

What Impact the draft legislation will have when enacted?

  1. Once the law outlawing triple talaq is enacted, the Muslim clergy will have no role in cases of talaq-e-biddat and women can directly approach police for redressal.
  2. The draft legislation being enacted by the Law and Home ministries will not only criminalise instant triple talaq but will also have provisions for imprisonment and fine or both for the offender.

Other than changes to the Shah Bano Act

  1. The government is considering amendments to provisions of Section 125 Code of Criminal Procedure (order for maintenance of wives, children and parents) to provide further safeguards to Muslim women and their wards if they are abandoned via instant triple talaq.

 

Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Triple talaq: Govt plans to make practice a punishable offence, likely to table Bill in winter session


Note4Students

Mains Paper2: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections

The following things are important from UPSC perspective:

Prelims: Talaq-e-bidat

Mains level:  The news card discusses the recent government move of framing a law to make practice of triple talaq a punishable offence.


News

Context

  1. Three months after the Supreme Court set aside the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorce their wives by uttering talaq three times in quick succession, the government has taken the first step to consider a legislation that will make triple talaq a criminal offence.
  2. A Bill to this effect is likely to be tabled in the winter session of Parliament.

The Committee

  1. A committee of ministers has been constituted to fine tune the legislation.
  2. The committee comprises Home Minister , External Affairs Minister, Finance Minister, Law Minister and Minority Affairs Minister.

Why such a law?

  1. In a landmark 3-2 verdict, three of five judges on a Constitution Bench called the practice un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.
  2. But the minority ruling while underlining the primacy of Muslim personal law, said the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny.
  3. They were of the view that Parliament should consider an “appropriate” law to deal with the issue of talaq-e-biddat.
  4. Sources said that recurrent reports of the practice continuing among Muslims despite the Supreme Court judgment spurred the decision to bring in a law with punitive measures.
  5. In spite of advisories to members of the community against this archaic practice, there seems to be no decline in the practice of divorce via talaq-e-biddat.

The impact of the proposed law

  1. The government suspects there may be many such unreported instances of instant triple talaq elsewhere in the country.
  2. Once a law is in place, the Muslim clergy will have no role in cases of talaq-e-biddat and women can directly approach police for redressal.  

Concerns

  1. While on the other hand some are of the view that there is no real reason to bring a law as the Supreme Court has already outlawed instant triple talaq.
  2. Others want more comprehensive law, like it is for personal affairs of Hindus and Christians is desired.
  3. Eight prominent citizens had submitted a draft ‘Progressive Uniform Civil Code’ to the Law Commission and according to them the announcement is welcome but insufficient.
  4. On the one hand is this government’s strange obsession with saving Muslim women.
  5. On the other is the complete indifference to issues which affect women across religions, gender and sexual orientation such as marital rape, rights of queer people to get married and raise children etc.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

[op-ed snap] Undoing injustice: On instant triple talaq verdictop-ed snap


Image result for triple talaq unconstitutional

Image source

Note4students

Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Once you are done reading this op-ed, you will be able to attempt the below.

Critically examine the recent Supreme Court judgement which declared practice of instant triple talaq as unconstitutional.

From UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: Emerging issues over triple talaq


News

Context

  1. Supreme Court has declared discriminatory practice of instant triple talaq as unconstitutional
  2. It has sent out a clear message that personal law can no longer be privileged over fundamental rights. 
  3. The present case was initiated suo motu by the court

What is triple talaq?

  1. Triple talaq is a form of Islamic divorce that was practised by Muslims in India.
  2. It allowed any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in verbal, written, or more recently electronic form.
  3. It has been a subject of controversy and debates within the country, raising the issues of justice, gender equality, human rights and secularism

Why it is unconstitutional?

  1. Three of the five judges on the Constitution Bench have not accepted the argument that instant talaq, or talaq-e-biddat, is essential to Islam and, therefore, deserves constitutional protection under Article 25
  2. The forbidden nature of triple talaq can be gleaned from the Koran itself
  3. This form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

Opinion of the judges in the minority?

  1. They concede that their reasoning is based mainly on the fact that this form of talaq is a matter of personal law, and therefore entitled to constitutional protection.
  2. It is not open to a court to accept an egalitarian approach over a practice which constitutes an integral part of religion

 

Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

[op-ed snap] Code of controlop-ed snap


  1. Context: Social practice needs to be gender-just, but reform must respect religious freedom.
  2. Challenge: The challenge often lay in examining the implications of a misogynistic belief system within the Muslim community.
  3. But now, another challenge that needs to be addressed is examining the implications of actors entering the stage to speak on Islam, and often on behalf of Islam.
  4. While one is aware of the patriarchal and cultural set-up within the community, it is also a fact that “Islamic feminism” is emerging as an ideology amongst Muslim women across the globe, including in India.
  5. If the fights within the community were not enough, the Modi government has taken things one step further and introduced the idea having a Uniform Civil Code (UCC).
  6. What’s the question? Is this constitutional secularism pitted against freedom of religion?
  7. There seems to be a trend of selectively targeting a minority community and justifying it as an attack on a feudal-religious order. It is important not just to address these issues, but also challenge the intention behind going after a minority community.
  8. As of now, citizens are only being told of a uniformity of law based on certain vague ideas of “secularism”.
  9. It is important to know what those ideas will be, how they could affect individual lives in the country and whether they will be at the cost of national integration.

Note: Debates like these drag for years and years. While they may provide you with some fodder points, do not spend more time on such op-eds. Just get a feel of new angles and questions which are being raised.

Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

[op-ed snap] Uniform Civil Code: Gender justice for both Hindus and Muslimsop-ed snap


  1. Context: Concern towards gender justice is directed towards Muslim community and projects Hindu law as egalitarian, uniform and gender-just
  2. Discrimination within Hindu law: continuation of Hindu undivided family property- main lacuna
  3. Discriminatory aspects of Hindu cultural practices that govern the laws of marriage, divorce and matrimonial life
  4. Ritual of kanyadaan (sacrificial offering of the bride to the groom), an essential condition of a Hindu marriage, the notion of girls as paraya dhan (belonging to the other) dominate Hindu discourse
  5. SC judgment held that wife’s refusal to live within a joint family, and her demand for a separate residence, amounts to cruelty to the husband
  6. Hindu marriage was transformed into a contract in 1955, but sacramental aspects still dominate the social psyche
  7. Muslim marriage, since its inception, is a civil contract — a view later adopted by English and continental European laws
  8. If statistics show higher rate of divorce among Muslims, desertion among Hindus is far higher, popularly such women are called paritatya mahila or discarded women in Marathi
  9. While Hindu law provided for marriages across all Hindu denominations, rigid caste boundaries prevail, leading to brutal honour killings
  10. Official reports reveal that despite the statutory restraint, incidents of bigamy are more frequent among Hindus than Muslims
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Law Commission seeks public opinion on Uniform Civil Code


  1. What? The Law Commission has sought public opinion on the exercise of revising and reforming family laws of all religions in the context of Article 44 of the Constitution
  2. Why? To address discrimination against vulnerable groups and harmonise the various cultural practices
  3. A 44: Uniform civil code for the citizens- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
  4. Issues: Marriage, divorce, adoption, guardianship and child custody, maintenance, successions and inheritance; whether the existing personal laws and customary practices need codification; whether codification can ensure gender equality; and whether the UCC should be optional.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Concern for women


  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Govt: Any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution
  3. Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths
  4. It asked SC whether in a secular democracy, religion can be a reason to deny the equal status and dignity available to women under the Constitution of India
  5. Behind the preservation of personal was the preservation of plurality and diversity among the people of India
  6. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens?

Discuss: Discuss the possible factors that inhibit India From enacting for its citizens a uniform civil code as Provided for in the directive Principles of State Policy? [Mains 2015, GS II]

Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Undesirable cannot be essentialSC Judgements


  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Theocratic States including Pakistan, Bangladesh, Afghanistan and Iran have regulated their divorce law and polygamy
  3. It shows that these are not essential religious practices that are beyond reform
  4. No undesirable practice can be elevated to the status of an essential religious practice
  5. Background: Govt was responding to an affidavit filed by the All India Muslim Personal Law Board (AIMPLB) in the Supreme Court
  6. AIMPLB: Had strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq
  7. As men, they were better at controlling their emotions, unlike women & also that polygamy prevents illicit sex and protects women
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Polygamy no longer progressive, SC toldSC Judgements


  1. Context: The issue around rights of Muslim women; Govt’s reply to AIMPLB affidavit in SC
  2. Centre to SC: Polygamy may have been progressive and path-breaking centuries ago, but not now when women and notions of gender justice have evolved
  3. If Muslim countries, where Islam is the State religion, have disregarded polygamy and triple talaq, why should India, a secular country, continue to deny Muslim women their rights under the Constitution?
  4. There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform
  5. It may be true that only some women are directly affected by a polygamous marriage
  6. However, every woman to whom the law applies lives under the fear, threat or prospect of being subject to these practices, which impacts her confidence and dignity
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Centre opposes triple talaq, polygamy among MuslimsSC Judgements


  1. For the first time in India’s constitutional history, the Centre opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims
  2. It favoured a relook on grounds of constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries
  3. Secularism & dignity of women: The fundamental question is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India
  4. Any practice by which women are left ‘socially, financially or emotionally vulnerable’ or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Article 14 and 15 (Right to Equality) of the Constitution
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Hindu son can divorce wife if she tries to separate him from aged parents


  1. SC: A Hindu son can divorce his wife for the cruelty of trying to pry him away from his ‘pious obligation’ to live with his aged parents and provide shelter to them
  2. A woman becomes a part of the husband’s family and cannot seek to separate him from his parents for the sole reason that she wants to entirely enjoy his income
  3. Insisting her husband to live separately from his parents is a western thought alien to our culture and ethos
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Ban triple talaq, says Women Law Board


  1. AIMWPLB: (All India Muslim Women Personal Law Board) Ban triple talaq, punish men who give divorce arbitrarily and allow women to seek divorce
  2. Instantaneous talaq is in contravention of tenets of Koran
  3. Koran says there must be time for reconciliation between partners
  4. It says when a man gives talaq he must pause and consult his wife
  5. Otherwise, triple talaq is like a hanging dagger for Muslim women
  6. It has also sought a ban on ‘nikah halala
  7. What is it? A woman who has been divorced through triple talaq has to marry another man and consummate her marriage with him before being eligible to remarry her ex-husband
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

AIMPLB views on issues outlined in petitions- I


  1. Context: A batch of petitions filed in the Supreme Court on the triple talaq issue
  2. AIMPLB: The contentious issue relating to Muslim practices of polygamy, triple talaq and nikah halala are matters of legislative policy and cannot be interfered with
  3. Practices provided by Muslim Personal Law on the issues of marriage, divorce and maintenance were based on holy scripture Al-Quran
  4. And thus, courts cannot supplant its own interpretations over the text of scriptures
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

SC gives Centre four weeks to respond on triple talaq issueSC Judgements


  1. Context: A batch of petitions filed in the Supreme Court on the triple talaq issue
  2. Recently: All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that personal laws of a community cannot be re-written in the name of social reforms
  3. It also opposed pleas on issues, including gender discrimination faced by Muslim women in divorce cases
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Ministry seeks law panel’s opinion on uniform civil code


  1. News: The Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report
  2. A decision on the future course of action would be taken on the basis of the Law Commission report, which may take 6 months – 1 year
  3. Context: Implementation of uniform civil code is part of the BJP’s election manifesto
  4. Uniform civil code: The proposal to replace personal laws based on religion with a common set of codes governing every citizen
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Muslim woman moves SC against triple talaq systemSC Judgements


  1. Context: A Muslim woman moved the Supreme Court against the ‘triple talaq’ system to nullify the prevailing divorce practice
  2. Through Post: She filed a petition after receiving a divorce letter through speed post
  3. Talaq-e-bidat: A Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations) or in a tuhr
  4. Or also pronouncing an irrevocable instantaneous divorce at one go (unilateral triple talaq)
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Cooling-off time for Christian divorces may be cutSC Judgements


  1. Context: The Law and Justice Ministry is proposing to amend the Divorce Act, 1869
  2. Judicial Separation: Law mandates Christian couples to live separately for two years before they can apply for dissolution of marriage
  3. Govt intends to reduce the period to half- 1yr
  4. Why amend? Supreme Court had commented that this judicial separation makes no sense today
  5. Archaic: It is a 147-year-old divorce law
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Uniform civil code need of the hour: Minister


  1. A uniform civil code (UCC) is the need of the hour and in national interest and a step should be taken in that direction.
  2. Recently, SC have asked the govt. to make its position clear on ushering in the UCC.
  3. The Preamble of our Constitution and Article 44 do say that there should be UCC.
  4. The UCC will certainly have some positive impact on national integrity, but it is a very sensitive issue, which needs wider consultation, across communities and party lines.
Uniform Civil Code: Triple Talaq debate, Polygamy issue, etc.

Whatsup with the Uniform Civil Code?


  1. UCC was proposed in Article 44 of Part IV of the constitution under DPSP – “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
  2. The debate occurs when ‘uniform’ is used interchangeably with ‘common’ – because Article 29, 30 is understood in a light that minorities can practice their customs and tradition.

 

What is the idea behind a Uniform Civil Code for India?

Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.

Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.

Does the Constitution mention a Uniform Civil Code?

Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Directive Principles are not justiciable or mandatory, only a guideline.



 

Then, what is the debate about?

Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.

It was understood that minorities could practise their religion and follow their customs and traditions.

The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.

There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.

Currently, different laws regulate these aspects for adherents of different religions.

Is the debate over Uniform Civil Code just a Hindu-Muslim issue?

Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.

While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.

The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.

So, What does our secular Constitution say?

Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.

The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.

There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.

Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.

The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.

Historical Judgements

Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.

The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.

Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.

In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.

In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.

It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.

That’s some history! what is today’s scenario ?

The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.

What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.

So, do we really want a Uniform Civil Code? Is there a way forward ?

Yes, you say? Well, there seems only one way to see through this crazy fog.
Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.

Laws that fail to uphold these basics must be thrown away, Isn’t it ?


Published with inputs from Arun

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