The recent comments of Justice Markandey Katju, a retired Supreme Court judge, in support of the uniform civil code on the ground that the Muslim personal law is “barbaric, backward and unjust” has raised many eyebrows. Citing the reversal of the controversial ruling in the Shah Bano case, these comments seem to lend support to the political agenda of the present government.
Coming from a legal luminary, these comments sound almost pedestrian as they overlook the gains made by the apex court during the last three decades since the Shah Bano ruling in 1985, more particularly the path-breaking judgements such as Shamim Ara (2002) and Daniel Latifi (2001) which have placed Muslim women’s rights on a firm ground, outlawing arbitrary triple talaq as well as securing the post-divorce economic rights of Muslim women. Ironically, it is Justice Katju’s own judgements such as D. Velusamy (2010) which have placed the rights of Hindu women on a precarious footing.
Official reports brought out in 1974, almost 20 years after the enactment of the Hindu Marriage Act (Towards Equality) highlighted the disturbing fact that polygamy among Hindus, Buddhists and Jains (communities governed by the codified Hindu law) is higher than among Muslims (Muslims 5.6 per cent, Hindus 5.8 per cent, Jains 6.7 per cent, Buddhists 7.9 per cent). These percentages conceal the actual number of women who live in legally invalid marriages, which is huge. Around 65 per cent of the Hindu women who approach us for help are trapped in these situations. Here are some real-life stories.
Fifty-five-year-old Lalita, a Maharashtrian brahmin, is a school teacher. Her husband has deserted her and is now living with a younger woman. Lalita has a 20-year-old daughter with severe retardation who needs constant care, making it difficult for her to work. She cries inconsolably. While she is aware that she can file for divorce on the ground of adultery or even claim maintenance for her daughter, this is not an option for her. She needs the support of her husband to care for their daughter.
Sumitra is much younger, in her early 30s, mother of two teenaged children. She is a Gujarati. Her husband too has abandoned her and lives with another woman. Sumitra has proof that her husband has a child of that relationship. The birth certificate of the child bears his name as the father. When we suggest divorce, she is distraught.
Sixty years after the passing of the Hindu Marriage Act, Hindu men continue to be bigamous or live in adultery. Even more heart wrenching is the plight of the “Hindu second wife”. Let us take the case of Chhaya who used to work in a call centre. She hails from Hyderabad. She fell in love with Amit, a Maharashtrian, and got married. The marriage is registered. Amit convinced Chhaya to give up her job so she can be a full-time stay-at-home mother to their two children.
Ten years later, when Amit abandoned her, she filed for maintenance. Amit pleaded that Chhaya is not his real wife as he has an earlier wife. He produced photographs of the marriage and a copy of the daughter’s birth certificate as proof. The court rejected her claim for maintenance. The verdict has deprived her of her status as a “wife” and rendered her children “illegitimate” in society.
Section 5 of the Hindu Marriage Act stipulates that neither of the party should have a spouse living at the time of marriage. Section 11 of the Act, renders polygamous marriages void. Due to this, Hindu men who contract bigamous marriages are allowed to go scot-free without any legal obligations towards their partners.
Faced with this travesty of justice, it is important to compare the legal provisions under the Muslim Personal Law:
* Muslim marriage is a contract, hence the consent of a bride is essential;
* Women can stipulate conditions which are binding (including monogamy) in the marriage contract;
* Mehr which is stipulated on the basis of the husband’s status at the time of Nikah, is the exclusive property of the wife;
* The right of khula through which the wife can dissolve her marriage;
* Muslim men who marry more than once are legally bound to fulfil their legal and social obligations towards each wife including residence and maintenance. An un-Islamic or arbitrary talaq does not extinguish the rights of a Muslim wife.
Apart from approaching a darrul-qaza, Muslim women can also approach a civil court to safeguard their right of maintenance, return of her mehr, custody of children or for dissolution of marriage under the civil law and for a fair and reasonable settlement upon divorce. Despite this, there is a skewed perception that Muslim women have no rights because the Muslim law is barbaric. It is rather shocking that even a jurist of Justice Katju’s stature endorses this view. A draft prepared by a group, Bharatiya Muslim Mahila Andolan, attempts to ban Muslim polygamy.
Feminist legal scholar Flavia Agnes has cautioned that attempts to codify the Muslim law to bring in legal monogamy “should not end up subjecting Muslim women to a plight which is similar to that of the ‘Hindu second wife’”.
That polygamy cannot be controlled by codification is a painful lesson which multitude of Hindu women have learnt.
The writer is the programme director of Majlis, a legal centre that provides socio-legal support to women survivors of violence.