ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Equality, Not Uniformity

The point made by Flavia Agnes that the Indian media wrongly projects Muslim women in India as devoid of rights with the only recourse open to them being to challenge their personal laws is well taken (“Muslim Women’s Rights and Media Coverage,” EPW, 14 May 2016). To this, it may be added that it is also wrongly perceived by many that Hindu laws offer equal rights to men and women. Lack of media coverage of important judgments plays a role in perpetuating this myth.

The point made by Flavia Agnes that the Indian media wrongly projects Muslim women in India as devoid of rights with the only recourse open to them being to challenge their personal laws is well taken (“Muslim Women’s Rights and Media Coverage,” EPW, 14 May 2016). To this, it may be added that it is also wrongly perceived by many that Hindu laws offer equal rights to men and women. Lack of media coverage of important judgments plays a role in perpetuating this myth. The judgment in Prakash and Ors v Phulvati and Ors, AIR (2016) SC 769, wherein the Supreme Court held the Hindu Succession (Amendment) Act of 2005 applies prospectively and not retrospectively did not receive much attention from the media. However, denial of discrimination perpetuated by personal laws, or the mistaken belief that the Protection of Women from Domestic Violence Act, 2005 (PWDVA) can resolve all inequalities should not trump attempts at reform of personal laws.

Hindu laws do not offer full equality to women. For example, the Hindu Succession (Amendment) Act, 2005 gave daughters coparcenary rights but it did not give equal rights of inheritance to the natal family of a woman (that is, primacy is given to agnates over cognates). As per Section 15 (1) of the act, the heirs of the husband have primacy over the heirs of a wife. So let us say a Hindu woman leaves her Hindu husband due to his acts of cruelty. She does not formally divorce him as obtaining a divorce on fault grounds is tedious. Should she die without making a will, her entire earnings will devolve upon the heirs of her former husband. Another example is that of a daughter of a divorced/separated mother. Should the daughter inherit her mother’s property and then die without making a will, the property goes to the heirs of her father, and not to the heirs of her divorced/separated mother. This is ludicrous, particularly if the property was inherited by the mother from her own natal family.

While the courts have taken a reformist view with regard to personal law matters on a case by case basis, they have remained hesitant to intervene broadly on the issue. Gender equality in personal laws remains elusive. As mentioned by Agnes, various judgments by the courts in India have sought to restrict the right of Muslim husbands to annul their marriages arbitrarily through triple talaq. The Supreme Court in Shamim Ara v State of UP and Anr (2002) 7 SCC 518 held that “talaq in order to be effective has to be pronounced” and did not recognise the dissolution of the marriage as there was no proof of the talaq having taken place. But triple talaq has still not been declared unconstitutional in India.

The PWDVA cannot rectify the problem of unfair personal laws. Matters of marriage, custody, adoption, inheritance and divorce are determined by personal laws and not by the domestic violence law. The PWDVA cannot prevent triple talaq from taking place, although it does provide civil remedies to divorced women in the form of maintenance, or residence rights.

Furthermore, what is of concern is that while women are asking for protection orders and the right of residence under the PWDVA, “there is a discernible reluctance among Courts across all States to pass orders which may directly or indirectly create a property right that is not recognised under personal laws. This conservatism on the part of the Courts is an unfortunate development as the right to reside is one of the clear positive rights created by the PWDVA [Lawyers Collective “Staying Alive: Sixth Monitoring and Evaluation Report(2013), page 61]. While the PWDVA was envisaged as a secular law, the more substantial rights offered by the PWDVA have been diluted by judicial interpretation. Although personal laws have little or no impact in the grant of maintenance orders to women, the right to residence under PWDVA is often confused with property rights under personal laws by the judiciary.

Article 13 of the Constitution makes all laws—customary and statutory or otherwise—subject to the Fundamental Rights chapter, including religious freedom and equality. Article 372 of the Indian Constitution deals with the continuance in force of existing laws and their adaptations. It is by virtue of Article 372 (and not by virtue of Article 25, that is, the right to freedom of conscience, and free profession, practice and propagation of religion) that the policy of recognising personal laws has been continued into the post-independence period. In a series of judgments [State of Bombay v Narasu Appa Mali AIR 1952 Bom 84, Reynolds Rajamani v Union of India (1982) 2 SCC 474, Maharshi Avadesh v Union of India (1994) Supp 1 SCC 713, Pannalal Bansilal Pitti v State of AP (1996) 2 SCC 498, Ahmedabad Women Action Group and Others v Union of India (1997) 3 SCC 573], the Supreme Court has refused to treat personal laws as vulnerable to the Fundamental Rights of the Constitution.

The Bharatiya Muslim Mahila Andolan conducted a survey noting that more than 90% of Muslim women want triple talaq banned (“Muslim Women’s Views on Muslim Personal Law,” EPW, 19 December 2015). One of the reasons for discomfort with the concept of a uniform civil code is the potential loss of religious identity. In a communally tense atmosphere, the fear of such loss is heightened. Consequently, stressing on gender equality (rather than uniformity) would benefit in the acceptance of need for change in personal laws.

Gayatri Sharma
NEW DELHI

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