Uniform Civil Code: Does the Woman Even Matter?

Those who like to read John Le Carre, as I do, will argue that the cold war was not entirely about the competing lofty ideals of freedom on the one hand and equality on the other. His chief characters, Smiley and Karla, master spies for Britain and the Soviet Union, respectively, were only notionally fighting for those ideals. In the final analysis, they were playing ‘the great game’, which involved power and politics, death and deceit. It also involved manipulation, and a battle of wits, to an extent that these traits become the main force driving the narrative. I best like Le Carre for his description of the banal cruelties committed in national life, ostensibly for the most virtuous ends.

I suppose it’s the same with other nationalist projects, whether reformist or homogenising, as in the current fashion. The manipulations and quotidian cruelties become the driving force. The narrative on ‘religious conversion’, for instance, has been vaguely pegged to women’s autonomy. But it also includes for the moment an acceptance of banal cruelties where the State, and its vigilantes, monitor inter-faith marriages, and are allowed to appropriate all forms of autonomy from the woman. You need only to have a basic familiarity with present social norms to know that women agree to all kinds of conditions for marriage: to move cities, or to give up work, to have children, to change religion, or to host extravagant weddings that the parents can ill-afford. A public debate that picks on ‘conversion in order to marry’, from the array of compromises, manipulatively moulds public focus towards ‘the problem of conversion’, while also lightly referencing the end goal of women’s autonomy. It is no surprise then that in the everyday, all efforts are directed at banning conversions, even at the cost of individual agency, on the promise that the tireless vigilantism would some day enhance women’s agency too.

Means and ends have an interesting relationship. One of the earliest court cases in India, which accepted ‘triple talaq’ as a valid form of unilateral divorce was Amiruddin vs Musammat Khatun Bibi (1917, Allahabad High Court). From all accounts, Sir Amiruddin wasn’t a pleasant person, and given to tantrums and to fits of rage. He had pronounced instantaneous talaq on the long-suffering Khatun Bibi several times, but since the practice was considered a heresy and not a valid form of talaq, he would apologise and carry on. On one occasion, she’d really had quite enough and she called her parents over from Mahoba and asked them to take her back with them. Amiruddin threw another one of his famous tantrums at the railway station, forbidding her from travelling with her parents. She chose to ignore him, and as the train was pulling out he pronounced talaq yet again. Once he calmed down after a few days, he sent his apologies and also asked her to come back, but she refused, stating that she had accepted the talaq. The matter went to court, the husband claiming that triple talaq is heretical, and the wife claiming that it is valid. The court ruled in the wife’s favour, taking the context into consideration and thus triple talaq came to be formally recognised in Indian courts.

During the ‘triple talaq case’ at the Supreme Court, there was another relatively recent judgment of the Delhi High Court, which was being cited to make the argument that this form of talaq has now been held to be invalid in law. The case of Masroor Ahmad vs State of NCT of Delhi (2008) involved Mr. Masroor, who pronounced the triple talaq, and sent his wife home to her mother. A few days later, he visited her and forced himself on her. She registered a criminal complaint alleging rape, because she claimed that the marriage had ended with pronouncement of talaq, whereas his defence was that they were still married. The court ruled that the triple talaq was not a valid form of talaq, that the marriage stood as before, and that, therefore, the charge of rape was untenable.

In the aftermath of the ‘triple talaq’ judgment, where the Supreme Court held 3:2 that instantaneous talaq is invalid, the central government also brought in law criminalising the act, which had already been held to be null and void, and which therefore has no effect. The Muslim Women (Protection of Rights on Marriage) Act, 2019 makes it a cognisable offence to pronounce triple talaq on the wife, even when such pronouncement has no effect on the status of the marriage. We’d have expected the jails to fill up with Muslim men, akin to the effect Unlawful Activities Prevention Act has had on jail demographics, but evidently matrimonial cases have their own logic and sympathies. In my limited experience, the police have been loath to register cases or investigate under this Act. Could it be that the political urgency with which the triple talaq problem was constructed, and then demolished, does not match with actual realities on the ground, in that ‘triple talaq’ per se does not offer, in scale, the worst example of domestic violence, or abandonment and abuse? It is also true that the police and prosecution are always hesitant to put husbands away for such minor transgressions. The wives have not been able to use this act as leverage to negotiate better divorce settlements with the husbands.

In stark contrast to this piece of legislation, which seems to have begotten no societal or institutional response, there was quite a bit of excited cheering from amongst the regressive to The Muslims Women (Protection of Rights on Divorce Act), 1986. This law, brought in the aftermath of the Shah Bano case, restricted Muslim women’s entitlement to maintenance from her former husband to a period of 90 days immediately following the divorce. After that, she was left to her relatives’ mercy. Danial Latifi vs Union of India (2001, SC) upheld the constitutional validity of this Act, but also laid down that the Act only meant that Muslim women must be paid a sum amounting to their ‘lifetime maintenance’, one that ensured a similar lifestyle that they were used to in the duration of their marriage, as one lump-sum within the first 90 days. So rather than granting monthly maintenance, which non-Muslim women usually claim, the court ensured for Muslim women an equal amount payable in a single instalment.

‘Reform’ is rather a package deal. It requires recognition of the underdog, their active civic participation and some sense of democratic consensus. It also requires honesty and imagination. The recent discourse on the ‘uniform civil code’ displays none of this. On the contrary, it is framed only in the sense of opposition to legal pluralism. The legal case in support of the uniform civil code also unimaginatively groups together and attacks disparate personal law practices, some in use (like unilateral but mediated divorces), others obsolete, and argues that all practices emanating from personal laws should be declared unconstitutional. In the process, there is no discussion on how our own mainstream jurisprudence is, in fact, moving towards encouraging unilateral divorces, and other forms of living arrangements that do not have state sanction (live-in or queer relationships, for instance). Here again, the main challenge to personal laws seems more concerned with ending legal pluralism. The thrust is, therefore, towards homogenising practices and not towards ensuring equitable relationships.

The UCC had its problems even as a ‘reformist’ project in its inconsistency of purpose, its discomfort with legal pluralism, and its ambivalence towards individual choice. However, the uniform civil code as a homogenising project is simply manipulative in the tradition of ‘the great game’. Even discursively, it is slowly changing from making women’s agency the goal to making the homogenous Hindu Rashtra its purpose.