By Anuveeta Datta Chowdhury, University of Petroleum and Energy Studies, Dehradun.

The year 1947 marked the liberation of India from the yoke of the colonial domination. The period after independence witnessed (a) evolution of a new class, (b) the proclamation of the Indian constitution based on the principles of democracy and civil liberty; and (c) the formulation of a development policy based on egalitarian power equation.

Part IV of the Indian Constitution contains the Directive Principles of State Policy. The Directives may be classified into three groups:

  1. Social and Economic Charter
  2. Social Security Charter
  3. Community welfare Charter

The community welfare charter, Article 44, requires the “state to secure for the citizens a Uniform Civil Code throughout the territory of India”. Section 21A, the Special Marriage act, 1954 and The Goa Uniform Civil code give the notion of existence of UCC. 

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The term ‘civil code’ has been used to cover the entire body of laws governing rights relating to property and personal matters such as marriage, divorce, maintenance, adoption and inheritance. The object of this code is to enhance national integration by eliminating contradictions based on ideologies. It aims to bring all communities on a common platform on matters which are currently governed by diverse personal laws. However, even after 69 years of independence, our law makers are yet to give effect to this provision.

Codification:

The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to the constitutional mandate? There is a lot of literature churned out on UCC but there is no model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed on all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender equality and comprising the best elements in all the personal laws.

The UCC should carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations. 

The Amendment demanded in Muslim Personal Law

Rights are achieved at the time of birth of the child. Rights should be equal. Women should have equal rights towards marriage. One should not do injustice for the sake of religion.

Where is the individualism of the women in the society? We talk about equal rights but we forget that discriminating of sexes also leads to gender injustice.

The muslim women rights get violated even when they ask for  talaq of delegated nature i.e.mubaraat  from their husband. There is no compulsion that the husband is bound to delegate the power to his wife. But in Hindu law and in parsi law there is no concept of delegated divorce.

If the husband can have four wives simultaneously with infinite numbers of muta marriages and even this it does not questions on the character of the husband, then why is not acceptable in case of women in muslim law.

Many people give excuses of religion and culture they follow. Is it practically possible to maintain four wives equally without doing injustice to them? Why women didn’t question about having muta marriage ? The answer which society provides is that because they are women.

Colebrooke in his book “Digest of Hindu Law Volume II” described the status of the wife thus: “A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts:- whether she ascend  the pile after him or survive for the benefit of her husband, she is a faithful  wife.”.

The most critical analysis provides the issues including the women’s right to contract her marriage, the women’s duty to obey her husband, the women’s right to initiate divorce.The basic jurisprudential foundation of all depends on the obedience of the wife towards her husband.One of the valid ground of mubarrat is wife must be obedient towards her husband till they live together. If in case the husband denies, knowing that her wife is obedient towards him, that she obeys him. How will she prove the truth?

In Muslim Law, it is God and not the international community which gave women their rights, and a good Muslim must strive to achieve the ideals of Islam which include the Principle of Equality. The Article 14 ,1 5 and 21 of the Indian Constitution i.e. the golden triangle gets violated by such acts.

Conclusion

The rights provided in Constitution are independent in nature. The basic jurisprudential foundation violates the rights of the women as they are all dependent by nature, towards their husband. The Conjugal rights should be free from dependency, as individualism is a also a right

A new amendment is required urgently to protect these rights. It is  true that customary law prevails over legislation, but Constitutional provisions should be maintained as Constitution is the holy book for whole India, irrespective of religions.

Law must be made implementable in such a way that no rights are violated and they must not be dependent in nature. Law is the cement of the society and an essential medium of social change. Law operates not in vacuum but in social perspective, and the protection of women’s rights is such a mechanism which can not only change social mechanism with human dignity but can provide respect towards women and a welfare society.

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