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Law and Gender Inequality

Under Article 44 the state is bound by a constitutional mandate to secularize and homogenize family laws. The first departure from the declared objective was the codification of Hindu Family laws.

The state enacted special laws for its Hindu citizens. By validating diverse customary practices and rituals as Hindu by grouping various castes and sects under the banner of a legal Hinduism and by naming the attempts at modernizing family laws as Hindu reforms the state departed from its declared goal of secularizing family law.

Through these enactments Hindus were not subject to the application of some statutes like non – Hindu spouse was not entitled to maintenance from the Hindu spouse either while living together or separately. The converted parent lost the right to be the natural guardian of a minor child. Child born to a Hindu after conversion were disqualified from inheriting the property of a Hindu relative.

The Hindu Adoption and Maintenance Act 1936 validated adoptions through the Brahmanical Hindu ritual of giving and taking in adoption while the customs and practices of lower castes which were more fluid and secular were disawolled. By stipulating a special provision under 5.18 (a) of the Hindu Marriage Act, Hindus were taken out of the general provision of the Child Marriage Restraint Act of 1929 and were liable for lesser punishment for the same offense.

During the decades that followed the State moved further away from its declared objective of a uniform and secular family law. The vested patriarchal and community interests of the influential sections superseded the rights of women and children. The erosion of secular principles within the polity further complicated the issue. A steady decline of secular values can be traced through the enactment of the Special Marriage Act in the 50s,the adoption bill in the 70s and controversial Muslim Women's Bill in 80s.

The enactment of the Special Marriage Act in 1954 is the only significant move in the post independence period to secularize family laws. It was seen as the first step towards the attainment of the objective of a Uniform Civil Code as in Article 44 of the Constitution. The Act provided for a civil marriage of two Indians without the necessity of renouncing their respective religions.

Conservative Hindu, Muslim and Christian opinion was strongly opposed to the Act. During parliamentary debates one section of Muslims raised the demand that Muslim community should be exempted from its preview as the persons marrying under it would not be governed by the Sharia.

The Act has the potentiality of being developed further into a comprehensive code of marriage and divorce that could have safeguards for women without invoking the controversy of freedom of religion. The premise that the Act is merely a facilitating measure which would apply only to consenting couples had already been accepted both politically as well as legally. Hence equitable principles of gender justice could have been incorporated in the Act but the Act has not been well publicized and there seems to be a manipulation to subvert its provisions.

Despite its secular credentials the Act leaned towards the dominant Hindu upper caste practices, which prohibit marriages between the relatives. Such prohibitions are not found in the customary practices of several lower castes as well as among Muslims, Christians and Jews etc. In order to rectify this and widen the scope of the Act an amendment was introduced which subordinated the Act to customary practices.

The reasons for the amendment were the practices of south Indian communities that permit marriages between uncle and niece and first cousins. The objective was to coordinate the Act with the provisions of the Hindu Marriage Act that validated customary practices. In 1976 major amendments were introduced within the Hindu Marriage Act by incorporating additional grounds of divorce and by introducing divorce by mutual consent.

This amendment was clearly unconstitutional as the basis of discrimination was religion. The progressive Hindus who married under the secular Act were not given a choice to be governed by a uniform and secular law of succession. The benefits conferred on a Hindu male contracting a civil marriage were deemed progressive step for the Hindu community. Hence the deterrent it would pose to marriage of Hindu males with minority women and to the secular principle of the nation .The criticism against this amendment remained confined to legal circles.

The political events that followed the Supreme Court judgment in the Shah Bano case eventually resulted in the enactment of the Muslim Women (Protection of Rights on Divorce) Act in 1986.

During the debate on the Dissolution of Muslim Marriage Act in 1939 the primary concern of the reformers was the absence of women's right to divorce in contrast to the husband's right of arbitrary divorce. Due to the fact that as the economic rights conferred upon women by the Islamic law were superior to the rights granted to under other legal systems the reformers did not address the issue of economic rights of the divorced women. The divorced Muslim woman was left with no economic options to escape from destitution.

As a corrective measure in 1973 S.125of Cr PC that granted the deserted or destitute wife the right to claim a maximum amount of Rs 500 as maintenance from her husband was extended to a divorced wife by expanding the scope of the term wife to include ex-wife. The government under pressure from Muslim leaders included a clause that if a woman had received the customary settlement the amount of maintenance due to her would be set off against the amount she had already received.

The two significant decisions of the Supreme Court had placed the divorced Muslim woman's right to maintenance on a secure footing. But the controversial Shah Bano Judgment in 1985 apart from affirming the rights of a divorced Muslim woman also commented upon Islam and interpreted the Muslim Personal law while deciding a right under a secular and uniform statute.

Following pressure from Muslim orthodoxy the government introduced a bill in parliament titled The Muslim Women's (protection of rights on divorce) Bill to exclude divorced Muslim women from the purview of S.125 Cr.PC.This move met with severe opposition from women's organizations and progressive sections.

The Bill further divided the community and nation on communal lines. The rigid approach of the Muslim leadership provided further fuel to the Hindu right wing forces in their anti-Muslim propaganda. For the first time the women's movement was constrained to address the complexities of the demand for Uniform Civil code. The issue could no longer be addressed within confines of gender divide.

According to Zoya Hasan the compromise of surrendering women's rights has to be viewed from the perspective of a communalized polity. It was an outcome of a rightward shift in politics and the economy in 1980s resulting in close interaction of politics and religion marked by a decline in the commitment to secularism, equal opportunities and social welfare benefits for the under privileged and the disadvantaged.

Despite the claim of divine origin and the consequential claim that a secular Indian state does not have the right to legislate upon the Muslim law through this legislation the Muslim leaders conceded to the state the right to modify the Shariat .The Act imposed obligations on Waqf board and family members which were not imposed by the Shariat and to the extent modified the rules of the Shariat.

Despite mobilization of a large number of Muslim women against the judgment and in support of the Bill a significant number of divorced Muslim women continued to approach the courts for claiming their right to maintenance as the cases filed by Muslim women indicate. The divorced Muslim women were able to separate their religiosity from their temporal needs of economic survival.

The Act seemed to provide a better remedy than the meager amount that a Muslim woman could claim under Cr PC prior to this act. These judgments interpreted that the husband must pay a reasonable and fair provision for the future during the iddat period. Muslim men are constantly being advised by their advocates that they no longer need to pay maintenance to their wives and it is their religion that says so. Studies revealed that even when the lower courts granted maintenance to wives, the husbands upon advice filed appeals against orders of settlements by relying upon the provisions of the Act thus making the litigation processes more cumbersome and ambiguous for Muslim women.

The Muslim Women's Act has been projected as the most glaring instance of the defeat of the principle of gender justice for the Indian women as well as the defeat of secular principles within the Indian polity. The Act has led to the further strengthening of the Muslim appeasement theory in judicial discourse.

For the women's movement the Shah Bano judgment and the Muslim Women's Act was a watershed as from this point onward the gender discourse became far more complex and gender equality and identity politics could no longer be placed as two mutually exclusive terrains.

Biblography: Flavia Agnes (1999) Law and Gender Inequality: The Politics of Women's Rights in India, Oxford University Press

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