A glance over the questionnaire on Uniform Civil Code (UCC) reflects the haste with which the questionnaire was drafted. Several grammatical and spelling mistakes in the questionnaire is one such pointer. More importantly, with due respect to the team that had prepared the Questionnaire and without meaning any offence to them; to a normal reader, the questionnaire reflects partiality and lopsidedness on part of the Commission as 80 % of the questions that have been raised in the Questionnaire directly or indirectly relate to the Muslim Personal law provisions. Most of the questions are just superfluous and are set for the sake of asking. In the face of UCC or with the adoption of UCC, all of the questions would lose their value and significance totally.
Let us see now the questions and my views on each of them:
1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavor to secure for the citizens, a UCC throughout the territory in India”?
A. No – I learned about it when the whole issue snowballed in the country (out of nowhere).
In your view, does this matter require any further initiatives?
I believe that there are many other important provisions or articles related to the Directive Principles of the State policy including the enactment of laws to stop the concentration of wealth in the hands of a few; providing adequate means of livelihood for all men and women; equal pay for equal work for men and women; guarding children against exploitation; prohibiting production and sale of alcoholic drinks and other intoxicating products. These issues have never been even touched nor discussed the way the issue related to UCC is being deliberated now. Picking the issue of Uniform Civil Code (UCC) throughout the territory of India which does not affect the economy of the country is indeed questionable.
2. Various religious denominations are governed by personal laws and customary practices in India on matters of family law; should the UCC include all or some of these subjects?
iv. Guardianship and Child Custody
vi. Successions and
A. If the government will ultimately decide to impose UCC, what difference would it make to include or exclude one or the other subjects listed above which have been governed for centuries under the respective personal laws in India. None of the erstwhile dynasties, rulers or even the British Empire touched these subjects.
3. Do you agree that the existing personal laws and customary practices should be replaced by a uniform codification and would benefit the people?
A. Codification of personal laws will facilitate understanding of the practice by the judiciary and others while the UCC will create confusion. However, codification of personal laws should abide in word and spirit with the respective religious laws and principles.
4. Will UCC or codification of personal law and customary practices ensure gender equality?
One can’t comment about the UCC now – However, what one can stress is the fact that Islam promotes gender equality in all senses – for instance, women can own estate or properties or wealth and need not transfer them to their husbands or fathers and after their death, their estate do not automatically go to their husbands – rather it is distributed as per the principles of Sharia – Islam prohibits in word and spirit the dowry practice and women are paid Meher or dower – Islam obliterated the practice of female infanticide and prohibits feticide before or after sex determination.
5. Should the uniform civil code be optional?
A. It is already optional – the citizens can always opt out of their religious personal law and opt in for any other personal law and they could continue to do so.
6. Should the following practices be banned and regulated?
c. Similar customary practices such as Maitri karaar et al.
A. The question is superfluous – with the compulsory imposition of UCC, polygamy, polyandry will cease to exist legally
7. Should the practice of triple talaq be:
a. Abolished in toto
b. Retain the custom
c. Retain with suitable amendments
A. The concept of triple talaaq is just a misnomer and does not exist per se in the light of the right teachings of noble Quran. In Chapter 2, Verse 229, the holy Quran prescribes that Talaaq is permissible twice and during the period of Idah (waiting period), which is 3 menstrual cycles of the woman, the parties could hold together or part on equitable terms. The word ‘TWICE’ clearly indicates two different periods of time. For instance, if one visits a friend twice and does not find him, it would mean he has visited his friend at two different times and not at one point in time. Besides, in Chapter 65 which is mostly devoted to the issue of Talaaq (indicating its importance and significance), it states that divorce is to be given in the prescribed period(S). The word ‘PERIODS’ used is plural which means divorce given at different times. Hence, the concept of uttering ‘talaaq talaaq talaaq’ is just a misnomer which created a furor or rather being made a tool or medium to impose UCC on the citizens.
Now, for the sake of argument, if we assume that the so-called ‘triple talaq’ exists and is to be abolished, what results will that achieve for the women? Would it mean that mean that the couple could reunite after the first and second divorce as the so called utterance of talaq three times at one go was considered void? After abolishing the practice, can the government or judiciary force the couple to reunite for the second time against their will since Talaq pronounced three times at one go was not the final talaq after which the couple cannot be united? Definitely not, then, what is the purpose behind it. In what way, would the abolition of the so-called ‘triple talaq’ give the women any protection? I have no issue with the judiciary making the period of Idah (waiting period) compulsory in all its rulings.
8. Do you think that the steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under the customary practices?
A. All steps be taken to let the Hindu women exercise their rights under their personal law or what is called ‘Hindu Succession Act’.
9. Do you agree that the two year period of wait for finalizing divorce violates Christian women’s right to equality?
A. I can’t comment as not aware of the circumstances and background for such a provision, if it exists. Again, the question is superfluous. With the UCC, the practice, if it prevails will vanish
10. Do you agree that there should be a uniform age of consent for marriage across all personal laws and customary practices?
A. This question is unwarranted and superfluous – There is already a law that prohibits child marriages across the communities in the country and has fixed age for marrying girls and boys
11. Do you agree that all the religious denominations should have the common grounds for divorce?
A. Again the question is superfluous – with the passing of UCC, there will be no difference in the grounds
12. Would uniform civil code aid in addressing the problem of denial of maintenance or insufficient maintenance to women upon divorce?
A. It will depend on the manner in which the UCC will be drafted.
13. How can compulsory registration of marriages be implemented better?
A. There are many ways to implement compulsory registration of marriages:
– Refusing to issue birth certificates to the new born (if the marriage was not registered)
– Making addition of marriage or marital status compulsory on Aadhar Card and Passports and for that purpose ask the applicants to produce marriage certificates
14. What measures should we take to protect the couples who enter into inter-religion and inter caste marriages?
A. Such marriages should invariably be dealt under the current code of the country and as the government is hell bent to impose UCC, this question is superfluous now
15. Would UCC infringe an individual rights to freedom of religion?
A. Yes, of course, the imposition of UCC or making an individual to dispense with the provisions in the scripture or religious law he/she follows would infringe upon the right to freedom of religion. This is the crux of the whole issue as why the communities will protest and have the right to protest. The fundamental rights enshrined in the constitution under Articles 25-28 not only grant the right to profess, practice and propagate religion, but also grant the right to manage his/her affairs in matter of religion. Needless to say, the fundamental rights stand above any other provision in the constitution including the Directive Principles of the State Policy. Again, there is no issue with the individuals accepting or embracing the UCC or any other code, which is also their fundamental right.
Further, the Personal Law has set different rules for organizing personal lives:
Second or Third or Fourth marriage – Islam allows married men to marry another woman – UCC might stop such practice as it is not allowed in other religions and this amounts to infringement on person’s fundamental right.
Marrying Cousins – In Islam, there is no prohibition in marrying one’s cousin and UCC might stop such practice as it is not allowed in other religions.
The laws of succession – The Noble Quran stipulates in detail the manner in which the property is to be distributed upon the death of a muslim person – it is a religious duty of the muslims to observe those rules which will be violated in case UCC is imposed and hence would conflict with the freedom of religion
16. What measures should be taken to sensitize the society towards a common code or codification of personal law?
A. As the individuals in each community have been managing their affairs in the light of their religion, social customs and culture for decades without any problem and such rights are enshrined as fundamental rights in the constitution, there seems to be no reason to have UCC in India.
In short, we could draft or evolve UCC as code for those individuals who would like to opt out of their respective personal laws or those who do not believe in those laws or those who are not governed by such laws to opt for the UCC. By Safi H. Jannaty, Al Ghazzawi Group,Dammam, Saudi Arabia, Tel : +966.58.2622559