For equal laws

Print edition : September 06, 2013

The controversial Meham panchayat held on August 1, 2010, following criticism of the high-handed ways of khaps. Photo: THE HINDU ARCHIVES

In Rohtak, Haryana, an AIDWA rally against rape and anti-women remarks of a khap panchayat. Photo: Rajeev Bhatt

In Mumbai, a demonstration against some of the specious ways in which talaq is sought. Photo: VIVEK BENDRE

In Dehradun, a protest against sexual and domestic violence. Photo: PTI

Kirti Singh, senior advocate in the Supreme Court: 'Women's groups have had to encounter resistance from multiple levels of patriarchy across communities.' Photo: K. Gopinathan

Women’s groups feel that there need not be any dichotomy between personal laws and uniform laws as long as the underlying principle is equality and non-discrimination.

THE need for progressive reform in laws in general and in laws relating to women in particular has been on the agenda of women’s groups and organisations for long. In the past three decades, major amendments have been pushed through in existing laws and new laws for women, such as the Protection of Women Against Domestic Violence Act, 2005, have also emerged. At the same time, in the area of family and personal laws, it is an acknowledged fact that none of them gives women the right to marital property.

While women’s groups underpin their understanding of reform and change in the framework of more equality, others view reform from the narrow prism of imposing a uniform approach that apparently stems from sectarian and conservative motives. The central and overriding concern of women’s organisations such as the All India Democratic Women’s Association (AIDWA) was the question of equality, said Kirti Singh, senior advocate in the Supreme Court, and this included equality within their communities. In her experience, women’s groups, including AIDWA, have had to encounter resistance from multiple levels of patriarchy across communities.

The demand for a Uniform Civil Code (UCC) by certain political parties was rooted in the need for equality as seen from a certain standpoint. The approach to the UCC, said Kirti Singh, began getting defined in very difficult, unequal and political terms by parties like the Bharatiya Janata Party (BJP), which seemed to suggest that Hindu laws were the ideal laws and that all other laws in some sense should be like Hindu laws. Both the BJP and the Congress had opportunistic views, one in support of the UCC and the other in opposition to it, with an eye on votes.

“We distanced ourselves from these groups, the BJP’s position on the UCC as well as from sections within the Muslim communities who were against any reform from within and wrongly argued that it was against the tenets of their religion. We emphasised that we wanted equality within different communities and the ending of discrimination against women within the family too,” she said.

The experience of women’s groups during the Shah Bano agitation showed that women within the Muslim community were also keen for reform of the law, which patriarchal elements within the community opposed in the name of religion. In the 1990s, several Muslim reform groups began advocating reform within Muslim Personal Law, and Kirti Singh said women’s groups, including AIDWA, pushed for a two-pronged strategy to bring about common, equal laws in areas such as matrimonial property and registration of marriages. It became apparent that the sections opposing reform within religions also articulated from time to time a narrow and biased interpretation of religion as well.

Laws for women

India, she said, had a long history of laws concerning women, which uniformly applied to all communities. Even though the British (in pre-independent India) saw to it that separate laws governed separate communities, post-independent India saw to it that the laws that were made and amended applied to women across communities.

Among them were the Dowry Prohibition Act, 1961, and the subsequent amendments to it; the law against child marriage (predated Independence), which made child marriage punishable across communities and to which subsequent amendments were made in 2005; the Medical Termination of Pregnancy Act, 1971; and the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994.

“The most recent example, of course, is the DVA [Domestic Violence Act], which gives rights to maintenance, custody and residence to women of all communities apart from providing for protective orders against violent acts. The passing of this legislation without much argument in Parliament, unlike the Bill guaranteeing one-third reservation to women in Parliament and State Assemblies, showed that even in familial issues Indians across the board agreed on certain issues. This was not possible without the concerted and sustained intervention of women’s groups and certain lawyer networks,” said Kirti Singh.

She opined that it was difficult to bring about reforms within communities without the mass involvement of women to take on the might of, for example, patriarchal elements. She pointed out that Muslim women fought for the Muslim Women’s (Protection of Rights on Divorce) Act, 1986. Certain sections of Muslim women showed that they were capable of fighting for and wresting their rights from the courts, provided the courts were receptive. The liberal interpretation of the law that gave the right to maintenance even went beyond the Act. The courts, she said, never held any personal law as unconstitutional and always held back when it came to the issue of personal laws.

Problematic changes

There was no doubt that the reforms that had taken place were because of pressure from women’s groups and liberal scholars. But there were problems with some of the draft laws. One such is the Marriage Laws Amendment Bill, 2010, which is due for passage. It amends the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.

At present, both Acts allow a petition for grant of divorce on mutual consent where the petition has to be presented by both parties together. The Bill deletes this requirement, allowing one party to the marriage to present the petition before the court. It also adds a provision that allows both parties to file for divorce on the grounds of irretrievable breakdown of marriage, where both parties have to live apart for at least three years before filing such a petition.

In the Bill, the wife has the right to oppose the grant of divorce on the grounds that the dissolution will cause her financial hardship. The courts “shall consider all circumstances, including conduct of parties, children, before deciding whether a divorce would result in hardship. Also, court has to be satisfied that adequate financial provision has been made for any children (including unmarried or widowed daughters).”

Women’s organisations feel that in the Bill the grounds for divorce can be used indiscriminately without providing adequately for the separated woman and her children. The Bill, said Kirti Singh, dealt with Hindus and those married under the Special Marriage Act and allowed the judge, if he deemed it fit, to give some property in the form of compensation to the woman at the time of divorce on the grounds of irretrievable breakdown of marriage. AIDWA had, she said, demanded that in any proceedings for divorce, a woman should be entitled to ask for her share of property, movable or immovable, and of her home and this matter should not be left to the discretion of courts.

Women’s groups have been demanding a uniform law that guarantees half of marital property. This right, Kirti Singh explained, was premised on the grounds and concept of equal partnership between a man and a woman during marriage. The women’s groups buttressed their argument by calling attention to the work done by women as caregivers and homeworkers and argued that they were entitled to a half share whether they contributed financially or not during the subsistence of the marriage.

The general feeling among women’s organisations, and justifiably so, was that unless an issue was taken up and the inequality of it brought to the notice of influential groups within communities, there was little likelihood of it getting accepted. The Domestic Violence Act was not resisted by groups within communities as it was recognised as a pervasive problem.

The problem now, however, was not so much from conservative sections but from educated enlightened groups, some of whom had begun an orchestrated campaign regarding the misuse of laws for women. The right to marital property, too, was challenged on the grounds that women would start applying for divorce only to get hold of marital property.

Also, women’s groups opined that apart from laws on division of marital property, new laws were needed to deal with “honour crimes” instead of introducing some provisions in the Indian Penal Code (IPC). The Law Commission has recommended a separate law dealing with honour crimes, and women’s groups and the National Commission for Women (NCW) jointly drafted a comprehensive Bill dealing with crimes committed by the family as well as by the community.

‘Only IPC changes needed’

The Congress-led United Progressive Alliance (UPA) government, however, decided to insert some provisions in the IPC, thus nullifying all efforts for a stand-alone law. The UPA apparently did not want to annoy powerful caste groups that have taken open positions against the right of young people to marry out of choice only because they formed the vote banks of political parties in different parts of the country. “The government through its counsel in the Supreme Court stated that only amendments in the IPC were required. The government’s stand was obviously dictated by politically motivated reasons as it needs the support of caste groups and councils that have openly defended crimes committed in the name of honour,” said Kirti Singh. Therefore, conservative elements within communities still continue to oppose reform and in many cases even challenge the Constitution by citing the superiority of customs over the Constitution.

The need of the hour is to do away with discriminatory laws across communities and to give equal rights to women within the family, which most personal laws do not. Reform, said Kirti Singh and others, had to be two-pronged. First, there had to be certain uniform laws across communities if they were acceptable to women, and, secondly, the effort should be to get rid of the discriminatory aspects of certain laws, such as triple talaq.

The fundamental basis of reform had to be on the principles of secularism, democracy and equal rights, felt women’s organisations. They also opined that if certain cultural, customary practices were acceptable to women and were non-discriminatory, these could continue. Women’s rights under no circumstance should be subordinated to patriarchal concepts of multiculturalism. As Kirti Singh said, there need not be any dichotomy between personal laws and uniform laws as long as the underlying principle was equality and non-discrimination.

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