Because Ayesha146;s consent matters

Participating in the debate in the Constituent Assembly on Article 44 K.M. Munshi asserted 8216;8216;Look at the Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men8217;8217;. This was on November 23, 1948.

Manu said that if a man does not repay his father8217;s debts, he will be born as a dog, slave or a woman. At the time of the adoption of the Constitution the Hindu Law needed as much reform, if not more, as the Muslim Law. The Hindu Code drafted by the B.N. Rau Committee faced the same opposition as we see today against the Women8217;s Reservation Bill. It was Ambedkar8217;s dream to abolish untouchability and remove all discrimination against women.

The main object of Article 44 was to reform all personal laws, particularly to uplift the lot of women. The widespread impression that it was only in regard to Muslim Law or religious minorities is erroneous and convenient.

Hindu Law was partially reformed by splitting the Hindu Code Bill into several acts like the Hindu Marriage Act 1955, Hindu Minority and Guardianship Act 1956, Hindu Adoption and Maintenance Act 1956 and Hindu Succession Act 1956. Polygamy was abolished.

Marrying a second wife during the lifetime of the first cannot be considered an integral part of any religion. It must not be forgotten that down the years, most of the inequalities that Christian and Parsi women suffer have also been removed.

In Hindu Law, the aberration is now only in the field of joint Hindu family property. Five states 8212; Tamil Nadu, Andhra Pradesh, Gujarat, Maharashtra and Karnataka 8212; have inducted unmarried daughters as co-parceners in a joint Hindu family property through legislation, bestowing both ownership and the right to partition the joint family property to them. Kerala has gone a step further and has abolished the concept of co-parcenary and the joint Hindu family property.

In Kerala, Nairs and Nambiars who constitute about a fifth of the population, have a matriarchal society with matrilineal inheritance. The draft Bill proposed by the Law Commission of India under the chairmanship of Justice Jeevan Reddy in 2000 for making women co-parceners in Hindu joint family property throughout the country is yet to become law.

It is not as if there is no Uniform Civil Code in India. The Portuguese Civil Code in Goa continues. Both partners have a communion of property but on dissolution the property has to be divided equally. Sons and daughters have equal right on the property. All marriages, of Hindus, Muslims or Christians, have to be registered before the civil registrar. Bigamy is an offence and one man-one woman is the rule.

The courts have consistently directed the legislature to enact a Uniform Civil Code. Our courts have unfortunately taken the view that personal law is not included in Article 13 of Part III of the Constitution. This has resulted in making human rights ineffective vis a vis a large area of discriminatory practices against women. The need of the hour is for the Supreme Court to advise the nation that holding personal laws which are in conflict with human rights are void under Article 13.

Women8217;s rights as declared by the Beijing Declaration are human rights. Let us do away with all discriminatory practices and laws against women, irrespective of religion.

In substance, the heart and object of Article 44 is the empowerment of women and gender parity and justice. No longer can our women, regardless of their religion, be denied their freedom to choose and their right to excel.