Case by case 8212; Uniform civil code, without tears

The Supreme Court's ruling that Muslim children of divorced parents require maintenance to be paid by the father till they attain maturity ...

The Supreme Court8217;s ruling that Muslim children of divorced parents require maintenance to be paid by the father till they attain maturity is extremely progressive and ought to be welcomed.

But the full implications of this judgment, which extend beyond the Muslim community, are even more welcome. The court has ruled that Section 125 of the CrPC enjoys wider applicability than the Muslim Women Act of 1986. In effect, the court has indicated that the general law of the land is applicable to all individuals and, therefore, has precedence over any civil code particular to a community.

The legislatures, which have been unable to come up with a uniform civil code after years of fruitless discussion, have had the matter virtually taken out of their hands. The courts are necessarily approaching the problem piecemeal, because they can only use their power to interpret the law. They are forced to elaborate upon case law and, therefore, have to wait for suitable cases to come along. But to their credit, they are getting the job done a lot faster than the political class, and their rulings are finding widespread acceptance. This is effectively the uniform civil code, without tears.

It is not the first time that the courts have invoked the law of the land to interpret minority matters. In the Christian community, they have assured gender parity by ruling on divorce and inheritance issues. According to the old law, adultery was sufficient grounds for divorce, provided the man sought it. But if the woman was the plaintiff, she also had to prove the additional charge of incest or cruelty. This law prevailed until a couple of years ago, when the court introduced more realistic criteria. Under the archaic law of inheritance, Christian women of Kerala were entitled to an equal share of the family estate as their brothers or Rs 5,000, whichever was lesser. The sum may have been perfectly adequate a century ago but in modern times, it is iniquitously inadequate. This law, too, was consigned to the dustbin by the Supreme Court in the last decade. The apex court has also disallowed Hindu men from converting to Islam specifically to indulge in polygamy. Significantly, none of these rulings called forth a murmur of protest from the communities affected. Had they resulted from an initiative by the legislatures, on the other hand, they would have been immediately politicised.

When he came to power, the Prime Minister had stated that he would bring Indian legislation into the twentieth century. With the twenty-first century imminent, it had looked like a very good idea. Ever since, however, he has been lamenting his helplessness. The courts, on the other hand, have just proved again that they are anything but helpless. The same route of case law elaboration can be used to upgrade archaic legislation although it would be time consuming. If no individual, corporate or consumer organisation has sought reinterpretation of the law of posts and telegraphs, which has been around in its pristine state for a century, it may be because it is not as hurting as an iniquitous personal law. However welcome the court8217;s role may be, the legislature cannot escape its primary responsibility of law-making, except at its peril.