Both in the Shah Bano case and in the Sarla Mudgal case, the Supreme Court found successive governments ‘‘wholly remiss’’ in acting in accordance with Article 44 of the Constitution in bringing into force a uniform civil code and requested the prime minister to take a fresh look at the matter. Almost 20 years later, Chief Justice Khare has repeated this plea.In the above cases, the Supreme Court made the mistake of equating the uniform civil code with Hindu reforms when the court remarked that ‘‘the utmost has been done to codify Hindu law’’, thus falling prey to the fiction that the Hindu Code is a perfect one.In the 20’s and 30’s, women in the forefront of the national movement such as Kamladevi Chattopadhyaya and Sarojini Naidu repeatedly raised the demand for a comprehensive code. But broader political considerations prevailed. Post Independence attempts also met with resistance from conservative Hindu sections including the then president, Rajendra Prasad.This is why, despite the codification of Hindu law, coparcenary concepts continued. Daughters had equal rights only in the self earned and not the ancestral property of the father and even this could be denied either by will or by converting the former into joint property. The father continues to be the natural guardian of a legitimate child and the mother of an illegitimate child, absolving the father of the moral responsibility of looking after the illegitimate child. In adoption, the emphasis is not on the child or the family but on male succession and a male child cannot be adopted if a biological male child exists. The woman cannot adopt and is relegated to the passive role of acquiescence. Bigamy is widespread only because there is no registration of marriages.A genuine uniform civil code will, therefore, impact on Hindu law as it is practiced today and eliminate discrimination against Hindu women. Does the BJP really want such a code?Instead of moving towards a uniform civil code, the country moved in the opposite direction. The Special Marriage Act 1954 required marriages to be registered. Opposition by conservative Hindu sections resulted in the amendment in 1955 by which a man could also claim maintenance from his wife. Finally by the 1976 amendment, Hindus were taken out of this secular code. The second major reversal took plae after the Shah Bano judgement. And in Arunachal Pradesh, a Bill was introduce seeking to codify tribal customs including polygamy and child marriages.Women’s organisations and secular groups submitted to government the Adoption of Children Bill which was submitted in Rajya Sabha in 1972 and 1980 and then forgotten. They also presented to the government the Indian Marriages and Matrimonial Remedies Bill 1986, the Indian Inheritance Bill, 1994 and the Indian Descent and Distribution Bill 1994. The Catholic Bishops Conference of India submitted a Christian Marriage Bill 1993. All these initiatives were important steps towards introducing, albeit piecemeal, a uniform civil code. They lie with the government, gathering dust.The Goa Code is uniform in some respects, optional in others. Sons and daughters have equal rights to parents’ property. Only half the property can be willed away. Matrimonial property is joint but is managed by the husband. Polygamy and triple talaq are not permissible, although bigamy is, if there is no male child by the first wife. Women’s organisations report that the positive provisions are circumvented in numerous ways.Conservative sections of all communities claim that a uniform civil code will undermine religion. Nothing could be further from the truth. A uniform civil code will, in the first instance, do away with only those parts of personal law which infringe on the Constitution, particularly the Fundamental Rights and the Equality clause. It will not touch personal laws that are not offensive to women. Triple talaq and polygamy will go. In Iran, Jordan, Syria, Morocco and Pakistan such reforms have already taken place.A uniform civil code can go even further. It can do away with fault based divorce and replace it with irretrievable breakdown of marriage. It can create the concept of joint ownership of matrimonial property. And do away with discrimination based on sexual preferences. Prominent women’s organisations, including representatives of the Muslim community, held a meeting in Bombay on Gender Just laws in 1996 and called for a genuine uniform civil code. At about the same time a conference on the human rights of women held in Lahore, made a similar demand. The time to act is now.
