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A Profound Reflection On Gender Justice And Uniform Civil Code

"Bridging the gap made by gender injustice is the challenge of decade that needs to be addressed"

Indian soil had always been entangled with deep etched roots of gender injustice. On 76th year of independence the tale of gender biasness against women blazon. The celebrated article (article 14) of Indian constitution ensures that there shall be equality before law and equal protection of law. But the question of hour is to what extend does our society accept and abide by the same when it comes to gender justice.

How safe is a woman alone at night in Indian streets when compared to men? How much is she paid for the same work done by her male counterpart? Why women are expected to handle different pressures all at once and act normal? Why does the society hold stigma that insist men not to cry nor to express emotions?

Why does media broadcast images of male culprits whereas images of female culprits are not aired? The plight of gender biasness in India was reported by UNDP that 92.36 per cent of men and 92.43 percent women face gender biasness against physical integrity.[i]

The judiciary had always taken a positive outlook on future of gender justice. The personal laws in our country exhibits some friction and uniform civil code which is a directive principle of state policy had put forward some proposals to promote gender justice in India.

The land of unity in diversity finds gender justice as a hard nut to crack. The picture is daunting when we realize that human development rank of India is 132 out of 190 and India holds biasness against genders in politics, education, economic, and physical integrity, and in a total of 153 countries India stands 112th position in a study of global gender gap.[ii]

The gender inequality index marks India as 122 out of 191 with 0.490 score India has miles to reach the dream of gender justice. The code is expected to be the panacea for all the gender injustices. The areas of succession, inheritance, marriage and many more need to addressed in light of gender equity and justice so as to ensure an 'equal start' for all fellow beings as per notion of justice by John Rawls.

Uniform Civil Code in A Nutshell
The uniform civil code was the epicenter of debates and discussions over years starting from second law commission report in 1835. The term uniform denotes something that doesn't change with time and remains same in all situation, the etymological derivation of civil is from word 'civilis' which means citizens and code is derived from Latin term 'codex' which is codified law.

The main idea behind the code was to form a unified law by excluding personal laws as the Britishers gave more importance to customs and traditions which people followed in India. Indians gave more priority to their religion and Britishers realized that any law that stood contrary to their religious believes would turn citizens against British government.

The reasons that Britishers pointed out were that Indians followed certain adamant customs and habits which they would never give up and that the English law would be completely new for Indians especially locals. Thus, they took a step ahead in form of dispute resolutions in civil matters without direct rules and codification of laws.

Indian constitution puts forward the idea of uniform civil code in article 44 which is basically a directive principle of state policy enabling state to carry out the uniform civil code, "endeavor to secure for its citizens a uniform civil code throughout the territory of India".[iii] This civil code if adopted shall administer all the laws related to marriage, succession, adoption, inheritance etc.

The proposal for the code was first put forward by MR Masani with special emphasis on justiciable rights. Thereby it shall also ensure the gender justice in India. The main objective is to have a secular codified law for all without any religious reflections so as to have equal laws between all people of all religions and gender. India being home for diverse cultures and religions, there are tensions with regard to how will uniform civil code effect the people following various religions.

It was clarified by the supporters of uniform civil code that it is not opposed to religious freedom in any sense. According to KM Munshi UCC is not contrary to any religious freedom. Nations which have Muslim majority population such as Egypt and Turkey have a uniform law. Hindu laws have always been accommodative in nature towards modern laws and had taken diverging opinions from that of Manu smriti and Yajnavalkya. Dr BR Ambedkar argued that not all Muslims follow sharia prior to 1935 and he laid examples of North Malabar areas.[iv]

But at the same time the opposers of UCC such as Nasiruddin Ahmed was of the opinion that for 300 years of Muslim rule and 175 years of British rule did not barge into personal laws of citizens and thus constitution should not do intrude itself into same.[v] But UCC can bring considerable modifications on gender justice which could change few of patriarchal norms existing in India. To understand how uniform civil code has an influence on gender justice one must be well aware of gender justice under personal laws.

Traces Of Gender Injustice Under Personal Laws

Socio-economic circumstances paved way for formation of personal laws under which injustices in all communities becomes evident. Women power have been channelized for supporting men and making things easy for men whether be it mother, sister, wife or daughter.

Under Hindu law prior to codification women had no property rights, polygamy was practiced in very ordinary sense till 1955, mothers had no right to be the guardian of their own child when father was alive and when the same was challenged the court opined that this act of giving inferior position to mother is clear contravention of article 14 and 15.[vi]

The famous jurist Sharadha Charan Misra had opined that dayabaga and mitakshara schools of Hindu law have given different views on position of women where former is more matriarchal in nature and latter is patriarchal especially on matters of property rights. The Mitakshara school had endowed the property inheritance right upon male heirs for 4 successive generations and the ground to decide succession was birth.

Thus, when a boy is born, he is inherited with the right over the property of his father or ancestors. On the other hand, women had no opportunity to inherit from the joint family property. However, women had the right to receive sthreedhan which was often used against her as weapon to torture her claiming for more money or cattle which bride's father hand over to son in law or his family.

A division bench of supreme court in Sarla Mudgal v. Union of India [vii] highlighted the gender-based injustices faced by wives and state governments had failed to get UCC applied in states to protect these women. In another case of Lily Thomas v. Union of India [viii] supreme court held that no direct initiatives nor guidelines were given by the court except for giving opinions on various cases.

Gonda Kooer v. Kooer Gody
in 1984 judgement lays down that the widow had no right over the property which she argued to have bought from sthreedhan and Calcutta High court even gave the property to her husband's heirs. Sexual abstinence and purity thereof were only meant for women. In Ramprakash v. Savithri Devi the duty is endowed upon wife to maintain her husband and do all her duties.

Under Muslim law the status of women was equated to that of men by virtue of Quran, this was reformation required for the time period as the pre�Islamic Arabia treated women miserably. But yet there are situations where women are not at equal stand to men among Muslim societies such as that of prohibition of polygamy to women, lower scope of customary divorce, maintenance limitation to Iddah period etc.

The property received under succession was halved for women whereby a sister shall receive exactly half value of total property succeeded by her brother. Sunni law prescribes widow women to enjoy 1/8th of part of property and widower in same place receives 1/4th of property. In the judgment of Danial Lathif v. Union of India supreme court made maintenance available to wife beyond the period of Iddah and in Shaha Bano Begum court gave view similar to uniformity by doctrine of harmonious construction.

According to Dr Tahir Mahmood Muslim community must analyze on method of advancing UCC by their contribution rather than clinging on to securing personal laws.[ix] Triple talaq is yet another injustice towards wife giving husband unanimous power to divorce.

Even in Christianity one can find gender injustices such as wife being unable to divorce husband on grounds of adultery. The social training for girls to remain subjected to dominance of boys starts from young age. In Francis Ghosal v. Gabri Ghosal the Bombay High court observed that Christian communities still follows the limitation of coparcenary to women. Parsi and Jews also have traces of injustices on grounds of gender when analyzed on a deeper scale.

Thus, it is important to note that uniform civil code aims to establish individual liberty and equality as stated by SP Sathe. The method of rule and governance under personal laws used in our legal system at times reflects gender biasness which requires to be removed for an effective governance.

Gender Biasness under media coverage
A brief analysis on women issues addressed by media would make the picture clear that media had for quite a long time ignored nor left un-addressed the gender biasness in world as-well as in India. Though various organizations and groups were developed prior to independence with the common motto to uphold gender justice they were not covered through media lens.

As a result, these organizations and groups have been demanding the formation of uniform civil code from 1973 onwards. By 1980 women rights groups had started to demand and pressurize for gender justice as a result various discourses were made on that behalf.

The feminist approach in International political discourses started off with Cynthia Enloe in the work Bananas beaches and bases a feminist approach in international politics. In India it was Niveditha Menon who pointed out those gender-based inequalities within Indian Constitution.

How UCC paves way for gender justice? Gender based injustices are rampant in almost all of the social groups whether be it minority or majority. Though constitution ensure equality in terms of gender there is a vacuum explicated due to personal laws that Indians follow which often lend second spacing for women in various grounds.

Therefore, uniform laws were observed as an initiative for progressive step towards resolving heated issues with regard to gender justice in personal laws. Thus, uniform civil code was demanded by various groups including women's right groups.

The main argument for why UCC must be brought was supported with assurance of gender justice. We may analyze a number of cases such as Gita Hariharan v. Reserve Bank of India [x], Sarla Mudgal v. Union of India, Thota Sesharaathamma and Anr. V. Thota Manikyamma [xi] the verdicts were given to give gender justice and stop discriminations.

Mitakshara school of Hindu law gives priority to paternity as father shall be the head of family and if father had passed away then the position is conferred upon son, in matters of inheritance son was given the scope excluding married women, wife or daughter to take the post in Hindu undivided families. Among Christians women were not permissible to be the guardian of their own children. Marriages of children under age of majority was recognized by Muslim law.

Under Parsi law if a girl was adopted her rights were limited. Under patriarchal customary laws, Naga tribe does not recognize the right of women to inherit property. The Hindu succession act 1956 which was an initiative to give equal stand for women and men covers section 6 which has some degree of discrimination. The section gives right of succession to women but while compared to men their share of property under the right was more than women.

Moreover, the son was given right to inherit by virtue of birth under this act and the opaque nature of women rights remained same. Under section 9 of Hindu Marriage Act 1955 comes the restitution of conjugal rights which is often treated as discriminatory in nature towards women. Section 494 of Indian Penal Code has made bigamy illegal for which the wife could be made liable.

Section 2 of Dissolution of Muslim Marriage Act 1939 permits wife to sue husband for dissolving the marriage on various grounds but the act does not detail any ground for the said purpose. Section 18(3) of Hindu Adoption and Maintenance act 1956 lays down that an unchaste wife is out of preview to receive any aid of residence nor maintenance and also applicable to wives who have converted to some other religions.

Sustainable Development Goal 2030 has the core purpose attached to gender justice. The personal laws and enactment of various acts have to some extend explicitly ignored the concern of modern society based on gender justice. Uniform civil code claims to bridge this gap by recognizing the rights of women which were ignored under personal laws.

The discriminations against women traced under personal laws such as requirement of women to show a minimum of two reasons to get separated from husband in matters of adultery under Christian law and many other personal law lacunas could be wiped off by Uniform civil code. Other aspects of society and laws which place women second to men are sought to be changed by Uniform civil code.

According to Leila Seth "the uniform civil code aimed to be laid under article 44 wanted to create a uniform family law by which rather than integration of country under one rule a better position for women could be achieved as the plight of women in India was tragic and especially family laws needed reformation. The demand was placed to immediately form a draft UCC which needed to be discussed and debated upon.

The laws which portray gender biasness needed to be taken away with and replaced by gender neutral or equal rules[xii] Women in India does not ask for a Hindu civil law but Uniform civil law."[xiii] Leila Seth further recommend UCC as a method to move out to out of the stagnant ideologies that India society is clinging on for long time.

The only state in India so far Uniform civil code has been established is Goa where they call UCC as Goa family law. The citizens residing in Goa ignoring their caste, gender, religion is bound to follow this directive principle of state policy. In this state no gender biasness is permissible that even the family income has to be equally distributed among the members irrespective of their gender. The events that require official recognition such as marriage, birth, death is to be registered. Muslim men are disabled from their personal law right to perform bigamy.

Christian women may claim divorce for matters of adultery practice of her husband without any other grounds to support and the right to inheritance are also equal for all in each religion. Integration and fraternity accompanied by secularism have been upheld by our Indian constitution and as a measure to get this implemented the Article 44 in form of DPSP. Clarification and simplification concepts of personal laws could also be attained under Uniform civil code.

The de jure to de facto transition in conditions of women is the basic aim of uniform civil code. In Abdurahman v. Khairuneesa[xiv] the court held that at the point of enactment of this code there is firm belief that valuable aspects of law and custom enshrined in Islam will be taken and the simplification of matters for wife in case of dissolving marriages will be adopted.

Expected outcome of uniform civil code could be:
  • Enforcing Article 44 throughout Indian territory.
  • Primarily, a committee constituting religious and legal intellectuals is to be formed to discuss possible changes and reformation under a uniform civil code that shall not hurt the sentiments of religious minorities in India.
  • So far as Indian academics and normal curriculum are concerned, it does not focus on any gender-based studies at school levels. The tenderness of a child should not be corrupted by gender bias; therefore, the academic curriculum should include gender equality as a subject to major in school or at least as a subsidiary subject.
  • Gender sensitization wings could be organized as a mandate under a uniform civil code.
  • When personal laws get simplified and uniform laws are made, it becomes easy for our legal system to function, and courts to work efficiently.

Why implementation of Uniform civil code is at stake?
India being a home country to wide variety of caste, culture and religions makes the task difficult as Article 44 might hurt the sentiments of minorities of country observing their centuries old religious practices and customs which would be changed under uniform civil code.

Others argue that UCC could be violative of article 25, 26 and 29 which is a matter of discussion among legal scholars. In 1996 under the case of Pannal Bansilal Pitti the court opined that feasibility of Uniform civil code has to be re-examined.

The landmark judgement of John Vallamattom case[xv]had mentioned that a modern and well-established society gives a very little attention and link between personal and religious legal rules. VN Shukla has opined that Uniform civil code has to wait before its implementation for a bit longer as to avoid any complications.

Courts tends to delay the implementation as to conserve India's celebrated legal plurality. The reformation is tried by the apex court at various levels to ensure gender justice. Werner Menski[xvi] in his opinion gave the unparallel comparison on uniform civil code to demanding for the moon as he believe both are not feasible.

Optimistic future; A way forward

The women groups are of optimism that their demand for gender justice through the implementation of uniform civil code would be granted in near future. For achieving their goal, they have made a three-fold initiative. Primarily they would gather and demand for state level changes in certain law reflecting gender injustices.

Secondly, they would approach courts with cases for enabling the justice and create landmark judgements. Finally, they would collaborate with communities sharing similar view on the issues. As mentioned by Menski India is already working on the changes on grass root level right from long time ago. The cooperation is established between parliament and judiciary.

Various jurists have already laid down the possible modifications in personal laws making them more accommodative towards gender justice and they named it activism in step-by-step manner. They believe that this activism could achieve the aim of gender justice without hurting the sentiments of minorities in India.

Indians have always addressed by the rest of the world as the torchbearers of justice and peace. But acceleration of this aspects of justice comes to sudden break or atleast to a slow pace on matters dealing with gender justice. Uniform Civil Code shortly called UCC aims to make gender justice applicable in India and erase all the gender biasness.

But due certain reasons UCC remains as a directive principle of state policy so far applicable only in a single state of India. The focus was adjusted back to uniform civil code by the famous Shahbano Begum Case were a slight tilt to enable UCC was reflected from part of judiciary.

There are supporters of code who argue that implementing the code could pave way to gender justice and there are people who oppose the implementation on grounds to safeguard the interest of religious minorities in India. It is evident that the uniform civil code alone cannot reform the patriarchal structure of our country but it can to some extend stop the laws protecting patriarchy.

It is high time to consider the call for gender equality and equity in India on a serious note so as to preserve the true sense of justice in our mother land. "Gender justice is the root of development which was craved by our ancestors and their ancestors and now it is endowed upon us to make it work from womb to tomb."

  1. Sambavi Parthasarathy, UNDP Report exposes India's gender bias crisis, Front Line News Desk, (June 19 2023, 18:51 IST)
  2. Global Gender Gap Report 2020, World Economic Forum, (February 10 2020 10:43 IST)
  3. VN Shukla, Constitution of India 382, (EBC Publishing (Ltd) Lucknow 1950)
  4. CK Mathew, Uniform Civil Code; Importance of an inclusive and voluntary approach, Hindu Centre for politics and public policy (October 25 2019 17:26 IST)
  5. General Assembly Debate, Vol VII, 7.58.116-7.58.119, December 1, 1948
  6. Medha Sarin, Uniform Civil Code for gender justice, Volume 3, Ijmlh 665, 669-671, (2020)
  7. Sarla Mudgal v. Union of India (1995) 3 SCC 635
  8. Tahir Mahmood, The Muslim law in India "The uniform civil code- framing is imperative", AIR (journal) 164, 165-167 (1998)
  9. Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149
  10. Sesharaathamma and Anr. V. Thota Manikyamma 1991 SCC (4) 312
  11. Dr Sangeetha Shreeram, Union Civil Code an instrument of gender justice, Social science research network,(24 February 2020, 15:30 IST)
  12. Leila Seth, Uniform Civil Code towards gender justice, Volume 31, JSTOR 40, 42-46 (2005)
  13. Abdurahman v. Khairuneesa, Mat Appeal No. 82 out of 2004
  14. John Vallamattom and anr v. Union of India 5 SCC 2003
  15. Werner Menski, The uniform civil code debate in Indian law; New development and changing agenda, Volume 9, German Law Journal 224, 225-227 (2008)

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