Sunday, October 25, 2015

Supreme Court: Finally Touching the Untouchable

It is interesting that, probably one of the most famous litigators of Independent India is a 62 year old Muslim women, mother of 5, from Indore. Her maintenance law suit (Mohammed Ahmed Khan Vs Shah Bano Begum (1985 SCR (3) 844)) opened a Pandora ’s Box, which till then Indian leaders where trying to hide under carpet.

Shah Bano Begum was divorced by her husband in 1978. Subsequently, she filed and won (right to alimony from her husband) a criminal suit in Supreme Court of India. Under fire from fundamentalists, parliament sided with them and went out of its way to beat this poor women. Thus passed 'Muslim Women (Protection of Rights on Divorce) Act, 1986' to dilute the judgement. Poor Shah Bano, she may never expected that she would win the case in court and lose it to Parliament of India.

However, in later judgements (Daniel Latifi case; Shamima Farooqui Vs Shahid Khan case) Supreme Court interpreted the act in such way that, it was helpful for destitute Muslim divorcées who were denied alimony from their former husbands.

Current SC

30 years after SC ruling on Shah Bano case; in which court asked government to frame universal civil code; two judge bench of SC has ‘Suo Moto’ ordered the registration of PIL (Public Interest Litigation) to consider gender discrimination suffered by Muslim women due to arbitrary divorce and second marriage of their husband when the first marriage is in force.

The question is, should the law consider this gender discrimination faced by Muslim Women as the violation of Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 21(Protection of life and personal liberty) of Indian constitution and other international covenants.

What is Uniform Civil Code?

Before going further let’s take a look at Uniform Civil Code. This is a proposal to replace existing personal laws based on scriptures and customs of various religions with a set of common rules applicable to every Indian. These laws cover Marriage, Divorce, Inheritance, Adoption and Maintenance. Currently because of the flaws in debate across the country, this suggestion looks more like something targeted against Muslims. But this outlook is not current.

The main idea of Uniform Civil Code is bring in same set of law for everyone in the land. However it is true that, main beneficiaries of this law may be Indian Muslim women. Even under considerable opposition government some way passed Hindu Code Bill in 1956. This one and various acts like (Hindu Widows Act, Commission of Sati (Prevention) Act (1987), Dowry Prohibition Act (1961) ) etc bought in considerable equality for Hindu Women under the law.

Currently only Goa have common civil code.

Politics behind the Code

Flawed debates across the country made Uniform Civil Code look like a draconian law targeted against Muslims. Fundamentalists are adding more fuel to the fire without recognising the importance of this law. Uniform code is much more than a simple law.  Unfortunately, fearing the backlash politicians may never dare to implement it.

About Future

Hope that we will all live to see a day when all matters related to law – no matter whether it is personal, civil or criminal – will be under a common law. If Supreme Court can bring in this one, then it will be one of the greatest service to the nation.


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