1st ICWM Mumbai Meeting in Mumbai
Updated: Jul 18, 2018
The first meeting of ICWM in Mumbai was held on 9th August, 2014 around a discussion on the Uniform Civil Code at YWCA Andheri West. 40 women and men attended the day long meeting.
The Meeting began with a welcome from the YWCA and ICWM. Sr. Julie presented the Background, Vision, Objectives and Strategies of the ICWM.
Advocate Susan Abraham made a presentation on the Constitutional & Supreme Court positions on Uniform Civil Code. While she pointed out that the Uniform Civil Code is important, we have to watch out for how the UCC is formulated and by whom and ensure that it follows a bottoms up process.
Although the Uniform Civil Code (UCC) has been branded as pandering to a particular community, Adv. Abraham said this is not true. What is needed is awareness among all communities. Then the communities have to ask for a UCC.
Different religious groups have their own personal laws in India, this is a left over from the British rule in India. All these personal laws have elements that are good and that are against women’s rights. A Uniform Civil Code should include the good elements of all the personal laws of the different religious groups. However the change to a Uniform Civil Code cannot be done overnight, as there are patriarchical elements controlling all religious communities who would be against a Uniform Civil Code.
Several cases that have come up before the Supreme Court have brought about judgments that give us a positive perspective with regard to Article 44 which proposes that India should formulate a UCC in the Directive Principles of our Constitution.
However, just like Art. 44, there are other articles in the Directive Principles from Art. 39 to Art 47 that also are important and have to be implemented. E.g. Art 39 proposes equal right to means of livelihood; Art. 44 proposes health’ etc. But Art 44 became contentious when the Shah Bano Case opened the discussion on the UC in 1985 after which the Muslim Women’s Protectgion Act came into effect which was followed by the 1992 demolition of the Babri Masjid. UCC was touted as promoting national integration rather than the loyalties to invididual personal laws.
Though several judgements of the SC have recommended a UCC, it is the legislature and not the judiciary that has to bring about the change.
It should be noted that polygamy and bigamy is prevalent in all religious communities. It is common in tribal communities. Often men from other communities who want to remarry without a divorce convert to Islam as also the woman who marries them. Men who legally want to take a second wife have to get a divorce from their first wife. For this reason the need for a UCC is necessary. But the State has been ambivalent for political reasons so the Supreme Court has had to keep bringing up the need for a UCC.
Adv. Susan Abraham gave the example of the case of a Muslim woman who had been raped by her father-in-law. A Fatwa was issued for her to leave her husband and begin living with her father-in-law, even though her husband continued to accept her as his wife. In a case like this the Supreme Court ruled that the fatwa has no legal binding and the woman could lodge a complaint against it and get justice.
Khap panchayats also will come under this ruling.
In India since we have so many examples of backward personal laws operating, women need the protection of Civil law to protect them.
When the constitution was formed, India was declared to be a Sovereign, Secular, Socialist and Democratic Republic. However politicians are whittling away all the four constitutional principles of the Preamble by their market oriented policies.
Adv. Jaya Menon pointed out that Adv. Susan Abraham brought up some important issues with regard to the UCC for our consideration. The UCC is necessary but not in haste. In the present political environment the UCC has been made a political issue though it is a legal issue. Politicians, for their own ends politices issues into minority/majority but not as a woman’s issue.
All personal laws as they are today are discriminatory to women. In Muslim law, marriage is a contract not a sacrament. Women are not free to choose their partner. However a UCC in the name of national integrity could turn into uniformity in discrimination. Politicising it obstructs a good debate required to bring about a truly good UCC that is egalitarian to all sections and genders.
Today tradition rules in the name of “Family and Religious values”. Family & Religion are 2 institutions that reinforce women’s subjugation. It promotes ‘wifely duties’, stereotypes and no equality in the marriage partnership.
The Special Marriage Act (SMA) at the present time is an alternative to the UCC. The SMA is good. According to Hindu law marriage is not required to be registered.
The UCC should become a bottom up procedure. Since Religion and family reinforce patriarchy, religious heads have a hold on the family as Indians, especially women are devoutly religious.
Christian couples have to suffer through two procedures for marriage break up – Civil Divorce to obtain the civil effects of marriage breakup and annulment which is a procedure that declares the marriage null and void; i.e. the marriage never existed to begin with. This is because the Church does not believe in divorce. Because of this I have know of 4 cases of conversion to Islam from Christianity.
Also, under the Christian Marriage Divorce Act, a woman cannot get restoration of her belongings and division of property, she has to file another petition for this.
One participant brought up the issue of a married man who has a live-in partner, how can the first wife get her rights.
Jaya informed her that in the case of marriage breakup Section 125 of the CrCCP can be used for obtaining Maintenance. Today live-in partners have rights as well. So often it is upto the first wife to obtain all evidence to show that her husband has deserted her and is now living-in with another woman.
In conclusion Ad. Jaya pointed out that communities need to be aware and demand to be consulted in the procedure for creating a UCC.
A sister who is a Canon Lawyer shared that when she was a counselor in the Calcutta diocese she dealt with 80 marriage cases, but could reconcile only two because only two were not in new relationships. All the others were in new live-in relationships, some even had children.
One lady from the CNI rued the fact that in the case of inter-ritual marriages, the Catholic Church treats the marriage like an inter-faith marriage. The Christian partner is not even allowed to receive communion.
At the end of the meeting a membership drive was conducted and 18 women joined as members. The co-ordinator for the region was Virginia Saldanha. The women requested to have another meeting on the UCC to get a better understanding.