INTRODUCTION
There exist two different categories of laws: civil laws and criminal laws. Criminal laws are the same for everyone in India, regardless of caste, religion, race, gender, etc. However, this is not true of civil laws; some civil laws apply to all people while others do not because they are exclusive to a particular faith or society. India is a diverse nation in terms of food, clothing, language, religion, and even personal laws. Divorce, marriage, adoption, inheritance, and other personal legal issues are governed by different personal laws according to different religions.
GENDER JUSTICE
The term “gender justice” simply refers to sex equality. According to Oxfam gender justice is the full equality and equity amongst women and men in all spheres of life, resulting in women and men equally defining and shaping the policies, along with the decisions that affect their lives as well as society as a whole. Nevertheless, the Supreme Court of India recognized the third gender alongside the male and female in its groundbreaking decision in National Legal Services Authority v. Union of India & Ors. Thus, gender justice encompasses the third gender as well as justice for women.
UNIFORM CIVIL CODE
During the writing of its constitution, the Constituent Assembly discussed Article 35 and ordered the state to enact a uniform civil code throughout the country on November 23, 1948. It was noted that Article 35 of the draft Constitution be added as a part of the DPSP in part IV of the Constitution as Article 44 and Article 37 will reflect upon its non-justiciability due to the ambiguous nature of the subject and dispute among the assembly members. By establishing a consistent legal framework for private issues like marriage, divorce, inheritance, and adoption, among others, it seeks to ensure gender justice, social equality, and national integration.
RELATIONSHIP BETWEEN UCC AND GENDER JUSTICE
Inheriting a society marked by glaring gender disparity as well as domination and exploitation of the ‘weaker gender’ by the societally ‘stronger gender’, has caused innumerable problems. For the progress of society, Gender Justice is essential as men, women and other genders, all in unison, play a major role in the progress of society. Socialization starts in the family, which is often the epitome of gender bias and discrimination against women. To tackle this, a Uniform Civil Code is required where irrespective of all personal laws, there shall be one common law according to which marriage, divorce, succession and maintenance shall be governed.
ENSURING GENDER JUSTICE THROUGH UCC: JUDICIAL PRONOUNCEMENTS
Though Goa initially had a uniform civil code and Article 44 had been enshrined in our constitution, it was merely a directive principle which thought quintessential for promoting equality vis-a-vis Gender Justice, the importance of the same was realised in 1985 in the case of Mohammad Ahmed Khan vs Shah Banu Begum..
Maintenance, A Matter of Right: The Tale of Shah Banu Begum Case
Under the personal Muslim law, a woman is entitled to maintenance during the subsistence of marriage and after divorce to the period of iddat. Shah Banu Begum after being given Triple Talaq prayed before the court to allow her maintenance via Section 125 CrPC.. Though it was ruled in her Favor, the government overturned it following public pressure cited the Quran and stated that the judgment went against Islamic principles. Denying maintenance would indirectly relieve the burden on the husband, who can marry as many times as he wants and divorce the wife. Having one maintenance law for all sections of the people would ensure ‘real equality.’
Sharya Banu: The Victim of ‘Talaq, Talaq, Talaq’
Declared unconstitutional, the instant, irrevocable Talaq-ul-bidder is one of the most arbitrary practices in the Muslim community. After 15 years of marriage and rendering unpaid valuable service to the family, if the person is unilaterally divorced, it is against her dignity and snatches away her right to equality. Having a uniform divorce law would put men and women on equal footing and promote gender equality.
Sarla Mudgal vs Union of India: the case where the court stressed the importance of the Uniform Civil Code
Under Hindu law, monogamy is the rule, but polygamy is permitted under Islamic law. Thus, there have been instances where people, to overcome the hurdle, convert to another religion to marry a second wife without divorcing the former. Justice Kuldip Singh, in this case, states that when almost 80 per cent of people have been brought under codified law, there is no justification for keeping in abeyance the introduction of the Uniform Civil Code. Uniform marriage conditions would prevent people from converting from one religion to another for the mere sake of ‘benefit’ arising from the personal law of that religion and ensuring Gender justice. Inheritance Rights
When it comes to the inheritance of property, women are often neglected, and they don’t receive their deserving portion. Before the 2005 amendment, women were not allowed to inherit coparcenary property but following the landmark Vineeta Sharma vs Rakesh Sharma. Judgment as well as the amendment, has been possible yet a close analysis of the Hindu Succession Act, of 1956 Reveals the gender inequality and inequality in inheritance. In the recent 2023 case of Mamta Dinesh Vakil vs Bansi Wardha, the Bombay High Court held Section 15 to be discriminatory and needs to be amended.
In the case of Muslims, the lion’s share belongs to the male; only a pittance is allowed for the women (wife in this case), i.e., 1/8th part of the property when there are children and 1/4th in case of no children. Again, when a Muslim daughter is concerned, she becomes a residuary when there are sons.
Amongst the Christians who are governed according to the Indian Succession Act, of 1925, though it has been successful in treating both men and women on equal footing initially there was discrimination amongst the Christian males and females which was addressed in the famous Mary Roy vs the State of Kerala Case.
It is glaring to see that though all Indians, each of them has different laws to govern succession, while some are getting their due rights while some are being left aside. Gender justice can prevail if not only intra-religion equality is maintained but also inter-religion.
Marriageable Age
Another important thing to note is that marriageable age. While for most codified laws, it is 18 years, in the case of Muslims, there are no such provisions. A uniform marriageable age is required to not only ensure equality and protect the bodily integrity of women but also to control population explosion.
Divorce Rights
Muslim males have unilateral divorce options like Talaq-ul-Asan, Talaq-ul-Hasan, Ila, and Zihar, which puts pressure on the women who have little to no say in this matter. While in Christian divorce which is governed by the Indian Divorce Act, of 1869, the woman has to prove more than one ground for divorce. Along with Adultery, she has to prove it is violative of Article 14 and 21 Of the Constitution and discriminates against Christian women.
In Pragati Varghese v Cyril Varghese, the court stated that women are forced to live with the men they hate, which is living like a sub-human. A standardized divorce law should be set up that gives equal rights to men and women and prevents male unilateralism.
Marriage Rights of The Third Gender
We often overlook the third-gender people and people belonging to the LGBTQ+ community. Even after decriminalizing Section 377 of IPC in the famous Navjot Singh Johar vs Union of India, same-sex marriage is not recognised. Even when the Apex Court recognised the Right to Marriage and choosing a life partner of one’s choice in cases like Shakti Vahini vs Union of India and Shafin Jahan vs Ashokan KM, there is not a single law to recognise same-sex marriage as marriage has been sociologically defined as the union between biological males and biological females. Personal laws would never allow a union between same-sex couples as it considers it a crime yet in a Welfare State where all the citizens have equal rights irrespective of their gender, such personal laws should be set aside and replaced with a Uniform Civil Code which shall be treat not only both the sexes equally but also ensure equal treatment and assurance of rights to all the genders.
CONCLUSION
It is evident that the Uniform Civil Code essentially protects all genders from oppressive personal laws and promotes gender equality in society but UCC is far from reality due to the diverse and pluralistic nature of our country. The legislature is sluggish to enact it due to opposition from a few sects of the society. Recently, in the case of Jose Paulo Coutino vs Maria Louiza Valentina Pereira, the Supreme Court reignited the issue of the Uniform Civil Code, quoting the example of ‘Goa.’ UCC and the preservation of individual culture and diversity shall be harmonized with each other for the country’s progress.
Author(s) Name: Hrijit Das (Department of Law, University of Calcutta)
