Article 44 of the Constitution says “The State shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”. In 1985, the Supreme Court had awarded maintenance to a divorced Muslim woman, Shah Bano [ (1985) 2 SCC 556]. A bench presided by the then Chief Justice of India YV Chandrachud had said that a common civil code would foster national integration by removing disparate loyalties to law with conflicting ideologies. This verdict was reversed by the then government.
A decade later, in 1996, Sarla Mudgal case also advocated Uniform Civil Code. Even recently, in 2015, the Supreme Court once again asked the government to take a quick decision on Uniform Civil Code to end the confusion over personal community laws.
Unfortunately, Article 44 is still lying in the cold storage. It’s a hot potato. When vote bank politics rules the roost, where is the question of Uniform Civil Code for citizens? All governments have been insincere.
Non implementation of Uniform Civil Code continues to perpetuate various ills in our society. Triple talaq is one such ill.
In August 2017, The Supreme Court declared instant triple talaq unconstitutional and correctly struck it down. The verdict brought relief for Muslim women who have been suffering for ages in the name of Islamic customs. In four months, Parliament initiated a legislative process by making triple talaq void and also a crime. Lok Sabha passed the bill [The Muslim Women (Protection of Rights on Marriage)] swiftly without adequate debate.
The crime part in the bill is deeply flawed. It would promote social strife amongst Muslims in India, and make the plight of every Muslim woman, afflicted with matrimonial discord, worse off ultimately.
Making every pronouncement of talaq upon his wife a criminal offence will irretrievably destroy the marriage. After landing in jail, which husband would live with his wife? How will the jailed husband ensure subsistence allowance for his wife and dependent children?
If the idea is to save the marriage [the word “void” in respect of talaq aims only to save the marriage], then this bill fails miserably to achieve the objective. As and when Muslim women grasp the consequences of criminality in the bill, their celebration would turn out to be short lived. They are likely to be worse off without husband’s income and/or care. If the husband is in jail, his earning capacity would stop/wane. Why should he at all bother to comply with clause 4 (subsistence allowance to wife and dependent children) of the bill while in jail?
A bill with a laudable objective has been messed up utterly by fastening criminality. The remedy prescribed by the Lok Sabha has been worse than the disease. Rajya Sabha ought to knock out the criminality and bring in clauses to secure hapless Muslim women afflicted with matrimonial discord. Law ought to be the result of human wisdom for fostering social cohesion and not for trigger social strife. Let’s not divide Muslim men versus Muslim woman.
(Biswajit Bhattacharya is a former additional solicitor general of India)