'UCC is right on polygamy, wrong on moral policing'

Civil Society New, New Delhi

SOCIAL reforms have for long eluded Indian Muslims because of an obdurate clergy. Among the few willing to take them on has been Zakia Soman and women activists of the Bharatiya Muslim Mahila Andolan working with her.  But their efforts have met with little success and the established order has been able to brush them off.

Now, a law ushering in a Uniform Civil Code (UCC) in Uttarakhand does away with polygamy, sets 18 as the marriageable age for girls and, in addition to the earlier abolition of triple talaq, outlaws unilateral divorce.

Soman says she has no option but to welcome the UCC in the absence of voluntary reforms within the Muslim community. But she worries about social issues being used for political ends by the BJP. Moral policing is also a matter of concern. The UCC is both good and bad in parts, she says in an interview to Civil Society. And it would have been so much better if it hadn’t been drafted for just one state but been brought in nationally with more consultation.

 

Q: How do you see Uttarakhand’s Uniform Civil Code? What is your opinion?

Over the years the UCC has become a political idea. That has its own implications. The sad part is that I’m forced to sort of welcome it because our community is not going to reform our personal law. At least not in my lifetime. So, the next best option is to have codified and just laws. 

 

Q: Which aspects of Uttarakhand’s UCC do you welcome and which do you find troubling?

Firstly, the age of marriage being legally announced as 18 for girls and 21 for boys is very welcome because the broad understanding in the Muslim community is that the age of marriage is puberty which can mean 14 or 15 or even 13 years. It’s basically child marriage by another name.

There have been judgments by different high courts. If I remember correctly, four or five judgments from the Delhi High Court and the Punjab and Haryana High Court held the marriage of a 14 or 15 year old girl to be valid because she happened to be Muslim.

There can be several dimensions to such cases. I am not saying underage marriages should be criminalized. Not at all.  What should be addressed is this whole concept that because you are Muslim you are legally entitled to claim that your age of marriage is puberty. Actually, even 18 is too early for marriage.

Our realities are that out of poverty, or lack of any other options, or whenever a ‘good match’ comes along, parents are always in a hurry to marry off their girls. It’s mainly out of helplessness. But we have to take society forward and it is high time we started building awareness that the age of marriage should, at the very minimum, be 18 for girls.

 

Q: How do you deal with it without criminalizing it? If you have a law which says the age of marriage is 18 or 21, anything below that becomes an offence.

Even the provisions of the Child Marriage Act regard any marriage under 18 of a girl as not void, but invalid till she attains the age of 18. So here is where the political aspect kicks in. In the current climate, it will become a licence to go after a Muslim man if he marries a girl who is not yet 18 and put him behind bars. These are the inbuilt contradictions or gaps.

But I still welcome it. It is a beginning. Perhaps some will pay a price for having married an underage girl. But it will signal to the community that you have to wait till the girl is 18 and the boy is 21.

Like we have seen in Assam, men who married girls who were underage when they married them were jailed. The women now have three or four children and with the husband behind bars they are destitute. The purpose of law is to bring about a just and fair society and not vigilantism or a punitive kind of mindset. You can’t score political points by weaponizing the law.

Then, disbarring bigamy and polygamy is a very good provision, although the latest survey of the NFHS (National Family Health Survey) shows that there is not a very big difference between the rate of polygamy among Hindus and Muslims. Among the Hindus it is something like 1.3 or 1.4 and amongst the Muslims it’s 1.8 or 1.9.

But polygamy and bigamy amongst Hindus are disbarred by law. Bigamy attracts a seven-year jail sentence. Among Muslims, the common understanding built by the clergy is that if you are Muslim you can have four wives and it’s legal.

Whereas I’m very clear that the Quran does not permit polygamy. Even when it is permitted, there are strict conditions and it is the context that is important. So, in today’s context, there is no justification whatsoever for polygamy.

 

Q: When you raise these issues with your own community and religious leaders what is the response?

The response is good from the community per se, from women and their families, from those who have no vested interests. But from the clergy the response is, Who are you? You are just women. We don’t have to learn from you. You are nobody to teach us.

Then they start saying, You are women who aren’t even in Islamic dress. First of all, nobody knows what is Islamic dress. Is there something called Islamic dress? They’ll go after me personally, saying that I’m married to a Hindu so I have no right to speak up, that I am acting on behalf of the RSS. This is patriarchal and misogynist. 

 

Q: Do you think that the complete lack of willingness to reform on cultural and quasi-religious matters is entirely patriarchal?  

It’s a combination. A patriarchal mindset is a key reason, but there are other reasons as well such as poverty, backwardness, lack of education, lack of any awareness, lack of any options within the Muslim community.

In the past several decades the condition of the Muslim community has been going from bad to worse. The social-economic status and all the human development indicators signify this. And, of course, there is politics. The few leaders who are in politics don’t really care to empower the community. They perhaps even prefer to let the community remain as it is so long as they keep voting for them.

It’s a combination of all these factors. But the deadly aspect about patriarchy masquerading as religion is that when you oppose polygamy, they say you are going against Islam. After that nobody is willing to stand up. Because nobody wants to be told they are going against their religion.

 

Q: You have a Muslim elite. People at the highest levels of the judiciary, people who are scholars, who’ve been teachers, professors, vice chancellors…. Why have they not taken up reform of personal law?

This is a very, very important dimension. If we look at some other communities, say, the tribal community, there has been a whole process of building a critical consciousness before and after Independence. There has been a process of democratization within the community. There was Ambedkar. There was Mahatma Gandhi. Savitri Phule.

There are several Adivasi leaders who have engaged with the community and given back to the community. Inspired by them, even post-Independence, a lot of Dalit and Adivasi leaders worked within the community. This is singularly lacking in the Muslim community.

By and large, 99 percent of Muslims give back to the community in the religious sense. It can be zakat or donating to a madrassa or building a masjid. Basically, giving some kind of material help to those in need. But building a democratic consciousness in the community to make them aware about their citizenship rights, discuss social harmony and participation in a multicultural, multi-faith society have been neglected areas.

The Muslim middle class is also very, very small. The large mass of Muslims is poor. Maybe just one percent would be rich. Typically, post-Independence and after Partition, the number of Muslims belonging to the middle class became very small and it is shrinking because of the kind of challenges they face – political challenges, communal challenges, a discriminatory environment. The Muslim community does not have a sizeable or even a noticeable middle class which could contribute to community well-being and thereby nation building. The nation is, after all, built up of all communities and they are supposed to build bridges, reform and educate.  

 

Q: What about divorce, inheritance and adoption?

The next good provision of this bill is that it is ruling out unilateral divorce. It’s virtually making divorce mutual because it calls for the participation of both husband and wife.

Even after abolition of instant triple talaq, unilateral talaq is taking place under the Hasan method. Under this method divorce is not pronounced in one instance but over a period of three months without consulting the wife at all or without the wife having any say. So that gets ruled out with this provision.

The provision on sharing property and inheritance does not discriminate between sons and daughters and mothers and fathers. That is also a welcome provision and an important aspect. The Uttarakhand law does not discriminate between mother and father regarding guardianship of children. It talks about the best interests of the child and provides for mother’s sole custody for a child under five. These are good provisions.

What is problematic are the provisions on live-in relationships. Those provisions are based on some kind of moral policing of young couples, people who have fallen in love. It has been in the air for some time now. We have been seeing moral policing for quite a few years.

The provisions are draconian and violative of the right to privacy, even of the right to freedom. I’m sure people will challenge them. It’s virtually the state deciding who will fall in love with whom. That’s deeply problematic.

You can vote at 18. You can get married at 18. But you can’t decide your own life at 18. You can’t live with somebody you want to live with. There’s a contradiction here. Why, then, keep 18 as the age of marriage if you think it’s not good enough to live together? I hope there is outrage against this live-in provision.

 

Q: If every state is going to make its own UCC, we will have some 28 UCCs. Then how is it a ‘uniform’ civil code?  

Exactly. If we look at Article 44 of the Directive Principles in the Constitution under which it is said the state shall endeavour to bring about a Uniform Civil Code, that spirit is about the whole nation. It’s not saying 28 states will have 28 different UCCs. Again, I would say it’s all about politics.

 

Q: Were you consulted at any point of time by the Uttarakhand state? Do you know what kind of consultations might have happened? 

No, we were not consulted when the Uttarakhand law was coming about. But they are saying that they received over 200,000 responses from the public in Uttarakhand and they’ve held face to face consultations with about 10,000 people who attended other consultations organized by the National Commission for Women in Delhi. That was on the overall question of reform in law and the Uniform Civil Code. I have attended those consultations but not at the state level.

 

Q: You would, however, support the idea of a Uniform Civil Code?

In itself a Uniform Civil Code is about gender justice and gender equality. If we take it forward with genuineness and the right spirit, it can be a really progressive law which can further women’s equality in our society. That is why it was pushed by Ambedkar and Nehru and supported by women freedom fighters at the time of Independence.

 

Q: What would for you be the perfect process for coming up with a UCC? 

The goal should be gender justice and not scoring political brownie points or consolidating your own political position.

We have enough jurisprudence in our country. If we want to look elsewhere, we can look at some of the countries in the West where live-in relationships are regarded as dignified and respected as marriage. There is no clause that says you have to register in a month or you will be sent to jail.

Instead, their law says that if any two people are invested in each other on a long-term basis, they can voluntarily register their relationship. They can have children also. There is no illegitimacy attached. We can even follow some of the jurisprudence by the Scandinavian countries. We have so many legal luminaries who have thought about the UCC, written and researched it. We can get some of them together, task them with this, and they will come out with a very good, genuine UCC that can be implemented across the country.