Law Ministry Advises Panel against Action Without ‘Community Demand’

By Syyed Mansoor Agha

At a time when certain BJP-ruled states are exploring the implementation of the Uniform Civil Code, replacing personal laws regarding family matters, before the 2024 elections, it is learned that the Union Ministry of Law and Justice has recently conveyed to a high-power Parliamentary Committee the desirability to review personal laws related provisions at the demand of “sizeable majority” of the community concerned.

As per media reports, this was conveyed to a 28-member strong “Standing Committee on Personnel, Public Grievances, Law and Justice” headed by senior BJP leader Sushil Kumar Modi. It has seven members from the Rajya Sabha and 21 from the Lok Sabha. Importantly, the committee, having a majority of the MPs from the BJP-led NDA, has been formed to examine the subject of “Review of the Personal Laws” during its tenure of the year 2021-22. This adds to the indications that before the 2024 parliamentary elections, the party is venturing into something big. Raising the issue of UCC may be beneficial for the party, at least to some extent. It may boomerang as well.

GOA VISIT

The Parliamentary Committee visited the State of Goa in the last week of June. Obviously, the aim was to study the working of the Portuguese-era common family law (Portuguese Civil Code, 1867) relating to marriage, divorce, succession, etc. The 155 years old law is still in force even after Goa along with Daman and Diu was annexed with India in December 1961. The act is equally applicable to all religious communities of the state, including Hindu, Muslim, Christian, etc. Reportedly the Ministry of Law also feels desirability to review the Portuguese law, which allows Hindus to have a second wife, yet underlines the desirability for a requisition from a “sizeable majority” of the State.

The demand for Uniform Civil Code (UCC), tantamount to negating different communities’ right to live with their traditional family and social systems, is not new. It spills across three eras: The British colonial era, the Congress era, and post the rise of the BJP. A section of the society which is intoxicated by majoritarian push, wants all communities to culturally sink into them and abdicate from their age-old identities.

The Blind Eye

Sadly, increasing curse of same-sex marriages, the immorality of ‘live-in relationship’, to have keep (woman as a wife without marriage) and the evil of extra-marital relationships do not pinch them. However, they feel disturbed even with imagination of a Muslim having the second wife. They use the issue of UCC to chide the Muslims. Years ago the Law Commission of India had clearly opined that Indian society is not ready to accept the concept of UCC. It is a factual assessment. Every section of Indian citizens loves to follow its customary traditions and practices, otherwise Special Marriage Act 1954 (also known as Civil Marriage Act) alike the UCC is available for the last 68 years, but attracts only a few who chose inter-community alliance. Even those who get their marriages registered under this act later solemnise their alliance as per religious rituals and family customs.

TWO ISSUES

The UCC has long been a BJP promise. Presently two legislations are in the pipeline as small steps towards it. State BJP of Uttarakhand had made an electoral promise during the last assembly elections to implement the Uniform Civil Code in the state. After returning to power, the State Government formed a five-member panel, headed by retired Justice R.P. Desai of SC to examine the issue. The work of the panel is in its initial stages. Time will tell how this panel takes the opinion of the law ministry, and how the state BJP builds public opinion to adopt UCC and divorce their centuries-old customary practices and rituals of marriages and succession.

IN THE PARLIAMENT

Another matter is pending with Joint Parliamentary Committee. A bill namely, “The Prohibition of Child Marriage (Amendment) Bill, 2021” was abruptly introduced in the Lok Sabha on 21 December 2021, seeking to raise the minimum permissible age for women marriage from 18 years to 21. The proposed legislation seeks to supersede all existing marriage laws and personal laws and amend them accordingly, disregarding constitutional provisions to protect the rights of minorities and their personal laws. Presently the following five Acts govern the age of Marriage:

The Hindu Marriage Act, 1955, and Indian Christian Marriage Act, 1872 prescribe the age of 18 years for the bride and 21 years for the groom. Same minimum ages (18 for women and 21 for men) are prescribed in The Special Marriage Act, 1954, which mainly deals with inter-faith marriages.  The Child Marriage Act, 2006 prohibits the marriage of a girl below 18 years of age. For a man, it is 21 years. Only The Muslim Personal Law (Shariat) Application Act, 1937 does not suggest such age limits but the criterion is the attainment of puberty for both the boy and the girl. It is most natural as the age of puberty varies depending upon various physical, psychological, social, and geographical factors.

THE OBJECTIVE

Union Minister for Women and Child Development, Mrs. Smriti Zubin Irani, while introducing the bill claimed, “The proposed legislation is secular. All women from all faiths, under Hindu Marriage Act or the Muslim Personal Law, should get equal rights to marry.” Look, how a proponent of Hindutva is taking shelter under the “secular” umbrella to deny constitutional rights of minorities and liberty of the citizens to get married as per their personal laws.

Her argument is deeply deceptive. In fact, the proposed legislation does not grant any right to the woman, instead, it seeks to curb the freedom of an adult woman to enter marital life at the bloom of her youth. What is the wisdom in crushing the quite natural physical and psychological urge of adulthood?

Furthermore, the proposed law will create ugly dilemmas. First, the law of the land does not prohibit an unmarried woman from establishing intimate relationships at will with as many men as she likes if she is 18 years plus of age. Ironically, the proposed law prohibits and criminalises her act if she prefers to first protect her morality by solemnising marriage and limit her relationship with one, even if she is 18 plus, but under 21.

Secondly, it is tantamount to promoting immorality as prevalent in western societies, which are plagued with unmarried mothers. Think Madam, what are you gifting to the young daughters? Please do not push them in physically uncomforted and mentally entangled life. It is a trusted truth that at the young age, the woman is in a better position to become a sweat-heart spouse and a better mother. At an older age, it becomes difficult for the couple to mutually adjust with and bring up the children as required.

[The writer is Chairman, Forum for Civil Rights. email: [email protected]]

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