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Why triple talaq verdict will help BJP implement Uniform Civil Code

22 August, 2017 2:46 PM
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Why triple talaq verdict will help BJP implement Uniform Civil Code

The BJP has reasons to cheer over the Supreme Court's landmark judgment today holding instant triple talaq "void, illegal and unconstitutional". Not just because the judgment would help the BJP derive electoral mileage but also because it helps the ruling party move towards fulfilling one of its important promises - of bringing about a Uniform Civil Code.

The Uniform Civil Code was discussed in BJP's manifesto for the 2014 Lok Sabha elections. Page 41 of the manifesto said: "Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive Principles of State Policy. BJP believes that there cannot be gender equality till such time India adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonising them with the modern times."

Striking down instant triple talaq in itself will not help the implementation of the Uniform Civil Code. However, it would surely help push the BJP to move in that direction. After the triple talaq case, which has been decided today, two other contentious issues of polygamy and nikah halala are pending before the Supreme Court.

In May, when the then attorney general Mukul Rohatgi had requested it to take up all the three cases, the apex court said, "The time we have in hand to hear arguments (during vacation) will not be enough to deal with all three issues. We will keep pending other issues - polygamy and nikah halala. Decision on triple talaq may or may not have a bearing on the other two issues."

The BJP did not have to take the legislative route to fulfil its promise. The orders of the courts have certainly helped the ruling party. In the triple talaq case, the Supreme Court has asked Parliament to legislate a law against triple talaq.

Various courts, through their judgments, have stressed the precedence of secular laws over personal and religious codes.

On Sharia law: PIL was filed against a Sharia court operating as a court of law from a Chennai mosque forcing its judgments on the Muslim community. Madras High Court declared all Sharia courts in Tamil Nadu as illegal and instructed the state government to curb unauthorised courts.

On guardianship issue, according to an 1890 law, a Christian unwed mother can assume guardianship of her child after issuing prior notice to the father for permission. The Supreme Court ruled that unwed mothers can become the legal guardian of a child. Religion must be kept at bay from law in a secular country like India, it said.

On divorce issue, section 10A(1) of the Divorce Act, 1869, which governs the law of divorce for Christians, says a couple has to live separately for two years to seek divorce by mutual consent. The Supreme Court asked for the Centre's response saying, "Should Christians stay separated for minimum two years when the period prescribed for others is one year? It does not make sense to us."

On maintenance issue, Muslim personal law mandates iddat period (roughly three months after divorce) for maintenance. The Supreme Court said Muslim women are entitled to seek maintenance under section 125 of the CrPC beyond the iddat period which grants the same relief to wives, children and parents.

On polygamy issue, Muslim personal law grants men the right to have four wives. However, the Supreme Court ruled that polygamy is not integral part of religion and monogamy is a reform within the power of the state under Article 25.

On fatwa (edicts) issue, a PIL alleged that existence of Sharia courts and the fatwas issued by them were a threat to India's judicial system. The Supreme Court ruled that Sharia courts have no legal status and religious decrees and fatwas are illegal if they tread on the rights of an individual.

Regarding adoption issue, in Islam a child remains the true descendant of her biological parents even if she is legally under the care of someone else. The Supreme Court ruled that Muslim women have the right to legally adopt children, even though their personal law does not give them that right.

The system of different personal laws for different religions is a colonial legacy. The British implemented criminal and civil laws for all Indians but did not touch personal laws because religion was a sensitive issue.

However, with the BJP and Prime Minister Narendra Modi promising gender justice and equality, and courts deciding on cases pertaining to them, the country is moving towards having a Uniform Civil Code.


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