By Sandhya Jain
In the current atmosphere of unsolicited appeasement of the Muslim community by the ruling UPA, it seems futile to advocate a uniform civil code. Yet the time is propitious as a small village in Greater NOIDA has stood up for a motherless child. Its decision contrasts with the attitude of the ulema who in September 2004 made a sick young woman leave the husband she loved, and meets contemporary society'snotions of justice and fair play.
To recapitulate, in 1999, young Gudiya was married to Army jawan Arif, and ten days later he left for the Kargil war; she never saw him again. When the army declared him presumed dead, Gudiya was married five years later to her cousin, Taufeeq. She was eight months pregnant with his child when Arif suddenly returned from a Pakistani jail. Amidst reports of financial demands by Gudiya'sfather, Arif refused to divorce her (their marriage was legally valid) and demanded she return to him. He also expressed reluctance to take responsibility for her child, an attitude that caused widespread social revulsion.
Gudiya expressed herself in favour of remaining with the second family, where she was happy. But the Muslim religious leadership decided to make her a showcase for the supremacy of the Shariat, and in a very one-sided and male-dominated televised panchayat on a well-known channel, the visibly unhappy young woman, who was then running a high fever and suffering high blood pressure, was forced to return to Arif. All secular, reformist and visible faces of the Muslim community left the poor girl to her fate.
Fourteen months later, Gudiya died a prolonged and painful death of multiple organ failure on 2 January 2006, as a result of septecaemia and other complications following a stillborn delivery last year. Despite muted media coverage, news of her death shocked many, and there was outrage when Arif went around giving press statements that he would adopt her child from Taufeeq. Many felt Gudiya would not have died if she could have lived with Taufeeq, as there would have been no immediate second pregnancy. There was also a feeling that if Arif invoked the Shariat to take back his unwilling wife, he could not infringe the rights of the biological father.
This is therefore the best time for the government to push ahead on the issue of a uniform civil code, to cater to the legitimate needs of citizens caught in a cusp between their traditional roots and a changing world.
These sentiments seemed to have weighed with Gudiya'sKalaunda village, which has stepped forward to ensure the best interests of her infant son, Mateen. Keeping in mind the fact that both Arif and Taufeeq are young men who may marry again and have families, the panchayat has given Gudiya'sfather, Imamuddin, custody of the child till he is eighteen years old. Taufeeq, the biological father, has been given guardianship rights, with the proviso that he deposit Rs. 30,000 and transfer half his property in the name of the child. The decision has been recorded on stamp paper and signed by Arif, Taufeeq, Imamuddin, and panchayat leaders Akhtar and Rajiv Sharma.
It is difficult to imagine a more just settlement, and the fact that it has arisen out of the collective wisdom of a village community shows how traditional India works when left unmolested by sensation-seeking activists and self-appointed leaders. It shows how castes and communities in India quietly cooperate to give life meaning and harmony.
The issue of Mateen'scustody shows that Muslim communities at village level are not so hidebound about adherence to a literalist interpretation of their personal laws, as is often claimed. Nor are they incapable of innovation, if spared the intrusive presence of regressive maulvis, who make their living out of terrorizing the community to fall in line with their diktat on any issue.
I believe the Gudiya tragedy has privately spurred the Muslim community to undertake a more flexible approach to its personal laws and their interpretation in a modern world. This is therefore the best time for the government to push ahead on the issue of a uniform civil code, to cater to the legitimate needs of citizens caught in a cusp between their traditional roots and a changing world. A uniform civil code would have helped Gudiya to live with the man she loved.
A uniform civil code did not require community-based approval, any more than the other provisions of the Constitution. The sole purpose of a Muslim personal law was to achieve a political goal.
Close on the heels of the Gudiya case, 25-year-old Imrana was allegedly raped by her father-in-law. When the crime became known, the caste panchayat declared her marriage dissolved and asked her to marry the alleged rapist; she was directed to treat the father of her five children as a ?son.? The Deoband Darul Uloom upheld the Ansari caste decision, but later denied issuing a fatwa after the matter became political with the Bharatiya Janata Party and CPI (M) condemning the judgment. This indicates that even Deoband concedes that evolving sensibilities have to be accommodated.
The Imrana case led to numerous cases of incestuous rape being reported in many parts of the country, alongside regressive judgments by local maulvis. It created awareness that Muslim women need more agency in their lives. There is a feeling that the then dominant national leader, Jawaharlal Nehru, denied Muslims equal citizenship in free India by cynically refusing to weld a tortured society into a harmonious whole, and perpetuated communal separatism to serve his votebank politics.
The Constituent Assembly shelved the uniform civil code through a subterfuge called Article 44 of the Directive Principles. A uniform civil code did not require community-based approval, any more than the other provisions of the constitution. The sole purpose of a Muslim personal law was to achieve a political goal. The nation was told that a separate civil law for Muslims did not discriminate against Hindus.
But the issue was that the personal law gave the ulema disproportionate power over the community and oppressed ordinary Muslims. The Muslim sense of being backward and disadvantaged in independent India has its genesis in this abandonment by the secular state, even though Muslims are not aware of this deeper reality. If the community realizes that its best interests are served in a uniform civil code, then a nation-wide exercise could be undertaken to revise and improve the UCC by extending positive aspects from the Islamic tradition to other groups. Former Prime Minister Atal Bihari Vajpayee pointed out during a parliamentary debate in 1998 that the Islamic practice of taking a woman'sconsent at the time of marriage greatly appealed to him; others have appreciated the woman'sright to seek annulment of an unhappy marriage.