Women are the backbone of a family structure and are at the helm of balancing the ethical, social and moral fulcrum that encompasses the society. They have taken long strides in overcoming ill practices which hindered their participation in social, political and economic sphere. For this, initiatives undertaken by social reformers and rigorous churning and introspection by the society to shed repressive and orthodox social practices have played a pivotal role. As a pluralistic society, Bharat has the cultural ethos to flourish in a diverse yet united co-existence. This nation is committed to the Sustainable Development Goal (SDG 5) set by the United Nations to ensure that women are equal partners in growth and development.
The country is poised to achieve greater heights of development in this ‘Amritkaal’ as we celebrate 75 years of independence from colonial rule. The commitment of the state to women welfare and empowerment is exhibited in its various schemes to educate under ‘Beti Bachao Beti Padhao’, to provide smoke free cooking under ‘Ujjwala Yojna’, housing benefits under ‘PM Awas Yojna’, encouraging entrepreneurship under ‘Mahila-E-Haat’, various scholarship schemes to name a few. The state has a significant role to play in their hand holding, to facilitate equal participation in all walks of life. However, the social, religious and customary practices and provisions of law for women belonging to different communities need to be addressed so that women can partake in the social, economic, political life of the nation at equal footing. The Constitution under Directive Principles states that “The state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” The Constituent Assembly deliberated exhaustively over the Uniform Civil Code for personal laws on the same lines as what was being framed for civil and criminal laws. It has been a challenge for the successive governments to codify personal laws as various practices which are discriminatory to women would contradict the letter and spirit of the constitution. One of the most important legislations addressing social and customary practices that was codified was the Hindu law, post-independence. The Hindu Code Bill was a comprehensive legislation that brought statutory provisions to family law for all people who were not Christians, Muslims or Parsis.
As a secular democracy, it is incumbent on the law makers to provide equal rights to practice, profess and propagate religion, and this has been laid down under Article 25 of the constitution but equal lawful protection of the fundamental rights of women regardless of their minority, majority status, is still a challenge for the lawmakers
Progressive societies indulge in introspecting their social norms, practices and customs for course correction to ensure social and gender equality. Before the codification of family laws for Hindus, there were different prevailing provincial legislations defining the boundaries of personal laws. Six different legislations were passed by Parliament between 1954 and 1956 that abolished polygamy, codified divorce and granted inheritance to women. The issue of rights of women from the minority community was also raised during the formulation of the Hindu Code Bill. J.B. Kriplani, a well-known socialist leader, charged Prime Minister Jawaharlal Nehru with communalism for bringing a law on monogamy only for Hindus. The minority community was excluded from the social reform initiated. The judiciary through its various judgements has been distinguishing between religious faith and religious customs and practices. The Bombay High Court had stated in a judgement that “what the State protects is religious faith and belief. If religious practices run counter to public order, morality, health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole”. Recently, Allahabad High Court called upon the state to initiate the implementation of Uniform Civil Code (UCC) as “it is a necessity and mandatorily required today”. The constitutional provisions under Articles 14 and 15 are inclusive in providing the right to equality and right against discrimination and exploitation. As a secular democracy, it is incumbent on the law makers to provide equal rights to practice, profess and propagate religion, and this has been laid down under Article 25 of the Constitution but equal lawful protection of the fundamental rights of women regardless of their minority, majority status, is still a challenge.
Child marriage has been prohibited by passing of the Child Marriage Prohibition, Act, 2006. In the year 1890, 2000 women had launched a signature campaign in Mumbai and Pune for legally defining the age of girl for marriage. It was then that the Age of Consent Act was passed in 1891 and marriageable age was decided at 12 years. Since then, a lot of water has flown through the Ganga and in 1978 the age of consent for marriage was raised to 18 years. The age of consent for marriage under the Indian Christian Marriage Act 1872, Parsi Marriage and Divorce Act, 1954 and Hindu Marriage Act 1955 for a woman is 18 years but the Muslim Personal law allows girls once they attain puberty eligible for marriage. This is not only discriminatory and arbitrary but also violates many other penal laws like Protection of Children from Sexual Offences Act (POCSO), 2012 and Prohibition of Child Marriage Act, 2006. Physiological and mental maturity of girls entering nuptial ties is of utmost importance. Hence, a uniform law for all women entering nuptial ties irrespective of their religious affiliations will strengthen the secular tenets of the Constitution.
In a recent case in the Kerala High Court, Sister Lucy, a senior nun had expressed solidarity with her fellow nun who had been repeatedly physically exploited by a Bishop. Subsequent to her decision, Sister Lucy was dismissed from the Franciscan Clarist Congregation (FCC) for disobeying the church and not allowed to attend holy mass. The reasons given for her dismissal were that she was leading a lifestyle not fit for the church like obtaining a driver’s licence and publishing a book of poems. Her earnings as a teacher in a church-supported school were also withheld. The state and its law need to defend not only the fundamental rights but also the human rights of every Indian citizen.
The present government has asserted to give equal rights and status to women belonging to the Muslim Community by bringing Muslim Women (Protection of Rights on Marriage) Bill to overcome the inequity in their divorce laws. There are miles to go as medieval social customs such as polygamy and Halala still loom large over the spirit of gender justice. Women of Parsi community have also raised concern in the courts over their excommunication in case they marry outside the community. Even if married under the Special Marriage Act, 1954, which has the provision of civil marriage for individuals of diverse faiths, a Parsi woman ceases to be a Parsi unless she obtains declaration from a competent court stating that she has continued to practise her religion even after marriage. This infringes on the rights of religious freedom enshrined in our constitution.
To protect the tribal community and their customs and traditions, principles of personal laws codified for others are not applicable on them. In a recent judgement, the Supreme Court denied the share of monetary compensation in lieu of acquisition of land belonging to a tribal man, to his daughter as the Hindu Succession Act, which guarantees equal shares for male and female heirs, is not applicable on the tribal. Women as daughters, mothers, sisters and wives are desirous of the same fundamental rights irrespective of their religious and community orientation. At a time when India is poised to undertake all the dimensions of development, so as to equip and prepare for the ‘Amrit Kaal’, empowering 50 per cent of the population with uniform laws and human and civil rights, will go a long way in unifying the nation and upholding the spirit of the Constitution.