Uniform Civil Code?
Published by Ravikiran Rao August 5th, 2003 in GovernanceHi this is Ravikiran here. I used to blog over at The Examined Life. But I’ve unilaterally decided to make this my home for now.
Why?
Well what happened was that yesterday in a fit of temporary insanity, I went and deleted a lot of files on my server. What I didn’t realise at that time is that I deleted a couple of files which I need to post on my site.
So now I am in the sad situation of being thrown out of my own home, a fact which I realised when today I lovingly composed a post and tried to access my site to post. I can’t rectify the situation till I get to my real home, a goal which given my current workload seems achievable in January 2005.
So I decided to make myself at home here. I know, I know, as a matter of courtesy I should have asked Yaz before merrily ensconcing myself in his place, but hey, as per Indian tradition you should be happy if you find that guests have broken into your house. I’m sure Yazad will be delighted to have me here, and thankful that I did not change all his passwords and lock him out of his home while I was at it.
Anyway, here is the post that I was so eager to blog.
I’ve changed my mind about the Uniform Civil Code. Now I am opposed to it. Here is why.
Suppose that there is a tribe in India which has a rather quaint custom. On a particular night of the year, on pooran maasi ki raat let’s say, the wife is allowed to sleep with a man of her choosing, other than her husband. You may find the custom disgusting, but this post is about the law, not about your taste.
Now suppose that a man belonging to this tribe sues his wife, also belonging to the same tribe, for divorce on the ground that she has committed adultery. Assume that they were married under the custom of the tribe, so presumably both knew what they were getting into.
If you were a judge trying this case. What would you do?
You could recognise that a marriage is essentially a contract between two people. So whatever was implicitly agreed upon between the two when they got married should hold.
But you take a contrary view, that a marriage is a marriage is a marriage. If they want protection under the laws of the land, they have to follow the terms set by the law.
Whereupon the priests of the tribe promptly say that they won’t be “marrying” anyone anymore. They will conduct a “nuptial ceremony” during which they have to sign an agreement. The agreement is basically a rehash of the Hindu marriage act, which has provisions governing fidelity to each other, penalties for violating the terms of the act, maintenance and custody rights in case of separation, inheritance for children, etc. but with the lone added provision that allows the “female half” to follow the disgusting custom mentioned above.
Now you are obliged to enforce the contract aren’t you? (You are a judge remember?)
I rest my case.
Oops sorry. I don’t. Now the problem is that being recognised as husband and wife has implications which go beyond being an internal matter between the two. There are many laws where it matters whether you are husband and wife or not. Citizenship is one thing that comes to mind. There might be a law - I’m not sure - that if an Indian citizen marries a foreigner, his/her wife/husband is automatically entitled to be a citizen. So do we extend the same recognition to a spouse-by-contract?
So here is the legal dilemma. Marriage is not a creation of the government. We have provided legal recognition to a popular custom, giving it the status of a contract. But we are rigidly insisting that the custom followed by one particular group of people has a special status and not the others. Why should we force the Qazi to sanctify an agreement he does not believe in?
So let us continue to have different personal laws for different religions, but let us also have a common civil code. If two muslims wish to be married under the common code, let them trek to the registrar’s office and do so.
Wow Ravikiran…Apna hi ghar samjho…you’re very welcome here. ;-)
This is becoming quiet a party, Yaz’s blog!! Neat :-)
Ravi, first you plan to overthrow Yaz’s “regime” and now you take over his blog - what next?
hi Ravi (Hi Yazad!nice blog!I do read it often and like doing so!)
Nice case…the whole problem is, nobody seems to be sure on the exact extent of the UCC. this could be a blessing, since a national level debate can take place and the extent can be decided so that specific customs can be respected and given their place.
Possibly, we can have a system similar to the Roman Law, where redress was available under either the Law of the Land of the conquered territories or the Roman Law mechanism.But the difference would be, we would be extending it even to the personal issues, which, as far as I know, was not the case under the Roman system. On the other hand, I feel we have politically and socially progressed since the Roman times and this might be possible.
Welcome Ravi.
I fully agree. (And needless to say, very happy that someone else sees the point of view I had briefly mentioned here). I think that contract law and the law of torts should be able to handle personal issues as well. Incidentally, some sort of a “common code” already exists. E.g. The Special Marriage Act. I know of friends who are married under it although both are Hindus.
Aaaarrrgghh! Can it be true? Has Yazad snared our hero (Ravi) in his Jal? What sinister designs is he cooking in his CrapLab? Stay tuned to find out…
And on a more serious note, I never knew of a Special Marriage Act. Sounds like my kind of thing.
Ravi, is your “pun”itis that secret biological weapon that you threatened to infect the world with? Looks like you have leaked the contents a bit and managed to infect Gaurav and Mahesh :0
Mahesh, now look what you have done. You have started something which promises to be even more devastating than my SARS series.
True sign of a seasoned politician - blame the “victims” of conspiracy you have started ;)
I have not quite sorted out what I feel about UCC. Though your argument is sound, somewhere I sense a flaw that I can’t quite detect at first attempt. Thinking….
Yup there is a subtle flaw :)
Dunno if this is the flaw that I was sensing, but still….
Your argument is sound under the assumption that it is a perfect world. However the “free consent” section of the Contracts Act is what comes into picture here. In theory, yes every person, man or woman is free to marry of his or her own accord. However in the Indian scenario, there is often coercion on the girl.
It is seen in the following forms -
Duress- used to browbeat the girl into marrying
Threat to commit suicide - According to a 1917 judgement, threat to suicide is considered coercion.
Undue influence - Improper exercise of a power over the mind of one of the contracting parties
Since such factors very frequently hamper the “free consent” condition, treating marriage like just any contract is not right.
Like other contracts, it is difficult to prove lack of free consent in this case. Theoretically, in a debate room or on a blog we might say that a woman has the right to refuse to marry and if she gives in then she is giving up the right to dissent of her free will. We all know that the real world, especially society and family, doesn’t work this way.
The UCC would do away with a lot of contentious clauses which a woman(or man) might be opposed to, but is coerced into accepting just because of family pressure or community traditions. And I do not look at it as just a battle against “triple talaq and 4 weddings”. Even the Hindu and Christian civil codes are full of anomalies that need to be corrected.
Ideally, there should be no civil code at all. But if there is one, it should be a uniform civil code. It might not be a libertarian solution, but to me it appears the most viable one.
Of all the words of mice and men, the saddest are `It might have been.
Gaurav seems to forget there is some duress for guys as well, though socially acceptable or condoned promiscuity is allowed for men. I am for a UCC, but the provisions of which are limited and allow for independent negotiation of marriage contracts. Ofcourse there could be standard contracts available for those who don’t like to work out the nitty gritty, like there are for Leasing a House, in principle each contract is seperately negotiable, but in practice a standard template contract is signed with the approriate changes. I think the core implication of a UCC, is that: just because people have been born into a particular religion it should not imply that all their personal dealings should mandatarily fall under the provisions of a state mandated version of that religion. A limited UCC would allow for the kind of different customs and practices that are followed within the folds of each religion itself.