Legal reform, Religion, Child marriage

The Uniform Civil Code in India: Gender justice for Muslim women?


Discussions in India around the Uniform Civil Code (UCC) come at a critical time for Muslim women to demand legislative reforms. While the country debates around UCC, it is essential that Muslim women get legislative protection on issues of polygamy, child marriage, halala/muta/misyar, equal inheritance rights, equity in custody/guardianship rights and the right to legally adopt.

For the Muslim community, the first set of reforms began in 1937 in the form of the Shariat Application Act, followed by another quick codified law in 1939 (Dissolution of Muslim Marriage Act). For the next 50 years, no reforms happened and for the worse, the 1986 Muslim Women’s Act (MWA), removed Muslim women from the ambit of the criminal law of maintenance and brought in a law that absolved Muslim men of their responsibility to pay post-divorce maintenance. In 2019, the fight for a law against triple divorce was drawn-out, with many religious groups opposing any disruption in the practice that had rendered scores of Muslim women homeless and destitute.

Muslim women have suffered the most from discriminatory practices imposed on them in the name of Islam.

It is high time that Muslim women get a gender just law protecting their rights within the family in the form of a comprehensively codified Muslim family law (MFL).

Codify the MFL based on the BMMA draft

Bharatiya Muslim Mahila Andolan (BMMA) has been demanding a codified Muslim family law since 2007. To ensure legal protection to Muslim women on issues of polygamy, child marriage, inheritance rights, adoption and custody of children, BMMA spent eight years preparing a draft of Muslim Family Law which it regularly sends to the government to remind them of their responsibilities towards Muslim women’s demand for justice within the family. This process has enabled BMMA to bring the issue of law reform out of the closet into an open debate and exposed the blatant sexism and misogyny of Muslim clerics.

Including the Muslim community in existing laws

In the last three to four years, BMMA has also been demanding piecemeal reforms by ensuring inclusion of the Muslim community in existing polygamy and child marriage laws.

All non-religious laws relating to family issues are, without exception, applicable to all citizens. But within and outside the Muslim community, and within the judiciary, there is an understanding (or rather a misunderstanding) that these laws are not applicable to the Muslim community. As a result, Muslim women are deprived of their right to legal protection through the laws of the land. While all women, including the minority Christian and Parsi women, enjoy the provisions of IPC 494 against polygamy, Muslim women have been kept out of its ambit.

Various High Court judgments on child marriage, too, give an ambiguous picture. BMMA has been demanding that Muslim community must come under the ambit of the Prohibition of Child Marriage Act, 2006 and 494 IPC. If not a fully codified family law, at least allow existing laws against polygamy and child marriage to be made applicable to the Muslim community.

The Uniform Civil Code must provide legal protection for all

While BMMA understands the ruling government’s push for UCC to achieve gender justice, portraying the Muslim community as the main hurdle to it serves no one. Many other groups – such as the Sikhs, the Tribal community and political parties – have also shown apprehension. It also means that the government must have more deeper consultations with all religious and ethnic groups, going beyond the submissions to the Law Commission. UCC must not be a polarising issue, especially when its intent, as stated by the government, is national integration. Government must also not make UCC another stick to beat the Muslim community with since UCC is not a Muslim issue but concerns all citizens.

Communities, including the Muslim community, will not be open to any Code if it appears to polarize society or is seen to be targeting a specific community.

Whatever the UCC looks like in the end, if at all, it must reflect the needs of all communities. The process of arriving at a Code must be inclusive and collaborative.

Muslim women will not benefit from any uniform law if it does not provide them with legal protection against discriminating practises, such as halala, muta, or misyar. There are many empowering practices of the Muslim community (like the mehr, express consent of bride, out of court arbitration structures, etc.) which must be retained for the benefit of women.

After assimilating the suggestions from the Law Commission, if a UCC is truly what all communities want, then the draft must be shared with all and with open possibilities of further changes and amendments. If the government is truly concerned about gender justice, then the UCC must be inclusive of all voices of women across caste, community, and ethnicity. And it must not be a rushed affair for political benefit.

Muslim women have waited too long, but not anymore.