Diversity within Religious Communities, Caste and Scheduled Tribes

The Hindu family laws have been extensively amended by the three southern states in India — Tamil Nadu, Andhra Pradesh and Kerala. Agricultural land is excluded from the operation of the Shariat Act.

Marriage among lower castes is less sacramental and more contractual (with consent of adults marrying) without the rituals of saptapadi and kandyadan. The practice of bride price prevails amongst the lower castes (Kanya shulka).

Christian tribals all over the country have been exempted from the Indian Succession Act. The four Hindu legislations are also inapplicable to the Scheduled Tribes.

Specific Hindu, Buddhist, Jain and Sikh customs running counter to general statutory provisions enjoy full legal protection under the law, including those cus­toms (i) violating statutory rules to sapinda relationship and prohibited degrees in marriage; (ii) customary marriage rites replacing saptapadi; (iii) customary divorce and (iv) adopting major and married children.

Amongst Muslims, customs and usage relating to wills, legacies and adoption enjoy statutory protection even under the Shariat Act. Sunni Bohras and Khojas are governed by Hindu customs and usages.

One is afraid that the UCC could be a threat to this rich diversity. The legisla­tions enacted to regulate Hindu personal laws have threatened the local customs and traditions, particularly those that were more pro-women. The journey towards “uni­formity” is informed by Brahmanical traditions and smriti texts, ignoring the vast body of traditions of the Other Backward Classes, Scheduled Class and Scheduled Tribe. The Hindu community is sought to be unified around smriti texts.

The Muslim Personal Law is also applicable in all diversity, which is evident from the preceding discussion. That is why the Muslim Personal Law Board dith­ers from codifying their law and one is afraid that the Wahabi-Hanafi fiqh would dictate codification, not because it is in the best interest of the community, but because they are better organized and networked to influence the process.

What we need is a “Uniform” Civil Code and not “Common” Civil Code. Dr Ambedkar said in the Constituent Assembly that the UCC need not be enforced on unwilling citizens. We should march towards a uniform regime of gender-just family laws but also draw from the diverse traditions and allow space for diver­sity. Gender equality alone should be guiding this process and the same could be achieved through gradual reforms of existing family laws.

Notes

1 Sarla Mudgal v. Union of India. (The Supreme Court of India 1995).

2 For discussions on Muslim women and law on India see Asghar Ali Engineer. Muslim Women and Change. vol. xvi, no. 12, December 2013, Wearing Burqa Will Now Be a Crime. vol. xvi, no. 12, December 2013, Islam and Human Rights (part-1), vol. xvi, no. 5, May 2013, Islam, Family and Modernity, vol. xvi, no. 11, November 2013, Who is a Progressive Muslim, vol. xvi, no. 11, November 2013, Can Gates of Ijtihad Be Closed?, vol. xvii, no. 1, January 2014, Muslim Women between Tradition and Modernity, vol. xvii, no. 1, January 2014, http://twocircles.net/2010jun11/can_gates_ijti- had_be_closed.html, http://www.newageislam.com/islam,-women-and-feminism/ muslim-women-between-tradition-and-modernity-/d/3213

3 Constituent Assembly. Constituent Assembly Debates: Official Report Volume VII (New Delhi: Lok Sabha Secretariat, 2003).

4 Express News Service. “Uniform Civil Code must for National Intergation, Says Law Minister,” The Indian Express, 11. October 14, 2015.