Equality before law, I think not!

Over time, I have come to believe that the Indian family laws are deeply flawed, in that they encourage different interpretations of the same issues based on who the law is to be applied to. So, if a Hindu has some issues, his/her issues are to be resolved by some law, but the same law may not be applied to a Muslim or a Christian. Although I agree that religious and communal differences do matter, that a secular state should so differentiate amongst its people on the basis of their religious affiliations is to me an irony.

Private laws are defined to be that part of a legal system which is part of the jus commune that involves relationships between individuals. Family laws basically deal with, but not limited to, family-related issues, such as marriages, adoption, domestic abuse, divorce, alimony, parental responsibility, as also property settlements in the event of the termination of a marriage.

So, basically these are issues which are common to all faiths, to all people, to all communes. Then why have different laws to govern different people?
That customary law has been prevalent in India for so long is and can never be seen as justification for implementing a common civil code for its citizens. And mind you, the Constitution of India also envisaged the administration of an uniform civil code for its citizens, and as such included the same as a Directive Principle.

Basically a uniform civil code envisages administering the same set of secular civil laws to govern different people belonging to different religions and regions. This supersedes the right of citizens to subject themselves to different personal laws based on their religion or ethnicity. The superseding of this right should not be construed to be an attempt to destroy one's communal identity, and in truth, maintaining such an identity in the context of law and jurisprudence is contradictory to the concept of all being equal before the law.

That the communes who in India clamour for separate personal laws can very well exist peacefully under the common civil codes in European countries and beyond shows that in truth common civil codes are not conflicting with religious obligations. Perhaps I am being a tad optimistic about their existence, but as far as I know, and I stand to be corrected should I be wrong, there seems to be no real problem in these countries. So why should India have such a problem with implementing what it had envisaged at the dawn of its freedom?

Different personal laws for different communes are inherently unequal, and hence in contravention of Article 13 of the Constitution which guarantees the equality before law and prohibits discrimination among citizens on the basis of their religion, race, caste, sex, or place of birth.

It isn't that there doesn't exist an example of a uniform civil code in India, which has been accepted by people of different faiths. The Portuguese Civil Code, applicable in Goa till date, owing to the promise exacted by the people of Goa from the Government of India in 1960 that their hitherto applicable laws would remain in force, is a fine example of such a code, and should ideally serve as a model for a larger Civil Code for the entire Indian nation.

The idea that the Muslim population per se is incapable of being governed by laws other than those mandated by the Shariat is wholly incorrect. Pakistan, which maintains itself to be an Islamic Republic, has altered, amended, and modernized its Muslim Laws to a greater extent than the 'secular' India. Turkey and Tunisia, predominantly Muslim countries, have outlawed polygamy, a privilege that India denies to all save its Muslim citizens.

The Special Marriage Act of 1954, similar in all aspects to the later Hindu Marriage Act of 1955, envisaged a uniform treatment of all citizens with respect to marriage, divorce and alimony issues. That this act was later stonewalled by the conservatives in the Muslim community is sad, for this law would have considerably reduced the inherent inequality that the Muslim Personal Laws continue to display between men and women. The Muslim Personal Laws offer no strong penalties against child marriage, marital abuse, nor do they confer upon the wife the right to terminate her marriage, as it does for her husband. Implementation of these Laws also have been sadly not inspiring, wherein people have violated not just private laws, but also Sharia laws, and have done so with remarkable impunity.

It isn't that I am opposed only to the Muslim Personal Laws. The Hindu Inheritance Laws, until recently, discriminated amongst men and women. Daughters have a lesser right upon the properties of their parents than their male siblings. A husband may appropriate a greater share of his deceased wife's properties in preference to her parents or relatives, but a wife may not do so in preference to her deceased husband's relations.

Christian law permits a husband an easy divorce on merely stating grounds of adultery, while the wife must prove her claims of her husband being adulterous or cruel. Christians are forbidden from willing their properties to charitable and/or religious institutions, as stated by the Indian Succession Act. The Hindu Undivided Family or HUF enjoys a special tax system, but an undivided family adhering to any other faith may not claim such a privilege. Sikhs are permitted to carry a kirpan or dagger on grounds of religion, but should any other person carry it, he/she is liable to be arrested as a danger to public safety.

So basically the rot is in all communes. No religion or commune is ready or willing to forsake its unique privileges and rights that their personal law confers upon them. 50 years have passed, and Article 13 remains just another noble intention in a great text. When and how this nation will truly treat its citizens on an equal footing in all matters remains to be seen.