TWISTED JUSTICE

PERSONAL LAWS VIS-À-VIS CODIFIED LAWS

Sumantra Sinha*

Picture this. Woman is considered as no more than a commodity and thereby, inherited. Men can marry as many women as they please. A father-in-law rapes his daughter-in-law and what the village panchayat does is dissolve her marriage. She is asked to treat her husband as her ‘son’. More bizarre, she is ordered to spend seven months in isolation to purify herself to qualify as the father-in-law’s wife.

Keeping aside all the progress that has been made in fifty-eight year old Independent India, one fact still stands true – ours is a patriarchal society in which woman is still subjected to violence – physical, emotional, verbal as well as domestic. This is manifested in the modern day cult figures such as Imrana followed by several others like Jyotsnara Begum of Assam.

Men and women are biologically unalike. Women are not physically as strong as men. So mother nature bestows on men the role of being a protector and maintainer of woman. But in Indian pretext, woman has since long been crucified and justice has been sacrificed under the camouflage of personal law. Quoting Former Attorney General Soli Sorabjee – “Personal laws do not enjoy any immunity from compliance with constitutional obligations guaranteeing fundamental rights. Besides, one of the fundamental duties prescribed by the Constitution is to renounce practices derogatory to the dignity of women under Article 51A(e).”

The portrayal of the woman’s misfortune in media raises the issue of political capitalization of Uniform Civil Code as well. Leaving out the left, most of the other ‘secular’ political parties were in consonance with the mullahs and their dictated terms. It must not be overlooked that Quran is a book of guidance. Unfortunately, a tribe of Muslim scholars do not use it in the same sense. Instead, they concoct opinions and attribute it to the holy book.

The winds have changed their direction since the infamous Shah Bano case. The shrouded secrets are now being questioned. Women empowerment and reformation is the primary agenda, instead of conciliating the vote banks.
In the light of the Imrana case, it is heartening to note that the Darul-Uloom Deoband has repealed its decision due to the outcry within the Muslim community. It is noteworthy that the clergy who are supposed to proffer law and justice to the society, seek only to superimpose their decisions with coercive force. When dictates are passed following religious principles, the basic human rights should not be violated or offended. It only ridicules the religion and brings a bad name to the community.

There’s one more issue that needs to be addressed. Is it only the woman who has to undergo the process of isolation for purification. India is a secular country. Going by this view, if the woman is being punished under Islamic law, so should the rapist. That means Imrana’s lustful father-in-law should also be stoned to death as per the Islamic criminal law which was abolished in 1936. The law was applied on the woman but the rapist was sent to judicial custody under the Indian Penal Code.

It’s high time that we apprehend the intricacies of Uniform Civil Code. It is imperative that discriminating elements related to matters of marriage, divorce, inheritance, succession and so on be renounced from the personal laws of all religions. It is needed acutely to enact just and equitable laws not based on gender biasness. The real problem lies in the various sects, sub-sects and schools of thought of Islam, each interpreting personal laws in its own way.

As far as the Imrana case is concerned, she was already married and she never had any sort of relationship with the father-in-law prior to marriage with her husband. The rape by the father-in-law was committed after her marriage to her husband, and therefore the question of annulment of her marriage does not arise.

The Indian woman still yearns for justice. Grass-root level reforms are required not only because it will beleaguer her from the ills of a patriarchal society but also provide her a better platform to exhibit her dexterity. A meticulous interpretation of the Uniform Civil Code in consonance with the Constitution is the only recourse for the Imranas to endorse their amour propre.

In the end, we also would do well to remember the following words of Mahatma Gandhi: “ I will rather see the race of man extinct than that we should become less than beasts by making the noblest of God’s creation the object of our lust.”

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* National Law Institute University, Bhopal.