My wife drafted our marriage contract, including all details on who had the right to what, and the terms of divorce and who could initiate it. This is both legal and religiously approved in Islam, in which a marriage requires only an agreed upon contract, and relevant witnesses. I doubt that many can say the same in India, certainly not the abandoned wife of Narendra Modi – whose appalling treatment is the shameful reality that nobody sees fit to mention when we discuss creating an equitable law for marriages.
Let us be honest. The origin of our problem with personal law is a Hindu one, even if it now involves all communities in its trap. The best guide to this is, of course, the debates in the Constituent Assembly, but a shorter read is Ronojoy Sen’s excellent Articles of Faith, on the Supreme Court’s judgments on matters of faith.
As Sen masterfully demonstrates, the Indian independence movement was aimed at both social and political liberation. This led to retention of (religious) family laws into the Constitution in order to entrench equality into the most important social unit: the family, primarily the Hindu family. This is why the Hindu Code Bill created such a ruckus, because it championed equality. Ambedkar resigned over the compromises that Nehru made in order to win passage of partial reforms. But the very idea that the state, through codifying religious laws of marriages, divorce and inheritance, could advance a progressive vision was based on both Nehru and Ambedkar’s belief that only the state had the power to further equality.
In pursuing this course, even if they disagreed with each other on how to do so, what Ambedkar and Nehru did was to make the judiciary the determinant of what a religious law was. Since that fateful decision, our courts have been manfully (an emphasis really on “man” here since there are so few women judges, much less women of repressed castes and communities) trying to discover liberty and equality in religious scriptures to align with those Constitutional principles. They have done a commendable job over clerics screaming, “The judiciary should not interfere in religion!”
The clerics are both right and wrong in their contention. They are right that religion is not the job of judges, they are wrong in arguing that laws of marriages, divorces, and inheritance are “religious laws”. Of course, all religions talk of marriages, it was a social reality that existed before religious laws were codified, it is a social reality that has continued to evolve after they were codified. That new social reality, including access to matrimonial and other rights to the queer community, has to be recognised. And the laws governing these relationships need to be seen as contracts involving free citizens, not sacraments that cannot adapt or change with societal needs.
The only way out is a Uniform Civil Code that – very narrowly – defines these rights accessible to people regardless of caste, creed, gender or sexual orientation, while leaving it to individuals to voluntarily follow cultural norms as long as they do not violate the principles of equality and liberty. That is something that the judiciary can rule on, and it would allow communities to pursue their own freedoms, whether based on religious understanding, or cultural norms, as they see fit, while preserving the right of the Indian citizen, the essential component of sovereignty in “we, the people of India”.
Such a dynamic change requires leadership, the type of leadership that is entirely missing in a party headed by a man who has shown scant regard for the rights of his own wife.
But even if such a law were to somehow be passed, by itself, no matter how well-intentioned or well-crafted, it would not bring liberty without the power to exercise those rights. We banned dowry in 1961, but a study of 74,000 marriages that had taken place between 1930 to 1999 showed that 90% of them involved dowry. Look at our long history of “social boycotts” and heinous violence that Dalit communities have faced when they have asked for their rights under the Constitution.
Ambedkar alluded to this in his speech on November 25, 1949, saying, “In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life?”
Seventy-four years later, we have an answer: forever, if we do not create pathways to opportunity for our marginalised communities. And among those the fate of women – whose rights Ambedkar championed so mightily – are among the most deprived.
One of the reasons that my wife and I manage our partnership as one between equals is because of the education and opportunities that our families have enjoyed over generations. One of those privileges is the fact that we are both children of families in which the mother worked, families that take it for granted that women have equal rights in a marriage. But Indian social and economic reality, as Ambedkar pointed out so long ago, allows for very few such cases. India’s female labour force participation is amongst the lowest in the world, nowhere near the 61% estimated of China, or the 56% of the United States. No, we rank below that of Saudi Arabia (28%), and even our cousins in Pakistan (25%), at a mere 24%. (Bangladesh, one of the most gender equitable countries in South Asia, by the way, has an FLFP of 38%.)
A woman who is totally economically dependent on her husband (or even a man, in the rare case where the opposite holds) will have little recourse to demand rights if they cannot provide for themselves. A government that had expanded job opportunities, that had focussed on empowering women, or even passing the long pending Bill to guarantee 33% representation of women in Parliament would have inspired confidence. A government that has played havoc with the Indian economy and continues to stand by an MP accused of all sorts of sexual misconduct by its Olympic champions inspires no confidence at all.
It is precisely because of these failures that women like my wife, economically independent, with the ability to assert their rights, and family support for it both among her family and mine, remain rare.
No mere law is going to change that.
Omair Ahmad is an author and journalist.