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A recent judgment of the Bombay high court bas made it possible, for the first
time, for a Christian woman in Maharashtra to get a divorce on the ground that her
husband was cruel to her. Earlier, she could not get a divorce unless she proved
that apart from being cruel, her husband bad also deserted her or indulged in
adultery.
Ms Astrid Lobo Gajiwala is involved in seeking reformations of the Christian
personal code. She is a consultant for the commission for women of the Catholic
Bishop's Conference of India. She spoke to the Times of India about the fallout of
legal reform and need for change in the personal religious code of her community.
Do you think the high court's order will empower women?
The judgment is definitely a step in the right direction as it acknowledges a
woman's personal liberty. The order makes a strong statement in favour of her
constitutional rights. Practically, the order will benefit many women who are
compelled to abide by a marriage in which they are subjected to cruelty.
However, change in social norms does not necessarily follow change in law. But a
law does uphold a value, which in time affects social attitudes. Besides, we
cannot change attitudes if the law is not with us.
What is the procedure for divorce under Christian law?
At the time of marriage in the church, the couple has to sign a register. This
step automatically registers the marriage under the Christian Marriage Act. This
register acts as the recognition of the marriage under the civil law.
The procedure for Catholic divorce, however, is dual. First the couple has to
seek an annulment from a church tribunal. Then the couple has to repeat the
procedure in a court of law.
There is no provision for divorce in the church law. The church only provides for
an annulment. An annulment states that the marriage was not valid in the first
place. There are grounds for such an annulment. For instance, the couple can prove
that the marriage took place under parental pressure or that one partner had
hidden something that affects the other's life.
Do you think there are many flaws in Christian law?
Christian laws are more than 100 years old, dating back to a colonial and
patriarchal era. They have many flaws, particularly with regard to women's
rights.
It Is ironic that while the law in England has undergone tremendous change, the
law we inherited in India remains outdated. English law allows divorce even on the
grounds of mutual consent.
Was it important for the judiciary to strike down the clause which did not allow
women to get a divorce on the grounds of cruelty?
The judiciary needed to step into the matter as the government failed to take any
action.
In 1990, a Christian delegation comprising reformists and activist organisations
had drafted a bill for amendments in Christian law. These reforms had the consent
of the church. The delegation subsequently submitted this draft to the government
for legislation. Even then the government has not amended the law to date.
The draft dealt with issues like maintenance and succession. For instance, in a
move to empower women, the draft submitted that a widow should be entitled to her
husband's property even if he did not provide for it before they got married.
Why do you think the government dragged its feet over the issue?
All governments probably fear that change in one personal code will eventually
throw up the issue of need for change in other personal codes. Such large scale
change in personal laws would be controversial and probably cause a dent in the
vote bank. maybe, the government wants to bring the uniform civil code into
operation. In that case, reform in individual personal codes becomes redundant.
Would you support the uniform civil code ?
My support to the uniform civil code depends on who proposes to draft It. If we
write into it all the injustices that we are trying to eradicate drafting it would
be a futile exercise. Also, there is value in personal code as it reflects the
culture of a particular community.
Do you believe that legal reform will help to change the status of women?
Legal reform by itself cannot change the status of women. The personal code takes
religious norms into consideration. Religion is still the most important factor
in most people's lives. Unless religion is gender-just, perceptions will not
change. Our scriptures date back to a patriarchal era. The religious hierarchy
should take a new look at the implications in them. For instance, while the
scriptures state that 'man and woman were created in the immediate likeness of
God', a woman still cannot be ordained a priest.
What can be done about changing the way religious leaders and texts perceive
matters of gender equality?
The pope recently observed "At the end of this second millennium an examination of
conscience is needed. where we stand, where Christ has brought us and where we
have deviated from the gospel." The church is also a human organisation. As such
it is bound to have some flaws. What we need to do is make people at all levels
aware of the need for change.
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