Justice for all - The Times of India

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The Supreme Court ruling holding a divorced Muslim male liable to pay
maintenance to his children independent of providing for his wife should be
welcomed as one more step forward on the road to a gradual and voluntary
evolution of a uniform civil code. In fact, this particular judgment will
benefit not just the Muslim community since the court has based its ruling
on Section 125 of the Criminal Procedure Code which states that the right
of children to claim maintenance is separate, distinct and independent of
the right of their divorced mother to claim maintenance for herself. In
other words, the maintenance of children is obligatory on the father
irrespective of his religion so long as the children have no independent
means of income. While the judiciary has steadfastly maintained that it is
for the legislature to amend personal laws, it has over the years delivered
a number of extremely progressive verdicts, especially in cases of
discrimination against women and minor children. In fact, the courts have
repeatedly voiced their concern over the fact that little has been done to
implement Article 44 of the Constitution which directs the state to
"endeavour to secure for the citizens a uniform civil code throughout the
territory of India." By making these enlightened rulings on a case by case
basis, the courts are, in fact, ensuring that this comes about in as
painless a manner as possible. The courts, while acknowledging the need to
respect community-specific codes, rituals and customs, have never
compromised on the principle of equality before the law.

It was this which prompted it to deliver the landmark judgment on the
Indian Divorce Act and Indian Succession Act, both concerning the Christian
community to overturn some of its archaic provisions. Under the old law, a
man could seek divorce purely on grounds of adultery but a woman seeking
the dissolution of marriage would need to prove an additional charge of
incest or cruelty. In addition, the court awarded Christian women in Kerala
an equal share in family property doing away with the absurd provision of
Rs 5000 under the old law. Similarly, the court intervened to prevent
Hindu men from converting to Islam purely to indulge in polygamy. Despite
these far-reaching rulings, many inequities remain which need to be
corrected and the courts are certain to do so whenever the relevant cases
come up before them. Among these are the sanction for polygamy and
unilateral talaq in the Muslim Personal Law and the provision preventing,
persons other than Hindus from adopting a child. What is particularly
heartening is the fact that despite the fears expressed by the political
class, none of the judgments overturning provisions in personal laws have
evoked any significant protest from the communities involved. In fact, a
shortsighted political class appears to have completely overlooked the fact
that India retains some of the most backward laws in the world when it
comes to Muslims-laws in many Islamic countries are far more humane and
progressive especially when dealing with women. Prime Minister Gujral
promised to examine these issues with a view to modernising such
legislation when he came to power. Unfortunately, he has had no time to do
so. In this vacuum, the courts are doing a commendable job, though this
does not mean that the legislature can shelve its responsibility.

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