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The idea of female choice never seems to be considered. Photo: Daniel Berehulak/Getty Images
The idea of female choice never seems to be considered. Photo: Daniel Berehulak/Getty Images

Women in the uniform civil code debate

In the debate about Muslims and the uniform civil code, the idea of female choice is not considered, says Aakar Patel

The upper-caste Gujarati version of bigamy is called maitri karar, meaning friendship document. Saying that people in Ahmedabad were “opting for it", a 2013 report in India Today described it thus: “The document is in fact little more than a promise of friendship and companionship between a man and a woman at least one of whom is already married. In addition, a maitri karar invariably includes an undertaking by the man that he will look after and financially support his partner.

“Each agreement is tailor-made to suit the particular needs of the individuals who make it, but there are a number of common features. Every agreement puts down in detail the backgrounds and marital status of the lovers, and both parties state that they know the other’s antecedents and have opted for the relationship out of free will. Some karars are even specific about the amount the man will pay for the upkeep of his partner. Some agreements even succeed in reflecting the nature of the relationship between the signatories."

I have long been familiar with the idea of maitri karar. It is not, as some might imagine, a lower-class thing. The father of a friend of mine in Surat, a wealthy trader of yarn, had such a relationship with a woman who was a university professor.

I am writing about this because of the recent interest again in the idea of a uniform civil code. Partly, this interest has arisen because of a case which revealed to many the fact that Christian couples must wait twice as long as Hindus to be divorced.

But mostly it comes from the fact that the Bharatiya Janata Party (BJP) has held it as one of three major issues that frame Hindutva. We should be prepared to hear a lot more about the idea of a uniform civil code, just as we have become accustomed to hearing about a ban on animal slaughter.

In my opinion, this uniform civil code demand comes mainly out of an impulse to curb polygamy among Muslims, which is seen as a very bad thing and one damaging India.

Rashtriya Swayamsevak Sangh chief Mohan Bhagwat spoke about the population theme at his annual Dussehra speech. BJP MP Yogi Adityanath (would it be very wrong if writers were to stop prefacing names with the self-given titles people use, including hafiz and sadhvi and yogi?) has asked for a law to specifically reduce Muslim population growth.

We must link the idea of a uniform civil code mainly to this impulse, and it would be interesting to see how many times the same people rail against child marriage, presumably a bigger problem than men marrying more than once.

It may be worth repeating here that the incidence of polygamy was more among Hindus (5.8%) than Muslims (5.6%, according to a 1974 report, as reported in a 2014 article on the news website Scroll.in). And in absolute numbers, this meant that five times as many Hindus had more than one wife as did Muslims, at least back then.

This will not surprise those of us, like urban Gujaratis, who have long lived with the idea of Hindu bigamy. But that is besides the point, since it is rarely fact that drives Hindutva passions.

A survey of 4,500 Muslim women by the Bharatiya Muslim Mahila Andolan earlier this year showed that 91% of them were against polygamy. This was reported with great excitement in the media though actually it should not have surprised us, given that the data shows that over 90% of Muslims are in monogamous marriages. Incidentally, a statement by the same group on 15 October that “Muslim women want codification of Muslim family law and not uniform civil code" was reported with less enthusiasm.

Anyway, to return to their survey, my question would be: How many women who are second, third or fourth wives are opposed to the idea of polygamy? To me, that is the real issue.

We need to look at it because the issue is about to become big, in my opinion. This week, The Times Of India reported Supreme Court proceedings on the subject in this way: “‘It was pointed out that in spite of Constitutional guarantee, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her,’ the bench said."

“‘In Javed vs State of Haryana, a Bench of three judges observed that practice of polygamy is injurious to public morals and can be superseded by the state just as practice of ‘sati’. It was further observed that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of personal law of Muslims,’ the bench said."

This idea, that the Muslim woman is a victim, is held quite strongly by many.

Some years ago, I read an interesting book by Robert Wright called The Moral Animal, which changed my view on this matter. Wright looks at polygamy and says that society imposes monogamy by deliberately harming women’s interests. Meaning that they are denied choice.

A New York Times review of the book in 1994 described his views in this way: “Monogamy, Mr Wright says, does not favor the interests of most women, particularly lower-status women. Most human cultures throughout history have been mildly polygynous, with wealthier men attracting several wives. Though women in these cultures ‘are often less than eager to share a man,’ he writes, ‘typically, they would rather do that than live in poverty with the undivided attention of a ne’er-do-well.’ Monogamy instead favors lower-status men who in a polygynous society would be frozen out of the marriage market by a wife-collecting elite. It is no coincidence that Christianity has advocated monogamy and pitched its message to poor and powerless men."

This is what I have also come to believe. That in the entire debate about Muslims and the uniform civil code, the idea of female choice is not considered. Women must always go along with whatever men decide is in the moral interests of society and, in the case of Hindutva, in the “national interest".

There are those who would say that it is only the illiterate and exploited woman who is forced into a second marriage. To them I can point out a university professor in Surat.

Aakar Patel is executive director of Amnesty International India. The views expressed here are personal.

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