The Supreme Court (SC) has reminded the Union Government thrice in this year of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. This Article being one of the directive principles of State Policy directs, non-bindingly of course, that the “State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”

Similar sharp reminders from the apex court also came long before in the Shah Bano case (1985), the Sarla Mudgal case (1995) and the John Vallamatom case (2003) stressing that such a code would remove disparate loyalties to personal laws which have conflicting ideologies. The ruling orthodoxy in all religions, however, has resisted the idea of UCC and it still remains an unaddressed constitutional expectation.

The theme of the UCC and its impact on national integration also figured in the recommendations of the National Commission to Review the Working of the Constitution. What seems to be clear is that the issue has fallen off the political map. No political party of national significance other than the Bhartiya Janata Party (BJP) is willing to line-up behind the demand for a civil code. The BJP made it in 2014 one of its electoral promises in its election manifesto but due to compulsion of coalition politics, it has also chosen to place the issue on the back burner, to say the least.

It is not without significance to mention that the Muslim community, by and large, seems to be sharply hostile to the idea of a civil code and wishes to preserve its own personal law. Hence any move in this direction against their sentiments is bound to create more ill-will, mutual suspicion and weaken the fabric of the nation. In such a hostile atmosphere it will not be advisable to enact a UCC, optional or otherwise, even though such a code is eminently desirable and its eventual adoption forms part of the Directive Principles of State Policy.

Nevertheless, not all the opponents of the UCC are opposed to a reform of their personal law. Many progressive-minded and forward looking Muslims openly admit that not only is their law as practiced in India grotesquely unfair to women but also contrary to the basic tenets of Islam as understood and observed in a host of Muslim countries. Hence a strong case for reform exists.

In any case, not only Muslim Personal Law (MPL) but also other personal laws of different communities are pro-male in character, grossly biased in nature and blatantly discriminatory against women. For instance, a woman cannot inherit ancestral property under Hindu Law. If she is abandoned by her family, she cannot claim maintenance from her natal family as a matter of right.

A Hindu woman cannot adopt a child in her own name. Nor has she guardianship rights over her child who is above five years of age. The wife of a Hindu cannot be her husband&’s coparcener. The Hindu Succession Act debars female heirs of a Hindu dying intestate from laying any claim to a portion of residence left behind by the deceased unless male heirs choose to partition it for determining their share in the property.

Whatever the other virtues of MPL, the position of women is no better under it. While monogamy is the rule of law for a Muslim woman, the husband is entitled to have four wives at a time. He can dissolve the marriage any time at his will. The wife on the other hand, can divorce only with her husband&’s consent. She also cannot be a guardian of her minor child. Under the law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and non-availability of maintenance after iddat period to a divorced woman from her husband are other disturbing aspects of the law.

Similarly, the Christian laws of marriage, divorce, maintenance and succession appear to be archaic, harsh and discriminatory towards women. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for any couple to get mutual divorce. But in other statutes like Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act the mandatory requirement of separation period is just one year for the same – a patent discrimination on the face of it. This discriminatory provision, however, is under challenge before the apex court. Also, the Succession Act of 1925 gives Christian mothers no right in the property of their deceased children who have left no will. All such property is to be inherited by the father. If the father is not alive, it goes to the siblings.

The lot of women in India is miserable simply because all personal laws have not been subjected to contemporary social reforms. On the contrary, efforts are made to deny in the name of religion even the rights and privileges the Constitution of country liberally grants to women. To allow things to remain as they are would mean that more and more provisions of different personal laws may have to be tested before the law courts to determine how far they are in conformity with the Constitution, particularly its part-III.

In attempting to reform and codify the Hindu Law in the first instance the idea was that if it succeeded, other communities would follow suit and ask for similar reforms in their respective personal laws, but this did not happen. However, all this does not mean that existing personal laws should remain unaltered. An effort ought to be made to weed out all such provisions of these laws which on their face are harsh, unfair, antiquated and discriminatory to women.

In all fairness, personal laws ought to be amended from time to time so as to keep them in tune with contemporary social needs of society. Laws can never be static. They grow and change with times. While the judiciary&’s role in attempting to rectify gender and other biases that prevail in community-specific legislation is widely welcome, at the same time the legislature cannot escape its prime responsibility of law making. If the government remains impervious to this articulate cry for justice, it will only strengthen the impression that its commitment to secular philosophy is less than total.

It goes without saying that the Constitution prohibits any kind of discrimination on grounds, inter alia, of religion. But personal laws, as they exist in India, tend stubbornly to discriminate against women. Not only are Muslim women worse off, but the Hindu, Christian and tribal women are equally losers under the personal law regime. There should be equal rights and equal laws to all women irrespective of their caste, community and religion to ensure gender justice in the true sense of the term. When all personal laws reach a certain level of reform, the goal of a Uniform Civil Code will be easier to achieve.

The writer is Advocate, Supreme Court of India and Delhi High Court.