A Cross To Bear

Priscilla F, 48, had been married for 10 years. Eight of these had been turbulent, with domestic violence ruining her marriage. Two miscarriages, a fractured hand and a battered self-confidence, Priscilla left her married home in Mangalore and moved to live with an aunt in Mumbai. Since her parents too lived in Mangalore, the city was not an option to restart her life. Luckily for her, the man she had left behind did not follow her to Mumbai. For several years afterwards, she had thought of ending the marriage through legal recourse. She approached her Church for a solution.

“Christian Catholics cannot divorce. The Catholic Church does not recognise divorce. I wanted a clean break from that man,” says Priscilla. After waiting for several years, Priscilla was advised by a lawyer to file for divorce in the family court. She did it and was ecstatic when the divorce came through. But everyone hounded me and told me I was wrong. They said I must go back to that man. My lawyer gave me the strength and I got a divorce through the court,” she says. “Now when I want to pray, I go to any church in Mumbai.”

There are many women who are living through bad marriages, but have no way of getting out of it. The Uniform Civil Code (UCC) being mooted by the ruling Bharatiya Janata Party (BJP) may bring in numerous changes, if implemented, say those in the know. “The UCC, if and when enacted, will bring all of India under one Law. It will bring in gender equality and justice,” says Sara Dias, a family counsellor. “The time has come for the modernisation of laws. The personal laws need a huge overhaul too. If the Church doesn’t do it, then UCC is the best option,” says Dias.

The UCC refers to a single law which is applicable to all citizens of India in matters concerning marriage, divorce, custody of children, adoption and inheritance. With many religions following their own personal laws which govern inter-personal relations and related issues, the UCC is intended to replace these fragmented personal laws. With two of the three elections promises of the BJP—abrogation of Article 370 in Jammu & Kashmir and the construction of the Ram Mandir at Ayodhya—being implemented, the third election promise, enactment of UCC, may soon become a reality, say many. This has restarted the conversation about UCC again.

The spokesman for the Archdiocese of Mumbai, Fr Nigel Barrett, says, “While the Church, in principle, understands and appreciates the attempts of the government to create a UCC, it believes that all the stakeholders must be engaged in a dialogue to alleviate the fears that many minorities have. The fear is that the UCC will reflect a majoritarian approach, and that may give rise to the feeling that certain minorities are being targeted.”

“It is important to understand and respect the diversity and uniqueness of each region of India. The country has a myriad of cultures and religions that add to the splendour of a diverse India. That religious pluralism and diversity need to be understood and respected. While we understand, appreciate and agree that we need to empower and ensure the dignity and rights of women, care should be taken to not infringe into the realm of personal law,” says Barrett.

“The Catholic Church makes a distinction between civil and ecclesial law. While the law of the land always takes precedence over ecclesial law in legal areas, the sacramentality of marriage is the key to the church and the ecclesial law such as the appropriate age to marry for men and women. The Church is concerned that while it respects and follows the civil code, it cannot have the civil code infringe on the sacramentality of the Christian marriage, especially in areas of indissolubility and unity. Indissolubility refers to the permanency of the Christian marriage and unity refers to the one person, the spouse. It also holds the position that the civil act cannot automatically have an ecclesial effect—a civil divorce would not automatically result in an annulment or dissolution of marriage in the Church due to the sacramental nature of marriage. Conversely, an annulment or dissolution of marriage granted by the Church does not have a civil effect,” he says.

“Hence there is a need to engage in a dialogue and ensure that the essence of one’s personal faith cannot be overlooked when creating a uniform civil code. A clear line needs to be drawn on what is on the table and what it off limits, especially changes in areas that are key to one’s faith and traditions. When there is the Special Marriage Act, why bring in the UCC, which will clash with each other,” says Barrett.

Lawyer Sabrina David feels that there is no need to bring in UCC as it will affect the culture and living patterns of diverse communities in the country. “India is a diversified amalgamation of various cultures and traditions. The UCC will kill the unity in diversity, the very thread that is binding the country. Such a law will not work in a diverse country like India.”

She says that the world looks up to India due to its multi-diversity. “Such a law will interfere with the Church laws where marriage is seen as a sacrament and not as an agreement. I do not advocate or support such a law. We must respect each other’s culture. What is the need for doing away with the uniqueness of other cultures when it has co-existed for decades,” says David.

According to a Bengaluru-based Christian academician, the Christian personal laws have been fighting with the idea of gender equality. “The British allowed the Christian Catholics in India to follow their own laws pertaining to marriage, adoption, divorce or inheritance. This helped in endearing themselves to the community. The recognition of personal laws by the government gave a legitimacy to the discrimination of women in the name of religion. The UCC, while being seen as an interference, may give gender equality to women,” says the source.

The past has seen the court overriding personal laws when granting relief under a unified Indian law. In the Mary Roy versus the State of Kerala and Others (1986), the Supreme Court upheld the Indian Succession Act, 1925. This judgment ensured that women from Kerala’s Syrian Catholic families got equal property rights.

Denied equal rights to her deceased father, V Issac’s property, Mary Roy an educator, activist and mother of writer Arundhati Roy, sued her brother George Issac. This case, which saw a prolonged court battle, is seen as a milestone in ensuring gender justice in India. In territories, which once formed the erstwhile Travancore State, matters of intestate—a person who died without leaving a will—succession to the property of the Indian Christian community members were governed by the Travancore Christian Succession Act, 1916. However, the Indian Succession Act, 1925 too was in force across India.

In the petition filed by Roy, she had argued that the Travancore Succession Act, 1917, discriminated between a man and woman on the basis of gender and, therefore, violated Articles 14 and 15 of the Constitution. The petition had also stated that the Travancore Succession Act, 1916, was contrary to the Indian Succession Act, 1925, which did not discriminate on the basis of gender.

The Supreme Court had, in its decision in 1986, upheld the Indian Succession Act, 1925. The judgment stated that if a deceased parent had not left a will, the succession will be decided according to the Indian Succession Act, 1925, and will also be applicable to the Indian Christian community in the erstwhile state of Travancore. This judgment gave equal rights to property to the Syrian Christian women.

Interestingly, while many Christian women favour the UCC, it is the men who seemed opposed to it. Former Principal of St Xavier’s College in Mumbai, Fr Frazer Mascarenhas, says that in a pluralist society like India, UCC is not required. “This would regiment a wide variety of communities, including the majority community. There is nothing wrong with the present way the laws are functioning,” says Mascarenhas. According to him, there is no system of divorce in the Catholic Church. However, after a thorough investigation, the church would recommend either separation or an annulment of the marriage. This is the practice followed by the Catholic Church across the world. He feels that there will be clarity only after the provisions of UCC are specified.

“Unless the government consults the clergy and the civilians, the UCC will be seen as an imposition and interference in the Christian Personal Law,” says Joseph M Pinto, a Pune-based editor, teacher and trainer. “UCC will affect inheritance, right to run minority educational institutions and all minorities protected by the Constitution. It will be seen as taking away the freedom to practice one’s religion,” says Pinto.

Though the UCC will impact other aspects of the Christian personal law such as inheritance, adoption and succession, it is the aspect of marriage and the non-recognition of divorce by the Catholic Church which is the primary subject of discussion when UCC is mentioned. There are several Christian denominations and each is governed by their own personal laws. According to Pastor James Ranbhise of the Protestant Christian denomination, “Each of these denominations has their own distinct culture and traditions. Their ways of worship are also different. There will be huge disruptions if UCC is implemented. We will object to it,” says Ranbhise.