Thank you dear subscribers, we are overwhelmed with your response.
Shiluban, belonging to Limpopo province in South Africa, was appointed as the Hosi (Chief) of her tribal clan. However, her appointment was challenged in the court by Nwamitwa, her brother. It was argued that their tribe comes under African Customary Law (ACL), and therefore, the appointment of Hosi needs to happen according to the tribal rules and regulations. As per the traditional custom of her tribe, the eldest male son of previous Hosi would be the next Hosi. Both, the High Court and Court of Appeal, delivered the verdict in favour of Nwamitwa but also highlighted the ‘compulsion’ of accepting such irrational tribal norms in the presence of ACL.
However, when the case went to the Constitution Court of South Arica, it not only reversed the judgement, but also gave a new interpretation to ACL. The court observed that ACL is a ‘live document’, and ‘not an explanation of History’. Tribal rules and regulations cannot be accepted just because they were given a recognition by the previous generation. With changing times, people change and thus, the traditional norms can’t remain in isolation.
This was not the first time in South Africa that a change was made to ACL. From time to time, court and government have done the necessary amendments as required. For instance, ACL allows polygamy, but the government has made certain amendments to it, so as to protect the woman from getting marginalized by subsequent marriages of husband.
Some of the important amendments are:
1. Minimum age of the couple should be 18 years.
2. Those who have married under ‘Civil Union Act’ can’t marry more than once.
3. If someone wants to marry more than once, under ACL, he has to first go to the High Court. And when the High court, through an agreement, ensures that the 1st , 2nd or 3rd wife is given a proper share of property, only then he can remarry.
4. The application of divorce can be heard only by a court under Divorce Act, 1979, even if the marriage had happened under the ACL. This is done to ensure that women don’t become a victim of sexually biased customs and traditions.
South Africa has shown the way that how can a country take a step forward without bringing a radical change in the lives of people. Even in India, Hindu Marriage Act was brought with this intention. It was even said that this was the first step in the direction of Uniform Civil Code (UCC). However, the political compulsion of politicians ensured that it remained the ‘first and only step’.
Supreme Court of India has also highlighted the need of UCC on several occasions. In a case involving the property rights of a tribal woman, Justice MR Shah and Justice Krishna Murari commented that while there is nothing wrong for a tribal woman to ask for her share of property, they couldn’t grant her any relief due to Hindu Succession Act, 1956, which explicitly excludes the ST women.
Even in the case of religions, ideologies based on patriarchal mindset have maintained their
dominance over the customary laws. For instance, Muslim personal law is nothing but Sharia. Now, what is Sharia? No one knows. In the absence of its codification, it depends on the interpretations of Quran by Maulavis and Qazis. It is no secret that how these interpretations, and sometimes misinterpretations, have been used to marginalize the women within the community. Law commission and Sachar committee have recommended to criminalize those provisions of personal laws which are against women.
It may be debated that if the UCC needs to be implemented altogether, to avoid any unnecessary complication or it needs to come in phases like in South Africa, to avoid any crisis of confidence of certain ethnic groups. But it is certain that this is the right time when personal laws need to be codified and rationalized to protect the basic fundamental right of a woman in order to live a life of ‘dignity’.
Now when the Prime Minister has himself raised the political temperament by highlighting the issue of UCC just before the 2024 elections, there are several questions. How its primary draft will look like? What course of action will the parliament take in the upcoming session? Will it be acceptable to everyone? Only time will tell. Let’s hope that the misery of women in the name of customs and traditions ends as soon as possible.