IS INDIA READY FOR A UNIFORM CIVIL CODE?

Introduction

India is a perfect example of unity in diversity, wherein more than 10 lakh languages are spoken and people of different religions and culture live here. Unity in diversity shows that although we are diverse in terms of caste, creed or race, but this cannot keep all of us away or apart from being together as one, for the improvement of our nation.

But do this unity that our country is known and admired for, encouraging or working in favor of all the religions where personal laws are applied?

That is when the talk about Uniform Civil Code comes into picture.

Uniform Civil Code (UCC), relates to the civil law which is a country’s set of laws concerned with private affairs of the citizen of country, and the civil code is a codification of private laws relating to family, property, etc. Civil law is about the disputes among the citizens concerning private affairs, and is not against the society as seen in criminal law.

The constitutional provision for Uniform Civil Code is stated in Article 44 as a Directive Principle of State Policy. However, Article 44 does not give the exact definition of “uniform civil code”. Uniform Civil Code (UCC), within Indian mandate, considers replacement of personal laws based on scriptures and customs of each major religious community in India with a common set of rules governing every citizen. For example, there are different personal laws for Hindus, Christians, Muslims, etc. A Uniform Civil Code means that there will be a set of common personal laws for all citizens.[i]

History and Background

Uniform Civil Code has its traces back when there was British administration over India, wherein they gradually took control over whole of India. During the time of Mughals gaining control over major parts of India, there were no uniform laws to rule entire country. But when Britishers ruled, they faced many problems, due to diverse communities and different set of beliefs. In addition, one such issue faced was of law and moral beliefs being brought together and that law was not separated, and that is when codification of laws was done.

Britishers were afraid of modifying the personal laws, because definitely there would be disagreements and a roar among people of different religions. Being British culture different, there was strong opposition because of the danger of losing the religious beliefs of respective communities. Also, they were afraid of Christian religion being imposed on them.

In the case of Rex V Chundicurn Bose, Morley Dig., I 117, it was observed,” As according to the laws of England, the carnal knowledge of a female under ten years of age is punished as a heinous crime, it cannot be applied to a country where the practice of early marriage is prevalent.”

Warren Hastings, the First Governor- General of Bengal, made the provision in the Hasting’s rule of 1772, which prescribes Hindu and Muslim laws for Hindus and Muslims respectively. While the codification of personal laws, Britishers faced a lot of problems, because there were not only different religions but also sub division among different religions. Examples, Hindus are divided into Jains, Sikhs and Buddhists and Muslims divided among Shia and Sunni.

The reflection of Uniform Civil Code was first seen in Lex Loci Report of the First Law Commission in 1840. It prescribed a uniform law for the whole of India, except for Hindus and Muslims.

Women activists first put the demand for Uniform Civil Code in the 20th century, with the objective of women’s rights and equality. Later, Prime Minister Jawaharlal Nehru made the demand for Uniform Civil Code, but due to heavy opposition, his supporters and women activists had to accept the fact of it being added to the Directive Principles.

Constitutional Provision

The constitutional provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.

UCC has always been a subject of debate and is rotating from constitutional perspective to public opinion. Article 44 is enshrined in Constitution to achieve uniformity of law, secularism, and be equal to all and also have no discrimination.

The Preamble of our Indian Constitution includes Secular Democratic Republic, which states that no state shall discriminate based on religion. Only the codification of Hindu Law was taken forward with all the protest.

India as a fastest growing global power, still face issues regarding discrimination against women, living life with human dignity and respect irrespective of caste, creed, religion, race, sex and place of birth. But still we see daily numbers of incidents related to violations of rights. Under the basic feature of Secularism, state respects all the religions and every religion is left free to frame their own personal laws.

Articles 25 to 28 in the Constitution of India provide the right to freedom of religion. But under the guise of religious freedoms, it frequently conflict with other fundamental rights which are guaranteed under Articles 14, 15 and 21. Though Article 14, 15 and 21 acts as a watchdog against any discrimination, inequality, inhuman treatment and violations, yet in practical instance there was failure to achieve the outcomes.

What an irony it is, that the right to freedom of religion is guaranteed by our constitution, where one can freely be a part of religious community. But at the same time Article 15 is violated, wherein, person belonging to same religion but of lower caste is not even allowed to enter a religious place, and have been boycotted from the society.

There is a long way to go to achieve the satisfactory results, wherein:

  • Personal laws do not conflict with the fundamental rights, and there be no violation of the said articles of our constitution.
  • Enforcement of Uniform Civil Code, irrespective of one’s religion, custom or practice.[ii]

Uniform Civil Code in Goa

Goa is the only state to follow Uniform Civil Code. The Portuguese Civil Code, 1867 was not altered after India annexed Goa. This code applies to everyone in Goa irrespective of their religion. No other state has adopted such common civil code .

  • Marriages: Registration of Marriages is mandatory under Goan Code, so that if the disputes arise would be solved as per law. The Goan Code also follows the prenuptial agreement, which considers distribution of assets and alteration for the same. Also, consent of men and women are must before the marriage.
  • Special Marriage Act, 1954: Parliament of India enacted the Special Marriage Act for the people of India and all Indian Nationals in foreign countries, irrespective of the religion or faith followed by either party. This act also governs divorce of such marriages as well. The act applies a bit differently in Goa. Muslim men in Goa whose marriage is registered do not have the right to polygamy. During the time of marriage, property and wealth are equally divided among the spouses. Also, each spouse is entitled to half the property, in case of divorce. And in case of death, the property is equally divided among the  surviving members.
  • Goa succession, special notaries and inventory proceeding Act, 2012: There is equal distribution of property among the heirs. There is no distinction and both male and female have the right to inherit the property.

Though Uniform Civil Code is applicable in Goa, there is still lack of equality in many aspects. Certain provisions are not fully uniform. The Report No. 21 of “Protection of Institution of Marriage Bill 2012” of the Goa Law Commission, which features “concordata”, a treaty signed between the King of Portugal and the Pope in the year 1940. This states that the Catholics take away civil jurisdiction in matters of divorce and annulment of marriage. The decrees for recording the dissolution of Marriage Register in the Civil Registrar is the only authority given to the High Courts to convey the decrees.

Registration of Marriage though compulsory under the act, but is only considered as a formality and religious ceremony are given more importance. Article 3 states that, although polygamy is not allowed for registered Muslim Marriage, but bigamy is allowed for Hindu men under some circumstances, if the woman fails to deliver child by age of 25 or a male child by age of 30. The 1880 Code of Usages and Customs of Gentile Hindus permits certain provisions for few religion and certain provision for other religion, which in itself shows lack of uniformity.

Under Article 1 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, there were exemptions to gentile Hindus and Hindu customs were also preserved. Muslims in Goa are also governed by the code as well as Shastric Hindu Law and Shariat Act has not extended to Goa.

Article 1057 of Goa’s Code provides for the registration of marriages. Here, first intent of both the spouses are recorded before the civil registration authorities and the marriage deed is signed after two weeks.

Article 1086 states that only ecclesiastical courts can nullify Catholic marriages. In case of non-consummation, church tribunals can annul the marriages, but the High Court can only approve such annulment, except in extra ordinary cases. Non-consummation is still the ground of annulment or divorce for non-Christians. Article 1089 states that such power to annul the marriage can be exercised by only civil courts.

Article 1204 states that husband can get divorce if wife commits adultery. Wife can get separation only if husband commits adultery with public scandal. And a wife can get a divorce if husband keeps a mistress in the conjugal home or abandons her.

Article 1056 states that marriage is a perpetual contract between persons of different sex, rather than sacrament.

The code also states pre-nuptial contracts, wherein 1) no communion of properties 2) total separation of assets before and after marriage 3) total regime under which bride’s share in her father’s property id given to the husband 4) and communion of all assets of husband and wife that are equally divided on divorce or death

Here, the fourth considers an equal action, and yet the assets vests solely in the husband. Under Article 1104, the wife is not entitled to derive the husband by way of ante-nuptial contracts from the administration of assets. Wife can reserve the right to receive art of her assets for daily expenses, but it should not exceed one-third of the net income. And also the husband cannot sell the assets without the wife’s consent.[iii]

International Scenario

Countries like Israel, Japan, France and Russia are strong today because of the oneness. The European nations and US have secular law that applies to all citizens in an uniform manner, irrespective of their religion. All the Islamic countries follow uniform law based on shariah which is applicable to all individuals.

Today’s Scenario

Though India have a Uniform Civil Code in civil matters like Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act, etc. States have amended these laws hundreds of time, and though they are secular civil laws, still diversity can be seen.

The fact that we have personal laws for each particular religion in our country, but not all  Hindus are governed by one law, nor all Muslims or all Christians. For example, Muslims of J&K were governed by customary law, which in many ways was at variance with Muslim Personal Law. Another example, more than 200 tribes in the northeast of India have their own varied customary laws. Our Constitution itself protects the local customs of Nagaland, Meghalaya and Mizoram. Even though there exists a codified Hindu Law, still the customary practices are given protection.[iv]

Why is it needed?

The talk about the Uniform Civil Code is in picture even before the independence of India. Our country showed its unity and have fought the British rule. But truly to make a secular nation, Uniform Civil Code is needed. Instead of an attempt to integrate our nation, there have been attempts to made to divide in the name of religion and for personal perks.

Following are the reasons for why we need UCC:

  • To be secular in true sense means that all the citizens of the country have to follow the same laws irrespective of their religion. To bring UCC into existence doesn’t mean that there will be limits or people will be deprived of their right to religion, but it simply means there will be no limits to follow their religion and all will be treated same.
  • Equality means to be impartial and be fair to all. All the laws related to marriage, inheritance, family, etc should be equal to all Indians. Only then, the true meaning of equality will be followed and adhered to.
  • The most vital part- Honoring Women’s Right. A patriarchal and misogynistic society that we live in acts as a hindrance by allowing old religious beliefs to continue which leads all the Indian women to subjugation and mistreatment. Uniform Civil Code will help change these age old beliefs and traditions where women will be treated fairly and given equal rights.
  • A Uniform Civil Code will help to build up a modern progressive nation, which will lead the country towards its goal of becoming a developed nation. While we can see that, we are progressing towards economic growth but our social growth is still lacking. And we are at a stage wherein we are neither modern nor traditional.
  • Personal laws acts as loophole in today’s society which violates the Human Rights. Few of such examples is that of honor killings and female foeticide. Uniform Civil Code will change these orthodox thought process and old values.
  • Most of the political parties indulge in vote bank politics. If all the religions are covered under same uniform law, they will have less to offer to the minorities. For a drastic change and to have a true democracy, Uniform Civil Code is much needed.
  • We as Indians are so proud of being known for brotherhood and unity in diversity, but at the same time we are apart from humanity. Still the personal laws for same religion are followed in a different manner and the weaker section belonging to the same religion is being ignored  and exploited. Uniform Civil Code will fill this gap and will bring every Indian, irrespective of caste or religion, under one roof of national civil code of conduct.

The Pros :

  • In this today’s advanced and modern society, Uniform Civil Code will provide equal status to all the citizens of the country irrespective of their religion, caste, gender, etc.
  • It has been seen that mostly the personal laws are discriminatory in terms of women and men are usually granted upper status. Uniform Civil Code will bring both of them at par.
  • The youth and the young minds are the future nation builders. Their moral thinking and social attitudes depends a lot on universal and global principles of equality, humanity and modernity.
  • In terms of civil laws and criminal laws, both are applicable to all the citizens of the country except the personal laws. Though we have personal laws, for example, not all the Hindus come under one Hindu law but are discriminated on the basis of their caste and sub caste. With the implementation of Uniform Civil Code, especially the weaker and the downtrodden people will be relieved and treated fairly.

The Cons :

  • It is bit tough in a practical sense to come with uniform set of rules due to tremendous diversity in India in terms of religion, caste, etc.
  • Many communities and religions are in the fear that the uniform set of rules will take away their freedom of right to religion.
  • To implement Uniform Civil Code is a sensitive and tough task, especially for a country like India because of its vast diversity, culture and different religions. India is known for its rich customs, culture and diversity, so without hurting the religious sentiments of people, slowly and gradually the changes should be made.
  • A long way to go and the time is yet not suitable for this reform.  Because it is not about just one religion but many, and this change should not turn out to be disastrous in the form of communal violence.

Case Laws:[v]

  • Shah Bano begum’s case 1985 2 SCC 556

The following is the leading case, where the women claimed maintenance from her husband under Sec. 125 Cr.p.c, after she was given triple talaq. This case drew attention where the Supreme Court directed Parliament to frame UCC. The Supreme Court stated that Muslim women are entitled to maintenance from her husband even if she has already received dower because if her economic position is weak and at the same time the husband’s financial position is sound, then there is no harm in claiming maintenance under this provision. In this case court held that Article 44(3) remains as a dead letter in the constitution and Justice Y.V.Chandrachud made following observation in this connection that is “A common civil code will help the cause of national integration by removing desperate loyalties to law which have conflicting ideologies”. At that time the then Prime Minister Rajiv Gandhi, Congress led government could drive the Parliament to frame Muslim Women (Protection On Divorce) Act, 1986, which diluted the judgement of the Supreme Court  as to the claim of maintenance under Section 125 of Cr.p.c. It is opined by the government that is only Supreme Court direction to frame UCC which is not binding either on executive or on legislature since it involves personal laws, no one can interfere with it unless a protest comes from within.

  • Sarla Mudgal Vs Union of India, 1995 3 SCC635, the Supreme Court again called for implementation of UCC and detailed about how the personal laws of different religions would conflict each other. Under Hindu Law bigamous marriages are void whereas under Muslim Law polygamous are recognized. Under Hindu Law adoption is recognized but not under Muslim Law. Maintenance rights are not given to second wife in Hindu marriage, whereas all wives are entitled to maintenance under Muslim Law. In Sarla Mudgal case it is held that solemnizing second marriage during subsistence of first marriage is not a valid one and mere conversion to other religion does not itself dissolve the first marriage. Under such occasions what about the fate of second wife if her marriage is adjudicated as void and what about her status in the society? Is it not violation of her basic fundamental right guaranteed under Article 21 of our constitution?

Conclusion

Though there are a lot of differences and conflict in the idea of Uniform Civil Code, it must be given a legislative form by harmonizing all personal laws with the detailed study which requires to pay attention to minute details because it is definitely a sensitive issue and should not harm the religious sentiments of the people. One nation, one law will draw more benefits rather than having multiple laws with conflicting provisions. Law is dynamic and since it is said that change is the only constant, reformation in relevant areas should be welcomed.


[i] Ranjan Kumar “The Uniform Civil Code under the Constitution of India A critical appraisal” http://hdl.handle.net/10603/12367

[ii] http://www.legalservicesindia.com

[iii] https://blog.ipleaders.in

[iv] https://indianexpress.com/article/explained/why-goas-civil-code-is-not-as-uniform-as-it-is-made-out-to-be-7279365/

[v] Mohd. Ahmed Khan vs Shah Bano Begum And Ors, AIR 945, 1985 SCR (3) 844

https://indiankanoon.org/doc/823221/

  Smt. Sarla Mudgal, President,… vs Union of India & Ors, AIR 1531, 1995 SCC (3) 635

https://indiankanoon.org/doc/733037/

Author: Shivani Ashok Bhatia

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