India is a multi-religious country, and every religion has its own philosophies, own concepts and rules about marriage, divorce, adoption, etc. and our constitution protects all religions. India has no religion of its own. It treats all religions equally. The basic ideology behind the formulation of a civil code is to end discrimination based on religion. It is the bitter truth of the society that women are the worst victims of discrimination under personal laws. A uniform civil code would ensure that all citizens of India are governed by the same set of secular civil laws in matters of marriage, divorce, maintenance, adoption, inheritance, etc. Under the present set of laws, Hindus are bound by law to practice monogamy, whereas Muslims are not. Similarly, whereas Hindus have a comprehensive enactment on adoption, this concept is not recognized by the personal laws of Christians and Parsees. If a uniform civil code is enacted, all citizens of India would be governed by the same law in all such matters. It is true that present day family law is a mixture of old and new; it is of complicated, incoherent and non-symmetrical nature and so there is need for such a code which will do away with diversity in matrimonial law. Family laws of religion need to be changed in view of contemporary social circumstances. The constitution has a 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.”
It is important to simplify the Indian legal system to make Indian society more homogeneous; only then the idea of a secular society can be achieved and for these there is need for uniform civil code for all religions. On July 23, 2003, the Apex court pleaded for a Uniform Civil Code, while declaring Section 118 of the Indian Succession Act 1925 as unconstitutional, as it was arbitrary, irrational and violates the Article 14 of the constitution. Article 14 says that the “State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. No faith, no religion, can allow the discrimination based on gender. No secular state should allow the discrimination based on religion, community, gender. When our constitution guarantees the equality, then allowing discrimination against the women, is totally unlawful and unconstitutional.
In India during 1985, the Supreme Court reminded the Parliament in very strong terms to frame a uniform civil code in Mhd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), popularly known as Shah Bano’s case. In that case, a poverty- struck Muslim woman claimed maintenance from her husband under S. 125 of the Code of Criminal Procedure, after she was given a triple divorce by her Muslim husband.
The Supreme Court held that she did have such a right and observed that even the Koran imposes an obligation on a Muslim husband to make a provision for his divorced wife. Lamenting that Art. 44 of the Constitution had remained a dead letter, the then Chief Justice of India, Justice Chandrachud, observed as under:
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.”
The second case when the Supreme Court once again gave a strong reminder to the government in the matter was Sarla Mudgal v. Union of India (AIR 1995 SC 153), when the apex court reviewed four cases where the facts were similar. The question before the court was whether, after contracting a Hindu marriage, the husband could convert to Islam and marry a second wife, without divorcing the first.
The Bench, headed by Justice Kuldip Singh held that an errant Hindu husband could not do so to circumvent the provisions of Hindu law and would be punishable for bigamy under the Indian Penal Code. the Judge touched upon the importance of a uniform civil code at least twenty times, and lamented as under:
“Successive governments have, till date, been wholly remiss in their duty of implementing the constitutional mandate under Article 44.”
In case of Ahmadabad women action group v union of India in this case a writ petition was challenged in personal Muslim law which allow polygamy as an offending article 14 and 15 of Indian constitution but refused as a matter of state policy which is outside the courts domination of Kerala, High Court in Mathew v Union of India in this case High Court said that Christian personal laws are outside the scope of fundamental rights.
The uniform civil code will contain uniform provisions applicable to everyone and based on social justice and gender equality in family matter. Its provisions will be fair and equitable so that every member of the society may have a feeling of equality of social status from major social change and will thus create a national identification.
During the debate in the Constituent Assembly on Art. 44, several Muslim members had expressed the fear that implementation of Art. 44 would abrogate their personal law. Persons, who oppose the code, argue that, India has been declared to be a secular state and according to Articles 25 to 29 there is freedom of religion.
It even extends “to manage its own affairs in matter of religion”; such people strongly oppose implementation of uniform civil code and say that the code is unconstitutional to their freedom of religion. They oppose the code, because of the existence of conservatism among certain sections of the Indian population, and Governments defer to these sentiments because of political considerations; political parties, (Legislature) oppose this code because of their selfish interest; they do not interfere in the personal laws of Muslim or minority population because if they give support to uniform civil code, it becomes dangerous to their vote bank thus because of their personal interest, they oppose the code and it becomes extremely difficult to have any progressive measure in the area of family law. A common civil code will help the cause of National Integration by removing disparate loyalties to laws which have conflicting ideologies according to present position.
Just like medicines are important for a healthy India, Uniform Civil Code is necessary for a secular India so that the same laws are valid for every citizen without taking religion into consideration.
UNIFORM CIVIL CODE IN GOA
Goa is the only state in India that has uniform civil code regardless of religion, personal laws, gender, caste. In Goa Hindu, Muslims, Parsis and Christians all are bound to same law related to marriage, succession, divorce. when Goa become part of the union territory in 1961 by virtue of Goa Daman and Diu administration act 1962 the parliament authorizes the Portuguese civil code of 1867 to Goa and shall be amended and repealed by the competent legislature.
In Goa marriage is contract between two people of different sex within the purpose of living together and constitute a legitimate family which is registered before civil registrar. The religious ceremonies are often performed by the parties, days or months after the Civil Marriage, at their convenience and thereafter the couple starts living together as husband and wife. Certain persons are prohibited from contracting marriage between each other. For example, any spouse convicted of committing/abetting murder of the other spouse shall not marry the person who had been convicted of committing/abetting the same offence.
CONCLUSION AND SUGGESTION
Despite the challenges, India needs to find a way forward towards the path of development by adopting UCC. A vast number of interests and sentiments must be addressed while devising the rules. It should not be implemented at once. It will create chaos just like the liquor ban which was implemented in Bihar. Bringing the UCC is a social transformation and needs to be done gradually, not at once. It is not necessary that only some people from the minority community will oppose it. Any section of society that is being deprived of benefits may protest. Such as an undivided Hindu family which gets tax benefits. We will need to build trust, make common cause, create campaigns of awareness with social reforms rather than conservative religious leaders. As the situation is fragile, we should bring changes one by one, highlight one issue at a time and generate awareness about them. It might include divorce, marriage, inheritance, succession, adoption and so on.
National identity will be more secure and human resources much better utilized. It will add to the country’s growth and development. Indian Divorce Act, Christian Marriage Act, Hindu Succession Act, Shariat Act are unnecessary complications. A Uniform Civil Code embodies justice and there should be no compromise on it. One nation should have one civil code.
Mhd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945)
Sarla Mudgal v. Union of India (AIR 1995 SC 153)
Ahmadabad women action group v union of India
Article 44 of directive principle of state of policy
Article 14 & 15 of constitution
JIMS, School of Law, Affiliated to Guru Gobind Singh Indraprastha University.