Post-independence India’s modernist drive to obligate a UCC, notably written in Article 44 of Indian constitution 1950, as a non-justiciable DPSP, alarms not just an Indian problem but an alarming issue for the whole world and for its legal system. The debate whether there should be a UCC in the country or not, is almost 180 years old and has been widely and deeply discussed in public as well as political view.
The second law commission constituted by the Government of British submitted its report in 1835 stressing the requirement for uniformity in codification of Indian law referring to crimes, evidences and contracts, however specifically recommending that codification should not extend to matters like the personal Hindu laws and Mohammedans laws which derive their jurisdiction from their respective religions. The decision that has been given by the commission in its report was that there must be no codification of the personal laws & the same was speculated in Queen Victoria’s declaration (was given when the British government displaced the East India Company in the wake of the 1857 revolt and took over the self governing power of country’s administration) that there will be no interference in their religious matter. This mainly meant that there will be a clear separation between public law and personal law, one to be equal to all irrespective of religion and other is not, respectively. Still There were issues cropping up in doing so-
first that the country’s fixed habits, manners, detriment and the local customs that were long established were totally opposite as compare to England and an external colonial power, main duty is to maintain harmony and peace in the nation by staying out of conflicts caused by religions.
secondly, the people in India could not possibly acquire their complex municipal law due to the languages in which it is written
Lastly, the foreign laws cannot be applied here as they are made for a certain type of people and situations in which they may be placed.
Although, UCC would correct the mistakes of a rigid society discriminating against women by divest them of their equivalent rights and bringing more equality and compassionateness into social life and therefore also recognizes the important essential that enable women to themselves and find her own identification and demonstrate herself as an individual, there were not only Hindus who were showing dissent to the promulgation of a law that was governing their integral beliefs and their customs. When these issues were been debated, some apologists even referred to the Vedas and dharmashastras, stating the rule of conduct as the highest law and emphasized the importance to respect diversity amongst the various communities and caste within Hindu religion.
DEVELOPMENT BEFORE AND AFTER INDEPENDENCE
The developing tide of legislation involving itself into the issues that were of personal nature of simple men and women of the country, generated arguments and disputation demanding a reasoned and measured response from the government.
This finally led to setting up of the B.N. Rau Committee in 1941 whose task was to examine the compulsion of common Hindu laws. The recommendations given by the committee were of a codified Hindu law, giving equal rights to women keeping a pace with modern curve of the society and a civil code for marriage and succession however mainly focusing on regenerating Hindu laws in accordance with the scriptures.
Later on, the committee presented 2 draft bills which focuses on intestate succession and marriage on March 1942. On unable to clench the issue, the committee was revived and recreated again in 1944 and finally sent its report (which deals with testamentary succession and intestate including maintenance, marriage, divorce etc.) to the parliament consist with a draft Bill in February 1947. Endless discussion continued and the Hindu Code Bill lapsed and was resubmitted in 1952, after independence.
The draft Hindu Code Bill received much criticism and asked for a UCC applicable to all religions. Oppose for the Hindu Code Bill arise from members who were representing the various fractions of Hindu majority, from the Sikh group (who begrudged being included with the Hindus), from the Muslim group (who wanted to lean the scales in their favor) and lastly from the women parliamentarians because they were under the impression that the measures were not far enough.
The arguments included: the necessity to shield the hallowed Hindu traditions, the resentment arising from the very fact that the Muslim Personal Law remained untouched, the proposed measures affecting the majority of the population doesn't ascertain popular opinion and most significantly the grant of equal property rights to women threatened the economic rights of the male within the society.
lately, the ladies members of the parliament were convinced by the contradictions that the Hindu code was going an extended way in granting them their significant rights & they feared that this could cause an additional setback to their rights and seriously damage their future attempts to realize equality with their men folk altogether other matters. Ultimately the availability was uneven into several parts to bring smaller changes than attacking in with a full major transformation hence bringing four separate Acts namely
Hindu Marriage Act, 1955- This enactment amended and codified the laws relating marriage and provided conditions that were necessary for the registration of Hindu marriages, the restitution of conjugal rights, judicial separation, provisions & punishments for divorces etc. and hence brought uniformity of law. The Parliament of India allowed the Anand Marriage Amendment Bill in 2012, by amending the Anand Marriage Act of 1909, which opened the way for the attestation of Sikh traditional marriages, thus providing for compulsory registration of "Anand Karaj" marriages, with which Sikhs can now have their own personal law regarding marriage. The anomalousness mentioned with reference to the Hindu Marriage Act whereby persons of certain other religions were recognized as the Hindus though they'll not be Hindus by religion continues to be a difficulty.
The Hindu Succession Act, 1956- The Act came into action to rectify and codify the law referring to intestate or unwilled succession and lays down an identical and comprehensive system of inheritance and applies to persons governed by all schools of spiritual thought like the Mitākṣharā and Dāyabhāga schools. The Hindu woman's limited estate was abolished by the Act because of which she’s given full power to cater to and get rid of any property possessed by her as her absolute property. Parts of this Act was amended in 2005 by the Hindu Succession (Amendment) Act, 2005, which revised rules on coparcenary property, giving daughters of the deceased equal rights with sons, and subjecting them to the identical liabilities and disabilities. The amendment essentially provides equal rights between males and females within the system..
Minority and Guardianship Act, 1956- the Act was meant to boost the Guardians and Wards act of 1890. This specifically served to define guardianship relationships between adults and minors, further as between people of all ages and their respective property. Both legitimate and illegitimate minors with a minimum of one parent, be the jurisdiction of this Act.
The Adoptions and Maintenance Act, 1956- this Act dealt specifically with the legal process of adopting children by a Hindu adult, furthermore because the legal obligations of a Hindu to supply "maintenance" to numerous members of the family. a number of the illegitimate sons were also fitted into the system of sonship and those that were ignored were never denied maintenance. These ideas are reflected within the provisions of the Act. Illegitimate children also shall get the good thing about maintenance under the provisions of the Act. Moreover, if the wife isn't a Hindu, then the husband isn't sure to provide maintenance for her under this Act.
All these acts has been made applicable to Hindus including Buddhists, Jains & Sikhs and Muslims, Christians, Parsis or Jews were excluded from this definition. the very fact remains that the separate Acts while bringing some sort of uniformity in social and spiritual customs, didn't control the prevalent gender discrimination. the appliance of the Act to all or any these religion was initially some extent of concern and debate, and later got accepted by all the people. because the Acts applied only to Hindus, Buddhists, Jains & Sikhs, women from the opposite religions remained victims of antifeminism and other varieties of prejudices Especially the Muslim women who didn't get the good thing about inheritance of agricultural land. An Act which predated the above statutes, is that the Special Marriage Act, 1954. Though the Act is sort of just like the Hindu Marriage Act of 1955, it gives some idea on how secularized the law regarding marriages had become. This Act provides for marriage ceremony for any citizen no matter religion, thus permitting any Indian to own their marriage outside the boundaries of any religious personal law. The Special Marriage Act provides Muslims to marry under its provisions given and thereby retain their protections, generally beneficial to Muslim women, which couldn't be found in their personal law. Under this Act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, instead of the respective Muslim personal law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down within the civil law. While distinct from the Hindu personal law, the Act provided the safeguards that had been considered within the statutes of the Hindu Code to the Muslim beneficiaries of the Act.
The founding fathers of constitution faced problems to unite and integrate the different religions and to provide a secular constitution for all sections of society. A uniform law, although highly desirable may be counterproductive to the unity and integrity of the nation.
In a gesture to indicate the willingness to consider the issue of a UCC it was decided to add the implementation of a UCC in Article 44 as a Directive Principle specifying that “The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India”. A UCC Indeed is a vision of uniformity that was added as a desirable objective under the Directive Principles of the Constitution.23
To make laws or to amend them may be a slow process, and also the legislature fixes it where the requirement is felt most. All laws should equally apply to any or all people and also the disasters of default may be solved within the process of law. One such historic opportunity to form substantial changes to the position and standing of Muslim women is from the case of Mohd. Ahmed Khan v. Shah Bano Begum indicated the urgency to possess uniformity in personal laws. The questions within the case pertained to the responsibility of a Muslim husband to keep up his divorced wife beyond the amount of iddat, if she was unable to try to to so. The Supreme Court held during this case that section 125 of Criminal Procedure Code, 1973 which imposes an obligation on all husbands is secular and applies to any or all religion. It applies to all or any Indian normally and overrides the non-public law just in case of conflict between the two. The court regretted that article 44 of the constitution has remained a dead letter thus far and there have been no evidence of formal work for the planning of a standard civil code for the country.
The judgement of Shah Bano case led to the enactment of Muslim Women (Protection of right Divorce) Act, 1986 which made Sec. 125 non-operable for Muslim women. in step with this, maintenance was payable to the divorced wife only during the iddat period (the mandatory waiting period when the divorce matters are being settled), and not thereafter. Its constitutionality of was later challenged in Danial Latifi v. Union of India on the grounds that it violated the proper to equality under Articles 14& 15 similarly because the right to life under Article 21. The Supreme Court while holding the law as constitutional, harmonized it with section 125 of CrPC and held that the number received by a wife during iddat period should be large enough to take care of her during iddat furthermore as provide for her future. Thus under the law of land, a divorced Muslim woman is entitled to the availability of maintenance for a lifetime or until she is married. In Sarla Mudgal v. Union of India, the Supreme Court took a fresh examine Article 44 of the Constitution which enjoins the state to secure an even civil code which is imperative for both protection of the oppressed and promotion of the national unity and integrity. In John Vallamattom case court stated that it's regrettable that article 44 of the Constitution has not entered into force as a typical civil code will help the explanation for national integration by removing contradictions supported ideologies.
In our society, a Muslim man is allowed to keep more than one woman but not a Hindu man or Hindu or Muslim women. Hindus can form an undivided family to manage their assets better while reducing their taxes but not Muslims and Christians. Christians cannot have divorce before the end of 2 years of marriage, while other communities can do so after 1 year of marriage. Christian women don’t receive any share in the property of deceased children, while other communities have different rules. This chaos is a result of having different personal laws for different religions. The question on UCC has been raised several times since independence, but during Shah Bano case this issue acquired a distinct community connotation.
After the 1984 anti-Sikh riots, most of the minorities in India (with Muslims being the largest) feared attacks on their identity and felt the necessity to safeguard their culture. 26 Muslim conservatives accused the govt. of encouraging Hindu dominance over every Indian citizen at the expense of the minorities as in line with them, the judiciary recommending a UCC was evidence that Hindu values would be imposed over every Indian. The Criminal Procedure Code was seen as a threat to the Muslim personal law. The possible reason for this was the strong hostility between posture fundamentalist sections within the two religions: The Hindu Code being well established within the country by then, the fear amongst the minorities was that its provisions would become the template for superimposition on the minorities.
There has been difficulties in bringing persons of different faiths and persuasions on a common platform. Article 44 requires the state to take steps for establishing a Uniform civil code throughout the country and in doing so, two objections were put forward in the Constituent assembly-
firstly it would infringe the fundamental right to freedom of religion mentioned in Article 25,
Secondly, it would be a tyranny to the minority.
The civil law in Goa derived from the Portuguese Civil Procedure Law and was introduced in 1870, could be a useful starting point for a change and bring UCC. Surprisingly, Goa is that the only State in India which includes a type of UCC. The Goa Family Law continued to be implemented even after Goa’s annexation in 1961 and may be a remarkable piece of legislation promulgated by King Luiz Augusto Rebello da Silva. Comprising 2538 articles, it underwent various legislative amendments from time to time by inclusion of other related laws like law of marriage, protection of youngsters, divorce, civil registration, civil procedure etc. It defines important concepts of civil law, including its scope, the sources of rights and obligations etc. The Supreme Court drew attention to the present law recently in September 2019 in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira. The Supreme Court during this case stated Goa as a shining example of an Indian State which contains a uniform civil code applicable to any or all, irrespective of religion except while protecting certain limited rights.
The salient features of this law with reference to family properties are that a marriage jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, just in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits prenuptial agreements which can have a distinct system of division of assets. Another important aspect is that a minimum of 1/2 the property must pass to the legal heirs as legitimate. This, in some ways, is a kin to the concept of ‘coparcenary’ in Hindu law. However, as far as Goa is concerned, this legitimate also will apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there's no provision for verbal divorce.”
The UCC has remained a non secular hope, caught among the linguistic trappings of Article 44of the Directive Principles of the Constitution. Muslim law remained untouched: it had been several decades later that instant triple talaq was outlawed and also the modern Indian, and therefore the world generally, largely welcomed the measure. the talk surrounding the UCC, with its far-reaching implications for all religions and communities, combined with undeniable impact on issues per the secular nature of this country, is one in all the foremost controversial subject of current Indian. The plural and multi religious nature of the country and its religious laws, with differentiation not only in caste and religion, but even in region and sects, further complicates the problem.
While diversity of Indian culture can and will be celebrated, specific groups or weaker sections of the society must not be dis-privileged within the process. Resolution of this conflict doesn't mean abolition of difference. Most countries are now moving towards recognition of difference, and also the mere existence of difference doesn't imply discrimination, but is indicative of a sturdy democracy. The UCC’s importance for gender equality can not be denied and during a country like India, where women’s rights are daily contested and sometimes denied, this is often of special significance. And most importantly, the imperative for reforming the archaic personal laws of Muslims which permit unilateral divorce and polygamy can't be ignored. The recent law that produces the triple talaq against the law has found approval among most sections of our society, except the conservative Islamic segments. The Supreme Court of India had also made certain pronouncements recently in two cases that make it amply clear that it's not in favor of a UCC. In ABC v. The State (NCT of Delhi) selected July 6. 2015, the court treated the difficulty of guardianship of a Christian unwed mother without the consent of the child’s father. The Supreme Court stated that “It would be appropriate for us to underscore that our Directive Principles envision the existence of a regular civil code, but this remains an unaddressed constitutional expectation.” Again, very recently, in Jose Paul Coutinho v. Maria Luiza, the Supreme Court stated “Whereas the founders of the Constitution in Article 44 partly IV managing the Directive Principles of State Policy had hoped and expected that the State shall endeavor to secure for the citizens a consistent Civil Code throughout the territories of India, till date no action has been taken during this regard.”
As the first step towards a Uniform Civil Code the Supreme Court has held that all marriages be compulsorily registered, irrespective of their religion. Moved by the trouble of women fighting for their rights under marriages, Supreme Court directed to amend the laws or frame rules as it is the need of the time. The ruling of the court will itself facilitate the object of having a common civil code as the most problems relating to it are sue to the non-registration of marriages. The benefits of this ruling include a check on bigamy or polygamy, will help women to exercise their rights under marriage, maintenance, custody of children, will enable women to claim inheritance and also will help women from getting deserted by their husbands. The desirability of a UCC can hardly be doubted but it can only be brought if the social climate is properly built and the masses awakened to accept the change. UCC is the need of the hour. A strong religious and social support is necessary with a feeling of tolerance towards other religious and mutual respect to a part of each of India as it promotes national unity and solidarity. A true spirit of secularism must be manifested by all in the realization of the same thing
Author: Chandra Bhushan Panday
B.Com_L.L.B, 8th semester,
Amity Law School, Lucknow
Rajagopaul, G.R. 1975. The Story of the Hindu Code, Journal of the Indian Law Institute, Vol 17, No. 14 October-December, pp. 537-558.
Mohd. Ahmed Khan v. Shah Bano Begum and Ors., SCC 556(1985)
Daniel Latifi v. Union Of India, SCC 218 (2001)
Sarla Mudgal & others v. Union of India, SC 1531 (1995)
John Vallamattom & anr v. Union of India, Writ petition (civil) 242 (1997)
Government of Goa,Portuguese Civil Code (1867)
Josh Paulo Coutinho v. Maria Luiza Valentina Pereira, SSC 1190 (2019)