UNIFORM CIVIL CODE - THE NEED

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INTRODUCTION

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A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.

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They cover areas like- Marriage, divorce, maintenance, inheritance, adoption and succession of the property. It is based on the premise that there is no connection between religion and law in modern civilization.

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The idea of a?Uniform Civil Code ?has been debated in India for decades, and it has been a longstanding demand of?some political and social reform movements. The UCC was included as a?Directive Principle in the Indian Constitution , which means that it is not legally enforceable, but is considered a guiding principle for the government to follow.

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The?UCC is a divisive issue in India,?with proponents arguing that it would promote?equality and?secularism , and opponents arguing that?it would interfere with religious freedoms and cultural practices.

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Overall, the?debate over the UCC in India highlights the complex and sensitive relationship?between law, religion, and culture in the country that?should be scrutinised from a detached point of view?and should be addressed in a phased and holistic manner.

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UNIFORM CIVIL CODE DEBATE

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Historical perspective – The debate for a uniform civil code dates back to the colonial period in India.

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(a)?????????Pre-Independence (colonial era)

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(i)????????????The Lex Loci Report of October 1840- It stressed the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract. But it also recommended that personal laws of Hindus and Muslims should be kept outside such codification.

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(ii)??????????The Queen’s 1859 Proclamation- It promised absolute non-interference in religious matters.

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So while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.

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(b)?????????Post-Colonial era (1947-1985)

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During the drafting of the constitution, prominent leaders like Jawaharlal Nehru and?Dr B.R Ambedkar ?pushed for a uniform civil code. However, they included the UCC in the Directive Principles of State Policy (DPSP, Article 44[1] ) mainly due to opposition from religious fundamentalists and a lack of awareness among the masses during the time.

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(i)???????????Status of Personal Laws in India

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§???Personal law subjects like?marriage, divorce, inheritance come under Concurrent list.

§???The?Hindu personal laws ?(that apply also to the Sikhs, Jains and Buddhists)?have been codified by the?Parliament in 1956

o?????This Code Bill has been split into four parts:

·???????????The Hindu Marriage Act, 1955

·???????????The Hindu Succession Act, 1956

·???????????The Hindu Minority and Guardianship Act, 1956

·???????????The Hindu Adoption and Maintenance Act, 1956

§???On the other hand,?Shariat law of 1937 ?governs all personal matters of Indian Muslims in India.

o?????It clearly states that the?State shall not interfere in matters of personal disputes, and a religious authority would make a declaration?based on his interpretation of the Quran and Hadith.

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(ii)?????????EFFORTS TOWARDS UCC IN INDIA

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(1st)?????????Special Marriage Act:

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Under the?Special Marriage Act of 1954 , civil marriage is permitted for any citizen, regardless of religion,?allowing any Indian to get married outside of religious custom.

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(2nd)?Judicial interventions:

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(i)???????????Mohd. Ahmed Khan vs Shah Bano Begum And Ors[2] :-

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A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.

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The?Supreme Court ?ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125[3] ) of the Code of Criminal Procedure, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.

Facts about the case:

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·???????????Under Muslim personal law, maintenance was to be paid only till the period of iddat. (Three lunar months-roughly 90 days).

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·???????????Section 125[4] of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife.

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Impact – After this historic decision, nationwide discussions, meetings and agitations were held. The then government under pressure passed The Muslim Women’s (Right to protection on divorce) Act (MWA) in 1986, which made Section 125[5] of the Criminal Procedure Code inapplicable to Muslim women.

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(ii)?????????Danial Latifi & Anr vs Union Of India [6] :-

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Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14[7] & 15[8] as well as the right to life under Article 21[9] . The Supreme Court while holding the law as constitutional, harmonised it with section 125[10] of CrPC and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus, under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.

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(iii)???????Smt. Sarla Mudgal, President, ... vs Union Of India & Ors[11] :-

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In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494[12] of the?Indian Penal Code (IPC).

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(iv)????????John Vallamattom & Anr vs Union Of India[13] :-

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In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118[14] of the Indian Succession Act, which is applicable for non-Hindus in India. Mr Vallamatton contended that Section 118[15] of the Indian Succession?Act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.

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THE CONSTITUTION OF INDIA ON THE UNIFORM CIVIL CODE

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Article 44[16] corresponds with?Directive Principles of State Policy ?stating that?State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.

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However, Article 37[17] of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory.

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Other constitutional provisions relating to religious freedom and secularism are:

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·???????????Article 15[18] - No discrimination on grounds of religion, race, caste, sex or place of birth.

·???????????Article 25[19] - Freedom of conscience and free profession, practice and propagation of religion, subject to reasonable restrictions on the grounds of public order, health and mortality.

·???????????Article 26[20] - Right to establish and administer religious institutions.

·???????????Article 27[21] - Prohibits the state from levying a tax, proceeds of which are used for the benefit of a particular religion.

·???????????Article 28[22] - deals with the issue of religious instruction in educational institutions.

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The 42nd Constitutional Amendment Act inserted the word ‘secularism’ in the preamble. In the S. R. Bommai vs Union of India[23] case, the Supreme Court held secularism as a basic feature of the constitution.

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GOA CIVIL CODE

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Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.

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FEATURES-

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·???????????The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and between children (regardless of gender).

·???????????Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions.

·???????????Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.

·???????????During a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.

·???????????Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.

·???????????The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.

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However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits polygamy.

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UNIFORM CIVIL CODE AND ARGUMENTS FOR & AGAINST

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·???????????It will Integrate India- India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.

·???????????Will Help in Reducing Vote Bank Politics- A UCC will also help in reducing vote bank politics that most political parties indulge in during every election.

·???????????Personal Laws Are a Loophole- By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values. A uniform civil code would change that.

·???????????Sign of a modern progressive nation- It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been significant, our social growth has lagged behind. A UCC will help society move forward and take India towards its goal of becoming a truly developed nation.

·???????????It will Give More Rights to Women- Religious personal laws are misogynistic in nature and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will also help in improving the condition of women in India.

·???????????All Indians Should be Treated the Same- All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. UCC is the only way to ensure that all Indians are treated the same.

·???????????It Promotes Real Secularism- A uniform civil code doesn’t mean that it will limit the freedom of people to follow their religion, it just means that every person will be treated the same and all citizens of India must follow the same laws regardless of any religion.

·???????????Change has been the law of nature-A minority of people should not be allowed to pick and choose the laws they want to be administered under. These personal laws were formulated in a specific spatiotemporal context and should not stand still in a changed time and context.

·???????????Many provisions of specific personal laws are in violation of human rights.

·???????????Article 25[24] and Article 26[25] guarantee the freedom of religion and UCC is not opposed to secularism.

·???????????The codification and unification of the variegated personal laws will produce a more coherent legal system. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary.

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THE WAY FORWARD FOR UCC: GRADUAL CHANGE

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India has a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There exists no uniform family-related law in a single statute book for all Indians which is acceptable to all religious communities who co-exist in India. However, a majority of them believe that UCC is definitely desirable and would go a long way in strengthening and consolidating the Indian nationhood. The differences of opinion are on its timing and the manner in which it should be realized.

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Instead of using it as an emotive issue to gain political advantage, political and intellectual leaders should try to evolve a consensus. The question is not of minority protection, or even of national unity, it is simply one of treating each human person with dignity, something which personal laws have so far failed to do.

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[1] Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

[2] AIR 1985 SC 945, 1985 SCR (3) 844

[3] Order for maintenance of wives, children and parents.

(1)??????????If any person having sufficient means neglects or refuses to maintain-

(a)??????????his wife, unable to maintain herself, or

(b)??????????his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c)???????????his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d)??????????his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a)??????????"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;

(b)??????????"wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2)??????????Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3)??????????If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4)??????????No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5)??????????On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

[4] Supra N. 3

[5] Supra N. 3

[6] (2001) 7 SCC 740

[7] Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[8] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1)??????????The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2)??????????No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a)??????????access to shops, public restaurants, hotels and palaces of public entertainment; or

(b)??????????the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3)??????????Nothing in this article shall prevent the State from making any special provision for women and children

(4)??????????Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

[9] Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law

[10] Supra N. 3

[11] AIR 1995 SC 1531, 1995 SCC (3) 635

[12] Marrying again during lifetime of husband or wife. —Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(Exception) ?—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

[13] AIR 2003 SC 2902

[14] Bequest to religious or charitable uses.—No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the Wills of living persons:

Provided that nothing in this section shall apply to a Parsi.

Illustrations A having a nephew makes a bequest by a Will not executed and deposited as required— for the relief of poor people; for the maintenance of sick soldiers; for the erection or support of a hospital; for the education and preferment of orphans; for the support of scholars; for the erection or support of a school; for the building and repairs of a bridge; for the making of roads; for the erection or support of a church; for the repairs of a church; for the benefit of ministers of religion; for the formation or support of a public garden; All these bequests are void. comment Section 118 comes within the purview of articles 14 and 15 of the Constitution of India and it is, therefore, necessary that all testators who are similarly situated should be subjected to the same rule of procedure. There cannot be any unusual burden of Christian testators alone when all other testators, making similar bequests for similar charities and similar religious purposes are not subjected to such procedure. Therefore section 118 is anomalous, discriminatory and violative of articles 14, 15, 25 and 26 of Constitution. The Court in exercise of its jurisdiction and to remedy the violation of fundamental rights, declared this section as invalid and unconstitutional; John Vallamattom v. Union of India, (2003) 6 SCC 611.

[15] Supra N. 13

[16] Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

[17] Application of the principles contained in this Part - The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws

[18] ?Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1)??????????The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

(2)??????????No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a)??????????access to shops, public restaurants, hotels and palaces of public entertainment; or

(b)??????????the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3)??????????Nothing in this article shall prevent the State from making any special provision for women and children

(4)??????????Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

[19] Freedom of conscience and free profession, practice and propagation of religion

(1)??????????Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2)??????????Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a)??????????regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b)??????????providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

[20] Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a)??????????to establish and maintain institutions for religious and charitable purposes;

(b)??????????to manage its own affairs in matters of religion;

(c)???????????to own and acquire movable and immovable property; and

(d)??????????to administer such property in accordance with law

[21] Freedom as to payment of taxes for promotion of any particular religion - No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination

[22] Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1)??????????No religion instruction shall be provided in any educational institution wholly maintained out of State funds

(2)??????????Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution

(3)??????????No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto Cultural and Educational Rights

[23] [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1

[24] Supra N. 18

[25] Supra N. 19