This article is written by Anushka Yadav from the Faculty of Law, Aligarh Muslim University. This is an exhaustive article which deals with one of the most disputed issues of the “Uniform Civil Code”. It deals with the controversy that Uniform Civil Code can bring uniformity in India or not.
Article 44 of the Indian Constitution can be referred for understanding the idea of the Uniform Civil Code (UCC). The civil laws of India, unlike the criminal laws, differed from community to community. These community personal laws are challenged many times before the Indian judiciary because they are traditional and unequal laws, especially gender-biased laws. When these laws are challenged then the demand of the Uniform Civil Code arises that can be applied to all the citizens of India, irrespective of religion. Such a law can be made by taking in view the changing scenario of the society and can match the needs of the emerging society. This is an issue of controversy and debate whether it should be implemented in the country or not? And whether it can be made applicable uniformly to a diverse population or not? What are the challenges that create hindrance in its implementation? These are the questions we will discuss in the article further.
Article 44 of the Indian Constitution provides the Directive Principle of State Policy of Uniform Civil Code. It says that the State should take steps to implement a uniform civil code that would apply to every citizen of India.
However, Article 44 does not provide for the definition of “uniform civil code”. The ‘uniform civil code’ can be defined as a set of laws governing the matter of the personal law related to marriage and property of every citizen of India, irrespective of their religion. It is a secular code that is not governed by any specific religious beliefs. It tends to separate personal laws from religion and to secure national integrity and unity of the nation.
The historical background of the Uniform Civil Code in India lies in the British administration over India. They gradually took control of the whole of India. Before that different rulers used to rule different parts of the Indian territory. Mughals, however, gained control over a large part of India but uniform laws were never made applicable to rule the entire country. When the Britishers ruled over India, the major problem they were facing was ruling a country with diverse communities having diverse sets of beliefs. The other problem they faced was that the law and moral beliefs were mixed and the law was not separated. For solving this problem, the codification of laws was done.
Britishers noticed wide irregularities in the Muslim Criminal Law. According to the modern law of Britishers, crime is against the state and thus, any crime being done is to be dealt with by the state itself. They codified the criminal law in a uniform code, that is, the Indian Penal Code,1860. The India Penal Code became the uniform criminal law that applied to each citizen of the country uniformly.
However, the case of civil laws remained different. The personal laws covered the area of marriage-related matters like divorce, adoption and maintenance and property-related matters like inheritance and succession. The source of civil laws is personal laws which comprise religious and customary rules. Thus, the source of civil laws was mainly religion. Different religions have their distinct civil law.
Britishers were afraid of modifying the personal laws as it might cause a large roar by the people of different religions, especially Hindus and Muslims. British rule was a foreign rule for the Indians. The culture and religion that Britishers followed were different. There was strong opposition to the modification of personal laws as the respective communities were having the danger of losing their religious beliefs. They were afraid of imposing Christian religion on them. In the case of Rex v Chundicurn Bose, Morley Dig., I 117, it was observed by the court that the law of England is not likely to be applied to the Indians. ” 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.”
Thus, Britishers because of the apprehension of large opposition, applied a different policy in the case of personal laws. They ensured the religious communities to be ruled according to their respective personal laws. Warren Hastings, the first Governor-General of Bengal make a provision in the Hastings’ rule of 1772 which prescribed the Hindu laws for Hindus and Muslim laws for Muslims.
As the personal laws were mixed with morals and religious beliefs and their languages were strange for Britishers, Warren Hastings started with the codification of these personal laws. Many problems occurred in the codification of these laws as each community was divided into different sects and subsects. Hindus were divided into Jains, Sikhs, and Buddhists. Muslims were divided into Shia and Sunni. They were also divided based on Schools of Law by which they were governed. For instance, the Muslim law has four schools of law those are Hanafi school, Shafi school, Hanbali school and Maliki school. Mitakshara and Dayabhaga are the two schools of Hindu law. The problem could be seen concerning the case in which the two pandits attached to courts were having conflicting ideas on the question before the court. The judges consulted the question of the case with other pandits and also referred to the smritis.
The idea of the Uniform Civil Code was first reflected in the Lex Loci Report of the First Law Commission in 1840. It prescribed the uniform law to be applied to the whole of India, except Hindus and Muslims.
Hindu personal laws
There were many sources to Hindu personal laws like Sruti, Smritis, or Dharmasastras and Commentaries. There were conflicting ideas on which source could be considered as an ultimate end to a particular question. This led to great confusion in deciding the question of personal laws. The personal laws were also discriminatory and unequal towards women. Many reforms in the Hindu Personal law were made during the British legislature. Many Acts were passed which were applied uniformly to the whole community and expressed the idea of the Uniform Civil Code. These were the following Acts:
The further steps for the uniform Hindu laws were taken by the Government of India by appointing a Hindu Law Committee to prepare and draft a Hindu Civil Code in 1941. The report was submitted by the Committee in favour of drafting a Hindu Civil Code in Feb 1947. A draft was prepared by the Committee and introduced as a Bill in the legislature in 1947. The Select Committee presented its report on the Bill in 1948. The Bill was opposed by the orthodox Hindu society and it remained unsuccessful in its implementation as an Act. The Code was broken into separate following Acts:
Thus, the Hindu personal laws were codified as uniform laws.
Muslim personal laws
The Muslim Personal laws largely remained untouched by the Britishers. No such step for its uniform code was taken. Only a few Acts were passed by the British legislature. Some of them are the Wakf Act, 1913, Shariat Act, 1937, and the Dissolution of Muslim Marriage Act, 1939.
Muslim Personal laws are still governed by their specific community law, the Shariat Act.
The idea of a Uniform Civil Code is to apply uniform civil laws to the whole citizens of India irrespective of their religion. The question is whether they can be applied uniformly to the whole of India? For answering this question the case has to be studied on the Goa Civil Code that is the only State with a Uniform Civil Code in India.
Case Study: Goa Uniform Civil Code
Goa is the only Indian State to have a Uniform Civil Code. Goa was once a colony of Portuguese. Portuguese applied the Portuguese Civil Code there. In 1961, Goa became a part of India by the Goa Daman & Diu Administration Act, 1962. The Portuguese Civil Code was authorized by the Parliament in 1867. It was authorized on the condition of necessary amendments that can take place from time to time.
The Goa Civil Code which is also known as Goa Family Law is a uniform civil law for the residents of Goa. Some of the main provisions of the Code are as follows:
- Goa Civil Code provides that marriage is a civil contract.
- After marriage, everything owned by the husband and wife before – and after – marriage, becomes common and the spouse is liable to get half of that common belonging in the case of divorce. The Code allows antenuptial agreements in such cases. Such agreements may state a different division of assets in the case of divorce. Such agreements are considered to be irrevocable.
- Equal property rights for both sons and daughters.
- Parents are not entitled to disinherit their children entirely. Half of the property is the minimum requirement that is to be passed on to the children.
The question of whether the Goa Civil Code is uniformly applied can be answered by going through the following facts:
- As per the Codes of Usages and Customs of Gentile Hindus of Goa, Daman and Diu, Hindu men have the right of polygamy under specific conditions.
- As per the Codes of Usages and Customs of Gentile Hindus, divorce in Hindus is permitted only on the condition of adultery by the wife.
- Bigamy is also permitted on the grounds of
- Failure by the first wife in delivering any child till she is twenty-five years of the age, and
- Failure by the first wife in delivering a male child until she is thirty years of age.
- Muslim men cannot perform polygamy if their marriage is registered under the Code.
- Inequality in the adoption and the rights of illegitimate children
- Catholic Christians can solemnize their marriage in the Church after taking permission at the office of Civil Registrar. But non-Catholics can only register their marriage at the office of Civil Registrar.
The above stated facts about the Code clarifies that it has many such exceptions to itself that makes it not a uniform code in the actual sense. There are exceptions to the practice of monogamy for only Hindus and other communities are not permitted to practice it. The rights of illegitimate children are also unequal as compared to legitimate children. The treatment for the marriages of Catholics and non-Catholics is also different. This clears the fact that it is not applied uniformly to all its citizens. There are many loopholes in this Code.
The idea of uniformity under Article 44
The idea of uniformity enriched under Article 44 of the Indian Constitution does not match the Goa Civil Code. Article 44 provides for the Uniform Civil Code that can be applied to all the citizens of India, irrespective of their religion. The Goa Civil Code is not uniform of ability to all the citizens of India and also its applicability to its citizens. There is a broader intent of Article 44 in implementing uniform civil code to every citizen of India without any communal exceptions.
Article 25 v. Article 44
The major challenge in the implementation of the Uniform Civil Code is Article 25 of the Indian Constitution. The minorities of the country oppose the implementation of the Uniform Civil Code by taking the defence of Article 25.
Article 25 provides for the Freedom of Religion, which is a Fundamental Right in the Constitution. Under this Article, a person is free to practice and propagate his choice of religion. The religious practices prevalent in the personal laws of communities are continued to be practised. These communities contend that the right to freedom of religion in Article 25 enables them to manage personal laws according to their community’s laws. The introduction of Uniform Civil Code is challenged as a violation of the fundamental rights under Article 25. Article 44 is only a Directive Principle of State Policy which is not enforceable in courts but Article 25 is a Fundamental Right which is enforceable in courts.
However, Article 25 excludes secular activities from its purview. Secular activities are to be dealt with by the State and not the religion. This exception is considered to include personal laws by the supporters of the Uniform Civil Code. It is a key point to notice that matters like divorce, adoption, inheritance are matters of law and not of religion. These matters can be separated by religion for better applicability of constitutional provisions. Law and religion are better to be separated. This is a long going debate. But the need for a Uniform Civil Code cannot be denied.
Insecurities in the minds of minorities
The major challenge in the introduction of the Uniform Civil Code is the existence of insecurities in the minds of the minority population of India. The personal laws of the majority, that is, Hindus, are already codified and separated from religion. The minority is afraid of the imposition of the majoritarian personal laws on them. The belief in UCC is the imposition of majority rule on minorities.
This insecurity of minorities is clear in many instances. Talking about the instance of criminalizing triple talaq raised a huge uproar from the Muslim community.
The intention and objective of the Uniform Civil Code are far away from this view of the minority. It is not imposing majority rule on the minority but instead imposing a uniform and secular code of civil laws preserving the constitutional provisions on every citizen of India, irrespective of religion.
Triple talaq and Article 370
The Bhartiya Janta (BJP) Party Government has already taken steps on the issue of triple talaq and Article 370. An Act has been passed criminalizing triple talaq. The Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalizes the practice of triple talaq.
A resolution was passed in both houses of Parliament with ⅔ majority and consequently, the Government of India issued a constitutional order in August 2019 superseding Article 370 which provides special status to the State of Jammu & Kashmir. It allows all the laws of India to be applicable in Jammu & Kashmir.
These two instances raised the debate on uniform civil code in newspapers. By these two instances, it is assumed that the legislature is taking steps in the direction of uniform civil code. Uniform Civil Code is assumed to be introduced in the legislature soon.
No steps are taken in 63 years on Uniform Civil Code
The issue of the Uniform Civil Code always remains on the top of the judiciary. Many such cases come before the judiciary where the need for the UCC is felt by the courts. On 14 Sept. 2019, the Supreme Court again raised questions on the failure of the legislature to take steps on the Directive Principle of Uniform Civil Code. SC said that no steps have been taken by legislature on UCC in 63 years from the codification of Hindu personal laws in 1956. SC was writing a judgment on the applicability of Goa Civil Code on the residents of Goa even when they are outside the state. SC also said that Goa is a shining example of a uniform civil code applicable to all irrespective of religion. This showed the intention of the judiciary desiring the introduction of uniform civil code.
Mohd. Ahmad Khan v. Shah Bano Begum
In the case of Mohd. Ahman Khan v Shah Bano Begum, AIR 1985 SC 945, the question of applicability of Section 125 and Section 127 (3)(b) of the CrPC on a divorced Muslim woman was considered.
The facts of the case were a Muslim woman was driven out by her husband after 43 years of her marriage. When the woman filed a petition asking for maintenance from her husband. In 1979 her husband gave her divorce by citing talaq three times (Triple talaq). He made the defence in the court that he no longer has an obligation to pay maintenance to her wife because he had divorced her and had also paid the amount of dower during the iddat period.
In 1979, the Court of Judicial Magistrate (First Class) held the woman liable to get maintenance at the rate of Rs. 25/-per month by her husband.
The appeal was made by the woman in the Madhya Pradesh High Court in 1980. The High Court increased the amount of maintenance to Rs. 179.20/- per month.
The Muslim personal law on inheritance is so indifferent towards Muslim women. The major issue was raised by Y.V. Chandrachud J. were as follows:
- Whether there is no provision in Muslim law for providing maintenance to a divorced wife by her husband?
- Whether the Muslim law is unequal in the case that no fixed amount is to be paid by the husband as maintenance to his wife? Is it enough to pay something, no matter if it is enough or not?
The question of whether Section 125 of CrPC applies to Muslim women or not was answered in the judgment. Section 125(1)(a) of CrPC provides for the maintenance when she is not capable of maintaining herself when she was refused to maintain by her husband having sufficient means. The term “wife” here is defined under Clause (b) of the Explanation attached to Section 125 (1) as a divorced wife who is not remarried to another person.
Thus, the two major requirements of Section 125 to provide maintenance are:
- A divorced wife who is not capable of maintaining herself, and
- Her husband who is capable of maintaining her.
No reference is made in the Section of religion. It is nowhere mentioned that it does not apply to Muslim women. The only requirement for providing maintenance is the incapability of a divorced woman, no matter what religion, to maintain herself and the capability of her husband to maintain her. The Code is secular and applicable to all its citizens irrespective of their religion.
Article 44 of the Indian Constitution was also referred to in the case by Y. V. Chandrachud J. He raised the problem that the Article has remained a dead letter of the Constitution. The need to frame a Uniform Civil Code was raised for providing better justice to all citizens. The court observed that a “beginning has to be made if the Constitution is to have any meaning”.
Ms. Jorden Diengdeh v. S.S. Chopra
In the case of Ms Jorden Diengdeh v S.S. Chopra, AIR 1985 SC 935, the question of uniformity in personal marriage laws was raised.
The Apex Court observed that the laws that are related to marriage such as judicial separation or divorce are not uniform at all. It also emphasized the need for the uniform provisions like an irretrievable breakdown of marriage and mutual consent for divorce to be applied in all cases irrespective of religion. The need for framing the Uniform Code for marriage and divorce was raised by the Court as the Court directed to send a copy of its judgment to be sent to the Ministry of Law and Justice.
Sarla Mudgal, President, Kalyani v. Union of India
In the case of Sarla Mudgal, President, Kalyani v UOI, AIR 1995 SC 1531, the issue was concerned with Section 494 of the Indian Penal Code, 1860 (45 of 1860). Section 494 of IPC provides for the punishment for the offence of Bigamy. However, Muslims are kept out of their jurisdiction as they are allowed polygamy according to their personal law “Shariat Act”.
The facts of the case were that a woman filed a writ petition against her husband when she came to know that his husband had married a second woman during her lifetime and consequently converted to Islam to protect himself from the jurisdiction of Section 494. The defence of her husband was that he had converted his religion from Hindu to Islam and thus, he can have four marriages at a time.
In another writ petition 424 of 1992, another woman contended that she married her husband according to Hindu rites. Her husband used to perform domestic violence on her and eloped with another woman. After converting to Islam, they both married to each other.
Another writ petition 509 of 1992 contained the same condition as the above writ.
The Court held that the second marriage, without resolving the first marriage done with Hindu rites, is void concerning Section 494 of IPC. The Court held the man liable for the offence under Section 494 of IPC. Article 44 was deeply raised by the Apex Court Bench. The need for UCC was raised as a need for better justice. The Bench itself directed the Government of India to look forward to framing UCC.
Ahmedabad Women Action Group (AWAG) v. Union of India
In the case of Ahmedabad Women Action Group (AWAG) v UOI, AIR 1997 SC 3614, the writ petition was filed under Article 32 of the Indian Constitution.
The writ was filed challenging certain following provision of various personal laws:
- Polygamy under Muslim Personal Law was challenged as against Articles 14 and Article 15 of the Indian Constitution. It was characterized as an act of cruelty within the meaning of clause VIII (f) of Section 2 of the Dissolution of Muslim Marriages Act, 1939.
- Unilateral talaq from Muslim men was challenged against Articles 13, 14, and 15 of the Indian Constitution. The absence of mutual consent was raised.
- The Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged against Article 14 and 15 of the Constitution. The Act was introduced with the view of overruling the judgment of Mohd. Ahmad Khan v Shah Bano Begum. It was aimed at excluding the Muslim women from the jurisdiction of Section 125, CrPC.
- The inheritance laws of Muslim Personal laws (both Shia and Sunni laws) were challenged as discriminatory against female children.
- Section 2 (2), 5 (ii) & (iii), 6 and Explanation attached to Section 30 of the Hindu Succession Act, 1956 were challenged.
- Section 2 of the Hindu Marriage Act, 1955 was challenged.
- Section 3 (2), 6, and 9 of the Hindu Minority and Guardianship Act, 1956 were challenged. Also Section 6 of the Guardians and Wards Act, 1890 was challenged.
- Section 43 to 46 of the Indian Succession Act, 1925 was challenged.
The Court refused to hear the petition on the ground that amending Statutes is not the obligation of the judiciary. The expressed its intention that this is the duty of legislature and legislature can take the right steps in this direction. Many such provisions of personal laws are discriminatory. The result is the introduction of the Uniform Civil Code.
Danial Latifi v. Union of India
In the case of Daniel Latifi v, UOI, AIR 1985 SC 945, a writ was filed to challenge the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The introduction of the Muslim Women (Protection of Rights on Divorce) Act was aimed at overruling the judgment of the case of Mohd. Ahmad Khan v Shah Bano Begum. The judgment declared that Section 125 of CrPC providing for maintenance to divorced women applies to Muslim women irrespective of their religion. The Act declared the Muslim women out of the jurisdiction of Section 125 of CrPC. The writ challenged the Act on the grounds of Article 14, 15, and 21 of the Indian Constitution. The reason was its discriminatory position against Muslim women. Section 125 of CrPC applies to all women irrespective of their religion, except Muslim women concerning this Act.
The Supreme Court held that the Act is not unconstitutional on the grounds of Art. 14, 15 and 21 of the Constitution. The court did not go into the question of the introduction of the Uniform Civil Code but it is clear that the Court left it on the legislature to deal with such discriminatory provisions and thus, the introduction of UCC.
Shabnam Hashmi v. Union of India
In the case of Shabnam Hashmi v. UOI, (2014) 4 SCC 1, the petition was filed to ask the Supreme Court for optional guidelines for the adoption of children irrespective of religion.
The petition was filed under Article 32 of the Constitution by a Muslim. He filed the petition for recognizing him as a parent of her adopted daughter. According to the provisions of adoption in Muslim personal laws, the petitioner was not recognized as a parent of his adopted daughter and was only recognized as his guardian. The petitioner seeks the adoption to be legalized under the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA (Central Adoption Resource Agency) Guidelines notified under the JJ Act, 2000. The Muslim Personal Law Board raised objections on the petition on the applicability of the JJ Act on the Muslims.
The Apex Court held the adoption to be legalized and upheld the applicability of the JJ Act on the Muslims. The Court recognized the Act as a secular Act and thus liable to be applied to every citizen of India, irrespective of religion. Adoption was also held as the Fundamental Right under Article 21 of the Constitution. The issue of the Uniform Civil Code on personal law matters like adoption was raised by the Court as the need.
Shayara Bano v. Union of India
In the recent case of Shayara Bano v Union of India, the constitutional validity of triple talaq, a practice of divorce, in Muslim personal law was considered.
In this case, a woman named Shayara Bano was divorced by her husband by pronouncing talaq three times (triple talaq). The practice is discriminatory on the ground that it is only allowed to men and the consent of women is not required in this practice.
The five-judge bench of the Apex Court held the practice of triple talaq as unconstitutional and un-Islamic. The question of the Uniform Civil Code to stop such personal law practices was again raised.
The idea behind the implementation of the Uniform Civil Code is very comprehensive and must be understood properly. Law is dynamic and changes with the need of time. UCC is also an idea to deal with discriminatory personal laws and deal with the changing scenario of society. It is a secular code for personal laws which is the need for a country like India in which “secularism” is a basic structure of the Constitution. It is not implemented in India uniformly. Goa Civil Code is the only uniform code that is not uniform in nature. It applies to only the citizens of Goa and it also secures some exceptions to it which makes it non-uniform. Codification of Hindu personal laws is also not the end of uniform civil code. This is an issue to be taken seriously.
- MP Jain; Indian Constitutional Law; LexisNexis, Gurgaon, Haryana, Eighth edition (2018)
- Uniform Civil Code in Goa – Legal Services India; available at – www.legalservicesindia.com (last assessed at June 18, 2020)
- Uniform Civil Code: What it is & Why it matters; available at – www.thequint.com (last assessed on June 17, 2020)
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