This article is written by Surbhi Singh of BA LLB of Shambhunath Institute of Law

ABSTRACT

The notion of the Uniform Civil Code and its legal aspects are the main topics of this article. This article examines the fundamental ideas of the Uniform Civil Code, including its definition, legal theories, and perspectives. This article begins with an introduction to the Uniform Civil Code, which explains the concept and provides background information on where it originated. In this section it goes into additional detail about the necessity or desire for the Uniform Civil Code, including its benefits and drawbacks, as well as implications for implementation. As we move forward this article explores the connection between secularism and the Uniform Civil Code. It also explores how the implementation of the Uniform Civil Code may cause the country to fall apart, which would disrupt intergroup peace and harmony. The Uniform Civil Code and the Constitutional protections are then covered in further detail. This article also discusses the opinions expressed by the Indian judiciary regarding the Uniform Civil Code. Lastly a few sets of recommendations and conclusions round up this work.

Keywords

Uniform Civil Code, Personal laws, Secularism, Constitution, Judiciary

INTRODUCTION

India is a country where exists different religions like Hinduism, Islam, Buddhism, Jainism, Zoroastrianism, Christianity, Sikhism etc. India follows secularism. It   was enshrined in our Constitution and included in the preamble after the 42nd amendment 1976. The term “secular” means that the state does not follow a particular religion and people are not discriminated against because of their religion. This implies that everyone will have the right to practice any faith. Additionally, Article 25 [1]and Article 26[2] of our Constitution guarantee this as a fundamental right. In India religions are governed by distinct personal laws. For instance, the Hindu Marriage Act of 1956governs matters pertaining to marriage, divorce, maintenance and other matters for Hindus including Sikhs, Jains and Buddhists. Christians are subject to Christian law, whereas Muslims are regulated by Islamic law. Hindu Law, Christian Law, and Islamic Law are the three main school of Indian personal law. The current issue is that there are inconsistencies and variances among the personal laws. Nothing is consistent. There have also been cases where women’s rights were either completely ignored or denied by personal legislation. Enacting the Uniform Civil Code would address these drawbacks. All people of the nation are subject to uniform personal law under the Uniform Civil Code.

This Code will take the place of India’s current religious personal laws and create a standard legal system that will serve all citizens, regardless of their faith. Our Constitution makers had this in mind when they wrote Article 44[3]

However, there has been a lot of opposition to it since it was thought to be violative of Article 25 of the Constitution.

In order to determine whether the Uniform Civil Code is indeed appropriate for a nation like India and to make sure it can be implemented correctly there, this article will take a more pragmatic and practical approach to the idea. The legal aspects are considered.

CONCEPT OF UCC

Similar to how kids in schools wear the same uniform so that everyone is treated equally regardless of caste, colour, religion, etc. In a similar vein, our nation needs a consistent civil code to ensure that each person is treated fairly.

As discussed earlier, the Uniform Civil Code is a common set of laws applicable on all citizens irrespective of their religious sect in matters involving marriage, divorce, maintenance, adoption and inheritance.

It aims to provide a single body of legislation for the entire nation. The word ‘ Uniform ‘ refers to laws that apply equally to all citizens irrespective of their sexual orientation, gender or religious belief. It is based on the principle that there is no link between religion and law in the contemporary world.

NEED OF UCC

Promotes Gender Equality

A UCC’s capacity to advance gender equality is one of its key benefits. The current system frequently discriminates against women, especially when it comes to inheritance, divorce, and maintenance. This is because personal laws founded on religious practises are so prevalent. The adoption of a UCC can guarantee women’s equality in all communities and provide them the power to make decisions about their private lives. A UCC can advance society as a whole by eliminating gender-based discrimination and enabling women to engage freely in the political, social, and economic arenas.

Method to achieve Social harmony and cohesion

India is a multicultural country with a wide range of religious and ethnic communities. Different personal laws for various groups can occasionally lead to conflicts and undermine social cohesion. By creating a uniform set of rules that cut across denominational lines, a UCC can promote a feeling of community and connection among citizens. It can support a common comprehension of legal obligations and rights, fostering the peaceful coexistence of diverse communities.

Provides equal status to all citizens

The establishment of a UCC is consistent with the values upheld by the Indian Constitution as well as the secularism principles. It supports the notion of equal legal protection for all people, regardless of their religious affiliation. A UCC can strengthen the secular fabric of the nation by doing away with religiously motivated laws in personal concerns, making sure that the state does not intrude on people’s private religious decisions while still upholding everyone’s constitutional rights.

Promoting Progress and Modernity

India is a fast-modernizing country that upholds contemporary values and ideas. A UCC might be considered as a progressive step that harmonizes individual legal requirements with current cultural standards. It can aid in eradicating archaic traditions and practices that could be discriminatory or backward-looking and promote a more open and progressive society. By ensuring that personal laws are in line with the changing objectives of the country, a UCC can help various communities integrate and promote social progress.

Simplify Indian Legal System

The legal system is complicated and unclear due to the existence of numerous personal laws. By replacing various personal laws with a single set of norms that apply to everyone, a UCC streamlines the legal system. The requirement for people to go through many legal systems based on their religious affiliation can be removed, improving access to justice for all residents. By reducing legal procedures and fostering efficiency in the administration of justice, it can help lessen the pressure on the judicial system.

PERSONAL LAWS AND THE UNIFORM CIVIL  CODE  

Women are viewed as less capable than men in the majority of private affairs, particularly when it comes to talking about marriage, succession, adoption, or even inheritance. In particular, in Hindu law, in the years 1955 and 1956, for whatever reason, Hindu women were not granted the same rights as Hindu men. Hindus practiced polygamy in large numbers prior to 1955. Except in the instance of Stridhan, Hindu women were not allowed to possess any property as its sole owner. She owned a limited estate that, at her death, was given to the male owner’s legal heirs, who were known as reversionary. Her interest was restricted in the sense that she was unable to dispose of the property on her own. Regarding adoption, it was not within the rights of Hindu women to adopt a child independently. These are sufficient examples to demonstrate how patriarchal Indian society is. Despite the codification of Hindu law, there are still some discriminatory restrictions in place today. For instance, with the exception of a few places like Andhra Pradesh, Maharashtra, Karnataka, and Tamil Nadu, a Hindu woman is not a coparcener in the Hindu coparcenary. She is therefore not eligible for her portion of the coparcenary. Therefore, there is a lack of awareness regarding the fact that gender inequity has not been entirely eradicated despite the enactment of Hindu personal laws.

In Pre Islamic Arabia, women had a subordinate position when it came to Muslim law discussions, as the country had been a patriarchal society from that time. Since then, women have been viewed as less important than men. When it comes to the decline of Muslim women and the intensification of their issues, the introduction of Islam has had a significant impact. Certain tenets of Islam contribute to the insecurity and inferiority of Muslim women, particularly wives. Men are permitted to marry four times in Islam, but women are not, and if they do, they are seen as impure and unchaste. Women are not even granted the right to file a suit for divorce from their husbands, especially when the husband’s practice of announcing triple talaq is a severely discriminating one. Recently, the Allahabad High Court ruled that this practice was void and illegal.  [4]

A Muslim woman faces discrimination even in the area of succession, despite claims made by some Muslim scholars that Islam is more liberal and progressive in this area. In terms of maintenance, a Muslim wife is not obligated to receive support beyond the iddat period.

The Criminal Procedure Code requires husband to support their wives, even after a divorce, until they are able to support themselves. This is a secular law that applies to everyone; however, there is debate over Muslim men’s compliance with this requirement.

In the leading case of Mohd Ahmed Khan v. Shah Bano Begum[5], the apex court declared that the section 125[6] of the Criminal Procedure Code also applies to Muslim ,and even the Muslim husband may be required to provide for his divorced wife after the iddat time has passed .The Muslim Women (Protection of Rights on Divorce) Act ,1986 was approved  by the parliament in response to the issue , overturning the Shah Bano case ruling .This statute has the effect of preventing Muslim husband from being obligated to support his divorced wife past the iddat period unless both parties timely indicate to the court their desire to be  regulated by the Criminal Procedure Code .This is similar to having a provision but not applying it to preserve the personal legal space and to fairly compensate the severely suffering woman .

CONSTITUTIONAL ASPECT

The primary issue is that those who wrote the Constitution should not have included the Uniform Civil Code as one of the Directive Principles of the State Policy in Article 44 of the Constitution if they had meant for it to be applied in India. As the name implies, the Directive Principles of State Policy found in Part IV (Art. 36 – 51) are merely guidelines for the State. They are not enforceable by the Court and do not have to be obeyed by everyone. These are just constructive duties that the State must fulfil in order to  promote effective governance.

The Indian Constitution’s Preamble makes it abundantly evident that the country is a secular democratic republic. Thus, the state does not favour any religion. A religion solely focuses on the relationship between God and humanity. According to Justice Jeevan Reddy’s ruling in S.R. Bommai v. Union of India[7], religion is a matter of personal faith and cannot be combined with secular pursuits.

As a new principle develops and becomes more widely understood, a number of inquiries and critiques surface. What would make up the Uniform Civil Code was a crucial question that emerged throughout the unification of personal laws. Since each religion’s personal laws have unique provisions, the unification of these laws will likely cause animosity and resentment among the populace. As a result, the Uniform Civil Code will need to incorporate laws that balance the protection of fundamental rights with the religious beliefs of the various communities that make up the nation.

STATES ALREADY HAVING THE UNIFORM CIVIL CODE

In India only Goa has a Uniform Civil Code that applies to all citizens regardless of caste, gender, or religion. Common family law governs Goa. As a result, the only Indian state with a Uniform Civil Code is Goa. The laws pertaining to marriage, divorce, and succession are the same for Christians, Muslims, and Hindus in Goa.

Marriage in Goa is a contract between two individuals of opposite sexes to live together and form a lawful family, which is registered with the civil registrar’s office. And the parties must abide by the specific laws and guidelines in order for them to live together, but there are certain restrictions which prevent a specific group of persons from getting married. For instance, a spouse who has been found guilty for murdering or aiding the murder of another spouse is not eligible to get married.

LANDMARK CASES

Shah Bano Case(1975)

The Supreme Court first ordered the Parliament to draft a UCC in 1985 in the case of Mohammed Ahmed Khan v. Shah Bano Begum [8]also known as the Shah Bano case.

In this instance, a poor Muslim lady who had received triple talaq from her husband filed a claim for maintenance from him under Section 125 of the Code of Criminal Procedure. The Supreme Court ruled that under Section 125 of the Code , a Muslim woman has the right to receive maintenance her husband.

Following this ruling, there were protests, gatherings, and talks all around the country. By passing the Muslim Women (Right to Protection on Divorce) Act, 1986, the then-Rajiv Gandhi-led government reversed the Shah Bano case ruling and restricted Muslim woman’s access to maintenance under Section 125 of the Code of Criminal Procedure. This Act was put into effect with the justification that the Supreme Court had only made a remark for the UCC’s enactment, not binding on the government or Parliament, and that personal laws shouldn’t be interfered with unless there is a demand from within.

Danial Latifi v. Union of India (2001)

The lawyer for Shah Bano contested the constitutionality of the Muslim Women (Right to Protection on Divorce) Act 1986 in the case of Danial Latifi v. Union of India[9].

The five-judge panel stated that the goal of the Act is to preserve a Muslim husband’s ability to forgo providing support for his wife after a divorce and during the iddat period.

The Muslim Women (Right to Protection on Divorce) Act of 1986 was challenged on the grounds that it violated Article 14 [10]of the Indian Constitution’s equality clause and was discriminatory because it denied Muslim women maintenance benefits that other women received under section 125 of the Criminal Procedure Code.

Furthermore, it was claimed that it also violates the Indian Constitution’s Article 21 [11]guaranteeing the right to life.

The Supreme Court affirmed the legality of the Muslim Women (Right to Protection on Divorce) Act of 1986 and ruled that a Muslim husband is required to provide for all of his wife’s future requirements in advance.

This case set a precedent by establishing for the first time that a Muslim husband is also responsible for paying support to his divorced wife after the iddat period has passed. Additionally, this interpretation strikes a balance between Islamic law and section 125 of the Criminal Procedure Code.

Sarla Mudgal v. Union of India [AIR 1995 SC 1531]

In this instance, the court decided that the second marriage would be void until the previous marriage was legally dissolved in accordance with the Hindu Marriage Act.

The husband converted to Islam from Hinduism and engaged in polygamy, according to the facts. Although this act is not punishable, the court determined that such marriages are invalid based on its reading of Section 494 [12]of the Indian Penal Code.

A Hindu marriage, according to the court, endures even if one of the partners converts to Islam. No marriage was automatically dissolved.

According to section 13 of the Hindu Marriage Act, a divorce decree is used to end a marriage.

Monogamy is strongly enforced by modern Hindu law. Except as provided in Section 13 of the Hindu Marriage Act, a marriage cannot be dissolved.

Court decided that such marriages would be void under section 494 of the India Penal Code since the second marriage of a Hindu spouse after he converted to Islam is against justice, equity, and good conscience.

Shayra Bano v. Union of India [ (2017) 9 SCC 1]

In the instance of Shayra Bano, a young girl was wed in Allahabad to a man by the name of Rizwan. Her husband’s refusal to have a tubectomy and belief that they were haram (forbidden by Allah) methods drove her to have multiple abortions.

Rizwan then requested that her father bring her along with him. Rizwan sent Shayra Bano a letter with Triple Talak.. Then Shayra Bano and four other women who were Triple Talak victims made their way to the Supreme Court. They are contesting the horrific Triple Talak rather than the Quran.

In August 2017, the Supreme Court bench subsequently prohibited the use of Triple Talak. Five petitions for the revocation of Triple Talak were being heard by the bench of judges, who represented five distinct religious traditions. By a 3:2 margin, the Supreme Court ruled that polygamy, triple talak, and nikah halala are all against Muslim personal law and that they violate Articles 14, 15, and 21 of the Indian Constitution, which protect fundamental rights.

CONCLUSION

The Uniform Civil Code addresses how a country respects its own diversity in addition to issues of gender equality. Besides other rights like equality non-discrimination, India offers religious freedom. India’s open multiculturalism seeks a balance between reaching out indiscriminately and letting civilizations alone. It has demonstrated a greater willingness to change dominant habits while providing vulnerable members of minority groups with protections.

Is there any way for India to approach this negotiation? The general consensus is that liberalism can be modelled after the democracies in the West. The issue, is that India’s circumstances are too different from those of the West to utilise as a model. Despite their claims to be secular, the majority of western nations have a strong leaning in favour of Christianity, and the Middle Eastern Nations unmistakably adhere to Islamic law. Law and social standards are inextricably linked, even as we work towards a Uniform Civil Code.

A Uniform Civil Code will need to exercise caution in its choices. The public has to realise that religion and laws are two distinct ideas. This is due to the fact that Constitution guarantees people’s freedom to practise or declare their faith, which will not change even if a uniform code is implemented. Their freedom to practice and declare their faith will not be restricted by the uniform code. Therefore, it is imperative that people start considering religion and law as two distinct ideas and concentrate on empowering individuals from all social classes. India urgently needs to implement consistent legislation.

REFERENCES

• https://indiankanoon.org/doc/631708/
• https://www.legalserviceindia.com/legal/article-773-uniform-civil-code.html
• https://blog.ipleaders.in/challenges-of-a-uniform-civil-code/#:~:text=The%20main%20aim%20of%20UCC,adoption%20of%20children%2C%20divorce%20etc.
• https://theamikusqriae.com/the-need-for-a-uniform-civil-code-in-modern-india/

---

[1] Art.25. Freedom of conscience and free profession, practice and propagation of religion

[2] Art.26. Freedom to manage religious affairs subject to public order, morality and health, every religious denomination or any section thereof shall have the right

[3] Art.44. Uniform civil code for citizens

[4] Shayara Bano vs Union of India And Ors., W.P.(C) No. 118 of 2016.

[5] 1985 SCR (3) 844

[6] Sec. 125. Order for maintenance of wives, children and parents

[7]  1994 AIR  1918.

[8]  1985 AIR 985

[9]  (2001) 7 SCC 740

[10]  Art. 14 Equality before law.

[11] Art.21 Protection of life and personal liberty

[12] Sec.494 Marrying again during lifetime of husband or wife

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.