This article is written by Purvika Sanjay Kirmire of 5th Semester of GLC Mumbai, an intern under Legal Vidhiya
Abstract
UCC which stands for Uniform Civil Code, about which debates had been running through decades. The name itself states that it aims to bring uniformity in civil laws in India, which will be equal for every Indian irrespective of the person’s caste, color, gender, race, religion, place of birth etc., which will be non-discriminatory, which will give equal rights to all.
It aims to bring equality of laws between the religions and also between male and female. Current personal laws are seen to be deviated more or have given more authority to males, and females being inferior to them.
This is a question that can in reality UCC bring gender equality, which would give equals rights to males and females. The author has tried to answer this question by showing that how gender inequality exists in the personal laws, and how UCC can bring a change or can it really strike this inequality down.
Keywords
Equal rights, women, gender equality, personal laws, Act, son, daughter, discriminatory, misery, religions, bill, age, uniform, violation, disparity,society.
Introduction
There are two types of laws in the world namely, civil laws and criminal laws. In India criminal laws are same for everyone irrespective of their caste, religion, color, gender etc. But this is not same for civil laws, some civil laws are same for everyone and some are not as they are specific for a particular religion/community. India, a country with vast diversity in food, clothes, language, religions, and also personal laws. Different religions have different personal laws which govern matters like divorce, marriage, adoption, inheritance etc. Hindu Marriage Act, Hindu succession Act, Christian Marriage Act, Indian Divorce Act, Parsi Marriage and Divorce act these are some of the personal laws which govern people of a particular religion/community, there is no uniformity in these matters for all religion, if a Hindu is getting married, he will have to abide with the personal laws of his religion, and same applies to people belonging to other religions/communities. In 2nd law Commission report it was submitted through draft to make uniform laws for laws related to crime, contract and evidences but not to extend this uniform codification to personal laws. This was so because bringing uniformity in such laws won’t affect people much but bringing uniformity in personal would have raised many eyebrows of people from different religions.
UCC a step towards gender quality
UCC aims at bringing equal laws which would govern all these matters, equality between everyone before the law, either it be a male or a female both will be treated equally and will have to abide same set of laws and this supports gender equality. Equality between every religion before the law and equal laws for both male and female can be achieved by same set of laws. It is an idea of making single code, a code which is same for all. In current scenario Hindu laws, Parsi laws, Christian laws, Muslim laws, are different which govern matters like marriage, succession, divorce, partition, inheritance etc, basically UCC is an idea of same laws for marriage succession, inheritance, partition, divorce. Bill demanding for UCC has been brought to the Parliament but it could never succeed due to one or other reason like lack of support or religious turmoil against UCC. Article 44 of Directive Principles of State Policy states that shall endeavour to secure for all citizens a Civil Code that is uniform throughout the territory of India. Article 25 guarantees the freedom of conscience, freedom to profess, practice, and propagate religion to all citizens is a fundamental right which is enforceable, is seen as contrary to article 44. But does bringing equal provisions governing these matters would infringe peoples right under Article 25, may be or maybe not, UCC doesn’t aims to alter the customs or rituals of any religion which is connected with worship of their deity, it is not a hurdle to a person who wants practice his religion it just aims at making a set of laws, to govern these matters, which are not discriminatory, or which doesn’t support certain practices like bigamy, polygamy, etc., which equates male and female, it just aims to invalidate the wrong practices under these personal laws which are the reasons of someone’s suffering.
India is a secular country that has no state religion but different laws for Hindus, Muslims, etc. paints it with religious color, so there isn’t true secularism but if UCC is brought that is the same set of laws for all India will truly become secular. All Indians will be treated equally as the same laws will govern them without discrimination in every matter. In personal laws there can be seen discrimination against women like in Muslim laws of marriage, and maintenance; like Hindu laws of inheritance, etc. Polygamy is allowed in Muslim personal laws which are violation of the rights of Muslim women, this practice is illegal in many countries, in India it is illegal but is valid for Muslim males. Reforming every personal law individually will not be needed if there’s a single code governing matters like succession, marriage etc. which won’t discriminate between male and female, which is uniform for people of all religions.
Enacting common law that would apply to all communities is perhaps the only way forward in bringing about sweeping reforms for woman’s rights in India while there is no doubt that religious personal law has been discriminatory towards women. Hindu undivided family act gives tax benefits to only Hindus and leaves out married daughters from inheritance. Hindu law discriminates between heirs of deceased men and women, Christian women are not recognized as natural guardian of their children, Muslim law recognises marriage of a minor, Parsi laws don’t recognise adoptive daughter’s rights, Naga tribes prohibit women inheriting property because of the customary laws which are patriarchal.
In Hindu undivided family father is the head of the family and after his death the son becomes the head, and if son is a minor then mother becomes the guardian, this does not provide a chance to his wife or daughter to become the head of family. Gender equality is a hurdle in the society in which females are not provided with equal opportunities of education and empowerment.
Sarla Mudgar v. Union of India[1]. In this case following questions were raised: Can a Hindu male by conversion to Islam marry second wife?
Whether this second marriage is valid? Whether the husband who has solemnised second marriage would be guilty under section 494 of IPC? The court observed that a Hindu who has married under the Hindu law by mere conversion to Islam cannot marry second wife. When he has solemnised second marriage by conversion to Islam during the lifetime of first wife, without the first marriage being dissolved his second marriage is held to be invalid because under the Hindu Marriage Act marriage can be dissolved only on the grounds mentioned under section 13 of the Act . The husband who has solemnised second marriage will be guilty under section 494 of IPC. Because there is no uniformity in these laws governing marriage and divorce some Hindu males by conversion to Islam solemnised second marriage, during the lifetime of his first wife, this was done because Hindu laws prohibits bigamy and Muslim laws permits four marriages. This non uniformity became the cause of suffering for the wives whose husband solemnised second marriage during her lifetime. Supreme court in its judgement held such marriages invalid and void.By making uniform laws for marriage, divorce, adoption etc., no such practices as one mentioned in the above case shall take place.
Under Muslim Personal Laws, Marriage of minor is allowed, a girl who has attained the age of 15 years is allowed to marry even when the legal age for marriage of a girl is 18 under PCMA and legal age for consent is 18 under POCSO Act. Marriage is valid from the age when a girl gets her first menstrual period and when a boy hits puberty which is considered to be at the age of 15. It validates polygamy, male has this right of marrying 4 wives and this is not valid for women to do so neither they demand but the only demand from these Muslim ladies is to invalidate this practice which allows their husband to marry four wives. In 2019 triple talaq was criminalized but halala marriage are still in practice. Inheritance rights are discriminatory. Property inherited by a woman is half the property inherited by her bother. This also shows that gender inequality prevalent in personal laws. From the property of wife husband gets 1/4th part of property if there is an heir, if not then 1/2 part of the property but wife gets 1/8th part of property if there is an heir, if not then 1/4th part of the property of her deceased husband.
In Parsi personal laws male who marries in other caste their kids are considered to be Parsi but if female does this then she and her kids do not get recognition as Parsi’s. Parsi personal laws do not recognize rights of a girl who is adopted.If a Parsi female dies intestate equal distribution property will be done amongst the widower and each child but when male dies intestate then there are no equal rights over property, each son and widow shall get double the share of property of each daughter.
In the case of Pragati Varghese v. Cyril Varghese[2], some provisions of Divorce act 1869 earlier named as Indian Divorce act 1869 were challenged and also some petitions were filed by Christian wives challenging these provisions.
In this act the grounds for divorce were unequal for men and women, here gender inequality could be clearly seen. Ground for a Christian husband to get divorce was just adultery on the part of wife but for a Christian woman there existed more than one grounds that must be satisfied that too in pair to apply for divorce, these grounds are:
Bigamy with adultery, or Adultery with desertion, or Adultery with cruelty, or Incestuous adultery, and so on.
Under the other personal Matrimonial laws like Parsi Marriage and Divorce Act, Hindu Marriage Act, Special Marriage Act a wife can file a petition for divorce against her husband on the ground of cruelty on the husband’s part without there being a compulsion to prove that husband had also done adultery. But in the Divorce Act a Christian Wife cannot get divorce on the ground that her husband has done cruelty with her. This provision of the Divorce Act that is the Section 10 is discriminatory as it discriminated between men and women because they are not given equality on the terms of divorce, and it violates Article 15 of the Constitution of India according to which a state shall not discriminate between its citizens on the ground of sex. Right to life and personal liberty which is guaranteed to every citizen and non-citizen by Article 21 but in this case a Christian wife cannot get divorce from her husband even when she is a victim of cruelty, so this section 10 was also violative of article 21. Getting divorce on the ground of cruelty is valid for wives who come under other personal matrimonial laws but Christian wives do not have same and equal rights with these wives coming under other laws, this creates a disparity between them. This violates Article 14 of the constitution of India which guarantees equality.
When this matter came before the court the full bench held that the provisions of section 10 of the Divorce act were violative of Article 14, 15, 21 of the constitution of India.
It was argued that Section 10 of the Divorce act violates the provisions of Article 14 and 21 of our Constitution to the degree that it necessitates adultery to be linked with cruelty as a reason for divorce. The right to life protected by Article 21 encompasses a right to live in dignity, free from mental or physical abuse, and without having to live in continual dread of being tortured or subjected to violence. If being married causes you unimaginable misery, you have the constitutional right to seek the dissolution of your marriage. Even after the end of marital relationship, Section 10 forbids the Christian women from obtaining a divorce on the basis of cruelty. Such a legislation is harsh, arbitrary, and in violation of Articles 14 and 21 of the Constitution of India since it forces her to remain with her tormentor until death. The respondents argued that the courts decision of striking down certain sections of section 10 as unconstitutional would amount to re-codification of the law, which was the sole purview of the Parliament. The Court Responded by explaining that it was not doing so; rather, it was simply quashing the portions of the law that were unconstitutional.
As seen in the above-mentioned case unequal grounds of divorce were held unconstitutional and court gave equality in terms of grounds of divorce to both male and female. But can every personal law be brought in front of the court to test its validity, this isn’t possible this will just increase the burden on courts, what can be done is enacting same set of laws governing matters like marriage, divorce etc., which would apply to all religions, which would equate males and females.
Conclusion
UCC can be of great help in removing all these discriminatory laws. It seems easy to say all these things but to bring it in reality there is the need of combined efforts from the Government and its citizens. We as a rational human being should think that if a personal law which is violating someone’s right, which has become the reason of that person’s pain or misery be valid. Here the idea is not to take away their right to practice their religion, but we should never forget that either it be any religion it says ‘Do unto others as you would have them do unto you’, which means you should treat others with same consideration and care that you would like to be shown to you, a male should not treat a woman in a way that he wouldn’t like anyone to treat him in that way same applies to females as well. UCC has the potential to bring gender equality, this is only possible if we as a citizen of this country cooperate with the law makers to bring legitimate civil laws, which won’t harm our religious practices but would ensure that equality prevails and that no one is discriminated. We should raise voice if something is wrong but for the thing which is giving our daughters, mothers, etc., equal rights, we should not create a hurdle. Here not just this cooperation is expected from the citizens but the government as well should take proper inputs from its citizens, should enact laws which aren’t discriminatory towards people of different religions but which are equal for all.
Reference
- https://youtu.be/53IBNGRz9fU
- https://www.legalservicesindia.com/article/1832/Uniform-Civil-Code-Towards-Gender-Justice.html
- Prof. H. D. Pithawalla, Legal writing and Legal Language, 105, 110 (4th ed., 2020)
- https://www.drishtiias.com/daily-updates/daily-news-editorials/gender-equity-and-uniform-civil-code
- https://blog.ipleaders.in/uniform-civil-code-boon-bane-womens-rights-india/
- https://youtu.be/rirOvoCDn7E
- https://youtu.be/95stP-aHF58
- https://indiankanoon.org/doc/1401518/
[1] Smt. Sarla Mudgal, President, Kalyani & Ors. Vs Union Of India & Ors, 1995, AIR 1531, 1995 SCC (3) 635
[2] Mrs. Pragati Varghese And Etc. vs Cyril George Varghese And Etc. on 6 May, 1997, AIR 1997 Bom 349, 1997 (4) BomCR 551, 1997 BomCR Cri, (1997) 3 BOMLR 333, II (1997) DMC 407, 1997 (3) MhLj 602
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