Uniform Civil Code – In the Path of National Integration.

Introduction

Directive Principles of State Policy specified in Article 36 to 51 of the Indian Constitution are principles or standards, like “Social Policy”, given to the federal bodies and authorities to govern the nation. It is a curriculum in the form of policy direction to attain a welfare state, which is to be remembered while framing a law. These principles are considered as duties of the state, to achieve social and economic democracy in the nation. Though they are not enforceable in the Court of Law, as declared by Article 37 of Directive Principles of State Policy, it is nevertheless “fundamental in the governance”[1] of the country.

The citizens in our country are governed by various personal laws based on their religion, caste, or community. Article 44 guarantees a Uniform Civil Code to all the citizens, and the debate arises when it mandates to replace the personal laws with a common set of rules governing every citizen in the nation. These personal laws are based on the customs and values of the major religious communities. The problem arises when common law is brought to existence, the fundamental right ensured under Article 25, the freedom of religion will be disturbed. The Supreme Court held that “Directive Principles of State Policy should not override the provision in Part III” and they should run subsidiary to fundamental rights.[2] Goa is the first and the only state in India which has established uniform civil code. The concept of common code set up in the context of secularism is a step forward taken towards national integration.

Need for Uniform Civil Code

India, popularly known for its diversity, has a multi-cultural society with different customs and religions. These customs restrict their followers in different ways and the society is divided into communities with differences. For example, the divorce or inheritance law in Hindus is different from the law of Muslims or Christians. The moto behind the Uniform Civil Code is to modernize all the personal laws and bring uniformity in these laws. One of the reasons behind the enactment of uniform civil code is the need for a common code in a secular state irrespective of their religious practices. If Article 44 is not implemented, then Articles 14 to 18 of the Indian constitution, ensuring the right to equality is violated. There is an immediate and compulsive need for a uniform civil code.[3] In the long run, the uniform civil code ensures equality. Many personal laws have undergone reform but Muslim law is yet to do it. In John Vallamattom’s case[4], the petitioner challenged that Section 118 of the Indian Succession Act as violative to Article 25 and discriminative to Article 14 of the constitution. The Chief Justice observed that the enactment of the Uniform Civil Code would end all problems arising in the personal law and the court held Section 118 to be unconstitutional.

The increase in discrimination between men and women, which has pressured for the enactment of a Uniform code for all. Gender justice or gender equality is affected due to the different personal laws that exist. Under religious laws, women’s rights are limited and personal laws, like, marriage, divorce, maintenance, inheritance, and succession are biased. Monogamy is the law followed by the Hindu law, while the Muslim law permits to have as many as four wives in India. Due to this difference, a Hindu man converts to Islam and tries to avoid penal consequences. In most cases, Muslim women suffer a lot compared to the Hindu women, this is because Hindus have codified laws whereas the Muslims have one-sided law without gender equality. The need for Uniform Civil Code arose in the recent case regarding the triple talaq. The Allahabad High Court observed that triple talaq custom was the most demeaning form of divorce, so it was held unconstitutional.[5] Later, in the Shayara Bano case, the Supreme Court with 3:2 majority pronounced its decision, declaring the triple talaq practice as unconstitutional.[6]

The customary laws of tribal communities that do not fall under any of the existing personal laws are one of the problems that arise in the implementation of the uniform code. The laws they practice also differ within the sub-tribes or groups formed under the community. It is difficult to make changes for bringing uniform code because now it is not only concerning different religious communities but also tribal communities. One of the major steps towards ensuring the duties of Article 44 is the 2006 amendment in Juvenile Justice Act, 2000, which gives a parent a right to adopt irrespective of their religion.[7] The need for a Uniform civil code arose at the time of enactment of the constitution, but because of a few barriers in religious communities and tribal communities, it has been very difficult to implement.

Personal laws and the discrimination faced by women

On a clear analysis, it is understood that the personal laws are giving inferior stand to the women compared to men. The blood relations of women are treated inferior compared to the husband’s heirs or blood relations.[8] The problem in our legal system is that we don’t treat family law equally with other laws. There is a uniform set of laws and provisions, like the Indian Penal code and other laws except for family law. The family law provisions for marriage, divorce, and inheritance are different for each community and mostly women face a lot of discrimination without a unified law.

1. Under Hindu law

There are many instances in Hindu personal law where the women faced discrimination. The Hindu women could not become the absolute owner or hold any property except the Stridhana custom followed. Before 1995, even polygamy was allowed in the Hindu community.  Hindi women didn’t have the right to adopt a child on her own and she could not be a natural guardian of her child during the life of her husband. Even after codification, some laws are discriminatory, for example, she cannot be a coparcener and has no right to partition even though she is an heir. Therefore, even after the codification of Hindu law, certain provisions are discriminatory, so the Uniform Civil code has to be implemented to eradicate gender inequality.

1. Under Muslim Law

The Holy Quran gives equal and respectable positions to women with the men in society, but certain aspects of Islam have made married women feel insecure and inferior. Under Muslim law, polygamy is allowed, a Muslim man can marry up to 4 wives at a time. Even in the matter of divorce, Muslim women have an inferior position. The triple talaq is a method followed by Muslim men to divorce his wife. If the word “talaq” is pronounced three times by the husband, then it is considered as divorce. In the aspect of inheritance, if two heirs of the opposite sex in the same degree inherit property, then the Muslim male gets twice the share of the female. Even in the aspect of maintenance, they face discrimination, the wife is to be maintained only to the extent of the “Iddat” period.

1. Judicial stand in few landmark judgments

– Mohd. Ahmed Khan v. Shah Bano Begum[9], this case was a landmark case in judicial history. It showed the issues faced by the Muslim divorcee women and the need for uniform civil code. Shah Bano Begum was 60 years old, she was a mother of 5 children. After her divorce, she filed a suit for receiving alimony against her husband. The district court gave her the right to alimony and the high court gave the decision in favor of her for the claim of maintenance. Then, Ahmed Khan appealed to the Supreme Court. Justice Y.V.Chandrachud observed that the Muslim husband is liable under Section 125 of the Criminal Procedure Code and has to pay maintenance beyond the iddat period to his wife after divorce, therefore even this decision was in favor of Shah Bano. But this decision of the Supreme Court resulted in parliament enacting Muslim Women (Right to Protection on Divorce), 1986, for protecting the right of the women. But this act invalidated the Supreme Court decision by making the husband only liable for maintenance to the extent of the iddat period and if the child is born, then the maintenance period is extended for 2 years.

– In Danial Latif v. Union of India[10], the constitutionality of Muslim Women (Right to Protection on Divorce) Act 1986 was challenged in this case. The contention was that the Act was violating Article 14 and 21of the constitution. Muslim women cannot be deprived of the right conferred under Section 125 of the Criminal Procedure Code. The Supreme Court interpreted differently and upheld the constitutionality of the Act. They observed that the husband is liable for maintenance even for the period after the iddat period and should make reasonable provision for the divorced wife’s future within the iddat period itself.

– In Pratibha Rani v. Suraj Kumar[11], the court held that mere handling of Stridhana, the dowry to the husband without creating rights does not entitle him to use them to the prejudice of his wife without her consent, it does not mean entrustment in the sense understood under Section 405 and 406 of Indian Penal Code, it only putting the article in his possession.

– In Danamma v. Amar[12], it was held that son and daughter are both coparceners from birth. A daughter is considered as coparcener and she is entitled to her share in the property.

– In Sarla Mudgal v. Union of India[13], it was held that second marriage will be invalid until the first marriage is dissolved under Hindu Marriage Act. In this case, the husband converted into a Muslim for the second marriage without dissolving the first marriage under the Hindu Marriage Act. There is no explicit punishment of this act, but the court interpreted Section 494 of the Indian Penal Code and held the second marriage invalid.

Role of Secularism

One of the basic principles of our Indian Constitution is secularism. This principle separates the state from religion. By the 42nd amendment, the word “secularism” was added to the preamble of the Indian Constitution. This aspect implies the state to show neutrality and impartiality towards all the religions which exist in the country. It removes the judiciary and government from interfering in religious communities. Secularism forms a part of the basic structure of the constitution. In many cases, the meaning of the word secularism has been observed, for example, Indira v. Raj Naryan[14] and SR Bommai v. Union of India[15]. The main aim of secularism is to treat everyone equally before the law.

The uniform civil code helps in separating the aspects of law and religion, but its existence is usually opposed by people stating that it is against the concept of secularism. The uniform code will not interfere with religious beliefs, it only emphasizes a common code for all. It insists that if there is one law for everyone, then there will no discrimination and everyone will be treated equally. Some practices of personal law are violative of human rights, for example, the Sati Pratha practice in Hindu law and the triple talaq practice is Muslim law. There are some loopholes in personal law which help people to escape from their punishments. The religious practices which are followed by the people are against human right and dignity, it should not be considered as autonomy, and it’s only complete oppression on the society. A unified code is important for the protection of the oppressed and promotion of the national solidarity.

Uniform Civil Code in Goa

Goa is the only state to implement the Uniform Civil Code. It has a common family law regardless of religion, gender, and caste. In Goa, people belonging to all castes are bound by a common law relating to marriage, divorce, and succession. The special marriage act, 1954 was introduced by Portuguese in 1807, and even after liberation, the law was retained and was applicable all over the state of Goa. This act allows marriage of two people of different sex irrespective of which religion they belong to and the marriage is registered before a civil registrar. This law is outside the purview of the personal laws to which they are bound. The Chief Justice, Y.V. Chandrachud delivered the following words:

“It is heartening to find that the dream of the Uniform Civil Code in the country finds the realization in the Union Territory of Goa, Daman, and Diu only.”[16]

In Goa, there are few rules and regulations to be followed for the parties to live together, they have few restrictions on the category of person who are prohibited for marriage. For example, a spouse who is convicted of murdering the other spouse will not be allowed to marry. Under this law, polygamy is not allowed even though if the husband is a Muslim. After divorce, both husband and wife are given an equal share of the property, therefore, the common code upholds gender equality.

Conclusion

Jawaharlal Nehru himself has said that his greatest achievement was ensuring equal rights to Hindu sisters and his greatest regret was that the same rights were not given to Muslim sisters. All the personal laws have to be changed which are violating the rights of women and children. Uniform Civil Code is not a change to be brought in the constitution, it’s a change to be brought in the people’s mind. Even though the uniform code is highly desirable in our society, it cannot be brought in one go, it will destruct the unity and integrity of the nation. A gradual progression is needed for a change to be brought in the minds of the people and they should be ready to accept it.[17] A justice delayed is justice denied but if justice is hurried, then it may be buried, so a slow and steady process is needed for the establishment of uniform code. We need to enhance the trust of the people on the concept of “unity in diversity”. The efforts of legislation should be on bringing a uniform code without losing the essence of each religion.

References

[1] Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.

[2] State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226.

[3] Jordan Diengdeh v. S.S. Chopra, A.I.R. 1985 S.C. 935.

[4] John Vallamattom v. Union of India, (2003) 6 S.C.C. 611.

[5] Smt. Hina v. State of Uttar Pradesh, WRIT C No. 51421 of 2016.

[6] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.

[7] Shabnam Hashmi v. Union of India, A.I.R. 2014 S.C. 1281.

[8] Om Prakash v. Radha Charan, (2009) 15 S.C.C. 66.

[9] Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.

[10] Danial Latif v. Union of India, (2001) 7 S.C.C. 740.

[11] Pratibha Rani v. Suraj Kumar, A.I.R. 1985 S.C. 628.

[12] Danamma v. Amar, (2015) 12 S.C.C. 301.

[13] Sarla Mudgal v. Union of India, 1995 S.C.C. (3)635.

[14] Indira v. Raj Naryan, A.I.R. 1975 S.C. 229.

[15] SR Bommai v. Union of India, A.I.R. 1994 S.C. 1981.

[16] Damodar Ramnath Alve v. Gokuldas Ramnath Alve, 1997 (4) BomCR 653.

[17] Pannalal Bansilal v. State of Andhra Pradesh, 1996 S.C.C. (2) 498.

Pooja

SASTRA University.

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