India being a secular state, it has no official religion and citizens are given freedom to adopt any religion of their choice and practice the same because of this they are governed by various laws based on their personal religion law boards in the context of marriage, adoption, inheritance, succession, maintenance, divorce etc.
To solve this, the Constitution of India has laid down an important Directive Principle of State Policy under Part IV Article 44 wherein it is mentioned that, “The state shall endeavour to secure for its citizens a uniform civil code throughout the territory of India.”
In simple words, having one set of laws that will apply to all citizens of India irrespective of their religion. Uniform Civil Code would ensure that all the citizens are governed by the same law in the matters of marriage, adoption, inheritance etc. But the Constitution also states that the Directive Principles of State Policy are not enforceable by law; they are just fundamental in governance of the country as mentioned in Article 37.
OBJECTIVE OF UNIFORM CIVIL CODE
The main objective of Uniform Civil Code is to bring national integration by eliminating contradiction on the religious ideology for example: According to Hindu law bigamy is punishable offence but in Muslim law a person can marry four wives during a lifetime this creates contradiction as to which laws should be taken into consideration while pronouncing judgement. Also in India, personal laws are supported by religious scriptures and customs of varied culture. This hampers the progress of Indian judiciary, thus making them stagnant. Therefore, implementation of Uniform Civil Code would help in governing all the communities on equal footing.
ISSUES FOR CONSIDERATION
With respect to this, questions have been raised again and again as to, if all the laws associated with contract and tort applies to a Hindu and a Muslim why not equivalent laws of marriage and divorce?
During post-colonial era in India, judiciary tried to make provision for Uniform Civil Code by creating interpretation of varied personal laws of assorted communities and compiled them into one common law, the results of this can be seen in the following case laws:-
Mohammed Ahmed Khan vs Shah Banu Begum
[1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945]
In this case Mohammed Ahmed Khan, an Advocate was married to Shah Banu, with her he had five children. One day he drove Shah Banu out of the house. Shah Banu filed a case against him at Magistrate Court Under Section 125 of the CrPC (Code of Criminal Procedure) asking for maintenance of Rs.500/- per month as her husband’s monthly income was more than Rs.5000/-. Soon after this he divorced her by pronouncing Triple Talaq because of which he was under no obligation to pay her maintenance in accordance to All India Muslim Personal Law Board.
However, the supreme court held that she did have such right under Code of Criminal Procedure (CrPC) and proposed that even Quran imposes an obligation on husband to make provision of maintenance for his divorced wife. Because of this judgement riots and protest erupted all over India. People from Muslim community felt threatened with necessity to guard their culture because they percieved that judiciary recommending Uniform Civil Code was an evidence that Hindu values will be imposed on every citizens. For this reason, they arose to sacrifice anything to protect their personal law board.
The situation got out of hand and eventually Rajiv Gandhi had to overturn the decision of Supreme Court by passing ‘The Muslim womens (Protection of Rights in Divorce) Act 1986 in the parliament which effectively nullified the decision of Supreme court in Shah Banu Case.
This same incident took place in several other cases like:-
Sarla Mudgal V/S Union of India (AIR 1995 SC 1531)
This was the second instance where the Supreme Court directed the government to implement Uniform Civil Code which has been lying in the cold storage since 1949. The question here raised was:-
Whether a Hindu husband married under Hindu law, can by embracing Islam, solemnise a second marriage?
Here, the court held that if a person covert himself into Islam for second marriage, it is an abuse of personal law. In such cases a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. Further it held the second marriage of Hindu husband after his conversion to Islam is void marriage in terms of section 494 of the IPC which deals with the offence of bigamy.
John Vallamattom V/S Union of India (AIR 2003 SC 2902)
Again in 2003, when a Christian priest from Kerala, Father John Vallamattom, knocked the doors of the Supreme Court. The apex court declared Section 118 of the Indian Succession Act to be unconstitutional as it imposed an unreasonable restriction only on Christians in the matter of religious and charitable bequests.
The Bench headed by Chief Justice Khare observed as under:
“ It is a matter of great regret that Article 44 of the constitution has not been given effect to. Parliament is still to step in for framing a Uniform Civil Code in the country.”
Time and again Indian judiciary gave loud and clear calls with every case that came before it for implementing Uniform Civil Code as it was the need of an hour but no actions were taken by the prevailing government, it seems vote banks are more important than implementation of Uniform Civil Code.
There is yet another angle to this issue that needs to be examined carefully and that is Article 25 which gives freedom to the citizens of India to profess, practice and propagate any religion of their choice. It is a fundamental right which means no set of laws can have overarching power over them.
This raises yet another question “Can the country really have a uniform set of laws for all its citizens, which necessarily discards some personal laws, and yet is in harmony with the liberty of faith as guaranteed by Art.25 of the constitution?”
The answer to this question is, Yes. Because Uniform Civil Code is an adequate mixture of laws and customs of varied communities. Uniform Civil Code will not compel a Hindu to perform Nikkah or Muslim to carry out Saptapadi but, in the matters of property inheritance, maintenace will be governed by same common law. It will be a proper mix of both fundamental rights and religious consideration.
- With Reference to Marriage and Divorce:-
It will only promote monogamy not because it is mentioned in Hindu law but polygamy is discriminatory towards women and also monogamy is in confirmation with Article 21 (Right to Life and Personal Liberty) of Constitution of India.
- With Reference to Succession and Inheritance:-
Equal distribution of property between son or daughter, whether self acquired or jointly acquired there will not be any discrimination on the basis of sex.
- With Reference to Maintenance:-
The husband is obligated to take care of the wife during and after the marriage till she remarries. The alimony should be decided on the basis of husband salary, lifestyle of wife etc.
In this way codification of Uniform Civil Code can be done by balancing all the aspects of varied personal law boards but the demands for the same have turned into communal and political overtones which have overshadowed the innate merits of Uniform Civil Code.
In 1954, the then Prime Minister Jawaharlal Nehru was asked about Art. 44 had not been implemented, he declared that: “ I do not think that at the present moment, the time is ripe in India for me to push through.” In other words, he did not feel that the country was ready for such an enactment at that time, which was more than sixty years ago.
Even after this the Law commission of India on 31st August, 2018 said that “Uniform Civil Code is neither necessary nor desirable at this stage” in a 185-page consultation paper, adding that secularism cannot contradict plurality prevalent in the country.
In the midst of all this the small state of Goa has already paved the way for Uniform Civil Code and has enacted the set of Common Family Laws which applies to all the communities of Goa. This is based on Portuguese Civil Code of 1867, which governs all the matters of marriage, divorce etc. and promotes the concept of Equality, Integrity, Sovereignty and Republic.
Under this code, it provides for equal distribution of property between husband and wife and also between children – irrespective of gender. It enacts the rule of monogamy, and Muslims whose marriages are registered in Goa can neither take a second wife nor divorce the existing one by a pronouncement of talaq.
Former Chief Justice of India Mr. Y.V.Chandrachud once remarked “It is heartening to find that the dream of Uniform Civil Code in the court finds its realization in the Union Territory of Goa”. He also hoped that Goan Civil Code “One day awaken the rest of bigoted India and inspire it to emulate Goa.
After such a deliberate discussion, it can be said that Implementation of Uniform Civil Code is a distant dream for India even after 70 years. It is surprising how simply three words can break the nation into uncontrol exuberance and distressed screaming.
This Uniform Civil Code is a combination of political, social and religious aspects. Politically, because the nation is divided as BJP wants to promote implementation of Uniform Civil Code but non-BJPs like Congress, Samajwadi Party are against it. Socially, the educated class of the country have already analyzed the pros and cons of Uniform Civil Code but the non-educated class have no knowledge about it and are under the political pressure to make decisions. And religiously, there is a wide gap between the Hindus who are in majority and Muslim a minority community.
Because of this wide difference the Uniform Civil Code should be a perfect balance of fundamental rights and religious ideologies of all individuals without being influenced by political and religious consideration.
To conclude this I would like to say that India is a land of varied customs, religious scriptures, tradition and each culture has its own Matrimonial and Property Inheritance Laws which not only injures Nation’s unity but also questions whether we are Sovereign, Secular, Republic or Alliance of Feudal States, where people live at the whims and fancies of mullahs, bishops and pandits.
AKSHARA NAHAR, 3rd YEAR, LLB, HINDI VIDYA PRACHAR SAMITI’S COLLEGE OF LAW, MUMBAI
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