INTRODUCTION
The Constitution of India recognises the right to equality as its core principle of Fundamental Rights. Yet, there exists a huge gap between the rights of men and women in personal laws. Due to which even after the adoption of secularism by the Government, it has failed to resolve this issue and differences.
“Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing the poverty, promoting self-development and building good governance” – Kofi Annan.
The Constitution of India provides for a Uniform Civil Code (UCC) which proposes the formulation of a single law. However, the uniformity exists only in the criminal law, as it is applicable equally to all the citizens of the country irrespective of their faith. In India, there are different laws, ex-Hindu inheritance Act, Shariat Law, Shia laws, Indian Christian Marriage Act, etc. Thus, it is clear that there is no uniformity in all personal laws as they confer unequal rights depending on religion and gender. This issue has been in debate for many years and some political parties in India have been pushing for the legislation in Parliament.
WHAT IS UNIFORM CIVIL CODE
“Uniform civil code for the citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” – [1]Article 44
The most important aspect of the concept of UCC is that it has two characters –
- There should be a uniform law for all communities;
- All people should be governed by one law with uniformity within communities, especially between men and women.
In India different religious communities practice different personal laws. Personal laws are primarily concerned with marriage, divorce, custody of the child, maintenance for divorced women, guardianship, adoption, succession and inheritance. Religion talks about immortality, devotion to God, pursuits of spiritual goals and salvation, while personal law has its domain in mundane worldly affairs.
We have uniform criminal laws and there is no reason why we cannot have uniform civil laws. Different personal laws in fact conflict with the Right to equality and gender justice. The Uniform Civil Code is a phase-changing move and is strengthened by the example of its successful instance in Goa. The Supreme Court too has repeatedly asserted for implementing Uniform Civil Code as contained in Article 44 of the Directives Principles of State Policy of the Constitution.
UCC-HISTORICAL DEVELOPMENT
The British Government in 1840 on the idea of Lex Loci report had framed Uniform laws for crimes, evidence, and contract but personal laws of Hindus and Muslims were kept outside of such codification. On the opposite hand, British Indian Judiciary provided for the appliance of Hindu, Muslim, and English law by British Judges. Also, in those days’ reformers were raising voice to border laws associated with women against the discrimination done by them basically under religious customs like Sati, etc.
In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a requirement for a consistent civil code was made by Prime Minister Nehru, his supporters and ladies’ activists, that they had to finally accept the compromise of it being added to the Directive Principles due to heavy opposition. Although the country had a full-fledged criminal code operating contained in the Indian Penal Code and Criminal Procedure Code.
GENDER INJUSTICE AND UNIFORM CIVIL CODE CONFLICT
The historical development is itself proof of the fact that our nation discriminates on the grounds of personal laws. Personal laws regulate areas of marriage, divorce, maintenance, succession, minority, and guardianship. They provide norms, rules, and regulations governing personal relations in the family setup. The various personal laws that govern the Hindus, Muslims, Christians, etc., are patriarchal in nature due to which it is utmost unjustifiable and discriminatory to women in its nature.
MUSLIM LAWS:
1. Muslim law recognises the right of a guardian to contract his minor ward into marriage. There is a remedy in the form of the “option of puberty” (right to repudiate the marriage on attaining puberty) but it is restricted where women are concerned.
2. Under the Shia rules if the wife dies, the husband takes 1/4th of the property if there is a lineal descendant, and if there is no lineage, then the husband takes 1/2 of the property but the wife is entitled to receive the only 1/8th. If an intestate property is left behind, the daughter receives 1/2 of the property, but when there is a son, then the daughter becomes residuary with the son taking double of what the daughter is getting. Before the application of the Muslim Personal Law Act, 1937, the woman had no right of inheritance.
3. The most remarkable development in the Muslim personal laws is in the Shah Bano [2]case, where the Supreme Court held that under [3]section 125 of the code of criminal procedure, the wife is eligible for maintenance after divorce from her husband. Before this landmark judgement, the Muslim divorced women were not given a single penny by their husbands as maintenance.
4. Polygamy is outlawed in India but an exception exists for the Islamic men where they can have more than one wife. Women do not have any such right.
HINDU LAWS
1. The discriminatory wording of Section 6 of the [4]Hindu Minority and Guardianship Act challenged in Gita[5] Hariharan’scase which gave mothers, a secondary position as guardian.
2. A notable case here is Sarala Mudgal v. Union of India, where the application of Uniform Civil Code was again raised by the Supreme Court of India. It held that those marriages that had been done by the Hindu male upon conversion to Islam with the intention of conducting polygamy are void[6]. In case, a Hindu male converts himself to Islam, while his first marriage remains subsisting, in such a case there has been an injustice to his first wife therefore, his second marriage would be considered to be void.
A SHINING EXAMPLE – GOA[7]
Goa is the only state in India to implement UCC for every one of its residents. Muslims, who enlisted their marriage in Goa are not permitted to rehearse polygamy. In Goa, every individual is bound by equivalent laws relating to marriage, succession, and divorce. The communities are not under their personal laws. In light of this in a recent judgement the Supreme Court praised the state’s unique position of being the only Indian province with a Uniform personal law, albeit with some concessions.
A STEP TOWARDS UNIFORM CIVIL CODE
On passing the decision of [8]Juvenile Justice (Care and Protection of Children) Act, the government has shown its inclination towards implementation of UCC.
Under this act, the adoption of children by people from the Muslim community has been permitted even though this is not allowed in their own personal laws. The Supreme Court of India again asked the Union Government to make an even Civil Code to get rid of the existing gender inequality and abolish the retrograde practices followed under the framework of personal laws. The debate still goes on and India right now has no UCC.
INDIAN CONSTITUTION AND UNIFORM CIVIL CODE
According to, Article 15 of the Constitution lays down that the state shall not discriminate against any citizen on grounds of race, religion, caste, sex, and place of birth.
Article 25 of the Constitution lays down that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health.
Article 26 says that all denominations can manage their own affairs in matters of religion.
The basic fundamental rights granted to the citizens provide them freedom for the above which is said to be violative if UCC is applied. But here the main question is whether religion and personal laws are synonymous to each other. Both the factors are completely different avenues. Religion is actually not concerned with personal law but is something which is practiced within religious communities. As any religion has its roots in spirituality, mode of worship, conducting prayers and rituals relating to religious practices. But personal law has nothing to do with such objects as its domain includes marriage, divorce, adoption, succession and inheritance.
PROS OF UNIFORM CIVIL CODE
1. A uniform code will pave the way for national integration and secularism.
2. The most important advantage would be in the upliftment in the status of women in society.
3. This will promote equality and justice because if there could be a uniform criminal act, then why not a common civil act, too.
4. This will save the cumbersome legal matters governed by personal laws. As, in absence of common laws, judges interpret various personal laws based on maintenance, inheritance, etc.
5. This will help to use the full potential in accordance to the needs of the youth and their contribution towards nation-building.
CONS OF UNIFORM CIVIL CODE
1. India is a multi-cultural country. This itself makes the task of application of a common personal law very challenging as it would not cater to the demands of all the existing communities.
2. This would automatically then cause ambiguity and enmity amongst the citizens of the country.
3. This code is majorly looked down upon by the Muslims as a threat to their identity because the code in itself seems to be favouring the majority Hindu population.
4. Constitution guarantees minorities the right to follow their own religion and customs. UCC could be violative of it.
5. When there will be a situation as to which law shall prevail supersede the other, that will be problematic.
THE ROAD AHEAD
Uniform civil code should be brought gradually and not forcibly. The implementation of UCC should not disturb the fabric of diversity in Indian society. Also, this should be done with a gender-sensitive approach so that the oppressed women are brought on equal footing in case of rights related to succession, marriage, adoption, etc.
CONCLUSION
Women’s rights and upliftment have been the talk of the town for a long, a lot is said but rarely done. The position of women in these personal laws is a domain to worried and worked upon. There has been a drastic change in the Hindu Code since its commencement but the Muslim laws are rigorous and outdated practice. This keeps the women at the mercy of the other gender at any point in time. Thus, the Uniform Civil Code is the need of the hour and era so that it caters to the needs of all the genders equally without any biasness. Justice Kuldeep Singh has rightly said that personal laws and religion are not connected. Marriage, succession are matters that are secular in nature and that, these cannot be brought within the framework of Right to Religion[9].
[1]Article 44, The Constitution of India,1949.
[2] Mohd. Ahamed Khan vs. Shah Bano Begum AIR 1985 SC 945
[3] Order for maintenance of wives, children and parents.
[4] 1956
[5] Ms. Githa Hariharan & Anr v. Reserve Bank of India, AIR 1999, 2 SCC 228.
[6] Section 494, IPC.
[7] Jose Paulo Coutinho V. Maria Luiza Valentina Pereira & Anr., CIVIL APPEAL NO. 7378 OF 2010 (SUPREME COURT, September 13, 2019).
[8] Juvenile Justice Act,2014.
[9] Article 25-28 of The Constitution of India.
This article is authored by Khusboo Kharbanda, 4th Year BA.LL.B Student at Sinhgad Law College, Savitribai Phule Pune University.
