Uniform Civil Code, Panacea to End Unfair Personal Laws

By: Parmanand Pandey (Advocate, Supreme Court & General Secretary IPC)

 Uniform Civil Code (UCC) has become a highly contentious issue in our country, thanks mainly to pusillanimity of political leadership. This controversy has been raging right from the time of independence or even before that. The latest trigger is the Central Government has asked to the Law Commission of India to examine the issue of implementing the Uniform Civil Code. Article 44 of the Constitution of India, which is one of the Directive Principles says; ‘the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.’

But what is Uniform Civil Code? As on today there are multiple laws meant for different communities, for example; there is a ‘Hindu Marriage Act’, ‘Muslim Personal Law’ (Shariat Application Act), ‘Christian Marriage Act’ and ‘Parsee Marriage and Divorce Act’. Hindus, Buddhists, Jains and Sikhs are covered under Hindu Marriage Act. Then there is a ‘Special Marriage Act, 1954’, which enables people to perform marriage irrespective of religion followed by the either person. These laws deal with the matters involving marriage, divorce, inheritance, adoption and maintenance of the respective religions. Having Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions. The British applied a Common Criminal Code for all but allowed the religious laws to be applied in the case of personal matters. Even amongst Hindus different rules were used in different regions and for different castes. At the time of drafting of our constitution there were extensive debates regarding these personal laws. It was said that the Uniform Civil Code would divide the society. But large number of them was of the opinion that the Uniform Civil Code will help in constructing an Indian national identity and eradicate those based on caste, religion and region.

Ultimately, it was put under the Directive Principles of the State Policy, which requires the State to take steps for establishing a Uniform Civil Code throughout the territory of India. Two objections were put forward in the Constituent Assembly against the making of a uniform civil code applying throughout India: firstly, it would infringe the fundamental right to freedom of religion mentioned in Article 25 and secondly, it would be a tyranny to the minority.

These objections were not considered weighty enough even at that time to nullify the utility of a Common Civil Code governing all citizens. However, a grace period for making efforts towards this desirability was thought a prudent step by the Constituent Assembly and, by assigning it a place in Part IV of the Constitution under the title Directive Principles of State Policy, the State was directed `as a policy’ to take steps for bringing all Indian citizens under a Uniform Civil Code. Now  after 76 years of establishing our Republic when the State, to fulfill its obligation towards this Constitutional mandate long overdue, has taken its first step to accomplish this objective, it is apt once again to revisit those objections. The first objection is misconceived. The directive contained in Article 44 in no way infringes the freedom of religion guaranteed by Article 25. Clause (2) of that article specifically saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause (1) of Article 25.

As regards the second objection, the following speech of Shri K.M. Munshi, Member of the Drafting Committee, in the Constituent Assembly may well be quoted: “A further argument has been advanced that the enactment of a civil code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a civil code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. But I go further. When the Shariat Act was passed, or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied.’

‘They then followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the right of minorities then? When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs or a part of it. It is not, therefore, correct to say that such an act is tyranny of the majority. If you look at the countries in Europe which have a civil code, everyone who goes there from any part of the world and every minority has to submit to the civil code. It is not felt to be tyrannical to the minority. The point, however, is this, whether we are going to consolidate and unify our personal law in such a way of life of the whole country as may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand.’

He further said, ‘now look at the disadvantages that you will perpetuate if there is no civil code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mitakshara in others; and we have the law of Dayabhaga in Bengal. In this way even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu laws for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country?’

As far as the anomalies that prevailed among Hindus was removed to a large extent by the passage of the ‘Hindu Code Bill’ in 1955. Hindu Code Bill was divided into four parts including the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act. The Supreme Court of India has reminded many times to the Government of India for framing of Uniform Civil Code. In ‘Sarla Mudgal vs. Union of India’, the Supreme Court observed that there was no justification in keeping Uniform Civil Code in abeyance. It should be introduced for all citizens. Similarly, in ‘Jaan Vallamattom vs. Union of India’ the Supreme Court asked why Article 44 has not been made the part of the enforceable Act. As a matter of fact, Uniform Civil Code is not against any particular religion or caste or custom. But the most vociferous and vehement opposition to the Uniform Civil Code comes from the Muslim community.

It must be mentioned here that almost all Muslim countries in the world have codified personal laws, governing marriage and family matters but Indian Muslims have been denied this opportunity. As a result of it, we see instances of ‘Tripal Talaq’ and ‘Ploygami’ in the Muslim Society. The biggest opposition to Uniform Civil Code came in 1985 after the Shahbano judgement delivered by the Supreme Court of India. Shahbano was an old woman of 65 years and mother of five children. She was divorced by her husband and denied any maintenance after the period of ‘iddat’ (three-month period after divorce in which a woman cannot remarry). According to Shariat the husband was obliged to pay maintenance only for three months after divorce. The case went up to the Supreme Court which granted her maintenance for life under section 125 of the Criminal Procedure Code. The Supreme Court held that Criminal Procedure Code was common for all and therefore, she could claim maintenance under it. Muslim Personal Law cannot be applied in such cases. There was fierce protest by Muslims across the country against the judgement of the Supreme Court. The then Government buckled under the protest of the Muslims and nullified the Judgment of the Supreme Court which is considered to be the biggest sad-back to the Uniform Civil Code.

A question is often asked why do we need Uniform Civil Code? The first and the foremost reason for it is that in the absence of Uniform Civil Code Muslim women are highly discriminated against. For example, (a) a Muslim husband can divorce his wife by simply saying Talaq ,Talaq ,Talaq without given any reason for that. Whereas a Muslim wife has to file a petition in Court which often takes many years. She has to provide the ground for the divorced like; cruelty, adultery etc. She has also to produce witnesses or documentary evidence in support of that ground. Therefore, it discriminates a wife in two ways. (b) a Muslim man can marry four wives at a time. In ‘Shamim Ara vs. State of U.P.’ the Supreme Court has ruled that arbitrary triple talaq is invalid. However, such practices are going on unabated. Recently a woman Shairabano was divorced by a letter from her husband.  (c) Among Christians different standards have been set for divorce which makes more difficult for them to dissolve a marriage than it is for Hindus. The disparities between Hindus and Christians with regard to divorce is very clear, but with no justification. (d) According to Hindu Succession Act a mother has equal rights over the property as do the children and the widow in the event of her son’s death. But when a married daughter dies the mother ranks after the husband’s share.

These differences between different personal laws have created untold suffering to the large number of people and that is why; the importance of Uniform Civil Code hardly needs to be emphasised. Hopefully, the Law Commission will give its considered opinion very soon in respect of the Uniform Civil Code.