The issue of implementation of Uniform Civil Code has emerged in India’s political discourse recently, mainly because Muslim women, being adversely affected by the personal laws, have begun knocking the doors of the Supreme Court to uphold their fundamental rights to equality and liberty. In the absence of a uniform code or common personal laws regarding matters such as marriage, succession, adoption, etc. numerous personal laws which derive their authority from different religious texts, rituals or customs are applicable. This paper examines the need for the Uniform Civil Code in association with personal laws that are prevalent in India. The authors present and justify the argument that the enforcement of common personal laws is essential for the harmonious development of India.
The Uniform Civil Code (UCC) in India proposes to replace the personal laws which are based on the scriptures and customs of each major religious community in the country, with a common set of regulations to govern every citizen of the country.
The analysis for the enactment of Uniform Civil Code has drawn various pros and cons which may be reflected if this Code becomes operative.
The Uniform Civil Code will not only promote the gender parity but it will also facilitate the national integration by ensuring zero tolerance to discrimination on various grounds as all citizens, irrespective of the religion practiced by them, shall be governed by a singular civil code. For instance, the Amendment of 2005 under the Hindu Succession Act, 1956 has been celebratory since Section 6 now provides for the equal rights of a woman to be a coparcener in the family property
However, it is practically tough to emanate a common and uniform set of rules for personal issues like marriage, divorce, succession of property, adoption etc. due to tremendous cultural diversity prevalent in India across the religions, sects, castes, states due to which, the enforcement of the Uniform Civil Code may hamper the secular nature of India.
It has been perceived by numerous communities; particularly the minority communities that the Uniform Civil Code will fundamentally encroach upon their rights to religious freedom and with the codification of personal laws into uniform rules and their compulsion, the scope of the freedom of religion will be reduced.
II. Legal Provisions
The Constitution lays down a provision for Uniform Civil Code under Article 44 as Directive Principle of State Policy which states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Hindu Law in India is codified under the statutes namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Disposition of Property Act, 1916.
In the historical period the people who lived near the river Indus or the river Sindhu were called Hindu. There was no relation to the religion with the term Hindu.
A person was called to be a Hindu on the basis of geographical conditions only. With the progress in time, the stage came from history towards the medieval period where the Islamic culture started to develop in the name of “Prophet Mohammad”
Hinduism was not a religion in the ancient period, but it grew gradually. Before the “British Rule” the religion of Islam was also developed in India and hence two major religions were prevalent in India. Even though these two religions were being practiced in India, the British emphasised on the practice of Christianity, and this led to the development of Christianity in India.
Hindu Law also lays major importance to karma which means that if a person does anything good or bad in his/her life then the rewards for that will be given to them in the next life and not in the present life.
At a certain point of time Hinduism became very rigid, its peaceful nature declined due to the development of caste system whereby the Brahmans became more powerful and started demoralising the lower caste. This led to the formation of Varna System which caused division in the society according to the castes of the people. A major drawback of this system was that it began discriminating the lower castes at the highest level. The upper class did not even consumed food in the presence of lower class. To overcome this inequality, Guru Nanak Dev Ji originated the concept of community kitchen where each individual could consume food without being labelled to belong from a certain caste.
The onset of the Varna system in India also led to the inception of various other evil practices which hindered the growth of the society. Practices such as Sati, Child marriage, Untouchability etc. started to gain prominence. With the passage of time and changes in the behaviour and mind-set of the Indian society, these traditions and beliefs soon started to fade away and Hindu laws evolved into the above mentioned statutes.
The Hindu Marriage Act, 1955 considers marriage as a sacrament and a contract which may be executed. It is observed as a pious relationship for the procreation and continuation of family lineage. Marriage can be solemnized between two individuals, who belong to any of the religion which fall within the category of Hindu, are covered under this Act.
A Hindu marriage shall be sanctified if the parties are competent to such a marriage in the sense of soundness of mind, relevant age of the parties, sapinda relationship as well as the prohibited degrees of relationship and bigamy . These restrictions and formalities have been retained which are expedient for the solemnisation of a valid Hindu marriage under this Act. Conversely, the non-compliance of any of these grounds may result in the nullity of marriage in form of voidable or void marriage.
Divorce provisions under the Hindu laws are governed by Hindu Marriage Act, 1955. It comprises of such grounds which can be pleaded by either of the parties. Divorce can be pursued in the form of any mental or physical injury, demanded as cruelty or if any of the spouse is suffering from temporary or permanent form of leprosy, mental disorder or any venereal disease. If any of the parties has either renounced the world or there is no knowledge of such a person being alive or such person has converted into any other religion, then it will constitute to the valid ground for seeking divorce.
Moreover, adultery includes a single act of sexual intercourse by the wife while her marriage subsists and desertion also refers to the wilful neglect of a person by his/her spouse.
Further, an additional ground has been added to the provisions of divorce which is termed as “irretrievable breakdown of marriage”. This includes the dissolution of marriage where the couple fails to co-habit or where there is no restitution of conjugal rights. The supplementary was made due to the increase in the number of cases related to such issues.
Adoption under Hinduism is recognized under the Hindu Adoption and Maintenance Act, 1956. Adoption refers to the transplantation of the adopted child from one family in which he is born to another family in which he is adopted. On adoption, ties of the child with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family.
The Hindu Succession Act, 1956 lay down the general rules as to the order of succession when a Hindu male dies intestate. These rules incorporated devolution of the property of the male dying intestate. The preferential rights were given to the relatives under the Class I category while the persons under Class II category succeeded the property in the event of absence of Class I heirs. The view of Agnates over Cognates was applicable when Class I and Class II heirs are significantly missing.
Females earlier were not eligible to be a part of the coparcenary and inherit the property of the intestate, but after the amendment made in 2005, females were granted the right to be a part of the coparcenary and the intestate succession.
Hinduism and the Uniform Civil Code:
Scrutiny of the prevailing statutes under the Hindu laws makes it evident that even though speedy amendments in the Hindu laws are being made the implementation of the Uniform Civil Code is practical as it will ensure that all the exploiting provisions which depict gender inequalities and preferential status given to significant classes in the society are eliminated. Discrimination in any form will also diminish. The formulation of the Uniform Civil Code would safeguard the interests of the minority within the religion of Hinduism as separate personal laws of different groups, sects or sub-sects of Hinduism would be disregarded and unified personal laws would be recognized.
Christian laws in India are elaborated under the legislations such as the Indian Christian Marriage Act, 1872, The Indian Divorce Act, 1869, the Marriage Dissolution Act, 1936, the Juvenile Justice (care and protection of children) Act, 2006 and the Indian Succession Act, 1925.
The expression “Christians” under the Christian personal law means persons professing the Christian religion and “Indian Christians” include the Christian descendants of natives of India. This expression also includes the persons who have converted to Christianity.
Succession under the Christian personal laws in India is administered through the Indian Succession Act, 1925. As per this statue, only those relationships that arise from a lawful marriage are considered for the succession of a property. Property of the intestate is apportioned amongst his widow and his children, with due consideration to the testament or will of the male intestate.
Corresponding to the Christian marriage laws, every marriage must be conducted and solemnized between the hours of six in the morning and seven in the evening. Marriages should be sanctified by a Minister of Religion/Priest in the territories of a church only. Before a marriage is solemnized, its intention has to be notified to the Minister/Priest, who is licensed to perform a marriage by stating the names, profession, condition and other requisite information of both the parties. Such marriages are void on the grounds of unsoundness of mind of either of the parties, absence of credible witnesses, etc.
The right of adoption for Christians in India has been judicially recognised, but it has to be pleaded and proved on the facts of each case. In the absence of customary adoption laws under the Christian personal laws, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2006 are applied. The adopted children will not be treated in law as children and upon the death of the foster parents; their estate would be distributed among the legal heirs of the intestate, as adopted children are given no rights in succession.
Christianity and the Uniform Civil Code
In the event of the implementation of the Uniform Civil Code in India, the people governed by the personal laws of Christianity will also be governed by a single civil code without being victimised by their own personal laws. For instance, according to the customary laws of Christianity, couples are under an obligation to serve the period of two years as the period of separation and shall have to live separately for such period before they are adjudged eligible to seek divorce. Conversely, in the cases of other religions, couples shall have to serve only a period of one year so as to be called as judicially separated before becoming suitable to apply for divorce. A Uniform Civil Code would preserve the interests of the Christians by eradicating such distinguishing provisions and maintaining uniformity among all the religions.
The religion of Islam is well equipped with the set of personal laws which regulates the people practicing this religion. The Muslim laws encompasses certain personal laws, namely, the Muslim Women (protection of rights on divorce) Act, 1986, the Dissolution of Muslim Marriages Act, 1939, The Muslim personal law (shariat) Application Act, 1937, The Mussalman Wakf Act, 1923.
A person is said to a Muslim if he practices the religion of Islam and is considered to be a Muslim, the person must believe in Allah as his Lord, believe in Muhammad as the messenger of Allah and accept the Quran as the holy book of Allah.
The Succession law under Muslim customary laws are constituted through some elements of The Holy Quran. Muslim law recognizes two types of heirs; Sharers and Residuaries. Sharers are the ones who are eligible for the share in the property of the deceased whereas, Residuaries are those who take such a part in the property that is remaining after the sharers have taken their part. The property of the deceased is devolved amongst his widow and children with respect to the testamentary document of such an intestate. The daughters are not eligible to be the sharers in the property, instead they become the residuaries.
Adoption under the Muslim Law was not recognised and those who desired to adopt a child can only take the “guardianship” of such a child under The Guardian and Wards Act, 1890. But, in a landmark judgment, the Supreme Court ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of that person’s religion. In case of a conflict between the personal laws and this Act, then personal laws will have no relevancy in this respect.
Marriage/Nikah in Islam is not a sacrament like in Hinduism, but it is a civil contract between a man and woman to live as husband and wife. Before the ceremonies of marriage takes place, the wife is entitled to Dower or Mahr by the husband as a mark of respect. It is the fixed sum of money or property which is decided beforehand between the parties.
The husband is duty-bound to provide for the maintenance of the wife in the form of such things as may be needed to support life, provided the wife is not a minor incapable of consummation, is faithful, lives with her husband and obeys his reasonable orders, even if the wife is proficient enough to support herself and the husband is not.
A marriage is suspended in consequence of the parties being either within the degrees of prohibited relationship or sapinda relationship. The parties to the contract have not completed the age of majority or such age as may be prescribed by the Muslim laws or the consent of the parties is not free.
Divorce in Islamic laws is based on the Dissolution of Muslim Marriage Act, 1939 where a Muslim woman can seek for divorce when the whereabouts of her husband are unknown or where the husband is incapable to provide for such maintenance as mentioned under the contract of marriage or the wife is the victim of cruelty by her husband or such other condition that has been prescribed by the Muslim laws.
Islam and the Uniform Civil Code:
The enforcement of the Uniform Civil Code would benefit Muslim women the most by eliminating discrimination and rigid practices of Triple Talaq, Polygamy, Nikah Halala, etc. Triple Talaq is a tradition where a Muslim husband is allowed to divorce his wife by uttering or writing the word “Talaq” three times to his wife. Whereas, the Islamic practice of polygamy permits a Muslim male to be married to four wives at a time. According to nikah halala, a woman who has been divorced through Triple Talaq has to marry another man and consummate her marriage with him before being eligible to remarry her ex-husband. The Uniform Civil Code will ensure standardisation in such provisions of personal laws and widespread gender discrimination could be curbed with the onset of the Uniform Civil Code.
III. Goa uniform civil code
The civil law in Goa which has been descended from the Portuguese Civil Procedure Code, 1939, has proved to be worthwhile since it has constructed Goa to be the first and only place in India to formulate a structured and Uniform Civil Code for itself. After its liberation in 1961, the coastal region scrapped all the colonial laws but continued with its practice to treat all the communities alike with respect to family laws, even after it was considered as a part of Union of India. It has created a standard civil code, regardless of religion, gender, caste which binds all its citizens with the same law related to marriage, divorce, succession, adoption, maintenance etc.
For example, marriage in Goa is a contract between two people irrespective of their religion, caste, race etc., with the purpose of living together, which constitutes a legitimate family, and is required to be registered before the office of civil registrar. Certain rules and regulation are compulsorily to be followed by the parties after which they can live together. Moreover, there are specific restrictions which are imposed on these persons and prohibit them to perform marriage, that is, any spouse convicted of committing or abetting the murder of other spouse.
Therefore, it is essential for the government to conduct a comparative and comprehensive study to review such obsolete legislations which have necessitated the requirement of a Uniform Civil Code in the country.
IV. Secularism v. Uniform civil code
When there is separation of functioning of State with all the aspects of religion, then the foundation of Secularism takes place. In other words, secularism means substantial independence from the State in the affairs of the religion and vice versa. Secularism seeks to ensure and protect freedom of religious belief and practices for all citizens. It does not curtail the rights of any individual to practice any religion to the extent that the right to manifest religious belief impacts the rights and freedoms of others. Since State does not promote or practice any particular religion, in a secular democracy all citizens are equal before the law. No religious or political affiliation gives advantages or disadvantages and all citizens enjoy equal rights and obligations in the country.
Thus, secularism simply provides a framework for a democratic society, and it does not seek to challenge the ideologies of any religion or belief, neither does it seek to impose atheism on anyone. The Uniform Civil Code should be imposed in India so that an atmosphere is created within which all sections of society feel secure and harmony exists among them which will further guarantee that there are no riots in the community. Through the idea of uniform civil code, implementation over the religion can take place and every person in the society abides by this Code.
Uniform civil code is not opposed to secularism and Articles 25 – 26. Article 44 basically states that the religion, their customs their personal laws can be prevailed. It must be comprehended that the purpose of uniform civil code is not to interfere with the customs and their tradition rather its main objective is equality that should be bestowed upon each and every citizen of India.
V. Judicial Decisions
The Judicial System of India has passed various judgements pertaining to the Uniform Civil Code. The judgment delivered by the Judiciary in these cases upheld gender equality among other forms of justice.
In the case of Mohammad Ahmed Khan v. Shah Bano Begum,the Supreme Court upheld the Right of Alimony of the woman from her divorced husband.
In the case of Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others, the Apex Court directed the Central Government to implement Article 44 and to secure a uniform civil code for its citizens.
In the case of Pragati Verghese v. Cyrill George Verghese, the High Court of Calcutta has struck down the section 10 of Indian Divorce Act, 1869 as being violative of gender equality.
The recent judgement of the Supreme Court in the case of Shayara Bano vs Union of India and Ors., Abolished the practice of Triple Talaq.
The idea of uniform civil code for the whole India is regarded as eminently encouraging as it will give the idea of national unity and integrity and will also argue the motto of “one citizen one law”. But this remained a problem because as we live in a democratic country where people from different caste reside and they have their personal law. It is widely opposed by the patriarchal orthodox who consider reforms in their personal laws to cause profaneness and mark them ineffective. If imposition of a uniform law on all citizen of India takes place, then it might violate the fundamental rights of all citizens as some might think that the law is right and some might think the law is not right.
The underlying principle should be that constitutional law must override religious law in the interest of the secular republic. Therefore, for safeguarding the interests of all the citizens of our country, the State may introduce a Uniform Civil Code. It is inappropriate to consider that Right to Religion and Right to Worship conferred by the Constitution and personal laws in relation to succession, inheritance, marriage, divorce, adoption etc. are similar because the personal laws are derived as per the customs and norms of every religion. Enforcing a Uniform Civil Code for these diverse personal laws will not infringe one’s Right to Religion, but it shall only seek to dissipate such practices that are being carried out in the name of religion. Its main objective would be to deliver equality amongst all citizens by administrating them through Common personal laws.