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Introduction:
The mere three words and the nation breaks into hysterical
jubilation and frantic wailing. These three words are enough to
divide the nation into two categories - politically, socially and
religiously. Politically, the nation is divided as BJP, which
propagates implementation of the Uniform Civil Code (hereinafter
referred to as the UCC) and the non BJP including the Congress
party, Samajwadi party, who are against the implementation of the
UCC. Socially, the intelligentsia of the country, who analyse
logically the pros and cons of the UCC and the illiterate who have
no opinion of their own and succumb to the political pressure are
at opposite poles. And, religiously, there is a dangerous widening
schism between the majority Hindus and the minority community
mostly the Muslims. Being a law student, I would like to consider
the legal implications of UCC.
I strongly support the crusade for the implementation of UCC and
homogenising the personal laws. I support it, not because of any
bias, but because it is the need of the hour. It is high time that
India had a uniform law dealing with marriage, divorce,
succession, inheritance and maintenance.
Indian case law:
Recently, the Supreme Court of India again called for a UCC. The
Supreme Court first directed the Parliament to frame a UCC in the
year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum[1],
popularly known as the Shah Bano case. In this case, a penurious
Muslim woman claimed for maintenance from her husband under
Section 125 of the Code of Criminal Procedure[2]
after she was given triple talaq from him. The Supreme Court held
that the Muslim woman have a right to get maintenance from her
husband under Section 125. The Court also held that Article 44[3]
of the Constitution has remained a dead letter. The then Chief
Justice of India Y.V. Chandrachud observed that,
"A common civil code will help the cause of national integration
by removing disparate loyalties to law which have conflicting
ideologies"
After this decision, nationwide discussions, meetings, and
agitation were held. The then Rajiv Gandhi led Government
overturned the Shah Bano case decision by way of Muslim Women
(Right to Protection on Divorce) Act, 1986 which curtailed the
right of a Muslim woman for maintenance under Section 125 of the
Code of Criminal Procedure. The explanation given for implementing
this Act was that the Supreme Court had merely made an observation
for enacting the UCC, not binding on the government or the
Parliament and that there should be no interference with the
personal laws unless the demand comes from within.
The second instance in which the Supreme Court again directed the
government of Article 44 was in the case of Sarla Mudgal v. Union
of India[4]. In this case, the question was whether a Hindu
husband, married under the Hindu law, by embracing Islam, can
solemnise second marriage The Court held that a Hindu marriage
solemnised under the Hindu law can only be dissolved on any of the
grounds specified under the Hindu Marriage Act, 1955. Conversion
to Islam and Marrying again would not, by itself, dissolve the
Hindu marriage under the Act. And, thus, a second marriage
solemnised after converting to Islam would be an offence under
Section 494[5] of the Indian Penal
Code.
Justice Kuldip Singh also opined that Article 44 has to be
retrieved from the cold storage where it is lying since 1949. The
Hon’ble Justice referred to the codification of the Hindu personal
law and held,
"Where more then 80 percent of the citizens have already been
brought under the codified personal law there is no justification
whatsoever to keep in abeyance, any more, the introduction of the
‘uniform civil code’ for all the citizens in the territory of
India."
The Supreme Court’s latest reminder to the government of its
Constitutional obligations to enact a UCC came in July 2003[6]
when a Christian priest knocked the doors of the Court challenging
the Constitutional validity of Section 118[7]
of the Indian Succession Act. The priest from Kerala, John
Vallamatton filed a writ petition in the year 1997 stating that
Section 118 of the said Act was discriminatory against the
Christians as it impose unreasonable restrictions on their
donation of property for religious or charitable purpose by will.
The bench comprising of Chief Justice of India V.N. Khare, Justice
S.B. Sinha and Justice A.R. Lakshamanan struck down the Section
declaring it to be unconstitutional. Chief Justice Khare stated
that,
"We would like to State that Article 44 provides that the State
shall endeavour to secure for all citizens a uniform civil code
throughout the territory of India It is a matter of great regrets
that Article 44 of the Constitution has not been given effect to.
Parliament is still to step in for framing a common civil code in
the country. A common civil code will help the cause of national
integration by removing the contradictions based on ideologies."
Thus, as seen above, the apex court has on several instances
directed the government to realise the directive principle
enshrined in our Constitution and the urgency to do so can be
inferred from the same.
Secularism v/s UCC:
The spine of controversy revolving around UCC has been secularism
and the freedom of religion enumerated in the Constitution of
India. The preamble of the Constitution states that India is a
"secular democratic republic" This means that there is no State
religion. A secular State shall not discriminate against anyone on
the ground of religion. A State is only concerned with the
relation between man and man. It is not concerned with the
relation of man with God. It does not mean allowing all religions
to be practiced. It means that religion should not interfere with
the mundane life of an individual.
In S.R. Bommai v. Union of India[8],
as per Justice Jeevan Reddy, it was held that religion is the
matter of individual faith and cannot be mixed with secular
activities. Secular activities can be regulated by the State by
enacting a law.
In India, there exist a concept of "positive secularism" as
distinguished from doctrine of secularism accepted by America and
some European states i.e. there is a wall of separation between
religion and State. In India, positive secularism separates
spiritualism with individual faith. The reason is that America and
the European countries went through the stages of renaissance,
reformation and enlightenment and thus they can enact a law
stating that State shall not interfere with religion. On the
contrary, India has not gone through these stages and thus the
responsibility lies on the State to interfere in the matters of
religion so as to remove the impediments in the governance of the
State.
Articles 25[9] and 26[10]
guarantee right to freedom of religion. Article 25
guarantees to every person the freedom of conscience and the right
to profess, practice and propagate religion. But this right is
subject to public order, morality and health and to the other
provisions of Part III of the Constitution. Article 25 also
empowers the State to regulate or restrict any economic,
financial, political or other secular activity, which may be
associated with religious practice and also to provide for social
welfare and reforms. The protection of Articles 25 and 26 is not
limited to matters of doctrine of belief. It extends to acts done
in pursuance of religion and, therefore, contains a guarantee for
ritual and observations, ceremonies and modes of worship, which
are the integral parts of religion.[11]
UCC is not opposed to secularism or will not violate Article 25
and 26. Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a
civilised society. Marriage, succession and like matters are of
secular nature and, therefore, law can regulate them. No religion
permits deliberate distortion[12].
The UCC will not and shall not result in interference of one’s
religious beliefs relating, mainly to maintenance, succession and
inheritance. This means that under the UCC a Hindu will not be
compelled to perform a nikah or a Muslim be forced to carry out
saptapadi. But in matters of inheritance, right to property,
maintenance and succession, there will be a common law.
Justice Khare, in the recent case[13],
said,
"It is no matter of doubt that marriage, succession and the like
matters of secular character cannot be brought within the
guarantee enshrined under Articles 25 and 26 of the Constitution."
The Chief Justice also cautioned that any legislations which
brought succession and like matters of secular character within
the ambit of Articles 25 and 26 is a suspect legislation. Article
25 confers right to practice and profess religion, while Article
44 divests religion from social relations and personal law.
The whole debate can be summed up by the judgement given by
Justice R.M. Sahai. He said,
"Ours is a secular democratic republic. Freedom of religion is the
core of our culture. Even the slightest of deviation shakes the
social fibre. But religious practices, violative of human rights
and dignity and sacerdotal suffocation of essentially civil and
material freedoms are not autonomy but oppression. Therefore, a
unified code is imperative, both, for protection of the oppressed
and for promotion of national unity and solidarity."[14]
Codification:
The biggest obstacle in implementing the UCC, apart from obtaining
a consensus, is the drafting. Should UCC be a blend of all the
personal laws or should it be a new law adhering to the
constitutional mandate? There is a lot of literature churned out
on UCC but there is no model law drafted. Many think that under
the guise of UCC, the Hindu law will be imposed on all. The
possibility of UCC being only a repackaged Hindu law was ruled out
by Prime Minister Atal Bihari Vajpayee when he said that there
will be a new code based on gender equality and comprising the
best elements in all the personal laws.
The UCC should carve a balance between protection of fundamental
rights and religious dogmas of individuals. It should be a code,
which is just and proper according to a man of ordinary prudence,
without any bias with regards to religious or political
considerations.
Here is an overview of the essentials of the UCC:
Marriage and divorce:
The personal laws of each religion contain different
essentials of a valid marriage. The new code should have the basic
essentials of valid marriage which shall include:
(i) The new code should impose monogamy banning multiple marriages
under any religion. Polygamy discriminates against the women and
violates their basic human rights. Thus, monogamy should be
imposed, not because it is the Hindu law, but because it adheres
to Article 21 of the Constitution[15]
and basic human values.
(ii) The minimum age limit for a male should be 21 years and for a
female should be 18 years. This would help in curbing child
marriages. Punishment should be prescribed for any person
violating this provision. Also, punishment for other persons
involved in such an act, like the relatives, should be prescribed
which would have a deterrent effect on the society.
(iii) Registration of marriage should be made compulsory. A valid
marriage will be said to have solemnised when the man and the
woman sign their declaration of eligibility before a registrar.
This will do away with all the confusion regarding the validity of
the marriage.
(iv) The grounds and procedure for divorce should be specifically
laid down. The grounds enumerated in the code should be reasonable
and the procedure prescribed should be according to the principles
of natural justice. Also, there should be a provision for divorce
by mutual consent.
Succession and inheritance: This area throws up even more
intractable problems. In Hindu law, there is a distinction between
a joint family property and self acquired property which is not so
under the Muslim law. The Hindu Undivided Family (HUF), formed
under the Hindu law, run businesses and own agricultural lands.
Under the UCC, this institution of HUF, peculiar to the Hindus,
has to be abolished. There are also fetters imposed on the extent
to which one can bequeath property by will under the Muslim law.
Considering all these, the UCC should include:
(i) Equal shares to son and daughter from the property of the
father, whether self acquired or joint family property. There
should be no discrimination based on sex in the matters of
inheritance. The provisions of the Hindu Succession (Maharashtra
Amendment) Act, 1994 can be taken as guiding principles wherein
the daughter of a coparcener shall by birth become the coparcener
in her own right in the same manner as a son and have the same
rights in the coparcenary property as she would have had if she
had been a son, inclusive the right to claim by survivorship and
shall be subject to same liabilities and disabilities as the son.
(ii) Provisions for inheritance of the property of mother, which
she has self acquired or acquired through her father or relatives.
(iii) The provisions relating to will should be in consonance with
the principles of equity. There should be no limitations imposed
on the extent to which the property can be bequeathed, the persons
to whom such property can be bequeath and the donation of the
property by will for religious and charitable purpose.
(iv) The essentials of valid will, the procedure for registration
and execution of the will should be provided for.
(v) Provisions for gifts should not contain any limitations,
though essential of valid gift and gift deed should be specified.
Maintenance: The maintenance laws for the Hindus and
Muslims are very different. Apart from personal laws, a non-Muslim
woman can claim maintenance under Section 125 of Code of Criminal
Procedure. A Muslim woman can claim maintenance under the Muslim
Women (Right to Protection on Divorce) Act, 1986. Apart from
maintenance of wife, there are also provisions for maintenance of
mother, father, son and unmarried daughter under the Hindu law.
The UCC should contain the following with regards to maintenance:
(i) A husband should maintain the wife during the marriage and
also after they have divorced till the wife remarries.
(ii) The amount of alimony should be decided on basis of the
income of the husband, the status and the lifestyle of the wife.
(iii) The son and daughter should be equally responsible to
maintain the parents. The reason for this being that if she claims
equal share of the property of her parents, she should share the
duty to maintain her parents equally.
(iv) The parents should maintain their children - son till he is
capable of earning on his own and daughter, till she gets married.
Thus based on these fundamental principles, an unbiased and fair
UCC can be framed which will be in consonance with the
Constitution.
Working of UCC and the Indian scenario:
How foolproof will be the UCC? Will there be more abuse and less
obedience of UCC? Will UCC have negative effect on the society?
Such questions are bound to be raised after the implementation of
the UCC. All laws are formulated to be obeyed, but they are
abused. This doesnot mean that law should not be implemented.
Similarly, there is a great possibility of the UCC being abused,
but this should not eschew the Parliament from enacting the UCC;
the social welfare and benefits resulting from the implementation
of UCC are far greater.
While explaining the reason for including Article 44 in the
Directives Principles, it was observed,
"When you want to consolidate a community, you have to take into
consideration the benefits which may accrue to the whole community
and not to the customs of a part of it. If you look at the
countries in Europe, which have a Civil Code, everyone who goes
there forms a part of the world and every minority has to submit
to that Civil Code. It is not felt to be tyrannical to the
minorities."[16]
Some legal experts argue that progressive law is welcomed but a
suitable atmosphere must be created in which all sections feel
secure enough to sit together and cull out the most progressive of
their personal laws. But this can be answered by an example of
Hindu law. When the Hindu Code Bill, which covers Buddhist, Sikhs,
Jains as well as different religious denominations of Hindus, was
notified, there was a lot of protest. And the then Law Minister,
Dr. Ambedkar, had said that for India’s unity, the country needs a
codified law. In a similar fashion, the UCC can be implemented,
which will cover all the religions, whether major or minor,
practiced in India and any person who comes to India has to abide
by the Code.
Not many know that a UCC exists in the small state of Goa accepted
by all communities. The Goa Civil Code collectively called Family
Laws, was framed and enforced by the Portuguese colonial rulers
through various legislations in the 19th and 20th centuries. After
the liberation of Goa in 1961, the Indian State scrapped all the
colonial laws and extended the central laws to the territory but
made the exception of retaining the Family Laws because all the
communities in Goa wanted it. The most significant provision in
this law is the pre nuptial Public Deed regarding the disposal of
immovable and movable property in the event of divorce or death.
During matrimony, both parents have a common right over the
estate, but on dissolution, the property has to be divided
equally; son and daughters have the equal right on the property.
As the procedure involves compulsory registration of marriage,
this effectively checks child and bigamous marriage.
The philosophy behind the Portuguese Civil Code was to strengthen
the family as the backbone of society by inculcating a spirit of
tolerance between husband and wife and providing for inbuilt
safeguard against injustice by one spouse against the other.
Commenting that the dream of a UCC in the country finds its
realisation in Goa, former Chief Justice of India Y.V. Chandrachud
had once expressed hope that it would one day "awaken the rest of
bigoted India."[17]
Conclusion:
The section of the nation against the implementation of UCC
contends that in ideal times, in an ideal State, a UCC would be an
ideal safeguard of citizens’ rights. But India has moved much
further from ideal than when the Constitution was written 50 years
ago.
But to conclude, I would like to say that citizens belonging to
different religions and denominations follow different property
and matrimonial laws which is not only an affront to the nation’s
unity, but also makes one wonder whether we are a sovereign
secular republic or a loose confederation of feudal states, where
people live at the whims and fancies of mullahs, bishops and
pundits.
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[1] AIR 1985 SC 945
[2] "(1) If any person having a
sufficient means neglects or refuses to maintain- a) his wife,
unable to maintain herself, or b) his legitimate or illegitimate
minor child, whether married or not, unable to maintain itself, or
c) His legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is, by
reason of any physical or mental abnormality or injury unable to
maintain itself, or d) his father or mother, unable to maintain
himself or herself, a magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate mat from time to time
direct: Provided that the Magistrate may order the father of a
minor female child refereed to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married,
is not possessed of sufficient means."
[3] "The State shall endeavour to
secure for the citizens a uniform civil code throughout the
territory of India."
[4] AIR 1995 SC 153
[5] "Whoever, having a husband or
wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or
wife, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be
liable to fine."
[6] John Vallamattom v. Union of
India AIR 2003 SC 2902
[7] "No man having a nephew or a
niece or any nearer relative shall have power to bequeath any
property to religious or charitable uses, except by a Will
executed not less than twelve months before his death, and
deposited within six months from its execution in some place
provided by law for sak\fe custody of the Will of living persons."
[8] (1994)3 SCC 1
[9] "(1) Subject to public order,
morality and health and to the other provisions of this part, all
persons are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion. (2)
Nothing in this Article shall affect the operation of any existing
law or prevent the State from making any law - a) regulating or
restricting any economic, financial, political or other secular
activities which may be associated with religious practice; b)
providing for social welfare and reform or the throwing open of
Hindu religious institutions of a public character to all classes
and sections of Hindus."
[10] "Subject to public order,
morality and health, every religious denomination or any section
thereof shall have a right- a) to establish and maintain
institutions for religious and charitable purposes; b) to manage
its own affairs in matters of religion; c) to own and acquire
movable and immovable property; and d) to administer such property
in accordance with law."
[11] Acharya Jagdishwaranand Avadhut
v. Commissioner of Police, Calcutta (1984)4 SCC 522
[12] Sarla Mudgal v. Union of India
AIR 1995 SC 1531
[13] John Vallamattom v. Union of
India AIR 2003 SC 2902
[14] Sarla Mudgal v. Union of India
AIR 1995 SC 1531
[15]"No person shall be deprived of
his life or personal liberty except according to procedure
established by law"
[16] Constitutional Assembly Debates
Volume VII pg. 547
[17] Mohammad Ahmed Khan v. Shah Bano
Begum AIR 1985 SC 945
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author can be reached at: missgauri@hotmail.com
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