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Uniform Civil Code: Sweeping away communal segregation

Part IV of the Indian Constitution provides the directive principles of the state, one of which is Article 44 which has not been into force as it is regarded non justifiable. But in recent days the SC have been reminding the government of the provisions of Uniform Civil Code and taking initiative for its enforcement. In this research paper, the researcher will be primarily talks about the concept of Uniform Civil Code and its dimensions, the approximation of the judiciary and the progressive draft of Uniform Civil Code. The research paper shall attempt to establish the judiciaries’ acknowledgement of the complex web of personal laws in India and its attempt to filter them into the realm of uniform acceptability. The important question is whether after 72 years of the constitution India is ripe enough to have a uniform set of civil law has been raised yet again? This paper tries to evaluate entire dialogue around the UCC so as to ascertain the extent to which the question of nation can be addressed. The need of the hour is to enact UCC but that should be done slowly and gradually, after making the people aware of its scope and extent. The question is that, is time ripe to implement UCC in India? If India can reach to its far-reaching unity? If India can proclaim its national integrity all over the world? This research paper basically aims to spread knowledge and make the readers inquisitive about the uniform civil code.

Introduction
India is a secular nation which has multiplicity of personal laws. There are different laws for every religion. Say, the Christians in India have their Indian marriage act 1872, the Indian Divorce Act and the Cochin Christian Succession Act. The Parsis have their different law which is the Parsis marriage and the divorce act 1936, the succession act and the inheritance act.

Talking about the Hindus and the Muslims, they have their different and separate laws for their governance from the rest of the religions. The Hindus have their own the Hindu marriage act 1955, the Hindu succession act 1956, the Hindu guardianship act 1956 and the Hindu adoption and maintenance act 1956 and this is codified and statutorily enacted. On the other hand, the Muslims are governed by the laws derived from shariat i.e., the teachings of the holy Quran. They have laws like the shariat act 1937, the dissolution of Muslim marriage act 1939 and the Muslim women act 1986.

We have a clear understanding that there isn’t any sort for uniformity amongst the mentioned personal laws. And thus it is very confusing.

It is to note that in India there is a uniform criminal code which is equal to all irrespective of the caste, religion, gender or domicile. However, when it comes to the uniform civil code, there doesn’t exist any common code with respect to the marriage, divorce, succession, maintenance and inheritance.

The constitution of India says something about this. It says, under article 44, that "The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India".

When taken with a religious aspect, we can say that it is a proposal to have a common set of governing laws for every citizen without taking into consideration the religion of people.

With a view to achieve the uniformity in laws, to make it equitable and to hold it non-discriminately, Dr. Bhim Rao Ambedkar mentioned in the constitution, article 44 of the directive principles of the state policy.[1]The founding father of the constitution sought to create a secular state.

Uniform Civil Code: Meaning
In the Indian constitution, UCC is defined under article 44 stating that the state shall endeavor to secure for its citizen a uniform civil code throughout the territory of India.
The term civil means to wrap all the laws governing the rights relating to property and personal matters like religion, marriage, adoption, inheritance and succession. The essentiality for the demand of the uniform civil code is unifying the citizen of India under one set of secular law which deals with these aspects.

In a country like India, uniform civil code is proclaimed to be the biggest element in leading to the far-reaching equality it needs and would repress the evils that the country contaminates.

UCC was first taken into discussion when the constitution was being drafted in 1948. It was Dr. B.R. Ambedkar who suggested to the people in the parliament to have UCC for the utmost unity in the country. It was envisaged to come out as a miraculous cure in eliminating the social problem that the country was facing. It was at that time when there held an intense scrutiny during the constituent assembly meets. It was opposed by many members of the parliament especially the Muslim members who were defensive against their personal laws that were to be drafted[2].

It has been more than 70 years now and yet we are unable to attain unity within our country. We are unable to attain the sophistication and the constitutional mandate. And the simple reason that is often hear even though we talk about having peace and harmony and unity and brotherhood in the country, amongst the people of the country, but when we talk about the relationship between the Hindus and Muslims we are likely to be dragged back at the time of bloodshed wars between the two of them and the hatred and enmity prevails to continue now.

So now, the basic factors that hinders the implementation of the UCC rests onto the religion or say the personal laws majorly, the secularism of the nation, the minority groups of the society and also importantly the gender justice. Let us now understand all the possible factors which are mentioned above.

UCC: A Struggle With Personal Laws
Under this chapter, we will be focusing more on the problems and struggle of UCC which it is dealing with the interference of personal laws of the Hindus and the Muslims.
Let us begin with the Muslims personal laws.

Arif Mohammad Khan, the former cabinet minister of the union of India at the time of Rajiv Gandhi’s cabinet, quoted some facts in the NDTV debate[3], from the book of Maulana Maududi, who was the founder of the Jamat-e-Islami, which is a part of the Muslim law board. Maulana in his book says, "The law named as mohammaden law, both in is format and in its spirit is different form Islamic shariat and its application does not deserve to be described as enforcement of Islamic laws". The question that arises here is whether the Islam or the Quran allow the All India Muslims Personal Law Board to make distinction between the personal laws, the civil laws, the mercantile laws etc?
As far as the religious interference is concerned, the shariat has a very clear law on the criminal aspects but still they have accepted the uniform criminal laws in India. In Australia, the Muslims have accepted the civil law of the nation. Then why are they not accepting uniform civil law in India? What is the reason for their unnecessary rebel?

Now coming to the Hindus personal laws.
If you are a Hindu, you might be aware of what counts as an essential ceremony for the people of this religion. These ceremonies and customs vary from place to place and community to community. This is very complex and confusing. According to the Hindu marriage act 1955, either the partly concerned has to plead customary rite and ceremonies or that the two essentials of the marriage ceremonies, marriage has completed, namely the invocation before the sacred fire and the saptapadi[4]. Many women are not aware of the ceremonies applicable to them. She may happily exchange garland, put vermillion and have her husband declare her wife as god as witness without realizing that this is not a valid marriage under law since these are only mock ceremonies. This undue stress on ceremonies has let many persons accused of bigamy go scot free.

Discrimination in property is still a problem under section 15(1) of the Hindu Succession Act. In the event of women’s death, the husband heirs get a preference above her own parents. But when a man dies, his relative gets to inherit his property and not his wife. This is a clear violation of the equality guaranteed under Article 15(1) of the constitution of India.

Another area of disadvantage is the share in the assets acquired after and during the marriage.

Next is regarding the Maintenance. Maintenance is not a charity but a right. Yet, maintenance laws are conditional on the norms of behavior. The wife should be chaste and not remarry. Her character is invariably brought in during maintenance cases and the amount is left to the discretion of judge[5].

For the better understanding would further refer the case of Shah Bano and Shayara Bano because these were the cases where the personal laws conflicted much more than before. These cases were related to maintenance after divorce and law of Muslim to divorce respectively.

In the case of Mohd. Ahmed Khan V. Shah Bano Begum[6], it was Shah Bano and her children who were thrown out by his husband because he took a younger woman as his wife. He used to pay her ₨200 to support herself and her children. Then she filed a petition asking for ₨500 as the maintenance. No sooner his husband gave her an irrevocable divorce (talaq) which was in the propagation of the Islamic laws and took up the defense that he has ceased her from being his wife and so she is no longer her responsibility. He was ordered by the court to pay her ₨25/month which later was raised to ₨179.20/month. Most important of all was that the SC gave India a landmark judgment in securing the rights of women on the maintenance field. Also it was then a provision was applied in terms of uniform civil code. Hence, it was declared by the SC that section 125 of code is secular and irrespective of any religion and any neglect in not giving the maintenance is the invoking of 125. Also that the maintenance given only up to the period of Iddat is not limit the husband’s liabilities towards her wife and children.

Looking into the case of Shayara Bano V. Union of India And Ors[7],Rizwan Ahmed, the husband pronounced "talaq, talaq, talaq", in the presence of two witnesses and delivered "Talaq Nama" dated 10-10-2015 to Shayara Bano, the wife. The wife challenged the same praying for a writ to be issued by the SC, declaring the divorce as void-ab-initio on the ground that it violated her fundamental right. As a consequence, constitutional validity of triple talaq was called into question before a constitution bench of SC comprising of 5 judges. Hence on 22ndaugust 2017, in a 3:2 decision the SC declared triple talaq as unconstitutional and gave 6 months for parliamentary legislation.

As a matter of facts according to a book published by the AIMPLB[8], it was clearly mentioned that a divorce conveyed to the wife by the third person and not his husband was legal, a divorce written on some random paper somewhere without getting it into the wife’s knowledge was legal, pronouncing divorce in zest was legal and divorce under compulsion or duress was also legal. The SC has given us the absolutely apt decision which resulted and would in future result in the betterment of the Muslim women.
This was just a part of what was going on with personal laws.

UCC And The Secular Nation
India is probably the only country wherein the concept of secularism is most perverted both in principle and practice. Secularism in simple term means separation of state and religion i.e. religious concerns will not dictate state policies and the state will not interfere in religious activities.

Secularism was thus, a unique solution in response to unique challenges prevalent in western civilization in general[9]. The concept of secularism is hard to define and nevertheless its understanding is essential. The concept is not static and varies for time to time. Each age, each nation had to engage in quest with itself.

Let’s take the example of religious institutions like places of worship of various religions. Various state governments have taken control over many Hindu temples and are earning crores of rupees from them. This is a clear violation of secularism, which mandates no interference of government in religious activities. Out of the crores that these state governments are earning, only a small fraction of amount is set aside for the maintenance of the temples and the rest lies with the state coffers. How is it secularism?
The gist is the perversion of secularism which has resulted in non implementation of UCC, has not done well to anyone. Ideally, India should have evolved an indigenous social and legal system rooted from righteous duty and Indian civilization. But since we have already imported an alien system of secularism it would do us good if we remove the prevalent perversion and implement it in its true sense by enacting a fair uniform civil code[10].
It was once said by the opposition leader in Kerala, Ramesh Chinnithala that "Uniform civil code is a threat to secularism and unity being upheld by the people of the country"[11].

Without the UCC, calling a nation secular is like calling someone poor living below the poverty line a millionaire. A poor man doesn’t become rich and well off even if the government insists and passes a law to call him a millionaire and if his neighbors and others do the same. Thus, there is no sense in calling or characterizing a poor man as a millionaire. Similarly, there is no sense or justification in the case of a nation which without having a UCC and even while multiple religions based laws and legal system calls and considers itself secular especially according to its constitution.

UCC: In The Perspective Towards Gender Justice
UCC is all about secularism and equality. The preamble of Indian Constitution talks about the Indian states being secular and Article 15 of the Indian Constitution provides statutory provisions for the existence of equality.
Now, when we talk about Gender justice in general, it means social, political and economic justice for both women and men. It suggests the abolition of the patriarchal system that has infused within the system. Gender justice is indispensable for development in a true sense. Article 15(1) of the Indian Constitution says, the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This article is the embodiment of the two elements of the preamble i.e. secularism and equality.

Sadly, world history is evidence to the fact that one of the most neglected ideas has been that of women’s rights. This statement is a testimony to the fact that equality without gender justice is no equality at all.
The downside of this is that, in a deep rooted patriarchal culture where the societal stigma attached to divorce is immense. A woman is financially dependent on her husband, the second wife of the Hindu man is inherently is more disadvantaged than the multiple wives of a Muslim man.

When we relate UCC with gender justice, it’s more about discrimination against women then that to the men. The current situation of the nation states that the discrimination done against women in various religions is most obvious. There are various cases of women been discriminated in their religion but the most relatable of all is the Sarla Mudgal v. Union of India.

In the case Sarla Mudgal v. Union of India[12],the SC gave historic judgment and directed the Prime Minister Narshimha Rao to take a fresh look at Art.44 of the constitution which enjoins the state to secure a uniform civil code which, accordingly to the court is imperative for both protection of the oppressed and promotion of national unity and integrity.

In this case, four petitions were filed. The first was filed by Sarla Mudgal. The second by Meena Mathur, third by Sunita alias Fatima and the fourth was filed by Sushmita Ghosh. The crux of these petitions was that the husband after marriage converted into Hinduism/ Islam and marries another woman. On the facts of the case, the court held that a Hindu marriage continues even after one of the spouse converts into Islam. There is no automatic dissolution of the Hindu marriage. It can be only dissolved by a decree of divorce on any of the grounds mentioned in section 13 of the Hindu Marriage Act. Accordingly, the court held that the second marriage of Hindu after his conversion to Islam is void in terms of section 494 of IPC and the husband was liable to be prosecuted for bigamy.

Since then many governments have come and gone but failed to make a constitutional mandate under Art. 44 of the constitution. Consequently the problem today is that many Hindus have changed their religion to Islam only for the purpose of escaping from bigamy. This is because Muslims permit more than one wife and to extent up to four. He pointed out that in America it has been judicially acclaimed that the practice of polygamy is injurious to public moral even though some religion make it obligatory or desirable for its followers[13].

This judgment of the court has aroused the hope that one of the greatest evil of the Indian Society will be removed. But, unfortunately while a hearing of an appeal filed by one of the accused in the above case, clarified that its direction was only an Obiter Dicta and not legally binding on the government.

The seemingly inheriting contradiction between gender justice and personal laws particularly the Muslim personal law compels one to study the impugned provisions. Instantaneous triple talaq, Nikah Halala and polygamy has been subject to widespread controversy.

Getting to the personal laws, In the matter of divorce the position of Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing a wife by the husband by pronouncing triple talaq is highly discriminatory.

Even though the Hindu law is codified certain discriminatory provision still exists even today. For example. A Hindu woman is not a coparcener in Hindu coparcener except in a few states like Andra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently, she is not entitled to claim a share in the coparcenaries. Similarly she has no write to partition of a dwelling house even though she is a legal heir. Thus it is obvious that the codification of personal laws of Hindus is not succeeded completely in eradication gender inequality. And so these personal laws can be called Anti-women.

The judiciary in India has taken note of the injustice done to the women in the matter of many personal laws. It has been voicing its concern through the number of judgments indicating the necessity to have uniformity in the personal matters of all citizens.

Hence, it’s the implementation of UCC that would eliminate the gender inequality and would ensure equal rights for men and women in the marriages, divorces, succession, inheritance and adoption matters.

UCC: Approximation of The Judiciary
The Supreme Court for the first time directed the parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum[14]. The SC held that the Muslim women has the right to claim maintenance from her husband under section 125 of the code of criminal procedure. The court also held that Article 44 remained a dead letter. The then CJI 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 Act 1986 for maintenance under section 125 of CPC. The explanation given for this implementation was that the SC 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.

In Mary Roy v. State of Kerala[15], the question argued before the SCC was that certain provisions of the Travancore Christian Succession Act 1916 were unconstitutional under Art. 14. Under this provision, on the death of an intestate, his widow was entitled to have only a life interest terminable at her death or remarriage and his daughter. It was argued that the Travancore Act had superseded by the Indian Succession Act 1925. The SC avoided examining the question whether gender inequality in matters of succession and inheritance violated Art.14 but nevertheless ruled that the Travancore Act had superseded by the succession act and Mary Roy has been characterized as a momentous decision in the direction of ensuring gender equality in the matter of succession.

Finally the SC has issued a directive to the Union of India in Sarla Mudgal v. Union of India to endeavor framing a uniform civil code and report to it by august 1996 the steps taken. It is however to note that the SC expressed in Lily Thomas case that the directives as detailed in part IV of the constitution are not enforceable in courts as they do not create any justifiable rights in favour of any person.

Then it was in July 2003 when the SC reminded the government of its constitutional obligations to enact a UCC when a Christian priest knocked the doors of the court challenging the constitutional validity of section 118 of the Indian Succession Act.

The latest invoking of Art. 44 were when the SC gave its judgment in the case of triple talaq stating the triple talaq as unconstitutional.

The Progressive Uniform Civil Code
A draft of a potential UCC, termed the "Progressive Uniform Civil Code" was presented to the chairman of the law commission Rtd. Justice B.S Chauhan by a group of eminent citizens from various walks of life including Bezwada Wilson, Gul Panag, Nilanjana Roy, Maj. Gen. S. Vombetkere (Rtd.), Dushyant, Mukul Kesavan, S. Irfan Habib and T. M. Krishna.
Justice Chauhan was tasked with helping formulate a draft on uniform civil code that the government could consider later. The law commission sent out a questionnaire to several faith groups leading to some hostility and concerns over ensuring that constitutional values apply to all personal laws. Sources close to the commission said that the draft UCC is work in progress. Soli sorabjee, a senior advocate of the SC who was the attorney general under the previous NDA government wrote a letter to justice Chauhan in support of the initiative.
The progressive UCC contains provisions relating to the marriage, maintenance, partnership, and right to adopt, divorce custody of child, succession and inheritance.
Some of its provisions states that:
# Strict laws should be made on the age limit of the marriage
# To impose monogamy.
# Registration of marriage should be compulsory.
# The grounds of divorce should be specifically laid down.
# Provisions of will on the principle of equity.

Conclusion
When it comes to question the desirability of the uniform civil code, I strongly believe that there is a need of uniform civil code to be introduced and this opinion is strongly opined by the reasons listed below:
# First of all is that it will pave the way for national integration
# Though its enactment would have high chances of massacre but will eventually lead to utmost unity
# It will promote gender justice. Especially for the women in India, it would come up as a lifelong boon.
# Also it will help to remove the loop holes present in the personal laws.
# It would ensure no discrimination in the basis of religion.
# It would avoid the overlapping provisions of law.
# And lastly, it would defeat communalism and diversionist forces in the Nation.

A UCC sets the precedent for attaining true equality and egalitarianism. It will help in integrating India more than it has ever been since independence. It will not only raise the bar of the legal system but also help in the progress of India as a Nation. The UCC is necessary because personal laws are inconsistent with our declaration "To constitute India into Socialist, Secular, Democratic Republic" and it is almost impossible to achieve the golden goal in the preamble of the Indian constitution with the UCC.

The principle is to treat each person equally and everyone be protected by just, fair and predictable laws.

Times have changed, societies have changed and it is the ripe time that the laws change. The UCC will not only change the entire perception of how families are governed but also change the lives of millions by filling the lacunas in various religious laws.

As Y. C. Chandrachud, rightly remarked a common civil code will also help in strengthening the cause of national integration by removing conflicting interests.

End-Notes

[1]Ind. Const. art. 44
[2]http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, visited on 10june2018.
[3]The Big Fight Debate,NDTV, 19thJuly 2014
[4]Asha Bajvai,How Hindu Personal Can Be Reformed, September 18 2017,https://timesofindia.indiatimes.com/india/how-hindu-personal-law-can-be-reformed/articleshow/60726036.cms
[5]Ibid
[6]AIR 1985 SC 945
[7]WP (C) No. 118 of 2016
[8]All India Muslims Personal Law Board
[9]India facts,secularism and uniform civil code, 12thJune 2018, 08:16 p.mhttp://indiafacts.org/secularism-uniform-civil-code/
[10]Nitin Sridhar,ucc and secularism, 12thJune 2018, 10:35indiafacts.org/secularism-uniform-civil-code/
[11]Uniform Civil Code a threat to secularism:UDF, the Indian Express, July 3 2016http://indianexpress.com/article/india/india-news-india/uniform-civil-code-a-threat-to-secularism-udf-2891327/
[12]AIR 1995 SC 1531
[13]Dr. J.N. Pandey,Constitution Law of India, 451(52nded. 1969)
[14]1985 AIR 945, 1985 SCR (3) 844
[15]1986 AIR 1011, 1986 SCR (1) 371

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