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Uniform civilcode: A practical panorama or illusion of law makers

Abstract-
The Nation of Bhinnata Mei Ekta ‘Bharat’ has always accepted the truth of religion being sole code of conduct of human beings. The way a wound is healed by the medicines, a burn is calmed by the cube of ice same the soul of human beings finds its calmness and purification in professing his pious religion in all possible ways a man could.

As the education shows the man his real capabilities simultaneously mirror of religion shows man a pious path to walk over and acquire the notion of nirvana, moksha or jannat. But the secularist country BHARAT soon became a hub of religious monarchy, the rights and customs became stricter but the basic foundations of religion became more fragile. The atrocities against women enhanced the inequality among two creation of god resulted in dominating society, the land of Rani Lakshmi Bai to Kalpana Chawla, from professor Kalam to Himalayan personality Atal Bihari Vajpayee the terra firma had become sarcastically a one to one religious monarchy land.

But in the clouds of farrago of Caste and creed the lamp light of expression, of belief and faith called- UNIFORM CIVIL CODE- ONE NATION ONE RELIGION and the religion is HUMANITY. The expression UCC is a ray of hope for women’s of country, a bed of thorns for the entire sage society, a curse for religious societies but A BLESSING FOR OUR FUTURE GENERATIONS.

History and origin of uniform civil code
Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.

The demand for a Uniform Civil Code was first put forward by women activist in the beginning of the 20th century, with the objective of women’s rights, equality and secularism.

Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu code bill amidst significant opposition. Though a demand for a Uniform Civil Code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.

Preamble
The preamble of our constitution does say that there should be a Uniform Civil Code. It needs to have a wider consolation.
In the preamble to the constitution which is identical to the aspirations and goals of everybody including the religion. It is high time that we have imbedded the secularist spiritually of our constitution which is both dialogical and dialectical. Every religion and group has the duty to revolution spirituality of constitutional secularism suited to each ones ethos and disseminates the same.

There is a need for a UNIFORM CIVIL CODE in a SECULAR INDIA
Secular India has to begin with a Uniform Civil Code that ensures equal rights to all citizens without exceptions.

‘Religion impinges on every human right in the civil law- whether it is birth, death, marriage, divorce; the religions have laws on all these issues.’ So making India secular necessarily means democratic religion out of our social institution.

If we talk about secular country, equality, so then why we should not adopt Uniform Civil Code. It’s not about implement rights it is about implementing rights in right manner.

Just like:
Medicines are important for a healthy India, Uniform Civil Code is necessary for a secular India so that the same laws are valid for every citizens without taking religion into consideration.

Making unnecessary laws and making every aspect of life bounded by different laws, rituals and all is non-sense and immaterial. National Identity will be more secure and human resources much better utilized. It will add to the country’s growth and development. Indian divorce act, SHARIA act are unnecessary complications. A Uniform Civil Code embodies justice and there should be no compromise on it.

If Uniform Civil Code is introduced it will make India a secular nation, not only on paper but also in reality.

Article 44 of the Indian constitution and Directive Principles
Part IV of the constitution of India deals with the DIRECTIVE PRINCIPLES OF STATE POLICY which aren’t enforceable by any court but which are supposed to play a fundamental role in the governance of the country.

Among other Directive Principles is Article 44 which asks the state to “Endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.” The Uniform Civil Code is right now very heated topic with an India Muslim Personal Law Board accusing the government of attempting to sneak it in the under the government of promoting gender equality through its opposition to triple talaq in the supreme court.

In a Historic Judgment in Sarla Mudgal v. Union of India [1]
The Supreme Court has directed the Prime Minister Narsimha Rao to take fresh look at Article 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 protection of national unity and integrity.

The court directed the Union Government through the secretary to Ministry of law and justice, to file an affidavit by August 1995 indicating the steps taken and efforts made, by the government, towards securing a uniform civil code for the citizens of India.
So in nut and shell, it’s all about setting a common civil code for all beings of all religions.

Directive principle and a brave fight up by Muslim women against the practice of triple talaq have once again brought into focus the lack of a Uniform Civil Code.

Uniform Civil Code is needed because of gender injustice. The rights of women are usually limited under religious law, be it Hindu or Muslim, the example of triple talaq and sati. These both are classic examples that the 44th Article is also exploited which demand a Uniform Civil Code for every citizen.

Noor saba khatoon v. Mohd. Quasim[2]
The Supreme Court held that divorced woman is entitled to claim maintenance for her children till they become major.
The court held that both under section 125 of criminal procedure code, 1973 the obligation of the father was absolute when the children were living with the divorced wife. This ruling war given by the court while allowing an appeal by Ms. Noor Saba Khatoon challenging the judgment of the Patna High Court which had rendered the amount of maintenance.

The court made it clear that this right was not restricted, affected or controlled by divorced wife. Right to claim maintenance for two years from the date of birth of the children under Section 3(1)(B) of the Muslim women (protection of rights on divorce) Act 1986.
The children of Muslim parents are entitled to claim maintenance under section 125 of Criminal Procedure Code till they attain majority to maintain themselves.

Shah bano case[3]
After passing of the Hindu code bill, the personal laws in India had 2 major areas of application: The common Indian citizens and the Muslim Community, whose laws were kept away from any reforms. The frequent conflict between Secular and Religious Authorities over the issue of Uniform Civil Code Eventually decreased until the 1985 Shah Bano Case. Bano was a 73 years old woman who sought maintenance from the Husband, Muhammad Ahmad Khan.

He had divorced her after 40 years of marriage by triple talaq and denied her regular maintenance; this sort of unilateral divorce was permitted under the Muslim Personal Law. She was initially granted maintenance by the verdict of a local court in 1980. Khan a lawyer himself challenged this decision, taking it to the Supreme Court the Muslim conservatives who accused the government of promoting Hindu dominance over every Indian citizen at the expense of minorities. The criminal code was seen as a treat to the Muslim personal law, which they considered their cultural identity. According to them, the judiciary recommending a Uniform Civil Code was evidence that Hindu values would be imposed over every Indian.

The orthodox Muslim felt that their communal identity was at stake if their personal laws were governed by the judiciary. The member of Muslim parliament member proposed a bill to protect their personal law in the parliament. The congress reversed its previous position and court saying that he had fulfilled all his obligations under Islamic law. The Supreme Court ruled in her favor in 1985 under the maintenance of wives and children and parents provision [section 125] of the citizens irrespective of religion. Beside her case two other Muslim women had previously received maintenance under the Criminal Code in 1979 and 1980.

The Shah Bano case soon became National wide political issue and a widely debated controversy. Many conditions like the supreme courts recommendation made her case have such public and political interest. After the 1948 anti Sikh Riots, minorities in India with Muslims being the largest, felt threatened with the need to safeguard their culture. The All Indian Muslim Board defended the application of their laws and supported this bill while the Hindu Right, the left Muslim liberals and women’s organization strongly opposed it. The Muslim women’s [protection of rights on divorce] was passed in 1986 which made a claim emphasizing the importance of the cultural community over national by saying that only a Muslim judge could intercede in such cases, I am finding that many people are more sympathetic towards Muslim women that their own women. This is very strange.

The politicians led to argument having two major sides; the congress and Muslim conservation verses the Hindu right wing and the left. In 1987, the ministers of social welfare, Rajendra Kumari Bajpai, reported that no women were give maintenance by the Wakt Board in 1986. Women activist highlighted their legal status and according to them main problem is that there many laws but women are dominated not by secular laws the legal reversal of introducing the Muslim women law significantly by hampered the nationwide women’s movement in the 1980’s.

Dr. B.R. Ambedkar on Uniform Civil Code-[4]
After the Indian independence there was a debate, though, argument, discourse and dissertate to codify personal laws. Dr. B.R. Ambedkar expressed his anxiety at the time of codification of Hindu code bill that-
‘I want to assert in this house while I am here that I shall hear no argument from any community to say that the Parliament has no right to interfere in their personal laws or any other laws. This Parliament is absolutely supreme and we deal with any community, so far as their personal law is concerned apart from their religion.

No community is in the state of mind that they are immune from the sovereign authority of this Parliament.

I am asking of this house is thus:
That if you want to maintain the Hindu system, the Hindu culture, the Hindu society does not hesitate to repair, where repair is necessary.’

When the B.R. Ambedkar first time has said in Parliament to implement Uniform Civil Code, but there is consent at that time and not even today also. They wanted to introduce an Uniform Civil Code in India during the Constitutional debates by getting inspired by the western world where such Uniform Civil Code already in societies, with the object of bringing uniformity and unity in society. So it is a threat to communal harmony. When our politicians are not ready even our law makers are not giving their consent then implementation and execution is far away or a very big question of the decade.

Thus the Uniform Civil Code was left to be implemented by government in the future and was added under Part IV of the Constitution as one of the Directive Principles of State Policy. [5]

There are not only politicians but also many religions like- Jewish, Hindus, Parsis, Muslims and Jains etc. in Hindu they follow dharma, in Muslim they follow Fatvedari and in all other religions all people follow their own cultures. So we all belong to different ideologies and to bring one thing in all religions is a very big challenge.

To bring all the religions under the same roof and under the same code of conduct is next to impossible for the country like India which has accepted the secularism at the initial stage of Independence. It is quite difficult for us to make all the religions understand that how important Uniform Civil Code is for us and specially when we are talking about women’s, some religions are here in India which do not consider women as the equal status and they define women as being the most, most and most victimized personality of all the time.

Supreme Court discussed the need of Uniform Civil Code-

  1. Mrs. Jordan Dingdeh v. S.S. Chopra[6]
    The case before the court is an illustration of a marital tie which is better united. There is no point or purpose to be served by continuance of marriage which has completely and singly broken down. We suggest that the time has come for the interventions of the legislature in these matters to provide for a Uniform Code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like this case have find themselves in.
     
  2. Mohd. Ahmed Khan v. Shah Bano Begum & ors[7]
    Muslim Personal Law on concept of divorce- Whether on the pronouncements of ‘talaq’ and on the expiry of the period of iddat a divorced wife ceases to be a wife. In this case Dr. Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 edition, pages 200-202) has made a powerful plea for framing a Uniform Civil Code for all citizens of India.
     
  3. John Vallamattom & anr v. Union of India[8]
    After Independence Goa is the only state in India where there is a UCC is applicable; i.e. irrespective of caste, community or religion there is one Common Family Code which deals with the matrimony, succession and adoption. In rest of India, many religious groups are still in doubt on authenticity of a UCC in India.



Disadvantages of Uniform Civil Code-[9]

  1. Difficulties due to India’s diversity– The implementation of the Uniform Civil Code is a unmanageable task due to a wide diversity of our nation. Cultural differences from state to state and community to community is yet another hindrance for a personal law
  2. Idea of Uniform Civil Code as encroachment on religious freedom- Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom. They fear that a common code will neglect their traditions and impose rules which will be mainly control and influenced by the majority religious communities.
  3. Interference of state in personal matters- The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
  4. It is a sensitive and tough task to implement- Uniform Civil Code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, divorce and succession by acknowledging the benefits that one community secures from the others. This task will be very demanding time and human resource wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise it might turn out to be more disastrous in a form of communal violence.
  5. Open the gates for religion politics- If Uniform Civil Code will come than it will open the gates for religion politics because of Uniform Civil Code everyone’s personal law will affect. For example- Specially the Sharia law, it permits the man that he can marry more than one wife and may live together with 4 wives at a time and on the other side women’s doesn’t have this right. So these inequalities will come to an end by UCC but they will not accept it. By this insurgency will come and many petitions are going to be filed in courts. It will emerge into a big problem and opens the gate of religion politics.
  6. A threat to communal harmony- Probable misunderstandings concerning the Uniform Civil Code created a fear among various religions especially minorities. It is often viewed by many religions that UCC is aimed against their religious customs and values. Before the implementation of UCC, authorities should win the trust of minorities. Otherwise it will destroy the communal harmony of nation.
  7. Government’s interference into personal freedom- It is often viewed by many that it is distorted game of the government to interfere in personal freedom of individuals. But Uniform Civil Code is aiming only to protect and safeguard the rights of all citizens.
  8. Not yet the correct time for implementation- The Muslim community is opposing the implementation of the Uniform Civil Code and stating that it is not the correct time. Also, they are arguing that the subject should take into consideration along with other recent issues the silence of authorities in relation to saffronization of schools, beef issues etc are triggering them and further stating as the overruling of majorities over minorities.


Advantages of uniform civil code-[10]
By the implementation of a Uniform Civil Code across the nation will enable to abolish gender discrimination from the nation. For example, according to various religions, inheritance, marriages etc are male dominated. Women’s were treated as chattels. After seven decades of independence also women are battling for equality.

  1. To promote National Integrity- The formation of UCC will promote the national integrity. Even though our country has diverse cultural values, a integrate personal law irrespective of gender, caste, creed etc will promote the national unity
  2. Founder or base of secularism- The preamble of our constitution clearly states that India is a sovereign, socialist, secular state. But it is high time to think that whether the citizens of India will enjoy real secularism without the implementation of Uniform Civil Code. Even after decades of independence also different personal laws are in existence for different religions.
  3. Social reforms- once the Uniform Civil Code is formulated across the nation, India will undergo another social reform in this century. For instance, in the Indian context, Muslim women are denied personal laws in relation to marriage, divorce etc. On contrary, various Muslim nations like Pakistan, Bangladesh, Turkey, Morocco etc women enjoy codified personal laws. So after the implementation of Uniform Civil Code Indian women [especially Muslims, Christians etc] will also enjoy a codified personal law. Therefore, a stepping stone towards another social reform across the country.
  4. Provides equal status to all citizens- In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
  5. Promote the gender parity- It is normally sawed that personal laws of all religions are unfair or one sided towards women. Men are usually granted superior status in matters of succession, inheritance, divorce. Uniform Civil Code will bring both men and women pari materia.
  6. Accommodate the hope of the young population- It is a very huge advantage for youngsters. When Uniform Civil Code will implement than many problems will come to an end. Like- there will be no discrimination on the issues of man and women, all were treated equal. Issues like marriage, divorce, Nikah halala, maintenance in Muslim’s will come to an end and young age will face no problems because of religion basis. Uniform Civil Code will accommodate all the people.
  7. To support the national integration- All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all citizens will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their religious personal laws.
  8. Bypass the issues of reform of existing personal law- Existing personal laws are mainly based on the upper class particular notions of the society in all religions. The demand of Uniform Civil Code is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it prodigally.


Overview of uniform civil code-
The issue of the uniform civil code has emerged into India’s political discourse mainly because many Muslim woman affected adversely by the personal laws. It is commonly observed that personal laws of almost all religions are discriminatory towards woman. Men are usually granted upper preferential status in matters of succession and inheritance. Uniform Civil Code will bring both man and woman at par.

In India and according to our Constitution’s Article 14, we talk about Right to Equality for both man and woman equally.

  1. But in India where is equality?
  2.  Why a woman is suffering all this?

There are many lacks for women in Muslim law whether it is divorce, maintenance, succession and inheritance, Nikah halala system at every place women is suffering. Even there are differences in marriage system also. Like according to section 3(f) (i) (ii) of Hindu Marriage Act Sapinda marriages are void or marriages between brother and sister is void ab initio.

But at the other side Muslims permit the Sapinda relationships, there is no violation in marriage between brother and sister. This all will create a big problem towards the UCC if it comes to an existence. For implement Uniform Civil Code, firstly it have to make some laws in favor of all citizens, and have to collaborate between all religions, by thinking for all religions and by giving some ideas in favor of all religions and this will bring harmony among the peoples. It will not create any conflict between peoples or religions.

Conclusion –
The phrase which is used in India is that ‘BHINATTA MEIN EKTA’ so the thing is that why we should use Bhinnata, except we should use that ‘Ekta- ek mein hi Ekta’. When we can have one Nation one tax than why cannot we have the one nation one law? Specifically we are human, we are here to serve the humanity, and we are here to save the humanity, to protect the human hood which we are having.

The god has made all of us as humans the variations which we have given ourselves as of the Hindus, as of the Muslim, as of the Christian, as of the Parsis, as of the Jewish or as of the jain, is our own, it is not given by the god. So we should understand that the Uniform Civil Code is signatory step so that we can go for a particular code of conduct and can understand that it’s not necessary for the India to be Bhinnata in Ekta, we can have same religion, same caste, same thing that is the humanity. No Muslim, no Hindu, no Christian, no Jewish, no Jains but humans. India needs right now a particular signatory step for understanding the human hood firstly.

Than we can go for the other laws, changing of laws, changing of Nikah Halala system, changing of condition of women’s or changing of any other system but first we need equality especially among ourselves than we can go for the Uniform Civil Code. So the law makers or the judiciary or the administrator or the normal citizens of India, the first step we should be taken in the proceedings of Uniform Civil Code is it to be understand that we are humans we should not deviate ourselves and our coming generation into Hindu’s, Muslim’s, Jewish’s, Jain’s etc. ‘A Uniform Civil Code can only emerge through an evolutionary process, which preserves India’s rich legal heritage, of which all the personal laws are equal constituents.’



End-Notes:

  1. AIR 1995 SC 1531
  2. 29 July, 1997AIR SC 3280
  3. AIR 1985 SC 945
  4. Indian Bar Review volume XL III (4) 2016
  5. www.legalserviceindia.com
  6. AIR 1985 SC 934, 940
  7. 1985, SC 945
  8. AIR 2003 SC 2902
  9. http://www.clearIAS.com
  10. http://www.clear.IAS.com

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