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Is the Uniform Civil Code need of the hour?

Raw haste, half-sister to delay -Lord Alfred Tennyson[1]
The above phrase isnít an idiom, itís a line from a poem. Itís implying that haste is like delay. Doing something too quickly, without care, and you will have to undo the job and fix the mistakes and it will end up taking longer to finish the job. It is advising to do it correctly the first time, even if it seems slow. It is quicker in the long run.

In contrast to the west, India is far from a homogeneous nation-state and one of the most varied and diverse mixes of people. India is a multi-faith and multi-language country. India is a diverse nation and has n number of people with different cultures, traditions, customs, and religions. However, it is at times difficult to distribute religion-based justice due to the different codes and personal laws. Through the idea of a UCC, which was first mooted seriously in a Constituent Assembly, in 1947, decisive measures were therefore taken towards national consolidation.

The problem now is that personal law has differences and discrepancies. No uniformity is available. Also, the individual legislation has denied women's rights or even failed to give them rights. The UCC can be implemented to address these shortcomings. For all citizens of the country, the UCC means a uniform personal law. This code replaces India's existing religious laws
In the Constitution of India, UCC is envisaged in Article 44, which covers every aspect of law except matrimonial laws. The object of Article 44 is that, as and when the majority of Parliament thinks proper, an attempt may be made to unify the Personal laws of the country, i.e., uniformity in law in matters of marriage, divorce, succession, irrespective of religion, community, etc.

The idea of UCC was introduced into the national political debate in 1940 when a demand for such a code was made by the national planning committee appointed by the Congress. The sub-committee for the Ďwomenís role in planned economyí was specifically directed to study the role women would play in future independent India. Under Art 44 of the Constitution of India, the state is under constitutional obligation to make earnest efforts towards the establishment of one civil code for all persons, yet if these provisions come in direct conflict with provisions in Part III of the Constitution of India, then Judiciary has been given regulatory powers, and vide power to expound the provisions and bring into practice the basic philosophy underlying the provisions. UCC has been maintained unmonitored long ago, which has caused anguish in India.

In Sarla Mudgal vs. Union of India: the Personal laws of Hindus, Muslims and, UCC were touched, and the judgement favored the enactment of UCC.

The Supreme Court held that UCC is not opposed to secularism and 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 civilized society. Marriage, succession, and like matters are of secular nature and, therefore law can regulate them. No religion permits deliberate distortion.

The common civil code will cause more problems rather than providing solutions. This is because equality is a diversified entity operating at various levels, both individuals and groups. Thus, the fundamental issues which UCC is trying to resolve will become serious problems rather than diminishing.[2]

Chapter I: UCC: a blend of personal laws or a new law
In most personal matterís women are inferior compared to males, particularly where the issue of marriage or the subject of succession, adoption, or even heritage is discussed. Explicitly, according to the Hindu Law, the Hindu women, in the years 1955 and 1996, had no equal rights with the Hindu men. Polygamy among the Hindus were predominant before 1955. Except for Stridhan, the Hindu women could not hold property as the absolute owner.

She had only limited property, which the male proprietor called revisionary on her death was passed to the legal final full heirs. She had a limited interest in that she could not do so alone whenever a matter arose concerning desertion and the mortgage or sale of the property.

Hence it is penury that it has not been plausible to totally uproot gender inequality through the encroachment of Hindus personal legislation. In pre-Islamic Arabia, women have been given secondary status when talking about Muslim law, because she has been a patriarch since then. Since then women have been regarded as male secondary. The ubiquity of Islam has contributed a great deal to Muslim women's deterioration and escalation. The Holy Quran gives men and women equal rights and puts women in an honorable position. But in Islam, certain aspects make Muslim women's positions especially uncertain and inferior to women.

In Islam, a man can marry four times while women are not able to marry and are treated unharmed and unclean if they do. Women are not even entitled to divorce their husbands when the husband is very discriminatory in his divorce method by pronouncing three-fold Talaq. This is inspired by the Holy Quran message. This was held void and recently in the high court ruling of Allahabad unlawful. The legal stance is that if the property of the deceased is bequeathed by two intellectuals or residue of the opposite sex but with the same degree, the Muslim husband is double the part of the woman. The Muslim wife is not required to be maintained after Iddat, even in the matter of maintenance.

However, there is controversy over Muslim men following this provision and the Criminal Procedure Code, which requires the husband to keep his wife and divorced wife until she maintains herself, is a secular law and applies to all people. The controversy started, and the Parliament passed the Muslim Women's Act of 1986 to reverse the Shah Bano judgment.

The effect of this Act is that if both spouses do not submit to court at a suitable time that they would like to be governed by the Criminal Process Code a Muslim husband is not liable to keep his divorced wife after the iddat period. The idea is, but not for the sake of protecting the area of personal law, to provide the suffering woman no enough justice.

Chapter II: Is UCC violative of Article 25 of the Indian Constitution
The key problem is that if the Constitutionalists had desired for the implementation in Indian of a uniform civil code, they would not have had to include it as part of the DPSPs under Article 44 of the Constitution. As the name implies are mere instructions to the State, the State Principles of State Policy contained in Part IV (Art. 36-51). They are also not compulsory, and the Court cannot enforce them.

India is a secular, democrat, republic, the preamble to the Indian constitution says clearly. There is no state religion, that means. Nobody is discriminated against based on religion by a secular state. The only concern of religion is the relationship between man and God. It means that religion should not interfere with a person's worldly life. The secularization process is closely related to the objective of a uniform civil code as a cause and effect.

In the case of S.R. Bommai v. Union of India, as per the Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law. [3]

For obvious reasons, an individual's personal law practice or tradition may be acceptable but may not be acceptable to persons of other personal laws on the other hand. When traditions come into practice, then the nature of the conflict turns out to be a fervent ill-feeling in general differences. People find it hard to accept or adapt to certain changes and in a society like India where religion defines the way of life, people relate to their religion instead of understanding that human beings are the religion and human beings are not religious.

An important issue was what the ingredients of the Uniform Civil Code would be in bringing together personal laws. As the personal laws of each religion contain distinct provisions, their unification will not only cause resentment, but also social animosity towards each other. Thus, in the UCC, laws which strike an equilibrium between the protection of fundamental rights and the religious principles of the individual communities within the country will have to be adopted. Potential problems such as marriage, divorce, maintenance, etc. can be secular and can be regulated by law.

The UCC does not simply involve gender equality, but also how a nation takes its own diversity into account. It is also clear that the UCC does not infringe under Articles 25 and 26. It should be a new law instead of the variation of individual laws. The problem with the combination of personal legislation is that there is every likelihood of prejudice. The two different concepts are religion and law. That is because it enables people, despite the adoption of a uniform code, to follow their religion. The uniform code will not restrict their right to follow their religion or profess it anywhere.[4]

Chapter III: The Utility of uniformity of Laws
From the point of view of national identity, the UCC appears unpleasant, but in terms of gender equality in personal law, the result is contrary. So, the questions that arise currently are: is the implementation of a UCC going to help to ensure that women have the same status in Indian societies? How will UCC influences the national consolidation and unity process? Regarding the efficacy of UCC in gender justice in personal legislation.

Flavia Agnes provides a satisfactory solution while taking into consideration the plight of Hindu women after the codification of Hindu personal laws.

She observes:
The lessons learned in the last 60 years is that uniformity has not worked. It has also had a disastrous impact on the rights of Hindu women. Rather than excluding women from the realm of rights, we need to adopt an inclusive approachÖ so that women at the margins are not deprived of their right to a life with dignity and sustenance by adopting moralistic principles that are alien to the cultural ethos and customary practices. Rather than uniformity, what women need are an accessible and affordable justice delivery system and inclusive models of development that will help to eliminate their poverty and destitution and help to build an egalitarian world.[5]

It shows that consistency has not helped the position of women in Hindu society very much. It would not be false to assume from this analogy that it is the same for women as a country group. Therefore, the search for common legislation for all to foster national identity is only a valid basis for pushing the UCC application. It is quite clear that religious minorities will never accept this because it endangers their distinct religious identities. Furthermore, forging UCC to achieve a common Indian identity would add to the dissatisfaction of religious minorities and would thus damage national unity and peace.

Historically, deep diversity has marked the arena of personal laws in India. The reason was that the different religious groups in the country were governed by different laws.[6] The regional customs and traditions were further reinforced. The multitude of laws, therefore, prevailed not only among different religious groups but among a homogenous religious group.

The Hindi divorce law was progressive, equalitarian, and liberal following the passage in 1955 of the Hindu marriage laws and its amendment in 1976. The Parsi divorce law in 1988 made similar reforms. However, this Act only applied to the people who had solemnized their marriage under the provisions of the Act itself, because both men and women could seek divorce.
The provisions of the Act could not, therefore, apply to marriages under religious personal law.

Women had the right, both by religious personal laws and the dissolution of Muslim marriage laws of 1939, to seek the dissolution of marriage. Thus, it was Indian Christians who were the only religious body whose divorce law was reformed because Christian wives were not allowed to go out in unhappy marriage easier than other religious groups 'own personal laws. Women had the right, both by religious personal laws and the dissolution of Muslim marriage laws of 1939, to seek the dissolution of marriage. [7]

Thus, it was Indian Christians who were the only religious body whose divorce law was reformed because Christian wives were not allowed to go out in unhappy marriage easier than other religious groups 'own personal laws. In this respect, the mental anguish of Christian women was even worse.[8]

In Kerala High Court judgment of Mary Sonia Zacharia v. Union of India particularly to protect the interest of Christian women and to bring them to par with women of other religious groups, in 2001 the Indian House amended the Act of Indian Divorce. There were ten reasons for divorce by a Christian wife. In addition to these reasons, a Christian woman can seek divorce if she can prove that, "a husband has been guilty of rape, sodomy, and bestiality since the solemnization of the marriage." [9]

Therefore, what the amendments have done is that the Christian laws on divorce have been following the personal laws of other religious groups in the country. The suppression of or assimilation of these several legalizing traditions into the mainstream legal tradition does not just threaten national unity and constitutes a free legislative application of the colonial attitude to the suppression or causation of these many legal traditions. There are many legal traditions at different levels in various parts of the country.[10]

India has successfully reached a certain degree of constitutionalism, unlike the others in South Asia, and is only second only to the United States of America in respect to constitutional endurance[11]. It is because not only Indians but also the Indian declaration of independence has succeeded in creating a self-identity. The fact is that the Indian constitution has largely decided to seek not only to resonate with the country's pluralistic socio- ethos, but also to integrate them by giving them room for operation under the constitutional framework. [12]

Therefore, it is not desirable to achieve a common Indian identity utilizing the UCC, for the Indian identity itself is plural and a synthesis of the differing views of each Indian citizen combined[13]. The idea for the common Indian identity through the UCC is undesirable.

Chapter IV: Challenging Aspects of the UCC
  • Indiaís commitment to Human Rights: Constitution guarantees and International Human Rights Conventions
    Personal religious law needs to be studied from the standpoint of human rights. The preamble of the Constitution, which are the subject of debate on Indians' personal law, enshrines the main aspects of equality, non-discrimination, and fairness, which are an essential element of human right discovery. [14]Therefore we see that the State is empowered by Article 15(3) of the Constitution to make particular provisions for women and children 's protection. Article 25(2) mandates that the right to religious freedom, regardless of the right, maybe provided for social reform and welfare.[15]

  • Uniform Civil Code- Judicial Approach
    The judiciary has always tried to narrow the gap between the general provision of law and the personal law. It is crystal clear from Bhagwan Dutt v. Smt. Kamala Dev, wherein the apex court ignored the personal law and stressed that provisions under Criminal Procedure Code must be made applicable to all irrespective of their religious beliefs.

    Bombay State vs Narasuappa Mali:
    The Bombayís High Court held that the Bombay Prevention for Hindu Bigamous Marriages of 1946 was intra vires to the constitution because it violated Article 25 and permitted classification in religious terms. The Bombay Bigamous Law was amended on the grounds of breach of Articles 14, 15 and 25 of the Constitution.[16]

Mohd. Ahmad Khan vs. Shah Bano Begum:
In this case, the Court held that it was inadequate to state in a text-book statement that Muslim husband is in not having to provide the maintenance of the divorced wife, who was not able to sustain her.[17]

Makku Rawtherís Children vs. Manapara Charayil:
Justice Krishna Iyer clearly stated that personal law provisions should always follow Constitutional provisions. In the light of the constitutional mandate, the function of the judiciary is to confine the words of personal law over time. There is a great time now in the light of the philosophy set out in Article 44 to read personal laws.

So when all provisions of any personal law, in the name of being infringing fundamental rights, were challenged in their own right, the court exercised its control and left the case to the legislature's wisdom.[18]

Conclusion:
This unique aspect of the debate on the UCC reminds people time and time again to adapt and adapt to the present times in their personal laws, drawing inspirations from other communities which are, in some respects, more progressive. All of this is a long and painful process, but no undue haste will fail rather than the desired result. It should never be forgotten.

In the case of somebody who asks us about the desirability of the Uniform Civil Code, I firmly believe that the Uniform Civil Code is not required, and this opinion is based on a few reasons which are given below:
Firstly, we wish to say that, if the Uniform Civil Code is enacted and enforced, there is a high probability of killing and riots like these are again occurring and leading to the country's disintegration.

Secondly, there will be no difference between the Uniform Civil Code and personal laws, since the Uniform Civil Code will have a set standard, which furthermore will not be able to encompass each aspect of personal law and will lead to even more difficulties than we do today.

Thirdly, the issue of the Uniform civil code, which legislation will prevail over the others, creates a major problem for the country.

Fourthly, although the law is being applied, the people of the country will not accept the law and the reason for that is the country's diversity. Various people differ and believe, and in India is not simply a way of life when it comes to religion but is regarded as something supreme and above all and in such situations, it is a call to people's destruction and a common standard in everybody's eyes.

Fifthly, if the people do not accept the code, then for whom the code is produced. It cannot be justified to make and keep legislation in the sense and if only, then personal laws are also available for documentation.

It is simple to say that we'll introduce into the Uniform Civil Code, but an important question that arises is that none saw a temple and a mosque side by side, whereas it is possible to see the Temple, Gurudwara, and the church.

I myself, therefore, feel that there is no need for a uniform civil code codification and that the only need for the hour is to modify personal legislation.[19]

End-Notes:
  1. Lord Alfred Tennyson in his poem Love Thou Thy Land, With Love Far Brought, first published in 1842.
  2. Sarla Mudgal vs. Union of India, AIR 1995 SC 1531.
  3. 1985 SCR (3) 844.
  4. Hazarika, Raya. Should India Have a Uniform Civil Code? SSRN Electronic Journal, 2010.
  5. Flavia Agnes, Liberating Hindu Women 10(50) Economic & Political Weekly 15 (2015).
  6. See Pandurang Vaman Kane, 2 History of Dharmaķ‚stra (Bhandarkar Oriental Research Institute, Poona, 1941)
  7. Agnes, Flavia. The Supreme Court, the Media, and the Uniform Civil Code Debate in India. The Crisis of Secularism in India, 2006, pp. 294Ė315.
  8. Homogenous religious groups such as Hindus and Muslims in the country were governed by different rules with respect to the issues which fell under the domain of personal laws. This.difference was owing to regional customs and practices.
  9. 1995(1) KLT 644 (FB).
  10. Similarly, several other uniformities have been brought about by the legislative interference in the realm of personal laws in the country. For example, the succession laws of Hindus and Muslims appear similar to each other after the passage of Hindu Succession (Amendment) Act, 2005. Similar is the case with laws relating to maintenance. See Werner Menski, Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda 9(3) German Law Journal 211 (2008).
  11. See Zachary Elkins, Tom Ginsbirg et.al., The Endurance of National Constitutions (Cambridge University Press, Cambridge, 2009).
  12. See Gary Jeffrey Jacobsohn, Constitutional Identity in Sujit Choudhry, Madhav Khosla et.al., (eds.), Oxford Handbook of the Indian Constitution (Oxford University Press, New Delhi, 2016).
  13. See Bhikhu Parekh, The Constitution as a Statement of Indian Identity in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (Oxford University Press, New Delhi, 2008).
  14. M.P Jain, Indian Constitutional Law, Paperback; (7th edition, Mar 2014).
  15. A Kumar, Uniform Civil Code: Challenges and Constraints, Satyam Law International; (October 12, 2012).
  16. State of Bombay vs. Narasuappa Mali, AIR 1952 Bom 84, (1951) 53 BOMLR 779, ILR 1951 Bom 775.
  17. Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945.
  18. Makku Rawtherís Children vs. Manapara Charayil, AIR 1972 Ker 27; D. Chelliah Nadar vs. G. Lalita Bai, AIR 1978 Mad 66.
  19. Leepakshi Rajpal, Mayank Vats, Uniform Civil Code and Its Legal Dimensions, Quest Journals Journal of Research in Business and Management, Volume 5 ~ Issue 2 (2017) pp: 52-57 ISSN(Online): 2347-3002

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