The article speaks about the need for political development of
common law that applies uniformly on all citizens of the nation irrespective
religion and communities of the state. Implementation and enforcement of Uniform
Civil Code is considered to be an essentialist move by the feminists since it
strongly address the aspects of prioritizing gender over politics and agendas.
India being a heterogeneous house of diverse cultures and religions where some
form the dominant and other the minorities with their respective individual law
ruling them. The objective of Uniform Civil Code is to address each individual
and every issue with a common law for all and evict contradiction based on
religious ideologies of various communities.
The Constitution of India addresses the concept of Uniform Civil Code under
Article 44 of the Directive Principles of State Policy of the Constitution.
Article 44 states to secure a uniform civil code for the citizens throughout the
territory of India. Uniform Civil Code dates its roots to the civil law that
aims to administer common and equal law for governing people from different
religious community and various regions of the State.
Uniform Civil Code is an
aggregation of uniformity, civil and codified rules, regulations, procedures and
conduct. Pre-independence, the Britishers during their reign realized the
importance of codification of law to bring uniformity in the society and this
tendency led to the formulation of Lex Loci report which enforced common law
based on crime, contract in the form of Indian Penal Code,1861; Indian Evidence
Act, 1872 and Indian Contract Act, 1872 respectively.
However, Lex Loci report
has failed to attend or introduce in any common code in aspects of personal law
that can cover all aspects of different religion. However, Post-independence
there has been several debates but emphasized that Uniform Civil Code was should
not be intermingled with religion rather it should be portrayed as an aspect
that is for the welfare of the state from the religion-less position.
Indian Scenario of Prevailing Family Law
The oldest part of family law in India is stated and categorized broadly under
Hindu Law and Muslim Law. The personal Hindu laws has gone under several
amendments and codifications over the period to address various issues with
increasing complexity and upcoming of new scenarios in the court of law.
major law codifications followed under family law in India includes Hindu
Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Minority and Guardianship
Act, 1956; Christian Marriage Act, 1872; Muslim Personal Law (Shariat)
Application Act, 1937; Muslim Women (Protection of Rights on Divorce) Act, 1986
and several others.
These acts broadly address aspects of family issues and
disputes. There has been also formation of Family Court Act in 1984 to address
any case matter related to family law for their speedy settlement and recovery. Inspite of all regulated mechanism there still has been existence and
functioning of religious courts that works in unauthorised and illegal way
without maintaining the sanctity of justice.
Conflict Areas in Indian Family Law
Gender Inequality: Family law is closely associated with personal law and regulate areas of
marriage, divorce, inheritance, succession, adoption and guardianship. Women
has been subjected to humiliation and discrimination based on their gender
since time immemorial. Women has been subjected to stratification in family
as well as in work space. Women has been exploited, tortured and has been
both physically and mentally which has affected the peace and hindered the
development of society.
There has been codified law under contract, property that is common to all
but failed to implement the same for family law issues. But even after
development of specialized codified law under respective religion there was
still prevalence of inequality such as only sonís inheritant right to property since birth, Section 6 of the Hindu Succession Act
also minimizes females right in a property and also limiting aspects in field of
The detailed grounds of divorce is intricately stated under the Hindu
Marriage Act, 1955 and the Special Marriage Act, 1954. The grounds include
cruelty, adultery, failure to restitute conjugal rights, non-compliance with
judicial separation and mutual consent. Irretrievable breakdown of marriage
is not a ground under any family law in India but in Naveen Kohli v Neelu
Kohli 1, it was urged to consider this as a ground of divorce.
In India, to
prevent excessive surge of divorce due to minor issues, hasty divorce, absence
of suitable ground the codification and inclusion of irretrievable breakdown of
marriage can be inserted as a ground only when both the parties have assented to
the court at the same point and wonít be available at the disposal of single
Dowry: Dowry is one of the oldest prevailing conditions and failure to
provide for dowry led to several crimes such as burning, hanging of the bride or
commitment of suicide. Though there has been law against this crime, but however
it still continues with Hindu religious justifications and often failure to fulfil the demands result in crimes stated above including heinous torture on
the bride. To mitigate the situation, there is requirement of education as well
as strict codified law to deal with any minor shortcomings of the field.
Indian Constitution and Uniform Civil Code
Article 44 in the Indian Constitution states about the implementation of common
code of law with a specific objectivity to attain uniformity and justice from
religion-less standpoint. The Constitution being a comprehensive document that
points out the tendency of the framers to assure dignity and opportunities to
citizen irrespective of caste, creed, sex or religion.
Articles 14 and Article 15 chalks out the right to equality and no
discrimination can be made on the grounds of religion or sex. But the existing
discriminatory personal laws has affected and violated the concepts of Article
14 and Article 15. Article 15(3) allows to make special provisions for women to
ensure their upliftment and social advancement but still personal laws have led
to the misuse or discrimination thereby stratifying their position and role in
Thus, Uniform Civil Code will certainly help to curb these limitations, though
most of them have been addressed under codified marriage laws; followed by
certain amendments such as a Hindu womanís right to adopt a child, considering a
Hindu woman only a coparcener in a property. The objective is to attain
uniformity and smooth functioning of the system.
Indian Case Law Ė to enact a code
In Sarla Mudgal v. Union of India
2, 1995; the issue raised was that a
man could dissolve his marriage under Hindu Law by converting to Muslim in order
to solemnise his second marriage. Supreme Court held that Hindu marriage can be
dissolved only under Hindu Marriage Act and not by conversion to Muslim religion
followed by solemnisation of second marriage. The court found the husband guilty
under the offence of bigamy under section 494 of Indian Penal Code. Justice
Kuldip Singh stated in the case the requirement to facilitate the enactment of
Uniform Civil Code as it will help to remove contradictions based on conflicting
In Lily Thomas v. Union of India3, 2000; the issue referred to contracting of
second marriage (bigamy) after converting oneself to another religion, here,
Muslim religion to ensure dissolution of the previous marriage. The court
discouraged the ideology and there by held that marriage canít be dissolved just
by converting oneself to another religion. The case matter also highlighted that
unplanned and improper advent to formulate Uniform Civil Code might result in an
opposite way thereby giving rise to more societal and inter-religious conflicts.
Need for Uniform Civil Code
The objective of Uniform Civil Code in family law is to render justice and
equality irrespective of any discrimination and set a common ground to address
all issues thereby removing contradiction of conflicting ideologies. It ensures
that there would be no compulsion to change religion of an individual. This will
aid in maintaining uniformity and lessen the complexity of civil matters.
Uniform Civil Code is needed as it will ensure unifications of all personal laws
under one roof which will be conferred on all citizen. Moreover, it will be
liberal and secular in nature thereby aligning itself to the goal of
Uniform Civil Code is a very sensitive total concept. To formulate the common
code for family law as well as personal law of all religious community
comprised, there must be systematic and strategic plans and procedures to enact
and enforce. This will greatly aid to bring about social transformation. Uniform
Civil Code should be formulated with time, deep understanding and
considerations, maintaining sentiments of all communities and with the aid of
experts, representatives of various communities. Uniform Civil Code wonít seize
the rights or prevent performance of rites and rituals rather it will be a
protector of all citizen under one realm. It is a Herculean task but Indians are
civilized and highly adaptive to changes that are for their reforms.
- (2006) 3 SC 491.
- AIR (1995) SC 1531.
- (2000) 6 SCC 224.