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Uniform Civil Code - A Boon To Indian Women

Uniform Civil Code essentially refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession for all citizens of the country, irrespective of religion. Currently, different laws regulate these aspects for adherents of different religions and a UCC is meant to freeze these inconsistent personal laws.

Overall, the Hindu personal laws are codified under four Acts — the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act.In the case of Muslims, the personal laws are derived from their religious texts including the Quran and the Sharia. Among the various legislations concerning the Muslim community are the Shariat Application Act and Dissolution of Muslim Marriages Act.

For Christians, the personal laws applicable include the Indian Christian Marriages Act and the Indian Divorce Act.There are differences in the three personal laws, which the UCC seeks to equalize. The idea comes from Article 44 of the Constitution, which is one of the Directive Principles of State Policy. It provides that the State shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India. The constitution is thus,very clear that unless a uniform civil code is followed, integration cannot be imbibed.

However, the fact is that it is only a directives principle laid down in the constitution and as Article 37 of the Constitution itself makes clear, the directive principles shall not be enforceable by any court. Nevertheless, they are fundamental in the governance of the country. This shows that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this.

In fact, the demand for a UCC came to the fore in the judgment pronounced in the Shah Bano Case in 1985, more than 3decades after the Constitution was drafted. The SC bench gave verdict in favour of Bano clearly potrays the triumph of social justice and

In the 1995 Sarla Mudgal Case, bench of justice reiterated the need for Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing ideological contradictions. The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh vs SS Chopra and John Vallamattom vs Union of India.

Anti-women practices prevailing in personal laws

Triple Talaq:

The archaic practice of triple talaq is not only anti-women, it is also anti-Islam. It has already been abrogated in more than 20 countries, including Pakistan and Bangladesh. A triple talaq divorce is valid even if the husband says talaq three times on the phone, in a letter or even on WhatsApp.

Halala:

Halala is the way a couple who have been divorced, and wish to reconcile, can remarry. Women who seek halala services are at risk of being financially exploited, blackmailed and even sexually abused.This issue came before the Bombay high court when singer Adnan Sami challenged the validity of his marriage. He married his wife in 2001, divorced her in 2004 and then remarried her in 2007. Since halala was not performed by the parties, the family court held the second marriage to be invalid.

The Bombay high court, however, held that a wife is not obliged to perform halala before remarrying the same husband if she is divorced by khula or talaq-e-ahsan (the prescribed mode under the Quran) methods. Halala is mandatory only if the couple divorced using triple talaq, the court said.

Imagine the plight of a woman who has been divorced by her husband using triple talaq in a fit of anger or in a drunken state. They both want to be married again. The wife has two choices – she can either marry another man, consummate the marriage and hope that the second husband also divorces her so that she can remarry her first husband, or she can marry the first husband without performing halala (against the tenets of Islam) and lose all her matrimonial rights in the marriage because the validity of the second marriage will become questionable. She will find no court to enforce her matrimonial rights because as soon as tries, her husband will claim that the second marriage between them was void.

Polygamy:

If the wife of a Hindu or a Christian man has the right to bring criminal charges against her husband for bigamy, why should a Muslim wife be deprived of this right?

An oft-cited argument to justify polygamy is that if a woman is ill or unable to bear children, her husband can marry another woman to procreate instead of divorcing her and sending her away.

Age of marriage for women:

In our country, even the age of marriage is not uniform; for a girl, it is 18 and for boys, it is 21 and this is also not religion-neutral. In Muslims, age of a girl is not defined. One of our PILs in the Supreme Court is on uniform age of marriage and it should be 21 common for all.

Why ONE for All

For the purpose of equality and equal justice we need Uniform Civil Code. Personal laws violates the basic rights and dignity of a woman. In personal laws women did not get their rights after divorce or at the time of death of husband but with the implementation of Uniform Civil Code they will get their rights, children can have their future bright and even it will also help our country to grow and to develop. Personal laws are outdated and not relevant to 21st century.

Personal laws are highly gender biased. Most major religions developed, over time, a bias towards women - treating them as somewhat inferior. In Christianity, Eve was meant to be the root cause of all evil. In Hinduism, Sati was practiced in some communities for ages till the British formally put a stop to it. The practice of dowry and the ill treatment of widows continue till today in many regions. In Islam, the staunchest Muslims don’t let women travel alone, wear something revealing or go to work or drive a car etc.

These are just a few examples of the deep underlying biases that lie within faiths. Such practices are justified via religious texts or customs that simply must not be broken. It has taken generations of rebellion to inculcate any change within these religions. In India most of the Muslim women get restrained from their right to property, dowry settlement and divorce. Muslim law allows polygamy and is a patriarchal law allowing a man to give divorce to his wife by allowing Triple Talak which has been abolished.

However Muslim women have been given no right to file for divorce without the permission of their husbands as given in Quran and hadiths. Gender justice cannot be achieved through personal laws, especially in the case of Muslim women. Muslim personal law, as followed in India, is inherently biased against women and many times leads to their exploitation.

Moreover, because of the application of personal law in the matters of marriage, divorce, maintenance, inheritance etc., Muslim women are precluded from enjoying the benefits accrued to them through secular law, which their counterparts from other religious communities enjoy. Through UCC speedy justice can be delivered and all people will get equal status and there would be no discrimination.

Over lapping provision of law will also get avoided. The need for UCC is related to inconsistencies in Tax laws. Like in Hindu Undivided Families they are exempted from taxes whereas Muslims are exempted from paying stamps duty on gift deeds and also it deals with the problem of Honour killings by extra-constitutional bodies like Khap Panchayats.

Contrary to popular belief, a UCC will not take away all the personal entitlements of an Indian Muslim; it will only make those entitlements unenforceable in a court of law. Parties will still be free to practice their religion as they like, though the legal enforceability attached to these practices will be extinguished.

Countries having Uniform Civil Code

The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals.

Uniform Civil Code in Goa

Goa is the only state in India having Uniform Civil Code as special marriage act 1954 which was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in India to have their marriage outside the customs of their personal law.

The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).Every birth, marriage and death have to be compulsorily registered and this effectively checks child and bigamous marriage.

For divorce, there are several provisions. Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.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. During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member. The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.

However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). However, given the progress society has made in the field of medical sciences and the number of options available for childless couples, this argument has become increasingly redundant.

Milestone Legal Cases

Mohammad Ahmed Khan v. Shah Bano Begum[3] (1975): This was a Case that stated for the maintenance for the wife after Divorce. Shah Bano a 62-year-old woman from Madhya Pradesh was divorced by her husband in the year 1978. Hence Shah Bano filed a Case in Supreme Court under Section 125 of the Criminal Procedure Code for maintenance. This Section provides to give maintenance to wife, children, parents who are dependent, and unable to maintain themselves.

Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defense that since Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total Rs.5400.

The issue was finally taken up by Supreme Court and it decided it in favour of Shah Bano using secular Criminal Procedure Code regardless of religion. Shah Bano won the Case and got the Right to get Alimony from her Husband. Shah Bano’s Case was one of the important Judgments in the Muslim Personnel Law It showed the aspirational and progressive character of Muslim women and other sections of Muslim society, who were ready to challenge the religious orthodoxy.
  • It brought into focus the plight of the Muslim women, the discrimination they has to face in matters related to marriage.
  • It showed that the laws of the land which are secular in character will take precedence over the religiously ordained customs and personal laws.
  • Most important of all it raised a debate about the rights of women, application of principle of equality. The debate engulfed civil society, religious groups, legislature and common man and nothing can be more fruitful in a democracy than a debate.

The Shah Bano judgment was seen as a blow to Muslim personal law and, under pressure from the religious orthodoxy, the government was forced to pass the Muslim Woman (Protection of Rights on Divorce) Act, 1986. The Act specifies that a reasonable amount of maintenance is to be paid to a divorced wife within the iddat period by her former husband. The validity of this Act was challenged before the Supreme Court in Danial Latifi.

Danial Latifi v. Union of India

In the case of Danial Latifi v. Union of India the constitutional validity of Muslim Women (Right to Protection on Divorce) Act 1986 was challenged by the advocate of Shah Bano .This is a leading case because, it established for the first time that Muslim husband is also liable to provide maintenance to his divorced wife beyond the iddat period and this interpretation balances between the Muslim law and section 125 of Criminal Procedure Code.

It extends for the entire life of the divorced wife until she remarries. Muslim Women (Right to Protection on Divorce) Act 1986 was challenged on grounds that law was discriminatory and violation of equality under article 14 of the Constitution of India as it deprived Muslim women maintenance benefit equivalents to those provided to other women under section 125 of Criminal Procedure Code. Further, it was argued that it also violates the right to life guaranteed under article 21 of the Constitution of India.

It is only due to the decision of the Supreme Court in Danial Latifi that Muslim women are able to enjoy the fruits of Section 125 of the Criminal Penal Code in the same manner that Hindu and Christian women do.

Sarla Mudgal v. Union of India[5] (1995):

In this case court held that the second marriage would be invalid until or unless first marriage dissolves by decree under the Hindu marriage act.
Facts are: The husband converted himself into Muslim religion from Hindu religion and practiced polygamy. There is no punishment for this act but court in interpretation of section 494 of Indian Penal Code interpreted that such marriages are invalid.

Petitioners:
All the petitioners collectively argued that the respondents converted themselves to Islam to circumvent the provisions of bigamy given under Section 494 IPC and facilitate their second marriage with other women.

Respondents:
The respondents in all the petitions assert a common contention that once they convert to Islam, they can have four wives despite having a first wife who continues to be a Hindu. Thus, they are not subject to the applicability of the Hindu Marriage Act, 1955 and IPC.

John Vallamattom v. Union of India Case:
The Priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for the religious or charitable purpose by will. The bench struck down the Section declaring it to be unconstitutional. Further, stated that;

Article 44 provides that the State shall endeavor 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.

Ms.Jorden Diengdeh v. S.S. Chopra:

In the case of Ms Jorden Diengdeh v S.S. Chopra, AIR 1985 SC 935, the question of uniformity in personal marriage laws was raised. The Apex Court observed that the laws that are related to marriage such as judicial separation or divorce are not uniform at all.

It also emphasized the need for the uniform provisions like an irretrievable breakdown of marriage and mutual consent for divorce to be applied in all cases irrespective of religion. The need for framing the Uniform Code for marriage and divorce was raised by the Court as the Court directed to send a copy of its judgment to be sent to the Ministry of Law and Justice

Also in another scenario Like in Hindu Undivided Families they are exempted from taxes whereas Muslims are exempted from paying stamps duty on gift deeds and also it deals with the problem of Honour killings by extra-constitutional bodies like Khap Panchayats.

Conclusion:
Adopting UCC is the best way to secularize and Integrate India. I strongly opine that UCC is a boon to Indian women. Undoubtedly, a Uniform Civil Code will ensure gender equality and will provide equal status to all citizens irrespective of the community they belong to. UCC will Give More Rights to Women as religious personal laws are misogynistic. It will help in bringing changes in the age-old traditions that have no relevance in today’s modern society, where women should be given equal rights and should be treated fairly.

A UCC will also help in reducing vote bank politics that most political parties indulge in during every election. Awareness and sensitization should be created among public and their misconceptions like it will be anti-Muslim or they won’t be able to read Namaz or minorities claiming it a way of imposing majority views on them etc should be cleared.

It should be implemented as a gender equality measure. All the religious and personal laws should be analyzed and the best features from all religions as well as foreign countries from wider consultations should be compiled and adopted.

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