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Uniform Civil Code: A Need For It

India has multiplicity of personal laws. Unlike criminal law, civil law differs from community to community. The law is communal so far as each community group has its own distinct law to govern domestic relations. This personal laws are varied in their sources, philosophy and application. It differs in concept of marriage, divorce, inheritance, succession and maintenance. Now society has changing day by day.

Due to changes in society and public policy there is need for change in civil laws. There has been much debate in recent time on the topic of uniform civil code. Our Constitution of India has Article for Uniform Civil Code but it is not enforced in India. Though it is not enforced till the time when the rest of the provision of the constitution were enforced by taking into consideration the societal complexities but now there is a need for enforcement of uniform civil code for the survival of the society.

Though article of UCC is in directive principles of state policy which cannot be enforceable like fundamental rights still the legislatures and court should take some steps to enforce it. Legislations should take into consideration this aspect and enforce uniform civil code all over India for the betterment of society in civil law cases. This paper outlines need for uniform civil code, its challenges in its implementation country like India which has diverse religions and important judgments given by Supreme Court.

Introduction:
In India we have so many religions and all the religions have their own personal laws. This personal laws are different in their own perspective. It is so confusing and most of this personal laws are discriminating the women’s rights. With the view to achieve uniformity in our country, drafters of Constitution framed Uniform Civil Code provision in our India constitution. Uniform civil code can be understand from Article 44 of constitution of India.

Though the founders of the constitution enacted this in the constitution for uniformity in civil law still now it was not enforced. Only Hindu code bill was introduced and many acts were enacted under this bill. Still civil laws differ for every religion because of their own personal laws unlike criminal. Every personal laws differs from community to community. These laws are challenged before Indian courts many times where we can see that they are traditional and unequal laws and gender biased laws.

Uniform civil code essentially means to unify all the personal laws into codified uniform law to govern every citizens equally without any discrimination. Main aim of the uniform civil code is to administer same set of civil laws to govern all citizens equally in the meaning of the constitution among society. It should applied to all citizens irrespective of religion, race, caste or sects.

The need for framing of the code is that to bring all the citizens in one common platform in matters which are governed by their respective different personal laws. Many changes were made in Hindu personal and women’s are getting there rights equally but still there is something lacking and still Muslim women’s are facing many problems in their own personal law. This should be changed and code should be enacted for civil law uniformly for every religion irrespective of caste.

Many instance cases judges asked the parliament to enact UCC. And it’s time to enact uniform civil code in our country. Here I am going to explain about the need for implementation of uniform civil code and its challenges in its implementation.

Meaning:
Article 44 deals with uniform civil code. But it does not defined UCC it just stated that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”[1].

Uniform civil code generally means set of laws governing the matter of the personal law related to marriage, maintenance, divorce and property related aspects of every citizen of India, irrespective of gender and religion. It is a set of secular civil law that not governed by any personal law. It tends to separate personal laws from religion and to secure national integrity and unity of the nation. In simple words personal laws of every religion should be put into a common codified civil law which governs every citizen equally.

History:
Uniform civil code origin was way back to British rule during that time the British government submitted their report in 1835 stressing the need for uniformity in the codification of India law relating to crimes and contracts specifically personal laws of Hindu and Muslim will be kept out from the codification.

After that in the beginning of 20th century the demand for UCC was put forwarded by a woman activist for equal rights and secularism. In 1941 British rule forced the government to form the B.N.Rau committee to codify Hindu law but no other personal laws.

Following that after independence (1947) UCC was enshrined in the Indian constitution as directive principle of state policy by drafting committee headed by Dr.Ambedkar. When DR.B.R.Ambedkar asked the constituent assembly to adopt uniform civil code, it was strongly opposed by the other side because it violated article 25 of constitution of India. India’s first PM Jawaharlal Nehru professed his desire to have a Uniform Civil Code (UCC), but though he succeeded in codifying Hindu law, his government took no step towards reform of Muslim personal laws and dodged the question of a common code altogether[2].

After that in 1954 Hindu code bill was introduced in parliament and based on that recommendation of the bill Hindu succession act was amended. However there were separate personal laws for Muslims and Christians. And then many act like special marriage act, 1954, Hindu Marriage Act, Succession Act, Minority and Guardianship Act, 1957 was passed by the parliament.

After this in many cases like Ahmedabad women action group case(1997) and lily Thomas case(2000) and John Vallamation case (2003) apex court has once again dealt with the question of UCC. But in 2015 once again the apex court divide over the subject. In Sep 2015 the apex court revived the debate over common law when it asked the central government whether it is willing to bring uniform civil code since there was still confusion about laws related to marriage, divorce, adoption, maintenance and inheritance among different religion. However the other bench of SC in December 2015 denied the PIL about UCC.

Many debates and judgements were made to enforce Uniform Civil Code. We can see many judgements by Supreme Court of India on this issue and one of the landmark judgement given by supreme is in Shan bano case[3]. This case was landmark case where judges held that there is a need for Uniform Civil code. And recently times triple talaq[4] was declared unconstitutional it was important judgement related to uniform civil code. In 2019 once again the apex court insisted the need for UCC and till it’s a debate in India.

Legal Provision:
The constitution of India has a provision for uniform civil code as a directive principle of state policy which states that “The state shall endeavor to secure for citizens a uniform civil code throughout the territory of India”[5]. There are number of cases where Supreme Court referred to this article. Article 44 of the constitution calls upon the state to endeavor towards securing a uniform civil code throughout the territory of India.

Whether It Is Implemented In India:

Uniform civil code is enacted for the reason is that all citizens should be treated under one common civil law. The question is whether it is implemented all over India? Still now there is no uniform civil law in India in any states in India expect in Goa. Goa is the only state in India to have a uniform civil code. Goa was once a colony of Portuguese and they applied the Portuguese civil code. After that Goa became part of India and the act was amended, the Goa civil code is also known as goal family law is a uniform civil code for residents of Goa.

The provisions of Goa civil code as follows:
It provides that marriage is a civil contract.
  • After marriage everything owned by the married couples before and after marriage becomes common and the spouse is liable to get half of that common belonging in the case of divorce. The code allows ante nuptial agreements in such cases.
  • Quall property rights for both sons and daughters.
  • Parents are not entitled to disinherit their children entirely.
  • No polygamy or triple talaq for Goan Muslims.
The question here also is that whether the Goa civil code is applied uniformly? The answer for this question is no because there are many expectations in the act to itself that make it not a uniform code in the actual sense. There are some exceptions to the practice of monogamy for only Hindus and other communities are not permitted. The rights of illegitimate children are unequal as compared to legitimate children. This clears the fact that it is not applied uniformly to all of its citizens without any discrimination. There are many loopholes in this code.

Challenges In Its Implementation:
The major challenge is that secularism and freedom of religion gets into conflict with the right to equality. Article 25[6] lays down an individual’s fundamental right to religion and Article 29 lays down the right to conserve distinctive culture. These rights gets into conflict with the quality before law enshrined under Article 14 and 15. The minorities oppose the implementation of this Article by taking defence of Article 25. And individual’s freedom of religion under Article 25 is subject to public order, health and morality.

However, Article 25 excludes secular activity from the purview. Secular activity are to be dealt with state and not religion. Whether UCC is a part of directive principles of State policy through these principles are to implement the positive impact upon society and various provisions of Part 4 have been recognized and protected under the umbrella of Part 3rd of the Constitution. Article 44 of the Constitution of India along with Article 14, 15(3), 21 and 51-A is aimed to solve the problems of the diversity of usages, custom in different parts of India and gender discrimination[7].

In 2018, a report by the law commission of India stated that the uniform civil code is neither necessary nor desirable at this stage in the country. The commission said secularism cannot contradict the plurality prevalent in the country. In the name of uniformity, the minorities fears that the culture of the majority is being imposed over them. Given vast cultural diversity in India, bringing uniformity among all such people will be a huge challenge in implementation.[8]

The other major challenges in adopting UCC is that the question of inheritance and succession comes into play. Personal law for this concept differs. This was challenged by advocate Ashiwini in her PIL petition who said uniform laws in succession and inheritance are necessary to secure justice, equality and dignity of women. But still it’s an issue in our country. Central government is trying to clear this debate.

Need For Uniform Civil Code:

In our country we live in a structured society where males were given most of the rights than females. Males are given undue advantage on the ground of gender. In Hindu and Muslim personal law the rules are biased for women’s. So for this system there is a need for uniform civil code has been felt for more than a century. Uniform civil code will woman’s equal rights like men’s and not only this brings uniformity in society it will exigent to promote national unity.

The society has been fragmented in the name of religious, sects and sex. Even at present also in India there are different personal laws governing rights related to civil laws. The idea behind having uniform civil code is that to treat every person equally with just and fair laws. Moreover, such code would aid to put in place the set of laws which would give personal matters of all citizens irrespective of their religion, which is the cornerstone of secularism. The main aim to have uniform civil code is to have no discrimination and to treat everyone in India equally with the common law concept.

Uniform civil code will help to promote gender quality and would ensure national unity and integrity, and also it will strengthen the secular fabric. Several liberals and women’s group have argued that the uniform civil code gives women more rights. This gender friendly judgements which is seen from Shah Bano case to Sharaya Bano case who filed PIL in the Supreme Court in which triple talaq was declared unconstitutional.

And it is to be noteworthy though some people oppose this uniform civil law but some liberal section people in our society are demanding this code to be put into effect which would govern individuals across religions, caste and protect their fundamental and constitutional rights guaranteed by the constitution of India. And there will be polygamy practice if uniform civil code is enacted and also child marriage will be reduced by it.

According to the Committee on the Status of Women in India: “The continuance of various personal laws which accept discrimination between men and women violate the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens “equality of status, and is against the spirit of natural integration”[9]. The Committee recommended expeditious implementation of the constitutional directive in Art 44 by adopting a Uniform Civil Code.

Role Of Judiciary:

Judiciary plays the major role to protect individual’s liberty as well as the interpreter of law. It tries to remove hurdles of the society by giving a positive interpretation of legal provisions which helps to society in moving forward. Mohammad Ahmed khan v. shah bano Begum[10], In this case, in1985, a Muslim woman was driven out by her husband after 43 years of her marriage. So she moved to Supreme Court for maintenance under section 125 of the code of criminal procedure.

In 1979 her husband gave her divorce by giving triple talaq. He made the defence in the court that he no longer has an obligation to pay maintenance to her wife because he had divorced her and had also paid the amount of dower during the iddat period in the court of magistrate. First in the court of magistrate, the court held the woman liable to get maintenance at the rate of 25 rupees /- per month by her husband. Then appeal was made by the woman in the Madhya Pradesh High Court in 1980.

The High Court increased the amount of maintenance to 179.20/- per month. Finally another appeal in Supreme Court were filed by her, the question arise before the Court is that whether section 125 applied to Muslim women? The Supreme Court gave the verdict in favour of Shah Bano by applying section 125 of the Criminal Code and it’s applied to all citizens irrespective of religion. Then Chief Justice, Y.V.Chadrachud, observed that Article 44 of Indian constitution remain dead letter. The need for framing a uniform civil code was raised for providing better justice to all citizens without any gender discrimination. The court observed that a “beginning has to be made if the constitution is to have any meaning”.

After this decision may discussion were made nationwide. Government of India overturned the Shah Bano case decision by way of Muslim women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under section 125 of the code of criminal procedure.

Finally, the supreme court has issued a directive to the Union of India in Sarla Mudgal Kalyni v. Union of India[11], This is the second instance in which the Supreme court again directed the government under Article 44.in this case the issue raised was whether a Hindu husband, married under the Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage.

The case were filed by a woman by writ petition against her husband when she came to know that his husband had married a second woman during the lifetime and consequently converted to Islam to protect himself from the jurisdiction of section 494. The Supreme Court held that adopting Islam for a second marriage is an abuse of personal law. Further said that the second marriage, without resolving the first marriage done with Hindu rites, is void concerning section 494 of IPC.

The court held the man liable for the offence under section 494 of Indian Penal Code. Article 44 was deeply raised by the apex court bench, the need for UCC was raised as a need for better justice. The bench itself directed the government of India to look forward to framing UCC.

The one other case of Lily Thomas v. Union of India[12] in which the supreme court once gain focussed on the need of uniform civil code to demolishing the gender inequality from the society but also stated that the government is not bound for framing of the UCC because it is part of directive principles and the court did not direct to frame the uniform civil code.

In, Shabnam Hashmi v. Union of India [13], in this case the petition was filed under Article 32 by a Muslim for adoption of children irrespective of religion. He filed the petition for recognizing him as a parent of her adopted daughter. According to Muslim personal law the petitioner was not recognized as parent but as guardian. In this case also the Apex court held the adoption to be legalized and upheld the applicability of the juvenile justice act on the Muslims. The court recognized the act as a secular act and thus liable to be applied to every citizens of India, irrespective of religion. The issue of uniform civil code on personal law matters like adoption was raised by the court as the need.

Thus, as seen above there were several instances where the apex court directed government to realize the directive principle enshrined in our constitution and the urgency to do so can be inferred from the same. Though directive principle cannot be enforced like fundamental rights still courts has been taking many steps to enforce UCC.

Recent Case Law:

Shayara Bano v. Union of India[14]:

This case judgement is the most important judgement in recent times where Supreme Court quoted the need for uniform civil code. In this case, the constitutional validity of triple talaq, a practice of divorce, in Muslim personal law was considered. In this case, a woman named Shayara Bano was divorced by her husband by pronouncing talaq three times. The practice is discriminatory on the ground that it is only allowed to men and the consent of women is not required in this practice. The five judge bench of the apex court held the practice of triple talaq as unconstitutional. The question of the uniform civil code stop such personal law practices was again raised.

Countries Having UCC:

Countries like japan, Spain, France, Russian, Germany have civil code and there legal system are stronger than our country. We can see that those countries are united by uniform civil code without any discrimination. Some countries follow German civil code and some follow French law.

Suggestion:
As form the above understanding my suggestion for establishing uniform civil code will be useful and it will protect women’s right in this society. To establish uniform civil code in our country which has diverse religious sectors legislature and courts of India should take some measures:
  • Like enacting social reforms, getting public opinion on this aspects.
  • They should take initiatives to enact uniform civil code.
  • It should be clearly enacted and should contain best elements of different civil laws.
  • It should take steps and find out solution without clash of other sections in the Indian constitutions.
  • A status quo provisions must be made to understand the enactment of uniformity of civil laws.

Conclusion:
From the analysis of the above concepts we know that it’s hard to frame UCC in our country but still Courts and legislature trying their best to frame UCC. This is an important aspect where government should take more steps to enforce in India. Its high time to enact uniform civil code in order avoid the conflicts created between personal laws.

This code will protect the vulnerable minorities and women irrespective of their religion. Since there are many personal law acts which contradicts with one other it’s better to frame UCC to as it will reduce the confusions and overlapping of laws. Slowly changes should be brought to the society by enforcing uniform civil code. To conclude that though India is a diverse country still parliament should take steps to draft uniform civil code and enforce it. By education, awareness programme must be taken up for understanding uniform civil code.

Bibliography:
Books:
  • Constitution of India – V.N.Shukla.
  • Constitutional law of India – J.N.Pandey.
Act:
  • Constitution of India, 1950
Websites:
  • https://blog.ipleaders.in/uniform-civil-code-brings-uniformity-india/.
  • https://lawtimesjournal.in/uniform-civil-code/.
  • https://www.lawctopus.com/academike/need-uniform-civil-code/.
  • https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters.
  • https://www.thehindu.com/news/national/what-has-government-done-about-law-commission-report-on-uniform-civil-code-jairam-ramesh/article31094808
  • https://www.hindustantimes.com/india-news/has-the-supreme-court-set-the-ball-rolling-for-a-uniform-civil-code-101615802810671.html#:~:text=UCC%20essentially%20refers%20to%20a,the%20country%2C%20irrespective%20of%20religion
End Notes:
  1. Constitution of India - https://legislative.gov.in/sites/default/files/COI-updated.pdf
  2. https://timesofindia.indiatimes.com/india/uniform-code-nehru-okayed-principle-but-didnt-make-it-a-directive/articleshow/60183225.cms
  3. Mohd. Ahmed Khan v. shah Bano Begum [AIR 1985 SC 945]
  4. Shayara bano v. UOI and ors.
  5. Article 44 of Indian constitution.
  6. Constitution of India
  7. Law and Social Transformation, P. Ishwara Bhatt, Eastern Book Company, Reprint 2012, page 746
  8. https://www.thehindu.com/news/national/what-has-government-done-about-law-commission-report-on-uniform-civil-code-jairam-ramesh/article31094808
  9. Ministry of Education and Social Welfare, a Report of Committee on the Status of the Women in India, Government of India (Dec. 31, 1974).
  10. [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945]
  11. (1995) 3 SCC 635
  12. (2000) 6 SCC 224
  13. (2014) 4 SCC 1
  14. (2017) 9SCC 1

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