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Special Marriage Act As A Precursor Of Uniform Civil Code

This paper aims to examine the role of Special Marriage Act for implementing the Uniform Civil Code in India. India is a melting pot of diversity with many religions living together. Each religion has developed its own personal law which it is following from time immemorial. The government accordingly enacted personal laws for all the religious communities in order to provide codified laws. However, it has been observed, that due to personal laws, the state of women is very deplorable.

There is a strong need to develop a uniform civil law to ensure integrated nation where the citizens are not tied to the traditional taboos and accordingly contribute in the progress of country. The paper first discusses about the idea of Uniform Civil Code from the British era.

This historical overview is followed by a brief on the Special Marriage Act and its area of application. Thirdly an inter-relationship has been developed between the Uniform Civil Code and Special Marriage Act and it has been tried to emphasise how the Special Marriage Act can be a key towards implementing Uniform Civil Code.

This section also includes the landmark cases where the Court has stressed on the implementing of Uniform Civil Code. After this a small overview is given on the system of Uniform Civil Code around the globe and in the end a conclusion.

Introduction
Marriage is one thing and religion quite another. If two citizens of India professing different religions wish to marry, it is open to them to do so under the Special Marriage Act, 1954, which is one of the earliest endeavours towards uniform civil code.1

These were the words of the Allahabad High Court while hearing a case on 'love jihad', which is now entrenched in the public landscape. The framers of the Indian Constitution, under Article 44 made a provision that the Indian government should work towards developing a uniform civil code for the citizens of the country. India already has a uniform criminal code, which was amended in 1973. However, India being a diverse country with so many religions residing, a uniform civil code is a difficult task.

The main idea to develop a uniform civil code was to uplift the citizens especially the women from their respective religious and cultural taboos. But the idea of developing uniform law might hurt the religious and cultural sentiments of the people.

Historical Background

The Britishers while framing of laws, did tried to introduce a uniform law for the people over whom they were ruling. But when they realised that such a step would not only hurt the religious sentiments of the Hindus, but also of the Non-Hindu communities stopped. The Britishers accordingly decided to keep the personal laws out of the ambit of uniform civil code. Second Law Commission set up by the Britisher discussed the problems of Lex Loci and codification in its Second Report in 1835 and concluded that:
what India needs is a body of substantive civil law in the preparation of which England's law should be used as a basis, but which, once enacted, should be India 's law on the subject it adopted. It was further persuaded by the members of the Commission that such a body of law, should be prepared which favours the situation and institutions of India, and character, sects, population uses, would be of great importance to the country.

The Commission also recommended that codification should not apply to matters such as the personal laws of the Hindus and Mohammedans that derived their power from their respective religions. Soon in 1857, after the first war of independence, when the Britishers took over the sovereign power of the administration of the country, Queen Victoria in her proclamation, promised of non-interference in the personal laws or religious matters of the citizens of the country.

Special Marriage Act

With the beginning of codification of personal laws, only the major communities that is Hindus, Muslims, Sikhs, Buddhists, Jains and Parsis were considered. The need was felt to develop a law for registration of marriages for the people who do not belong to these religions. Accordingly, the Special Marriage Act was enacted.

The Special Marriage Act was enacted in order to govern the marriages where either of the both, husband or wife or even both are not Hindus, Buddhists, Jains or Sikhs. Special Marriage Act, 1954 was enacted in response to the inter-caste marriages which is still perceived as a taboo in India. This is because people usually prefer intra-caste marriages and in case of violation of this norm, the bride and the groom have to face several difficulties. Khap Panchayats is also one of the problems.

Hence, in order to redress this problem, a serious need for a law to safeguard the interests of those people was felt, who rose above these caste and religious divisions, to marry out of love. So, the Parliament enacted the 1954 Special Marriage Act, which provides for a special form of marriage for the Indian people and all Indian nationals in foreign countries, regardless of the caste and religion that they practice.

Uniform Civil Code And Special Marriage Act

A uniform civil code means that the government should have equal laws with regard to civil issues such as marriage, succession, adoption, etc. for every citizen of the country. Such a uniform law could have been possible for a country with a homogenous population practicing religions which are similar to each other. However, with a heterogenous population like India, a uniform civil code can be introduced with lots of deliberation keeping in mind the religious sentiments of the people.

Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.2

The existence of different religions and their respective personal laws has made India into a diverse melting pot. The rationale behind so many personal laws is that the cultures' practises, social use and religious understanding of the people which are applied in their personal lives, rely heavily on the religion in which they were born and what laws relevant to society are enforced.

The law makers of the country accordingly framed laws differently, for every religion.

Some of the personal laws are:
  • The Indian Christian Marriage Act of 1872
  • Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-cochin areas),
  • For Sikh marriages, the Anand Marriage act 1909,
  • Muslim personal law (Sharia) Application Act,1937 (making Sharia laws applicable to Indian Muslims)
  • The Parsi Marriage and Divorce Act ,1937
  • Hindu Marriage Act, 1955 (applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslims, Christian, Parsi or Jew, and who is not governed by any other law)
Keeping in mind the existence of vast number of religious codified law books, the law makers of the Constitution, focussed majorly on the Hindus and accordingly codified the laws of the Hindus. The religious minorities of the country, were given the relaxation to follow the laws according to their religious leaders. However, soon it was realized that certain sections of the population were not provided with any codified law and accordingly, the Special Marriage Act was enacted.

The Special Marriage Act can be one of the keys to the implementation of uniform civil code. According to the Act, any couple who do not belong to the mentioned religions can marry without any pre-conditions i.e. of following certain customs or belief. The Act lays down a very simple process to register marriage. The idea of UCC is to establish a homogenous law for every citizen. Under Special Marriage Act if amended, would allow the citizens, even if they follow their customs, to register their marriage in one way only rather than the mandatory conditions that needs to be followed prior to marriages, if registered under personal laws.

Article 51A of the Constitution puts the Indian Government to be obliged by the laws of the international laws and conventions that have been ratified by India. Accordingly, India, having ratified the 1966 International Treaty on Civil and Political Rights and the 1979 International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), is bound by its national laws to uphold the related provisions and ensure gender equality. However, the status of women is very deplorable.

One of the primary reasons is presence of personal laws. For the redressal of this deplorable situation in this modern world where most of the women have been confined to the traditional practices of their religion, it was urged to have a uniform law for everyone. However, the entire debate of UCC revolves around the secularism and religious freedom which has been inducted in the Preamble of the Constitution and also have been given as a fundamental right to the people.

The Supreme Court, which has been entrusted with the work of being guardian of the Constitution, on several occasions while dealing with cases related to personal laws, has shown dissatisfaction, with regard to no Uniform Civil Code for the citizens of the country.

One of the remarkable judgements was of Mohammad Ahmed Khan v. Shah Bano Begum.3 A contentious maintenance case, the Supreme Court issued a judgement favouring the maintenance of an aggrieved non-Muslim divorced woman. The Court while delivering the judgement emphasised the need for UCC. The Court said that a universal Civil Code would support the cause of national integration by doing away with-it different loyalties to legislation that have contradictory philosophies. It is the State that is responsible for the responsibility of the people of the country to obtain a uniform civil code and, undeniably, has the legislative competence to do so.

In another case of Ms. Jordan Diengdeh v. S.S. Chopra 4 the Supreme Court while delivering the judgement Justice O. Chinnappa Reddy, speaking for the Court referred to the observations of Justice Chandrachud, in Shah Bano case emphasised the urgency of implementing a uniform civil code.

In the landmark case of Smt.Sarala Mudgal, President v. Union of India and Ors.,5 the Supreme Court, again expressed the dissatisfaction due to no uniform civil code. The Court also added that the personal laws being different is being misused by the husband where the Hindu husband before his second marriage converts his religion to Islam. Such instances not only effect demography but also directly effects the first wife who suffers because her husband has done bigamy.

The Court also showed dissatisfaction with the inordinate delay for implementing a UCC for the citizens when the traditional Hindu Personal Laws- governing inheritance, succession and marriage were done away as back as 1955-56 by codifying the same.

Personal Laws have from the day one proved to be detrimental for the women. Among these personal laws was the issue of talaq-e-ibadat under the Muslim Law. Talaq-e-bidat is a custom that grants a man the right to divorce his wife by pronouncing 'talaq' three times in one sitting without the permission of his wife. In 2016, Shayara Bano, filed a writ petition in the Supreme Court asking it to declare the practices of talaq-e-biddat, polygamy, nikah-halala as unconstitutional as these infringe the fundamental rights given under Articles 14, 15, 21, 25 of the Constitution.

Accordingly, in August 2017, the 5 Judge Bench pronounced its decision in the Triple Talaq Case, declaring that the practise was unconstitutional by a 3:2 majority.6
Recently, in 2019, the Supreme Court while hearing the case of Jose Paulo Continho7, expressed its dissatisfaction, about no uniform civil code, even after so many years of independence, Justice Gupta while delivering the judgement stated that:
It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court.

He further stated that Goa is one of the remarkable examples of a state having a uniform civil code as the state has a UCC related to all, irrespective of religion except while protecting certain limited rights. It's nothing less than an irony that we have a state within our own territory that has effectively adopted a sustainable UCC model, but we are so engaged in seeking western solutions that we neglect it.

Goa's Civil Code is a collection of regulations to handle all people's personal matters irrespective of religion and to ensure that their intrinsic, basic and constitutional rights are secured from any damage. The key role of these regulations is to regulate marriage, adoption, divorce, maintenance, and inheritance. The Portuguese Civil Code of 1867 was extended to Goa, Daman and Diu in 1869 with an exception that native customs and usages will be safeguarded if they are not inconsistent with the Code of 1867.

Goa is the only state which has popular family law and a Special Marriage Act which permits any citizen to marry outside the area of any special religious personal law, thus freeing them from clutches of personal law dilemma.

To be huge broaden the personal laws have not been paid any regard by dominant part of residents. The reason for Utilization of Special Marriage Act was to conquered standard objection towards the marriage in as opposed to a real disappointment towards individual laws. Indeed, even the Hindu law which is sort to make a uniform law overseeing all Hindus, isn't uniform in a portion of the crucial parts of family law.

Uniform Civil Code Around The Globe 8

If we talk about the Muslim dominant nations, the primary law that is prevalent in their country is the Sharia. The family relations are governed by their personal laws which are completely based on the Quran. However, contrary to the general belief, Muslim personal law is not sacrosanct and immutable.

As a matter of fact, there are many Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran, etc. have modified and codified their personal laws with a view to moulding them to modern social requirements. For instance, Polygamy has been completely prohibited in Tunisia and Turkey and on the other hand has been curbed in Syria, Morocco, Egypt, Jordan, Iran and Pakistan by making it permissible subject to certain conditions such as obtaining of permission.

There is a standard civil code in most European countries and everyone, including minorities, are subject to the same set of rules. There are no exceptions and no protests are raised. The 'Civil Code' contains the legislation which governs the civil relation of the citizens inter-se, but excluding subjects dealt with in special codes, such as commerce, marriage, divorce, contract, sale, partition, exchange, mortgage, succession, wrongs, etc.

Conclusion
India's long history of cultural and political pluralism did not allow for the immediate imposition of such a Uniform Civil Code. No previous pan-Indian polity had imposed such a code, preferring for the most part to let communities follow their ways, even when they were found abhorrent. Even the Britishers did not interfere in matters such as polygamy, triple talaq, Hindu Undivided Family etc.9 The problem of personal laws was best quoted by Romila Thappar. She says:
Religion impinges on every human right in the civil law.

Whether its birth, death, marriage, divorce the religions have laws on all of these. With such a large population and so many laws, development of a uniform civil code is a difficult task.

The government enacted several personal laws specifically for the Hindus because of the reason that Hindus have a bunch of laws which most of the time created confusion. Religions which are in minority, government though enacted laws for them, but also got the leverage to follow laws which were given by their religious leaders. However, soon it was realized that certain sections of the society do not have any codified personal law. Accordingly, the Special Marriage Act was enacted to lay down rules with regard to marriage, adoption, succession, etc.

The implementation of Uniform Civil Code will be one of the most tiring tasks of the government. Before implementation, both the government and the leader of religious sects need to be brought to either side of the table for talks. This is because, India is religiously diverse country where religious sentiments matter more than a person's social standing.

It has to be ensured that this uniform civil code brings equality among the religions rather than hatred against each other. The government should start the implementation of the code in small states and then move towards bigger states. In addition to this, the judiciary should start dealing case of religious matter or personal laws of litigants by relying on justice, equity and good conscience and not on the existing codified personal laws. This can be a positive step towards development of uniform civil code.

Though the judiciary on several occasions has given landmark judgements by declaring the religious laws which were discriminating as void but in regular matters, the cases are decided according to existing codified personal laws. Those who wish to maintain their community's religious traditions should be free to do so, under the condition that they won't be allowed to adjudicate and ensure compliance of their disputes through the secular Indian courts.

The crusade to enforce the Uniform Civil Code and homogenise personal laws is justified as this will help to elevate citizens' status, particularly women, from old traditional beliefs. The implementation, however, needs consensus from all of the country's populations and can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The non-application of the Central family laws to the area of Goa, Daman and Diu, Pondicherry, Nagaland and Mizoram had been criticised by the constitutional law scholars as being a hindrance towards developing a Uniform Civil Code for the entire country. There is as such no good reason for keeping some chosen groups of Indian citizens tied to the family laws based on archaic customs or outdated foreign laws.

Harmony, fair treatment of all before the law, fair penalty or penalty for all, secular rule in a secular world, gender equality, justice for all, etc. are genuinely noble values that should be accomplished via the Universal Civil Code. For a developing nation of great diversity, heterogeneity and potential, such as India, these may be ideal objectives. To conclude we can quote Justice Tulzapukar. He stated that, 'In the context of fighting the communalism, the relevance of Uniform Civil Code cannot be disputed, in fact it will provide juristic solution to the communal problem by striking at its root cause, nay it will foster secular forces so essential in achieving social justice and common nationality.'10

End-Notes:
  1. Pooja @ Zoya v. State of Uttar Pradesh and Ors., Habeas Corpus Writ Petition No. 446 of 2020
  2. https://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, accessed on 21st September, 2020, 11:23 AM.
  3. Mohammad Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
  4. Ms.Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935
  5. Smt.Sarala Mudgal, President v. Union of India and Ors., 1995 AIR 1531
  6. Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
  7. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC Online SC 1190
  8. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiFk- XM2fzrAhVHWX0KHbpcDLYQFjAAegQIBBAB&url=https%3A%2F%2Fshodhganga.inflibnet.ac.in%2Fjspu i%2Fbitstream%2F10603%2F12367%2F8%2F08_chapter%25202.pdf&usg=AOvVaw3kyHFLyzhHFsCYSjplk KIx, accessed on 20th October, 2020, 16:48 PM
  9. Krishna Kumari, Areti, In the Absence of a Uniform Civil Code, is the Special Marriage Act the Best Alternative for Women? (January 10, 2007). Available at SSRN: https://ssrn.com/abstract=956233or http://dx.doi.org/10.2139/ssrn.956233, accessed on November 15th, 2020, 20:45 PM.
  10. Justice Tulzapukar, 'Uniform Civil Code', A.I.R. (J) 1987, 17
Bibliography
  1. https://www.thehinducentre.com/publications/issue-brief/article29796731.ece
  2. https://shodhganga.inflibnet.ac.in/bitstream/10603/54472/11/11_chapter%204.pdf
  3. https://www.scobserver.in/court-case/triple-talaq-case
  4. Puniyani, Riya, Uniform Civil Code and Conflicts of Personal Laws (July 4, 2020). Available at
    SSRN: https://ssrn.com/abstract=3643457 or http://dx.doi.org/10.2139/ssrn.3643457
  5. K.S. Legal & Associates, 'Uniform Civil Code and Gender Justice: A Critique' available at https://www.lexology.com/library/detail.aspx?g=7651af73-eba0-425b- ad7b-881bfdb1d598
  6. https://timesofindia.indiatimes.com/india/no-steps-taken-in-63-years-on-uniform- civil-code-says-sc/articleshow/71120334.cms
  7. https://blog.ipleaders.in/comparative-analysis-of-india-and-countries-that-follow-the- uniform-civil-code/
  8. Tahir Mahmood, 'Unfinished Task', The Indian Express, October 29, 2020.
  9. Teesta Setalvad, 'The Love Jihad Spectre', The Indian Express, November 13, 2020.
Statutes
1. Special Marriage Act, 1956

References:
  1. Law Commission of India. 1958. Fourteenth Report (Reform of Judicial Administration), Ministry of Law, Government of India, September 26, Vol. 1. [http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf]
  2. https://indiankanoon.org/doc/823221/

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