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Uniform Civil Code: No Longer A Mere Hope?

The Delhi High Court has stated:
Uniform Civil Code ought not to remain a mere hope," highlighting the necessity for such a uniform civil code across the country. It said that persons from diverse groups, tribes, castes, and religions should not be compelled to battle with difficulties resulting from conflict in numerous personal laws, particularly when it comes to marriage and divorce, while formalising their marriage.

Uniform Civil Code is discussed in Article 44 of the constitution. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India, it states. A civil code like this envisions a standard set of civil rules for all people of the country, regardless of religion, on issues like marriage, divorce, adoption, inheritance, and succession. This clause, however, falls within the heading of Directive Principles of State Policy and so is not a fundamental right.

Now, here is the difference between the two, Article 37 says that Directive Principles are fundamental in the governance of the country, and it shall be the state's duty to apply these principles in making these laws. But unlike fundamental rights, Directive Principles cannot be enforced by courts if there is a violation. So, the courts cannot be approached demanding implementation of a Directive Principle. That can be done only in case of fundamental rights.

When this clause was debated during the constitution's drafting, it was met with opposition from several members. A few members requested exceptions to these rules, arguing that any community should not be forced to abandon its own personal law just because a code is introduced. Members also spoke about religious freedom, claiming that such restrictions would cause dissatisfaction and jeopardise the country's unity. Others who backed it claimed that a code like this is necessary to maintain the country's unity and the constitution's secular credentials.

As a result of all of this, criminal laws in India are consistent and apply to everyone regardless of religious views, but civil laws such as marriage, divorce, adoption, inheritance, and succession are dependent on the parties' faith. The Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority Act and Guardianship Act, and the Hindu Adoption and Maintenance Act are all examples of Hindu personal law. Although most of Muslim personal law is uncodified, legislation such as the Muslim Personal Law Shariat Application Act 1937 and the Dissolution of Muslim Marriage Act handle specific elements.

For Christians, there is the Indian Christian Marriages and Divorce Act, and for Zoroastrians, there is the Parsi Marriage Act and Divorce Act of 1936. There are other more universal laws that ignore religion entirely.

For example, there is a Special Marriage Act that allows for interfaith weddings. So, in its ideal form, the Uniform Civil Code attempted to combine all of these rules on marriage, divorce, adoption, inheritance, and succession into a single law that would apply to everyone, regardless of their faith, and these faith-specific laws would no longer be applicable. The Supreme Court has remarked on the Uniform Civil Code in the past, but it's worth noting that these were only passing observations and not enforceable rulings. Because the court acknowledges that enacting a Uniform Civil Code in India is solely a legislative matter.

On April 23, 1985, the Supreme Court ruled in Mohd. Ahmed Khan vs. Shah Bano Begum and Ors[i] that "Article 44 of our Constitution has remained a dead letter. There is no indication of any governmental action in the country to draught a uniform civil code. A single Civil Code would aid in national unity by eliminating divergent allegiance to laws with opposing ideologies.

The Supreme Court ruled in the historic Shah Bano case that Section 125 of the Code of Criminal Procedure, which deals with maintenance, applies to all citizens, regardless of faith. At the time, the issue was highly politicised, with then-Prime Minister Rajiv Gandhi reversing the Supreme Court's judgement by adopting the Muslim Women Protection on Divorce Act of 1986, which limited Muslim women's maintenance to the "Iddah" period. Similar remarks have been made by the Supreme Court since, such as in the case of Smt.Sarla Mudgal, President versus Union of India & Ors[ii], which was decided on May 10, 1995.

To be sure, Goa is the only state in India with a Uniform Civil Code. So former Chief Justice of India SA Bobde welcomed and applauded this, and he said that intellectuals interested in having an academic discussion on this should travel to this state and learn more about it. The Supreme Court regarded Jose Paulo Coutinho versus Maria Luiza Valentina Pereira & Anr [iii]as a brilliant example of the Uniform Civil Code, stating that the architects of the constitution had anticipated and expected such a code for India, but there had been no attempt to draft one.

The Law Commission of India, however, took up the issue in August 2018 and issued a report[iv] stating that a Universal Civil Code is not essential nor desirable at this stage. It also said that secularism and pluralism are not mutually exclusive, implying that they may coexist. However, it recognised that diverse family and personal laws in the country had discriminatory practises, therefore it proposed certain modifications to various marriage and divorce laws across the country that would be uniform across religions.

For example, it proposed that the marriageable age for both boys and girls be 18 years, which would apply to people of all faiths, although this was only a proposal. The report also addressed the issue of polygamy, stating that it believes polygamy should be made a criminal offence that applies to all communities, including Muslims, and that this isn't being proposed because of a moral position on bigamy or to glorify monogamy, but rather because only a man is allowed multiple wives, which it believes is unfair.

But the commission at the end of the day reserved its recommendation on polygamy specifically because a petition demanding a ban on polygamy is currently pending in the Supreme Court. Since the matter was sun judice, the commission did not comment on it.

In conclusion, only time will tell whether the Uniform Civil Code will be implemented in India. However, with the court indicating that it may be implemented, it must be debated whether it is an essential necessity and where we stand as a society in implementing such a big code.

End-Notes:
  1. https://main.sci.gov.in/judgment/judis/9303.pdf
  2. https://main.sci.gov.in/judgment/judis/10742.pdf
  3. https://main.sci.gov.in/supremecourt/2008/32704/32704_2008_13_1501_16758_Judgement_13-Sep-2019.pdf
  4. https://lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf

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