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
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.�
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
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.
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