Uniform Civil Code in India
Uniform Civil Code refers to replacing the personal laws (based on religious scriptures and customs) with a common set of governing rules for all citizens of India.
In 1840s, the British Government had framed the uniform laws related to crimes, evidences and contract (on the basis of a Lex Loci report of 1840) but they intentionally left the personal laws of Hindus and Muslims to allow them to continue practice their religious scriptures and customs. The British India Judiciary provided for application of Hindu, Muslim and English law by British judges. In those days, many reformers raised voice to frame laws to check discrimination against women under the religious customs such as practice of Sati. However, British government was never interested to frame laws against personal laws mainly due to fear due to fear from orthodox community leaders.
The Constituent Assembly, which was set up to frame our constitution in 1940s had both types of members – those who demonstrated their will to reform the society by adoption of a Uniform Civil Code (such as Dr. Ambedkar) and those, particularly Muslim representatives, who wished to immortalize personal laws The proponents of the Uniform Civil Code were thwarted by the minority communities in the constitution Assembly. The result was that constitution did not get anything beyond one line as article 44 in the Part IV (DPSP), which says that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India“. This was merely a symbolism. As a DPSP, neither it is enforceable in court nor any political dispensation has been able to go beyond rhetoric in this direction, mainly because minorities (particularly Muslim hardliners) took Uniform Civil Code as a blow to their personal law.
However, a series of bills was passed to codify the Hindu laws applicable to Hindus, Sikhs, Jains and Buddhists by abolishing bigamy and polygamy, allowing right to divorce and inheritance to women, and making caste irrelevant to marriage. These laws viz. Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act were collectively called Hindu Code Bill.
Shah Bano Case (1985)
In Mohd. Ahmed Khan v. Shan Bano Begum Case, the petitioner Shahbano had sought maintenance from her husband Mohammad Ahmad Khan, who divorced her after 40 years of their marriage by triple Talaaq and denied her regular maintenance. The Supreme Court gave a verdict in favour of Shah Bano by applying section 125 of All Indian Criminal Code, which applied to all citizens of India irrespective of religion. The Court also recommended that a Uniform Civil Code should be set up. The court was of the opinion that a uniform civil code may reduce the discrimination faced by the women from the personal laws. But the Muslim conservatives saw it as an attempt to weaken their cultural identity. The case was such a controversial that the Rajiv Gandhi government was panicked from the issue. Rather than showing some political spine, the government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. This act was passed to nullify the Supreme Court judgement in Shah Bano case and let Muslim Personal Law prevail in matters of divorce. The act maintained that a Muslim woman has the right to maintenance for only the period of iddat (about three months) after the divorce, and thereafter shifted the onus of maintaining her to her relatives or the Wakf Board.
Sarla Mugdal case
Many Hindu men embraced Islam to benefit from the personal law of that religion and be able to have a second wife. In Sarla Mugdal v. Union of India, the Supreme Court observed that embracing Islam for a second marriage is an abuse of personal laws. It was held that a Hindu marriage can be dissolved under the Hindu Marriage Act, 1955 only and by converting into Islam and marrying again does not dissolve the marriage under Hindu Marriage Law and thus, it would be an offence under Indian Penal Code.
John Vallamatton Case
In this case, a priest had challenged the Constitutional validity of few sections of Indian Succession Act, applicable for non-Hindus in India. Mr. John Vallamatton, contended that the said act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.
JJ Act 2014: A step towards Uniform Civil Code?
The passage of Juvenile Justice (Care and Protection of Children) Act is seen an attempt in moving towards uniform civil code. The act paved the way for adoption of child by persons from Muslim community even though it is not allowed under their personal laws. The Supreme Court also hailed the act in Shabnam Hashmi case (2014).
Since independence, now and then, the Supreme Court of India asked the union government to form a uniform civil code to remove the gender inequality and abolish the retrograde practices followed under the framework of personal laws. Recently, the Supreme Court has again asked the Union Government to give its opinion in faming uniform civil code in the country.
Need for a uniform civil code
- To eliminate gender injustice. The personal laws based on religious scripts and customs are discriminating women on various grounds. For example, Polygamy and triple talaaq are allowed under Muslim personal laws.
- To eliminate inconsistencies in application of tax laws. For example, the instrument of Hindu Undivided Families (HUF), allows getting tax exemptions, while Muslims are exempt from paying stamp duty on gift deeds.
- To deal with problem of Honour Killings by the extra-constitutional bodies like Khap panchayats.
- To remove the Socio-legal inequalities in each religion.
Uniform civil code versus Article 25
The uniform civil code cannot be forcefully imposed on the people as it would be a clear violation of Article 25 of the Constitution – which gives the right to all citizens including minority citizens to have personal laws based on tenets of their respective religions. There can be co-existence of uniform civil code and personal laws. Uniform civil code is nothing but incorporation of the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.
Uniform Civil Code in Goa
Goa has enforced uniform civil code for all its citizens. After independence, the Goa state has adopted the Portuguese Civil Code. Under the code, a married couple holds joint ownership in all assets owned and acquired by each spouse. Parents cannot disinherit their children entirely and at least half of the property must be passed on to them. Muslim men, who registered their marriage in Goa, are not allowed to practice polygamy.
The adoption of uniform civil code is a progressive legislation. The government should generate the consensus in various communities in the country for enactment of uniform civil code. However while framing the uniform civil code, the government has to be extra careful not to trample upon the constitutional rights of minorities. Passage of a common civil code will also help in strengthening the cause of national integration by removing conflicting interests.
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Tags:British India , Civil codes , Constitution , Family , Government of India , Hindu code bills , Hindu law , India , Islam in India , Law , Law in India , Mohd. Ahmed Khan v. Shah Bano Begum , The Hindu Marriage Act , Uniform civil code , Women's rights in India