Open Access Research Article
CRITIQUE ON THE SIGNIFICANCE OF UNIFORM DIVORCE MECHANISM AND ITS SOCIAL RESISTANCE
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Article Details
CRITIQUE ON THE SIGNIFICANCE OF
UNIFORM DIVORCE MECHANISM AND ITS SOCIAL RESISTANCE
AUTHORED BY - POOJA SEVARAMANI
BA LLB(Hons.) Student, Jagran
Lakecity University, Bhopal,
CO-AUTHOR - KHUSHI SETH
BA LLB(Hons.) Student, Jagran
Lakecity University, Bhopal,
ABSTRACT: -
Unity in Diversity is a phrase
everybody usually appreciates India for, however with respect to the personal
laws, that diversity is not united, there are a lot of differences in the
personal laws that is why there is a requirement to implement a Uniform Civil
Code. This code will collectively aim to mitigate the differences in the
personal laws of different religions by incorporating gender just and
progressive laws. In terms of the divorce laws across all the religions, there
are contrasts which makes the justice delivery tough, it is interesting and
surprising at the same time to notice that somewhere women have more grounds
for divorce than men and on the other hand they do not even have a right to ask
for divorce. All these discriminatory laws would cease to exist the moment UCC
becomes applicable; a lot many perplexities would be solved and too many
differences would be blurred. The umbrella code would widen the horizon of
family law given the opportunity to reduce the inequalities and injustice with
respect to the matters involving divorce, marriage, inheritance, etc. This
research paper aims to analyse the divorce laws across all religions in India
and draw a comparative study for comprehending the need for UCC in India,
alongside it also mentions the social resistance UCC is currently facing in the
country despite its positive foreseen consequences. In the process of writing
this paper, several research papers, articles, journals were referred and taken
into consideration. Thus, this research paper is an outcome of Doctrinal
Research Methodology.
KEYWORDS: -
Uniform Civil Code, Divorce
Mechanism, Personal Laws, Gender Parity
INTRODUCTION: -
Uniform Civil Code (hereinafter
referred to as UCC) is a uniform personal law for all the people irrespective
of their religion. The makers of the constitution always wished to create a
secular country but they were aware about the situation of India at that time
so they kept the concept of UCC under directive principles of state policy so
that later it could come into existence[1].
This will help the matters of adoption, maintenance, succession and divorce be
handled easily as it will prevent the courts from referring to different
personal acts, it will also help against discrimination like women in terms of
divorce rights and men in terms of seeking maintenance. The Family law is no
more confined to the dusty dingy courtrooms, it has come a long way to the
notice on a central stage where the union government now aims to have a Uniform
Civil Code, which would encourage a gender just society where India would be
exposed to an opportunity to separate rituals and laws which would be in
consonance with the Constitution of India[2].
DIVORCE UNDER HINDU PERSONAL LAW: -
Marriage under Hindu law is not a
contract, it is considered to be a sacrosanct relationship where spouses vow to
spend their lives together come hell or high water, they bond in a relationship
after completing seven circumambulations around the sacred fire popularly known
as saptapadi[3]. In
the past a marriage could not be broken because there was no concept of divorce
however, with the evolution and development of law through the years the couple
can get a divorce after seeking for it under certain sections of the Hindu
Marriage Act, 1955. Divorce is no more a taboo in the Indian society, it takes
time for the people to understand but if, the couple decides to live separately
the law doesn’t stop them rather, it rightfully and lawfully confers them with
divorce after being satisfied of all the reasons and the circumstances because,
the marriage not only involves two people, it also consists of the families and
most importantly the children born out of the wedlock.
Under the Hindu Marriage Act, 1955
there are two ways by which the spouses can be separated; Judicial separation
and Divorce.[4] Judicial
separation means a court decree requiring a married couple to cease cohabiting but not
dissolving the marriage. Here, the husband and wife start living separately
while the marriage still continues, the judiciary gives both of them time to
reconcile and revive back to the original state, there is always scope to go
back under judicial separation which is mentioned under Section 10 of the HMA, 1955. It’s a temporary separation which can eventually lead to
a permanent separation i.e., divorce, if the couple doesn’t agree to start
cohabitating together. There are certain grounds of judicial separation that
shall be proved before it is finally granted to the couple. The grounds are as
follows: -
?
“For Husband: - sub section
(1) of section 13 of HMA, 1955
i) Adultery or,
ii) Cruelty or,
iii) Desertion (for a continuous period of not less than
two years immediately before filing the divorce) or,
iv) Conversion or,
v) Unsoundness mind or,
vi) Renunciation or,
vii) Presumption of Death (not heard of being alive for 7
years or more).
?
For wife: - sub section (1)
and sub section (2) of section 13 of HMA, 1955
(1)
i) Adultery or,
ii) Cruelty or,
iii) Desertion (for a continuous period of not less
than two years immediately before filing the divorce) or,
iv) Conversion or,
v) Unsoundness mind or,
vi) Renunciation or,
vii) Presumption of Death (not heard of being alive
for 7 years or more).
(2)
i) Bigamy or,
ii) Husband guilty of rape, sodomy or bestiality or,
iii) that in a suit under section 18 of the Hindu
Adoptions and Maintenance Act, 1956 (78 of 1956), or in a
proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the
corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order,
as the case may be, has been passed against the husband awarding maintenance to
the wife notwithstanding that she was living apart and that since the passing
of such decree or order, cohabitation between the parties has not been resumed
for one year or upwards or,
iv) that her marriage (whether consummated or not)
was solemnised before she attained the age of fifteen years and she has
repudiated the marriage after attaining that age but before attaining the age
of eighteen years.”[5]
If the parties do not reconcile within one year of
judicial separation, then either of the parties can file for divorce in the court
of law under the HMA, 1955.
Divorce is an irrevocable form of separation where the
dissolution of marriage takes place, mentioned under section 13 of the HMA,
1955. The parties file for divorce when they are sure that they have been
besieged by some situations and circumstances that can’t be turned back to
normal or their relationship with each other is becoming abusive. Divorce as a
mechanism can be mutual or contested; when it’s mutual both parties voluntarily
agree to separate themselves permanently whereas, contested divorce is filed by
the aggrieved party because they can no longer endure the abuse. The grounds
for divorce mentioned under Section 13 HMA, 1955 are as follows: -
?
“For Husband: - subsection
(1) of section 13 of HMA, 1955
i) Adultery or,
ii) Cruelty or,
iii) Desertion (for a continuous period of not less than
two years immediately before filing the divorce) or,
iv) Conversion or,
v) Unsoundness mind or,
vi) Suffering from venereal disease in a communicable form
or,
vii) Renunciation or,
viii) Has not been heard of as being alive for a period of
seven years or more.
?
For wife: - subsection (1)
and sub section (2) of section 13 of HMA, 1955
(1)
i) Adultery or,
ii) Cruelty or,
iii) Desertion (for a continuous period of not less than
two years immediately preceding the presentation of the petition) or,
iv) Conversion or,
v) Unsoundness mind or,
vi) Suffering from venereal disease in a communicable form
or,
vii) Renunciation or,
viii) Has not been heard of as being alive for a period of
seven years or more.
(2)
ii) Bigamy or,
ii) Husband guilty of rape, sodomy or bestiality or,
iii) that in a suit under section 18 of the Hindu
Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under
section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the
corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898),
a decree or order, as the case may be, has been passed against the husband
awarding maintenance to the wife notwithstanding that she was living apart and
that since the passing of such decree or order, cohabitation between the
parties has not been resumed for one year or upwards or,
iv) that her marriage (whether consummated or not) was
solemnised before she attained the age of fifteen years and she has repudiated
the marriage after attaining that age but before attaining the age of eighteen
years.”[6]
Divorce between a couple comes with setbacks such as
emotional, social and most importantly financial. One requires proper
maintenance for sustenance of life when they are not able to maintain
themselves. To help the unqualified and financially dependent spouse the Hindu
law grants certain maintenance rights. The income fixed by the court as
maintenance differs from case to case, it is based on the income of the
husband/wife, their modest standard of living, among others. The amount of
maintenance can be decided either by a mutual settlement between the husband
and wife or by the court’s decree.
Maintenance under the Hindu law functions according to
the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 where
a divorced person, irrespective of the gender has a right to claim maintenance
under the Hindu Law. Moreover, a male also has to maintain the children after
divorce, having said this, it’s not always necessary that a male is entitled to
maintain his wife and children if he doesn’t earn sufficiently well for his own
survival.[7]
Although, unfortunately there have not been many cases where the husband
actually gets maintenance despite having the mention of it under Section 24 of
the HMA, 1955 which reads as “Where in
any proceeding under this Act it appears to the court that either the wife or
the husband, as the case may be, has
no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to
the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner’s own income and the
income of the respondent, it may seem to the court to be reasonable”[8]
DIVORCE UNDER MUSLIM
PERSONAL LAW: -
Divorce under Muslim law[9] is
pretty much different from divorce under Hindu law. Where under Hindu law,
divorce can only be given judicially, under Muslim law it is possible through
an extrajudicial way as well.
The extrajudicial ways are further divided on the basis
of,
a)
who can give divorce: -
1.
By wife -
taalaq-i-hafeez (delegated divorce) husband delegates his power to pronounce
talaq to his wife or any third part,
Talaq which we hear more commonly, is a form of
divorce in which the husband has the right to give divorce to his wife by
merely repudiating the marriage. This means that, only pronouncement of the
word is a requirement for the end of a marriage. But there are other kinds of
divorce present under the Muslim law which are different from talaq. Before
1939, it was not a matter of right available for a wife to ask for divorce. It
was only possible for a wife to give a divorce when the husband by his choice
transfers his right to his wife.
If we talk about Muslim law, it is a bit perplexing
because of various schools which contradict each other for certain provisions,
i.e., some follow the provision whereas others might not consider it because of
difference in the ideologies. Among all forms of divorce, talaq is the most
famous form and was recently in news because of famous landmark judgement of Shayara Bano Vs Union of India and Ors. (2017) 9 SCC 1[13] where the Supreme Court
held that the practice of Talaq-i-biddat is
unconstitutional.
Talaq means to release, under this law it precisely means,
repudiation of marriage by the husband. It can be said that the sole right is
with the husband to give divorce. This form of talaq is always in controversy
because of its absolute nature which gives absolute rights to husband. A
husband under this form can give divorce to his wife without giving any kind of
reason as he is not bound to specify the reason for dissolution. The problem
with this kind is, when it was created its intention was never to give such
absolute rights to husband but with time the husbands started misusing it.
Actually, in Islam talaq was only permitted when the wife by her words or by
her actions injures the husband. However, as it is rightly said that absolute
power corrupts absolutely, there has been a misuse of those rights through the
years. Talaq is further sub categorised into: -
·
Talaq-ul-sunnat- Revocable
talaq and Approved form
?
Ahsan
?
Hasan
?
Talaq-ul-biddat-
This was the most controversial form of talaq which is no longer
prevailing because of a supreme court ruling. This was popularly known as
triple talaq
Section 5 of the Shariat Act, 1937 was deleted and
replaced by the Dissolution of Muslim Marriages Act, 1939. From which Muslim
women can seek divorce in court of law. Other than these forms there is
legislative provision present for divorce i.e., Dissolution of Muslim Marriage
Act, 1939. It deals with the situations
in which women can file for divorce. This is a judicial form through which a
Muslim women can ask for divorce.
There are some grounds mentioned by which Muslim women can
obtain the decree of divorce
?
“The husband was not known
for the period of four years,
?
Husband has failed to
maintain his wife for the period of 2 years,
?
If the husband is
imprisoned for seven years or more,
?
Husband failed to perform
his marital duties for a period of three years or more,
?
Husband was impotent at the
time of marriage,
?
Insanity for period of 2
years or more,
?
Suffering from leprosy or
any venereal disease,
?
Cruelty (matters that come
under this are also mentioned),
? If marriage was solemnised before the age of 15 years,
then the wife can repudiate the marriage.”[14]
After the landmark judgement of Mohd. Ahmed Khan vs Shah Bano Begum and Ors[15] women
became lawfully entitled to maintenance. Moreover, maintenance under Muslim law
is quite different from other personal laws. Under Muslim personal law a woman
was only entitled for maintenance by her husband after divorce during the iddat
period, after the iddat period she did not receive the amount of
maintenance. But, according to Shabana
Bano v Imran Khan AIR 2010 SC 305[16] It was held that a woman is entitled to
maintenance even after the iddat period, if she is unable to sustain herself.
However, under Section
125 of the Criminal Procedural Code, 1973 it is explicitly mentioned that a
woman irrespective of her religion can ask for maintenance from her husband.
This section’s applicability would cease to exist the moment the woman entitled
for maintenance remarries.
DIVORCE
UNDER CHRISTIAN PERSONAL LAW: -
The Christians of India can file for the dissolution of
marriage i.e. divorce under the provisions of the Indian
Divorce Act, 1869.[17]
The court grants separation after a petition is filed either by the wife or the
husband, alongside this the couple can also file for mutual[18] or
no fault divorce[19] where they both agree for the
separation unanimously. There are certain grounds for dissolution of marriage
mentioned under section 10 of the respective act; the grounds are as follows: -
i)
“Adultery or,
ii)
Conversion or,
iii)
Unsoundness of
mind for a continuous period of not less than two years immediately preceding
the presentation of the petition or,
iv)
Suffering from
venereal disease in a communicable form for a period of not less than two years
immediately preceding the presentation of the petition or,
v)
Not been heard of
as being alive for a period of seven years
vi)
Refusal of
consummation of the marriage and the marriage has not therefore been
consummated or,
vii)
Failure to comply
with a decree for restitution of conjugal rights for a period of two years or
upwards after the passing of the decree against the respondent or,
viii)
Desertion for at
least two years immediately preceding the presentation of the petition or,
ix)
Cruelty”[20]
In addition to this a wife can file for divorce also
on the grounds of rape, sodomy or bestiality. Further, divorce by mutual consent
is exclusively mentioned under Section 10A of the Indian Divorce Act, 1869. The matter in the court would be
decided after the satisfaction of the court, there has to be a confirmation for
the decree of separation by the court otherwise the divorce stands void.
Moreover, the matters of custody, maintenance, etc. covered after the divorce
are final.
In addition to this, we also should focus on the
maintenance laws under the Christian Personal law, that is mentioned under Section 36 and Section
37 of the Indian Divorce Act, 1869. These provisions are similar to Section 24 of the Hindu Marriage Act,
1955 with an exception of only the wife being entitled to maintenance.
DIVORCE
UNDER PARSI PERSONAL LAW: -
Divorce under Parsi law is governed by the Parsi Marriage and Divorce Act, 1936, under
which it carries ten grounds
of divorce which can be used by either of the spouse for divorce: -
1. “If the
marriage is not consummated within one year from the date when it is
solemnised, and the defendant refuses to consummate,
2. When any of
spouse is of unsound mind at the time of marriage and has been habitually so,
up to date of suit, provided that the plaintiff was ignorant of the fact that
the defendant is of unsound mind, has to file a suit within 3 years from the
date of marriage,
3. When the
spouse is of unsound mind for 2 years or more or any mental disorder which
creates an unbearable situation for the plaintiff,
4. The spouse
was pregnant by any other person at the time of marriage,
5. If spouse
after marriage is involved in adultery or fornication or bigamy or rape or
unnatural offence,
6. If the
spouse is imprisoned for seven years or more for an offence under IPC, 1860,
7. Desertion
for at least 2 years,
8. The
defendant has failed to comply with a decree of restitution of conjugal rights,
9. Conversion
to other religion,
10. Voluntarily
causing grievous hurt to the plaintiff, or infect the plaintiff with venereal
disease, or compel the wife to submit herself to prostitution.”[21]
Here, it is
worthy to note that the grounds for divorce under the Parsi law are almost
similar to the grounds for divorce under Hindu law.
Under Parsi personal law a woman can
claim maintenance either by criminal proceedings or by civil proceedings. As we
know, under criminal proceedings religion is not a matter of fact. Under the
Parsi Marriage and Divorce Act, 1936 the right of maintenance for the wife is
mentioned. This may continue as long as the wife is chaste and remarried.
Section 39 of the Parsi Marriage and Divorce Act, 1936 is same as Section 24 of
the Hindu Marriage Act.
DIVORCE UNDER SPECIAL MARRIAGE ACT, 1954: -
The Special Marriage Act too has the
provision of divorce mentioned under it just like the other personal laws. To
begin with, we should know that the Special Marriage Act is applicable to all
Indian citizens regardless of their religion. Under this act, the marriage is
solemnised between people from different religions. Here, one thing to note is
that even people of the same religion can register their marriage under this
act. If they do so then they will be governed under this act in future.
Specifically, Section 27[22]
deals with it, as it states that either of the spouses can file for divorce on
the grounds mentioned under this section.
The grounds which are present in this section are almost similar to
grounds mentioned under the Hindu Personal law. Furthermore, section 28 of this
act talks about the concept of mutual divorce under which the petition for the
divorce can be filed in district court by both; the husband and the wife,
stating the reason and that they both are living separately for the period of
one year or more and now it is impossible to live together and that they
mutually agreed to dissolve their marriage.
The Special Marriage Act also has
provision for maintenance under which a court can pass a decree for
maintenance. It is the court’s discretion to decide the amount of maintenance.
Section 36 of this act mentions maintenance.
UNIFORM CIVIL CODE: AN OVERVIEW: -
Uniform Civil Code is a single law
that would govern the people uniformly irrespective of their religion; it is
inclusive of all the matters of marriage, adoption, succession, divorce amongst
others. It is one law of the nation that aims to mitigate the complexities of
the personal laws making it stand out because of its unique nature. Having the
implementation of a law like this one, would help against discrimination, help
for better justice, avoid complexities and irregularity of law in the country.
Although, only the mention of it has sparked protests and debates, the
implementation would require proper discourse and deliberation because drafting
a uniform law for an eclectic country like India with several different
personal laws that are very close to people’s root is no easy and hence, has to
be taken up sincerely.
UCC is mentioned under Article 44[23] of the
Constitution of India under Part IV i.e., the Directive Principles of State
Policy, that are ideals that need to be kept in mind while formulating and
framing the laws, these are non-justiciable in the court of law. Moreover, the
framers of the constitution have left it on the discretion of the government to
adopt UCC according to the time and circumstances, the current government has
touched this issue now raising many concerns in the minds of the general public.
It would be interesting to witness the suggestions the state governments would
put forth and finally whether UCC will actually be implemented or not.
Further, to clarify things for better
comprehension there are differences in the personal laws that would be made
uniform throughout the territory helping people all across the nation. As an
example, to the aforementioned statement, let us examine the maintenance
provided to the either of the spouse after divorce in Hindu law, it is decided
according to the income of the concerned party however, under the Muslim law
the women are entitled to maintenance, after many years of struggle and
hardships but the husbands get no maintenance irrespective of their income,
living standard and circumstances. These kinds of differences cease to exist
after UCC would be implemented as every person would be treated the same
despite differences in their gender, caste, religion, creed, etc in matters
involving marriage, divorce, maintenance, succession, etc.
Moreover, it is absolutely agreeable
that the law would have drawbacks, every coin has two sides, people would face
innumerable problems and hence there are a lot of questions in the minds of
common people as the implementation of UCC can either make the nation or break
it. There are already too many religious differences that make people
differentiate themselves, not only this, but the sensitivity people have for
their religion and the personal laws can’t be separated by a mere
implementation of one law, one of the fear people have shown regarding UCC is
that it would unfortunately end up favouring the majority group/religion’s
laws, neglecting the minority groups and would push them into a vicious circle
of reluctant obligation to be governed by this uniform law.
What would Presumably be Covered under UCC?
According to popular opinion, UCC
aims to have uniform provisions for matters involving marriage, divorce,
guardianship, adoption, inheritance, succession. However, UCC would prove to be
a channel to make necessary changes and amendments in many other areas other
than the aforementioned ones, that are not anticipated by the people.[24] UCC is
beyond our expectations, it will be a milestone if worked upon properly and
vigilantly. UCC would deal with the following matters: -
1.
Adoption,
maintenance, marriage, divorce, succession are dealt with according to the
respective provisions of the concerned personal laws. There are too many
differences in the provisions of the personal laws which discriminate against
people. There is gender discrimination under personal laws that need to be
changed since it’s high time when everybody gets the rights to be governed by
the same laws so that these differences cease to exist.
2.
Not
only this, the state, caste and tribe specified practices, would also likely be
considered by the government while framing the law. One nation, one law.
3.
The
rights of the LGBTQI+ community would also to an extent be secured, because in
a recent debate of same sex marriage, the issue that stood in front of everyone
was the laws that would govern the aforementioned community. If UCC is enacted
then this problem would at least start dissolving as all the people would be
covered under the purview of a uniform law. Gender and religion neutral laws
are the need of the hour and are not only but two of the most concerning issues
in the matter of rights of the LGBTQI+ community. Having UCC that would help
the country foster because it will then be properly able to focus on issues
apart from religion and gender and further would properly incline the interest
towards making just laws for the community, their betterment, inclusivity and
future.
4.
Most
importantly, the debate spurred because of the differences in marriage and
divorce provisions; numerous
PILs and Supreme Court rulings have addressed the subject of Muslim husbands
issuing a Triple Talaq, or instantaneous decree of divorce. The concerns of
Muta (contract marriage), Nikah halala (conduct with a different man in the
event of divorce), and other practices have also come under criticism from the
public and courts. These have brought up important issues relating to the
privacy, dignity, and protection of women. UCC would change this, the
dignity, integrity and the privacy of everyone would be ensured notwithstanding
the gender, religion, creed, caste, etc.
5.
The
age of marriage is different in different religions currently, UCC would again
make it uniform giving every person similar right to marry at a right age after
attaining a sense of responsibility, and education to have a secured future.
6.
The
grounds for divorce- Under the Hindu personal law, adultery is a ground for
divorce for any of the spouse, on the other hand under the Muslim law it’s a
ground for divorce only for the husband exclusively.[25] Moreover, under the Hindu law the
wife gets more grounds to file for divorce than the husband. This is against
gender justice.
7.
To
add on, the maintenance laws do not conform to gender parity, women are
entitled to it but men are not, there is no clarity on the maintenance rights
of men. What if they are unable to maintain themselves, and do not have the
resources to maintain the children and parents. The Hindu law does have a
mention of maintenance rights for men but all men throughout the country do not
get the benefit since all the people are not governed by the same law which
leads to discrimination.
The
government of India has asked for public suggestions and views on UCC from
everyone. They have released a link where each individual has the access to
express their opinions on UCC. If the GOI rightly focuses on rational opinions
then UCC can be a succeeding stone for India.
There are
certain acts that prohibit legislations in terms of their personal laws, one
such act is the Shariat Act of 1937. It prohibits legislations in terms of the
Muslim personal law, this act would be a hindrance in the enactment of UCC and
hence should be repealed altogether.
MECHANISM FOR DIVORCE UNDER UCC: -
After analysing the divorce
mechanisms in different religions, it is cogent that there are many lacunas
present. Hence, it is required to identify such loopholes and make a uniform
civil law for divorce which will be justifiable for everyone irrespective of
religion and gender. Moreover, these laws are discriminatory and anachronistic,
changes for the betterment of the people are always in favour of everyone. The
uniform divorce law can have the following insertions according to the understanding:
-
1. The grounds
for divorce: -
Grounds for
divorce are mentioned under the personal laws however, they are either
completely different form each other or have different meanings. As the time
evolves so should the laws be made equally accessible for each and everyone. In
addition to this it is believed that divorce under the Parsi law mentioned that
either of the spouses can seek for divorce under any grounds mentioned under
the act, these grounds have different definitions and different interpretation
from other personal laws. Like, adultery is a ground for divorce under the
Hindu and Parsi personal law whereas, it is not a ground for divorce under the
Muslim law rather it is observed to be a form of cruelty, Section 2(viii)(b) of
the Dissolution of Muslim Marriage Act,1939, states that if a man leads an
ill-famed life or associates himself with any woman of evil repute, his wife
can sue the man on charges of cruelty. This concept of Muslim law is close to
the concept of adultery. In the Zaffar Hussain v. Ummat-ur-Rahma, 1919[26] at Allahabad
High Court, the wife accused her husband of stating before people that she had
illicit intercourse with her brother. In its judgement, the court ruled that if
a woman is falsely accused of adultery, she can claim divorce for the same. On
the other hand, the wife is not liable to claim a divorce if the accusations of
adultery are true. Not only this but the word cruelty has different
interpretations under different laws making it complex and non-uniform[27].
Similarly, under the Muslim law
dissolution of marriage can only be filed by the wives whereas, Talaq can only
be pronounced by the husbands to give divorce. There is no uniformity under the
act, because there are no uniform grounds for seeking divorce for both husband
and wife. Having discussed this, under the uniform divorce law there should be
plenty of specified grounds for divorce that would be applicable to every
married person in India.
2.
Divorce
can only be Judicially conferred: -
There are some extra judicial ways
under the Muslim Law through which divorce can be pronounced by the husband,
which lands the women in trouble. Hence, it is suggested to insert a mandatory
provision where divorce can only be filed judicially and, the extra judicial
ways to become null and void. This would help the people at large and a proper
framework can be followed for granting decree of divorce and there won’t be any
misuse of the powers conferred through personal laws to any one specific.
3.
New concepts of Divorce to
be included: -
In the current scenario for filing divorce there is a
ground for divorce that is necessarily to be mentioned, and these are quite
conventional and out dated which makes filing for divorce a closed process.
There are certain new concepts that are not popularly known like No Fault
divorce, and irretrievable breakdown of marriage, which gives the couple an
opportunity to file for divorce in a manner different from the grounds
mentioned in the personal laws. If UCC is made applicable, the divorce
mechanism would include these relatively new concepts. Interestingly, some of
the personal laws already have them like the Christian law.
a) No Fault
Divorce: - The couple files for divorce however none of the spouse has to
necessarily mention the grounds for divorce, the reason for the divorce can be
incompatibility and lack of understanding. None of the spouse is at fault but
they both can’t live together anymore and thus they file the divorce and want
their paths in life to be separated.[28]
b) Irretrievable
Breakdown of Marriage: - This is a concept for divorce in which various
judgements are given related to it but still there is no statute as such for
this. Generally, it means when husband and wife no longer live together, and
marriage breaks down in such a manner that there is no chance of coming back
together. With change in society norms, it is important to consider other such
kinds of divorce in the codified law. It is in the hands of the legislature to
consider this ground in the legislation and especially when UCC is initiated,
so it is the responsibility of lawmakers to make a law while taking into
consideration the present social norms. Basically, it is important to add such
kinds of grounds for divorce because simply considering some offences or
matrimonial disabilities as grounds of divorce shorten the scope of justice.
There may be cases in which neither spouse is at fault but still there is no
scope of the couple to stay together so they will opt for the Irretrievable
Breakdown of Marriage.
SOCIAL
RESISTANCE: -
Today’s society is not the same as that of the 1900's
however owing to their religious isolationism people perceive their archaic
laws as just and autonomous irrespective of how discriminatory and narrow, they
are by nature. According to the understanding, when the UCC would include a
uniform divorce mechanism it would most probably be resisted by the religious
groups because they will still be stuck with the idea of their personal laws
being abrogated, rather than thinking progressively. The constitution framers
included UCC under the DPSP because they wanted to implement gender justice and
national integrity completely in the future, and it’s the right time when
people are delivered justice and not left ignored only because the personal law
doesn’t mention their involvement, a law for all can prove to be a solution to
all such problems.
Every initiation for good gets objected, UCC has proved to
be no exception to this. The social resistance and the reasons behind it are as
follows: -
1.
People are resisting the
law believing that UCC is nothing but enforcement of Hindu law throughout the
territory of India, here there is lack of knowledge and understanding which
will become the sole reason for arbitrary resistance and protest. UCC is not
application of Hindu law, however it is application of a uniform law that does
not discriminate and rather liberates.
2.
People will also resist due
to their allegiance to the political party. The influence of political parties
in the country is going to give everybody a hard time defending. The political
leaders would now not be able to make false claims regarding personal laws
hence they would resist and try manipulating the naive around them with their
persuasive delivery. Moreover, the political parties should understand the real
significance of UCC and the divorce mechanism under it that would benefit one
and all. There are several political parties and organisations which are
opposing the union government’s idea of bringing UCC in India. We can see this
opposition from All India Muslim Personal Law board, Shiromani Akali Dal and
All India Anna Dravida Munnetra Kazhagam (AIADMK)[29] among others. Further, mainly there are a few minority
organisations resisting because they think that UCC will be an interference
with their laws that have delivered them justice in the past.
3.
In the recent past, when
Triple Talaq was abolished, there was a frenzy amongst the people, and
interestingly the current government is planning to replace the whole of
personal laws with UCC, so the resistance is inevitable and must have already
been foreseen. Apparently, in Maharashtra Bharatiya Muslim Mahila Andolan has
launched a signature campaign for a ban on customs such as ‘triple talaq’. [30] To add on, the minority community of Naga people is distressed about the
idea of implementation of UCC. In fact, the Nagaland Bar Association has
admonished that the enactment of UCC would call for trouble to the dignity,
integrity and culture of the Naga people. Owing to this, they have even
expressed their concern to the PM through a letter stating “It will cause social disorder, and if a Uniform Civil
Code is introduced covering the entire country, it shall cause so much hardship
and social disorder to the Nagas as the per personal and social life of the
Nagas are quite distinct from the rest of people in the country.” The biggest
problem with UCC is that personal laws are derived from various religious
sources and changing them would appear like an interference in religious
matters of a community.
4.
There are certain groups
resisting because they have been practising Polygamy since time immemorial,
having a uniform divorce mechanism would make polygamy illegal that would
hinder with this long-driven practice. It is to be noted that laws are made for
the welfare of all and not to denigrate any particular religion hence, people
should understand that owing to the change in time, with increased expenses and
increase and exposure to the rights polygamy is an anachronistic concept that
discriminates and burdens. UCC aims to bridge the gap and bestow a law that
corroborates with the current time and delivers justice.
5.
A very fascinating reason
for the resistance is Public Referendum, the minorities’ view that when the
Union Government wants a UCC for the public they should conduct a public
referendum that would make it cogent whether people want UCC or not. According
to the understanding it is very wise of the government to not conduct a
referendum because people would think emotionally and not rationally because
they do not want their personal laws that have been governing them to be
discontinued.
6.
An important resistance
shown by people is that UCC would be an imposition on them if it is implemented
because they would not be given a choice on whether they want to be governed by
the law or not. The application of UCC should be made consensual where people
voluntarily agree on the same thing in the same sense to be governed by the law
not merely be imposed by it. The Special Marriage Act, 1955 is a secular law
and people are given a choice under this act similarly they wish to get the
voluntary decision making under UCC as well.
CONCLUSION:
-
The Uniform Civil Code provides an opportunity to liberate
the Indian Family law from the shackles of the Colonial Legacy of gender and
religious discrimination. The Parliament recently considered three bills to
decolonize the Indian Criminal law, similarly UCC can prove to be a stepping
stone to decolonize the Indian Family law. UCC should definitely not be
arbitrarily adopted rather due efforts should be made to develop the best
principles for the contemporary society, keeping in mind the evolution as well.
After this research and deliberation, it is quite cogent
that UCC is necessary in India to ensure gender justice, and equality in the
country. UCC would promote one nation one family law that would weigh everyone
on the same grounds. There is a need to have uniform divorce mechanism that
would make everything clear and relatively easier for the courts and the people
claiming for the determination of rights. Although, it is not an easy task, as
there is a social backlash and resistance for this, many sections of the
society including politicians do not support UCC because they are of the view
that they would have to completely withdraw themselves out of their religion
and then would be imposed with another law that won’t include their religious
beliefs and practices.
We need to understand UCC is for the collective betterment
rather than collective destruction, because it aims to modify the family law to
ensure justice, equity and equality in the society. Uniform Civil Code will be
an umbrella code that would have a wide spectrum with the opportunity to
include any and every kind of equitable and just law.
[1]Ramesh Sharma, “What framers of our
Constitution said about UCC and why they didn't implement it” India Today, Jul. 31, 2023.
[3] C.Amirdha Varshini, “Divorce Laws In India” Legal
Service India E-Journal (2020).
[7] Swati Shalini, “Maintenance Rights of the Divorced
Women under the different religions in India” MyAdvo (2019)
[10] The husband takes oath to not have sexual intercourse
with his wife, and there is no consummation for consecutive four months from
the date of the oath. After the expiry of 4 months the marriage stands
dissolved irrevocably however, if the husband resumes co habitation within 4
months then ila is cancelled and the
marriage is still valid.
[11] The husband compares his wife with another woman
within his prohibited relationship. The husband doesn’t cohabit with his wife
for four months and after the expiry of the period Zihar is complete.
[12] Khula is a kind of divorce in which Muslim women seek
to take divorce from her husband and are willing to return mahr in exchange for
dissolution of marriage.
[13] Shayara
Bano Vs Union of India and Ors.(2017) 9 SCC 1
[15] Mohd. Ahmed
Khan vs Shah Bano Begum and Ors, AIR 945, 1985 SCR (3) 844.
[16] Shabana Bano v
Imran Khan AIR 2010 SC 305.
[18] The couple has been living separately for a period of
two years or more, and they have not been able to live together and they have
mutually agreed that the marriage should be dissolved.
[19] No Fault divorce is the easiest way to seek for
divorce as, as it is a divorce without blame or fault.
[23] The State shall endeavour to secure for the citizens
a uniform civil code throughout the territory of India. (Article 44 of the
Indian Constitution, 1950)
[24] Aneesha Mathur, “From marriage to adoption, how
Uniform Civil Code could subsume personal laws across religions”, India
Today (2023).
[26] Zafar Husain vs
Ummat-Ur-Rahman, 1919 49 Ind Cas 256.
[29] OutLook Web Desk, “Explained: What Is Uniform
Civil Code's Politics, How Has The Opposition Responded To BJP's Pitch For
UCC?” Outlook (2023).
[30] Moushumi Das Gupta, “For or Against Triple Talaq?
Signature war erupts in Muslim Community” The Hindustan Times, Oct. 26,
2016.
Article Information
CRITIQUE ON THE SIGNIFICANCE OF UNIFORM DIVORCE MECHANISM AND ITS SOCIAL RESISTANCE
Authors: POOJA SEVARAMANI, KHUSHI SETH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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