Open Access Research Article
UNIFORM CIVIL CODE - WHY & WHY NOT YET. By: Kartikay Singhal
Published Paper
Article Details
UNIFORM CIVIL CODE -
WHY & WHY NOT YET.
Authored By: Kartikay Singhal
Student ID: 20010185
Section: A (BA LLB 2020-25, JGLS, JGU)
The aim of the
paper is to highlight why Uniform Civil Code (UCC) is needed, especially now,
more than ever before. The primary reason behind this is that the whole
perception of marriage, divorce, adoption, inheritance in the society has
evolved to such an extent that not having a comprehensive, all-inclusive
modern-day Uniform Civil Code to govern personal laws of people is infringing
on people’s basic fundamental rights guaranteed to them by the constitution of
India. This paper shall individually discuss the problems associated with
various religions’ personal laws and then cumulatively as well. Moreover, this
paper will illustrate the reasons as to why UCC is still not a law in India,
where politics, religion, evolving notions of personal laws will be touched
upon. This paper will conclude by providing an overview of the entire paper
along with the way forward.
Keywords: Uniform Civil Code (UCC), religion, discrimination,
inequality, marriage, divorce, adoption, inheritance LGBTQIA+, male, female,
children
Introduction
“I do not understand why religion
should be given this vast, expansive jurisdiction to cover the whole of life
and to prevent the legislature from encroaching upon that field. After all,
what are we having this liberty for? We are having this liberty in order to
reform our social system, which is so full of inequities, so full of
inequalities, discriminations and other things, which conflict with our
fundamental rights. It is, therefore, quite impossible for anybody to conceive
that the personal law shall be excluded from the jurisdiction of the State.”
-
Dr. B.R. Ambedkar
Uniform Civil Code (UCC) is a proposal to formulate a system where every
citizen of India would be governed by a common personal law irrespective of the
religion they follow. The UCC is embodied in Article 44 of the Indian
Constitution, which states that, “the state shall endeavor to secure a UCC
for the citizens throughout the territory of India” and this article falls
under the Directive Principles of State Policy, these principles consists of
concepts like the UCC, which needed further research and study and were
therefore, left for future governments to legislate upon.[1]
Although, the Directive Principles of State Policy are un-enforceable in the
Indian courts of law, but these are principles which the state must strive hard
to follow in spirit till they are enacted as legislations in the future. The personal laws under UCC shall mainly
consist of personal laws relating to marriage, divorce, adoption, and
inheritance.
The Need for Uniform Civil Code (UCC)
Muslim
Personal Law
Muslims in
India are governed by the Muslim Personal Law (Shariat) Application
Act, 1937, under which a Muslim man is allowed to marry up to four wives at
the same time.[2] Moreover,
only the husband is allowed to divorce his wife without any valid legal reason
and the husband is not required to provide any financial support to the
divorced spouse unlike other religions personal laws. Mohd. Ahmed Khan v.
Shah Bano Begum was a landmark judgment given by the Supreme court of India
where it opined that a Muslim man needs to provide financial support to their
ex-wife after the three month period ‘iddat’ under ‘Talaq-ul-Sunnat’
is over, that is financial support is to be provided even after payment of ‘Mehr’.[3] But in
1986, the Congress led government diluted the effect of the Supreme Court’s
judgment by enacting the Muslim Women (Protection of Rights on Divorce) Act,
1986, limited the financial support that is, ‘mehr’ to the divorced
wife for the ‘iddat’ period of three months (although the act has now
been repealed and replaced but this provision still stands).[4]
Very little
progress has been made since the Shamim Ara v. State of UP judgment in
2002,[5] came where
instant triple talaq or ‘talaq-eh-biddat’, was held unconstitutional by
the Supreme Court. Shayara Bano v. Union of India,[6] judgment and the law
by the Central government, Muslim Women (Protection of Rights on Marriage) Act, 2019,[7] was just a reiteration of the 2002 judgment. Moreover,
under the veil of freedom of religion a fundamental right under Article 25, the
Muslim personal law treats a man and women differently, but Freedom of Religion does not supersede Article 15,[8] because
Article 25 itself, under Clause 2, states that “this article shall not
affect the operation of any existing law or prevent the state from making any
law”.[9]
Although, there is no provision for adoption of minors in
Muslim personal law, but in 2014, in Shabnam Hashmi v. Union of India &
Ors.[10] the
Supreme Court of India said that adoption by Muslim parents is possible through
secular law. Here, the court has tried to resolve conflict by allowing adoption
under secular law for Muslim parents, because by doing so, the court did not
have to amend the personal law.
An ironic
fact is that “Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran
etc… codified their personal laws… the practice of polygamy has been either
totally prohibited or severely curtailed to check the misuse and abuse of this
obnoxious practice. The tragedy is that a secular country like India is lagging
behind in giving a red-carpet welcome to article 44”. [11]
Hindu
Personal Law
The Hindu Marriage Act 1955 (HMA),[12] covers personal laws of Sikhs, Buddhists, Jains apart
from Hindus, and people who are not Christians, Muslims, Jews, Parsi are also
covered by this act. The one of the most important issues with the HMA, is that
it puts excessive stress on ceremonies customs like ‘Saptapadi’ and ‘Homa’
to be performed during a marriage ceremony because a marriage between a woman
and a man as per this act is solemnized when the requisite ceremonies are
successfully performed. If this process is not followed properly, the marriage
shall be declared as void by a court of law and the burden of proving the
successful performance of a custom lies with the party who files, the lawsuit.[13] The problem with customs here is that customs vary from
region to region, community to community and caste to caste. This creates
confusion and ambiguity, enough to make a marriage void in the eyes of law. And
in a patriarchal society like India, this ambiguity, leads to practices where
in a case of Bigamy, the injured spouse files a claim for financial
maintenance, the guilty party (mostly men) circumvent the law by proving that
their marriage was not valid in the eyes of the law, which shall lead to such
claims to fail in a court of law.[14] Moreover, the maintenance laws in India are conditional
to certain ‘norms of behavior’, which bring into question the character of the
wife and wants her to stay chaste. Moreover, the amount the husband must
provide to the wife as maintenance is left to the discretion of the presiding
judge, which in a patriarchal society, like India tends not to be favorable to
the wife.[15]
Restitution
of conjugal rights under the HMA provides for both the spouses to cohabit when
they have separated, on the demand of either of the spouses, against the others
will by a court of law. The intention behind is that it shall help the spouses
to reconcile but often, it does more harm than good as it can damage the
relationship even further. This provision has seen a lot of legal turmoil in
India, where it has been removed or upheld multiple times, but finally in 1984,
a regressive judgment by the Supreme Court in, Saroj Rani v. Sudershan
Kumar,[16] upheld
this provision.
Irretrievable
breakdown of matrimonial relationship, falls under ‘No-fault’ Divorce theory,
(where neither party is at fault but cannot make the marriage work), is still
not considered a valid ground for divorce. But the Supreme Court using its
powers under section 142 of the Indian constitution,[17] may grant
divorce on such grounds (under HMA and SMA). But to obtain this, the appellants
must follow the proper hierarchy of the legal system, that is, they can only
petition the Supreme Court as a last legal recourse (as divorce is not a
fundamental right), making the process very lengthy and tiresome.[18]
Although, some Hindu personal laws are evolving like the
Hindu Succession Act 2005,[19] where women are being treated almost equal to men, in
terms of inheritance. But this law is not fool proof because when the wife
dies, the husband inherits everything belonging to her (in case of no children),
instead of it being divided amongst her husband, and her parents equally, which
is the case when the husband dies. And thus, this provision violates
‘right to equality’ guaranteed under Article 15(1) of the constitution.[20]
Christian
Personal Law
Section 10 of the Indian Divorce Act 1869, applicable to
Christians is gender biased as women are placed under ‘double discrimination’,
against the men of their own religion, because the husband may obtain a divorce on a single ground
(adultery), but women may only obtain divorce, if they have at least 2 separate
and independent grounds for divorce (like adultery and cruelty).[21]And certain provisions of Christian
personal laws vary from region to region, where those places have their own
version of their personal law, which tend to be even more outdated and archaic.[22]
John
Vallamattom & Anr. v. Union of India,[23] while
striking down a discriminatory provision in Christian succession in the ISA the
Supreme court of India referred
to D.S Nakara v. Union of India,[24] where it said that Article 14 forbade class
legislation but permits reasonable classification for creation of legislation.
The court here laid down twin tests of classifications which need to be
satisfied, first is ‘intelligible differentia’ that distinguishes if the
persons or things that are grouped together are being left out or not and the
second test is that ‘differentia’ shall have a rational nexus to the
objective being desired to be achieved by the statute in question. The court
also opined that this provision of reasonable classification and the tests are
there in essence to help the people hit by the rampant inequality present in
our society. While delivering its judgement
the Supreme court
observed that if a UCC had existed such discrimination could have been avoided
as it would treat all religion personal laws equally irrespective of religion.
Moreover, the court also noted that Article 25 of the constitution of India,
that gives the people in India the freedom to profess and practice religion of
their choice.[25] And that while article 25 and article 26
guarantee freedom of religion but article 44 creates distinction between
religion and personal laws. The court further observed that marriage,
succession, and other personal law matters of a secular character do not fall
under the guarantees enshrined under Article 25 and 26 of the Indian Constitution.[26]
Parsi
Personal Law
Although the Parsi succession law provides for the daughter to inherit her
parents’ possessions equally along with their son, but the amendment is still
discriminatory, where a non-Parsi women cannot inherit her Parsi husbands’
possessions (only their children can). Moreover, the children of a Parsi women
who is married to a non-Parsi man, then their children are not Parsis and the
Parsi women also loses her rights to inherit her Parsi parents’ possessions.[27]
Goa Civil
Code
Goa is the only
state in India which technically, has a UCC, as when it was incorporated into
India in 1961, it was allowed to keep its own civil code. Locals of Goa are
governed by a single code irrespective of religion, ethnicity, and linguistic
affiliation.
The positive
here is that the married couple jointly hold ownership of assets (unless a
prenuptial agreement is present). Practice of polygamy or verbal divorce is
prohibited by Muslim men in Goa. And in inheritance laws there is no
discrimination based on gender.
But the Goa
civil code is not truly a UCC because of it now being outdated and the
following religious specific provisions. Where Hindu men can practice bigamy if
wife fails to deliver any child by the age of 25 years or male child by the age
of 30 years. Special provisions for Roman Catholics to get married in a church
are present, whereas all other marriages shall only be valid if legally
registered. Divorce between Hindus is only possible on grounds of adultery by
wife. There are also inequalities present in case of adopted and illegitimate
children.[28]
Special
Marriage Act
Modern day India people are entering into relationships which were earlier
considered as prohibited relationships by the society at large. Inter-
caste, inter- regional, inter-community marriages, etc. come under the Special Marriage Act 1954 (SMA),[29] and under this act the married couple is not governed by
the personal laws of their (different) religions. This act
also addresses divorce, adoption, inheritance, etc. for couples who have been
married under it, that is marriages are solemnised irrespective of the religion
or faith followed by either party. One major problem with the SMA is that it is
limited to the extent that couples of the same religion cannot get married
under it and thereby cannot use the benefits it has over other personal
laws.
Cumulative
Reasons
India requires a UCC because every
single personal law in some form or the other violates the Articles 14,[30] 15,[31] 19,[32] and 21,[33] fundamental rights under the Indian constitution that
guarantees right to equality, equal treatment for all irrespective of caste,
race, gender, religion, freedom of expression, right to life, right to privacy
and more. Furthermore, the people heading these religious personal law boards
are the people who misuse these laws in their favor. And as India is still a
patriarchal society, it leads to orthodox males making discriminatory personal
laws for all. Moreover, if someone dares to speak up against the discriminatory
provisions of their respective religion, then they are often boycotted by their
families, friends, and community.
Restitution of Conjugal rights (defined
above) was inserted by the British in their law for their people,
which the Indian law makers used as precedent to insert it in Indian personal
laws, but the British abolished this provision in 1970. This practice is present in every personal law in India (including the
SMA), even though it has been abolished in the country from which it originated
because of it being discriminatory, decades ago. So, the time has come for this
provision to be removed from every personal law in India, which may only be
possible through a UCC.
Conversion is a ground for divorce under
every religious personal law in India, which is against the fundamental rights
as India being a secular country allows everyone to profess any religion (or no
religion) as they see fit for themselves. Thus, this right should not be
curtailed or limited like this.
The argument that individual personal
laws should be amended instead of enacting UCC is very weak because since
Indian Independence the progress in this regard has been very slow and has not
been uniform, and instead, it has created a lot of disagreements within every
religion and a feeling of being discriminated against by other religions and
communities, which shall lead to widespread discontentment and chaos.
A
Law Commission was appointed by the Ministry of Law and Justice in the year
2016 to find the extent to which Uniform Civil Code (hereinafter know UCC) can
be implemented across India. A report titled “Consultation Paper on Reform of
Family Law” was submitted in 2018 by the Law Commission. The findings called
for action pertaining to further amendment and codification of Personal Laws,
particularly in the fields of succession and inheritance and inheritance in
India. In essence implementing UCC would align with Law commission’s findings.[34]
The Supreme
Court, in the case S.R. Bommai v Union of India[35] judgment
mentioned that by safeguarding the socio-cultural diversity and acknowledging
the vast variety of people, beliefs, cultures and languages by placing and
preservation of different types of people, beliefs, languages and placing them
in a united manner is the essence of secularism in India. It may be inferred
from the language that this judgment would welcome a secular UCC because
without one discrimination and division based on religion would remain
prevalent in India.
Why Uniform Civil Code is (Still) Not a Law?
Since Indian independence UCC was and is
still being portrayed as an assault of religion, which thwarts secular reform.
This has been propagated by greedy male chauvinists, so-called political
pandits and defenders of religion. But what the UCC should aim at is secular
reform in discriminatory provisions and acts present in the religious
traditions and personal laws.[36]
Politics
The implementation of a UCC
may lead to massive protests from personal law boards and some people of India.
Another point which should be taken into consideration is that, after the
initial turmoil, a comprehensive and inclusive UCC might be welcomed by people,
especially, the youth of the country (who would benefit the most).
Politics and the politically
charged nature of religion, are the primary reasons as to why UCC is an
unenforceable proposal in the Indian Constitution, whereas it should in fact be
an enforceable fundamental right as envisaged. Furthermore, on an international
level it shall portray India as a country which has entered the 21st
century as an inclusive state where it strives to achieve equality for all,
which shall in turn help India become a modern-day superpower in all aspects.
LGBTQIA+
Community
The lack of progressive UCC
and regressive personal laws which ridicule or ignore marriage for the LGBTQIA+
community, is being used as an argument by Tushar Mehta the Solicitor general
of India representing the Central government, to stipulate that, “such
marriages are not recognized in India,…same sex marriage is not comparable with
the traditional family unit concept present in India and is against the age old
customs, traditions, cultural ethos and societal values,…there exists a
legitimate state interest in limiting the recognition of marriage opposite
sexes only”. And on 26th October 2021, the Solicitor General,
further stated that, “marriage is between a biological man and Biological
women (thereby excluding the transgender community) and that there
appears to be some miscommunication based on Navtej Johar case…. which has
nothing to do with marriage…. Supreme court judgment decriminalized a
‘particular human behavior’ …a penal offence…. but the said judgment was
neither intended to nor did in fact legitimize the human conduct (marriage
rights for the LGBTQIA+ community) in question”.[37] This aspect is slowly but steadily coming into light is that the central
government led by the BJP who is known for being conservative in nature, in
their poll manifesto promised a UCC, the above shows that the government might
be trying to avoid making the UCC because then they might have to address the
issue of making the UCC inclusive of
provisions of marriage and other personal laws for the LGBTQIA+ community of
India because any stance against the LGBTQIA+ community might hurt and tarnish
its ever growing international relations and popularity as a secular and
inclusive democracy.
Legal
requirements
India is in violation of International
Covenant on Civil and Political Rights, 1966, and International Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979. The
Indian government has ratified these treaties where it has declared that it
would promote gender equality under all its national laws and as per international
law if a country ratifies a treaty, it becomes duty bound to take actions to
implement its provisions in their country. One can clearly infer that India is in
violation of these treaties and the Indian government also accepts the
violation of these treaties.[38] But the defense the government takes is that, in India
traditional matters related to marriage divorce and other personal laws are
governed by Religions personal law boards, where the Government does not
interfere because there is an absence of demand for change from individual
religious communities. Which is wrong as Clause 2 of Article 25 which protects
freedom of religion expressly states that “this article shall not affect the
operation of any existing law or prevent the state from making any law” and hence, does not supersede Article 15 which provides
for equality for all irrespective of gender, religion, race or caste or prevent
the parliament making any laws in this regard.
Gender inequality and unequal treatment
of people is ingrained in every religious personal law, thereby, the need has
arisen to break these traditional barriers of community, caste, race, region,
language, and gender, by challenging the archaic and outdated social order by
formulating a comprehensive and all-inclusive UCC.
In
the short-term implementation of a UCC Might not be feasible or turn out to be
expensive but the situation would stabilize in the future because the UCC would
first and foremost separate religion from personal laws, and the UCC should have
straight forward laws of inheritance which would lead to straight forward
application of personal laws and less ambiguity and thus, the burden on cases
on the judiciary should reduce and thereby expenditure.
The law should be made in such a way
that its provisions should be irrespective of religion. SMA may become the potential model on which UCC could be
based upon because it provides for personal laws irrespective of religion. But
this act is also not fool proof and needs to be updated to be in line with
current times, and it must make provisions which are inclusive of rights for
LGBTQIA+ marriages and other personal laws. Examples of progressive personal civil laws may be taken from the United
States of America and majority of the European countries, who have or are
updating their personal laws to be irrespective of religion and inclusive of
marriage and other rights for the LGBTQIA+ community. And as some major
provisions of the Indian constitution are inspired by principles of other
constitutions, here as well, the personal laws of these countries may be taken
as a model along with SMA, for formulating an India specific UCC. Moreover,
public may fear that a UCC would be lacking in some respects or may become
outdated in the future, (like the one present in Goa), but the solution for
this is, periodical amendments, where the code may be updated to suit the
present-day needs of the public.
Hence, the need of the hour is for a
UCC, made irrespective of religion and inclusive of all, leaving the ritual
embodied in religion may remain intact but which should only be for ceremonial
purposes and within the bounds of the constitution of India.
[4] Muslim Women (Protection of Rights
on Divorce) Act, 1986, Act No. 25, Acts of Parliament 1986 (India).
[7] Muslim
Women (Protection of Rights on Marriage) Act, 2019, Act No. 20, Acts of Parliament 2019 (India)
[11] Shabbeer Ahmed & Shabeer Ahmed,
Uniform Civil Code (Article 44 of the Constitution)
Dead Letter, 67
IJPS, 545 (2006), Accessed 29 October 2021.
http://www.jstor.org/stable/41856241.
[14] Vijender Kumar, Bigamy and
Hindu Marriage: A Socio Legal Study, 59 JILI, 356 (2017), Accessed 29
October 2021, https://www.jstor.org/stable/26826614.
[15] Asha Bajpai, How
Hindu Personal Law Can Be Reformed, Times of India, Accessed 21
October 2021.
https://timesofindia.indiatimes.com/india/how-hindu-personal-law-can-be-reformed/articleshow/60726036.cms.
[20] See supra 13 at 8.
[22] Flavia Agnes, Reforms as If
Women Mattered A Critique of the Proposed Christian Marriage Bill, India
together: The news in proportion, accessed October 29, 2021,
https://indiatogether.org/manushi/issue119/reforms.htm.
[23] (2003) 6 SCC 611.
[24] AIR 1983 SC 130.
[25] INDIA
CONST. art. 25.
[26] INDIA
CONST. art. 26.
[27] Sanaya Dalal, A Parsi Woman's
Perspective on Being Denied Basic Rights, NDTV, Accessed 29 October 2021.
https://www.ndtv.com/blog/a-parsi-womans-perspective-on-being-denied-basic-rights-1768775.
[28] Partha S. Ghosh, ‘The
politics of personal law in South Asia: Identity, nationalism and the Uniform
Civil Code’, 19–22.
[31] See supra note 8 at 6.
[34] Saxena, S., Badola, P., Gupta, S., Belove, O. and Mishra, A.,
2018. Consultation Paper on Reform of Family Law. [online]
Lawcommissionofindia.nic.in. Available at:
[Accessed 4 October 2022].
[35] AIR 1994 SC 1918.
[36] B. G. Verghese, Who's afraid of
a Uniform Civil Code?, bgverghese.com. Accessed 29 October 2021. https://bgverghese.com/code.htm.
[37] Centre to HC Marriage is
Between Biological Man and Biological Women, The Indian Express. Accessed
29 October 2021).
https://indianexpress.com/article/india/centre-to-hc-marriage-is-between-biological-man-and-biological-woman-7590713/.
[38] Jyoti Rattan, Uniform Civil
Code in India: A Binding Obligation Under International and Domestic Law, 46
JILI, 577 (2004). Accessed 29 October 2021. http://www.jstor.org/stable/43951938.
Article Information
UNIFORM CIVIL CODE - WHY & WHY NOT YET. By: Kartikay Singhal
Authors: Kartikay Singhal
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.