By Mounica Kasturi, SLS Pune
Editor’s Note: Looking at the current political and social scenario that seems to be developing in our country, some of the more progressive and liberal sections have started raising a forceful demand for a unified civil code. This demand is also in line with what the Constitution envisages as a necessary goal needed to be achieved in order to truly secure all citizens justice and equality. This paper attempts to weigh in all the pros and the cons of the issue, thereby helping the reader make an informed choice in the debate.
‘I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.’
-Dr. B R Ambedkar, Constituent Assembly Debates
In India, we have a criminal code that is equally applicable to all, irrespective of religion, caste, gender and domicile. However, a similar code does not exist especially with respect to divorce and succession and we are still governed by the personal laws. These personal laws are varied in their sources, philosophy and application. Thus, a major constraint arises while bringing people governed by different religions under one roof.
Article 44 of the Constitution of India declares that “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.”
A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste, and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations.
Though Dr. B.R. Ambedkar was an extensive supporter of the Uniform Civil Code, he couldn’t get it through more than a status of Directive Principle due to opposition from the members. This directive principle is aimed to achieve, gradually, rather than at once, more far-reaching equality for all citizens. The state has been entrusted with this voluminous task. However, no significant steps have been taken by any government until now.
Codification of laws dates back to the Colonial Period. The Colonial Masters played an instrumental role in shaping the legislative literature of our country. The Lex Loci Report of October 1840 emphasized on the necessity for the codification of Indian law relating to crimes, evidence, contract etc., but it recommended that personal law of Hindus and Muslims should be kept outside such codification. A formal declaration of the policy was made by Warren Hastings in the Administration of Justice Regulation, 1780, where it was pronounced that while dealing with disputes of marriage, divorce or inheritance, people would be governed by their personal laws.
The British codified the law of crimes and made a secular law to deal with the crimes. In the realm of personal laws, very few attempts were made. The attempt for a Codified Hindu law has also failed.
Post-colonial period, the framers of the Indian constitution and Mr. Nehru, were convinced that a certain amount of modernization is required before a uniform civil code is imposed on citizens belonging to different religions including Muslims. The issue was sensitive and a uniform civil code could be seen by the citizens as an invasion on their culture and religion.
The framers felt that certain time should elapse before such a proposal can be undertaken. In the backdrop of partition, where chaos and bloodshed became the order of the day, again bringing an issue regarding religious laws would not have been a wise decision. However, over 60 years later as well, the dream of a Uniform Civil Code remains unrealized.
NEED FOR UNIFORM CIVIL CODE
India is a land of diversities with several religions. The oldest part of the Indian legal system is the personal laws governing the Hindus and the Muslims.
The Hindu Marriage Act, 1955 is the marriage law legislation applicable to the majority population, constituted of Hindus, which is an Act to amend and codify the law relating to marriage among Hindus. Ceremonial marriage is essential under this Act and registration is optional. This act takes care of divorce and maintenance as well. The Hindu Succession Act, 1956 governs succession among Hindus. The Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 are the laws dealing with succession, adoption, and maintenance.
The Indian Parliament also enacted the Special Marriage Act, 1954, as an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorces under this Act. This enactment of solemnizing marriage by registration is resorted to by Hindus, non-Hindus and foreigners marrying in India who opt out of the ceremonial marriage under their respective personal laws. Registration is compulsory under this enactment. Divorce can also be obtained by non-Hindus under this Act.
The Parsi Marriage and Divorce Act, 1936 as amended in 1988, is an Act to amend the law relating to marriage and divorce among the Parsis in India. The Christian Marriage Act, 1872, was enacted as an Act to consolidate and amend the law relating to the solemnization of the marriages of Christians in India and the Divorce Act, 1869 as amended in 2001, is an Act to amend the law relating to divorce and matrimonial causes relating to Christians in India. The Muslim Personal Law (Shariat) Application Act, 1937, The Dissolution of Muslim Marriages Act,1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Muslim Women ( Protection of Rights on Divorce) Rules, 1986, apply to Muslims living in India.
When it comes to the Hindu Law, the problem arising is with the registration of marriages and thus, the inability to nullify child marriages. Child marriages in practically all religious communities in India have accepted practices and so they cannot be registered due to non-fulfillment of the minimum age of marriage. The Supreme Court of India in Seema v. Ashwani Kumar has directed all states in India to enact rules for compulsory registration of marriages irrespective of religion, in a time bound period.
This reform has struck a progressive blow to check child marriages, prevent marriages without the consent of parties, check bigamy/polygamy, enable women’s rights of maintenance, inheritance, and residence, deter men from deserting women, and for checking the selling of young girls under the guise of marriage. The consequences of non-registration of marriages have created a large number of abandoned spouses in India deserted by non-resident Indians who habitually reside abroad. However, implementation of the same is still undermined.
When it comes to the Muslim Law, it is the additional courts that create the problem. The Supreme Court of India on Vishwa Lochan Madan v. Union of India and others issued notices to the central government, State governments, All India Muslim Personal Law Board (AIMPLB) and Darul Uloom, an Islamic seminary, in the matter of the existence of parallel Islamic and Shariat Courts in the country, which is posing a challenge to the Indian judicial system.
A direction from the court was also sought to restrain these organizations from interfering with the marital status of Indian Muslim citizens or passing any judgments, remarks, fatwas or deciding matrimonial disputes amongst Muslims. Till recently, the matter was still pending final adjudication in the Supreme Court of India and no conclusive final decision stands reported on the said issue by the Supreme Court.
The similar problem exists under the Hindu Religion as well with the caste panchayats. They have played a powerful role at the village level in several states of the country traditionally. However, khap panchayats (caste-based village councils) are not elected bodies and their decisions are not enforceable by law, as such extra-constitutional bodies and have no sanctity or recognition in law. They, however, derive support from community recognition. The heinous crimes committed by the Khap Panchayats under the guise of Honour Killing are well noted.
Muslim Law provides for Mehr, an amount to be fixed at the time of marriage itself, as a consideration for the performance of the marriage. This is because the marriage under Muslim Law is a contract and the condition for registration is fulfilled in the Nikah- Nama itself. However, the law doesn’t provide for maintenance for the wife. The Mehr amount itself is supposed to take care of this aspect. Men cannot waive or reduce Mehr.
Only, the wife is allowed. This way the women’s interest in the Mehr is protected. But, other provisions of the Muslim Law discriminate against women. Polygamy is allowed but not polyandry. Muta marriages can be undertaken by the husband. The triple pronouncement of the word “talaq” is enough for a man to give divorce. The woman has to undergo an arduous procedure for the same. This is not the case under Hindu Law. Hindu Law under the Hindu Marriage Act itself provides for maintenance for the wife. Also, the grounds and procedure for divorce are the same for both husband and wife.
Personal Laws pose a contradiction. On the one hand, the constitution recognizes the continued existence of Personal Law, which is why Article 44 expects that India at some later date will have a uniform civil code. On the other hand, there exist several articles, such as Article 14-19 which guarantee equal rights. Since personal laws for various groups are inherently unequal, a divorcee in Muslim law is entitled to different things than in Hindu law, therefore. Article 15 would seem to make personal law unconstitutional.
Furthermore, Article 15 also requires non-discrimination based on “sex”, whereas Muslim Personal Law favors the man in many cases, especially in the issue of divorce and in the issue of polygamy. These issues remained unresolved in the constitution. Personal laws are inconsistent with morality and human rights as well.
The Supreme Court has directed the Parliament to frame a Uniform Civil Code in the year 1985 in the case of Md. Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case. In this case, a Muslim woman claimed for maintenance from her husband under S.125 of Cr.P.C. after she was given triple talaq pronouncements by her husband. The Supreme Court held that Muslim Women have a right to get maintenance from her husband under s.125 and commented that Art.44(3) of the Constitution of India has remained in the dead light.
However, the then Rajiv Gandhi led government has overturned the Shah Bano case decision by Muslim Women (Right to Protection on Divorce) Act, 1890 which curtailed the right to maintenance of a Muslim Woman.
The Second instance was in the case of Sarla Mudgal v. Union of India, where the question of whether a Hindu husband by embracing Islam can solemnize a second marriage. The court held that this would amount to nothing but merely abusing the 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 offense under S.494(5) of The Indian Penal Code, 1860. The judge, in this case, opined that it is high time that a uniform civil code is introduced and that Art.44 be taken out of cold storage.
He commented that “Where more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, anymore, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.”
Another landmark judgment called for the implementation of the Uniform Civil Code. In this case, a priest from Kerala challenged the Constitutional validity of S.118 of the Indian Succession Act, which is applicable for non-Hindus on India. Mr. John Vallamatton, contended that S.118 of 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. It called for the parliament to take concrete steps to enact a Uniform Civil Code. It was stated that a common civil code will help the cause of national integration by removing the contradictions based on ideologies.
THE GOAN MODEL
Goa is the only state in India which has enforced the Uniform Civil Code for all citizens. The Portuguese Civil Code that remains in force even today which was introduced in the 19th century in Goa and wasn’t replaced after liberation. The Uniform civil code in Goa is a progressive law that allows equal division of income and property regardless of gender between husband and wife and also between children. Every birth, death, and marriage has to be compulsorily registered. For divorce, there are severe provisions. Muslims that have their marriages registered in Goa cannot take more than one wife or divorce by pronouncing “talak” thrice.
During the course of the marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce is entitled to a half share of the property and if one dies the ownership over half of the property is retained by the other.
According to the Uniform Civil Code even if the children (both male and female) have got married and left the house, the other half has to be divided equally among them. Thus the parents cannot disinherit the children totally as they can dispose only half of the property in a will and the rest has to be compulsorily and equally shared amongst the children. Taking cognizance of this, we must enact a uniform code for entire India as well.
In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Art.44 of the Constitution, the following suggestions need immediate consideration.
- A progressive and broadminded outlook is needed among the people to understand the spirit of such code. For this, education, awareness, and sensitization programmes must be taken up.
- The Uniform Civil Code should act in the best interest of all the religions.
- A committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community
Article 44 of the Constitution of India requires the state to secure for the citizens of India a Uniform Civil Code throughout the territory of India. As has been noticed above, India is a unique blend and merger of codified personal laws of Hindus, Muslims, Christians, Parsis.
However, there exists no uniform family-related law in a single statutory book for all Indians which is acceptable to all religious communities who co-exist in India. The question is not of minority protection, or even of national unity, it is simply one of treating each human person with the dignity that he deserves; something which personal laws have so far failed to do.
The principle is to treat each person equally and everyone is protected by just, fair and predictable laws.
Times have changed, societies have changed and it is high time that laws change. Education, economic prosperity, agricultural improvements, cross border migration, and western influence has spread its hand over every nook and corner of Urban India.
On the flip side, rural settlements are still struggling with adherence to customary and superstitious beliefs in family matters. A uniform civil code will not only change the entire perception of how families are governed but also change the lives of millions by filling the lacunas in various religious laws. As Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests.
Formatted on February 27th, 2019.