Desirability of Uniform Civil Code in India- Need of the hour

Saksham Bhardwaj[1]

Abstract

The Concept of Uniform Civil Code (UCC) can be understood as the weapon for strengthen the rights of the weaker sections of the society. It can be said that it is a body of common set of rules regardless of religion, caste, sex, place of birth or any of them. The basic object behind bringing of Uniform Civil Code in India is to replace the existing regime of personal laws and formulate a path for the new set of rules governing people from different religion, caste etc. If UCC is implemented as envisaged by our constitutional framers, then it will be proved as a boon for the Indian democratic setup. This paper will going to look into various aspects like advantages of UCC, judicial contribution, role of especial marriage act, gender justice etc. This paper will also carve out certain suggestions which will serve as a model for the Indian UCC setup and it will ensure a robust mechanism of the UCC in India.

Introduction                     

Uniform Civil Code can be understood as a common set of ruled that gives the idea of same set of rules regardless of their caste, religion, sex etc. This has now-a-days being emerged as a most vouched up in India. Uniform Civil Code (UCC) is the demonstration of the insight of our people in contemporary progressive nation, which shows an upward movement from the religion, race, sex, caste and birth discrimination. UCC tries to replace the regime of personal laws so that the body comprises of common set of norms will govern all personal matters, irrespective of any religion. Such laws will put forward the issues and solve the problems associated with things like Marriage, the Maintenance, divorce and Succession etc. If UCC is implemented as envisaged by our constitutional framers, then it will be boon for the Indian democratic setup. In the current scenario in India people are still being dominated by the regime of their own personal laws, which is covering all aspects under its reach. Our Constitution framers with a goal to have uniform system in the law have provided Article 44 that runs as a common string like: “The State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India.” The Uniform Civil Code is a term which has got its birth from Civil Law Code. The basic aim behind the Uniform Civil Code is to remove the complexities in the form of evil practices, which are still being followed in many religions under their personal laws. After UCC implementation all religious communities shall be judged on a same level in matters concerning civil nature and will never be governed by sets of different personal legislations. So in this spirit the significance of uniform civil code can be forecasted.

Advantages of UCC in short

The following can be understood as the advantages emanating from the model of UCC, which will benefit India in the long run, as discussed: –

  1. The Model of UCC will ensure gender equality.
    1. It will boost the national integrity by removing all sorts of disparity in Indian setup.
    1. The UCC will be embarked on the Indian Constitution foot step, which talks about the principle of secular state.
    1. The provisions of UCC will definitely going to ensure social justice under the Indian gender based disparity society.
    1. It will bring our women in the mainstream of our society under the umbrella cover of UCC.[2]

Active judicial role in promoting UCC

There are some of the landmark judgments pronounced by Hon’ble Supreme Court of India and High Courts, which are categorically discussed below:

State of Bombay v. Narasu app mali[3]

In this case the validity of the act which abolishes bigamy in Hindu community was challenged. The then CJ of Bombay High Court J. M.C. Chagla observed “that one religion might be prepared to recognize the social reforms, another might not be”. However J. Gajendradgkar said that legislative classification made between Hindus and Muslims is reasonable and not violative of the equality provision enshrined under Article 14 of our Constitution. He said that the validity of Hindu Bigamous Marriages Act was challenged particular on grounds that first the personal laws are applicable upon to the Hindus and Mohammadans to the union of India are subject to part III of our Constitution and second that these personal laws does not allows polyandry and only polygamy. So it was also argued that these laws are discriminate on sex basis against the women only. If that is allowed, the provisions of the personal laws which permit polygamy are against the constitution article contained in the form of Article 15(1). So in this case the Court has categorically held that it upholds the validity of the said legislation and also said that this kind of legislation is a step towards securing the Uniform Civil Code.

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Mrs. Zohra khatoon v. Mohd. Ibrahim[4]

In this case a question of law was raised before the court and the High Court of Allahabad has cancelled the orders of the maintenance allowance. The matter than went before the Hon’ble Supreme Court which has overruled the ruling of High Court of Allahabad on by saying that under Clause1 (b) of the explanation appended to section 125, under this here “the wife will continues to be the wife even though she has been divorced by her husband or has otherwise obtained the divorce and has not remarried”. So the maintenance will be granted to the wife.

Sarlamudgal v. Union of India[5]

In this case the question involved before the court is that whether a Hindu husband who is married under Hindu law, by converting into Islam can contract a second marriage? Whether the husband will be the guilty of the offence made under Sec. 494 of Indian Penal Code (Bigamy)? Supreme Court observed that “a marriage celebrated under a personal law cannot be said to be dissolved through the application of another personal law in which one of the spouse had converted and the other refuses to do same. Where a marriage took place under Hindu law if one of the parties is allowed to dissolve the marriage through adopting and enforcing a new provision of personal law than it would amount to tantamount to destroying the existing rights of the other spouse of same marriage who wishes to continues to be a Hindu.” Thus the court has categorically dissolved the second marriage performed by the husband after looking into the Hindu Marriage Act and held the second marriage as void marriage. Moreover defendant was held liable for the offence of bigamy under section 494 IPC.

Mohd. Ahmed Khan v. Shah Bano Begum[6]

In this case the husband appealed against the judgment of MP High Court which is asking him to pay to his divorced wife Rs 179 per month, which enhanced the paltry sum of Rs 25 p.m. originally which was originally granted by the Magistrate. The parties were married for 43 years before elderly wife was thrown out of her husband’s home. For two years the husband paid Rs. 200 per month. But when these payments ceased she filed case under section 125 of Cr. P.C. The husband than dissolved the marriage by pronouncing a triple divorce. The principal issue before the Court was the interpretation of Section 127(3) (b) Cr.P.C. in which a Muslim woman had been divorced and paid got her mahr. Will it indemnify the husband form his obligation under Section 125 of Cr.P.C. A five-Judge constitutional Bench of this Court said that “the Code of Criminal Procedure controls the proceedings in such matters and will overrides the personal nature law of the concerning parties. If there will be a conflict situation between terms of the Code and the rights of individuals, the terms will prevail. This Court pointed out that mahr is more closely connected with marriage than divorce. Here the fact is significant in the context of Section 125 of Cr.P.C. even though it is not relevant under Section 123 (3) (b) of Cr.P.C.” Hence this Court held that a sum payable on divorce towards the wife is legitimate within the meaning of Section 127 (3) (b) of Cr.P.C and mehr cannot absolves husband from its liability under section 125 Cr.P.C.

Thereafter, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 for political motive of ruling party. However the Act’s Constitutionality validity was challenged.

Daniallatifi and another v. Union of India[7]

In this case, the constitutional validity of the above stated act was challenged. The preamble to the said Act is based out to protect the rights of the Muslim women who have got divorce from their husband. Section 3 opens up flood gate with a clause having overriding effect by saying that a divorced woman will be entitled to “a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. A comparison of these types of provisions with that of Section 125 of Cr.P.C shows those requirements under Section 125 and its purpose is to prevent those who are unable to maintain themselves. Even under the said Act, the parties can agree that the provisions under Section 125 Cr.P.C. can still be attracted. Moreover, the Magistrate has been conferred with such power so that he can make appropriate provisions for maintenance under the very Act. Hence the Act is very much constitutional.[8]

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All the above cases have some way or the other had always tried to foster the concept of UCC in India by way of judicial interpretations of constitutional provisions.

Model of UCC (Goa)

Goa can be termed as the only state in India, which has the UCC. In Goa, Hindu, Christians, Muslims all are bound by the common civil code rules to resolve issues like marriage, divorce, succession etc. When Goa became free from Portugal in the year 1961, all Indian laws were passed on to this state, except the regime of family laws. This falls under the Portuguese Civil Code. Under this PCC, everyone married under this civil law will have equal property rights, along with their children. For the state’s Catholic population they can solemnize their marriages in the Church after declaring intent of marriage before the civil registrar.[9] However for non-Catholics the registered marriage only at the office of the (Civil Registrar) shall be recognized. Infect for Hindu’s, the Bigamy shall be allowed only when their will be no legal heir (male). However in the case of Muslim religion, if one marriage has got registered than, such a Muslim husband cannot contract second marriage.

Role of Special Marriage Act, 1954

This law is practiced and is being prevailing in our country so that the couple can have their marriage outside the limits of their own personal law. This law is applicable everywhere except the state of Jammu and Kashmir because of Article 370. This law is almost quiet similar to Hindu marriage act 1955. This act determines polygamy as illegal. The practice of divorced shall also governed by such law, if marriage contracted. But for divorce there are certain sections that are only followed in the region of Goa like Muslim people who have got their marriage registered cannot have more than one wife.[10] Moreover under Special Marriage Act the consent of both the contracting parties to the marriage is essential for getting the certificate is issued. Under Section 12 (2) of the said act, party is free to solemnize the marriage as per their own form.[11] So this kind of religion neutral law can be said to be the foundation stone for UCC.

Concept of gender justice (female centric)

Gender justice is used sometimes as the tool which has rightly strengthen women’s rights through incorporating legal dynamic changes under the existing law and strengthen women in economic terms and social sorts of policies.[12] The Preamble of our Indian Constitution begins with words like “We the people of India….” thereby including men and women of all religions and to maintain status quo. Thereby it ensures the dignity of our women. Our Indian Constitution special rights to women like, under Article 15(3) it basically ‘empowers the State to make special provisions for the woman’. Under Article 39(d) it says that ‘State shall direct its policy towards securing equal pay for equal pay’ along with Article 14 & 16. Under Article 42, ‘State has an obligation to make provisions for securing just and humane conditions of work and for maternity relief’. Moreover reservations made in Article 243D (3) (4), 243T (3) (4) are meant for empower our women politically. There were other instances when the women centric laws were enacted to prevent them for social evils like Dowry Prohibition Act 1961, Child Marriage Act 2006 etc.

The recent issue of triple divorce needs to be discussed, which gives unlimited unilateral powers to male person to divorce his wife by pronouncing 3 times divorce. This practice has been widely misused to exploit the poor strata of women or the girls. Once the evil desires of the man are over, man takes the weapon of triple talaq to get rid of his wife. This leaves the Muslim women in the state of destitute. They are always in the fear of getting divorced even for the petty issues. This combined with the renowned judgment of Shah Bano leaves a divorced woman in deep state of trouble.[13] Hence we need strong tool of UCC to overcome the practice of Triple Talak, as it has been already done away by the SC on 22/08/2017 in the case of Shayaro Bano v. Union Of India &Ors.[14] Infect, the bill which was passed by the Lok Sabha in the last winter session is an appreciable step by way of declaring the practice of triple divorce as illegal backed by punitive sanctions.

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Challenges to UCC

The biggest roadblock in bringing UCC is the drafting of legislation in the form of this civil code. It poses some essential questions like should UCC be a common set of all personal laws? Should it be a new legislation in consonance with constitutional legal mandate? It was criticized several times that UCC will only be a reproduction of existing Hindu Law. The strata of society which is against the implementation of UCC says that in situation, a UCC might be an object to safeguard citizens’ rights. But India has moved much ahead since constitution was drafted. However, the vote bank politics which has ruined our nation is sometimes against the proposal of UCC because they want to seek vote in the name of cat system. If all Indians follow same civil code, then politicians will have to bribe any community in return of their votes. The challenge to the UCC could be the tool of triple divorce provided under the Muslim law, which is beneficial to the Muslim man. It is the high time to get red off the challenges to UCC. Sometimes there might be another challenge in the form of disturbing communal harmony, by way of riots etc., against UCC. Hence article 44 provides for a uniform code as DPSP which is now imperative for the protection of the oppressed.[15]

Conclusion

In the light of the discussion held above, it can be categorically opined that the model of the UCC for Indian will be very beneficial in the current state of our society along with being beneficial in the long run as well. The UCC has become the necessary tool to our society since the regime of personal legislations is not in consonance with our preamble and its appended declaration i.e. “To constitute India into Socialist Secular Democratic Republic”. It is almost not possible to achieve this goal which is set out in our Preamble of our Constitution without brining UCC. The Government should initiate a draft for a Common Civil Code and table down in Parliament for further analysis. The recent development of declaring triple talaq bill passed by Lok Sabha in the winter session last year, which was in consonance with the recent judgment of Supreme Court, can be seen as the prominent step in the direction of Uniform Civil Code. It must be implemented under the spirit of the Article-44 of our Constitution with quick effect. UCC will improve India’s rank at international level also. This will also suffice the slogan of one ‘‘nation, one law’’. Now it’s high time and we must work to achieve what was envisaged by our constitutional framers.


[1] Advocate, Delhi High Court.

[2] Uniform Civil Code: Advantages and disadvantages, IASSOLUTION (Oct. 09, 2017, 03:47 PM),

https://www.iassolution.com/uniform-civil-code-advantages-and-disadvantages/.

[3] State of Bombay v. Narasu app mali, AIR 1952, Bombay, 84.

[4] Mrs. Zohra khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243.

[5] Sarlamudgil v. Union of India, (1995) 3 SCC 635.

[6] Mohd. Ahmed khan v. Shah bano begum, AIR 1985 SC 945.

[7] Daniallatifi and another v. Union of India, (1995) 3 SCC 635.

[8] Dr. Parminder Kaur, Personal laws of India vis-a-vis uniform civil code a retrospective and prospective discussion, LAWMANTRA  (Oct. 03, 2017, 06:07PM), http://journal.lawmantra.co.in/wp-content/uploads/2015/05/17.pdf..

[9] Namita Kohli, All in the family: Goa Civil Code a model for the rest of the country, HINDUSTANTIMES (Oct. 04, 2017, 07:08PM), http://www.hindustantimes.com/india-news/all-in-the-family-is-the-goa-civil-code-a-model-for-the-rest-of-the-country/story-4ImvwP0OrAST2hUnsZxtiL.html.

[10] Ms. Chitraloungani, Uniform Civil Code In Goa, LEGAL SERVICE INDIA (Oct. 04, 2017, 08:05PM), http://www.legalservicesindia.com/article/article/uniform-civil-code-in-goa-2157-1.html.

[11] Beaumarchais, Evolution of Marriage as a Social Institution (Oct. 05, 2017, 08:03 PM),  http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/8/08_chapter%201.pdf.

[12] Nyamu-Musembi, Addressing Formal and Substantive Citizenship: Gender Justice in SubSaharan Africa, New Delhi and International Development Research Centre, Ottawa (Oct. 07, 2017, 10:20 PM) http://www.idrc.ca/openebooks/339-3/.

[13] Uniform Civil Code and Triple Talaq Issue (Oct. 08, 2017, 09:27AM), file:///C:/Users/DEll/Downloads/Uniform%20Civil%20Code.pdf.

[14] Shayaro Bano v. Union of India &Ors, AIR 2016 SC1852.

[15] Dhruvraj Tomar, Uniform civil code: profusion of personal laws and acknowledgement of secularism in India (Oct. 08, 2017, 09:01 PM), http://jlsr.thelawbrigade.com/wp-content/uploads/2016/02/dhruvraj.pdf.

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