The Uniform Civil Code and the Triple Talaq Bill

Triple Talak has been a burning issue in the past one year. Questions of its fairness to women and whether it is quranic or not is being answered by clergy and the Courts. The SC finally called the practice unconstitutional and the Bill for the same was proposed in the Parliament. This blog explores further.

On August 22nd, 2017, the Hon’ble Supreme Court of India by a majority of 3:2 declared the practice of Talaq–i-Biddat or Triple Talaq (as known in common parlance) unconstitutional[1]. It was historic as well as a welcomed change in which the Court dared to go beyond conventional approaches and upheld the woman’s right to equality. An aggressive stand by the Government of India submitting that it favored a ban over such flawed and arbitrary practice was a welcomed step too and it has now led us a step closer towards realizing the ideals of Uniform Civil Code as stated under Article 44 of the Constitution of India.

The necessity of enacting a uniform personal law can be realized from the fact that Gender Justice and Gender Equality still remain a distant dream. In order to ensure that every individual is effectively placed on equal grounds it is necessary that in a marriage, both the individuals are given equal footing. This emancipates from healthy marital relationships and a codified law which would protect the rights of every person in marriage from any threat at all costs. The only positive so far towards realizing a uniform civil code has been the codification of Hindu Law.

A sincere effort was taken up by the Supreme Court in the case of Shah Bano[2]. The Constitutional Bench of the Apex Court delivered a unanimous verdict. Fist the court alluded to the religious neutrality of Section 125 of CrPC stating that whether the spouses were Hindus or Muslims or Christians or Parsis, pagans or heathens was wholly irrelevant. Its interpretation was that the underlying purpose of Section 125 was to protect dependants from vagrancy and destitution – thus it saw no reason to exclude Muslims from its sweeping ambit[3]. The Court further stated its deep dissatisfaction over the fact that Article 44 was reduced to mere existence on paper and that the legislature lacked the will to take concrete steps towards realizing the essence of Article 44. By referring to its interventionist approach in matters of religion, it observed, “The role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code……. A common civil code will help the cause of national integration by removing disparate loyalties to the laws which have conflicting ideologies[4].”

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The turning point came in Sarala Mudgal v Union of India[5] where the Apex Court explicitly ordered the Government of India to frame a Common Civil Code to integrate all the communities on the principles of equality and equal justice to all irrespective of their religion, race, caste etc. Alas, it has not fructified into anything substantial yet, the active judiciary has ensured that the personal laws do justice to every citizen of India because the law is divorced from religion.

It is notable that the Constituent Assembly while getting a cold resistance from Muslim groups regarding uniformity in personal laws had struck down all the contentions by arguing that:

  1. India has already achieved uniformity of law over a vast area.
  2. That Though there was diversity in personal laws, there was nothing sacrosanct about them
  3. The secular activities such as inheritance covered by the personal laws should be separated from religion
  4. That a uniform law applicable to all would promote national unity and
  5. That no legislature would forcibly amend any personal law in future if people were opposed to it.[6]

If we take the above into consideration, it can be safely concluded that apart from Judiciary none of the organs of Government have taken an active interest in promoting the essentiality of Common Code. The recent ShayaraBano judgment, therefore, as a step closer to establishing gender justice and gender equality, has more strongly emerged as a ground to bring the uniform civil code to reality. The Triple Talaq Bill, which has passed the Lower House of Parliament, although a bit controversialy, is a welcomed step. We can hope for many such more steps for the legislature to take for a perfect realization of the Uniform Civil Code.

Also read Uniform civil code: the state is duty bound to endeavour

[1]ShayaraBano v Union of India AIR 2017

[2] Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

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[3] Zia Mody, Ten Judgments That Changed India, Sdẻ Books, Penguin Publications, First Edition 2013

[4] Shah Bano case, see footnote 2.

[5] (1995) 3 SCC 635

[6] Constituent Assembly Debates Vol. 7