UNIFORM CIVIL CODE

UNIFORM CIVIL CODE

 

By Praneetha Mangu

Uniform civil code is a theory which has been developed from civil law code (a collection of laws that are specifically designed to deal with core areas of private law). India already has a uniform criminal code and civil laws pertaining to contract act, transfer of property act, civil procedure code, etc. And the development of a uniform civil code focuses on unifying the personal laws in the country pertaining to Hindu law, Muslim law, Christian Law, etc. It’s envision is administering the same set of laws which will govern dissimilar people with divergent religions and regions. It involves consolidating all the personal laws in the country and governing the citizens under a common set of secular laws irrespective of the community they belong to. Uniform Civil Code covers the areas of marriage, divorce, inheritance, adoption, etc. The two pillars of Uniform Civil Code is secularism and freedom of religion to every citizen of the country.

HISTORY OF UNIFORM CIVIL CODE

The quest for a Uniform Civil Code began from the colonial period, where the Britisher’s ruled the Nation. During the colonial period (1840’s), the British Government framed uniform laws pertaining to crimes, evidences and contract (based on the Lex Loci Report of 1840) but they did not include personal laws and allowed the citizen’s to follow their own religious traditions and customs. The personal laws (like Muslim or Hindu laws), were kept outside the purview of such codification. The British Government, on the basis of the existence of religious divisions in the country, held that the personal laws would be dealt by the local courts or panchayats and the state would only intervene in any exceptional case. On the Queen’s Proclamation in 1859 relating to non-interference of the state on the matters pertaining to religion, the British Government allowed the citizen’s to follow their own practices. The British Government allowed the citizen’s to practice their religion or traditions, as they were feared of an opposition from the community leaders. After the Colonial Era, when the constituent assembly were set to frame the Indian Constitution, a discussion regarding the Uniform Civil Code arose due to diversity in the religions of India. Few eminent personalities of the assembly, like B.R. Ambedkar, Gopal Swamy Iyenger and others involved themselves in propagating the need for a uniform civil code, whereas few Muslim fundamentalists had a contradictory opinion. The subsequent result was a Article 35 of the Indian constitution which says that, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Article 35 was later renumbered as 44 as a directive principle of state.

CONFLICT BETWEEN UNIFORM CIVIL CODE & SECULARISM

Secularism means that every citizen is allowed to follow his/her own religion and there is equal treatment to all religions in the state. India being a secular country, doesn’t interfere into the religious matters of any citizen. In the case of S.R. Bommai v. Union of India[1], the Justice held that, religion is about an individual’s faith or believe but doesn’t involve any secular activities. Secular activities are enacted by a law. And the conflict always arises between Uniform Civil Code and Secularism. Article 25 of the Indian Constitution states that a person has “Freedom of conscience and is free to profess, practice and propagate” his/her religion, i.e. it guarantees that people have the liberty to follow their own religion and the state wouldn’t interfere. But there are many instances where the government plays a role in the religious activities of the citizens. And this is a violation of secularism.

The very existence of personal laws goes against secularism. The personal laws enacted are themselves discriminatory in nature. For instance, Hindu community follows the Hindu law which is based on their traditions and customs. Similarly, Muslim law is based on Islamic jurisprudence and other personal laws are deep-rooted within their traditions. A Uniform Civil Code when enacted will not interfere in the religious practices of any religion. Instead it will only have common practices with regard to marriage, divorce and inheritance. It doesn’t mean that a Hindu has to forcibly do a Nikah or a Muslim has to perform Saptapadi. A Uniform Civil Code would not oppose the provisions mentioned under Article 25 of the Indian Constitution, it will only lead to a uniformity in personal laws. Customs and traditions which were practiced under the Hindu law have been suppressed and a Hindu Code Bill[2] had been enacted to secularise the community.

The debate here is not secularism of Hindu law but with regard to having a Uniform Civil Code and treating the citizens equally or having Uniform Personal Laws that cater to the customs and traditions of each religion. But under the present scenario, there is a Uniform Hindu Law and all the community members are forced to follow the unified law whereas Muslims are allowed to follow their own customs.

Personal laws in India were never secular in reality. For instance, under the Muslim law a person can have four wives whereas it is prohibited in other personal laws. A Hindu woman after divorce has a right to ask for maintenance, whereas a Muslim women is not permitted beyond the period of iddat[3]. Finally, the practice of the so-called secularism which lead to the of non-implementation of a Uniform Civil Code has not any good the society.

UNIFORM CIVIL CODE IN GOA

Goa is the only state in India which has a Uniform Civil Code, for over 500 years. It has only a single code which governs all the Goans, irrespective of their religion or region. Hence, it is also called as the Goa Family Law. The foundation for this Civil Code has been laid by the Portuguese Civil Code of 1870. The civil code of Goa is applicable only to a Goan[4]. The Civil Code in Goa focuses on the equality between the genders as well as the children. The Goan Uniform Civil Code is a neoteric and liberal law that permits equivalent distribution of income and property irrespective of the gender and to the children. Any marriage, birth or death of a person has to be registered. Under the Goan Civil Code a woman gets equal and fair rights similar to that of a man.

Their focus majorly is on laws relating to marriage, divorce and property. With regard to Marriage Laws, the Civil Code insists that the couple has to compulsorily register their marriage. And if not registered the law doesn’t recognize them as couples.. With regard to Property, if any wealth or property is owned by the spouse, during the marriage it is treated as a joint property. The property held must be registered and if not it will result into community property. In case of divorce the spouse is entitled to half share in the property. And in case one dies the half property is owned by the other. Another clause specified by this code is with regard to the ownership of the children over the property. If the children are married and they leave the house, then also they are entitled to half share in the property. With regard to divorce laws, they are equally fair to both the parties and include severe provisions. In case a Muslim marriage is registered in Goa, then that person cannot have more than one wife. Also by way of Triple Talaq, he cannot give his wife divorce. Also if anyone party is not in consent with the divorce and wants to continue their marriage, then the custody of the child is with that person.

Keeping all the positive aspects aside, there are few flaws in relation to the Goan Civil Code. Firstly, this law allows bigamy with relation to Hindu marriages. If a wife of age 25 years fails to give birth to a child or, by age of 30 years fails to give birth to a male child, then the husband is allowed to have a second wife. Secondly, for Hindus, a person can approach for divorce only on the grounds of adultery. Also, the code has inequalities with respect to adopted and illegitimate children.

APPREHENSIONS OF THE MINORITIES

The Muslims laws are the most rigid laws as compared to any other personal laws. And the woman have to face a lot of discrimination in the name of Islam. Firstly under this law, a Muslim man is permitted to have four wives at a time (Polygamy). Secondly, a man at any time without the consent of his wife, can give divorce to her by saying “Talaq” thrice but a women doesn’t have this privilege. But even if she wants to give divorce, she has to plead a ground[5] and a man need not plead a ground. Thirdly, the women is not entitled to get maintenance from her husband after divorce. Lastly, a Muslim man is permitted to marry a girl of any other religion but a women cannot marry a man of other religion unless, he converts himself into a Muslim. These are few acts which have to be curbed for the good of the society. Also all these acts are against the fundamental rights posed under Article 14, 15 and 21 of the Constitution. Article 15(3) talks about protecting the rights of woman (no law can go against the rights of the women but can be in favour of them) which is a contrary to Muslim Divorce Law. But the minority community have always opposed the Uniform Civil Code. In the 33rd general session of Ajmer, the Muslim community gave a warning to the Government that if it implemented the Uniform Civil Code then they would not tolerate and also they stated that this would violate the fundamental rights framed in the Indian Constitution.

The landmark case Mohd. Ahmed Khan v. Shah Bano Begum is referred to frequently whenever anyone talks about the Uniform Civil Code. In this case, the husband justify his wife Shahbano after 43 years of their marriage. And a petition was filed in the lower court, regarding the maintenance under alimony to be paid to Shahbano for lifetime. But after the judgements were not satisfactory, it was appealed to the Supreme Court. The Supreme Court according to Section 125 of Indian Penal Code, held Shahbano entitled to get alimony for lifetime. But the consequences were so harsh that the Parliament had to enact an act that overruled Supreme Court’s judgement. Hence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 which suggested that a Muslim woman after divorce would be entitled to alimony only for 90days. The enforcement of Uniform Civil Code is the only solution to gender equality and religious injustice.

NEED FOR A UNIFORM CIVIL CODE

1) Promotes Secularism –The existence of a Uniform Civil Code will give rise to secularism in the country as different people of divergent religions or communities will be governed by the same laws. This doesn’t mean that people are not allowed to follow their religion, rather it means that every citizen irrespective of his/her religion would be treated the same. Apart from this, it also eliminates the socio-legal inequalities in the society.

2) Gender Equality – Women under personal laws have limited rights (either Hindu or Muslim law), maybe because of the socio-economic state in which these laws were developed. For instance, a mother cannot be the natural guardian of her child during the existence of her husband[6]. And under Muslim Law, the best example to be taken is Triple Talaq[7] and Polygamy[8].

Similarly, in Christian and Parsi communities, conversion can be the basis of divorce. Hence, the growth of a Uniform Civil Code will help to redress the inequalities that exist between men and a women. It will help in improving the conditions of women in India.

3) Developed Nation –

Having a Uniform Civil Code is a symbol of a progressive nation. It shows that country has progressed and moved away from the discrimination’s made on the basis caste and religious considerations. It helps to build the social structure of the country. It also helps in integrating India as all the citizen’s of the country, irrespective of their religion or caste would be governed under the same code of conduct.

CONCLUSION

The implementation of a Uniform Civil Code in India is a tedious task because of its diversity and heterogeneity of religions. There must be a unified code which would govern all the practices related to marriage, inheritance and divorce. This will reduce the atrocities against women, that people do in the name of religion. Also it will reduce the gender inequality and make the nation a secular country in actual sense. But such a reform can be implemented only when the people are ready to accept the change. And this code must been as an aspect of constitution and not religion. The Uniform Civil Code should when enforced should have a balance between fundamental rights and religious domains. This code should not have any bias on the basis of political and religious considerations. Framing different laws for diverse and divergent religions would create burden on the legal system. But codifying these laws would make it easier for the legal system to make concrete laws. Hence to conclude, the Uniform Civil Code should not only be kept as a directive principal within the Indian Constitution, rather it should be implemented for the good of the society.

[1] (1994) 2 SCR 644 : AIR 1994 SC 1918

[2] Hindu Code Bill is a set of laws which include Hindu Succession Act, Hindu Marriage Act, Hindu Minority and Guardianship Act and Hindu Adoptions and Maintenance Act. These laws were enacted for unifying and secularizing the Hindu community.

[3] the women after divorce can receive alimony only for 90 days.

[4] According to Article 18 of the Portuguese Civil Code 1867, A Goan Citizenship can be acquired by;

  1. birth in Goa, or whose father is born in Goa or whose grandfather is born in Goa
  2. a female by virtue of marriage
  • by naturalisation

[5] Section 2 of the Dissolution of Muslim Marriages Act, 1939

[6] Sec 6, Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor (a boy or an unmarried girl) would be the father and after him would be the mother.

[7] Under Muslim Law, a man can divorce his wife by stating the word “Talaq” three times in a row for the divorce to be finalized.

[8] Under Muslim Law, a man is permitted to have four wives at a time.

2 comments for “UNIFORM CIVIL CODE

  1. Dinesh Patil
    June 24, 2017 at 6:37 am

    Great article. Loads of information. Thanks

  2. Ram C Rao
    June 24, 2017 at 8:07 pm

    Very nice (Advoate)Praneetha. All the best beta and good luck re

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