Constitutional perspective of uniform civil code
India a fastest emerging global power in the world but unfortunately half of its population, the women across the country, struggle to live life with human dignity and respect. Women, irrespective of their class or caste becoming victims in the hands of this societysocially, politically, economically and morally. Daily number of incidents as to the violations of their rights are reported in social media but still the solution to unravel the issue appears to be a mirage.
Our constitution provided certain strong safe guards in Part III for the protection of individual rights irrespective of their differences as to caste, creed, religion, race, sex and place of birth. It has put strong fetters on the state not to make any laws in such a way which may create discrimination on any of the aforesaid grounds. Under the basic feature of Secularism, the state extends its respect to all religions equally. Every religion is left free with a discretion to frame their own personal laws in such away keeping them away from judicial clutch. Though in the beginning of incorporation of these fundamental freedoms in our constitution especially in the domain of religion might have appeared good and reasonable. But the time is drastically changed, women are getting enlightened in all fields and occupying most respectful and demanding positions in all sectors and coming aware of their rights and are in a position to challenge their validity. Therefore they are able to find out the snowball effect slowly in this regard. Of course, anything may continue to happen though it is illogical until it is countered.
It is undisputable and universally accepted principle that one has to give prime importance to one’s religion, tradition, culture and customs. This provision enshrined under Articles 25-28 of our constitution providing religious freedom to all religions. It paved the way to frame personal laws as suiting to one’s religion and culture. But under the guise of this religious freedoms, personal laws come in frequent conflict with other fundamental rights guaranteed under Articles 14-15,and Article 21. Almost all personal laws in one way or the other clearly manifesting certain gender discriminatory provisions.
If we analyze the Articles in our constitution like 14, 15, 21which act as a watchdog against any inequality, discrimination, inhuman treatment and violations of our basic rights based on gender bias. Yet in practical instances we proved ourselves a failure in achieving the satisfactory outcome. India is developing at a rapid speed technologically, scientifically, economically and intellectually. Recently India bagged the credit as a first country in the world history by launching 104 satellites in a single rocket on Feb.15 2017 which is a tremendous success. It is such a great achievement in which women astronauts (Ritu karidal, Nandini Harinath, Anuradha TK etc.,) played significantly a vital role.., despite these achievements women in India continue to be discriminated. The declining sex ratio in India amply portrays the discrimination shown towards women at the stage of birth itself. It is realized that the long run supremacy of male over female in all respect in the patriarchal society in India is highly responsible for arresting the empowerment of women. India a cosmopolitan country with a mosaic of faiths, cultures, customs and usages maintain unity in diversity. But still if we analyze closely the internal structure as to certain laws and their application since long time shows a stigma on the position of women. The objective of my paper is to focus the status of women and their rights in the light of constitutional perspectives.
I. Personal laws in conflict with Fundamental rights
II. Enforcement of uniform civil code to the entire nation as to the areas of marriage, divorce, maintenance, adoption and inheritance irrespective of one’s religion, custom or practice.
I. Fundamental rights enshrined in part III of our constitution is heart of our constitution. Since it guaranteedCivil liberties such as equality before law and equal protection of laws, freedom of speech and expression, religious and cultural freedom, freedom to form assembly, practice religion and finally the rights to constitutional remedies in the form of writs and also at the same time providing severe punishments in IPC or other special laws.It imports the meaning that everyone is equal before the law that is right from king down to slave without any discrimination as to caste, creed, religion, race, sex and place of birth. Our country is seat of so many religions since it incorporated the feature of Secularism in 42nd amendment, 1976 and also given fundamental freedom as per Article 25 to 28 to profess, practice and propagate one’s religion. Under this grab of cultural and religious freedom, many legislations such as Hindu Marriage Act, 1955, Hindu succession Act, 1956, Hindu Maintenance and adoption Act etc., were legislated with the insertion of a clause if custom permits. It means through one side statutory law support appears to be given significance but the other side letting the society to continue their practices under customary law by adding a clause that if custom permits. It means any provision may be ignored if there is any corresponding customary principle in force.
Certain provisions in the said legislations appear to be quite gender discriminatory, confusing and conflicting. The provisions such as triple talaq under Muslim law, giving no right of adoption to Muslim communities, providing no family status and also no chance for claiming maintenance to second wife under Hindu marriage Act while allowing polygamy under Muslim law (all Indian nationals only) appear to be very conflicting and confusing. If we see Sec.5 (i), it speaks about the condition of valid marriage and declaring it as void under section 11 if the condition is broken. This is very much appreciable. But again contradicting provision under Section 16 of Hindu Marriage Act provides a cushion for conferring of legitimacy on the illegitimate children who are begotten out of void marriage. To what extent this provision is justifiable? It may be said that children should not be ignored for the mistakes committed by their parents. Then is it correct to ignore the rights of women of second marriage? Again here also a discrimination between children and women. When law is recognizing the children of void marriages, is it not validating void marriage as a valid one by conferring legitimacy? It means what we are not accepting directly, accepting it indirectly. When both children and women are considered as vulnerable sector, why again there is difference? So my contention is that there must not a provision for conferring legitimacy on illegitimate children. Unless such rigid provision is inserted, the bigamous situation cannot be curbed. The situations of bigamous and polygamous are very high among Hindus only as per some of the survey reports. But it is going uncontrolled, where the women victims are exposed without proper redress. Of course there are number of cases left unexplored.
Article 14 prohibits class legislation but reasonable classification is allowed but it paved the way for making personal laws as per one’s whims and fancies under the grab of cultural freedoms given under Art.25-28. It draws a conflicting opinion that under one guaranteed freedom, we are allowed to frame and regulate our personal laws at the same time leading to conflicts to the other fundamental right guaranteed in Articles 14-15. Therefore it is a high time to judge what is reasonable classification? I strongly feel that under the grip of religious culture and customs framing personal law in such a manner keeping the female gender to suppression and torture is clear cut violation of our fundamental right as guaranteed under Article 14. And again keeping those laws beyond judicial review is abhorrent.
The center's categorical approach that is personal laws must be in conformity with constitution is very appreciable since it will assist Supreme court in determining the validity of certain practices like triple talaq , polygamy because these practices directly hit the rights of women to their life and dignity.
My fundamental argument is whether constitutional protection extends even to those laws which are not in conformity with other fundamental rights given in the constitution.
Every religion or community may be at liberty to preserve their most essential integral part of their custom. But it should not extend to complete area covering it under propagation of their religion by encroaching upon with one’s fundamental rights. Article 25 though provides fundamental freedom to practice and propagate one’s religion however that should not go against the concepts of equality and dignity which are fundamental rights and the courts do have the power to adjudicate whether those practices are in violation of fundamental rights or not.
There is a strong protest from Muslim women that the practice of triple talaq must be invalidated. Earlier occasions also, the courts have adopted the view that Islam does not sanction divorce without reason or any attempt of reconciliation. Even for adopting divorce based on triple talaq some conditions are to be fulfilled. There are many contentions that triple talaq procedure has to be spread over a specified period of time during which there are two opportunities to revoke it. Only the final one is making it irrevocable. But in reality it is not happening.
The Bombay High court expressed its opinion it may be good in law but bad in theology. It is not recognized in the rest of the Muslim countries but only recognised in India. It is clear cut violation of Article 14 right to equality before law.
Even Articles25-28 are not absolute in their nature and the same is subjected to certain restrictions on the basis of public order, morality and health. Maintaining the status and respect of woman falls under morality and the announcement of talak and thereby obtaining divorce is against ethics and morals therefore it is strongly condemned and at the same time seeking for implementation of UCC by harmonising all the personal laws. It is a high time to seek that India must have Uniform civil code dealing with marriage, divorce, succession, inheritance and maintenance. If it is implemented it fetches so much benefit for women folk not only domestically but also internationally.
The Shah Bano begum’s case 1985 2 SCC556, which was a leading case, where the woman claimed maintenance from her husband under Sec.125 Cr.p.c after she was given triple talaq drawn the attention of entire nation where Supreme Court directed Parliament to frame UCC. The Supreme Court clearly provided that the Muslim women are entitled to maintenance from her husband under Section 125 Cr.p.c even after she has already received dower, when her economic position is so weak and at the same time the husband’s financial position is sound that is nothing wrong to claim for maintenance under this provision. In this case the court held that Article 44(3) is remained as dead letter in the constitution and Justice Y.V.Chandrachud made following observation in this connection that is “A common civil code will help the cause of national integration by removing desperate loyalties to law which have conflicting ideologies”. At this juncture the then Prime Minister Rajiv Gandhi, Congress led government could drive the parliament to frame Muslim women (protection on divorce) Act,1986 which diluted the judgement of the Supreme court as to the claim of maintenance under Section 125 of Cr.p.c. It is also opined by the government that it is only Supreme Court direction to frame UCC which is not binding either on executive or on legislature since it involves personal laws, no one can interfere with it unless a protest comes from within.
For the second instance in SarlaMudgal Vs Union of India, 1995 3 SCC635 the Supreme Court again called for implementation of UCC and it also detailed how personal laws of different religions are in conflict with each other. Under Hindu marriage Act, bigamous marriages are void marriages and also attracts punishment under Section 494 of IPC but whereas under Muslim law polygamous are recognised. Secondly under Hindu law adoption is recognized and under Muslim law it is not recognized. Inheritance or maintenance rights are not given to second wife under Hindu law whereas all the four wives are entitled to maintenance. So if we see like this there are number of varied provisions under personal laws. In SarlaMudgal case it is held that solemnizing second marriage during subsistence of first marriage not a valid one and mere conversion to other religion does not itself dissolve the first marriage. Under such occasions what about the fate of second wife if her marriage is adjudicated as void and what about her status in the society? Is it not violation of her basic fundamental right guaranteed under Article 21 of our constitution?
So I wish to place my point that, leaving the sensitive and most integral part of any religion or custom in one’s personal law and leaving the rest of the area under public law and at the same time keeping the personal laws subject to judicial review to check their validity of practices in the light of constitutional guaranteed framework in the interest of general public based on public order and morality.
II. Enforcement of Uniform civil code to the entire nation without any discriminations as to any religion especially in the areas of marriage, divorce, adoption, maintenance and inheritance. It provides a sort of security to all women so that they need not take up an individual battle to fight for their rights by closely going through their respective personal laws and again preparing a ground to face a counter attack from their personal law boards under the colour of their customs and culture.
If UCC is adopted and legislated in its true spirit, it draws a lot of benefit to women within the country and also beyond the country. If there are differences to one religion and the other within the country itself it is becoming a tough task to enforce our basic fundamental rightsin spite of thosebeing clear cut violations of fundamental rights guaranteed, still, no one is daring to touch it even the judiciary since they are within the ambit of personal law. At this struggle, it is highly impossible to expect a satisfactory result within the country and beyond thecountry to win the battle. It really becomes a nightmare. So, let us have one uniformity in certain basic principles which are common to all individuals irrespective of their caste, creed, religion or place of birth. We have to frame the code which is applicable to all beings considering themas human beings but not being a man or woman and also not on the basis of one religion or the other.
There is high need to bring uniformity in personal law aspects without taking into consideration the gender discrimination and religious discrimination. It is possible only through Article 44 of constitution i.e. Uniform civil code. Since till today it remained less significant in part IV of the constitution which is only directory in nature yielding little purpose. Therefore, UCC must be given a legislative form by harmonising all personal laws in such areas which are not so sacred to one’s religion so as to be effective for the benefit of all general public living in one territory. One territory one law will draw more benefits rather one territory with multiple laws with conflicting provisions in the same area. Law is dynamic therefore we all should welcome reformation in relevant areas.
B. Vijayalakshmi, Asst. professor, M.G. Law College
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