In this article we are going to see about what is an uniform civil code and it’s importance for modern society, then how it works on society. My strong thought to implement u.c.c based Indian Civil Code as a result to solve social problems of our country in all situation and to promote gender equality.
2. Personal Laws
In India all our family laws are determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law and Muslims and Christians have their own laws. Muslim law is based on the Shariat Act. The personal laws of other religious communities were codified by an Act of the Indian Parliament. Other sets of criminal laws and civil laws on Contract, Evidence, Transfer of property, Taxation were also codified in forms of legislation .Laws of taxation are also same for all except Hindu undivided family in a single person category.
The codified personal laws relating to marriage, divorce and inheritance Mainly are
1. The Indian Christian Marriage Act of 1872.(applicable to whole India except areas of erstwhile Travancore, cochin ,Manipur and Jammu & Kashmir)
2. Anand Marriage Act , 1909( for Sikh marriages)
3. Cochin Christian Civil Marriage 1920 (applicable for Travancore-cochin areas)
4. Muslim personal law Shariat Act 1937 (making Shariat laws applicable to Indian Muslims) , Wakf Act 1954
5. The Parsi Marriage and Divorce Act 1937
6. Hindu Marriage Act 1955 ( applicable not only for Hindus ,Buddhists and Jains but also to any person who is not a Muslim , Christian, Parsi or Jew and who is not governed by other law)
3. Uniform Civil Code
Article 44 of constitution of India provides Uniform Civil Code for the citizens – “The state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.
Uniform civil code in India is a term referring to the concept of an overarching civil law code in India. This displaces the right of citizens to be governed under different personal laws which exist in the society.
This u.c.c used in India where the constitution of India attempts to set a uniform civil code for it’s citizens as a directive principle in Article 44. It is an important goal to be achieved.
4. Why don’t we have the u.c.c still now ?
In the beginning of law era in India, the first law commission on 1840, the “LEX LOCI” report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law relating to crimes, evidences, contract etc., but it recommended that personal law of Hindus and Muslims should be kept outside of such codification . on that period of before independence lot of machineries of Christians gave education and awareness to our Indian people, then why the English people don’t have a strong intention on u.c.c, they should implement u.c.c on 1st law commission recommendation ,on that period that was easy to implement but now population is grown comparatively to millions ,each and every side of our country people forming the organizations based on his religions and castes .they also have a thought to spread his religion all over the country to show their superiority and dignity ,they also have much lawful awareness.“English people enacted Indian penal code, Indian Evidence Act ,Indian Contract Act, then why didn’t implemented The Indian civil code?”. If Indian civil code implemented in English period, now India becomes a good secular country.
So on that period of English, they had the thought to divide and rule with help of personal laws and customs. But some of English take steps to abolish some social evils , Eg) William Bentinck with Rajaram Mohan Roy unitedly fought against sati on the period of 1927.
The important hurdles for not implementing U.C.C 1.Political
5. Muslim countries towards u.c.c
Those who wishing to reform the Muslim personal law have often cited Muslim countries as taken example that such reform is possible. “Terence farias” in his chapter the development of Islamic law points out that the 1961 “Muslim family law ordinance of Pakistan makes it obligatory for a man who desires to take a second wife to obtain a written permission from a government appointed Arbitration Council”. The interesting point that regarding Pakistan is , “ until 1947 both India and Pakistan had governed Muslims under Shariat Act of 1937 , however by 1961 Pakistan a Muslim country had actually reformed it’s Muslim law more than India had and this remains true today”.
In Tunisia and turkey where the polygamy was abolished . Iran , South Yemen and Singapore all reformed their Muslim laws in 1970’s . If Muslim countries can reform Muslim personal law then why Indian Muslims living under laws passed in 1930?
6. Words from DR.Ambedkar about u.c.c
The father of Indian constitution Dr.Ambedkar speaking about Article .44 and it’s calls for uniform civil code , observed “ It is perfectly possible that the future parliament to implement may make a provisison by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to bound by it, so that in the initial stage the application of the code may be purely voluntary “DR.Ambedkar” was clear in his feeling that the state had the power to legislate over the personal law but he also cautioned no govt can exercise it’s power in such a manner as to provoke the Muslim community to rise in rebellion”.
7. Importance of u.c.c
The main aim of u.c.c is to unite all Indians irrespective of religion, caste and also gender. Most of the persons wants this U.C.C for uniting the minds of different religion , but I want this u.c.c for gender equality along with above opinion because of some religion customs make the respect of women downwards which makes the women as treated disrespect in society and society treated the girl as a drug for their necessity i.e, in some advertisements unnecessarily women were used to advertised for reach and sale of the product in society. Due to this thought , rapes also increasing irrespective of urban & rural areas . If u.c.c came gender equality also come along with that.
Some persons says in such cases Article 25 & 26 guarantees right to freedom of religion , Article 25 guarantees to every the freedom of concise and the right to profess , practice and propogate religion . But this right is subject to public order , morality and health with other provisions of part 3 of the constitution so In my opinion with the help of article 25 anyone can enjoy who reside in India of religion practice ,but that practice doesn’t make others hurt or damage like recent issues(Feb 3 ,2013 TOI ) “PRAGAASH BAND ,All girl rock band, in this issue , Right to Freedom like 19 ( 1) (a) to freedom of speech and expression & 19 (1 )(g) to practice any profession or carry on any occupation is violated in this issue the talent of that girls were threaten by the customs of that religion that says girls not to sing ,this makes them suffer and sad. The girls on their 1st live show get more rewards and awards. so, what is the answer from society for that girls for their dream future ?”. Many women suffered lot because of religion & caste customs. Comparing with earliar period now there is lot of love marriages happening in society. This is the key factor that breaks dowry & caste system so like this u.c.c. also come and unite the people of India in one circle .In my opinion the one circle would be “The Indian civil code“.
8. U.C.C based Indian Civil CODE ;
The u.c.c is not opposed to religions and also not violating Article 25&26. It doesn’t the result of interference in religion mainly to maintenance, succession, inheritance and some of matters which has to be reformed. In u.c.c Hindu will not be compelled to perform Nikah with witness and dower or a Muslim be forced to carry out marriage ceremonies like kanyadan & saptapadi , but in matters of inheritance, marriage, right to property , maintenance and succession there will be a common law.
Justice Khare in the case john vallamattom Vs Union of India (AIR 2003 SC 2902) Said “ It is no matter of doubt that marriage , succession ,and the like matters of secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the constitution “.
So u.c.c is definitely not about forcing the customs of majority on to minority. u.c.c based Indian civil code ought to come for our country to make our nation a secular one, it is applicable for each and every person who reside in India. In past “LEX LOCI” report says it will match for future that future comes now. SO, it’s the time to implement.
9. Important case laws
The Shah Bano case (1985 AIR 945, 1985 SCC (2) 556) was a controversial divorce lawsuit in India, in which Shah Bano, a 62-year-old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 and was subsequently denied alimony. The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Rajiv Gandhi government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorces the right to alimony from their former husbands.
Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this and not the wife: the husband just needs to say the word Talaq (meaning divorce) three times before two witnesses for a valid divorce.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
Some Muslims felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgment. Their spokesmen were Obaidullah Khan Azmi and Syed Shahabuddin. They had formed an organization in 1973 known as the All India Muslim Personal Law Board devoted to upholding what they saw as Muslim Personal Law.
The Indian government's reaction
In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
"Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate in accordance with the provisions of this Act."
The Statement of Objects and Reasons of this Act (the objective of the Act) needs a mention. According to the stated objects of the Act, when a Muslim divorced woman is unable to support herself after the period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Wakf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
The Shah Bano case generated tremendous debate in India.The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies.
The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common.
Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by them.
The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren't sufficiently advanced. The pressure exerted by orthodox Muslims caused women's organizations and secularists to cave in.
Rajiv Gandhi began his election campaign in 1989 from Ram Janma Bhumi ( birthplace of Lord Rama ) in Ayodhya. This led to revival of (Ram Janma Bhumi - Babri Masjid) dispute which was lying in cold storage for about forty years which in turn led to bringing down of the Babri Masjid on 6 December 1992 and thereby causing bloody riots all over India in which thousands of people were killed and over dozen powerful bomb blasts in Mumbai ( Bombay ) on 12 March 1993 in which hundreds of people,, were killed or maimed.
Personal Laws have been part of the Civil Law since the British Raj. They have been criticized by feminists for their orthodox approach and for disadvantaging women.
High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries. (source wikipedia)
Relevant case laws that wants the implementation of U.C.C
1.Sarala mudgal vs union of india (AIR 1995 3 SCC),
2.Pannalal bansilal patil vs state of Andhra Pradesh 1996 2 SCC 498,
3.Noor sabha khatoon vs mohd quasim (AIR 1997 SC 3280).”
All the above cases seeks the enactmentment of Indian civil code.
As a law student I consider U.C.C based Indian civil code for the uniform authentic India, only with the implementation of U.C.C secular will purely spread throughout our nation. then all Indians come in a same circle irrespective of religion & caste, then it is applicable to the persons who reside in India."PEOPLE OF INDIA ALSO RESPONSIBLE FOR THIS IMPLEMENTATION OF U.C.C".
“ Lex supremus !”