Uniform civil code – prospects and challenges

Dr. H. Abdul Azeez[1]

Abstract

In the light of recent Supreme Court judgment holding triple talaq as unconstitutional, serious deliberations are coming up from various corners for a uniform civil code for India. The framers of the Constitution thoughtfully placed the burden on the future Governments to implement the Uniform Civil Code as they conceived the wounds of partition would heal with the passage of time. However, due to the unethical political situations, the Governments could not promote confidence of minority religious segments of the country for its implementation. This Article analyses about the causes for not implementing the Uniform Civil Code and attempts put forward some measures for the implementation of it. The most vulnerable persons affected by the non-implementation are the women in any religious groups.  Hence, the rights upholding women’s rights equalising with that of men should be made as part of Uniform Civil Code, where as rituals, culture, etc., shall be left open for religious groups follow in their own way without affecting women’s rights. Further, as first step for implementation of the Uniform Civil Code, instead of going for compulsorily implementing in one go, it can be made as an optional in initial stage, i.e., whoever intends to follow it  may choose to follow it.

Introduction

The debate on the Uniform Civil Code is getting momentum in India nowadays. The Uniform Civil Code can be considered as a common code which is applicable to all the communities irrespective of their religion, race, caste, creed, etc. The framers of our constitution included Uniform Civil Code in the directive principles of state policy under the conception that it would be implemented when the wounds created by the partition are healed by the passage on time. Article 44 of the Indian Constitution provides that State shall endeavor to secure for its citizens a Uniform Civil Code throughout the territory of India. For a convenient understanding this article is divided into following heads.

Position in Pre-independence Era

The study of Hindu legal history shows that during Hindu period[2] there was no interference of the State with Hindu law. They enjoyed complete immunity and the whole affairs were regulated by their personal laws. The state was like a welfare organization dealing with social interest and related matters. The social, political and economic life of the society was controlled by the rules and regulations of the sages who dominated the entire Hindu period.[3] During this period there were no other religious communities and so the conflict between personal laws was not material and the uniformity of law was a general rule than an exception.[4] The Muslim period which was based on the divine origin of laws and no individual could alter the law or question the authority of Caliph.[5] When Muslim law also became the law of land, Hindu law was allowed to be reserved for the Hindus and the Mohammedan rulers did not interfere with the system. The result was that the Muslim followed their Muslim law and the Hindus were allowed to stick to their own system of law. Thus, the two separate systems of personal laws on parallel lines remained to be in existence in India. It was when the British controlled India that a complete change in criminal law and a new system to deal with the various matters of civil law came into existence.

Uniform Civil Code and Modern India

The idea of Uniform Civil Code was deliberated in the Constituent Assembly but separate personal laws were retained for separate communities because the makers of constitution were convinced that some more preparation is required in the minds of people before a Uniform Civil Code is introduced. Thus, what resulted was not a secular state in the western sense of the word, rather a ‘secular’ state with religious laws for its religious groups. The problem that aroused as a consequence of the above was the retention of separate personal laws leading to contradictions in rituals and practices in personal matters. The separate personal laws of India are inherently unequal as they are founded on the rules and traditions of completely different religions, and the constitution of India recognized and the continued existence of Personal Laws. There are different personal laws like the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act, etc, governing the personal matters of Hindus; and the Shariat Act, the Dissolution of Muslim Marriage Act, the Muslim Women (Protection of Rights on Divorce) Act, etc., which are based on the tenets of Holy Quran, govern the personal matters of Muslims. The Indian Christians were governed by the Indian Christian Marriage Act, the Indian Divorce Act and the Cochin Christian Succession Act, etc. Parsi’s are also having a different set of laws of their own. It is a fact that uniformity does not exist in all these personal laws, obviously, as these personal laws bases their origin in religious backings or tenets. It is submitted that the issue not of the uniformity but of the fact that they confer unequal rights depending on the religion and the gender.

Uniform Civil Code and Indian Constitution

Among the other countries in the world, our nation is unique with its composite culture. It is one of the great laboratories of multitudes of religions. To hold the different segments of Indian society accepting, understanding and acknowledging their beliefs and religious practices is a must. For this purpose, the framers of Indian constitution have accepted secularism as one of its basic ideals. Unlike the western secularism, Indian constitution upholds the concept of Sarvamadha samabhavana in its secularism as provided in the preamble. Indian constitution allows persons of different beliefs to follow their personal laws for their personal matters.  Under the Indian Constitution, all aspects of family law are in the concurrent list.^[6] But apart some legislative measures, many states have not exercised their power to an appealable extent and family laws are not even codified. At the same time, it cannot be forgotten that the influence of Anglo-Saxon jurisprudence during codification had added much confusion to the indigenous practices.

The Indian Constitution, in its Part IV, Article 44 directs the State to provide a Uniform Civil Code throughout the territory of India.  However, it is only a directive principle of state policy and, therefore, it cannot be enforced in a court of law. It is the prerogative of the state to introduce Uniform Civil Code. The Constituent Assembly debates clearly shows that there was a wide spread opposition to the incorporation of Article 44 (Article 35 in the Draft Constitution), particularly from the Muslim members of the Assembly. Naziruddin Ahamed, Mohd. Ismile Sahib, Pocker Sahib Bahadur and Hussain Sahib, etc., were against the idea of having a Uniform Civil Code in India on the grounds that the right to follow personal law is part of the way of life of the people which is a part of their religion and part of their culture. Its adoption will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that in a country so diverse it is not possible to have uniformity of civil law. However, K.M. Munshi strongly felt that if the personal laws of inheritance, succession, etc., are considered as part of the religion, the equality of women can never be achieved. The Chairman of the Drafting Committee, Dr. B.R. Ambedkar stated that in our country there is practically a Civil Code, uniform in its content and applicable to the whole of the country like Uniform Criminal Law, Transfer of Property, Negotiable Instruments Act, etc., which are applicable to one and all. However, he conceded that the only province, the civil law has not been able to invade so far is marriage and succession. While rejecting the arguments of certain Muslim members that the Muslim law is immutable and uniform throughout India quoting the examples like the North-West Frontier Province which was not subject to the Shariat law prior to 1935 and until then followed the Hindu Law in the matter of succession, the Marumakkatayam law applied in the North Malabar region of Kerala to all, not only to Hindus but also to Muslims. Until 1937, in the rest of India, the various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu law of Succession. Some of the learned members, however, predicted that a stage would come when the Civil Code would be Uniform and stated that power given to the State to make the Civil Code uniform is in advance of the time. Dr. Ambedkar also opined that it is perfectly possible that the future parliament may make a provision by way of making a beginning that the code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the code may be purely voluntary. This clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women and they incorporated Article 44 in the constitution hoping that it would be introduced in future at the appropriate time.

Constitutional Provisions

While, Article 15 of the constitution guarantee to every citizen that consists of  ‘no discrimination on any ground only of religion, race, caste, sex, place of birth or any of these, Article 15 (3) ensures that women and children can have special provision made by the state. But, at the same time, Article 44 promotes Uniform Civil Code whereas Article 14-19 guarantees equal rights. Constitution of India incorporates certain policies also which are to be followed by State.[7] There is provision for ensuring just and humane condition of work and maternity relief.[8]

Along with these, Article 44 also provides that ‘the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India’. In India, Uniform Criminal Code exists and so Article 44 expects from the State to secure Uniform Civil Code for all citizens of India like the Criminal law is equally applicable to all citizens irrespective of their religious beliefs as there is no uniformity in matters relating to marriage, divorce, maintenance, guardianship, etc., among Hindus, Muslims and Christians.

Personal Laws and Issues Related To Women

In India, the women have been conferred on inferior status in most of the personal matters compared to the men. It must be submitted that there is almost ‘equality’ in all religions and practices in this regard. Till the codification of Hindu Law in 1955 and 1956 the Hindu women did not enjoy equal rights along with the Hindu men. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not hold any property as its absolute owner except in the case of Stridhana. She had only limited estate which was passed on to the heirs of the last full-male owner called reversionary on her death. In the matter of adoption, a Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life her husband. These examples are only illustrative in nature and not exhaustive. Even though the Hindu law has been codified, certain discriminatory provisions still exist even today. For example, a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not entitled to claim a share in the coparcenary. Similarly, she has no right to partition of a dwelling house even though she is a legal heir. Thus, it is obvious that the codification of personal law of Hindus has not succeeded completely in eradicating the gender inequality.

In the Pre-Islamic Arabia, the women enjoyed a secondary status in all respects when compared to men. The advent of Islam has contributed much for the amelioration of Muslim women and alleviation of their problems. The Holy Quran places women in a respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four wives at a time. It is important to note that the polygamy among Muslim men is only permission but not a compulsion. The Shia Muslim male can contract muta marriages for an agreed period of time. There is no ceiling on the number of muta marriages that may be contracted by a Muslim male. In the matter of divorce, the position of the Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing the wife by the husband by pronouncing triple ‘talaq’ is highly discriminatory in spite of the clear message of Holy Quran to the contrary. Recently, the Supreme Court has held that the practice of the triple ‘talaq’ is unlawful and void.[9] In the matter of succession also a Muslim woman is discriminated. The legal position is that when residuary of opposite sex but of the same degree inherit the property of the deceased, the Muslim male gets twice the share of the female. It means that while brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share. Moreover, in the matter of maintenance also the divorced Muslim wife is not required to be maintained beyond the ‘iddat’ period. At the same time, the Criminal Procedure Code which is a secular legislation imposes an obligation on a husband to maintain his wife including divorced wife until she maintains herself. The controversy regarding the question whether a Muslim husband can be directed to maintain his divorced wife even beyond the ‘iddat’ period under the provisions of Section 125 of Cr. P.C was discussed in Mohd Ahmed Khan v. Shah Bano Begum[10] and it was held that Section 125 Cr. P.C. is applicable to all including Muslims and that a Muslim husband is also liable to maintain his divorced wife beyond the ‘iddat’ period.

Subsequent to this judgment, the parliament has passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period, unless both the spouses submit to the court at the appropriate time that they would like to be governed by Cr.P.C. However, in the case of Danial Latif v. Union of India[11]  the Constitution Bench of the Supreme Court held: “where the constitutional validity of the Act of 1986 was challenged, and upheld that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well even beyond the iddat period must be made within the iddat period under section 3(1) (a) of the Act”. It was, therefore, categorically, held that the liability of a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay maintenance is not confined to the iddat period. Similarly, among the Christians and Parsi women also, there is disparity in the rights of the women as compared to the men.

Uniform Civil Code and Judiciary

The judiciary in India has taken note of the injustice done to the women in the matters of many personal laws. It has been voicing its concern through a number of judgments indicating the necessity to have uniformity in personal matters of all the citizens. In the case of Shah Bano case[12] pertaining to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in character and is applicable to all religions. In Ms. Jordan Deigndeh v. S.S. Chopra, D. Chinappa Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a Uniform Civil Code. The totally unsatisfactory state of affairs consequent on the lack of Uniform Civil Code is exposed by the facts of the present case”. Again in Sarala Mudgal v. Union of India[13] a division bench of the Supreme Court consisting of Kuldip Singh and R.M. Sahai, JJ, stoutly advocated the introduction of a Uniform Civil Code in India. In this case, the Supreme Court held that conversion of a Hindu male to Islam only for the purpose of contracting bigamous circumvents Section 494 of Indian Penal Code. Such marriages have been declared as bigamous and void by the court. The court after referring to various precedents on the point categorically held that till Uniform Civil Code is achieved for all the Indian citizens, there can be a temptation for a Hindu husband who wishes to enter in to second marriage while the first marriage is subsisting to convert as a Muslim. Here, the Court was pointing out the injustice done to the first wife, legally wedded. It also noted the failure of successive governments till date, to implement the constitutional mandate under Article 44 of the Constitution of India. It was suggested that the personal laws of the minorities should be rationalized to develop religious and cultural amity preferably by entrusting the responsibility to the Law Commission and Minorities Commission. The Bench further directed the Government of India to file an affidavit indicating the steps taken and efforts made to have a fresh look at Article 44 in August, 1996. However, the latter direction was treated as “obiter dicta” by the court subsequently. In a recent judgment, Lily Thomas v. Union of India[14] while dealing with the validity of the second marriage contracted by a Hindu husband after his conversion to Islam, the Supreme Court clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different Benches had only expressed their views in the facts and circumstances under these cases. It appears that the Apex Court in India, which showed great judicial activism initially with regard to Uniform Civil Code, has taken a backward step with this clarification.

In 2003 also the apex court, when it declared S. 118 of the Indian Succession Act as unconstitutional on the ground that it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests [15] Justice Khare, observed as under: “it is a matter of great regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a Uniform Civil Code in the country”. At the same time, it must be noted that when a writ petition was filed calling for a direction to mandate the government to introduce a Uniform Civil Code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary.[16] Court is cautious in bringing Uniform Civil Code which is evident from its observation[17] that although a Uniform Civil Code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation. The stand or the politics of the Supreme Court is seemingly interesting. While it is recommending early legislation for ushering in a Uniform Civil Code on the one hand, it has rejected all attempts to do so through public interest litigation, on the other hand. Although the Uniform Civil Code is not codified yet, it is invisibly embracing Indian society in a gradual and an unconscious way. However, it must be appreciated that the role of judiciary in this development is noteworthy through its cautious interpretation of various personal laws though it is to be admitted that minor changes have been coming into force over a long span of time but it leaves some area as untouched.

The Uniform Civil Code in Goa: A Model

The state of Goa has shown a positive step in this direction which has enacted a set of ‘Family Laws’, which apply to all communities in Goa. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc., and embraces the concept of gender equality. There is no discrimination in this Code between Hindus or Muslims or Christians or any other community. Every birth, death and marriage is compulsorily to be registered and it provides for an equal division of property between husband and wife (irrespective of gender) and also between children. It enacts the rule of monogamy and the recent debated issue of triple talaq is not even has a place in the Code. The distribution of property at the time of divorce also is designed properly in consonance with gender equality. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of whether they are male or female, or whether they are unmarried or have got married and left the house.

Conclusion

Article 44 was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu laws of marriage, succession, etc., have been drastically changed in the first decade of the commencement of the constitution but there has been resistance from Muslim community in this respect and for avoiding any resentment on their part, political parties in power remained reluctant to enforce a Uniform Civil Code. The present situation is open to misuse and is inhuman and unjust for it permits inhuman and undignified treatment to women by providing legal cover to polygamy. Justice Kuldeep Singh, in his leading judgement in Sarala Mudgal v. Union of India[18] rightly observed that Article 44 is based on the concept that there is no necessary connection between religion and personal laws. Marriage, succession and the like matters of a secular character cannot be brought within the guarantee of religious freedom in articles 25-28. Practice of polygamy has been treated as injurious to public morals in USA and many Islamic countries have also abolished polygamy[19]. The Court, therefore, requested the Government of India to secure Uniform Civil Code for all citizens of India. No gender justice could be rendered in its comprehensive sense, unless a Uniform Civil Code containing the best provisions taken from al the religions, with the sole aim of doing gender justice. Unless the women, irrespective of their religious affiliation have been conferred equal rights on par with men in personal matters, the constitutional mandate of right to equality of status and opportunity cannot be implemented. However, adequate care should be taken to see that only the rights are made uniform and not the rituals which are inherent part of the culture and religion as otherwise it would violate the basic structure of the constitution viz., secularism. It is true that Personal laws, regardless of the community, are anti-women and so it is expected that a uniform code provides equal rights to men and women. If the remedy for the subjugation of women in almost all the faiths are available in the Personal laws itself, the proper interpretation of the Personal laws in tune with its source rather than adhering to the varied cultural patterns is also an alternate solution if the implementation of Uniform Civil Code is difficult and leads to social disintegration. This will sound good especially because it is not violating the freedom to adopt and practice any religion in the Constitution also, but at the same time will eradicate unhealthy practices.

Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, Uniform Civil Code in India stands as a distant dream for a long time to come. Since the implementation of Uniform Civil Code will certainly bring radical changes in existing personal laws, the move for reform would be better if there is sufficient pressure from within the various communities in India. Care must be taken to the fact that due to historical and other reasons, the demand for a Uniform Civil Code has now acquired communal and political overtones which may lead to serious repercussions in India. Another view is that rather going for implementing a compulsory UCC, it can be made as an optional as an initial step. It is suggested here that a model Uniform Civil Code ought to focus on rights, leaving the rituals within the bounds of constitutional propriety. If it is made optional, it will promote free choice and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities. Putting together the best elements from various existing personal codes will be better and it will be better to get it framed by independently through bodies which consist of expert and eminent personalities from among various religious groups.

[1] Associate Professor (Subject to placement), Government Law College, Kozhikode

[2]  1900 BCE to 650

[3] U.C Sarkar, Hindu Law: Its character and Evolution’ (1964) 6 Journal of Indian Law Institute at 214.

[4] Dr. Parminder Kaur, Personal Laws of India vis-a-vis Uniform Civil Code: A Retrospective And Prospective Discussion, Law Mantra Think Beyond Others, Vol. 2, Issue 5 (2015).

[5]  M. Rama Jois, Legal and Constitutional History of India, (Muimbai: N.M Tripathi Pvt. Ltd. Vol. II 1990) at 4.

[6]  INDIAN CONST. Entry 5.

[7] INDIAN CONST. Article 39 (a) (d) and (e) which mandates the State to ensure that men and women citizens shall enjoy equal right to an adequate means of livelihood. There shall be equal pay for equal work for both men and women and that the health and strength of worker’s men and women shall not be abused.

[8] INDIAN CONST. Article 42.

[9] Shayara Bano v. Union of India, Judgment of the Supreme Court dated 22-08-2017

[10] AIR 1985 S.C. 945

[11](2001) 7 SCC 740.

[12] Supra n.9.

[13] AIR, 1995 1531.

[14]AIR 2000 SC 1650.

[15] John Vallamatton v. Union of India, AIR 2003 SC 2902.

[16] Maharishi Avadhesh v. Union of India, 1994 SCC Suppl (1) 713.

[17] Pannalal Bansilal v. State of AP, (AIR 1996 SC 1023).

[18](1995) 3SCC 635.

[19] Turkey, Pakistan, Bangladesh.

Uniform Civil Code