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Time and again, the issue of whether or not to have a Uniform Civil Code in India crops up in front of us. The latest trigger is that the government has asked the Law Commission to examine the issue of implementing the uniform civil code. As per Economic Times, this is the first time a government has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.

What is Uniform Civil Code? Currently, there is a Hindu Marriage Act, a Muslim Personal Law (Shariat) Application Act, 1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion. There is also a Special Marriages Act, 1954 under which people can perform marriage irrespective of the religion followed by either person. These laws deal with the matters involving marriage, divorce, inheritance, adoption, and maintenance of the respective religions. Having a Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions.

History of Uniform Civil Code The debate surrounding the UCC dates back to the colonial era. The British applied a common criminal code for all but allowed the religious laws to be applied in the case of personal matters. The latter laws were to be applied by the local courts when dealing with personal disputes between people of the same religion. Even amongst the Hindus, different rules were used in different regions and for different castes. The Shariat law of 1937 was passed to govern the personal matters of all Indian Muslims would be governed by Islamic laws

At the time of drafting our constitution, there were extensive debates regarding these personal laws. For some, they were too divisive. They argued that a Uniform Civil Code would help in constructing an Indian national identity and eradicate those based on caste and religion. But the proposal was also resisted on the grounds that it would destroy the cultural identity of minorities. Subsequently, a compromise was reached. The UCC was placed under the Directive principles, which the state shall endeavor to achieve but which is non-binding.Quite similarly, during the debates over the Hindu code bills (a set of common laws governing personal matters for all Hindus), large segments of the Hindu population protested and held rallies against the bills.

They argued that practices such as divorce were prohibited by Hinduism and that for a Hindu the institution of marriage is indissoluble. They were also against granting equal property rights to women, fearing the concept of a joint family might crumble because of it. These people saw themselves being singled out as the only religious community whose laws were to be reformed. However, Nehru saw such codification as necessary to unify the Hindu community, which he saw as a first step towards unifying the nation.

Nehru split the Code Bill into four parts, including the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority, and Guardianship Act, and the Hindu Adoptions and Maintenance Act. These were met with significantly less opposition and were passed in the mid-1950s.

Indian Christians (except in the state of Goa) are governed by the Indian Christian Marriage Act 1872 and their divorce-related matters fall under the Indian Divorce Act of 1869.

The Shah Bano Case In recent times, the Shah Bano case of 1985 stirred up a heated debate surrounding Muslim personal laws and the need for a UCC. Shah Bano, an elderly Muslim, and mother of five, was divorced by her husband. Subsequently, her husband refused to pay her maintenance beyond the period of iddat (three-month period after divorce in which she cannot remarry). He argued that according to Muslim personal law he was obliged to pay her maintenance for this period only.

The case went up to the Supreme Court which granted her maintenance for life under Section 125 of the Cr.P.C (according to which he had to maintain her until she remarries or dies if she has no means of her own for survival). The Supreme Court held that the Cr.P.C. was common for all and that she could claim maintenance under it. Thus the Muslim personal law cannot be applied here.

Some Muslims perceived this as an attack on their religion and their personal laws and protested loudly against the judgement. This caused the Congress government to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which nullified the judgment of the Supreme Court. This act allowed maintenance to a divorced woman only during the period of iddat, according to the provisions of Islamic law.

However, in the later judgements, the Supreme Court of India upheld the Shah Bano judgement and the act was nullified. Many Muslims including the All India Shia Personal Law Board supported this order. The court also regretted that…