July 1st, 2016
Image Source: livelaw
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 the Uniform Civil Code in India had not been given effect to and held that a common civil code will help the cause of national integration by removing loyalties to laws which have contradicting ideologies. In a different case, the court noted ‘India is a secular nation and it is a cardinal necessity that religion is distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with the legislative intent and prevailing case law’.
The Directive Principles Of State Policy are only guiding principles, not enforceable by any court. Yet, as in the above case, the apex court has sometimes, directly or indirectly, expressed itself in favour of a uniform civil code or expressed displeasure at the government’s inability to enact it. None of these comments are binding.
Why do we need a Uniform Civil Code?
Many women associations feel that UCC would give women equal rights, as they believe the current laws discriminate against them.
a) A Muslim husband can divorce his wife by simply saying ‘Talaq, Talaq, Talaq’, without providing any reason, whereas a Muslim wife has to file a petition in court, which might take years, and she has to provide some ground for divorce, like cruelty, adultery etc. She also has to produce witnesses or documentary evidence in support of that ground.
Thus there is discrimination against the wife in two ways- both in the time required for the divorce and also for the obligation for providing reason being waived off for men.
b) A Muslim man can marry four wives, but a woman can, at a time, have only one husband. Moreover, polygamy is prohibited for Hindus (after 1955) and other religious groups. According to the 1961 census (the last census to record such data), polygamy was actually less prevalent among Indian Muslims (5.7%) than among several other religious groups (Adivasis-15.25%, Buddhists-7.9%, and Hindus-5.8%). There have also been many incidents of non-Muslim men converting to Islam solely for the purpose of practising polygamy legally.
c) Christians are also given separate standards for divorce—which makes it more difficult for them than it is for Hindus. There are also some other significant disparities with regards to divorce law between different religions.
d) According to the Hindu Succession Act, a mother has equal rights over the property as do the children and the widow in the event of her son’s death. But when a married daughter dies, the mother ranks after the husband’s heirs.
These are only some of the significant differences between the different personal laws. Many of them clearly do not treat women at par with men. The proponents of UCC argue that we should have a common law treating women equally as men in all matters involving marriage, divorce, and inheritance.
Moreover, it is argued that it will lead to national integration and ‘true secularism’ and draw minorities into the mainstream and encourage communal harmony.
Why is it difficult to implement?
a) The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve. Even under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. In the Muslim law too, though there are no elaborate rites or ceremonies, there exist some differences between the Sunni and Shia marriages.
b) The next problem comes from trying to remove politics from the debate. Any comment, opinion or discussion hardly passes through without political angles being attributed to it. This is especially true when major political parties (BJP, Congress, and the Left) have clear positions with regards to the UCC.
c) Many people still do not know what the uniform civil code really means. There are still false conceptions surrounding it, especially amongst the minorities, which make a rational debate on its implementation quite difficult. UCC is also sometimes perceived as the imposition of the Hindu code and procedures, and this adds to its opposition from the minorities.
d) The Hindu law has already been reformed, and yet the amount of land actually inherited by Hindu women is only a fraction of the land they are entitled to under the reformed Hindu law. Thus it is argued that the backwardness of Muslim women cannot be solely explained by their personal law.
e) Some people also argue that it would lead to a loss of the culture and the identity of the minorities in the Indian society.
The road ahead
The enactment of a UCC at once might disrupt communal harmony. The better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times. The focus should also be on removing disparities between different religions. This might lay the foundation of implementing a UCC at a later date.
Goa has a Common Family Law, which is also called Goa Civil Code. It is a set of civil laws that governs all Goans, irrespective of religion. Although it has some exceptions for some communities and is quite different from a Uniform Civil Code, it shows that the enactment of a UCC is indeed feasible in India.
We request our community members to pour in their views on Uniform Civil Code?