December 9, 2023

Hindu Marriage Laws and the Uniform civil code

This article has been written by Ms. Hitika Agrawal, a Second-year student of National Law Institute University, Bhopal.

INTRODUCTION

India decided to be a secular state meaning that the country does not follow any religion but respects all the religions followed by its people. In India, we have different personal laws for different religions, and religion has an enormous effect on Indian politics and society and has been serving as the foundation of the culture of India. It results in various social classes receiving distinct treatment under their rules. Hindus have the Hindu Marriage Act, Hindu Succession Act, and Hindu Minority and Guardianship Act, while other religions have separate laws that govern them. The reason for this diversity is quite simple in a diverse country like India because people have different beliefs, customs, and practices. The question of succession, inheritance, adoption, maintenance, guardianship, etc. have always been part of personal laws and because of these personal laws have often come into the limelight and have raised the need of UCC even more in the country. It is in this diverse context that the concept of the Uniform Civil Code (UCC) needs to be analyzed. UCC suggests the application of a single law to all national citizens’ personal affairs, including marriage, divorce, inheritance, custody, and adoption, among other things. This idea of UCC was raised first time in the constituent Assembly in the year of 1947. The Indian Constitution lays down under Article 44 that the state shall endeavor to have a uniform code for India which tells us that UCC has a mention in the constitution and is not an unheard term or concept. It was included in the DPSP as it was felt that it was not the right time for it and in the future, there will be an atmosphere for its implementation. Even if the DPSP is not enforceable and justified as mentioned under Article 37, they are fundamental in the governance of the country. 

The UCC discussion is intricate and multi-dimensional taking into account issues with religious freedom, cultural diversity, and personal liberties. Different parties involved including legal professionals, religious organizations, and activists, changing societal views, legal interpretations, and wider cultural interpretations will affect how the UCC question will get resolved.

HISTORICAL BACKGROUND

The British felt the need to uniformly codify the Indian law about evidence, contracts, and crimes through a report in 1835. The Hindu and Muslim personal laws were kept outside of such codification as recommended in the report. This is where the origins of UCC can be found. The personal laws were left because the British knew that religion was not something that they could interfere with and therefore they allowed different personal laws for different religions the first being made for Hindus and Muslims.

The next debate on UCC appeared in the constituent Assembly debates in which some Nehru and Gandhi gave assurance to the enactment of UCC in the future. However, this was criticized by the Muslim leaders who underlined the value of upholding personal religious rules based on religious traditions. Despite heavy opposition from Hindus the Hindu Code Bill was passed by the government during the first ten years of independence. This was considered the first significant movement of the democratic state. Subsequent records of the state legislature’s efforts to bring the country together under a single civil code include the enactment of the Special Marriage Act 1954, the Dowry Prohibition Act 1961, etc.

 

JUDICIARY STANCE ON A UNIFORM CODE

The courts have been in favor of bringing a single code for personal laws so that uniformity can be brought to these laws of the country. In the case of Mohd. Ahmed Khan v. Shah Bano which once again ignited the ongoing debate on UCC. In this case, the court brought Muslim divorced women within the purview of Section 125 of the Code of Criminal Procedure, 1973, and gave her the relief of maintenance even when the iddat period was over. The court also said that UCC must be implemented by the government as it would “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” In this case, the court found out how the uniform laws came in conflict with the various personal laws. With Articles 14,15 on one hand and Article 25 on the other all present in the constitution in part III of the Indian Constitution it puts the courts in a tight spot as to how to maintain a balance between them while ensuring that justice is not compromised. This case highlighted how a husband refused to maintain their wife after conveniently giving her a divorce under the Muslim personal law which was a cause of distress to many women.

The case of Sarla Mudgal v. Union of India dealt with the issue of how personal laws were used for the selfish interest of the person. In this case, a Hindu husband converts into a Muslim and marries another woman and justifies this act on the basis that polygamy is permitted under Muslim law so he has done the offense of bigamy. In this case also while stating that personal law cannot be used like this by anyone the court emphasized the need to have UCC for the country so that this unlawful use of laws is not done.

In the case of State of Bombay v. Narasu Appa Mali, the constitutional validity of the Bombay (Prevention of Hindu Bigamous Marriages) Act, 1946 was challenged which made bigamy an offense for Hindus while the Muslims were allowed to practice polygamy with a limit of four wives. The contention was that it violated Articles 14 and 15 as it discriminated between Hindus and Muslims. These types of questions were raised because of the lack of a uniform code in India. Although the act was held to be valid by the Supreme Court it raised several questions regarding the difference in the provisions of different personal laws that at times come in conflict with each other and also conflict with constitutional provisions.

From all these cases and many other cases, it has been time and again reiterated by the Supreme Court as well as different High Courts that there is a need for a Uniform Civil Code for the country. However, till date, UCC has remained a debatable topic and has remained pending before the courts waiting for an outcome.

UCC CHALLENGES

Various customs and communities are part of India. Religious tolerance and diversity are established in India through law and custom. Although India is a secular country there is a whole contradiction in this concept when it comes to different personal laws in India. Almost all communities Hindus, Muslims, Parsis, etc have their separate laws on marriage, adoption, guardianship, divorce, and so on. 

Conflict with personal laws

  • UCC has always been a topic of debate with some arguing it is necessary to promote gender equality, social justice, secularism, etc., while others think that it will violate constitutional guarantees given in the constitution under Articles 25, 26(b), 29 etc.
  • There have been conflicts between UCC and Hindu laws regarding inheritance, divorce, marriage, and so on. The Hindu Succession Act, of 1956 has a provision where the daughter was not allowed to inherit the property if her father died before the Act came into force. This came into controversy and in the case of Prakash v. Phulavati, this issue was resolved when the court held that the daughters would have equal rights to the ancestral property, regardless of when their father died. This was a step towards gender equality and was a departure from the traditional Hindu principles.
  • In Muslim law also there is a conflict with UCC mainly in the field of family law which is mainly based on Sharia law. The contentious issue of triple talaq, which allows a Muslim husband to divorce his wife by pronouncement of the word talaq three times was rectified in the case of Shayara Bano v. Union of India in which this practice was declared unconstitutional and the government brought the Muslim Women (Protection of Rights on Marriage) Act, 2019 to ban this practice.
  • There were other cases regarding polygamy and maintenance in Muslim law where the court disregarded the traditional Muslim principles and gave judgment in favor of gender equality, social justice, etc. UCC has faced major opposition from the Muslim community as it is seen as an attempt to impose a Hindu-majority culture on religious minorities. 
  • It is also contended that imposing a single code may violate the rights of other communities’ cultures and religions, sparking opposition and conflict. UCC discussion is also very politicized. Political parties frequently take differing opinions on the topic and use them for political motives.

DEBATE AND ARGUMENTS PRESENTED

A variety of arguments are given in the UCC debate some of them supporting it while some are in opposition and some are there which are skeptical of it.

  • UCC will help in the simplification of laws and will help in reducing the confusion, inconsistency, and complexities in the different laws. It will also lead to a more unified legal system and it will improve the court’s ability to administer the law and the existing misunderstanding will also get resolved.
  • Some even suggest that it is important to compare the different personal laws to identify how their provisions are similar and different from one another. A personal status legislation founded on those ideas, which are nearly the same under all the personal laws can be made and put into effect.
  • One of the major criticisms is that it will infringe on the right of freedom of religion of the people and that religion is a personal matter and there should not be unnecessary interference with it.
  • UCC will promote cultural diversity, gender equality, and social justice by bringing all the communities under a common law code. It will also seek to ensure justice and fairness in civil matters and will also ensure that all the people will get justice and will not suffer because of the old and obsolete principles of the religion.

CONCLUSION

India is a very diverse country and has been a home for many religions it has allowed every religion to protect its culture and practices as provided under Article 25 of the Constitution. They are allowed to have different personal laws which has caused the debate of UCC to arise as there have emerged some conflicts within the same. We can see that there is a need for UCC but a forceful implementation will not be a good idea as there is now also a considerable amount of people who are not ready to adopt secular laws. The constitution also has provisions like Article 44 in the DPSP for UCC which suggests that the makers have also thought that it should be implemented in India. The ultimate aim of the UCC should be to ensure equality, and justice to all the people. 

UCC should be used as a tool for reform so that the diverse character of the country is saved while also making sure that there is no discrimination or injustice done towards the people. UCC provides a way through which we can solve the loopholes present in the personal law system and make it at par with contemporary times. It is a tool that should be used to incorporate the diverse practices of the people. The code should be made by having a detailed information of the ground level situation and the attitude of the people as it is a very sensitive matter. The implementation process should be of a slow and well-planned nature and any undue haste should not be there as it will only lead to a futile step and will lead failure than the desired outcome.

 

REFERENCES

Case laws:

  • Mohd. Ahmed Khan v. Shah Bano., 1985 AIR 945
  • Sarla Mudgal v. Union of India., 1995 AIR 1531
  • State of Bombay v. Narasu Appa Mali., AIR 1952 Bom 84
  • Prakash v. Phulavati., 2016 2 SCC 36
  • Shayara Bano v. Union of India 2017 9 SCC 1 

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