Uniform Civil Code

February 28, 2023

This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3rd year law student.

BACKGROUND

The origin of the UCC dates back to colonial India when the British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification. In India we have two types of laws. Firstly, those laws which apply to all equally without any distinction of any type e.g. Indian Penal Code, Evidence Act, Income tax etc. These are known as public laws. And, secondly, those laws which are not uniformly applicable to all, but specifically apply to certain communities. These are called the personal laws which are guided by our religious, customs and traditions e.g. Muslim Personal Law, Hindu Personal Law etc. Personal Laws deals with matters related to Marriage, Divorce, Adoption, Maintenance etc. With in a community. In case one does not want to be governed by the personal law related to a particular community, he always has an option to go for special acts like Special Marriage Act. Special marriage Act, 1954 governs the marriage related issues of all Indian irrespective of their religion.

UNIFORM CIVIL CODE

Our Constitution makers wanted UCC in place of different personal laws for different communities. Uniform civil code means secular personal laws of citizens which apply citizens equally regardless of their religion, i.e. Common Marriage, Divorce, Maintenance, Adoption etc. The idea was to bring formal equality among all the citizens of the country, as having different personal laws goes against the right to equality enshrined in article 14 of the constitution. Article 44 states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Why UCC inserted in Directive Principle of State Policy and not in Fundamental Rights? As evident from Constitution Assembly Debates, All the communities, Especially Minorities were not comfortable with losing personal law in favour of Secular laws at the time of formation of Constitution. Hence the responsibility was transferred to the future generations implement the UCC when the time is right. UCC is envisaged to provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc. However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory. There are some other constitutional provisions relating to religious freedom and secularism such as article 15 ( No discrimination on grounds of religion, race, caste, sex or place of birth) , article 25 (Freedom of conscience and free profession, practice and propagation of religion, subject to reasonable restrictions on the grounds of public order, health and mortality) , article 25(2) provides for regulating secular activities associated with religious practices, social welfare and reform, article 26 (Right to establish and administer religious institutions) , article 27 Prohibits the state from lvying a tax, proceeds of which are used for the benefit of a particular religion and article 28 deals with the issues of religious instruction in educational institutions.

GOA CIVIL CODE

IN Indian State of Goa, we do have a UCC which is continuation of Portuguese Civil Procedure Code, 1939. The Supreme Court, in its judgment on Jose Paulo Coutinho, 2019 has referred to Goa as the shining example of UCC. But it has its own share of issues inherent in it. It is blamed to be deeply discriminatory towards the already marginalised genders, sexualities, and religions. Example : The Code also states that while a husband can seek divorce if his wife commits adultery, a wife can only seek such relief if the husband commits adultery with “public scandal”, keeps a mistress in the conjugal home, or abandons her.

Goa is the only state in India that has uniform civil code regardless of religion, gender, caste. Goa has a common family law. Thus Goa is the only Indian state that has a uniform civil code. In Goa Hindu, Muslim, Christians all are bound with the same law related to marriage, divorce, succession. When the Goa became the part of union territory in 1961 by the virtue of the Goa Daman and Diu administration act 1962 the parliament authorized the Portuguese civil code of 1867 to Goa and shall be amended and repealed by the competent legislature.

SHAH BANO CASE

In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in India, Madhya Pradesh. Khan had granted her irrevocable talaq after over 40 years of marriage. She was initially granted maintenance by the verdict of a local court in 1980. The Supreme court further ruled in favour of Shah Bano in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of Criminal Procedure Code, which applied to all citizens irrespective of religion. It further recommended that a uniform civil code be set up. The Shah Bano case soon became nationwide political issue and a widely debated controversy. The All India Muslim Board defended the application of Muslim Personal Law which was based on Sharia Law and denied divorced Muslim women the right to alimony. The Muslim Women (Protection of Rights of Divorce) Act 1986, was passed by the then Rajiv Gandhi Government, which made section 125 of Criminal Procedure Code inapplicable to Muslim women, which meant that the reversal of the Supreme Court judgement. Further fanned the voice for UCC.

It is also opined by legal Expert Mr. Faizan Mustafa that : The Constitution’s framers used the term “uniform” in Article 44 and not “common”, because “common” means “one and the same in all circumstances”, while “uniform” means “the same in similar conditions”. Different people may have different laws, but the law within a particular group should be uniform.

Constitution Assembly Debate also opined Uniform Civil Code (UCC) is required to reconcile conflicts in personal/family laws with the Indian Constitution. Law Commission recommended : “Resolution of this conflict does not mean abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”

CONCLUSION

The citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nation’s unity, but also makes one wonder whether we are a sovereign, secular, republic or a loose confederation of federal state, where people live at the whims and fancies of mullahs, bishops and pandits. This could help to ensure that the UCC takes into account the diverse perspectives and needs of different groups, and that it is seen as fair and legitimate by all citizens.

REFERENCE

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February 28, 2023