“Injustice anywhere is a threat to justice everywhere”
– Martin Luther King
Introduction:
In India, the Uniform Civil Code has sparked heated debate over its various meanings and consequences for secularism. Article 44 of the Constitution of India lays that “State shall endeavor to provide for its citizens a Uniform Civil Code (UCC) throughout the territory of India.”[i] It envisions the administration of the same set of secular civil laws to rule individuals of all religions and locations. This takes precedence over citizens’ rights to be subjected to various personal laws based on their religion or ethnicity. The common areas that stand covered by a civil code include personal status, rights related to acquisition and administration of property, succession, marriage, divorce and adoption. As India is such a diverse country with so many religious and social differences, it is critical to have a Uniform Civil Code as soon as possible to bridge the gap produced by many personal laws that have crept in through the years. Not only would such a uniform law create legal uniformity, but it would also do justice to the diversity that exists in our society by bridging the inadvertent gender discrimination that personal law causes among residents.
Concept of UCC in Indian Constitution:
The idea of a Uniform Civil Code was first proposed in the Constituent Assembly in 1947, and it was incorporated as one of the directive principles of State policy by the sub-committee on Fundamental Rights, with clause 39 of the draught directive principles of State policy stating that the State shall endeavor to secure a Uniform Civil Code for citizens. The argument was made that diverse personal laws of communities based on religion hampered India’s progress, and that a Uniform Civil Code should be in place as quickly as possible to aid the development of the newly independent country. As the Uniform Civil Code was a politically contentious matter, the founding writers of the Constitution reached a compromise by including it as a guiding principle of state policy under Article 44. Since it is a component of Directive Principles, which are nothing more than unenforceable suggestions, it has yet to be applied, and such examples of paper protection are insufficient grounds to petition the Court of Law.
Essentials of UCC as a means to remove gender inequality:
Articles of the Indian Constitution guarantee gender equality and non-discrimination. However, certain laws appear to violate these principles and continue to exist, particularly in the personal laws of various communities, which contain terms that are considered discriminatory towards certain women. Women, who make up about half of India’s population, continue to demand a gender-just code so that they can experience equality and justice regardless of their community.
A. Marriage and Divorce:
The personal laws of each religion cover various essentials of a valid marriage. The new code should have the basic essentials of valid marriage that shall include:
(i) The new code should impose monogamy outlawing multiple marriages under any religion. Polygamy discerns women and violates their basic human rights.
(ii) Registration of marriage should be made compulsory. When the man and the woman sign their declaration of eligibility in front of a registrar, they are considered to have solemnized their marriage. This will clear up any doubts about the marriage’s legality.
(iii) The grounds and procedure for divorce should be specifically laid down. The grounds in the code should be rational and the practice prescribed should be according to the principles of natural justice. In addition, there should be a provision for divorce by mutual consent.
B. Succession and inheritance:
(i) Equivalent shares to son and daughter from the property of the father, whether self-acquired or joint family property. There should be no discernment based on sex in the matters of inheritance. The provisions of the Hindu Succession Act, 1994 can be taken as guiding principles.
(ii) Provisions for the inheritance of mother’s property, whether she acquired it herself or through her father or relatives.
(iii) Will-related provisions shall be in accordance with equitable principles. There should be no restrictions on the amount of property that can be bequeathed, the individuals to whom it can be bequeathed, or the giving of property by will for religious or philanthropic purposes.
C. Maintenance:
The maintenance laws for the Hindus and Muslims are unlike. The UCC should contain the following about maintenance:
(i) A husband should maintain the wife during the marriage and after they have divorced until the wife remarries.
(ii) The amount of alimony should be defined on basis of the income of the husband, the status and the lifestyle of the wife.
Thus based on these vital principles, an impartial and just UCC can be framed which will be in consonance with the Constitution.
Judicial March through the years:
The Judiciary through its various judgements repeatedly has always upheld gender justice in cases pertaining to the Uniform Civil Code.
The Supreme Court ruled in the Shah Bano Begum[ii] case that section 125 of the Criminal Procedure Code should apply to everyone, regardless of religion, caste, or faith. As a result, all Muslim women are entitled to support after a divorce. This case was also a turning point in the country’s adoption of the “Uniform Civil Code.” In the Daniel Latifi[iii] case, the Supreme Court decided that a Muslim divorced woman is eligible to maintenance until she remarries.
The Supreme Court held that the husband’s announcement of instant triple talaq was void in the case of Shayra Bano[iv]. A Syrian Christian woman received a hand and a portion of her ancestral property, according to the Supreme Court in Mary Roy v. State of Kerala[v]. In the case of Vineeta Sharma v. Rakesh Sharma[vi], the Supreme Court expanded the scope of Hindu women’s equal share and rights in the Undivided Hindu Family property. The renowned ‘Sabarimala Judgement’ broke the age-old tradition of not allowing menstruating Hindu women to enter the temple for fear of jeopardising the deity’s chastity. The court dismissed reality as an impediment to our constitutional aims, and women now have the right to enter the Temple with reverence.
The Apex Court has consistently advocated the enactment of a uniform civil code as a matter of urgency and top priority in a number of decisions to end the unevenness, disparities, and immunities that such personal laws have continued to offer throughout the years.
Conclusion:
To sum up, we must recognize the significance and necessity of enacting a standard civil code as soon as possible. It is critical to carve out the just and equitable laws of all religions, to create a model for a Uniform Civil Code based on gender justice, to ensure the concept of equality entrenched in our Constitution, and to change laws that are discriminatory and biased. Despite the fact that various efforts are being made to ensure gender equality in our country, including the introduction of international instruments, reforms of national laws, changing judicial trends, and recommendations of Law Commissions and other social elite groups, women in our country are still treated unequally and discriminated in the field of family law, particularly in cases of marriage, divorce, and maintenance. In these circumstances, a gender-just code is the need of the hour for long. So a Uniform Civil Code is a very vital step towards the protection of oppressed women, to protect their human rights, to eradicate discrimination against them regardless of their religion or community to which they belong to.
References:
1. Tanja Herklotz, Dead Letters? The Uniform Civil Code through the Eyes of the Indian Women’s Movement and the Indian Supreme Court, Südasien-Chronik – South Asia Chronicle, 61-92 (2016), https://edoc.hu-berlin.de/bitstream/handle/18452/9168/61.pdf?sequence=1&isAllowed=y
2. Gauri Kulkarni, Uniform Civil Code, Legal Service India, http://www.legalserviceindia.com/articles/ucc.htm.
3. Krishna Rajagopal, What is the debate on uniform civil code all about?, The Hindu, September 09, 2018, https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all- about/article24903560.ece.
4. Santhosh Kumar, Uniform Civil Code, – Plurality Vs Uniformity, IAS Express, September 19, 2018, https://www.iasexpress.net/uniform-civil-code/.
5. Samanwaya Rautray, No attempt to enact uniform civil code despite repeated court appeals: Supreme Court, The Economic Times, September 14, 2019, https://economictimes.indiatimes.com/news/politics-and-nation/no-attempt-to-enact-uniform-civil-code-despite-repeated-court-appeals-supreme-court/articleshow/71120973.cms?from=mdr.
[i] Constitution of India, Art. 44.
[ii] Mohd. Ahmed Khan vs. Shah Bano Begum, 1985 AIR 945
[iii] Daniel Latifi & Anr vs. Union of India, 2001 SC SCC 740.
[iv] Shayara Bano vs. Union of India, 2017 SCC OnLine SC 963.
[v] Mrs. Mary Roy vs. State of Kerala, AIR 1986 1011.
[vi] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
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