Uniform Civil Code: Finding Unity in diversity

This article has been written by Miracline Paul Susi. Miracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

The Constitution of India came into force in 1950. Since then, Article 44 has remained a dead letter. This tragic situation certainly buries the spirit of the constitution a thousand fathoms deep. Under Article 44, “the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India”. The Uniform Civil Code (hereinafter UCC) seeks to govern a set of secular civil laws with respect to marriage, divorce, inheritance, adoption and maintenance which are administered by the Personal laws.

There is a major need for the implementation of the Uniform Civil Code in a secular nation like India. The reason is that an unprejudiced deliberation on the innate merits of a Uniform Civil Code is usually overshadowed by communal and political overtones.

This has made the Supreme Court to keep repeatedly prodding the union government for the implementation of the Uniform Civil Code. The Judicial reminders began in 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum[1], popularly known as the Shah Bano case. In this case the apex court ruled that a Muslim woman was entitled to alimony under the Section 125 of the CrPC, like anybody else. The then Chief Justice, Y.V. Chandrachud made an observation stating that, “a common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”. Following this, came the Sarla Mudgal v. Union of India[2] where, the issue was whether a Hindu husband, married as per the norms of Hindu law, can solemnize second marriage by embracing Islam. The Court held that the first marriage can be dissolved under the Hindu Marriage Act, 1955. The first marriage would therefore, still be valid and under Hindu law. Under Section 494 of the Indian Penal Code, 1860 the second marriage, solemnized after his conversion, and would be illegal. The Supreme Court in John Vallamatton v. Union of India[3] struck down Section 118 of the Indian Succession Act stating that it was discriminatory against the Christians as it imposed unreasonable restrictions on their donation of property for religious or charitable purpose by will. The Court has reminded the government to have a re-look into Article 44 of Indian Constitution, which suggest Uniform civil code for the citizens.

In July 2015, Supreme Court while hearing on the rights of Christian mothers favoured the implementation of Uniform Civil Code. In this case, the court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.”

Bench of Justices Vikramjit Sen and Shiva Kirti Singh while hearing petition on the legality of provision which compels Christian couples to wait for at least two years before filing for divorce, instead of one year as specified in other statutes such as the Special Marriage Act, the Hindu Marriage Act and the Parsi Marriage and Divorce Act, asked the Solicitor General to seek the government’s view on implementing Uniform Civil Code to clear out the confusion and chaos created by following different personal laws[4].

Apart from the constant judicial reminders, India has ratified the International Covenant on Civil and Political Rights, 1966, and International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 therefore is bound to enforce the relevant provisions and ensure gender equality under its national laws. The rights of women are usually limited under religious law, be it Hindu or Muslim. Polygamy and the unilateral talaq without the wife’s consent are certainly discrimination against women. By tolerating such laws the State breaches its duty under international law and it becomes an accomplice in the discrimination of the female, which is illegal under its own laws.

It is ironical to note that Islamic countries like Syria, Tunisia, Morocco, Pakistan, Iran etc have codified the personal law where in the practice of polygamy has been either totally prohibited or severely curtailed to check the misuse and abuse of this obnoxious practice.

The major controversy surrounding the implementation of UCC is that it affects the religious beliefs. In S.R.Bommai v. Union of India, it was precisely pointed out that “religion is the matter of individual faith and cannot be mixed with secular activities”. Law regulates only the secular activities. When such activities run counter to public order, morality or gender equality or a policy of social welfare upon which the State has embarked, then the state becomes obliged to make for welfare of the people as a whole. UCC is one such code whose implementation is very much crucial to maintain gender equality and social welfare. The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance i.e. UCC will not compel a Hindu to perform a nikah or force a Muslim to carry out saptapadi. But there will be a common law in the matters of inheritance, right to property, maintenance and succession.

The time has come for us to take a close look at the Goa Family Law derived from the Portuguese Civil Procedure Code and see if it could be a useful starting point for a change & bringing in UCC. To sum up in last, Uniform Civil Code is the need of the hour. For citizens belonging to different religions and denominations, it is imperative that for promotion of national unity and solidarity a unified code is an absolute necessity on which there can be no compromise.

[1] 1985 SCR (3) 844

[2] AIR 1995 SC 1531

[3] AIR2003SC2902

[4] Utkarsh Anand, Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt, October 13, 2015, available at http://indianexpress.com/article/india/india-news-india/uniform-civil-code-supreme-court-asks-govt-why-cant-it-be-done-tell-us-your-plan/