Posted in Civil Law, Constitution of India

UNIFORM CIVIL CODE- Is the time still not ripe?

Art 44 lays down a very significant directive principle of state policy- “State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India”. However, although directive principles are guiding stars of our constitution, they are not enforceable in court.

Citizens of India are governed by a variety of personal laws in matters of marriage, divorce, succession etc. Now, the question that arises is ‘Why can’t Indians stand on an equal footing in civil matters like marriage, divorce etc even after 68 years of independence? It is absolutely absurd to find that polygamy (the practice of a man to have more than one wife at a time) is legal amongst Muslims but an offence amongst other religious communities.

Uniform civil code is the only way to ensure that everyone has progressive standards of law to abide by equality in standards of justice. It is necessary to have a common code of law wherein all the traditions are harmonised in consonance with the modern times and applied uniformly to each and every Indian.

Judiciary has time and again given a clear indication to the legislature that uniform civil code is the need of the hour. There are several case laws to consolidate and support this argument.

In Jordan Diengheh v S.S. Chopra case the issue of different divorce laws under different religions was addressed and analysed. A Christian lady has married a Sikh man under Christian Marriage Act 1872. A few years later she had filed a petition for declaration of nullity of marriage and judicial separation under Indian Divorce Act.

However, a single bench of HC rejected this prayer of nullity of marriage and granted judicial separation. The division bench affirmed this decision on appeal. On special leave to appeal SC analysed that divorce laws under all the personal laws are far from uniform. The differences among the couple were irreconcilable but due to lack of required provisions for grant of divorce in Indian Divorce Act, the couple had no choice but to continue the meaningless marriage. The court once again observed this as a case that focused on the compulsive need of UCC. There was a need to consider mutual consent as a ground of divorce in all divorce acts in order to provide for a way out to such unhappy couples. Mutual consent was inserted as a ground of divorce in Indian Divorce Act in 2001.

Whenever UCC is discussed the case that remains is the Shah Bano case. The Supreme Court had and very rightly given the decision that Shah Bano was entitled to maintenance under Section 125 of CrPc. But subject to the growing protests from the Muslim community this decision had to be struck down.

However, the depressing part is that the debate on UCC has got trapped in politics. Instead of reaching out to a consensus, it has become a blame game played by different political parties.

As observed by Supreme court in Sarla Mudgal’s case, the implementation of Uniform Civil Code is imperative for the protection of the oppressed and the helpless women, who are suffering only and only in the name of religion. There is no logical connection between religion and personal law in a civilised society.  Years after the Shah Bano case, the case that came to the picture was the Shayara Banu case. In 2015, she was divorced by her husband who gave her triple talaq for no such justifiable reasons. She was tortured relentlessly and in her entire married life tolerated this torture just due to the fear of being “triple talaqued” by her husband. But at last her fears came true.

In 1954, when the then Prime Minister, Jawaharlal  Nehru was asked as to why UCC hasn’t been implemented yet, he replied that the time is not ripe to make it come to force. It is rather interesting to note that today even after 68 years of independence the time does not seem to be ripe. How long are we going to wait for such numerous Shah Banos or Shayra Banus or Sarla Mudgars to suffer????

Therefore, the time has arrived that we adopt one nation one statute policy. If the same law of contract or torts applies to a Hindu or Muslim, why not the same law of marriage?

Hence top here with this I stop my pen just with the hope that we all rise above politics and lead India towards a better nation.



ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

Posted in Constitution of India

Uniform Civil Code: Finding Unity in diversity

This article has been written by Miracline Paul SusiMiracline 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/



The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles

Posted in Critical Analysis, Personal Laws, Social Issues

Uniform Civil Code and Secularism

This article has been written by Chirag Jindal. Chirag is a first-year student from National University of Advanced Legal Studies, Kochi.

 

 

The Law Commission of India has recently released a questionnaire on the matter of Uniform Civil Code. All the concerned citizens of our nation are expected to engage and provide their opinions as well as suggestions for the revision and reformation of family laws in India. As provided by the Law Commission, the object of undertaking this endeavour is “to address discrimination against vulnerable groups and harmonise the various cultural practices.” And the debate is now open to the general public on the issue of Uniform Civil Code.
The debate on “Whether to have a Uniform Civil Code in such a diverse nation with so many social, political, economic, religious and ethnic groups?” is not recent. Ever since the inception of our Constitution, the debate has continued and is still going on. Article 44 of Part III of the Constitution (i.e. The Directive Principles of State Policy) provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Although our Constitution lays down the Directive Principle for the Uniform Civil Code, it does not explicitly mention how to achieve this task. Therefore, this issue has been left to debate in public and it continues from the time when India became independent till the present day and is still going on.
Now let’s move further and try to analyse Uniform Civil Code from the view of the fundamental principle of Secularism in our nation. Although the word SECULAR in the Preamble of the Indian Constitution was added by the 42nd Amendment, India was a secular country from the day when the Constitution entered into force. The 42nd Amendment just made explicit what was implied from the Constitution. Before the 42nd Amendment, Secular spirit of India was implied under Articles 14, 15, 25, 26, 27, and 28. Though the addition of word SECULAR was a good initiative, the Amendment has left it open for debate, discussion and interpretation.
On one hand, the Constitution provides for the Secular nature of the country but, on the other hand, it also directs the State to endeavour for the Uniform Civil Code. So, is this contradiction a flaw in our Constitution? Well looking at this problem from the historical front, at the time of adoption and commencement of our Constitution there were so many religious minorities in India and they were so left behind in social, political and economic spheres of life that the Constitution-makers thought it fit to provide for their upliftment in all spheres of life. But as India is one country and we all are Indians, the Constitution makers also provided to endeavour for the Uniform Civil Code. Consequently, the question which arises next is, “Whether it is the right time to implement the Uniform Civil Code in our Country?”
As far as I am concerned, I don’t think that the time has come to implement Uniform Civil Code. There are mainly two reasons for this.
Firstly, till now, neither the legislature nor the judiciary has attempted to define the word SECULAR; what does it mean? There are concepts definitions of Secularism which are accepted in the world. The first is the neutrality concept which means that there should a separation of Sate and Religion and the State should not interfere in any way in the matters concerned with religion. This concept of Secularism prevails in the Western Countries. The second is the equality concept which means that State shall treat all religions equally and should not discriminate among them. Indian model is secularism is mainly based on the equality concept. The argument here is, although the Indian model is based on equality principle, still no satisfactory definition has come up. So, we cannot exactly set up what Secularism actually mean in Indian Context.
Secondly, due to so much diversity present in our nation, it won’t be easy to determine what provisions to be included in Uniform Civil Code. Including a principle in Code which is contradictory even to one of the religions or groups may create a sense of tensions among the people and is also against the spirit of Secularism in India.
Conclusively, it can be said that the time to have a Uniform Civil Code in our country has not yet arrived and the State should still endeavor to provide for the Uniform Civil Code.

Posted in Debatable topics, Personal Laws

Are We Ready?

This article has been written by Abhipsa Upasana Dash. Abhipsa is a third-year student at Symbiosis Law School, Noida.

 

 

It’s not a term that rolls easily off the tongue or can be heard in the ongoing conversations around us. Yet, a ‘uniform civil code’, or more conveniently, UCC, has been gaining currency in recent months. Last week, the flurry of criticism rose again when the ruling government asked the Law Commission to appraise the feasibility of bringing about a UCC.

The actual concept of one nation, one law is more than a neat hashtag and goes back to the initial days of drafting of the Constitution, when the issue was hotly debated—while some members of the Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, others believed that this was a goal to be gratified in stages. The directive principle—“shall endeavour to secure for citizens a uniform civil code”—was a compromise since the time was not right.The legal merits for desirability of Uniform or Common Civil Code for every Indian, regardless of his or her religious identity, are indubitable. In fact, it is one of the “Directives” to State as enshrined in Article 44 of the Constitution of India. This “Directive” does not come in conflict with Article 25 of the Constitution of India.

The time of incorporating UCC has never been right since the day we adopted the Constitution. Yet, a new wave seems to be riding the country. It’s a wave that is looking with considerable less tolerance and more understanding at existing gender gaps, particularly where personal laws and religion are concerned. As women increasingly start questioning the established stereotypes and notions, storming male-only mosques and “pure” temples, the courts prepare to look at existing inequities, has the time finally come?

Historically, two seemingly opposed constituencies- women’s rights groups and the right-wing parties and organizations- have been the brand ambassadors of the idea of a UCC. Despite, the first stage of reform of the personal laws of Hindus—giving women the right to choose or divorce their partners, some rights in the property of their fathers and husbands, abolishing bigamy—faced considerable opposition from the then Jana Sangh—the precursor of the BharatiyaJanata Party (BJP) as well as the RashtriyaSwayamsevakSangh (RSS) making it ironic that the push for a UCC now comes from the BJP.

But with congress’s track record in kind, the speculation is ripe that it will never live down the shame of pushing back the rights of Muslim women by passing the perversely named Muslim Women (Protection of Rights under Divorce) in 1986. The passage of the Act by the Rajiv Gandhi government effectively reversed a Supreme Court judgement that granted maintenance to divorced Muslim women.

Where do we go from here, and how do we move forward? Can we put aside past acrimonies and suspicions?

Several issues remain.

The first of these is the argument that it’s still not the right time. Muslims all over the world are under siege. Moreover, this government’s true intentions are always doubtful among the minorities in this country. Controversies over beef, saffronization of school and college curriculums, love jihad, and the silence emanating from the top leadership on these controversies have done little to instill a feeling of confidence. Can confidence be instilled again?

Second, while a UCC has remained a wonderful principle, nobody has actually spelt out what this common code will look like. What are the nuts and bolts of this law? Is it to take the ‘best’ practices from all religions and, if so, which ones? How would it deal with polygamy not just among Muslims but also Hindus and tribals? What will happen to the tax exemptions and breaks granted to the Hindu Undivided Family (HUF)?

One way forward is to look at the UCC in terms of gender reform, a line favoured by many, including myself. But there is a caveat here, too. Can you look at parity of law for all women without first looking at parity between men and women? For instance, says former additional solicitor-general Indira Jaising, will our law-makers consider a concept of shared labour in marriages that would necessarily mean an equal division of assets acquired in the life of a marriage in case of a divorce?

One argument in favour of a status quo and against a UCC is that secular laws are always given precedence over personal, religious codes. In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”. It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others. Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law. However, justice cannot be dealt on a case-by-case mode.

There is another alternative—change from within. An end to practices such as triple talaq is already being demanded by social organizations. Law Board has not, so far, responded favourably even though an online petition by the BharatiyaMahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures.

And yet, there can be no turning back, no drowning out of voices demanding justice. This Eid, the three-century old AishbaghEidgah in Lucknow opened its doors to women to offer prayers for the first time in its history. It was a tiny step towards what could be a new beginning.