In India, even the age of marriage is not uniform and even non-religion-neutral. This is the reason why India needs Uniform Civil Code. Long back even Dr. B.R. Ambedkar wanted Uniform Civil Code in our country. He said “I do not understand why religion should be given this vast, expansive jurisdiction to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty to reform our social system, which is so full of inequities, so full of inequalities, discriminations, and other things, which conflict with our fundamental rights”.
What Is a Uniform Civil Code?
The Uniform Civil Code (UCC) calls for the formulation and implementation of one law for India, which would apply to all religious communities in matters such as marriage, divorce, adoption, inheritance. The code comes under Article 44 of the Constitution, which lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India. Article 44 of the Constitution of India creates a positive duty on part of the State to enact a UCC which is applicable uniformly throughout the territory of India irrespective of religion, race, caste, creed, etc.
UCC is meant to replace currently applicable various laws applicable to various respective communities which are inconsistent with each other. These laws include the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act. Meanwhile, certain ones like Sharia (Islamic laws) are not codified and solely based upon their religious scriptures. The proposals in UCC include monogamy, equal rights for son and daughter over the inheritance of paternal property, and gender & religion-neutral laws in regards to will charity, divinity, guardianship, and sharing of custody. The laws may not result in much difference to the status of Hindu society as they have already applied to Hindus through Hindu code bills for decades.
Need Of Uniform Civil Code
The Supreme Court judgment in the Shah Bano case in 1985 highlighted the need for UCC. In this case, the court had lamented: “It is a matter of regret that Article 44 has remained a dead letter… The common civil code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is for the State, which is charged with the duty of securing a uniform civil code and it has legislative competence to do so.”
After India got Independence, the issue of the Uniform Civil Code was being debated at the Indian parliament in 1948. During the debate, Dr. B.R. Ambedkar and many other eminent nationalists favoured the implementation of the Uniform Civil Code but it was opposed by Muslim Fundamentalists like Poker Saheb and members from other religions. Therefore Uniform Civil Code found its place only under Directive Principals of State Policy in Article 44.
Presently, in India, different communities are governed by different Personal laws like Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Adoption and Maintenance Act 1956 & Hindu Minority & Guardianship Act (1956). Similarly, Muslims, Parsis, and Christians are governed by their laws. And it can also be argued that Personal Laws violate the principle of equality of the Constitution. So by bringing the UCC the principle of equality is restored.
UCC will promote gender justice by removing the inbuilt discriminatory provisions of personal laws such as:
- Under Hindu law, the Mitakshara branch of law denied to a Hindu daughter a right by birth in the joint family estate and this flowed logically from the fact that her place in the paternal family was only temporary as she belonged to her husband’s family on marriage.
- Islamic law prescribes that generally, a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased. Under Muslim law, the father is the sole guardian of the person and property of his minor child.
The judiciary has always tried to narrow the gap between the general provision of law and personal law. It is crystal clear from Bhagwan Dutt v Smt. Kamala Dev, wherein the apex court ignored the personal law and stressed that provisions under the Criminal Procedure Code must be made applicable to all irrespective of their religious beliefs.
The Supreme Court for the first time directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v Shah Bano Begum, popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman has a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. The then Chief Justice Y.V. Chandrachud observed that: “A common civil code will help the cause of national integration by removing the disparate loyalties to the law which have conflicting ideologies”.
In Bai Tahira v. Ali Hussain Fissalli Chothia, Justice V.R. Krishna Iyer states “Speaking for myself, there are several excellent provisions of the Muslim law understood in its pristine and progressive intendment which may adorn India’s common civil code. There is more in Mohammed than in Manu if interpreted in its humanist liberalism and away from the desert context, which helps women and orphans, modernize marriage and morals widens divorce and inheritance”.
In Shayla Bano v Union of India, the Supreme Court in its judgment, held the practice of Talak-ul-Biddat (triple talaq) to be unconstitutional. After a lot of deliberation, it was concluded that triple talaq is not an essential religious practice and therefore not protected under the provisions of Article 25. This judgment was not about religion, but about the rights of the individual. This judgment is often seen as a gateway to UCC.
The Uniform Civil Code if implemented would make a perfect balance between the protection of fundamental rights and religious beliefs of individuals. It will be a code that will be proper according to ordinary men of wisdom and without any bias of religious and political considerations. The process of implementation has been slow-paced particularly because of the difficulty of evolving a common understanding or consensus. Therefore there is a need for bringing awareness through discussion and deliberations among various religious communities and implement Uniform Civil Code.