Shubham Jain elucidates the Uniform Civil Code, it’s objectives and advantages and the reasons for it’s non – implementation in the nation, while emphazing upon the need for it’s due execution as a step towards holistic welfare.
The term Uniform Civil Code (UCC) refers to unification of all personal laws, which is based on the scripture and custom of religious communities which exist in India. Article 44 of the Indian Constitution states – the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The constituent assembly had put Uniform Civil Code the Directive Principles of State Policies to be implemented over the period of time. There are lots of disputes about minorities’ rights and their personal laws. Mainly there are two hurdles in the execution of the Uniform Civil Code, which include –
- Necessary discrimination & equality under Article 14 & 15 of the Indian Constitution and
- A freedom and cultural Equality according to Articles 25 to 28 of the Indian Constitution.
Even in the Constituent Assembly’s debate, Dr. B.R. Ambedkar had said that – “it will be foolish step by government if they implement Uniform Civil Code without the assent of its people”. He also said that the UCC should be optional as Shariat Law in Muslims.
The objectives and behind the implementation of Uniform Civil Code are :
• It will endeavour to reduce the gap between the separate community as well as the subset within that community,
• It will have strict compliance for both one who is original as well as convert,
• It will fetch more advantages to the vulnerable group of the society i.e. woman and children
• It will cause actual equality and true realisation of rule of law and will minimise the tension between equality & discrimination and religious & cultural freedom or diversity.
India is a secular country where we respect each and every religion, therefore, in such a situation UCC cannot be implemented directly by any Government. There are many legislative efforts towards implementation of the Uniform Civil Code. At present, the NDA government formally asked the Law Commission to look into the issue and present the report.
In 1972, the Indian Adoption Act was introduced by the Govt India, but it could not succeed due to the opposition by the Muslim community. In 1982, the Government decided to revise the Act and amend it to not include the Muslim community. But at that time, it was opposed by Jewish community. They claimed that they had a Jorastian society in Bombay.
In the matter of UCC, basically judiciary doesn’t want to interfere. In the cases of Maharshi Avadhesh v. UOI and Women Action Group v. UOI, the Hon’ble Supreme Court held that to make law is the work of legislature. But in the cases of Mohd. Ahmed Khan v. Shah Bano Begum and Sarla Mudgal V. UOI, the Judicial Activism can be seen.I
In the case of Sarla Mudgal, mainly three questions were raised before the Hon’ble Supreme Court –
- Whether the Hindu husband, after marriage under Hindu Law, by subsequently embracing Islam can solemnize a 2nd marriage?
- Whether such a marriage, without dissolving the 1st marriage by law, would be valid marriage?
- Whether the apposed husband would be guilty for bigamy?
The ratio of this case is that in the lifetime of the wife, if a Hindu husband converts into Islam, and contracts another marriage, then the 2nd marriage will be void, and the husband converted shall be punishable under Sec. 492 and Sec. 495 of the Indian Penal Code , 1860. The Obiter Dicta of this judgement was to implement a Uniform Civil Code. But the Congress Government favoured the Muslim community and this verdict of Hon’ble court is not properly executed.
Recently, a Christian couple filed a writ petition in the Supreme Court of India and questioned as to why there is no common law for divorce in India. In other religions, there is a requirement of minimum one year of living separately from other, but among Christians, the period of separation should be at least 2 years.
Therefore, the Uniform Civil Code is necessary due to the many differences in the personal laws, which ultimately raise questions on the constitutional rights and liberty of the person.
Critical differentiations among some of the provisions of the personal laws, which realise the necessity of Uniform Civil Code, are as follows :
- Polygamy among Muslims, while otherwise the practice of Monogamy is undertaken among religions.
- Muslims can resort to extra judicial divorce ( a 3 – time pronouncement of Talak), although other religions not do not recognize such a practice.
- Muslim husband apostee means automatic dissolution of marriage.
- Conversion of the Muslim wife is not acceptable.
- A Muslim daughter gets only half of the property from the father, in case of single child, and if there is more than one, then it will be divided in 2/3. However, among Hindus, the daughter get an equal share in the property of her father.
The execution of the Uniform Civil Code is a necessity, which hasn’t seen the light of the day.
Thus, it becomes imperative that a realizations of it’s efficacy is undertaken by the State and the citizenry.
CITATIONS
[1] The constitution of India, 1950, Part IV, Directive Principles of state policies.
[2] 1994 SCC Supl. (1) 713
[3] AIR 1997, 3 SCC 573
[4] The Indian Penal Code 45 of 1860 as amended by The Criminal Law (Amendment) Act, 2013(13 of 2013).
