‘Uniform Civil Code’ is a term that has originated from the concept of ‘Civil Law Code’. The term ‘Civil Code’ is used to cover the entire body of laws relating to the property or include personal matters like marriage, divorce, maintenance, adoption and inheritance etc. The laws governing inheritance or divorce among Hindus are different from that of the Muslims or Christians and so on. ‘Uniform Civil Code’ means unifying all these personal laws to have one or single set of secular civil laws to secure all the citizens of India irrespective of their caste, creed, community or religion in India.
Article 44 of the Constitution of India (Directive Principles of State Policy) reads:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Article 44 as a directive principle enhances social justice and equality which the Preamble of the Constitution guarantees to all the citizens of India. Through this Uniform Civil Code, it would concern the legal aspects of all social events and transactions including birth, death, marriage, divorce, maintenance, succession, inheritance and adoption etc which relates to the rights and freedoms which were guaranteed under the Constitution, but not the social practices and cultural customs such as rituals, procedures, ceremonies, dress or language.
Article 37 of the Constitution of India makes it clear that the Directive Principles of State Policy-“Shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.”
India being one of the largest democratic countries in the world, at the same time encompasses and almost incomprehensibly complicated history in its secular legal system. Prior to 1900, the British contended themselves with finding an accommodation with the Islamic community, based on the principles of ‘Warren Hastings Judicial Plan of 1772’ – “ In suits relating to inheritance, marriage, caste and other religious usages and institutions, the laws of the Quran with respect to Mohammedans will be adhered to”. In 1790, the then British Governor-General Cornwallis has introduced a three-tier court system in India. He has appointed ‘Qazis’ and ‘Muftis’ as ‘Law officers’ to assist British Judges. The highest Criminal Court of this system is ‘Sadar Nizamat Adalat’. In cases pertaining to Muslims, it had to apply Islamic law as per the ‘fatwas’ of the Chief Qazi of the district and two Muftis. There is no proper Muslim Law or Act in India at that time. ‘The Shariat Act, 1937’ was enacted and it repealed all such provisions in earlier laws and legislations that permitted custom to override Muslim Law. The Act is the codified body of laws regarding Muslims and regarded as the ‘Muslim Personal Law Act’. However, this Act was not imposed on all Muslims and it was made applicable to only such Muslim persons who declared their intent in writing to come under the Act.
‘The Child Marriage Restraint Act, 1929’ was one of them which challenged the Muslim Law which restrained the marriage age of girls to 15 years and of boys to 18 years. According to the ‘Hanafi Law’ which was followed by the Muslim community, it was very hard for Muslim woman to obtain Divorce. Within the law, despite its stated aim of giving Muslim women a secular way out of their marriages, a series of provisions are aimed directly at Muslims by the enactment of ‘The Dissolution of Muslim Marriages Act, 1939’. Though through these enactments British intended to strengthen themselves by recognizing the importance of ‘Islamic Law’ to the Muslim Community, we can see from the late British colonial administration the Secular-Muslim divide after independence. A comparative study of the Hindus, Muslims and other minorities will reveal that the diversity of these laws cannot permit uniformity of any sort. The law may be reformed but since this would require activism from the conservative Muslim organizations, it is unlikely, as they have expressed little willingness to do so and in fact have fought reforms claiming that Muslim culture in India will be destroyed by them.
After the independence, The Special Marriage Act, 1954 was enacted by the Parliament to perform a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by them. The SC in the case of Mohammad Ahmed Khan v. Shah Bano Begum for the first time directed the Parliament for the enactment of ‘Uniform Civil Code’ in India. In this case a Muslim woman has claimed for maintenance from her husband under Section 125 of Criminal Procedure Code after obtaining Triple-Talak from him. The court has held that she has the right to get maintenance from her husband and entitled for maintenance under Section 125 of Cr.P.C. The then Chief Justice of India Y.V Chandrachud observed that “A common civil code will help the cause of national integration by removing desperate loyalties to law which having conflicting ideologies.” The Supreme Court once again in the case of Sarla Mudgal v. Union of India has directed the Government for the enactment of UCC in India. In this case the question was raised that whether a Hindu husband, married under the Hindu Law by embracing Islam can solemnize second marriage. It has been held that conversion to Islam and marrying again would not; by itself dissolve the Hindu marriage and thus, a second marriage solemnized after converting to Islam would be an offence under Section 494 of the Indian Penal Code.
Justice Kuldip Singh has expressed his opinion “It appears that even 41 years thereafter the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949.” The Governments which have and gone have so far failed to make any effort towards “unified personal laws for all Indians”. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, anymore, the introduction of Uniform Civil Code for all citizens in the territory of India. The UCC will not result in interference of one’s religious beliefs relating to inheritance, succession and maintenance. This means that under the UCC a Hindu will not be compelled to perform a ‘Nikah’ or a Muslim be forced to carry out ‘Saptapadi’. But in the matters of inheritance, right to property, maintenance and succession, there will be a common law. The essentials while codifying UCC were to impose monogamy banning multiple marriages under any religion, for marriages the age limit for a male should be of 21 years and for female it should be of 18 years, there should be compulsory registration for marriages, and the grounds for the divorce should be specifically laid down in the Code. Though there is a great possibility of the UCC being abused after its enactment, but the social welfare and benefits resulting from the implementation of UCC are far greater.
About the Author
Surya Sri is a final year student of NBM Law College, Visakhapatnam. She is determined to serve the nation and has an inclination towards Civil Services and is currently preparing for the same. She has pursued studies related to Human Rights and Criminology. She has keen interest in the fields of Public Policy and International affairs. She enjoys public speaking on social issues. Her other interests range from debating and researching on new aspects to interacting with people and being actively involved in community development. Her hobbies include listening to music, travelling and photography.