Author: Md Ibaadur Rahman, I year of B.A.,LL.B.(Hons.) from Aligarh Muslim University
“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”- Article 44 of the Indian Constitution.
Introduction
To understand the concept of the Uniform Civil Code (hereinafter as UCC) we first need to dig deep into the structure of Indian Law, which can be broadly classified into 2 categories namely, Criminal Law and Civil Law.
Criminal laws of the country are secular and apply to all religious and tribal communities indiscriminately. Now considering the Civil laws, they are more than not, secular in nature, like the Law of Torts, Property laws, and Law of Contract. The only problem arises when considering the Family laws section of Civil Laws because every religious community has its laws in this regard. In India, we have different sets of Family laws for Muslims, Parsis, Christians, and Hindus (including Sikhs, Jains, and Buddhists).
The reasons put forward by the champions of UCC for its enforcement nationwide are: National integrity, Modernity, implementation of Secularism in its true sense, and removal of gender-unjust laws. [1]
PRE-INDEPENDENCE ERA AND MAKING OF THE CONSTITUTION
The will to have uniform laws was apparent from as early as the 1850’s when Criminal laws were being made Uniform and Secular in nature. The only portion where non-uniformity was seen was in Family laws which deal with the matters of marriage, divorce, maintenance, adoption, inheritance, and succession.
When different laws of Hindus were being amended and gender-unjust laws were being abrogated during the 1930s,[2] the Muslim elite class pressurized for the passing of Islamic laws according to which Muslims throughout India would be dealt in matters of Family Laws. The Act is known as Muslim Personal Law (Shariat) Application Act, 1937.
In 1941, B.N. Rao Committee was set up to codify the Hindu laws to remove all gender-unjust laws and enact laws considering modernity, but unfortunately, it was only limited to only one community, i.e., Hindus, leaving other communities’ laws untouched.
According to the recommendation of the Committee, Hindu Code Bills of the 1950s were passed and laws were enacted such as Hindu Marriage Act,1955, Hindu Succession Act, 1956, etc., However, the dream of B.R Ambedkar, the father of the Indian Constitution was left unfulfilled, mainly due to the communal atmosphere created due to large-scale blood-shedding during Partition. So, all in all, it was decided to incorporate the UCC in the Constitution under Article 44 enshrined in Part IV of the Constitution called Directive Principles of State Policy, as a directive medium for the future states to strive for.
POST INDEPENDENCE ERA AND THE RELEVANT CASES
UCC remained in the background till 1975 when suddenly the case of Mohd. Ahmed Khan v. Shah Bano Begum[3] once again brought the issue under the limelight. It was the case of maintenance, in which the divorced wife, Shah Bano, demanded maintenance under Section 125 of the CRPC, which is secular. The problem arose in front of the Supreme court when it was pointed out by the opposing counsel that the provision goes against the Islamic Shariat Act, 1937 under which no maintenance was to be provided to a divorced woman.
The court ruled in favor of Shah Bano, and it was decided that the divorced woman is entitled to maintenance. The decision stirred row throughout the nation, particularly, All India Muslim Personal Law Board and further orthodox sections of Muslim society completely opposed the decision and under the pressurized environment, Rajiv Gandhi’s government decided to pass the law called, Muslim Women (Protection of Rights on Divorce) Act, 1986.[4] This Act provided for the maintenance of a Divorced Muslim Woman, but only till the period of her iddat (3 lunar months after the pronouncement of divorce).
The legislation passed by Rajiv Gandhi’s government was further challenged and its Constitutionality was questioned in the case of Danial Latifi v. Union of India.[5] After interpreting the above-mentioned legislation, the Supreme Court stated that the maintenance needs to be provided to a woman even after the period of iddat, for which the husband has been provided with the period of 3 months to arrange for the money.
In 2017, we saw another landmark case dealing with Triple Talaq, called Shayara Bano v. Union of India,[6] which abrogated the Triple Talaq (Talaq-e-Biddat, i.e., pronouncing talaq 3 times at a single occurrence) declaring it as unconstitutional and against the women’s rights.
REVIEW OF GOA’S CIVIL CODE
Though Goa’s civil code is frequently cited as an example for applying the UCC throughout the nation. Especially after the remark of CJI Bobde in March 2021, there has been lots of discourse revolving around this topic.[7] On scrutinizing the Goa Civil code, one can be assured that it is not at all Uniform in nature and is biased towards Christian Community.
Some of the examples are:
Article 1057, Goa’s Civil Code, which deals with marriage is patently non-uniform and has a different procedure of marriage registration for Catholics and non-Catholics.
Article 1204, Goa’s Civil Code, which deals with divorce is another example of gender-unjust laws, according to which man can get a divorce if a wife commits adultery, but the wife can get a divorce only when the husband keeps a mistress in the conjugal home or abandons her.
Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 provides for the bigamy, viz., a husband can have a second wife if the first one fails to deliver a child by the age of 25, or fails to provide a male issue by the age of 30.
SUPREME COURT’S JUDICIAL ACTIVISM IN THIS REGARD
Supreme Court has been provided with the power of judicial activism under Article 142 of the Constitution. Although the Court has been quite active in all areas of law, in the case of UCC, it appears to rely on a mere rhetorical approach, in the meanwhile exerting the legislature to draft the law for the same.
The other possible reason for SC’s rhetoric approach could be the recent trend across the globe in favour of acceptance of legal pluralism.[8] As to sum it up, we can say that Supreme Court as the guardian of the Constitution advocates for the UCC but deep down accepts the recent trends and reality and is keener towards a pragmatic approach for solving this problem.
CONCLUSION
The laws in India are quite uniform baring Family laws, so what we need is ‘Uniform Family Laws’. We need to balance the aim of valuing and preserving the rich heritage of composite culture along with the renunciation of practices that are derogatory to women’s dignity as mentioned in Article 51A(f) and Article 51A(e) of the Constitution respectively.
There are 2 possible ways of doing it; one by drafting a common civil law applicable to all religious and cultural societies, which would be all-encompassing legislation. The other model is a piecemeal abrogation of gender-unjust and unconstitutional laws. The latter one despite being a slow process is more guarantying and better-sounding for maintaining integrity throughout the nation as has been demonstrated through the case of Shayara Bano. The piecemeal approach will further ease the task of the Judiciary in assimilating the different personal laws and can be further supplemented alongside a ‘within-the-community-change’ which will further reduce the friction.
[1] https://www.jstor.org/stable/26160070. [2] https://www.jstor.org/stable/40929192. [3] 1985 AIR 945. [4] https://www.jstor.org/stable/j.ctv120qr2d. [5] (2001) 7 SCC 740. [6] AIR 2017 9 SCC 1 (SC). [7] https://indianexpress.com/elections/chief-justice-of-india-s-a-bobde-lauds-uniform-civil-code-in-goa-7248631/ [8] https://www.jstor.org/stable/26160070