Decoding the Uniform Civil Code

                                  

Before going into the details of Uniform Civil Code and the issues related to it, lets understand certain key things for the purpose of understanding UCC better.

What is Personal Laws ?

            Personal Law is what one deals with his / her personal life from birth to death, namely laws of marriage, maintenance, adoption, custody, guardianship of children and succession.

What is meant by Codification of Personal civil law ?

            It means placing all the personal civil laws affecting the relationship between private citizens on a statutory basis.

Historical Background of personal Laws

            In colonial times, the Charter act of 1833 - conferred all the law making power on the Governor -General in Council. In 1833 British Government appointed a law commission headed by Macauly to codify Indian laws, which resulted in west driven IPC, CPC, etc....

            By 1840's the British Government had framed the uniform laws related to crimes, evidences and contract, but made no attempt to replace the personal laws of various religion with Uniform Civil Code. So the personal laws of various religion were allowed to continue during British rule in India. The British Indian judiciary provided for application of Hindus, Muslim, & English law by British Judges. British thought that the colonial states's role was restricted to adjudicating between different interpretations of religious laws. British Government was never interested in framing laws against personal laws out of the fear from orthodox society and its community leaders. However there are few exceptions like Abolition of Sati Act , Widow Remarriage Act , not out of colonial governments interest in reforming Indian society but because of pressure imposed on them by reform minded liberal intellectuals like Ram Mohan Roy, Ishwar Chandra Vidhyasagar & etc.... who pushed the government to enact such progressive laws .

            After Independence, and commencement of Indian constitution, Article 14 of the Indian constitution grants " Equality before law and Equal protection of law " to all its citizens but when it comes to personal issues like marriage, divorce, inheritance, custody of children, maintenance etc...... Hindus, Sikhs, Buddhist, Jain's in India are governed by the provision of 

The Hindu marriage act 1955

The Hindu succession act 1956

The Hindu minority & Guardianship act 1956

The Hindu adoption & maintenance act 1956 

Muslims in India are governed by the provision of Muslim personal law (shariat) application act 1937 

Christians in India are governed by the provisions of 

The Indian christian marriage act 1872

The Indian divorce act 1869

The concerts marriage dissolution act 1936 

Parsi's in India are governed by the provision of 

Parsi marriage & divorce act 1936 

          Letting different religion to have different personal law as mentioned above led to some contradictions, like General law of marriages was enacted in 1954, yet separate Hindu marriage 1955 was enacted, Guardian & wards act was enacted in 1890 which was applicable to everybody, yet separate Hindu minority & guardianship act 1956 was enacted, Indian succession act was enacted in 1925, yet a separate Hindu succession act was enacted in 1956 

          Apart from separate civil code and its consequent contradictions, there exist certain laws which apply to every community & individual irrespective of the religion or personal law like  

• The special marriage act 1954 - It deals with inter cast and inter religious marriages. It lays out provision for marital law irrespective of the religion to which the person concerned belong. Muslims, Hindus, Christians, etc... too can get married under this law . This act applies to every state of India except J & K. This act extends not only to the Indian citizens belonging to different caste & religion living in India but also to the Indian nationals living abroad.
• The dowry prohibition act 
• Domestic violence act 
• Maintenance of parents & senior citizens act 
• Child marriage prohibition act 

What is Uniform Civil Code ?

          Uniform Civil Code is a proposal to have a generic set of laws for every citizen irrespective of the religion, such laws will replace the personal laws based on the scriptures & customs of each major religious community in India. These laws are distinguished from public law & cover marriage, divorce, inheritance, adoption & maintenance.

          UCC was one of the central debate in the constituent assembly. Many members of the constituent assembly believed that the existence of personal laws based on religion has kept the nation divided into water tight compartments in many aspect of life. J.Nehru & Dr B.R.Ambedkar were among those favoring UCC . Both of them, especially B.R.Ambedkar saw the implementation of UCC as an acid test of India's commitment to secularism and modernization. 

B.R.Ambedkar " If personal laws are to be saved,... in social matters we will come to a standstill "

         But several other members of the constituent assembly were against the UCC. The aftermath of partition had left the Muslims who remained minority in India vulnerable & confused. A Muslim member pointed out that " As far as the mussalmans are concerned, their law of accession, inheritance, marriage & divorce are completely dependent upon their religion". Even Hindu traditionalist in constituent assembly showed strong reservation against any reforms of the Hindu traditions. 

B.R.Ambedkar lamented " I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole 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 in order to reform our social system, which is so full of inequities, so full of inequalities, discrimination's & other things, which conflict with our fundamental rights " 

        Some other members of the constituent assembly thought that the implementation of UCC at that moment was in advance of the time. So in spite of passionate arguments, Constituent Assembly was unable to arrive at a consensus, hence a directive principle was struck regarding UCC in the constitution under Article 44 which say " The sate shall endeavor to secure for the citizens a UCC through the territory of India"

        In Independent India, the government has referred the issue of UCC to Law Commission of India (LCI) every now and then. The LCI was asked to examine the issue ( i.e. UCC ) and give a report. LCI has not been asked to draft a UCC nor it is its job, but until now there has been no report on UCC by LCI. It has not examined the issue at all. 

       Whenever this topic of UCC is taken up, there is a certain amount of discomfort observed within minority community especially among Muslims. There is a feeling that it is aimed at them, unfortunate thing is that, UCC has always been framed in the context of communal politics, may see it as a majoritarianism under the grab of social reform. The reason for such misconception & discomfort is that there is no clear picture of what UCC will be like. UCC is in the constitution under Article 44 ever since constitution was framed, but no government has tried to give a draft of UCC and merely held talks under air. In order to dispel the general perception with in the minority community that UCC is an euphemism for Hindu Civil Code, a UCC draft needs to be prepared. A draft can be written down in the first place and then the objection can be invited.

        Despite the political ambivalence surrounding the issue, The Supreme Court time and again advocated in favor of UCC. Following are some of the Landmark SC judgment, where SC have sidelined personal laws based on religion. 

Shah Bano Case (1985)  - Mohd Ahmed Khan Vs Shan Bano Begam

                                          

          The petitioner Shah Bano had sought maintenance from her ex husband Mohd Ahmed Khan, who divorced her after 40 years of their marriage by triple talaaq & denied her the regular maintenance. As per the Muslim personal law - divorced Muslim women has the right to maintenance only for the period of Iddat ( about 3 months )

          High Court gave verdict in favor of Shah Bano. Mohd Ahmed Khan filed an appeal in SC against the HC order,The SC upheld the HC order and again gave verdict in favor of Shah Bano by invoking section 125 of CPC, where by a divorced women was entitled to claim allowance from her ex husband if he had taken another wife ( as Mohd Ahmed Khan did ) and if she had not remarried and could not other wise maintain her self ( as was the case with Shah Bano ) 

         The SC also recommended that a UCC should be set up. The court was of the opinion that a UCC may reduce the discrimination faced by the women from the personal laws. 

         Initially, them PM Rajiv Gandhi welcomed the verdict. But the Muslim conservatives and clerics criticized the judgement as an attack on Islamic culture. Three months later G M Banatwala, moved a private member bill seeking to exempt Muslims from the purview of section 125 of CPC, but it was opposed by Arif Mohammed Khan ( congress minister ) with the support of PM Rajiv Gandhi. Mean while, Shah Bano(75) in her native was denounced as infidel and was ostracized, soon she scumbed to the pressure, she agreed that she would donate the maintenance to charity and she opposed any judicial interference in Muslim personal law. 

        Congress lost many by-election in north India due to Shah Bano factor, Rajiv Gandhi government panicked, rather than showing some political spine, In feb 1986 government introduced Muslim women ( protection of rights on divorce) bill 1986 and passed it into an act which took Muslim personal out of section 125 CPC. The act was passed to eclipse the SC judgement in Shah Bano case. The act maintained that a Muslim women has the right to maintenance for only the period of Iddat ( about 3 months) after the divorce and therefore shifted the onus of maintaining her to her relatives or the Wakf board (Wakf means a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognized by Muslim Law. It could be a madrassa, mosque, tomb or graveyard. The grant is known as mushrut-ul-khidmat, and a person making such dedication is known as Wakf. Waqf Board is a legal body responsible for management, upkeep, preservation and utilization of properties donated or constructed by Muslim rulers or people from the community for public use. Waqf boards are formed by the government under the Waqf Act, 1995 through a gazette notification.).Arif Mohammed Khan resigned as a sign of protest against this act. 

Sarala Mudgal & Others Vs Union of India case ( 1995)

         Many Hindu men embraced Islam to benefit from the personal law of that religion and be able to have a second wife. Main petitioner in this case was, Kalyani - a NGO that works with needy and distressed women which is headed by Sarala Mudugal. In this case section 494 of IPC, Article 14, 15, 20 were discussed in detail. The court has discussed two issues in detail

1. Whether a Hindu husband married under Hindu law is allowed to embrace Islam and then second another ?

2. Whether the husband can be charged under 494 of IPC ?

         SC held that 1st marriage would have to be dissolved under the Hindu marriage act 1955. The man's 1st marriage would therefore, still be valid and under Hindu law, his 2nd marriage solemnized after his conversion would be illegal under section 494 of IPC

         Justice Kuldip Singh while delivering the judgment remarked "when more than 80 % of the citizen have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of UCC for all citizen in the territory of India" there was an appeal to the government to have a re look at article 44.

         In Sarala Mudugal case, the Deva Gowda led united front government took the position before the SC that it would take step towards a UCC "only if the communities which desire such a code approach the government and the initiative themselves in the matter". Therefore until all communities together ask for a UCC, the government will not address the issue on its own .

Lily Thomas & others Vs Union of India & others case (2000)

          Jaimiat ulema Hind & various others, filed a review petition under Article 136 of Indian constitution to review the law laid down by Sarala Mudugal case 1995. The petitioners argued that laws set by Sarala Mudugal case breached the Fundamental Right guaranteed under Article 20 - protection in respect of conviction for offence, Article 21 - right to life and personal liberty, Article 25 - freedom of conscience, free profession, practice & propagation of religion, Article 26 - freedom to manage religious affairs.

         Lily Thomas is the lawyer of distressed women who have been a victim of bigamous marriage through religious conversion. Lily Thomas argued that, marriage is a sacred institution & resorting to the act of conversion to Islam so as to commit the act of bigamy as Muslim personal law allows it, is a feigned attempt where freedom of conscience is not at stake but the women freedom of facing such condition of bigamous marriage is at stake and this betrayal is violative of Article 21- right to life and personal liberty. Further Lily Thomas urged the court to declare polygamy in the Muslim law to be unconstitutional. This was one of the most profound argument placed before the SC for adopting a UCC so that no personal religious laws makes violation of Fundamental Rights.

       Judgement : 2 judge bench of SC comprising Justice S.Saghir Ahmed & Justice R.P.Sethi has upheld the verdict of the Sarala Mudugal case and further has enforced the same. Court held that such conversion is not exercise of freedom of conscience but rather feigned and solely for bigamous marriage rather than any changes in neither faith nor practice of faith. Hence, marriage resulting from such conversion is void also due to violation of article 21. In spite of such verdict, SC said that it could not direct the center to introduce a UCC.

John Vallamatton Vs Union of India case (2003)

       John Vallamatton, a Christian priest challenged the constitutional validity of Section 118 of Indian Succession Act 1925, claiming that it was unfairly discriminatory against Christians for placing unreasonable restriction on their ability to will away land as donation for charitable & religious purpose.

       A 3 judge bench of SC comprising chief justice V.K.Khare, struck down the provision of section 188 of Indian Succession Act 1925, as being violative of Article 14. Chief justice V.NKhare commented that " It is a matter of great regret that article 44 of the constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradiction based on ideologies " 

Clarence Pais Vs Union of India case (2017)

        There has been a misconception regarding divorce granted by church, that once that is granted, the marriage is over. But that is not the case, the grant of divorce by church does not end the marriage. Indian divorce act 1869, which specifically mentions that only court can grant divorce to christian couple.

       84 year old Clarence Pais ( A former president of the catholic association of dakshina kannada in Karnataka), filed a writ petition in 2013 seeking a judicial declaration that divorce decrees passed by ecclesiastical tribunal ( of or associated with church) are valid and binding. He argued that when court can recognize dissolution by triple talaq under Muslim personal law, they should also recognize the canon law (It is a body of laws and regulations made by ecclesiastical authority for the governance of christian organisation or church or its members ) as a personal law of Indian Catholics.

       Judgement : 2 judge bench of SC consisting of Chief Justice J.S.Kherhar & Justice D.V.Chandrachud, refused to accept this plea and upheld the 1869 Indian divorce at. SC said church courts cannot veto divorce law. The SC referred to its 1996 judgement in the case of Molly Joseph Vs George Sebastian, in which SC held that the implication of the cannon law is confined either theological or ecclesiastical and has no legal impact on the divorce of marriage between two person professing christian religion.

After divorce act 1869, came into force, dissolution or annulment under christian personal law cannot have any legal impact as statue has provided a different procedure and a different code for divorce. SO SC in its 2017 order, once again granted supremacy to parliamentary laws over  personal laws of religious groups.

Triple Talaq case or Shayara Bano case

                                         

What is Triple Talaq ?

A process of divorce in Islam in which the husband can dissolve marriage by pronouncing talaq trice, sometimes even by phone or text message.

Talaq - i - bidat ( Instantaneous talaq) where divorce is complete when " talaq" is uttered tree times in one go.

Talaq Ahasan which requires a 90 day period of abstinence after the pronouncement

Talaq Hasan which requires one month long abstinence gap between utterances of each talaq

The latter two are part of codified Islamic personal law but 1st one is a custom / practice that is not codified in Islamic personal law

What is Nikah Halala ?

Nikah Halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying some one else, consummating it, getting divorced, observing the separation period called 'Iddat' and then coming back to him again.

        All India Muslim Personal Law Board (AIMPLB) has lent support to the practice saying that it is a way to save marriages. It says that the mandatory nature of Nikah halala deters the husband from giving hasty divorces.The argument, however, does not go down well with the activists who question the suffering and exploitation of women in the process.

What is Khula ?

Muslim women seeking divorce are required to get the concurrence of their husband or the qazi to get the marriage dissolved.

        Presently Muslim men do not have to move court to get a divorce. They can instantly get divorce unlike a Muslim woman, who has to approach a court under section 2 of the dissolution of Muslim marriage act 1939. The statue gives specific grounds under which a women can seek divorce.

        The court is presently hearing a row of petition filed by Muslim women and organisations challenging the constitutionality of triple talaq and leading them is a suo motu PIL petition from SC itself on the question whether practice of Islamic personal law like Triple Talaq, Nikah Halala and polygamy discriminates and violate the dignity against Muslim women

       Keeping the sensitive nature of the issue in mind, Chief Justice of India JS Kherar constituted a multi faith panel of 5 judge constitutional bench which include Justice Kurian Joseph( christian), RF Nariman ( parsi), UU Lalit ( Hindu), & Abdul Nazeer ( Muslim).

       SC said that it would examine whether triple talaq is fundamental or essential part of the religion, and if so it would not interfere any further, SC had also said it is not going to examine the validity of polygamy.

       AIMPLB ( All India Muslim personal law board ) claims that any court order on triple talaq would be an infringement of Muslim community right to follow an proffess its religion as per Article 25 of Indian constitution and that court has no right to interfere in the religious matter of a community. In the course of hearing Chief justice of India responded that " Article 25 protects a practice only if it is essential to religion, otherwise it does not"

       Senior Advocate AS Chandan arguing for Shayara Bano is of the opinion that triple talaq is not fundamental part of Islam and the evidence lies in the fact that various Islamic countries including Pakistan, Afghanistan, Bangladesh has done away with it .

      Kapil Sibal appearing for AIMPLB pointed out that these countries has done away with triple talaq through legislation and not through the court. He further argued that triple talaq is an 1,400 year old practice and neither SC nor government should dictate reforms to Islam. Reform would come from within the community on its own terms.

        But some Islamic scholars are of the view that Instant triple talaq ( talaq-i-bida) has no basis in the koran and therefore, is not fundamental to Islam, they say that Muslim theologians must understand that the concepts not sanctified by the primary source of Muslim law, the koran, can not be declared as essential part of Islam irrespective of where they draw their legitimacy from. All sources of Islamic law, be it Haddes, IJma or qiyas, are subservient to the koran.

       SC in the course of hearing has asked Government( which is supporting Muslim women organisations petition ) where will Muslim men go for divorce if triple talaq is declared unconstitutional. SC said a vacuum may arise if triple talaq is declared invalid, leaving Muslim men no forum to go to for a divorce. Government responded saying it will enact an act in legislature to give effect to such situation.

        In spite of such arguments for and against triple talaq, judicial and constitutional experts are highlighting a significant technical problem. That is, In order to subject triple talaq( i.e talaq-i-bidat) to constitutional norms, court must first overrule its own judgement in State of Bombay Vs Narasu Appa Mali case, In that case court held that uncodified personal laws may not be scrutinized for violation fundamental Right. On the other hand other school of constitutional experts say that, technically, all personal laws are customary laws so such customs of religion also comes under the purview of "law" as defined in the Article 13 of Indian constitution. So far SC has not given an authoritative decision on whether personal law fall under the ambit of article 13 of the constitution or not.

         On 22nd August 2017, In a landmark judgement, multi faith constitutional bench of SC set aside instant talaq with immediate effect as a manifestly arbitrary practice not protected by article 25. 

Is the time ripe for UCC?

On 4th July 2016, The union law ministry asked the Law Commission to examine in detail all issues pertaining to the UCC and submit a report. The Law Commission has circulated a questionnaire on the feasibility of evolving a UCC. The questionnaire not only talks about the Muslims. It also takes into account the problems of the Christians, Hindus & other religions.

Arguments in favor of UCC 

• A Secular country like India need UCC for all its citizens rather than having different personal laws based on religion and customs, A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies...
• The inter religious marriage between Hindus & Jain's, Hindus & Muslims etc... wont be governed under Hindu marriage act or any other religious personal laws
• UCC is needed for achieving gender justice. The rights of women  are usually limited under religious laws, be it Hindus ( Eg : a Hindu women has no right to adopt a child on her own without the permission of her spouse ) or Muslims ( Eg : triple talaq).
• Many practices governed  by religious tradition are at odds with the fundamental rights guaranteed in the Indian constitution 
• To eliminate inconsistency in application of tax laws. For eg: The Instrument of Hindu undivided family ( HUF) allows getting tax exceptions where as other community cant, Muslims are exempted from paying stamp duty on gift deeds which other community cant get exemption. 
• As of now only Hindus, Sikhs, Buddhist get Scheduled Cast status whereas dalit Muslims, pasmanda Muslims, dalit Christians are deprived of Scheduled cast status despite being socially backward. National Commission for Minorities has suggested extending reservation to dalit Muslims and dalit Christians also. 
• There is vast difference within a religious community itself, For eg : Different Hindu customs across the country like marriage between first cousins, matriarchal system of succession which is not possible in North India. What is good marriage in TN is considered as incestuous in Haryana. This creates lot of confusion 

Arguments against UCC 

• India has a positive notion of secularism, where each religion can thrive on its own merits. what is needed is Unity among religions and not uniformity of religions, If we have lived without UCC and maintained our secular nature since independence, what is the need to bring it now ?
• There exist a special marriage act 1954 which deals with inter religious marriages, so UCC is not mandatory for protecting the inter religious marriages 
• Gender Justice is just an eye wash, what will change at ground that is different from today? In Shah Bano case SC sidelined personal law which is arbitrary, so SC is there to do the corrective measures. 
• There is no doubt every personal law including Hindu, Muslim, Christians, need internal reform, but the motive beyond implementing UCC is political and not social.

Is there an Alternative ? 

         Many believe Goa civil code is a glare model for uniform civil code in our country.... Goa civil code is the residue of Portuguese civil code of 1867, When Goa became a part of Indian Union in 1961 Parliament authorized the continuance of the existing Portuguese Civil Code of 1867 to Goa by virtue of  the Goa Daman and Diu Administration Act, 1962 which shall be amended as per the necessary requirements and shall be repealed by competent legislature.

        In 1981 the government of India appointed a personal law committee to determine if personal laws could be implemented in the state but it failed to do so because it was met with stiff resistance from the Muslim Youth Welfare Association and the Goa Muslim Women's Associations

Some special provisions of  Goa civil code, are 

• Under the Goa civil code marriage is  a contract between two persons of different sex that is man and woman with the purpose of living together and constitute a legitimate family together
• Any form of polygamy or bigamy is strictly prohibited under the Goa civil code except for certain special cases. Monogamy is the prescribed form of marriage.
• Men cannot marry before they attain the age of 21 and the same is 18 in the case of women.
• Consent is required from both men and women before and at the time of marriage.
• All the marriages should be lawfully registered under the court of law and any marriage if not registered shall be considered as null and void before the court of law.
• Under the Goa civil code there are four methods of marriage. Three of them are the conventional methods of marriage and the fourth one is the communion of assets
• Under the law of communion of assets as soon as the person gets married his spouse automatically gets half of the assets thus each having undivided rights over others assets.
• There should be consent of both husband and wife in the case they file a divorce case in the court of law and proper grounds must be presented before the court for the divorce
• There are certain restrictions due to which a certain category of persons are not allowed to marry under certain circumstances.
• A married person cannot sell the property without the consent of his/her spouse.
• The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children compulsorily. This inherited property must be shared equally among the children.
• Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also, there is no provision for a verbal divorce.

        The provisions under the Goa civil code are far more better than the other personal laws, however it is also not with out any discrimination, it has its own short comings. The Goa Civil Code is not strictly a uniform civil code, as it has specific provisions for certain communities.For example

• The Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits bigamy.
• The Roman Catholics can solemnize their marriages in church after obtaining a No Objection Certificate from the Civil Registrar. For others, only a civil registration of the marriage is accepted as a proof of marriage. 
• The Catholics marrying in the church are excluded from divorce provisions under the civil law.
• For Hindus, the divorce is permitted only on the grounds of adultery by the wife.
• The law has inequalities in case of adopted and illegitimate children.

        One of the major problems in implementing the Goa civil code is that as it is derived from the Portuguese Law it is difficult to understand and convert the same into the English language. Very few efforts have been taken to solve this issue which creates an inconvenience for the lawyers and the whole judiciary to interpret the law.

        Reform of every religion is needed and demand should come from the people, It must be kept in mind that gender equality is a sacred principle of our constitution and modern society. Article 14 (Equality before law) and Article 15 (Against specific discrimination) have to be upheld. Article 25 should not be interpreted for petty personal gains, thereby giving meaning to Article 21 (Right to live).The present day situations are different from the times when these practices originated. It is, thus, the right time to make necessary changes. There should be a larger debate on UCC to decide if it should be there or not and such debates should be done without polarizing the country. Government has to perform the advisory role. No particular time may be ripe for India to absorb a Uniform Civil Code in its entirety. It will have to be the result of gradual change that Indian society absorbs while interpreting different ways of its multicultural society.