Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

Abstract: At the time of inception of constitutionalism in India the Framers of constitution were with the intention to have Uniform civil code for the citizens of India and the same is represented by Article 44 of the Constitution of India which lays down that the State shall work towards administering the same set of civil laws to govern people belonging to different regions and religions.

The paper is about the judicious study of the much debated and controversial topic of a suitable legislation on Uniform Civil Code for all the citizens of India despite their religion or race or ethnicity in compliance with the constitutional mandate under Article 44.

Though a number of judgments in the Supreme Court have shown a marked inclination towards the establishment toward the UCC, no concrete step has been taken so far in this regard, in part due to the unresolved debate regarding the freedom of religion granted by Article 25 and 26, moreover Supreme Court in its recent observations has made it clear a UCC does not impinge upon the ‘right to religion’. Through this paper, the idea of UCC is mooted keeping in mind the history of the country, its composite culture when it comes to personal laws, as well as the current political and social scenario.

Introduction

Uniform civil code (“UCC”) is a set of common civil laws to govern all citizens irrespective of race, gender, caste, religion etc. If applied it will enforce the same set of rules on different people belonging to different regions and religions. The issue of UCC has been debated since the time of independence and has been in debate ever since. Constitution of India provides for the UCC under article 44 in the directive principles of state policy, directing the government to keep in mind the spirit of the articles under it while framing laws and policies. Though the principle enshrined in Article 44 is not enforceable in the courts of law, the Supreme Court has time and again directed the government to enforce article 44 of the Constitution of India.

A UCC that would set aside all the archaic and irrelevant laws is the need of the hour. Whenever the talks of UCC come up there is a certain amount of discomfort among the minorities. There is a feeling among them that it is aimed at them and the reason for this is that there is no clear picture of what UCC will be like. For 70 years it’s in the constitution but no government has ever tried to give a draft of UCC until recently law commission asked for public opinion on the same after the direction of Supreme Court.

The Indian Constitution specifies “the state shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.”[1] The question arises if there is a difference between UCC and common civil code. The term uniform means “The same throughout the structure or composition”. On combined reading of Article 14[2]and Article 44, it means equal law for equal being throughout the country and equals are to be treated equally.

A deeper analysis of the language brings forth the following elements:

1. The directive principle is addressed to the “State” and not exclusively to the legislature.

2. The state is being asked to “secure” the code which does not necessarily mean enacting it either by parliamentary legislation or by judicial law-making.

3. What the state is being asked to secure is that the civil code of India be uniformly applied to all the citizens of the country.

4. The application of the code is required to be uniform throughout the length and breadth of the nation.[3]

Tahir Mahmood adds that Article 44 merely speaks of territorial uniformity in the application of the civil laws. The interpretation that this provision basically requires a dramatic abolition of the personal laws of all the religious minorities in the country and the enactment in their place of an entirely novel code is based on faulty foundations.[4]His theory further safely interprets that Article 44 and its implementation along the lines suggested hereinabove will mean same laws for all the hindus all over the country, one in the same Muslim law for muslims all over the country, the same Christian law for all the Indian followers of Jesus Christ, and common personal law for all the parsis of India. [5]

However, today’s laws are silent on the issues like triple talaq or doesn’t talk about tax exemptions of the Hindu Undivided Family (“HUF”). While interpreting article 44 of the Indian Constitution we must not overlook these issues including gender discrimination faced by Muslim women which are guaranteed under article 15 of the Indian Constitution. Article 15 also requires non-discrimination based on sex whereas the personal law favours men in most of the cases, including in diverse and polygamy. Muslim man can divorce his wife by saying ‘Talaq Talaq Talaq’ whereas Muslim wife has to file a petition in court for the same. Polygamy is allowed while polyandry is prohibited. “In pursuance of the goal of secularism, the state must stop administrating religion-based personal laws.” He continued by saying “instead of wasting their energies in exerting theological and political pressure in order to secure an ‘immunity’ for their tradition personal law from the state legislative jurisdiction, the muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time worn and anachronistic interpretations, can enrich the common civil code of India.”[6]

HUF is a separate entity under the provision of section 2 (31)[7] of Income Tax Act, 1961. This means that HUF is treated as a separate individual member of the household. Therefore an individual can be accessed in two separate capacities that is of an individual and as a ‘karta’ of HUF. The maximum amount exempted from income tax is Rs. 2, 50,000 for both HUF and individual. Thus, in addition to basic exemption HUF is eligible for all the exemption that are available to an individual. It has become a mere tax planning tool in the hands of opulent Hindus. This is discriminatory towards religious minorities like Parsis, Muslims, Christians and Jews.

Though there is no UCC in India, there does exist Uniform Criminal Code in the form of Indian Penal Code and Criminal Procedure Code. The criminal law is equally applicable to all the citizens irrespective of their religious beliefs. Though the exact draft of such a civil code is yet to be prepared it should incorporate progressive and modern prospects from all existing personal laws of various religions and disregard those laws which are retrogressive in nature.

India has plethora of family laws and they are determined by the religion of the parties. Hindus, Jains, Sikhs, Buddhists are governed by Hindu law whereas Christians have Christians Marriage Act, 1872, The Indian Divorce Act, 1869 and Indian Succession Act, 1925. The Jews have a codified customary marriage law and in succession matters they are governed by Indian Succession Act, 1925. The Parsis have Parsi Marriage and Diverse Act, 1936 and a separate law of inheritance contained in the Indian Succession Act whose provision slightly differs from the rest of the Indian Succession Act. While the Muslims are governed by the Muslim Personal Law (Shariat) Act, 1937, The Dissolution of Muslim Marriage Act, 1939, the Muslim Women (protection of right on divorce) Act, 1986 and the Wakf Act, 1995.

History

Islamic law in India dates back to the time when Mughals arrived in India in 11th century and spread in most of the country. With the entry of British in 1600s they were faced with Islamic rule and this is when Anglo-Muhammadan law came into existence. In the search for effective and inexpensive modalities of rule, the British came to rely upon the devices of translation, textbook, and codification to adapt indigenous arrangements to the dictates of the colonial control.[8]

In 19th-century, there were many religious groups with their own customs and laws for example sati practice was widely popular among Hindus. The Britishers tried to reform such local religious customs, Lord William Bentinck passed the Bengal Sati Regulation Act, 1829 suppressing the Sati practice which later expanded outside of Bengal to all over India. Later, the Lex Loci report, 1840 worked towards the codification of Indian law relating to crime, contracts, evidences and it also recommended that the personal laws of Hindus, Muslims or any other religion should be kept outside of the codification. Later in 1843 British brought abolition of slavery act and replaced Islamic criminal codes with the use of evidence in courts.[9] In addition to this, Queen’s proclamation of 1859 promised to not interfere with the religious matters of the country. Thus by 1800s we see the formation of Muslim personal law system that remains alive in India till today.

Shariat Act, 1937 was passed covering various aspects of Anglo-Muhammadan law into single code. It recognised the importance of Islamic law of the Muslim community and hence was also known as Muslim personal law. It included provisions regarding marriage, divorce, mahr, gifts, maintenance, wills etc. Its aim is to formulate Islamic law code for Indian Muslims. The Britishers wanted to rule Indians according to their own personal laws. Since 1937 Shariat law governs the aspects of Muslim social life such as marriage, divorce, inheritance and family relations.

UCC was a highly debated issue during the drafting of Constitution of India. Eminent scholars like Dr B.R Ambedkar,Gopal Swamy Iyenger, Anantasayam Iyengar, K.M Munshiji among others were in favour of a UCC throughout India whereas the same was vehemently opposed by minority group scholars like Poker Sahib and others. During the discussion the chairman of the drafting committee Dr. B. R. Ambedkar rightly observed “We have in this country uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete criminal code operating throughout the country which is contained in the Indian Penal Code and the Criminal Procedure Code. The only province the civil law has not been able to innovate so far as the marriage and succession….… And it is the intention of those who desire to have article 35 is a part of constitution so as to bring about the change.”[10]

 While Mr. Naziruddin Ahmad’s contention was “The goal should be towards a uniform civil code but it should be gradual and with the consent of the people concerned. I have therefore in my amendment suggested that religious laws relating to particular communities should not be affected except with their consent to be ascertained in such manner as parliament may decide by law. Sir, that this is not a matter of mere idealism. It is a question of stern reality which we must not refuse to face and I believe it will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country. What the British in 175 years failed to door was afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the State to do all at once. I submit, Sir that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy.”[11]

Thus it can be seen through the glimpse of the heated debate on how Article 44 was included in directive principles of State policy. UCC has always been a sensitive issue and therefore our founding fathers of Indian constitution wisely put it under directive principles of state policy. Ambedkar and Nehru were strong supporters of UCC and believed that secularism does not mean separation of religion from the state but a tolerant neutrality towards all religions which are treated equally. Indian constitution which was strongly influenced by Nehru and Ambedkar did not recognise religious communities but only individuals to whom it guaranteed Article 25[12]. In the year 1955, Nehru thought of codifying the personal laws but was opposed by both the sides. He introduced Hindu Code Bill which intended to provide a civil code instead of a body of Hindu personal law and contained provisions relating to monogamy, divorce, equal division of property between son, daughter and widow, adoption, maintenance etc. the bill took a modernised to view on Hindu personal law which had been amended only a limited number of times by Britishers. It completely overlooked Muslim’s personal law and did not talk about the personal law of any other minority groups. It met with great controversy and subsequently divided into Hindu marriage bill, the Hindu adoption and maintenance bill and the Hindu succession bill. Jawahar Lal Nehru had to make many alterations to this bill’s before they were adopted as acts.

Need of UCC

Any state that compiles with international law comes under legal obligation to implement the provisions of such a convention and is legally bound to comply with the provisions of the said ratification. In 1966, India signed The International Covenant on Civil and Political Rights and in 1979, International Convention on the elimination of all forms of discrimination against women (“CEDAW”). Thus, signing this convention India becomes bound to enforce provisions relating to gender equality in it subcontinent. CEDAW specifically said that “the personal laws of the major communities had traditionally governed marital and family relations, with the government maintaining a policy of non-interference in such laws in the absence of a demand for a change from individual religious communities.” This committee expects India’s compliance to the provisions of international instrument and is noted that “steps have not been taken to reform the personal laws of the different religious and ethnic groups, in consultation with them, so as to conform to the Convention” and further said “the Government’s policy of non-intervention perpetuates sexual stereotypes, son preference and discrimination against women.”[13]

Article 15 of Constitution lays down a guarantee to every citizen that no discrimination shall be made on any ground and also empowers state to make special provisions for women and children. UCC has wrongly been interpreted as an assault on religion and religious identities including gender justice. The demand of change in personal law is essential as it would directly affect the status of women in family broadly in the sphere of marriage, divorce, maintenance, inheritance, succession, guardianship and adoption.

Gender equality and women’s empowerment are the call of the day and attempts are to be made to achieve satisfactory results. Everybody should be prepared to fight for the idea and vision of gender equality. On the question of gender justice Rajasthan High Court observed “in this new scenario our present judicial system is required to equip itself with new means to penetrate effectively in the social system to diagnose and kill no infecting viruses. The judiciary is required to shoulder much more tedious tasks to keep the ideals of a Constitution at top while dealing with every question of gender bias.”[14] Muslim personal law in India is inherently biased against women and many times leads to their exploitation. Moreover, Muslim women are precluded from enjoying the benefits accrued to them through secular law, which the counterparts from other religious communities enjoy.

Position in India

Of Divorce and Maintenance

In Bhagwan Dutt vs Smt. Kamala Devi[15] the apex court ignored the personal law and stressed that provisions of criminal procedure code should be made applicable to all irrespective of their religious beliefs. In Fuzlumbi v. Khader Vali[16] it was observed that the personal law can never hold against the policy of public law which is designed to achieve the objective of the welfare of the community at large. The Shah Bano case and its aftermath illustrated that Muslim women are entitled to claim maintenance under section 125 of criminal procedure code from her former husband even after the period of iddat has expired. To understand the situation that surrounds the rights of women another significant judgement in Noor Saba Khatoon vs Mohd. Quasim[17] was passed by Supreme Court that Muslim woman is entitled to claim maintenance for her children till they become major. The court held that both under the Muslim personal law and under section 125 of the criminal procedure code the obligation of the father was absolute when the children were living with the divorced wife. In another landmark judgement in Danial Latif vs Union of India[18] a five judge Constitution bench of the Supreme Court upheld the constitutional validity of the Muslim Women (protection of rights on diverse) Act, 1986 and held that a Muslim divorced woman has a right to maintenance even after Iddat period under the 1986 act. In a landmark judgement[19] the Supreme Court has held that all marriages, irrespective of their religion, be compulsorily registered. Moved by the plight of women fighting for the rights under marriage like maintenance and custody of their children, a two judge bench of the Supreme Court comprising Justices Arijit Pasayat and S.H.Kapadia directed the Centre and State governments to amend the law or frame rules and notify them within three months. The court directed the government to provide for “consequences of non-registration of marriages” in the rules which should be formalised after inviting public response and considering them. The court said the rules so frame would continue to operate till the respective governments framed proper legislations for the compulsory registration of marriages. The court failed that this ruling was necessitated by the need of time as certain unscrupulous husbands deny marriages living the spouses in the lurch, be it for seeking maintenance, custody of entrant or inheritance of property.[20]

Of Property and Succession

India’s obligation under United Nations CEDAW particularly article 15 of the Convention bounds the state to ensure equality of man and women before the law and in civil matters and article 16 (1) (h) compels the state to take appropriate measures to ensure that spouses have the same rights of ownership, acquisition, management, administration, enjoyment and disposition of property.

Originally, Mitakshara branch of law that governed succession among Hindus denied Hindu daughter right by birth in an ancestral estate and the flawed argument to support this was that her place in the paternal family was only temporary as she was to belong to her husband’s family on marriage. Initially, the personal law gave preference to men in the event of share of property inheritance and women were refused of their share. After the amendment in the Hindu Succession Act made in 2005 every daughter whether married or unmarried are now considered a part of fathers HUF and can also be appointed as ‘Karta’ of the family. She now has equal rights, liabilities, disabilities that were limited to men earlier. However, the benefits of this amendment can only be availed if her father passed away after September 9, 2005.

The Muslims in the matter of property and succession are governed by the Muslim Personal Law (Shariat) Act, 1937. The Shariat law is regarded as the custom usage for the purpose of division of all properties, except agricultural land. In the earlier times Muslims were governed by customs, law and practices when they were domiciled which ran contrary to the Shariat following the local customs and laws. This customary law where highly discriminatory like the ancient Hindu law and excluded daughters and others like widows who were in the bottom line of the succession order. Presently the share of the daughters and widows are lower than a man in Muslim personal Law.[21]

 The state should remove the gender bias laws and equalise the provisions as far as succession of female is considered under Hindu Succession Act, 1956 and should bring them at par with the males in the line of succession in the same for the progress of society which is being dominated by the principles of ancient religion.

Of Polygamy

The first case which came to the court regarding the conflict between right to freedom of religion and directive towards one civil code was the State of Bombay versus Narasu Appa Mali[22]where the Bombay prevention of Hindu Bigamous Marriages Act was challenged and was held intra vires the Constitution. The act had imposed severe penalty on Hindu for bigamous marriage. Former Chief Justice M.C. Chagla, of Bombay High Court had observed “there is a discrimination against the Hindus in the applicability of the Hindu Bigamous Marriage Act, the discrimination is not based upon the ground of religion. Equally so if the law with regard to the bigamous marriage is not uniform, the difference in distinction is not arbitrary or capricious, but is based upon reasonable ground.” He further rightly said “the state of Bombay by this legislation has discriminated between Hindus and Muslims only on the ground of religion and has set up a separate code of social reform for Hindus different from that applicable to the Muslims.” Justice Gajendragadkar delivered a separate judgement in the same case and agreed with C.J. Chagla “this article (article 44) by necessary implication recognises the existence of different codes applicable to Hindus and Mohammedans in matter of personal law and permits the continuance until the state seats in its endeavour to secure for all its citizens a uniform civil code” In Srinivasa Aiyar v. Saraswathi Ammal[23] Satyanarayan Rao and Rajgopalan JJ. pointed out that “Abolition of polygamy did not interfere with the religion because if a man did not have a natural born son, he could adopt one. The court was of the view that the state was empowered to regulate religious practices through appropriate legislation whenever it was in the interest of social welfare and aimed at the reforms intended to by the wise founding fathers of the Constitution.” Thus the court time and again stressed that second marriage mystically be prohibited during the subsistence of first marriage. The court has always tried to give practical shape to the basic tenets of Hindu and Muslim religion which has prohibited second marriage. In this way the judiciary has always been in favour of monogamy which is our cultural heritage.[24]

Of Guardianship and Adoption

There is no specific law of adoption in India for people belonging to different religions. The only law related to adoption is governed through the Hindu Adoption and Maintenance Act, 1956 (“HAMA”) that provides to Hindus ability to adopt a child legally. In India only Hindus can adopt a child legally and people belonging to other religions who are wanting to adopt a child can take the child in ‘guardianship’ under the provisions of the Guardian and Wards Act, 1890 (“GAWA”). This act is applicable to Christians, Muslims, Parsis and Jews because their personal law do not recognise complete adoption. Under this act the relationship which is established after adoption is only of Guardian and ward respectively. This act does not confer status of the child on the adopted child. HAMA is applicable to Hindus, Jains, Buddhists and Sikhs. Under this act, adoption is irrevocable and it gives full status to the child as natural child born to the family, it also gives the right to inherit the property. Only restriction is that parents cannot adopt a child of a particular sex if they already have or adopted a child of same sex. Under the GAWA, when children turn 21 years of age, then no longer remain wards and resume individual identities. They do not have an automatic right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their children through a well, which can be contested by any blood related child. The aforesaid enactments remain silent about the orphan, abandoned and surrendered children. Several misconceptions or irregularities appeared in respect of the custody, guardianship or adoption of this types of children which were prejudicial to the interests of the children. Under Muslim law, father is the sole guardian of the person and the property of his minor child. Unlike Hindus, adoption is not feature in Muslim law. The Muslim law does not recognise the validity of any mode filiations where the parentage of the person adopted is known to belong to a person other than the adopting father.[25] In Shabnam Hashmi vs Union of India[26]  the Hon’ble Supreme Court held that Juvenile Justice Act, 2000 amended on 2006 is a secular law and applies and all including the Muslim and the act has been enacted for the welfare of children and it enables any person to adopt a child. Thus, the Muslim also even if he is a governed by Muslim personal law can adopt a child. The existence of the Muslim personal law will not prevent a Muslim apply Juvenile Justice Act. Thus Muslim may choose to be governed by Muslim personal law and hence may not adopt a child or he may choose to be governed by the Juvenile Justice Act and may therein adopt a child. In case of adoption there should be a uniform law governing adoption and just because of religion children are not adopted. It is because of religion childless parents are not given the full right to adopt a child will stop they are not legally allowed to call themselves as parents of the adopted child. Therefore there is a real need to have a UCC with respect to adoption. Thus in this area if same law is applicable for all the citizens in India then there would not be single childless parent.

Impact of Enacting UCC in India

UCC will affect only personal laws based on religion – those relating to marriage, divorce, adoption and inheritance. Criminal laws are already common for all citizens, so does India need a UCC? This being a continuation issue those for it will cite national integration as a reason and those against it will use tool of minority identity as a reason. Social commenter’s say the only real issue that is needed to reform is the Anglo-Muhammadan law on marriage and divorce now in force, which is oppressive to women and is contrary to Islam while few argue that entire developed world has a uniform civil code. Those against UCC point out that the endeavour as mentioned in article 44 talks of an ideal situation, but leave the matter to the state’s discretion. The real social opposition each time has come from the Muslim community that sees any attempt to bring a UCC as an attack on its religious rights. In Shah Bano case, the Hon’ble Supreme Court upheld her right to maintenance. While doing so, the court also referred to the need to enact a uniform civil code. This started a huge protest among Muslim leaders were accused to the judiciary of interfering in the personal laws. Soon after communal revolt broke out at the Congress government brought legislation overturning the Supreme Court verdict.

What we have in India right now is selective secularism which means in some areas we are secular and in some we are not secular. Having a UCC will mean that all citizens will have to follow the same law irrespective of their religion or region. It doesn’t mean that UCC will limit the freedom of people to follow their religion, but on the contrary every citizen would be treated same. The only way to ensure that every citizen is treated same is by implementing laws related to marriage, inheritance, family, land etc. equally to all Indians. UCC will also help improve the conditions of women in our patriarchal society. It will help in changing the old traditions and customs which are used to suppress women and will help them provide equal rights. It is an undeniable fact that UCC is the sign of a modern progressive nation it is a sign that the nation has moved away from vote bank politics while economic growth has been highest in the world are social growth has not progressed at all. We are living in a time where we are neither modern nor traditional. UCC will help India to become a developed nation. Personal laws are the loophole that are being exploited by the religious communities and the politicians to use it as vote bank politics. These personal laws are based on thousand year old customs and traditions which are suitable during that period. By allowing personal laws which are old, retrogressive and hinders the progress of nation we have constituted an alternate judicial system and having a UCC would change that.

Goa’s Civil Code

The Goa civil code (“GCC”) also known as the Goa family law, is a set of civil laws that governs the residents of Indian State of Goa. Goa is an exception to the rule of religion-specific civil codes that separately governed adherents of different religions. GCC is a single code that governs all the inhabitants of Goa irrespective of religion and ethnicity or linguists affiliation.[27]

History of Goa and its uniform civil code

The GCC is largely based on the Portuguese civil code of 1867 which was introduced in Goa 1870. Later some modifications were adopted, based on:

1. The Portuguese Gentile Hindu Usages Decrees of 1880 (Código de usos e costumes dos hindus gentios de Goa)[28]

2. The Portuguese Decrees on Marriages and Divorce of 1910.  (Lei do Divórcio: Decreto de 3 de Novembro de 1910) After the establishment of the first Portuguese Republic, the civil code was liberalised to give women more freedom.[29]

3. The Portuguese Decrees on Canonical Marriages of 1946 (Decreto 35.461: regula o casamento nas colónias portuguesas)[30]

The civil code was retained in Goa after its merger with the Indian Union in 1961, although in Portugal, the original Code was replaced by the new Portuguese Civil Code of 1966. In 1981, the Government of India appointed a personal law committee to determine if the non-uniform laws of the union could be extended to Goa. The Goa Muslim Shariah Organization supported the move, but it was met with stiff resistance from the Muslim Youth Welfare Association and the Goa Muslim Women’s Associations.[31]

Ways in which the GCC is different from other Indian laws

A married couple jointly holds ownership of all the assets owned (before the marriage) or acquired (after the marriage) by each spouse. In case of a divorce, each spouse is entitled to a half share of the assets. However, the law also allows antenuptial agreements, which may state a different division of assets in case of a divorce. These agreements also allow the spouses to hold the assets acquired before marriage separately. Such agreements cannot be changed or revoked. 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.

Goa is the only state to have implemented the directive principle on the UCC and has shown the way forward for India and there is absolutely no reason for delay. A secular India needs a uniform civil code.[32]

Approach of the Judiciary

Mohd. Ahmed Khan V. Shah Bano Begum [33]

Petitioner: Mohd. Ahmed Khan

Respondent: Shah Bano Begum and Ors.

Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath

Facts of the Case

Mohd. Ahmed Khan, an advocate by profession, living in Madhya Pradesh was married to the respondent, Shah Bano. Three sons and two daughters were born of that marriage. In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate, Indore, asking for maintenance in view of the professional income of the appellant which was about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable “talaq” and took up the defence that she had ceased to be his wife by reason of the divorce granted by him. Appellant paid Rs. 3000 to his divorced wife during the period of Iddat. The magistrate ordered the appellant to pay Shah Bano a mere sum of Rs. 25 every month as maintenance. Aggrieved from the order, Respondent appealed to Madhya Pradesh High Court in 1979 where the amount was revised to Rs. 179.20 per month. In 1981, Appellant filed a petition in Supreme Court challenging the decision of Madhya Pradesh High Court. The said case was looked into by a five judge Constitution bench of Supreme Court to resolve the issue.

Judgement

The Constitutional bench delivered a unanimous verdict and upheld the decisions of the High Court. The court alluded to the religious neutrality of section 125 of CrPC stating “the religion professed by a spouse or by the spouses has no place in the schemes of these provisions. Whether the spouses are Hindus or the Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of code of criminal procedure, not of the civil laws which define and govern the rights and obligations of the parties belonging to particular, religions, like the Hindus adoption and maintenance act, the shariat, or the Parsi matrimonial act.”[34] The Court further refused to accept the argument of the appellant that an order form maintenance under section 125 could be struck down a section 125 only for the mere fact that the husband has made a payment to the wife at the time of divorce under the concerned personal laws. The court thus looked into the meaning of Mahr and inferred that “Mahr is payable at the time of the dissolution of the marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of the marriage by divorce, it cannot be said that it is an amount which is payable on divorce….. No amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.”[35] Supreme Court further added “a man may marry a women by love, looks, learning or nothing at all. And he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be some payable ‘on divorce’.[36]

Court also expressed dissatisfaction in relation to article 44 of Constitution of India and failure of the government when bringing UCC in India and marked “it is also a matter of regret that article 44 of our Constitution has remained a dead letter…. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained around that it is for the Muslim community to take a lead in the matter of reforms of the personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies…. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform but, a beginning has to be made if the Constitution is to have any meaning.”[37] Thus the court emphasised and clearly stated in its judgement that the fact that fragmentary attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code.

Conclusion

This particular case was no unique case and similar judgements had been passed before by the Hon’ble Supreme Court but what made this judgement a landmark on was the fact that it questioned the sanctity of personal laws and brought on the debate of uniform civil code. To conclude, this judgement expressed dissatisfaction over the legislative failure to establish a UCC for all citizen. The judgement was way ahead of its time and created an uproar amongst the Muslims who believe that Supreme Court did not give regard to the Muslim personal laws. This uproar caused the legislation to pass the Muslim women (protection of rights in divorce) act, 1986 and nullified the said judgement.

Smt. Sarla Mudgal vs Union Of India & Ors [38]

Petitioner: Smt. Sarla Mudgal, President, Kalyani & Ors.

Respondent: Union of India & Ors.

Bench: Kuldip Singh (J), Sahai, R.M. (J)

Facts of the Case

There are two petitioners in the case. Petitioner on is a registered society by the name of Kalyani which helps needy and distressed women. Sarla Mudgal is the head of this organisation. Second petitioner, Meena Mathur who married to Jitender Mathur on February 27, 1978. Three children were born out of the marriage. In early 1988, petitioner found out that her husband had solemnised second marriage with one Sunita Narula a.k.a. Fathima which took place after the conversion to Islam and adoption of Muslim religion. The conversion of husband, is contended by the petitioner, was only for the purpose of marrying Sunita and circumvented the provisions of section 494 of IPC. Jitender Mathur contended that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu. An interesting fact to be noted here is that Sunita alias Fathima is the petitioner writ petition 347 of 1990.

She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jatinder, under the influence of her first Hindu wife, gave an undertaking on 28th April, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Another petitioner in writ petition for 24 of 1992, he the rani, who was married to Pradeep Kumar on November 3, 1988, alleged that her husband harassed her physically and mentally and once broke her jaw bone. In 1991, she found out that he lobed with another woman and married her after converting to Islam for the purpose of getting married.

Sushmita Ghosh is another unfortunate lady who is a petitioner in civil writ petition 509 of 1992, who married to G.C.Ghosh according to Hindu rituals on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she would agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta.

Judgement

In the instant case, Supreme Court observed “marriage is the very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.”[39]

The court interpreted that the personal laws should not be allowed to be manipulated and exploited for worldly gains and carnal pleasures. Thus, if a person wishes to enter second marriage, after converting to another personal law and without dissolving his/her first marriage, such second marriage must be held to be valid only if his/her personal law allows such second marriage. For instance, if a Hindu enters into a second marriage after converting to Islam without dissolving his/her first marriage, then he should be held liable for by bigamy because his/her original personal law does not allow polygamy or polyandry. Similarly, if a married Muslim converts to Hindu religion, without dissolving his first marriage, and enters into a second marriage he should not be held liable for bigamy because his original personal law allows polygamy, though capacity to do justice between co-wives is the condition precedent.[40]

Thus, Supreme Court had reiterated that the second marriage of a Hindu man after conversion to Islam without having his first marriage dissolved under the law would be invalid. The Supreme Court mainly stressed upon the importance of article 44 of the Constitution and further directed the government to take steps and make efforts towards securing a UCC for the citizens of India. The court further added that “the desirability of a uniform code can hardly be doubted. But it can concretise only when social climate is properly built up by elite of the society, statesmen amongst leaders instead of gaining personal mileage rise above and awaken the masses to accept the change.”[41]

Danial Latifi & Anr vs Union of India[42]

Petitioner: Danial Latifi & Anr.

Respondent: Union of India

Bench: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju & Shivaraj V. Patil

Introduction

After the landmark judgment of Shah Bano’s case, there was a chaos condition in the Muslim Personal Law. Also there were many political issues and protest.

The Parliament to undo the effect of the judgment, passed and implemented Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3 (1) a, a divorced women is entitled to reasonable and fair provision and maintenance within the Iddat period. Learned counsel of Shah Bano’s Danial Latafi challenged the above Act on the basis of its constitutional validity as violation of Art 14 and 15.

Facts of the Case

Shah Bano’s case was a controversial maintenance lawsuit in India. Shah Bano was denied the alimony when the Indian Parliament reversed the judgement under pressure from Islamic orthodoxy. This case caused the Congress government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgement of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcées the right to alimony from their former husbands. The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in this case through filing a writ petition.

Judgement

Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the husband’s liability to maintain his wife doesn’t end with the Iddat period. However, it explained this principle, not as contravening the Act which was enacted as a result of the Shah Bano case, as a commentary on that Act. Also, the Act is consistent with section 125 of the CrPC and hence, there is no scope for conflict. Hence, the position of law is that, the provisions of the Act basically emanate from principles set forth in the Shah Bano case.

The same has not been changed till now, and continues to govern matters related to maintenance of Muslim women after dissolution of marriage. The principle has been seconded by the Supreme Court once again in Iqbal Bano V State of U.P.[43]

In this case the court reiterated the position that divorced women are entitled for maintenance beyond the Iddat period and stated that provisions of the Act do not contravene Article 14, 15 & 21 of the Indian Constitution. The court further observed that “right under Section 125 of Cr. P.C. extinguishes only when she receives “fair or reasonable” settlement u/Sec. 3 of the Muslim Women Act.

The wife will be entitled to receive maintenance u/Sec. 125 of CrPC. until the husband fulfils his obligation u/s 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.

This was once again reiterated in the judgment of Shabana Bano v. Imran Khan[44] that after the expiry of Iddat, a divorced Muslim woman can seek maintenance under S.125 CrPc as long as she doesn’t re-marry. Hence, the position as laid down in the Daniel Latifi case is the settled position and has not undergone any change.

Ratio Decendi

The Muslim Women (Protection of Rights on Divorce) Act, 1986 doesn’t violates any fundamental right prescribed under the Constitution of India.

Obiter Dicta

Any personal law which sought to be drafted has to draft by considering the all aspects including their religion prospective, views and impact on particular projected group of people. The Personal law may connote a different thing but keeping the changing society in mind, it should be open to interpretation only for positive changes. That only can help us achieve the objectives of Social Justice laid down both expressed and implicitly in our Constitution.

The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi case fails to satisfy the minds of the reasonable people, as there are glaring defects on the face of it. But we should also keep in mind the social perspective. On one hand where it upholds the Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the divorced Muslim women.

The Muslim women had feared that the 1986 Act had taken away their right to maintenance beyond the Iddat period. But these court judgments have given them hope. The Muslim leaders are not likely to protest against these judgments as they did in the Shah Bano case and even if they do, they will not get the kind of response from Muslims as they did in the mid-1980s.

Conclusion

Secularism is a civilised and liberal concept which signifies coexistence, modernity, plurality between the citizens of a state. Secular comes from Anglo-French seculer and Late Latin saecularis, meaning “worldly” or “pagan”. In contemporary English, secular is primarily used to distinguish something such as an attitude, belief, position that is not specifically religious or sectarian in nature. Secularism is a principle of the separation of government institutions and persons mandated to represent the state from religious institutions and religious dignitaries. The western model or the american model of secularism believes in the principle of mutual exclusion at any cost that is neither the state would include in the domain of religion nor will religion interfere in the affairs of the state in any situation. India follows the positive aspect of secularism and maintains principled distance vis-a-vis religion. This means that any interference in religion by the state has to be based on the ideals laid out in the Constitution. Such interference is only justified on the grounds of social reform.

UCC is not opposed to secularism and will not violate article 25 and article 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and therefore, law can regulate them. No religion permits deliberate distortion.[45]

J. Reddy stated that the religion is the matter of individual faith and cannot be mixed with secular activities as secular activities can be regulated by the State. [46]

In our country personal laws continuously affect the lives and rights of a large number of people of almost all the communities in the name of secularism. Although various efforts are being done by the means of international instruments, national laws and judicial trends, recommendation of a Law Commission and other groups to ensure equality but still much more work needs to be done in the field of family law especially in the cases of marriage, divorce, maintenance, inheritance etc.[47]

The section of the nation against the implementation of UCC contends that in ideal times, in an ideal State, a UCC would be an ideal safeguard of citizens’ rights. But India has moved much further from ideal than when the Constitution was written 50 years ago. Citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nation’s unity, but also makes one wonder whether we are a sovereign secular republic or a loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits.[48]

The matter is far more political than legal. Every time the issue has come up, there have been angry words from both sides of the debate. Religious fundamentalism must go, social and economic justice must be made available to the so-called minority and oppressed groups and their dignity should be ensured to achieve this dream of one India, one society and one Law.

In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Art.44 of the Constitution, the following suggestions need immediate consideration. A progressive and broad-minded outlook is needed among the people to understand the spirit of such code. For this, education, awareness and sensitisation programmes must be taken up. The UCC should act in the best interest of all the religions and a committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community. Times have changed, societies have changed and it is high time that laws change. Education, economic prosperity, agricultural improvements, cross border migration and western influence has spread its hand over every nook and corner of Urban India. On the flip side, rural settlements are still struggling with adherence to customary and superstitious beliefs in family matters. A UCC will not only change the entire perception of how families are governed but also change the lives of millions by filling the lacunas in various religious laws.[49]

Before enacting a UCC throughout the territory of India the government must also keep in mind the religious freedom guaranteed under article 25 and article 26 of the Constitution. The government must also take into account the legality and enforceability of article 44 and the relationship between fundamental rights and directive principles of state policy. The state must realise that in case of conflict between fundamental rights and directive principles of Constitution of India, the former shall prevail over the later.[50]

Bibliography

  1. Govind Mathur, On the Question of Gender Justice
  2. Sarbrinder Jeet Singh, A comparative study of dissolution of marriage under personal laws in India
  3. Tahir Mohmood, Uniform Vs Common Civil Code in India, 1986
  4. Nandini Chavan; Qutub Jehan Kidwai,Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code, 2006
  5. V.P. Bhartiya, Syed Khalid Rashid’s Muslim Law, 1996
  6. Kiran Deshta, Uniform Civil Code: In Retrospect and Prospect
  7. Dr. J.N. Pandey, Constitutional Law of India, 43rd Edition
  8. Ravindra S. Khare, Perspectives on Islamic Law, Justice, and Society
  9. Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code, 2012
  10. Fatima da Silva Gracias, Kaleidoscope of Women in Goa, 1996
  11. Javed Razack, Inheritance and Succession, Rights of Women and Daughters under Personal Laws
  12. Tahir Mohmood, Muslim Personal Law, 1977

[1] INDIA CONST. art. 44.

[2]  Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[3] Tahir Mohmood, Uniform Vs Common Civil Code in India, 11,227, 230 (1986).

[4] Ibid.

[5] Id at 234.

[6] Tahir Mohmood, Muslim Personal Law 200-202 (1977)

[7] “person” includes-(ii) a Hindu undivided family

[8] Ravindra S. Khare, Perspectives on Islamic Law, Justice, and Society 84 (1987)

[9] Uniform civil code, Fandom (Jul. 02,2017) http://india.wikia.com/wiki/Uniform_civil_code

[10] Vol. 3 Lok Sabha Secretariat, Constituent Assembly Debates 551 (23 Nov. 1948).

[11] Ibid.

[12] Freedom of conscience and free profession, practice and propagation of religion.

[13] Sarbrinder Jeet Singh, A comparative study of dissolution of marriage under personal laws in India, Shodhganga (Jul. 2, 2017) http://hdl.handle.net/10603/54472

[14] Justice Govind Mathur, “On the Question of Gender Justice”, Before Women Empowerment Cell, Mohanlal Sukhadia University, Udaipur.

[15] AIR 1975 SC 83

[16] AIR 1980 SC 1730

[17] AIR 1997 SC 3280

[18] AIR 2001 SC 3262

[19] Seema v. Ashwani Kumar, AIR 2006 S.C 1158

[20] Dr. J.N. Pandey, Constitutional Law of India 385-389 (43d ed. 2006)

[21] Javed Razack, Inheritance and Succession, Rights of Women and Daughters under Personal Laws, LexOrates (Jul. 2, 2017) http://www.lexorates.com/articles/inheritance-and-succession-rights-of-women-and-daughters-under-personal-laws/.

[22] AIR 1952 Bom 84

[23] AIR 1952 Mad 193

[24] Kiran Deshta, Uniform Civil Code: In Retrospect and Prospect 72 (1995)

[25] V.P. Bhartiya, Syed Khalid Rashid’s Muslim Law 229 (5th ed. 2009)(1996)

[26] (2014) 4 SCC 1

[27] Nandini Chavan; Qutub Jehan Kidwai, Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code 245 (2006)

[28] Vivek Jain and Shraddha Gupta, Uniform and civil, The Statesman (Jul. 2 2017), http://www.thestatesman.net/news/54625-uniform-and-civil.html.

[29] Fatima da Silva Gracias,  Kaleidoscope of Women in Goa, 1510-1961 90-98 (Concept Publishing Company 1996)

[30] Decreto 35.461: regula o casamento nas colónias portuguesas, p.8313

[31] Partha S. Ghosh, The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code 19-22 (Routledge, 2007)

[32] Chavan, supra note 27.

[33] 1985 AIR 945

[34] Id. at 10.

[35] Id. at 16.

[36] Id. at 17.

[37] Id. at 19.

[38] AIR 1995 SC 1531

[39] Id. at 3.

[40] Gauri Kulkarni, Hindu Men Can’t Hide Behind Islam For Bigamy, Islam Awareness (Jul. 2, 2017) http://www.islamawareness.net/Polygamy/poly_nm_news0005.html.

[41] Supra note 38, at 13.

[42] Supra note 18.

[43] AIR 2007 SC 2215

[44] AIR 2010 SC 305

[45] Supra note 38, at 14.

[46] S.R. Bommai v. Union of India, (1994)3 SCC 1

[47] Singh, supra note 13.

[48] Gauri Kulkarni, Uniform Civil Code, Legal Service India (Jul. 2, 2017) http://www.legalserviceindia.com/articles/ucc.htm.

[49] Mounica Kasturi, Need of Uniform Civil Code, Academike (2014) (Jul. 2) https://www.lawctopus.com/academike/need-uniform-civil-code-india.

[50] Bharati Paithane, Politics of uniform civil code in India (2006) (Jul. 2, 2017) http://hdl.handle.net/10603/99804.

Leave A Comment

Your email address will not be published. Required fields are marked *