Should India have a Uniform Civil Code? This is a question that causes agitation and furious debate everytime it is raised. It is a debate that has been raging for years now. Even the makers of our Constitution thought about it when they wrote it because the Article 44 our Constitution clearly states that :' The state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India'. The article is part of the Directive Principles of State Policy and are not binding on the Government. But let's not get ahead of ourselves.
First we shall define what is a Civil Code. A Civil Code is a systematic compilation of laws designed to comprehensively deal with the core ideas of private law . A typical Civil Code deals with the common fields of law like the law of contracts, torts, property law, family law and law of evidence. Whereas commercial law, corporate law and Civil procedure is usually codified separately.
Issues India is an amalgam of many societies. A majority of the people are Hindus whereas the Muslims form a considerable minority. Other than these, there are sikhs, jews, parsees, jains, buddhists etc. All religions have their own laws. We have 1) the Hindu law (which covers sikhs, jains and buddhists) 2) Muslim Personal Law 3) Christian Personal Law 4) Parsee Civil law. This itself is a blatant violation of the Article 15 of the Constitution which says that 'The state shall not discrimate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them.
A Uniform Civil Code will administer the same set of secualr Civil laws for all the religions existing in the state. The Uniform Civil Code will override the people's right to be governed under their own Personal Law based on their religion or ethnicity. Those for a Uniform Civil Code cite national integration as a reason, those against it say it will be a tool to annihilate minority identity. Personal laws for all religions are inherently unequal.
For eg a divorcee in Muslim law is entitled to different things than in the Hindu law. Furthermore, the Article 14 of the Indian Constitution requires non-discrimination based on 'sex', whereas Muslim Personal Law favors the man in many cases, especially in the issue of divorce and polygamy. Equality before the law would mean that Muslim women could take up to 4 husbands. These issues remain unresolved in the Constitution. Muslim Personal Law are challenged under the Constitution. The question is whether the government has any right to override the Personal Laws. The Shariat Act of 1937 hadn't made any reference to the government's power to interfere with it. However, one may assume that as the government passed the law, therefore it has the right to amend it.
The government of india act, 1935 had 'already empowered the legislature to make laws on subjects regulated by Personal Laws.' In the celebrated case Mohd. Ahmed Khan v Shah Bano Begum AIR 1985 SC 945 (hereinafter referred to as the Shah Bano case), the Supreme Court pleaded for a Uniform Civil Code throughout India,and observed : 'A common Civil Code will help the case of national integration, by removing disparate loyalties to laws which have conflicting ideologies.' In the same way, in another decision of the Supreme Court Ms. Jorden Diengdeh v S.S. Chopra AIR 1985 SC 935, the court reiterated the urgent necessity for a Unifrom Civil Code, and observed : ' The time has now come for a complete reform of the law of marriage and make a Uniform law applicable to all people irrespective of religion or caste.'
The Shah Bano Case : A Turning Point Shah Bano was a 73 year old Muslim woman whose husband divorced her using the triple talaq method which means that a husband can divorce his wife by saying 'i divorce you' three times in three periods. So she petitioned the Supreme Court claiming that the criminal Code should apply to Muslims and that she deserved more maintenance than that precribed in the Muslim Personal Law which requires the husband to pay maintenance for only three months, the iddat period after the divorce.
The court argued that even in the Quran, a woman is entitled to maintenance according to Sura 2:241-242. The court also said : ' Neglect by a person of sufficient means to maintain these and the inability of those persons to maintain themselves are the objective criteria of the applicability of Section 125. such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.' It added that : 'Clause (b) of the explanation to Section 125, which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.
The section is truly secular in nature.' The response to the ruling was prompt. The Muslim leaders announced that they would sacrifice their 'everything' to protect their Personal Law. They felt that any attempt to dismantle the Personal Law would destroy the Muslim culture in the subcontinent. The government of Rajiv Gandhi, acted quickly and passed the Muslim Women's (Protection of Rights in Divorce) Act in 1986, a law that provided the maintenance for Muslim women outside the criminal Code, thus ensuring that Muslim women were not protected under the Constitutional right to equality, and that they could no longer have recourse to Section 125 of the Code of Criminal Procedure. The act set the path for the return of the mahr and the standard maintence during the iddat period.
Other Cases In the Sarla Mudgal case (1995 AIR 1531 1995 SCC (3) 635), the court held that the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage by the Act. And, thus, a second marriage solemnised after converting to Islam would be an offence under Section 494 of the Indian Penal Code. In the case John Vallamattom vs the Union of India Writ Petition (Civil) No.242 of 1997, he appealed to the court to strike down Section 118 of the Indian Succession Act of 1925, which prevents Christians from willing property for charitable and religious purposes.
The then Chief Justice of India VN Khare held that : ' In Smt. Sarla Mudgal vs the Union of India 1995 (3) SCC 635, it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Article 25 and 26 of the Constitution.' 'For the reason aforementioned, the writ petition is allowed and Section 118 of the Indian Succession act is declared unConstitutional being violative of the article 14 of the Constitution.'
Apart from the Shah Bano case (1985) and the Sarla Mudgal case (1995), there have been several other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife.
A Ray of Hope In the small state of Goa, a Civil Code based on the old Portuguese Family Laws exists, and Muslim Personal Law is prohibited. This is the result of indian occupation of Goa in 1961, when the government promised the people that their laws would be left intact. Commenting that the dream of a Uniform Civil Code in the country finds its realisation in Goa, former Chief Justice of India Y.V. Chandrachud had once expressed hope that it would one day 'awaken the rest of bigoted India.'
Conclusion Tahir Mahmood in his study, Muslim Personal Law, concludes that 'Article 44 does not require the state to enforce a Uniform Civil Code abruptly; it rather gives a latitude for the introduction of such a Code in stages…Since the Muslims and other minorities were not prepared to accept and work social reform, enactment of an all embracing Civil Code could be lawfully deferred.' It appears as if, in the long run, the Muslim Women's Act, 1986 has accomplished what the Supreme Courts original ruling had been in 1985, ie the Muslim women deserve maintenance outside their iddat period.
Slowly but surely the courts have chipped away at the most blatantly discriminatory pieces of Islamic law. The basic feeling is that polygamy should be banned outright, women should be able to petition for divorce easily, husbands should not be able to use the triple talaq method of divorce, and that the maintenance be granted as it is with the non-Muslims.
Basically, what they are arguing is for the application of the Special Marriage act of 1954 to be applied to Muslims, rather than it being optional for people to marry under this act. With the age of absolute majority bygone, it has become increasingly difficult for the move for a Uniform Civil Code to gather enough support within the Parliament to be successful. Also, for historical reasons, this demand had acquired a communal tone and many partners in the coalition government that have become the norm, are wary of the cause because of obvious vote bank concerns. We can only hope that we bridge all these gaps and finally make good of the promise given to the people by the founding fathers. It is a long dream for having for our nation a Uniform Civil Code, as our nation is not just a single nation, but comprises of several nations, several lifestyles and several cultures.