PROJECT TITLE- ANALYSING UNIFORM CIVIL CODE

BASICS OF CASE LAW AND LEGISLATION

2016-2017

SUBMITTED TO: SUBMITED BY:

MR. SHASHANK SHEKHAR PRANAV BHANSALI

ASSISTANT PROFESSOR OF LAW 160101109 (1ST SEM)

ACKNOWLDGEMENT

I am obliged to assistant professor Mr.Shashank Shekhar , who has given me golden chance
for this research project. I would also like to thank the almighty and my parents for their
moral support and my friends who are always there to extend the helping hand whenever and
wherever required.

I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY who helped me in getting all the materials necessary for the project

Pranav Bhansali

TABLE OF CONTENTS

1. INTRODUCTION

2. HISTORY

3. NEED FOR UNIFORM CIVIL CODE

4. SECULARISM VS UNIFORM CIVIL CODE

5. GOAN MODEL

6. JUDGEMENTS

7. JUDGE’S OPINIONS

8. CONCLUSION

9. BIBLIOGRAPHY
INTRODUCTION

In India, we have a criminal code that is equally applicable to all, irrespective of religion,
caste, gender and domicile. However, a similar code does not exist especially with respect to
divorce and succession and we are still governed by the personal laws. These personal laws
are varied in their sources, philosophy and application. Thus, a major constraint arises while
bringing people governed by different religions under one roof.

Article 44 of the Constitution of India declares that “The State shall endeavor to secure for
the citizens a Uniform Civil Code throughout the territory of India.”

A uniform civil code administers the same set of secular civil laws to govern all people
irrespective of their religion, caste and tribe. This supersedes the right of citizens to be
governed under different personal laws based on their religion or caste or tribe. Such codes
are in place in most modern nations.

Though Dr. B.R. Ambedkar was an extensive supporter of the Uniform Civil Code, he
couldn’t get it through more than a status of Directive Principle due to opposition from the
members. This directive principle is aimed to achieve, gradually, rather than at once, more
far-reaching equality for all citizens. The state has been entrusted with this voluminous task.
However, no significant steps have been taken by any government till now.

The mere three words and the nation breaks into hysterical jubilation and frantic wailing.
These three words are enough to divide the nation into two categories - politically, socially
and religiously. Politically, the nation is divided as BJP, which propagates implementation of
the Uniform Civil Code (hereinafter referred to as the UCC) and the non BJP including the
Congress party, Samajwadi party, who are against the implementation of the UCC. Socially,
the intelligentsia of the country, who analyse logically the pros and cons of the UCC and the
illiterate who have no opinion of their own and succumb to the political pressure are at
opposite poles. And, religiously, there is a dangerous widening schism between the majority
Hindus and the minority community mostly the Muslims.

The crusade for implementing UCC and homogenising is highly supported because it is the
need of the hour. It is high time that India had a uniform law dealing with marriage, divorce,
succession, inheritance and maintenance.

HISTORY

Codification of laws dates back to the Colonial Period. The Colonial Masters played an
instrumental role in shaping the legislative literature of our country. The Lex Loci Report of
October, 1840 emphasized on the necessity for codification of Indian law relating to crimes,
evidences, contract etc., but it recommended that personal law of Hindus and Muslims should
be kept outside such codification. A formal declaration of the policy was made by Warren
Hastings in the Administration of Justice Regulation, 1780, where it was pronounced that
while dealing with disputes of marriage, divorce or inheritance, people would be governed by
their personal laws.

The British codified the law of crimes and made a secular law to deal with the crimes. In the
realm of personal laws very few attempts were made. The attempt for a Codified Hindu law
has also failed.

Post-colonial period, the framers of the Indian constitution and Mr. Nehru, were convinced
that a 0certain amount of modernisation is required before a uniform civil code is imposed on
citizens belonging to different religions including Muslims. The issue was sensitive and a
uniform civil code could be seen by the citizens as an invasion on their culture and religion.
The framers felt that certain time should elapse before such a proposal can be undertaken. In
backdrop of partition, where chaos and bloodshed became the order of the day, again brining
an issue regarding religious laws would not have been a wise decision. However, over 60
years later as well, the dream of a Uniform Civil Code remains unrealized.

NEED FOR UNIFORM CIVIL CODE

India is a land of diversities with several religions. The oldest part of Indian legal system is
the personal laws governing the Hindus and the Muslims.

The Hindu Marriage Act, 1955 is the marriage law legislation applicable to the majority
population, constituted of Hindus, which is an Act to amend and codify the law relating to
marriage among Hindus. Ceremonial marriage is essential under this Act and registration is
optional. This act takes care of divorce and maintenance as well. The Hindu Succession Act,
1956 governs succession among Hindus. The Hindu Minority and Guardianship Act, 1956
and the Hindu Adoptions and Maintenance Act, 1956 are the laws dealing with succession,
adoption and maintenance.

The Indian Parliament also enacted the Special Marriage Act, 1954, as an Act to provide a
special form of marriage in certain cases, for the registration of such and certain other
marriages and for divorces under this Act. This enactment of solemnizing marriage by
registration is resorted to by Hindus, non-Hindus and foreigners marrying in India who opt
out of the ceremonial marriage under their respective personal laws. Registration is
compulsory under this enactment. Divorce can also be obtained by non-Hindus under this
Act.

The Parsi Marriage and Divorce Act, 1936 as amended in 1988, is an Act to amend the law
relating to marriage and divorce among the Parsis in India. The Christian Marriage Act, 1872,
was enacted as an Act to consolidate and amend the law relating to the solemnization of the
marriages of Christians in India and the Divorce Act, 1869 as amended in 2001, is an Act to
amend the law relating to divorce and matrimonial causes relating to Christians in India. The
Muslim Personal Law (Shariat) Application Act, 1937, The Dissolution of Muslim Marriages
Act,1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Muslim
Women ( Protection of Rights on Divorce) Rules, 1986, apply to Muslims living in India.
When it comes to the Hindu Law, the problem arising is with the registration of marriages
and thus, the inability to nullify child marriages. Child marriages in practically all religious
communities in India are accepted practices and so they cannot be registered due to non-
fulfillment of minimum age of marriage. The Supreme Court of India in Seema v. Ashwani
Kumar, has directed all states in India to enact rules for compulsory registration of marriages
irrespective of religion, in a time bound period. This reform has struck a progressive blow to
check child marriages, prevent marriages without consent of parties, check
bigamy/polygamy, enable women’s rights of maintenance, inheritance and residence, deter
men from deserting women, and for checking the selling of young girls under the guise of
marriage. The consequence of non-registration of marriages has created a large number of
abandoned spouses in India deserted by non-resident Indians who habitually reside abroad.
However, implementation of the same is still undermined.

When it comes to the Muslim Law, it is the additional courts that create the problem. The
Supreme Court of India on Vishwa Lochan Madan v. Union of India and others, issued
notices to the central government, State governments, All India Muslim Personal Law Board
(AIMPLB) and Darul Uloom, an Islamic seminary, in the matter of the existence of parallel
Islamic and Shariat Courts in the country, which are posing a challenge to the Indian judicial
system. A direction from the court was also sought to restrain these organizations from
interfering with the marital status of Indian Muslim citizens or passing any judgments,
remarks, fatwas or deciding matrimonial disputes amongst Muslims. Till recently, the matter
was still pending final adjudication in the Supreme Court of India and no conclusive final
decision stands reported on the said issue by the Supreme Court.

Similar problem exists under the Hindu Religion as well with the caste panchayats. They
have played a powerful role at the village level in several states of the country traditionally.
However, khap panchayats (caste based village councils) are not elected bodies and their
decisions are not enforceable by law, as such extra-constitutional bodies and have no sanctity
or recognition in law. They however, derive support from community recognition. The
heinous crimes committed by the Khap Panchyats under the guise of Honour Killing are well
noted.

Muslim Law provides for Mehr, an amount to be fixed at the time of marriage itself, as a
consideration for the performance of marriage. This is because the marriage under Muslim
Law is a contract and the condition for registration is fulfilled in the Nikah- Nama itself.
However, the law doesn’t provide for maintenance for the wife. The Mehr amount itself is
supposed to take care of this aspect. Men cannot waive or reduce the Mehr. Only, the wife is
allowed. This way the women’s interest in the Mehr is protected. But, other provisions of the
Muslim Law discriminate against women. Polygamy is allowed but not polyandry. Muta
marriages can be undertaken by the husband. The triple pronouncement of the word “talaq” is
enough for a man to give divorce. The woman has to undergo an arduous procedure for the
same. This is not the case under Hindu Law. Hindu Law under the Hindu Marriage Act itself
provides for maintenance for the wife. Also, the grounds and procedure for divorce are the
same for both husband and wife.
Personal Laws pose a contradiction. On the one hand, the constitution recognizes the
continued existence of Personal Law, which is why Article 44 expects that India at some later
date will have a uniform civil code. On the other hand, there exist several articles, such as
Article 14-19 which guarantee equal rights. Since personal laws for various groups are
inherently unequal, a divorcee in Muslim law is entitled to different things than in Hindu law,
therefore .Article 15 would seem to make personal law unconstitutional. Furthermore, Article
15 also requires non-discrimination based on “sex”, whereas Muslim Personal Law favours
the man in many cases, especially in the issue of divorce and in the issue of polygamy. These
issues remained unresolved in the constitution. Personal laws are inconsistent with morality
and human rights as well.

SECULARISM VS UNIFORM CIVIL CODE

The spine of controversy revolving around UCC has been secularism and the freedom of
religion enumerated in the Constitution of India. The preamble of the Constitution states that
India is a "secular democratic republic" This means that there is no State religion. A secular
State shall not discriminate against anyone on the ground of religion. A State is only
concerned with the relation between man and man. It is not concerned with the relation of
man with God. It does not mean allowing all religions to be practiced. It means that religion
should not interfere with the mundane life of an individual.

In S.R. Bommai v. Union of India, as per Justice Jeevan Reddy, it was held that religion is
the matter of individual faith and cannot be mixed with secular activities. Secular activities
can be regulated by the State by enacting a law.

In India, there exist a concept of "positive secularism" as distinguished from doctrine of

secularism accepted by America and some European states i.e. there is a wall of separation
between religion and State. In India, positive secularism separates spiritualism with
individual faith. The reason is that America and the European countries went through the
stages of renaissance, reformation and enlightenment and thus they can enact a law stating
that State shall not interfere with religion. On the contrary, India has not gone through these
stages and thus the responsibility lies on the State to interfere in the matters of religion so as
to remove the impediments in the governance of the State.

Articles 25 and 26 guarantee right to freedom of religion. Article 25 guarantees to every

person the freedom of conscience and the right to profess, practice and propagate religion.
But this right is subject to public order, morality and health and to the other provisions of Part
III of the Constitution. Article 25 also empowers the State to regulate or restrict any
economic, financial, political or other secular activity, which may be associated with
religious practice and also to provide for social welfare and reforms. The protection of
Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in
pursuance of religion and, therefore, contains a guarantee for ritual and observations,
ceremonies and modes of worship, which are the integral parts of religion.

UCC is not opposed to secularism or will not violate Article 25 and 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. The UCC will not and shall
not result in interference of one’s religious beliefs relating, mainly to maintenance,
succession and inheritance. This means that under the UCC a Hindu will not be compelled to
perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance,
right to property, maintenance and succession, there will be a common law.

THE GOAN MODEL

Goa is the only state in India which has enforced Uniform Civil Code for all citizens. The
Portuguese Civil Code that remains in force even today which was introduced in the 19th
century in Goa and wasn’t replaced after liberation.

The Uniform civil code in Goa is a progressive law that allows equal division of income and
property regardless of gender between husband and wife and also between children. Every
birth, death and marriage has to be compulsorily registered. For divorce there are severe
provisions. Muslims that have their marriages registered in Goa cannot take more than one
wife or divorce by pronouncing “talak” thrice. During the course of marriage all the property
and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse
in case of divorce is entitled to a half share of the property and if one dies the ownership over
half of the property is retained by the other.

According to the Uniform Civil Code even if the children (both male and female) have got
married and left the house, the other half has to be divided equally among them. Thus the
parents cannot disinherit the children totally as they can dispose only half of the property in a
will and the rest has to be compulsorily and equally shared amongst the children. Taking
cognizance of this, we must enact a uniform code for the entire India as well.
JUDGEMENTS

Mohammad Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844

Popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed for
maintenance from her husband under Section 125 of the Code of Criminal Procedure after
she was given triple talaq from him. The Supreme Court held that the Muslim woman have a
right to get maintenance from her husband under Section 125. The Court also held that
Article 44 of the Constitution has remained a dead letter. After this decision, nationwide
discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government
overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on
Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under
Section 125 of the Code of Criminal Procedure. The explanation given for implementing this
Act was that the Supreme Court had merely made an observation for enacting the UCC, not
binding on the government or the Parliament and that there should be no interference with the
personal laws unless the demand comes from within.

Sarla Mudgal v. Union of India AIR 1995 SC 1531

In this case, the question was whether a Hindu husband, married under the Hindu law, by
embracing Islam, can solemnise second marriage The Court held that a Hindu marriage
solemnised under 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 under the Act. And, thus, a second marriage solemnised after
converting to Islam would be an offence under Section 494 of the Indian Penal Code.

John Vallmatom vs Union of India AIR 2003 SC 2902

July 2003 when a Christian priest knocked the doors of the Court chalenging the
Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala,
John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act
was discriminatory against the Christians as it impose unreasonable restrictions on their
donation of property for religious or charitable purpose by will. The bench comprising of
Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck
down the Section declaring it to be unconstitutional.

Seema v. Ashwani Kumar 2006 (2) SCC 578

It had directed all states in India to enact rules for compulsory registration of marriages
irrespective of religion, in a time bound period. This reform has struck a progressive blow to
check child marriages, prevent marriages without consent of parties, check
bigamy/polygamy, enable women’s rights of maintenance, inheritance and residence, deter
men from deserting women, and for checking the selling of young girls under the guise of
marriage. The consequence of non-registration of marriages has created a large number of
abandoned spouses in India deserted by non-resident Indians who habitually reside abroad.
 Vishwa Lochan Madan v. Union of India and others 2014

It issued notices to the central government, State governments, All India Muslim Personal
Law Board (AIMPLB) and Darul Uloom, an Islamic seminary, in the matter of the existence
of parallel Islamic and Shariat Courts in the country, which are posing a challenge to the
Indian judicial system. A direction from the court was also sought to restrain these
organizations from interfering with the marital status of Indian Muslim citizens or passing
any judgments, remarks, fatwas or deciding matrimonial disputes amongst Muslims.

S.R. Bommai v. Union of India, AIR 1994 SC 1918

As per Justice Jeevan Reddy, it was held that religion is the matter of individual faith and
cannot be mixed with secular activities. Secular activities can be regulated by the State by
enacting a law and Secularism is a part of basic structure of the Constitution and cannot be
done away with.

JUDGE’S OPINIONS

Chief Justice of India Y.V. Chandrachud observed that,

"A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies"

Justice Kuldip Singh opined that Article 44 has to be retrieved from the cold storage where
it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu personal
law and held,

"Where more than 80 percent of the citizens have already been brought under the codified
personal law there is no justification whatsoever to keep in abeyance, any more, the
introduction of the ‘uniform civil code’ for all the citizens in the territory of India

Chief Justice VN Khare stated that,

"We would like to State that Article 44 provides that the State shall endeavour to secure for
all citizens a uniform civil code throughout the territory of India It is a matter of great regrets
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 contradictions based on ideologies."

Justice Khare, in the recent case, said,

"It is no matter of doubt that marriage, succession and the like matters of secular character
cannot be brought within the guarantee enshrined under Articles 25 and 26 of the
Constitution."
The Chief Justice also cautioned that any legislations which brought succession and like
matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation.
Article 25 confers right to practice and profess religion, while Article 44 divests religion from
social relations and personal law.

Justice R.M. Sahai. He said,

"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even
the slightest of deviation shakes the social fibre. But religious practices, violative of human
rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not
autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the
oppressed and for promotion of national unity and solidarity."

CONCLUSION

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.

But to conclude, I would like to say that 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.

Article 44 of the Constitution of India requires the state to secure for the citizens of India a
Uniform Civil Code throughout the territory of India. As has been noticed above, India is a
unique blend and merger of codified personal laws of Hindus, Muslims, Christians, Parsis.
However, there exists no uniform family related law in a single statutory book for all Indians
which is acceptable to all religious communities who co-exist in India. The question is not of
minority protection, or even of national unity, it is simply one of treating each human person
with the dignity that he deserves; something which personal laws have so far failed to do.

The principle is to treat each person equally and everyone be protected by just, fair and
predictable laws.

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 uniform civil code 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.
BIBLIOGRAPHY

1. Indian Kanoon.org
2. SCC Online
3. All India Reporter
4. The Hindu
5. Wikipedia
6. NDTV
7. The Tribune