Comparative Analysis of Uniform Civil Code and Portuguese Civil

Code in Goa with Personal Laws Prevailing through India

SUBMITTED BY

V SOORYA SHRINIVAS
20010324143
BBA LLB DIV-D
(2020-25)
Symbiosis Law School Hyderabad

In
April 2021

Under the Guidance of

Mr. Amish Abdullah

Assistant Professor
Symbiosis Law School, Hyderabad

1
 TABLE OF CONTENTS

CHAPTER I- OVERVIEW

ABSTRACT……...................................................................................................................... 3

RESEARCH OBJECTIVES......................................................................................................

RESEARCH QUESTIONS........................................................................................................4

RESEARCH METHODOLOGY...............................................................................................5

LITERATURE REVIEW………...............................................................................................5

TABLE OF CASES...................................................................................................................

CHAPTER II- INTRODUCTION TO UNIFORM CIVIL CODE (UCC)

WHAT IS UNIFORM CIVIL CODE……................................................................................

HISTORY OF UNIFORM CIVIL CODE IN INDIA…............................................................

SUDDEN PIQUED INTEREST IN A UNIFORM CIVIL

CODE.............................................8

CHAPTER III- CRITICAL ANALYSIS OF UNIFORM CIVIL CODE

ADVANTAGES OF HAVING A UNIFORM CIVIL CODE.................................................. 9

DISADVANTAGES OF HAVING A UNIFORM CIVIL CODE...................................... 10

RESERVATION AND OTHER HINDRANCES TO THE IMPLEMENTATION OF A

UNIFORM CIVIL CODE……………………………………………………………………11

CHAPTER IV- LIFE AFTER A UCC, STAKEHOLDER ANALYSIS

HOW THE ENACTMENT OF A UCC WILL AFFECT THE COMMON MAN................13

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HOW THE ENACTMENT WILL AFFECT THE JUDICIARY…........................................13

HOW WILL IT AFFECT THE GOVERNMENT AND OTHER STAKEHOLDERS……...13

CHAPTER V- SECULARISM AND UCC

CHAPTER VI- REFERENCES

CHAPTER 1
ABSTRACT
The Uniform Civil Code is an idea propounded by our founding fathers under article 44 of
the Indian constitution as a Directive Principle of State Policy, to enact one law to govern the
civil and personal laws of the state. In today’s scenario, with respect to criminal law, there
exists one law applicable to all citizens irrespective of their caste, creed, religious background
etc. But when it comes civil and personal laws, there exists no one law governing these
aspects, a myriad of laws based on historical religious pretext exist and come into play while
adjudicating on such matters. The main prerogative of the Uniform Civil Code (UCC) is to
streamline this process, simplify the mechanisms through which these aspects of the law is
governed and enact a law that is common to all and applicable to all. In India, barring Goa,
no other state has enforced the application of the Uniform Civil Code as there exists a small
community of individuals that believe that the personal laws dictated by the religious texts of
certain minorities will stand to be eroded through the enactment of a UCC. Alternatively in
Goa, which was ruled by the Portuguese for over 4 centuries has a UCC drafted by the
Portuguese rulers and has stood to be the law of the land till date. Goa was integrated as part
of the Indian Union as on 19th December 1961 and by virtue of the Goa, Daman and Diu
Administration Act of 1962, all the laws in force in these territories including the civil code
were kept in force unless and until repealed by competent legislature or authority, the existing
Civil Code therein was accepted and accorded the full power of the law 1. There exist notable
differences in the code as after its enactment in India, there were corresponding amendments
enacted by the parliament pertaining to civil matters like the Indian Transfer of Property Act
and the Indian Contract Act which were added to the code and the corresponding provision
already present were repealed. It is important to note that there
exists a lot of irregularities in the way personal laws are governed throughout the country. In
some states there exists no UCC so the Hindu Marriage Act of 1955, Indian Christian
1
Dário Moura Vicente, the civil code in Portugal and Goa: common heritage and future prospects, (18 th January
2010, based on a lecture delivered at the Salgaocar College of Law, Panaji, Goa).

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Marriages Act of 1872, Parsi Marriage and Divorce Act of 1936 and the Shariat law of 1937
are some of the major provisions that govern the realm of personal laws in our country. One
of the major reasons for the introduction and the rejuvenated interest in the UCC is to reduce
issues of exploitation especially among women in the realm of personal laws governing
divorce. A prominent example of this is the Shah Bano case in the year 1985 2, throwing light
on the issues related to maintenance of a women after divorce, that spurred the debate for
enactment of a UCC for the protection of the interests of women that get exploited under the
guise of secular sovereignty. In recent times, the case of Shayara Bano 3 which helped in
invalidating the practice of triple talaq and threw light on the plight of women and also
spurred debate regarding the protection of women has also seen ever increasing favour
among the general populi to enact a UCC. Moreover, the judiciary by pronouncing verdicts
on these personal laws has established its supremacy over these laws which is seen to be the
judiciary’s way of welcoming the enactment of UCC. This paper aims to understand the
concept of a UCC and its implications for the common man, it will outline the benefits and
problems that entail with the application of such a code. It will study such projections also
understand the implication by reviewing the situations in states like Goa and other
international states wherein such measures have been established like Middle East countries
where the Shariat law is applicable to all, European nations so on and so forth.

RESEARCH OBJECTIVES

 To understand the scope and ambit of the UCC.

 To study the advantages and dis-advantages of enacting the UCC.
 To analyse the outcomes of its applications in countries that follow such a code

RESEARCH QUESTIONS

1. Why do we need a UCC?

2. Why was it not enacted before?
3. What are the reservations regarding the UCC?
4. What enactment of a UCC entails for the common man?
5. Whether a UCC would co-exist alongside the existing personal law systems or will it
repeal the existing system?
2
 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.
3
Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609, p. 4677.

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 RESEARCH METHODOLOGY

In this research paper we have adopted the doctrinal method of research. Doctrinal method of
research refers to the type of research where we refer to various case laws and statues for the
embodiment of our research paper. We have referred various online legitimate legal sources
such as SCC online and Manupatra. We will also be relying on various secondary sources
such as journals, articles and books to develop a proper understanding. This research paper
will be an analytical and descriptive research where we will try in encompassing the entire
subject matter in a nutshell.

LITERATURE REVIEW
“Uniform Civil Code: Implications of Supreme Court Intervention 4” written by S.P.Sathe is
one of the articles that was referred to extensively in this research. This article talked about
the provision for the UCC mandate under the constitution but failed to interpret it as one
single law for the country. This article gave a different perspective and approach to achieving
the ideals set out by our forefather in the said mandate. The one thing the article failed to
address is the mechanism for such an implementation.

“Uniform Civil Code5” written by Krishnayan Sen is another article that was referred to in
this research. This article talked about why there exist no need for debate with regards to the
enactment of a UCC as it looks at provision under the constitution as a direct constitutional
mandate guiding the lawmakers to do the same. The article also established three measures
by which the seemingly distant dream of enacting a UCC can be achieved. The one drawback
to this source it has failed to recognise the grievances of minority communities toward such
an establishment.

“A Uniform Civil Code: towards gender justice 6” written by Leila Seth, yet another article
that formed a quintessential part in the writing of this research paper threw light on the plight
of women and what such a code meant to them. The article highlights instances where
different individuals at different levels of the Government machinery expressed their
4
S. P. Sathe, Uniform Civil Code: Implications of Supreme Court Intervention, Vol. 30 ECONOMIC AND
POLITICAL WEEKLY 2165, 2165-2166 (1995).
5
Krishnayan Sen, Uniform Civil Code, Vol. 39 ECONOMIC AND POLITICAL WEEKLY 4196, (2004).
6
Leila Seth, A Uniform Civil Code: towards gender justice, Vol. 31 INDIA INTERNATIONAL CENTRE
QUARTERLY, 40, 40-54 (2005).

5
reluctance towards enacting a UCC. Though the paper was designed to concentrate on the
issue of women, failed to capture entire narrative as there are various stakeholders to this
issue.

“Uniform Civil Code (Article 44 Of The Constitution) A Dead Letter 7” written by Shabeer
Ahmed is another article referred to during the course of this research. This source shed light
on the Judicial aspect of the issue at hand. Extensive opinions of politicians and
interpretations of the constitution is visible. The one instance that this source fell short on was
the perspective of common man and the opinions of minorities.

“Uniform Civil Code: A Suggestion8” written by D.C.Manooja is another article referred to

for the purposes of this research. This article highlighted instances of discrimination in
various personal laws prevalent throughout India. This was greatly helpful for this research.
The one respect wherein the paper failed to deliver is the societal and sociological aspect of
the problem. Though the facts provided a derivative understanding of the same, a deeper
highlight of the same was missing.

“Politics of the Uniform Civil Code in India9” written by Peter Ronal Dsouza is another
source referred to in this research. This paper brough out an interesting contention between
the protection of law and the forces of cultural orthodoxy to make the case for a UCC. This
paper highlighted a case which served as a very important piece in this research. The paper
though was extensively focussed on the normative aspect of the issue which was not greatly
relevant to this research.

“The Civil Code In Portugal And Goa: Common Heritage And Future Prospects 10” written
by Dário Moura Vicente is yet another paper based on a lecture, that was referred to in the
course of this research. This paper shed light on the UCC present in Goa and talked about the
discrepancies between the current regime and its common heritage. It shed light about the
differences and similarities the two codes hold in today’s context and also brushed upon the
future of the same. The paper though was of great help but did not cover the entire scope of
my research.

7
Shabbeer Ahmed, UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION) A DEAD LETTER, Vol.
67 THE INDIAN JOURNAL OF POLITICAL SCIENCE 545, 545-552 (2006).
8
D. C. Manooja, UNIFORM CIVIL CODE: A SUGGESTION, Vol. 42 JOURNAL OF THE INDIAN LAW INSTITUTE
448, 448-457 (2000).
9
PETER RONALD DESOUZA, Politics of the Uniform Civil Code in India, Vol. 50 ECONOMIC AND
POLITICAL WEEKLY 50, 50-57 (2018).
10
Supra note 1.

6
“Uniform Civil Code In India: A Binding Obligation Under International And Domestic
Law11” written by Jyoti Rattan is another paper that was referred to during the course of this
research. This paper talked about the international perspective of the issue broadening the
scope of study. This paper though helped build a better understanding, did not seem relevant
in the current research paper.

TABLE OF CASES

S.NO LIST OF CASES

1 Mohd. Ahmed Khan v. Shah Bano Begum, Mohd. Ahmed Khan v. Shah Bano
Begum, AIR 1985 SC 945.
2 Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609, p. 4677.

3 Sarla Mudgal v. Union of India, 1995 AIR 153

4 Dadaji Bhikaji vs Rukhmabai, (1885) ILR 9 Bom 529.

11
Jyoti Rattan, UNIFORM CIVIL CODE IN INDIA: A BINDING OBLIGATION UNDER INTERNATIONAL
AND DOMESTIC LAW, Vol.46 JOURNAL OF THE INDIAN LAW INSTITUTE 577, 577-587 (2004).

7
 CHAPTER 2

INTRODUCTION TO UNIFORM CIVIL CODE

The Uniform Civil Code hereafter referred to as UCC, is a code through which various
personal laws relating to property, marriage, adoption, inheritance, succession, etc., based on
different religious community will be governed by bringing them under one piece of
legislation, throughout the country. A UCC will mean a civil law for all people irrespective of
caste, religion, gender or domicile.

“I personally do not understand why religion should be given this vast, expansive
jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching
upon that field.” These words were spoken by Baba Ambedkar in a Constitution Assembly
debate on UCC.

A constitutional provision for UCC under article 44, documented opinions of our forefathers
on the enactment of a UCC, etc. All of this points towards a common opinion that was held
by the leaders of our country and that is India needs a UCC. This begs the question as to why
we do not have a UCC even after 7 decades of independence and why is the judiciary and
executive reluctant to act on the wishes and vision set forth by our founding fathers?
To answer this question needs to look closer into the positioning of this wish in the
constitution. The provision under article 44 which states, “The state shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India”, is a Directive
Principles of State Policy, hereafter referred to as DPSP, as enshrined in Part IV (Articles 36-
51) of the Constitution of India are not enforceable by any court of law but serve as a
guideline for government policy formation. This causes dilemma in understanding the
intentions of our forefather. To better understand this predicament a statement by a former
law minister H.R.Bardhwaj would throw light on the intent behind this idea. The then law
minister H.R.Bhardwaj at the behest of the then Prime minister had a proposal to amend the
Hindu Succession Act 1956. At that point when he was questioned by his colleagues about
introducing a uniform civil code, he ruled out a uniform personal law and stated, “we can’t
speak for all communities unless they are ready.”12 This statement, highlights the time
12
Supra note 6.

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perspective of the issue. Though our founding fathers wished for a UCC in India to govern
the land, it is important to note that they have added it in as a DPSP so as to express their
wishes but not impose them at that juncture. Pundit Jawaharlal Nehru, while defending the
introduction of the Hindu Code Bill instead of a UCC in parliament in 1954, said "I don't
think at the present moments the time is ripe in India for me to try to push it through 13.” The
logical explanation to this is that the intent behind having a UCC is to establish equity among
all classes of citizens. To overcome gender inequality, discrimination based on caste etc. As
stated by Gandhiji, Gender equality cannot not be achieved only by altering the law, but what
was needed was the transformation of social attitudes. His words were: "Law by itself could
only be a pointer and a guide.”14 This quote happens to reasons out the main reluctance
exhibited by our leaders at that point to enact the UCC because they feared the issue of
acceptance, which would defeat the very purpose the code sets out to serve.

WHAT IS A CIVIL CODE?

“The civil code is a set of laws governing the civil matters of the citizens in the country
relating to matters like marriage, divorce, adoption, custody of children, inheritance,
succession to property etc. The Common Civil Code if enacted will deal with the personal
laws of all religious communities relating to the above matters which are all secular in
character of Indian state and to enhance fraternity of unity among citizens by providing them
with a set of personal laws which incorporates the basic values of humanism.”15

HISTORY OF THE UCC IN INDIA

When you look at the debate about the implementation of the UCC, you can easily work your
way back to its origin, that is to the constituent assembly. This debate started when the
provision for UCC was moved from the Fundamental Rights chapter to the DPSP chapter, a
political compromise that made it recommendatory for the state to enact an UCC but one
which was not justiciable 16. This instance is one present during the formation of the
constitution but the debate around juridical intervention on religious grounds have come up

13
Supra note 7.
14
Supra note 6.
15
Supra note 7.
16
Supra note 9.

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much before that. For instance, in the case of Dadaji Bhikaji vs Rukhmabai17 in 1885, was
one such instance where intense debate was witnessed between the role of modern law and
orthodox religious sentiments. In this case Rukhmabhai was married to Dadaji Bhikaji at the
tender age of 11 to an individual who was much older than her. It was agreed that
Rukhmabhai would stay with her step-father till she reaches puberty. Till then she grew up in
her father’s home where her personality and views evolved and by the time she attained
puberty, she refused to go and live with her husband knowing of his tendencies of
waywardness. The husband filed a suit for the restitution of conjugal rights in Bombay High
Court in 1885, but lost the case. case. He then filed an appeal in 1886 and was given a
favourable judgment, but Rukhmabhai refused and instead chose to face the punishment that
the court should grant her in such a circumstance. The dispute though was settled through a
monetary compromise, spurred a debate among the existing intellectuals.

SUDDEN PIQUED INTEREST IN A UCC

The debate for having a uniform civil code is not one that is new, these debates have taken
place in varied intensities at various points in time. On the outset you can see every time
these debates intensify, it is due to a victim of the prevalent system. For instance, after the
Shah Bano case or Sarla Mudgal case and I can go on naming instances where these debates
have seen a lot of traction just to lose pace. All these instances throw light to the highs of this
issue but no conclusive end has been reached. In today’s pre-text, the Shayara Bano v. Union
of India case, wherein the practice of Triple Talaq was outlawed, saw a sudden piqued
interest in ask for a UCC.

17
Dadaji Bhikaji vs Rukhmabai, (1885) ILR 9 Bom 529.

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 CHAPTER 3

CRITICAL ANALYSIS OF THE UCC

When it comes to enactment of the UCC, there exists a lot of opinions with regards to its
applicability. Many favour it, many oppose it and a lot of interesting alternatives have also
been suggested. In this chapter I will attempt to address all of these interesting perspectives
just to reach a suitable conclusion. To address these perspectives, one must understand the
underlying principle behind UCC, that is to achieve equity in society in all forms and
manners. In the simplest of terms, the UCC is a tool to achieve an egalitarian society.

The proponents of the UCC have a simple and straight forward argument,

1. The constitution under Article 44 in clear terms has stated that the state shall
endeavour to secure for the citizens a UCC throughout the territory of India. There is
a directive and that directive binds us all and that directive being fundamental we
have to accept the position as realists and positivists that a uniform civil code is one of
the desiderata of the Constitution. Hence the issue of why a common civil code, need
not at all be looked into18.
2. Religion is about faith—a relationship between an individual and his God; whereas
law is about specific rights of an individual as against other individuals or society at
large. One is the religious plane which is entirely personal, and the other is the social
plane which deals with a person's status and self-esteem as a citizen of the country.
With that established, the question arises as to why the law should be mindful in
establishing laws in the social plane, governing human interaction at society19.
3. A uniform civil code does not erode religion or religious sentiments but would any
woman object to a code that gives her equal property rights, protection from
polygamy and arbitrary divorce, and the right to adopt and the right to inheritance
even if her father or husband converts to another religion? Here the issue of women’s
rights come to the forefront. When religion discriminates and becomes a source of
injustice, is the victim then left helpless, shouldn’t the law intervene20?
18
Krishnayan Sen, Uniform Civil Code, Vol. 39 Economic and Political Weekly 4196, (2004).
19
Krishnayan Sen, Uniform Civil Code, Vol. 39 Economic and Political Weekly 4196, (2004).
20
Supra note 6.

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These are the major arguments posed by the proponents of such a code. To summarise, they
believe it is a constitutional mandate so the question of need stands to be moot, secondly the
believe religion and law operate on two different realms and the law should not shy way in
doing its duty in the fear of religious sentiments and lastly, the issue of discrimination, where
certain religions have an antiquated understanding of gender roles and such sentiments should
not manifest in a modern-day society.

Now the opponents of such a code make the following arguments

1. The assumption that uniformity produces harmony and integration itself needs to be
questioned as we have one law tor the majority community and yet we can’t say there
is integration within it. There are disputes between the Savarnas and the Dalits and
between various linguistic groups. Did people of Karnataka and Tamil Nadu not kill
each other when they quarrelled over the waters of the River Cauvery? Such dissent
does not disappear by the presence of al common law. Democracy admits dissent and
since ours is a plural society any effort to regiment various ethnic and linguistic
groups into a uniform mould could be counterproductive.
2. Identity must be distinguished from separatism. Having distinct identities is not
against national integration and they do not necessarily lead to separatism. Different
ethnic, religious and linguistic groups have different traditions and cultures and they
are entitled to preserve them. Their personal laws are based on such variety of
traditions and cultures and therefore cannot be obliterated just for the sake of
uniformity.
3. Though the constitution visualises a UCC for the people of this country, it does not
mean there needs to be a single law for all. The question arises that why can’t there be
different laws for different communities based on uniform principles of gender and
social justice. Uniform civil code should not be construed as a mandate for
regimentation of the laws because such regimentation smacks of totalitarianism.

On the outset, the opponents of such a code have multiple arguments based on one premise
and that is the eroding value of religious sentiments. They believe law should not dictate
terms in the personal realm as their way of life and lifestyle is dictated by religious values
they hold.

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ADVANTAGES OF HAVING A UCC

There is a great deal of advantage to having a UCC. The most important of them all is
ensuring there is equality among the genders. Had religious laws been allowed to run its
course in the governance of personal laws, the objective of gender parity could never have
been achieved. These personal laws of different religions foster discrimination, here’s to
name a few; The Muslim law allows for polygamy, indicates that the female witness is not
equivalent to the male, gives males the privilege of extra judicial divorce, disenfranchises a
divorced woman’s right to maintenance; Not just the Muslim law but the Hindu law to
exhibits counts of discrimination with regards to inheritance, the law does not recognise the
female progeny’s right to get inheritance, under the Hindu law marriages are not a contract
but a sacramental union therefore practices like dowry and sati go hand in hand; The
Christian law, The Parsi law and even the Muslim law does not recognise adoption and an
adopted kid is not recognised as a legitimate child and he will not be considered the rightful
heir and would be devoid of the rights he has.

These are just a few counts of discrimination that religious laws foster. This can be prevented
if a common code was injected to govern the realm of personal laws. Objectives such as
gender parity will not seem like a distant role if the law steps in to tell the people right and
wrong. In today’s scenario it is pertinent to note that none of these religions recognise more
than the two genders that are present. The fate of the LGBTQI+ community stands the test of
fate if there exists no UCC protecting their rights.

A UCC will also ensure uniformity in a legislative perspective which will help better govern
and implement the rule of law.

DISADVANTAGES OF HAVING A UCC

One of the major contentions that is posed by the opponents of a UCC is the fear of eroding
religious sentiments. They feel if the law steps in to dictate terms in the personal sphere,
religious values will lose importance and moreover different ethnic, religious and linguistic

13
groups have different traditions and cultures and they are entitled to preserve them. Their
personal laws are based on such variety of traditions and cultures and therefore cannot be
obliterated for the sake of establishing uniformity. Opponents of the UCC do not deny the
antiquated aspects of religious governance but believe that enacting a UCC will not serve the
purpose of establishing an egalitarian society and on the same instance will mark the
beginning of the erosion of religious values. Laws are binding on people because people are
accepting of those laws. When there exists no acceptance, the likelihood of people following
the law or aligning their behaviour in accordance to the established law is unlikely and it
poses a serious threat to the present rule of law. Communal violence is also predicted to be a
possible outcome of the enactment of a UCC. These observations outline a disastrous
outcome, on one end people will not abide by it thereby eroding people’s faith in the law and
in the second instance this will stand to be the cause for communal violence and will create
greater divide in society. In this observation it is pertinent to note that the objectives will also
not be met and the outcome of such an enactment will also be disastrous and detrimental to
society.

RESERVATION AND OTHER HINDRANCES TO THE IMPLEMETATION OF A UCC

There are two major concerns in the minds of legislators when it comes to the enactment of a
UCC and that is the issue of acceptance and the fear of eroding religious values. For a law to
work effectively, it needs societal acceptance and should be in the best interest of all
individuals. In this case, the general populi especially the opponents of such a code believe
that the implementation of a UCC will mean the implementation of one religious code
applicable to individuals belonging to all religions. This misconception needs to be addressed
in the first instance before talks of implementation take place in the parliamentary level.
Secondly, some politicians and political commentators believe that UCC after all is not in the
best interest of the population. They believe that the issue of equity among genders can be
achieved by reforming the existing personal laws, so this begs the question for the need of a
UCC. Let there be reform of each personal law so as to weed out gender injustice and
outmoded traditions or practices instead of a UCC.

14
 CHAPTER 4

LIFE AFTER A UCC, STAKEHOLDER ANALYSIS

Goa happens to be the only state in India which has a UCC but it is extremely important to
understand the intricacies that this code holds and the history of the state. Goa was ruled by
Portuguese colonial rulers for a very long period and after they left, the code is still in
practice due to section 5(1) of the Goa, Daman & Diu Administration Act, 1962. Various
arguments have been made by drawing out a parallel and stating that if Goa can have a UCC
that is functional and effective why can’t that apply to the whole of the nation? This argument
is deeply flawed on various fronts. When you look closely at the code you can see that even
the establishment of a uniform civil code does not stop the stink of discrimination. For
example, Article 1204 of the code permits the husband to get a divorce if adultery is
committed by the wife but the wife can get only a separation if the husband commits adultery
with public scandal and a divorce if he keeps a mistress in the conjugal home or abandons
her; Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 provides that
a Hindu husband can take a second wife in the absence of an issue, if the wife has attained the
age of 25, and also if she has attained age 30 without having a son; Article 1056 terms
marriage a perpetual contract between persons of different sex rather than sacrament, this
invalidates the Hindu stance on marriage being a sacramental union and the code does not
recognise same sex marriage either21. These instances highlight discriminatory stances taken
by the governing law even in case of a uniform civil code. And people making arguments for
a UCC by drawing parallels with the Goan example, have made an argument that is unsound
and a deeply flawed remark.

HOW THE ENACTMENT OF A UCC WILL AFFECT THE COMMON MAN?

21
 Faizan Mustafa, Why Goa’s Civil Code is not as uniform as it is made out to be, The Indian Express, (Jun.
15, 2021, 5:55 PM), https://indianexpress.com/article/explained/why-goas-civil-code-is-not-as-uniform-as-it-is-
made-out-to-be-7279365/.

15
This can only be predicted by modes of a speculation. In that case, the specifics of the code
need to be considered, the mindset of the population and the implementation mechanism
employed. The ultimate goal while enacting a UCC is going to be the considerations the code
entails and the perception factor. The two ways such a code can be enacted is by establishing
uniform principles upon which the various personal laws can be reformed or by revamping
the existing system in place governing the realm of personal laws and replacing that with a
code based out of no single religion but out of societal sentiments like gender and social
justice. In either of these circumstances one thing will stand to be clear, regressive and
antiquated ideologies posited by any religion will stand to be moot. Rules based on the
accepted principles will be the law of the land. The common man in either of these scenarios
does not have much to lose. Though a lack of clarity with regards to the new changes in laws
is a possibility if the legislature is not clear with regards to the terms of change. In case there
exist a complete revamp of the personal laws in the country there could be confusion as to
how to approach the judiciary in this respect. Settlement of disputes will become a more
tedious process with a new system in place if it does not account for all scenarios.

HOW THE ENACTMENT WILL AFFECT THE JUDICIARY?

The enactment of a UCC will prove to be a great relief to the judiciary. The judiciary with
numerous personal laws prevailing throughout the territory of India has found itself in a
difficult position to adjudicate on claims of complex nature and do justice to the parties that
come before it. Whether a Hindu husband, married under Hindu law, by embracing Islam,
can solemnize a second marriage, whether such a marriage without having the first marriage
dissolved under the law would be a valid marriage qua the first wife who continues to be a
Hindu, Whether the apostate husband would be guilty of the offence under section 494 of the
Indian Penal Code. Answers to these questions are not directly available in the absence of a
UCC, the court is obliged to explore them in the jungle of cases. 22 It becomes increasingly
difficult for the judiciary to establish the right interpretation when there exist so many
interpretations. The enactment of a UCC will help shed light on the path to be taken in cases
like these and will also provide for a speedy movement of cases and faster delivery of
judgement if there exist a code that blankets all personal laws and underlines uniform
principles of governance.
22
Virendra Kumar, TOWARDS A UNIFORM CIVIL CODE: JUDICIAL VICISSITUDES [from Sarla Mudgal
(1995) to Lily Thomas (2000)], Vol. 42 Journal of the Indian Law Institute 314, 314-334 (2000).

16
HOW WILL IT AFFECT THE GOVERNMENT AND OTHER STAKEHOLDERS?

When it comes to the enactment of a UCC, the Govt. can be easily marked F on a report card
because ethe inaction of the Govt has rendered Article 44 of the constitution as a dead letter.
A Constitution bench speaking through Justice Y.V.Chandrachud in Mohd. Ahmed Khan v.
Shah Bano, “It is a matter of regret that article 44 of our constitution has remained a dead
letter. It provides that the state shall endeavour to secure a uniform civil code for the citizens
throughout the territory of India. There is no evidence of any official activity for framing a
uniform civil code for the country. A belief seems to have gained ground that it is for the
Muslim community to take a lead in the matter of reforms of their personal law. A common
Civil Code will help the cause of national integration by removing disparate loyalties to laws,
which have conflict ideologies. No community is likely to bell the cat by making gratuitous
concession on this issue.”23 The inaction of the Govt. can only be attributed to its self-serving
tendencies. The nature of politics has become such that any decision how-so-ever important it
be will not be taken unless there exists a positive response in the realm of electoral politics.
The inaction of the Govt. can be attributed to the lack of brownie points for the incumbent.

23
Supra note 7.

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 CHAPTER 5

SECUALRISM AND A UCC

Under Article 25 of the Constitution," Freedom of conscience and free profession, practice
and propagation of religion” is provided for. Under Article 44 of the constitution a promise to
enact a UCC has been provided for. The tussle between these two provisions is another major
concern for legislators. The case for a UCC for India has been made time and again taking
examples of countries across the globe that have enacted the same but such an enactment in
India poses a challenge as the inherent diversity is not accounted for. A secular view of the
same asks for a UCC to be implemented as such implementation enhances the stance of the
Govt. as a secular body and uphold the principles established therein irrespective of which
community stands the test of law. Administering justice based on fragmented personal laws
under the garb of secular boulder is bigoted stance any ruling body should refrain from
taking. The argument that personal law is immune from the intervention of the sovereign
legislature is not sustainable. The right to be governed by personal law was never considered
as part of the right to freedom of religion guaranteed by article 25 of the Constitution24.
Freedom of practicing and professing any religion as enshrined under article 25 is subject to
other provision under the constitution and are also not absolute rights as they are subject to
reasonable restrictions. Assuming for the sake of argument that the law grants the right to be
governed by personal law, it surely does not provide for the perpetual denial of equality or
personal liberty to the people who are governed by such a law.

A secular stance in a multi-lateral society such as India is a key element for national
integration and the smooth sailing of the government and societal machinery. The inhibitions
of minority community with regards to a UCC and the opinions of various persons with
respect to a UCC as a Totalitarian stint as well as a Majoritarian manoeuvre is due to the
ignorance of the content within the code. The draft code established should work under the
principle of secularism and should also exhibit secularistic tendencies to win the approval of
the minorities. The state ought to and should establish a code common to all citizens
irrespective of their religious backgrounds. This does not mean the implementation of such a
code will be devoid religious consideration but there needs to be a common ground that needs
24
Supra note 4.

18
to be established for better governance prospects. As stated by Mr. Krishnayan Sen, “One of
the fundamental reasons why there is so much of apprehension and anxiety about a common
code is because nobody has attempted to make or draft one.”

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 CHAPTER 6

DICTIONARY

1. Black’s Law Dictionary

2. Oxford Advanced American Dictionary

ARTICLES

 S. P. Sathe, Uniform Civil Code: Implications Of Supreme Court Intervention.

 Krishnayan Sen, Uniform Civil Code.
 Leila Seth, A Uniform Civil Code: Towards Gender Justice.
 Akhilendra Pratap Singh, Utility Of Uniform Civil Code.
 Shabbeer Ahmed, Uniform Civil Code (Article 44 Of The Constitution) A Dead
Letter.
 Virendra Kumar, Uniform Civil Code Revisited: A Juridical Analysis Of "John
Vallamattom.
 Jyoti Rattan, Uniform Civil Code In India: A Binding Obligation Under International
And Domestic Law.
 Virendra Kumar, Towards A Uniform Civil Code: Judicial Vicissitudes [From Sarla
Mudgal (1995) To Lily Thomas (2000)].
 D. C. Manooja, Uniform Civil Code: A Suggestion.
 Peter Ronald Desouza, Politics Of The Uniform Civil Code In India.
 Dário Moura Vicente, The Civil Code In Portugal And Goa: Common Heritage And
Future Prospects.

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