UCC and Gender Justice:

A Study on Women's Rights Advancement

Jyaditya Dogra

BA.LLB

Enrollment No. - 05851103820

1 Dec 2023
Abstract

This research paper explore into the intersection of the Uniform Civil Code (UCC) and
gender justice, exploring the implications of a Uniform civil code on the advancement of
women's rights. The goal of the article is to examine the legal viewpoints, sociocultural
aspects, and historical background surrounding the application of a UCC, with a focus on
how it can affect women's rights in varied civilizations. The study looks at case studies and
legal frameworks from various jurisdictions in an effort to shed light on the benefits and
difficulties that come with pursuing gender equity through a unified civil code.Personal laws
in India, particularly those pertaining to civil concerns like marriage, divorce, property,
inheritance, and adoption, were derived from religious conventions and were exclusive to the
religious populace. The Uniform Civil Code needs to be implemented in order to break this
pattern. This concept is not new because the First Legal Commission's recommendation in is
when the UCC implementation debate began. prior to independence and Article 44 of the
Indian Constitution, which converted a suggestion into an article in the years
following.Nevertheless, as Art. 44 is a component of the DPSP, it is not legally
enforceable.Even the common civil code has not been implemented; the uniform civil code is
still far off. The price of this gender disparity stems from the fact that certain personal laws
are prejudiced towards men.For instance, Muslim law permits men to marry more than once
and does not need maintenance for their wives. Similarly, the father and later the mother have
been designated as the child's guardians under the Hindu Minority and Guardianship Act. The
only way to end this inequity is to enact a uniform civil code.

Keywords

Uniform Civil Code (UCC), Gender Inequality, Personal laws, Religion, Indian Constitution.

Introduction

The Uniform Civil Code (UCC) has been a subject of intense debate and discussion,
particularly in the context of diverse societies with varying cultural and religious practices.
Gender justice though firmly etched in the Constitution, seems to be an elusive dream for
India as a society. India was placed in the 112th place out of 153 countries by the World
Economic Forum in the Global Gender Gap Report 2020, four ranks below her 2018
position.1 In India, the right to marry, divorce, adopt, inherent property, and other ancillary
rights are vastly determined by personal laws and thereby are inherently arbitrary.

prior to independence and Article 44 of the Indian Constitution, which converted a suggestion
into an article in the years following.Nevertheless, as Art. 44 is a component of the Directive
Principle of State Policy, it is not legally enforceable.Even the common civil code has not
been implemented; the uniform civil code is still far off. The price of this gender disparity
stems from the fact that certain personal laws are prejudiced towards men.For instance,
Muslim law permits men to marry more than once and does not need maintenance for their
wives. Similarly, the father and later the mother have been designated as the child's guardians
under the Hindu Minority and Guardianship Act. The only way to end this inequality is to
enact a uniform civil code.

UCC is explained under Article 44 of the Directive Principles of State Policy (DPSP), which
reads that the “State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India”. The aim is to replace fragmented personal law, which currently
governs civil matters. However, the Directive Principles of State Policy, as defined in Article
37, states that “The provisions contained in this Part shall not be enforceable by any court,
and the principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the state to apply these principles in making” (The
Constitution of India 1949). Uniform civil code (UCC) is a code which creates a common
civil law for all the citizens of India without any discrimination based on religion, caste,
color, creed, race etc. As said by Sathe, “The word ‘uniform’ same law for all but it should
mean similar laws for and similarity should be regarding equality and gender justice”.

Historical Context

The character of all current Indian legislation is derived from English law. During their
regime ,the British were very positive in bringing the uniform set of rules to govern the laws
of the country. This is clearly stated in the First Law Commission's 1840 report, known as the
"Lex Loki" or "Law of the Place" Report. This first law commission's primary goal was to
Indian Penal Law However, the commission's final recommendations stated that the criminal
law, including the law of evidence and the law of contracts, needed to be codified, dashing
hopes of implementing the Uniform Civil Code (UCC). But on the other hand, when it comes

1
Global Gender Gap Report 2020, World Economic Forum (Date Accessed [2 Dec 2024, 10:43])
http://www3.weforum.org/docs/WEF_GGGR_2020.pdf
to personal matters such as marriage, alimony, adoption, and divorce, No such codification is
necessary.This is the result of a political consideration put forward by Warren Hastings when
he referred to the Rules for the Administration of Justice (1780). The policy clearly states
that people should be guided by personal law in disputes such as marriage, divorce, and
inheritance. The British cited three main reasons for their decision not to interfere with
Indian customs:

i. The fixed habits, and long-established customs were contrary, both in principle and
in practice to that of England

ii. The English laws, that would be written for this people would be both complex and
alien to the locals

iii. “Suitable to the genius of the people and all the circumstances in which they may
be placed”.2

Although, the Hindu personal laws were also governed by the religion but due to the old
customary laws hindu women faced a lot of discriminatory practices like sati, prohibition of
widow remarriage, inheritance, divore etc. british administrators and indian aristrocrats
worked on these problems and number of legislations were passed like Hindu Widow
Remarriage Act, 1856, Hindu Wills Act, 1870, Married Women's Property Act, 1874, with its
Amendment Act, 1923, Indian Majority Act, 1875, the Hindu Inheritance (Removal of
Disabilities) Act, 1928, Child Marriage Act, 1929, Hindu Women's Right to Property Act,
1937. This momentum led to the setting up of the Hindu Law Committee headed by BN Rau.
The Committee recommended the codification of the Hindu law for both marriage and
succession.3

But why were the personal laws of Hindus alone codified? M. R. Masani was the one who
first proposed that the requirement to establish a uniform civil code be included in the list of
justiciable rights. By a majority of five to four, the Fundamental Rights Sub-Committee,
however, determined that the clause did not fall under the purview of fundamental rights.
Several members of the Constituent Assembly put forth arguments for and against the
UCC.India is a diverse country, said Hussain Imam, making Her unfit for UCC. Personal
laws being an integral part of the person’s way of life, culture, said Mohd. Ismail, the right to

2
AC BANERJEE, ENGLISH LAW IN INDIA 133 (Abhinav Publications, 1984).
3
DC BUXBAUM, FAMILY LAW AND CUSTOMARY LAW IN ASIA 209 (Springer 1968)
pursue one’s personal laws is a part of their fundamental rights. He further pressed that non-
interference with personal laws is a component of minority rights.4

Supporters of UCC like KM Munshi argued that UCC is not opposed to religious freedoms as
freedom of religion, minority rights etc. K.M. Munshi, expressed his opinion that "if the
personal law of inheritance, succession, etc. is considered as a part of religion, the equality of
women can never be achieved".

Dr. BR Ambedkar, who favoured the UCC argued that not all Muslims followed Shariat,
before 1935. He pointed out that the North West Frontier Province, Northern Malabar, etc.
did not follow Shariat succession, but Hindu laws of succession, and matriarchal laws
respectively. He also assured that just as certain aspects of Hindu law would make it to the
UCC, it would also include Muslim laws.5

The Assembly hoped that the successful implementation of such neutral laws and the Hindu
Code would pave way for a similar exercise for all the communities.6 Unfortunately that was
not to come by, yet. Thus, came to into existence the non-justiciable directive to the State to
“endeavour to secure for citizens a uniform civil code throughout the territory of India”.But
that is not the only provision in the Constitution dealing with this subject. Matters governed
by personal laws are scattered across the Three Lists of Schedule VII. Marriage, divorce,
adoption, succession etc. are in the Third List7, whereas succession to agricultural lands, and
burial related matters are within the purview of the State legislature. 8 The Center, however,
governs Hajj and Ziyarat piligrimages.9

Judiciary and UCC

4
Constituent Assembly Debate, Vol. VII, December 1, 1948
5
Constituent Assembly Debate, Vol. VII, 7.58.145-7.58.149, November 23, 1948
6
GR Rajagopaul, The Story of the Hindu Code 17(4) Journal of the Indian Law Institute 537-543 (1975)
7
Entry 5
8
Entries 10, 18
9
Entry 20
In the landmark case of Narasu Appa Mali10, the Bombay High Court resolved this concern
by holding that personal laws are In the landmark case of Narasu Appa Mali, the Bombay
High Court resolved this concern by holding that personal laws are beyond the scope of
Art.13. References to Art. 44 were merely made to point out the existence of different
personal laws. While the Court has decided in favour of the law abolishing bigamy for
Hindus, it did not do it with the intention of furthering gender justice.

Mohammad Ahmed Khan v. Shah Bano Begum11 In the so-called Shah Bano case, the
Supreme Court ruled, ``It is unfortunate that Article 44 of our country's constitution remains
a mere shell.'' Under Section 125 of the Indian Code of Criminal Procedure (Cr.P.C), it has
been clarified that Muslim women are not entitled to receive maintenance after divorce.

In Sarla Mudgal, President Kalyani and Others v Union of India and Others (1995), the
Supreme Court asserted uniformity to prevent Hindu men from converting to Islam just to
arrange remarriage, and held that the Hindu code of law was the model for building the UCC.
In 2003, the Supreme Court reaffirmed his preference for the UCC from a succession
perspective in John Vallamattom and Another v Union of India (2003)12.

In Mary Roy vs. State of Kerala13, the Supreme Court highlighted the importance of
promoting gender equality and non-discrimination. The judgment stated, "Our Constitution
mandates gender equality, and personal laws must not perpetuate discrimination based on
gender" And hence the Travancore Cochin Succession Act, 1092 was repealed. Here also the
need for UCC can be clearly seen in matters regarding succession. In Danial Latifi v. Union
of India (2001)14, the Supreme Court upheld the importance of gender equality in personal
laws and emphasized the need to reform these laws to bring them in line with constitutional
values. Similarly in Githa Hariharan v. Reserve Bank of India (1999)15 the Supreme Court
held that the mother could be the natural guardian of a minor's property under Hindu law,
even if the father was alive. This judgment was a significant step towards gender equality in
matters of guardianship under personal laws.

10
A.I.R. (39) 1952 Bombay 84
11
985) 2 SCC (1985) 2 SCC
12
John Vallamattom and Anr. v. Union of India (2003) 5 SCALE 384, Para 44
13
(1986) 1 S.C.R.
14
(2001) 7 SCC 740
15
AIR 1999, 2 SCC 228
Need For Implementation

The question of whether uniform civil code implementation is necessary will remain
debatable as long as religious leaders and their adherents continue to think that common law
will apply if uniform civil code (UCC) is implemented. This way of thinking needs to
change, and people should stop being confined to the orthodox religious thinking that is
based on their time period and available resources. Uniform Civil Code (UCC)
implementation will fortify unity and elevate the state to a position of respect.The time has
come for the government to introduce a uniform civil code, end systemic discrimination and
promote gender parity.Proclaiming equal property rights and equal rights to divorce, child
support, and adoption is a good start, but it is not enough to advocate gender equality.These
are just personal law reforms, but the first step to all of this could be a UCC.Only when this
policy is implemented will the country be best able to focus its time, energy and resources on
constructive issues rather than those arising from religious conflicts.

Problems To UCC

1) Exceptions to the Central Family Laws: The introductory paragraph of all Central Family
Laws enacted with the aid of using Parliament considering the fact that Independence
pronounces that they observe to "the entire of India besides the State of Jammu and
Kashmir" are doing. His 2nd exception changed into delivered to some of these legal
guidelines in 1968, offering that "not anything contained herein shall observe to the rebels of
the Union Territory of Pondicherry." Third exception: None of those legal guidelines observe
to Goa, Daman, or Diu.A fourth exception, referring to the northeastern states of Nagaland
and Mizoram, arises from Articles 371A and 371G of the Constitution, which offer that
parliamentary law shall now no longer override normal regulation and religion-primarily
based totally administrative systems.

2) Local Politics: In light of local politics, the specifications for a unified civil code were
developed. In the name of social reform, a sizable portion of the populace holds that this is
the majority's principle.

3) Constitutional Obstacles: Article 25 of the Indian Constitution, which guarantees the

freedom to practice and spread any religion, is incompatible with Article 14's emphasis on
equality.
Way Forward
1. Collaborative Approaches: Rather than siding with religious conservatives, governments
and societies should first make a concerted effort to foster trust and, more importantly, to
share common causes with social reformers.It must be constructed brick by brick. Rather than
adopting a comprehensive strategy, the government could progressively incorporate specific
elements like marriage, adoption, inheritance, and maintenance into the Uniform Civil Code.

2. Gender-sensitive approach: In addition to the eagerly anticipated transition to a Uniform

Civil Code, the government will examine a number of other laws in detail in light of gender
justice.

3. Judicial Committee: Review religious leaders' requests for adoption of customary law.A
judicial commission consisting of judges, senior lawyers, law professors, and highly qualified
jurists should be established to dialogue with religious leaders.

4. Create a Uniform Civil Code (UCC) that lessens the emphasis on religious teachings
and practices and is based on moral status and fundamental rights: The UCC, which is
soon to be implemented, is expected to contain laws that are based on moral status and
fundamental rights and to lessen the emphasis on religious teachings and practices.

5. To bring up gender equality: Children's education should require a course on gender

equality. Because the current issues remain unresolved even in the face of laws like Section
498A of the IPC.Only through people's knowledge and awareness will this be possible.

6. Creation of Faster Courts in Civil Personal Rights Litigation: As courts faced hectic
examinations of individual rights, the Uniform Civil Code (UCC) eased the work of the
courts and made them more efficient and faster than usualto can make a judgment.

.
Conclusion

“There is no necessary connection between religious and personal law in a civilized society.
Article 25 of the Constitution confers freedom of conscience and free profession, practice and
propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the
former guarantees religious freedom whereas the latter divests religion from social relations
and personal law. It is no matter of doubt that marriage, succession and the like matters of a
secular character cannot be brought within the guarantee enshrined under Articles 25 and
26 of the Constitution.”16

Gender justice is the bedrock of the Constitution as can be discerned from the wordings of the
Preamble, fundamental rights like Art. 15(3), directive principles like Art. 39(a), and Art. 42,
to political reservations in Arts. 243D(3)(4) ,243T(3)(4). While every religion undoubtedly
enjoys the right to its own practices, traditions, and customs, a practice or custom that places
one below or beneath another, must go. And of all the inequalities, imbalances, and injustices
so caused, gender issues trump. One cannot continue to avoid solving gender injustices
because it coincides with other issues. It is absolutely no justification to say that gender
justice cannot be achieved because it is trapped under the weight of religion, or religious
freedom. Granted, patriarchy cannot be eradicated by UCC alone. However, it can definitely
thwart the legal defense that has been afforded to it. And the same has to happen immediately
because laws that continue to legitimize personal laws that are blatantly discriminatory would
render political and even economic empowerment meaningless.

16
John Vallamattom and Anr. v. Union of India (2003) 5 SCALE 384, Para 44
BIBLIOGRAPHY

 M.S Ratnaparkhi, Uniform Civil Code: An Ignored Constitutional Imperative,

(AtlanticPublishersand distributors (P). Ltd 1997).
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2012)
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