Ilovepdf Merged

“THE NEED OF UNIFORM CIVIL CODE AND ITS UTILITY
WITH SPECIAL REFERENCE TO CONSTITUTIONAL

PROVISIONS”
THESIS SUBMITTED TO:
SWAMI RAMANAND TEERTH MARATHWADA UNIVERSITY

NANDED, MAHARASHTRA, INDIA
FOR THE AWARD OF DEGREE OF

DOCTOR OF PHILOSOPHY
IN LAW
SUBMITTED BY:
MR. SANDIP DIGAMBARRAO YADAV
Assistant Professor,
K.J.Somaiya College of Arts and Commerce, Vidyavihar, Mumbai.
UNDER THE SUPERVISION OF:
DR. J. B. AURADKAR DR. V. M. MORE

Guide Co-Guide
Principal, Principal,
Shri Shivaji Law College, Kandhar Shri Shivaji Law College, Parbhani
INDIA
MARCH-2022
CERTIFICATE
This is to certify that the thesis entitled “The Need of Uniform Civil
Code and Its Utility with Special Reference to Constitutional
Provisions” submitted by Mr. Sandip Digambarrao Yadav to
Swami Ramanand Teerth Marathwada University, Nanded for the
award of the degree of Doctor of Philosophy in Law is a bonafide
work carried out by him under my supervision and guidance. The
content of the thesis, in full or parts have not been submitted to any
other institute or University for the award of any other degree or
diploma.
Dr. J.B. Auradkar

Research Supervisor and
Principal, Shri Shivaji Law College, Kandhar
(Guide)
Dr. V. M. More
Principal
Shri Shivaji Law College, Parbhani
(Co- Guide)
Place: Nanded
Date: March 2022
i
DECLARATION
I have great pleasure to exercise privilege of submitting Ph.D. thesis
entitled “The Need of Uniform Civil Code and Its Utility with
Special Reference to Constitutional Provisions”. Moreover, I
submit that it is an original and honest work carried out by me, at
Narayanrao Chavan Law College and Law Research Centre, Nanded
affiliated to Swami Ramanand Teerth Marathwada University
Nanded under the guidance of Dr. J.B. Auradkar, Retired Principal,
Shri Shivaji Law College, Kandhar and Dr. V. M. More, Principal,
Shri Shivaji Law College Parbhani and this thesis has not been
submitted previously in the form of thesis or any other similar title to
this or any other university.
Place: Nanded Sandip Digambarrao Yadav

Date: March 2022 B.A.LL.M NET
Research Scholar
ii
ACKNOWLEDGEMENT
Acknowledgement can be a very nice way of saying thanks to the
persons who helped in completion of this research. It is my privilege to
present Ph. D Thesis under the guidance of Dr. J.B. Auradkar, Retired
Principal, Shri Shivaji Law College Kandhar and Principal Dr. V.M.
More, Former Dean, Law Faculty, S.R.T.M.U. Nanded and Ex-
Director, B.CU.D. , S.R.T.M.U. Nanded. My first and foremost thanks
to both of them, by whose able guidance, keen interest and constant
supervision throughout the tenure of Ph. D , I am being able to complete
this thesis.
I am thankful to Swami Ramanand Teerth Marathwada University

Nanded and Research Centre, Narayanrao Chavan Law College, Nanded
for affording an opportunity as research student and to complete
research thesis. I am thankful to Dr. Veena Sanekar, I/C Principal and
all teaching and non-teaching colleagues of K.J. Somaiya College of
Arts and Commerce, Vidyavihar, Mumbai for extending cooperation and
help.
It is a pious obligation upon me to express my sincere and honest

gratitude towards my parents Sow. Ganga and Digambarrao Yadav
and family members without whose consistent co-operation and
blessings, this research always be a nullity. I am especially thankful to
my beloved wife Archana and my sweet Son Aditya and daughter
Ananya for their constant encouragement for completion of the thesis. I
am very much thankful to Dr. P.G. Chavan Madam, Dr. Mahesh Patil,
Dr. Gyanendra Fulzalke, Dr. Swapnil Choudhary, Dr. Kashinath
Neharkar, Dr. Satyawan Hanegave, Mrs. Monika Sawant, Dr. Sunil
iii
Chandanshive, CA Amol Bhosale, Mr. Mayur Shelke, Mr. Rahul Jagtap,
Mr. Nilesh Ghadge, Mr. Abhay Jadhav and Mr.Annasaheb Dhawale for
their constant encouragement. Last but not least I am thankful to all
those who directly or indirectly helped me in completion of present
thesis.
Sandip Digambarrao Yadav

B.A.LL.M NET
Research Scholar
Place: Nanded
Date: March 2022
iv
THE NEED OF UNIFORM CIVIL CODE AND ITS UTILITY WITH SPECIAL REFERENCE TO
CONSTITUTIONAL PROVISIONS.
===================================================================================
Table of Contents
CHAPTER 1: .................................................................................................... 1
INTRODUCTION............................................................................................ 1
1.1 Constitutional Provisions: ................................................................... 2
1.2 Objectives of Study: ............................................................................ 6
1.3 Scope of the research: ......................................................................... 7
1.4 Significance of research problem: ....................................................... 8
1.5 Hypothesis: ........................................................................................ 11
1.6 Literature Review: ............................................................................. 12
1.7 Research Methodology:..................................................................... 12
1.8 Position of UCC in Other Countries: ................................................ 14
1.8.1 Uniform civil code in Bangladesh: ............................................ 14
1.8.2 Turkey: UCC .............................................................................. 15
1.8.3 Uniform Civil Code in Israel: .................................................... 17
1.8.4 Position of UCC in Nepal: ......................................................... 18
1.8.5 Uniform civil code in U.S.A.: .................................................... 23
CHAPTER 2 ................................................................................................... 24
CONCEPT OF UNIFORM CIVIL CODE: ................................................ 24
2.1 Meaning of UCC ............................................................................... 24
2.2 Matters of Uniform civil code: .......................................................... 25
2.3 Historical Background of UCC: ........................................................ 25
2.3.1 Position in Ancient India: .......................................................... 26
2.3.2 Position in Medieval India: ........................................................ 28
2.3.3 Position in the British Period: .................................................... 30
2.4 Constitutional Assembly debates and Uniform civil code: ............... 34
2.4.1 Arguments against UCC are addressed at the Constituent

Assembly: ................................................................................................ 35
ix
===================================================================================
2.4.2 Arguments in favour of UCC in Constituent Assembly: ........... 37
CHAPTER 3 ................................................................................................... 45
CONSTITUTIONAL PERSPECTIVE:....................................................... 45
3.1 Preamble: ........................................................................................... 46
3.2 Fundamental rights and Uniform Civil Code: ................................... 47
3.2.1 Article 13: .................................................................................. 49
3.2.2 Article 14: .................................................................................. 55
3.2.3 Art. 15. ....................................................................................... 56
3.2.4 Article 25 to 28: ......................................................................... 58
3.3 Directive principle of State Policy and Uniform Civil Code: ........... 64
3.3.1 Article 44: .................................................................................. 65
3.3.2 Relationship between Directives and Fundamental Rights: ...... 67
3.4 Fundamental Duties and Uniform Civil Code: ................................. 69
3.5 Article 372 ......................................................................................... 70
3.6 International Provisions Relating to Uniform Civil Code:................ 73
3.6.1 Universal Declaration of Human Rights, 1948 .......................... 74
3.6.2 International Covenant on Economic, Social and Cultural Rights,

1966 75
3.6.3 International Covenant on Civil and Political Rights, 1966 ...... 75
3.6.4 International Convention on the Elimination of All Forms of

Racial Discrimination, 1966 .................................................................... 76
3.6.5 Convention on the Elimination of All Forms of Discrimination

Against Women (CEDAW), 1979 ........................................................... 78
3.6.6 UN convention on the Rights of the child, 1989 ....................... 79
3.6.7 Declaration on the Right to Development, 1986 ....................... 79
3.6.8 Declaration on the Elimination of All Forms of Intolerance and

of Discrimination Based on Religion or Belief, 1981.............................. 81
3.6.9 Declaration on Rights of National or Ethnic, Religious and

Linguistic Minorities, 1992 ...................................................................... 81
x
===================================================================================
CHAPTER 4 ................................................................................................... 83
NEED OF UNIFORM CIVIL CODE: ......................................................... 83
4.1 The Uniform Civil Code is a tool for achieving gender equality and
justice in society. .......................................................................................... 84
4.2 The Uniform Civil Code is a tool for achieving societal unity and
integrity. ....................................................................................................... 84
4.3 Reasons for a Need of Uniform Civil Code: ..................................... 85
4.4 Comparative Study of Various Personal Laws in India: ................... 86
4.4.1. MARRIAGE .............................................................................. 87
4.4.2 DIVORCE .................................................................................. 92
4.4.3 MAINTENANCE ................................................................... 100
4.4.4 ADOPTION ............................................................................. 104
4.4.5 GUARDIANSHIP.................................................................... 109
4.4.6 SUCCESSION ......................................................................... 114
4.5 The Goa Civil Code as a possible model for other parts of India ... 126
CHAPTER 5 ................................................................................................. 128
IMPLEMENTATION OF UNIFORM CIVIL CODE: ............................ 128
5.1 Efforts made before independence: ................................................. 128
5.2 Efforts made after independence: .................................................... 131
5.2.1 The role of Special Marriage Act in advancement of Uniform

Civil Code: ............................................................................................. 132
5.2.2 The Hindu code of 1955-56: .................................................... 135
5.2.3 The Dowry Prohibition Act, 1961: .......................................... 137
5.2.4 Medical Termination of Pregnancy Act, 1971: .................... 137
5.2.5 Juvenile Justice (Care and Protection) Act, 2015: ................... 138
CHAPTER 6: ................................................................................................ 142
ROLE OF JUDICIARY: ............................................................................. 142
6.1 Narsu Appa Mali Case .................................................................... 143
xi
===================================================================================
6.2 Shah Bano Case ............................................................................... 147
6.3 Ms. Jorden Diengdeh V. S.S. Chopra: ............................................ 158
6.4 Saira Banu V. A.M. Abdul Gafoor.................................................. 168
6.5 Sarla Mudgal v.Union of India ....................................................... 171
6.6 Shabnam Hashmi v. Union of India ................................................ 175
6.7 Shayara Bano V. Union of India: ................................................... 177
6.8 Indian Young Lawyers Association v. The State Of Kerala ........... 182
6.9 Sameena Begum V. Union of India ............................................... 186
CHAPTER 7: ................................................................................................ 188
CONCLUSION AND SUGGESTIONS: .................................................... 188
BIBLIOGRAPHY: ....................................................................................... 203
Appendix –I .................................................................................................. 209
Appendix-II .................................................................................................. 225
xii
ABBREVIATIONS
AIR - All India Reporter
AIWC - All India Women’s Conference
B.C. - Before Christ
Bom. L.R.J. - Bombay Law Reporter Journal
BJP - Bharathiya Janata Party
BMMA - Bharathiya Muslim Mahila Antholan
CAD - Constituent Assembly Debates
CEDAW - Convention on the Elimination of all forms of
Discrimination against Women
Cr. L.J. - Criminal Law Journal
Cr. P C - Criminal Procedure Code
D.B. - Division Bench
DPSP - Directive Principles of State Policy
Ed. - Edition
FR - Fundamental Rights
HC - High Court
Ibid. - Ibidem
I.L.R. - Indian Law Reports
IPC - Indian Penal Code
v
J.I.L.I. - Journal of Indian Law Institute
MPMB - Muslim Personal Law Board
MPL - Muslim Personal Law
NDA - National Democratic Alliance
NGO - Non-Governmental Organizations
SC - Supreme Court
SCC - Supreme Court Cases
S.C.J. - Supreme Court Journals
UCC - Uniform Civil Code
UDHR - Universal Declaration of Human Rights
UNO - United Nations Organizations
W.L.R. - Weekly Law Reports
vi
TABLE OF CASES
1. Bai Tahira v. Ali Hussain Fidalli Chothia 1979 AIR 362, 1979 SCR (2)
75.
2. Bal Patil v. Union of India AIR 2005 SC 3172.
3. Begum Subanu alias Saira Banu V. A.M. Abdul Gafoor A.I.R.1987
S.C.1103
4. Bijoe Emmanuel v. State of Kerala AIR 1987 SC 748.
5. Comm. H.R.E. v. Lakshmindra (1954) SCR 1005.
6. Danial Latif V. Union of India AIR 2001 SC 3262.
7. Durgah Committee v. Hussain AIR 1961 SC 1402.
8. Fazlunbi v. K. Khader Vali AIR 1980 SC 1730.
9. Gnanamuthu v Anthoni,AIR 1960 Mad. 430.
10. Gurdayal Kaur v. Mangal Singh AIR 1968 Punj. 396. at 398.
11. Indian Young Lawyers Association v. The State Of Kerala (2019) 11
SCC 1).
12. K.S. Puttaswamy and Anr. V. Union of India ((2017) 10 SCC 1).
13. Maharshi Avadhesh v. Union of India 1994 Supp. (1) SCC 713.
14. Maneka Gandhi v. Union of India, 1978 1 (SCC) 248.
15. Mohammed Ahmed Khan V.Shah Bano Begum (AIR 1985) SC 945.
16. Ms. Jorden Diengdeh V. S.S. Chopra AIR 1985 S.C.935.
17. Mukta v. Kamalaksha AIR 1960 Mys, 182.
18. Mulla Tahir Saifuddian v. State of Bombay AIR 1962 SC 853.
19. Nalini v. State of Bihar AIR 1977 Pat. 171.
20. Noor Saba Khatoon V. Mohd.Quasim AIR 1997 SC 3280.
vii
21. Ramji Lal Modi v. State of Uttar Pradesh AIR 1957 SC 620: 1957
SCR 860.
22. Ratilal Panchand v. State of Bombay (1954) SCR 1055.
23. Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 38.
24. Sameena Begum V. Union of India Writ Petition (Civil) No. 222, 202,
235 And 227/2018
25. Sant Ram v. Labh Singh AIR 1965 SC 314.
26. Sarla Mudgal V. Union of India AIR 1995 SC 153.
27. Seema v.Ashwani Kumar AIR 2006 SC 1158.
28. Shabnam Hashmi v. Union of India (2014) 4 SCC 1.
29. Shayara Bano V. Union of India 2017 SCC1.
30. Sri Krishna Singh v. Mathura Ahir 1 AIR 1980 SC 707.
31. State of Bombay V. Narasu Appa Mali AIR 1952 Bom.84.
32. United Provinces v. Atiqa A.I.R. 1941 F.C. 16.
33. Usmanbhai Hasanbhai v. State AIR 1981 Guj. 40.
viii
===================================================================================
CHAPTER 1:
INTRODUCTION
The nature of Indian society is pluralistic. Pluralism refers to the existence of
diverse ethnic groups, cultural traditions, languages, religions, and other
characteristics within a nation or society. India, as we perceive it today, is
made up of several groups with various ideologies, such as multilingual,
multicultural, and multi-religious. India is a secular country, which means it
does not have a state-sanctioned religion. However, India is home to the
world's major religions. The primary religions are Hinduism, Islam,
Christianity, and Judaism. Generally, people in India follow their own
personal laws and these laws apply to them. Means for different religious
people‘s different personal laws are applicable in India. There is a huge
contradiction in all these personal laws in respect to marriage, adoption,
maintenance, divorce, and succession.
Hindus and Muslims each have their own set of rules. Statutory
enactments have secularised and modernised Hindu law. Muslim law, on the
other hand, has remained unchanged in terms of content and methodology.
The Christians have their Christians Marriage Act, 1872, the Indian divorce
Act, 1869, and the Indian Succession Act, 1925. The Jews have their un-
codified customary marriage law and in their succession matters, they are
governed by the Succession Act, 1925. The Parsis have their Parsi Marriage
and Divorce Act, 1936. Therefore to achieve uniformity of law Uniform Civil
code is a need of the hour.
Meaning of Civil Code: The present research is going on the burning issue
Uniform Civil Code. So it is very difficult to understand the concept of UCC if
we are unaware of the term civil code. Hence researcher is trying to elaborate
the concept in the following ways.
Civil law refers to the law governing private individual rights and legal
actions relating to those rights, as opposed to criminal, military, or
international regulations or proceedings. Code is a term used in programming
to refer to both the statements written in a programming language and the
1
===================================================================================
statements written in a different programming language. A civil code, on the

other hand, is a systematic collection of laws meant to deal with the main
areas of private law, such as business and negligence actions and activities. A
civil code is usually accompanied by a code of civil process in a jurisdiction1.
1.1 Constitutional Provisions:

Some of the provisions of our Indian constitution speak about the Uniform
Civil Code. Especially Article 442 which enshrined under part IV of the
constitution of India. The constitutional makers dreamed that in the coming
future article 44 will be converted into a separate Act but still, the dream is not
fulfilled due to lack of political will. The following provisions of the Indian
constitution narrate about Uniform Civil Code.
i. The preamble of the constitution of India: India is a secular country,

according to the preamble of the Indian constitution. It denotes the absence
of a state religion. A secular state must not discriminate against anyone
based on their religious beliefs. Religion's personal law, on the other hand,
discriminates against others.
ii. Article 13 of the constitution of India: Laws inconsistent with or in

derogation of the fundamental rights-
(a) All laws in force in the territory of India immediately before the
commencement of this constitution, in so far as they are inconsistent with
the provisions of this part, shall, to the extent of such inconsistency, be
void.
(b) The state shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
(c) In this article, unless the context otherwise requires-
(i) ‗Law‘ includes any ordinance, order, bye-law, rule, regulation, notification,
custom, or usage having in the territory of India the force of Law.
1
Contributors to Wikimedia projects. (2005, August 15). Code of law - Wikipedia. Retrieved
October 5, 2021, from Wikipedia, the free encyclopedia website:
https://en.wikipedia.org/wiki/Code_of_law.
2
It reads Uniform civil code for the citizens.
2
===================================================================================
(ii) ‗Laws in force‘ includes laws passed or made by legislature other

competent authority in the territory of India before the commencement of this
constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular areas
(d) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.3
Today there are several Acts, laws with abridges the provision of the Indian
Constitution. According to Article 13, the apex court and High Courts of
States are the powers to declare any law or Act, or ordinance which is
inconsistent with the provision of the Indian Constitution.
iii. Article 14 of the constitution of India: 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. Article 14 guarantees the
fundamental right of equality before the law. This means all are equal
before the law irrespective of their caste, religion, etc. But in India for a
different religious person, different personal law is applicable.4
iv. Article 24 of the Constitution of India: Freedom of conscience and

free profession, practice and propagation of -
(a) Subject to public order, morality, and health and to the other provisions
of this part, all persons are equally entitled to freedom of conscience
and the freely to profess, practice, and propagate religion.
(b) Nothing in this shall affect the operation of any existing law or prevent
the state from making any law –
(i) Regulating or restricting any economic-financial, political, or other
secular activity which may be associated with religious practice.
3
The Constitution of India. Article 13.
4
3
===================================================================================
(ii) Provide for social welfare and reform or the throwing open of Hindu
religious Institution of a public character to all classes and sections of
Hindus.5
Explanation I- The wearing and carrying of kripans shall be deemed to be

included in the profession of the Sikh religion.
Explanation II- In sub-clause (b) of clause (2) the reference to Hindus shall be
constructed as included a reference to persons professing the Sikh, Jaina, or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.6
Article 25 of the Indian constitution guaranteed the right of religion to every

citizen of India, he can have the right to practice, profess and propagate his
religion but this right is not absolute. Subject to public order, morality, and
health state is having the power to restrain any person or group of persons
from the enjoyment of the right of religion.
v. Article 44 of the constitution of India- uniform civil code for the citizens-
The state shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.7 Article 44 expressly mandates the
government to introduce a uniform civil code that would include such
items as marriage, inheritance, and divorce.
Part IV of the Indian constitution, which deals with directive principles of

state policy, includes Article 44. Fundamental rights are enforceable in India;
however, directive principles of state policy are not. As a result, Article 44
remains in place, preventing it from becoming a separate Act.
vi. Article 372 of Indian constitution: Continuance in force of existing laws

and their adaptation
(1) Notwithstanding the repeal by this Constitution of the enactments referred
to in Article 395 but subject to the other provisions of this Constitution, all the
laws in force in the territory of India immediately before the commencement
5
6
Ibid.
7
The constitution of India. Article 44.
4
===================================================================================
of this Constitution, all the laws in force in the territory of India immediately
before the commencement of this Constitution shall continue in force therein
until altered or repealed or amended by a competent Legislature or other
competent authority
(2) For the purpose of bringing the provisions of any law in force in the
territory of India into accord with the provisions of this Constitution, the
President may by order make such adaptations and modifications of such law,
whether by way of repeal or amendment, as may be necessary or expedient,
and provide that the law shall, as from such date as may be specified in the
order, have effect subject to the adaptations and modifications so made, and
any such adaptation or modification shall not be questioned in any court of
law.
(3) Nothing in clause (2) shall be deemed

(a) To empower the President to make any adaptation or modification of any
law after the expiration of three years from the commencement of this
Constitution; or
(b) To prevent any competent Legislature or other competent authority from
repealing or amending any law adapted or modified by the President under the
said clause8.
On the one hand, the constitution recognizes the continuous presence of
personal law, which is why Article 44 anticipates that India will have a
uniform civil code at some point in the future. On the other side, some
provisions guarantee equal rights, such as article14 to 19. Article 15 would
render personal law unlawful because personal laws for distinct groups are
fundamentally unequal. Article 15 also prohibits discrimination based on
gender. Whereas, Muslim law favors the man in many cases especially in the
issue of divorce and polygamy.
8
5
===================================================================================
1.2 Objectives of Study:

The important object of this research is to identify anomalies in various
personal laws and to explain why the Uniform Civil Code is so crucial for
society's growth. Followings are certain other objectives of the study.
1) To highlight the significance of adopting a uniform civil code
and its urgency.
2) to examine the obstacles to enacting a uniform civil code in
India and to suggest solutions for achieving the UCC
3) To find out the reasons why still Uniform civil code is not
applicable in India.
4) Critical study of inconsistencies in various personal Laws
5) To analyse the role of the judiciary for the improvement of the
Uniform Civil Code.
6
===================================================================================
1.3 Scope of the research:

The present research is going to conduct to examine the role of
uniform civil code in the present scenario. After independence, our
independent government adopted the world's largest constitution. In the olden
days, our society was divided based on language race, caste, religion, place of
birth. As well as literacy rate was also very poor. Therefore it was told that it
is difficult to rule a uniform civil code in the olden days. But in the 21st
century, the position is in favour of a uniform civil code. To describe the scope
of a research problem, the researcher is going to refer to various articles,
documents, books which describe the role and importance of UCC. The
researcher also refers to the constitution of India and related amendments. The
judiciary also plays sine qua none role to call UCC, therefore the researcher
will refer to different judicial decisions which are related to this present
research. To conduct this doctrinal research the various articles published in
journals and newspapers have also been referred. In this present research, the
researcher is going to focus on the concept 'Secular State' because in India
there is a contradiction between the word secular state and the right to religion.
Article 44 of the Indian constitution deals with the Uniform Civil Code
therefore researcher will especially focus on this article. Today‘s world is
affected by information technology; therefore the research will be conducted
with the support of the internet.
7
===================================================================================
1.4 Significance of research problem:

Under uniform civil code, there is a proposal to make one unified set of
laws that will comprise all these personal rules. Every citizen of India has to
abide by those unified set of laws irrespective of their religion and castes. This
means all religious persons will be treated equally in matters relating to
marriage, maintenance, adoption, and succession.
Dr.B.R.Ambedkar takes the initial step to call uniform civil code. he

while speaking about article 44 observed that ―it is perfectly possible that the
future parliament may make a provision by way of making a beginning that
the code shall apply only to those who make a declaration that they prepared
to be bound by it, so that in the initial stage the applicant of the code may be
purely voluntary.‖ Dr. Ambedkar was clear in his feeling that the state had the
power to legislate over the personal laws and can call for a uniform civil code.
But unfortunately due to lack of political will still after 74 years of
independence uniform civil code is not in existence in India. If it was enacted
immediately after independence, today the picture of our India will be
different.
It is strongly stated that the uniform civil code is mainly opposed by

the Muslim minority community. They don't want to reform or amend their
personal law. But actually, those who wish to reform the Muslim personal law
have often cited Muslim countries as examples that such reform is possible.
Terence Faries in his chapter ‗the development of Islamic Law‘ points out that
in 1961 Muslim family ordinance of Pakistan makes it obligatory for a man
who desires to take a second wife to obtain written permission from a
government-appointed arbitration council. The interesting thing regarding
Pakistan is that until 1947 India and Pakistan Muslims were governed under
the Shariat Act, 1930. However, in 1961 Pakistan, a Muslim country had
actually reformed its Muslim law more than India.
Polygamy is abolished in the countries like Tunisia and Turkey in the

present situation. Iran, South Yemen, and Singapore all reformed their Muslim
8
===================================================================================
laws in the 1970s. It is a big question if Muslim countries can reform Muslim
personal law, so why it is not possible in India, therefore it is a subject matter
of research.
Our Indian judiciary also takes a vital role to call uniform civil code.
While deciding various eminent cases the honorable court directed the central
government to form a uniform civil code, but still, it is a mere dream. In India,
Goa is the only state which adopts a uniform civil code. In a historic judgment
in Sarla Mudgal V. Union of India9 the Supreme Court has directed Prime
Minister Narshimha Rao to take a fresh look at Article 44 of the constitution
which enjoins the state to secure the Uniform Civil Code. The above direction
was given by the court while dealing with a case where the question for
consideration, where a Hindu husband married under Hindu law, after
conversion to Islam, without dissolving the first marriage, can solemnize a
second marriage? The court has held that such marriage will be illegal and the
husband can be prosecuted for bigamy u/s 494 of the Indian penal code. In
India, the personal law of Muslims allowed to perform four marriages but to
perform a second marriage without dissolving the first marriage is punishable
offence u/s 494 of for all other communities other than Muslim. Is it not a
violation of article 14 of the Indian constitution?
In another significant judgement in Noor Saba Khatoon V.

Mohd.Quasim10 the Honourable Supreme Court has held that a divorced
Muslim woman is entitled to claim maintenance for her children till they
become major, the court held that both under Muslim personal law and u/s 125
of criminal procedure court, 1973 the obligation of the father was absolute
when the children were living with divorced wife. That was an active step
towards Uniform Civil Code.
In another landmark judgement in Danial Latif V. Union of India11

the Supreme Court upheld the constitutional validity of the Muslim woman
(protection of rights on divorce) Act.1986 and held that a Muslim divorced
9
AIR 1995 SC 153
10
AIR 1997 SC 3280
11
AIR 2001 SC 3262
9
===================================================================================
woman has the right to maintenance even after the iddat period under the 1986
Act. The court said that a Muslim husband is liable to make reasonable and
fair provisions for the divorced wife which extends beyond the iddat period in
terms of section 3(1)(a) of the Act.
Again in Shamina Ara`s case 12 the court held that the husband did not
have a unilateral right to tripe talaq which simply consist of the husband
saying "I divorced you" three times to his wife but had to provide a good
reason for the divorce and had to first go through attempts at reconciliation.
The above decisions of the court will make the job of introducing the uniform
civil code much easier.
12
(2002) 7 SCC 518
10
===================================================================================
1.5 Hypothesis:
i. Whether the endeavour of the Indian parliament's to establish UCC
in India is sufficient or not?
ii. Uniform Civil code can eradicate gender injustice and anomalies
between personal laws.
iii. Supreme Court can play a vital role in the protection of the
fundamental right to equality and to avoid conflicts under personal
laws.
iv. The government should act to achieve a Uniform Civil Code
throughout the territory of India.
11
===================================================================================
1.6 Literature Review:

The researcher has adopted the doctrinal research methodology; hence
it is important to study the relevant books and documents. It is also necessary
to study the judgements of the Supreme Court of India and respective High
courts of the state. The relevant articles in journals and newspapers are also
needed to study. Due to lack of political will still uniform civil code is not in
existence therefore the role of governments is also to be analysed.
1.7 Research Methodology:

The researcher used a doctrinal research approach to conduct the
current study. Doctrinal research is one that examines current legislative laws
and cases and applies reasoning power to them in order to come up with a
legal proposition or notion. Many authors have produced books about this
topic and offered their unique viewpoints. As a result, the researcher will turn
to those books for information. For this form of research, the library is the
most important resource. As a result, the researcher must rely on Indian
libraries for information. The Supreme Court and high court judgements must
be considered when analysing this research.
The doctrinal study entails analysing case law in order to organise,
order, and systematise legal arguments. This type of legislation includes acts
of parliament and acts passed by the legislature. Case laws decided by the
Supreme Court and other high courts that are binding on subordinate courts
are known as precedents.
When conducting doctrinal research, a researcher will begin by

focusing on one or more legal propositions. After reading and analysing all of
these sources, the researcher will formulate his conclusions and
recommendations.
12
===================================================================================
The preamble of the Indian Constitution states the country to be a

sovereign, socialist, secular, democratic republic that guarantees equality of
status and opportunity to all citizens. The Supreme Court of India has stated
that 'secularism' is the fundamental structure of the Indian Constitution, which
cannot be undermined even by constitutional amendment. The creation of a
uniform civil code is a wise method for achieving our constitutional aims, and
it is envisaged that our system will remain free of politics and religious
clutches as a result of its creation. India is a religiously diverse country.
Despite the fact that the characteristics of secularism were made available in
the Indian Constitution from the beginning as the right to religion under
Article 25-28, the word "secular" was incorporated directly into the
Constitution's preamble. The goal of insertion was to establish strong secular
principles in order to preserve the nation's integrity. In India, there is no state-
recognized religion. The state is not required to protect one religion or its
adherents above any other. It is also the State's responsibility to ensure that no
further benefits be given to anyone else in the name of religion.
The objective of the uniform civil Code's formulation is to achieve

India's integration by uniting all citizens of all groups on a common platform
in matters covered by their separate personal laws, as well as to provide
equality before the law and equal protection under the law. Because the
Supreme Court of India has proclaimed equality to be a part of the
Constitution's essential structure, no legislation may violate it. The Uniform
Civil Code does not intend to infringe on a person's right to conscience and to
profess, practise, and propagate their religion; rather, it will erect barriers only
to conservative and coloured activities that have been carried out in the name
of religion for centuries in the partial interest of some religious and powerful
groups. According to the Indian Constitution, religion is not a basis for
discrimination amongst individuals.
13
===================================================================================
1.8 Position of UCC in Other Countries:

We can understand the true meaning of Uniform Civil code after the
comparative study with other countries. In this chapter researcher is trying
analysis the situation of Uniform Civil Code in Bangladesh, Turkey, Israel,
Nepal and U.S.A.
1.8.1 Uniform civil code in Bangladesh:

In some nations, such as India, the constitution recognises a uniform Civil
Code; article 44 of the Indian constitution states that the uniform Civil Code
shall strive for the citizens. There is no constitutional recognition of a Uniform
Civil Code in Bangladesh. Other laws, such as contract law, have a single law
that applies to all religions. In personal law, however, various laws apply to
different religions. Bangladesh as a secular state should not have its own
religion.
Because of the following important factors, a country like Bangladesh, which

is based on religious faith and political power, cannot properly implement the
Uniform Civil Code.
a) Diversity: The Uniform Civil Code is unlawful and unworkable in a

diverse country like Bangladesh. Articles 2A and 41 of our constitution are in
contradiction with it. "If there is a consistent criminal code, why not a uniform
civil code?" is one of the most important arguments in favour of the Uniform
Civil Code. However, while there is no variance in offences in the Criminal
Code, different religions have diverse practises, rituals, and solutions in
personal law. If we use the Uniform Civil Code in personal or civil law, it will
add to the complexity.
b) Conflict between Majority and Minority: A uniform civil law can be

used by a majority to oppress a minority. It has the potential to oppress
marginalised groups. Other religions will be oppressed by the main religion's
culture and religious rule. All other religious communities will be controlled
by the majority religious community, which will obstruct their religious
14
===================================================================================
practise. Bangladesh is a Muslim-majority country, with Muslims accounting

for 89 present of the population. Minor religions are currently suffering greatly
as a result of the Muslim majority.
c) Political interference: The influence of the universal civil code is

determined by two factors: the substantive content of the law and the
mechanism used to establish it. Gender justice must be ensured by a unified
civil code that ensures uniformity and equality of rights. All types of
communities must be involved in the development of a uniform civil code. If
this legislation is utilised to isolate the minor population as a political
instrument, it will create a vulnerable position that will impair social ties and
national integrity. As a result, if our country adopts a uniform civil code, there
is a risk of inequity.
d) Problem of Implementation: In a country like Bangladesh, the

implementation process is lengthy, and even if the uniform civil code is
approved, it will take a long time to implement, causing more instability,
confusion, and tensions in the meanwhile.
e) Possibility of religious riots: People are sensitive to religious issues, so

there is concern that if the uniform civil code is approved, religious riots may
ensue. Different religions have their own set of rituals that they practise
religiously. However, if an uniform civil code is established, there will be one
law that applies to everybody, which may be detrimental to their religious
feelings and faith.
1.8.2 Turkey: UCC

In introducing and strengthening secularism, Turkey has taken an assertive
approach. Prior to introducing democracy, Ataturk enacted his changes
through authoritarian authority, believing that a stage of search was required to
stabilise his reforms. Turkish secularism was a form of state control over
religion, rather than the separation of state and religion that some societies
practise. As a result, secularism was neither neutral nor value-free; it was a
reaction to other governing influences, such as Islam, Kurdish nationalism,
15
===================================================================================
Marxist ideology, and liberalism. The prohibition of religious instruction in

1924, the dismantling of religious courts in 1926, and the 1933 directive
requiring Islamic summons to worship and public readings of the Quran to be
in Turkish rather than Arabic were all used to maintain control. Alternative
developments were tolerated in order to reaffirm these principles.13
In Turkey, many religious groups are outspoken in their opposition to

secularism. For Muslims, the concept of belief and political authority are fused
by the union of dinve devlet...the prophet having both revealed and founded a
state. This remark is the foundation for a putative anti-secularist stance. The
rising liberalisation of the civil society movement since the 1980s might be
considered as a major current challenge to Turkish secularism. Civil society
and democratisation, with their emphasis on providing voice to specific
interests, are remedies to previous aggressive forced secularism, in which
ethnic interests were muted for the sake of Turkish modernity and unification.
Special rights for specialised interest groups, particularly those of a religious
or cultural background, contrasts with a secular society in which all people,
regardless of race or religion, are subject to the same set of civil laws. One
noteworthy aspect to note is that while Turkey recognises non-Muslim
religious communities as official minorities, it does not do so for Muslim
ethnic minorities.14
Globalization has put pressure on Turkish secularism by providing

alternatives to Ataturk's concept of modernity, which included the necessity of
secularism. Given these changes, it will be interesting to observe how
secularism performed in the future. Provisions of the Turkish constitution that
had previously protected military coup leaders have been repealed. Further
military officers accused of plotting a coup against the civilian administration
will no longer be protected by a military tribunal and will instead face civilian
courts. Dismissed military officers can also seek reinstatement of their
commissions through the civilian judiciary.15
13
Shetreet, Shimon. Uniform Civil Code For India. First, oxford university press, pg. 103.
14
Ibid at Pg. 104.
15
Ibid at 105.
16
===================================================================================
Several new provisions were enacted as a result of Turkey's

constitutional revisions. Individual liberties and judicial changes are addressed
in these reforms. Those legal relationships with the state have been changed,
allowing ombudsmen to address issues and individuals who are still
dissatisfied to go straight to the constitutional court. Individual group
constitutional protection was recognised as being consistent with the
constitution's general ideal of equality. The constitutional court will be
expanded, with some members appointed by the Turkish parliament, and the
number of the supreme court of judges and prosecutors will be increased. In
addition, all people can now file a petition directly with the constitutional
court. 16
1.8.3 Uniform Civil Code in Israel:

A variety of debates have erupted in Israel over religious equality, marriage,
separate school systems, separate transportation, and separate living. When
applied to the Israeli context, the widely held belief that democracy cannot
tolerate separation is not necessarily true, and each example of separation must
be considered on its own merits. To distinguish between valid and non-
legitimate separation, one should look at the aim of separate education or
transportation. In Israel, it is expected that the educational system will exist in
order to safeguard the Jewish identity of future generations. Thus, Jewish
education serves two purposes: the first is to help young men and women
grow their personalities in accordance with their unique capabilities and
inclinations; the second is to help young men and women develop their
personalities in accordance with their unique talents and inclinations. The
second goal is to prepare young people for adulthood by giving them the
ability to adjust to the conditions of their social environment.17
Separation between the Ultra-Orthodox sector of school and public

transportation has sparked a number of debates in Israel. Disputes emerged in
general society on the subject of selective methods for admitting citizens to
16
Supra note 14, at 105.
17
Ibid at 115.
17
===================================================================================
tiny settlements. There were debates about marriage and divorce, specifically
the lack of a civil marriage option. The subject of gunot wives whose
husbands refuse to give geth (Jewish certificate of divorce), which generates
harsh criticism, is a particularly tricky matter.18
Despite the fact that religious law governs marriage and divorce in
Israel, significant progress has been made in the acknowledgment of the de
facto status of same-sex relationships. In a landmark judgement, a judge in
Israel ordered a couple of same sex who married in Canada to be listed as
married in the population registry. This is despite the fact that in Israel, same-
sex marriage is not permitted. A female same-sex couple was also allowed to
adopt each other's children by the court. In a series of cases, the court also
recognised that a reputed spouse of the same sex has the same economic rights
as a reputed spouse of a different sex.19
Israel has a judicial system that is both civil and criminal. When the
State of Palestine-Eretz Yisrael was established in 1948, its legal system was
primarily comprised of Ottoman legislation enacted during the four centuries
that Palestine-Eretz Yisrael was a part of the Ottoman Empire (until 1917) and
British legislation and case law enacted during the British Mandate Period
(1917–1948). In other areas, such as marriage and divorce, the religious
communities—Muslims, Christians, and Jews—had autonomous authority,
with independent tribunals implementing their own religious laws.
1.8.4 Position of UCC in Nepal:

Despite the fact that Nepal is a multi-ethnic and multi-religious country, it has
had an uniform civil code in effect since 1963. The fact that this code is
fundamentally a Hindu code is a separate issue that will be addressed later. It's
no surprise, then, that the 1990 Nepalese Constitution (which has since been
repealed) is mute on the question of other communities' personal laws, given
that the Constitutional Monarchical Kingdom of Nepal is itself 'Hindu' (Article
4). 'Every person should have the freedom to profess and practise his own
18
Ibid at 116.
19
Supra note 18.
18
===================================================================================
religion as passed down to him from ancient times, with due regard for
traditional practises,' the Constitution states.20
Prior to the unification of Nepal, the acceptance of law based on the

Dharmashasthra viz. veda, smirities, purana, and commentaries was a common
feature among the princes. Dharmaadhikara was entrusted with the
responsibility of justice by King Prithivi Narayan Shah. The King was the
cornerstone of the rule of law and justice. In all provincial and district level
courts, he established trial and appellate courts. Pundits from the Brahmin
caste were designated as Dharmadhikari delegates, who were in charge of
applying the law and religion in all matters. The equality teachings were
disregarded, the caste system was prominent, and criminals were handled
according to their caste.21
The code (Muliki Ain, 1854) contained Nepal's diverse customs, laws,
uses, social norms, and royal proclamations, including untouchability and
penalty for breaching the caste order, making caste-based discrimination
official. The first code of modern Nepal, the country code of 1854, was thus
founded on Hindu law and included the various castes and ethnic groups of
Nepal within the framework of the national caste hierarchy. Muluki Ain's
preface states that the code went into effect in 1854 to bring uniformity to the
country's legal administration. The 1854 Code has been revised and
reconstructed several times over the years, with up to thirteen minor and
significant revisions. It served as the country's primary source of legislation
for about 110 years, until it was replaced in 1963 by the country code (Muliki
Ain). Until 1951, Nepal's legal system was founded on the 1854 law. When
the Prime Ministerial dynasty, the Rana Dynasty, fell out of power following a
popular uprising, the Code was left in limbo. After the monarchical authority
was restored in 1960 in its panchayati manifestation, King Mahendra updated
the 1854 law in 1963.
20
Partha S. Ghosh, The Politics of Personal Law in South Asia; Identity, Nationalism and the
Uniform Civil Code 190 (Routledge, 2007).
21
Kanak Bikram Thapa, ―Religion and Law in Nepal‖ National Report: Nepal, available at:
https://www.iclrs.org/content/blurb/files/Nepal.pdf (last visited on February 5, 2020).
19
===================================================================================
Nepal's civil, criminal, religious, and customary laws were fully

codified in the Country Code of 1963. All sorts of prejudice and
untouchability were banned under the code. Certain indigenous communities'
traditional rules and practices were also recognised by the Code. It makes it
illegal to convert someone from one religion to another. An attempt to convert
another person is punishable by three years in prison, while a successful
conversion is punishable by six years in prison. If the person is a foreign
national, he or she will be ejected from the country after serving six years.22
Only with the demise of the party-less Panchayat regime in 1990 did
the grave and most widespread demands of secularism emerge. The effort,
which was launched by Theravada Buddhist monks and lay people who no
longer wanted to be labelled as members of a Hindu sect and was backed by
Janajati (indigenous) initiatives, attempted to secure equal recognition, rights,
and space for all religions practiced in the country.
The activists observed that a century-old process had merged
Hinduism into Nepalese national identity, attempting to homogenies a highly
diverse people and led to the "upper caste" Hindus' dominance in all domains,
including political, legal, economic, and educational. Secularism was thus a
demand for the country's multi-ethnic and multi-religious structure to be
recognised. It wasn't a call to eliminate religion from public life; rather, it was
a call for non-Hindus to be treated equally to Hindus. The de-hinduization of
the state (for example, the substitution of Hindu symbols and rituals for the
state), the push for a multicultural Nepal, and the acknowledgement of ethnic
groups' separate identities were all central to this appeal.23
Nepal's status as a Hindu kingdom was preserved in the 1990

Constitution, but secularism prevailed after seventeen years thanks to the
Maoist party's efforts. Since the commencement of their ten-year insurgency,
22
Bangladesh Constitution amend. V, act 1 of 1979.
23
Chiara Letizia, Secularism and statebuilding in Nepal, available at:https://www.c
r.org/downloads/SecularismAndStatebuildingInNepal.pdf ( last visited on February 12,
2020).
20
===================================================================================
the Maoists have advocated for secularism. It was included in a 40-point

demand petition sent to the government prior to the start of the "People's War"
in 1996. Its pro-secular stance was popular with the Janajatis, who made up a
significant portion of its supporters. Opinion polls have consistently revealed
that, unlike other prominent groups in the country, the majority of Janajatis
favour a secular state — while there is still a sizable minority who prefer the
Hindu state. In 2007 and 2008, the NC and UML parties supported secularism
because they considered it as a vital step in dismantling the monarchy's
dominance, which had a symbiotic relationship with Hinduism. Despite their
reservations, many of their leaders went along with the secular flow for fear of
being labelled monarchists.
Secularism has been met with tremendous criticism because it

represents a new pluralistic sense of national identity in which people of all
religions come together on an equal footing. The sanatan Dharma (Hinduism
as transcendental, the "everlasting Religion") is a shared Nepalese (and South
Asian) heritage, according to anti-secular and Hindu nationalist organisations
and political parties. They say that Hinduism is the world's most secular
religion, as it encompasses many diverse sects and promotes tolerance and
harmony among Nepal's various religious communities. Hindu nationalists
disregard the reality that Hinduism's diverse ethnic and religious identities
(particularly Islam) have a long history in Nepal, and that categorising some
people as more Hindu than others grants them specific benefits.
With fifty-five ethnic groups in Nepal, the country is distinguished by

a multitude of ethnic diversity. Nepal's varied spectrum of religion and
language groups, in addition to caste groups, play crucial roles. Nepal was a
monarchy with the king's word from the eighteenth century until 1951. For a
decade starting in 1951, the monarchy was replaced by a democracy.
However, political instability afflicted the democracy, as indicated by the fact
that full elections were held only in 1959. Nepal's first elected government
was formed as a result of these elections. However, less than two years after
21
===================================================================================
the elections, the king dissolved parliament and the cabinet, ushering in a
period of party-less administration.24
Nepal was proclaimed Hindu by the Panchayat Regime in 1962.

Opponents of the statement stated that it was done to oppress Nepalese people
and strengthen Panchayat authority by putting the king in a reversed role, as
the rebirth of the Hindu god Vishnu, uploading dharma on the earth. He would
grant blessings at Hindu festivities. The growth of feudal elites from top
Hindu castes and ethnic groupings was also considered in the government as a
source of Hindu dominance.25
During its rule, the Panchayat government endeavoured to eliminate

political opponents in order to maintain control. However, in 1980, king
Birendra called a vote to allow the people to choose between a multi-party
democracy and a modified Panchayat system as a result of a massive student
political movement that could not be quenched. A revised system was chosen
by the voters. Regardless of the outcome, the vote undermined the Panchayat
system. The government was ousted in 1990, and a multi-party democracy
took its place. The people were made sovereign for the first time, and a new
constitution was enacted within a year. In the Kathmandu valley, democracy
resulted in the creation of a liberal social middle class. Poverty in rural areas,
on the other hand, persisted.26
Many ethnic groups believed they were being discriminated against

because of their ethnicity, case, or gender, which sparked protests and
violence. In both the private and public domains, Dalits campaigned against
caste-based oppression, especially caste-based untouchability. They also
marched in support of Dalit women, regional discrimination, and equal
language rights. The Madhesis, for their part, have complained about regional
prejudice and their inability to get citizenship. They desired their own federal
state, complete with regional autonomy, proportional representation, equal
24
Shetreet, Shimon. Uniform Civil Code For India. First, oxford university press, p. 85.
25
Ibid.
26
22
===================================================================================
access to government jobs, affirmative action, and equal cultural and linguistic
rights.27
1.8.5 Uniform civil code in U.S.A.:

The current territorial federalism system in the United States has a lot in
common with "personal law" systems found all over the world. A state's
varied laws are enforced for each of the state's diverse religious or ethnic
communities under a personal law system, which is one of the reasons such
systems have been carefully scrutinised by the United Nations and other
international organisations for their human rights implications. Similarly,
religious-group exemption to generally applicable law has been frowned upon
in US First Amendment doctrine. Nonetheless, the United States Supreme
Court has recently reemphasized state sovereignty and other federal values.
27
Ibid.
23
===================================================================================
CHAPTER 2
CONCEPT OF UNIFORM CIVIL CODE:

In this second chapter, the researcher intends to analyse and elaborate on the
concept of UCC. Article 44 of the constitution of India provides a uniform
civil code for the citizens- the state shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. The meaning of UCC is
not clearly defined u/a 44. Therefore researcher is going to concentrate on the
concept of UCC.
2.1 Meaning of UCC

The term Uniform Civil Code is formed by combining three words: uniform,
civil, and code. Every word has a distinct meaning in this context. The
definition of uniform is "the same in all circumstances or at all times." In
Article 44 of the Indian Constitution, the word „Uniform' is used instead of the
word „Common.' These two names are frequently used interchangeably.
However, a few intellectuals believe there is a distinction between the two
names. According to them, the term "uniform" refers to the same thing in all
situations. The word 'common', on the other hand, denotes the same thing in a
similar situation.28
The term "civil" is a very broad phrase that can be used in a variety of
contexts; it is derived from the Latin word "civils," which means "citizen."
When used as an adjective to the phrase 'law,' it refers to a citizen's private
rights and remedies as opposed to criminal, political, and other types of law.29
The term "code" comes from the Latin word "codex," which means
"book." This term refers to a comprehensive piece of legislation that governs
an entire province of law or a significant portion of it, as long as it is organised
systematically and based on uniform principles.30 It refers to a logical and
simple collection of all general statutes that may be combined in a 'code' under
28
Kumar, Dr. Ranjan. The Need for a Uniform Civil Code. First, Pilgrims Publishing, pp. 29–
30.
29
Ibid.
30
Encyclopaedia Americana.
24
===================================================================================
a title reflecting the intent to enact code.31 When the term "Civil Code" is used
with the adjective "uniform," it refers to a set of rules that apply to all citizens,
regardless of their religion, race, caste, sex, or faith.
2.2 Matters of Uniform civil code:

Different countries contain different matters in Civil Code. The 'Civil Code' in
western European countries contains the legislation that controls citizens' civil
relationships. Family relationships are governed by personal rules in Islamic
countries, which are based on the holy book Quran. Family law was not
recognised as an element of civil law in the Soviet Union. However, in India,
the phrase "Civil Code" refers to a body of law that governs civil concerns
such as marriage, divorce, inheritance, and other topics that are currently
handled by several personal laws. In India, different people have different
misconceptions about the term Uniform Civil Code. The largest minority
community in India i.e. Muslims think that the Inceptions of Uniform Civil
Code will lose their identity. On the other hand, the remaining communities in
India believe that Uniform Civil Code will eradicate all their customs and
ceremonies. Therefore a researcher is trying to clear all these misconceptions
with the explanation of matters of the Uniform Civil Code. Certain subject
matters of the Uniform Civil Code are as follow:
1. Marriage
2. Succession(Inheritance)
3. Divorce
4. Adoption
5. Maintenance
6. Guardianship
7. Partition
8. Joint family system etc.
2.3 Historical Background of UCC:

Although the notion of the Uniform Civil Code is credited to free India, it has
deep roots in the history of the battle for independence. Previously, India was
31
Encyclopaedia Britannica.
25
===================================================================================
divided into small republics that were ruled, administered, and regulated by
the sovereigns or their deputies. The necessity of common law governing the
entire population of the Britishers, the necessity of common law governing the
entire citizenry of this subcontinent grew more apparent with the
governmental unification of India with the arrival of the Britishers. Before
that, territorial heads issued civil and criminal laws based on their customs,
which they received from past generations and which had religious and ethical
sanctity. The historical background of the Uniform Civil Code is discussed
under the following heads.
2.3.1 Position in Ancient India:

The king was expected to promote piety and virtue, as well as aid religious
organisations, in ancient times. The government was not based on theocracy,
and there was significant neutrality in the treatment of sects, regardless of
whether religion adhered to the king. The religious aspects of legal policy, on
the other hand, were very significant. All religions were usually given equal
prominence under the ancient Hindu state, as they are in today's modern
Indian state.32 The 'Vedas,' or revealed writings, which are said to have been
divinely inspired, provide the fundamental ideas of Hindu law. The Vedic
scriptures are said to have been spoken by God Brahma, the creator and first
component of the Hindu Tradition. Early Hindus regarded them as infallible
and supreme, same as later Christians regarded decay locks. The moral
foundation for Hindu law was formed on the Ramayana, Mahabharata, and
Bhagvata Gita, which has been in on-going use to this day. What is heard in
the Vedas, also known as Shruti, is also revealed text. The Vedas, like every
other revealed literature, contains numerous titles of positive law. They
believed that the Rishis, or ancient sages, had heard it and passed it down to
the next generation. Another type of scripture is called Smriti, which means
"tradition" or "what is remembered." Smritis differ from Shrutis in that they
are an indirect perception of heavenly precepts based on memory rather than a
32
Sudheer Birodkar, Religious Tolerance and the Challenge of Secularism, available at:
http://www.hindubooks.org/sudheer_birodkar/hindu_history/secularism.html (Visited on
January 06, 2016).
26
===================================================================================
direct perception. These two sources are regarded as the foundations of Hindu
law.33
Hindu sages were the community's leaders in ancient times, and they
were renowned for their sanctity as well as their great knowledge. They
established the rules that served as the foundation for the organisation of
society. They served as a code of ethics and morality, as well as governing
social issues and political and government problems, in addition to their
religious responsibilities. However, there was no separation between civil and
religious and social regulations in these sages' early texts. It was only in later
treatises that they were discussed individually. As a result, it appears that law
and religion were intertwined in early communities and were frequently
indistinguishable from one another. 'Manu Smriti' could potentially be
included in this category. Manu is considered to be the first law giver or
exponent. Manu's code is organised into twelve chapters, eight of which
contain laws on various civil and criminal law topics. Other chapters include
religious rituals and moral guidelines. Other treatises, such as Narad Smirti
and Brihaspati Smriti which are subsequent to the Manu Smriti and are
entirely devoted to the topic of civil law, come into the third category.34
The king did not have significant ability to intervene with the people's
own laws under this ancient Indian legal system. In fact, the legislation was
self-contained and did not require the approval of any political authority. The
sages created and stated the rule of law, which applied equally to the ruler and
his subjects. He carried out orders but rarely, if ever, drafted legislation. The
king of the kings was the law. The king was powerless to overturn the statute.
Indeed, upon his crowning, the king was compelled to swear that he would
uphold the established laws and practices.35
33
D.K. Srivastava, Religious Freedom in India, p. 213(1982).
34
U.C. Sarkar, Epoch in Hindu Legal History, Visheshvaranand Vedic Research Institute, p.
23 (1958).
35
A.S. Alteker, State and Government in Ancient India p.100(1958).
27
===================================================================================
However, it is argued that asserting that the Hindus regarded the law as an
integral aspect of their religion is an oversimplification. Although religion
plays an important role in regulating and influencing people's behaviour, local
customs and accepted practises have also gained legal status.
2.3.2 Position in Medieval India:

The Mughal Empire arose, spreading Muslim law throughout the land. They
were the first in their kingdom to introduce a proper court system, however, all
judgments were based on the Holy Quran and no other faith was considered
worthy. However, in some areas where Hindu Kings still ruled Hinduism
through priests, traditional Hindu law was followed. However, no such
regularity can be established across that period.36
It is frequently argued that while "Muslim Scriptural" law was

administered to Muslims by the Qazis during Muslim rule in India, there was
"No such assurance so far as litigation touching Hindus was concerned." It is
also claimed that Warren Hastings "made regulations for the administration of
justice for the native population without discrimination between Hindus and
Mahomedans" in 1772, when he "made regulations for the administration of
justice for the native population without discrimination between Hindus and
Mahomedans." However, most Indian legal historians have proven that this is
not the correct and real historical fact.37 The jurisprudence of the Muslims
serves as an example of perfect integration of law and religion. 'Law is
religion and religion is law' in Islam, according to James Bryce, with both
being content in the divine revelation. 'Islamic philosophy is the most
characteristic representation of the Islamic way of life, the essence and kernel
of Islam itself,' J. Schacht says.38
The term Islam is derived from the Arabic word "SLM," which denotes
peace, purity, submission, and obedience, among other things. Islam implies
surrender to God's will and obedience to his rules in the religious sense. There
36
John L. Esposito, Islam: The Straight Path, 37-67 (Oxford University Press, 1988.
37
Sarla Mudgal vs. Union of India (1995) 3 SSC 635.
38
J. Schacht, An Introduction to Islamic Law, p. I (1964).
28
===================================================================================
is a clear and strong link between the original and religious connotations of the
word. True peace and permanent purity can only be found through surrender
to GOD'S WILL and obedience to HIS LAW. The Qur'an contains the exact
words of God that were revealed to the Prophet Mohammad. The Qur'an is a
collection of addresses revealed by God at various times, beginning with the
Prophet's first call to the people to submit to God's religion and continuing
until the Prophet completed his task in the form of a fully organised, well-
integrated, and patterned society with all of the basic institutions.39
According to legend, the Koran is a transcription of a tablet kept in

Heaven on which is written everything that has happened and will happen.
From the outset, there was a clear distinction between (i) public law
(Huqullah) and (ii) private law (Huququl Ebad) in Islamic law. Criminal law
and public administration were placed in the first category, while marriage,
family ties, successions, and other matters were classified as private law.
Whenever Muslims have been in power in mixed-population areas throughout
history, they have imposed Islamic public law to all of their people, but
Islamic private law has always been applied, if at all, to all Muslims. Non-
Muslims were always and everywhere free to follow their own religious rules
and traditions in matters failing in the area of private law, and there was no
compulsion on non-Muslims. This regulation has been followed as a matter of
state policy since the outset. In reality, Muslim monarchs did not always
uphold Islamic private law, even for Muslims, let alone non-Muslims, in many
regions. This explains why many local practises have persisted in Muslim-
dominated countries like Morocco and Indonesia. That is most likely why the
British in India discovered many Muslim groups (converts from Hinduism)
who continued to practise their indigenous customs and usages and decided
not to modify them. 40
In India, Muslim emperors only applied particular components of

Islamic public law, such as criminal law, which they found to be quite similar
to the country's own classical law. Despite the fact that their religious rules
39
Riazul Hasan Gilani, The Reconstruction of Legal Thought in Islam p. 55 (1982).
40
Tahir Mahmood, Uniform Civil Code, Fictions and Facts p. 43(1995).
29
===================================================================================
and customs relating to marriage, family, and succession were vastly different
from Islamic laws, they never interfered with non-Muslim religious laws and
customs. Despite their incompatibility with Islamic public law, they did not
ban practices related to Sati and Dev Dasi rituals. How could they be expected
to meddle with the Hindu religious law and traditions with other innocent
institutions? Eminent Arab travellers to the middle Ages have attested to the
continued existence of Buddhist and Hindu religious laws under Muslim
authority. As a result, during Muslim rule, all non-Muslims were regulated by
their own conventional and customary laws in aspects of personal law.41
2.3.3 Position in the British Period:

During the British rule, urgent attempts were taken to provide universality to
the law so that it could control the entire population of British India, excluding
the princely states. As far as the administration was concerned, they were
sovereign. The British, on the other hand, were well aware of their limits in
carrying out this exercise. As a result, the personal legislation that applies to
each region was not impacted. It continued to function. The British rulers
attempted to promote uniformity in other secular legislation such as the
Criminal Procedure Code, the Civil Procedure Code, and the Transfer of
Property Act, among others. Following the fight for independence, the British
rulers decided not to interfere with the locals' religious beliefs and sentiments,
assuring them that their religious beliefs and sentiments would be strictly
respected.
Despite the fact that Hinduism has been the dominant religion in India
for much of its recorded history, Muslim conquests, British colonisation, and
other influences have brought about significant population changes. On the
one hand, millions of people converted to Islam or Christianity, while
persecuted Jews and Zoroastrians also settled in India. During Mughal control
in India, justice was administered by kazis who applied Islamic scripture laws
to Muslims; however, there was no comparable religious person or
organisation for Hindus, and no institutions that executed Hindu law. The
system was in place until 1772, when Warren Hastings, the Governor General
41
Ibid.
30
===================================================================================
of India at the time, issued instructions for the administration of justice

throughout the East India Company's domains. He imagined a judicial system
in which civil and religious disputes would be adjudicated by corporate courts
in line with the laws of the Quran in the case of Muslims and the Shastra in the
case of Hindus, as part of his Plan. This was reinforced by laws passed in 1781
that allowed for references to civic and religious customs. This gave legal
backing to the system of various personal laws for different communities. This
system was in use until Independence and the subsequent Partition.
Independence, on the other hand, presented both obstacles and opportunity for
the emerging republic. The country's founding fathers resolved to rid it of
ancient traditions and rituals that were obstructing national unification and
social growth.42
In the subcontinent, religion has always been a touchy subject. It

became even more so once Muslims were granted their own country within
India. The minority who remained in India were distrustful of the motives of
the majority communities, and the enactment of UCC was a topic that struck
everyone's religious sensibilities. Reading the discussions of the Constituent
Assembly provides us with significant insight into the ideas of its members
and the issues that shaped their deliberations. Religion, language, caste, and
community fault lines were common due to the status of the nation. The
Supreme Court of India has stated that UCC can be used to promote national
unification by eradicating divergent legal loyalties based on opposing
philosophies. However, it is safe to assume that its absence today has had no
impact on the same. Having stated that, the continuation of separate personal
laws is no longer justifiable in terms of gender equality. The authors'
fundamental objection to the continuation of distinct personal laws is that it
fosters gender imbalance in things like marriage, divorce, maintenance, and
succession, which is in direct violation of constitutional values of equality and
personal liberty.43
42
https://www.researchgate.net/publication/316782091_Arguing_for_a_Uniform_Civil_Code_
in_India_in_the_Light_of_Gender_Discriminatory_Practices_under_Muslim_Personal_Law.
43
Ibid.
31
===================================================================================
The second Law Commission of India, established in 1833 under the

presidency of the Master of the Rolls, stated. “It is our judgement that no
portion of either Mohammedan law or Hindu law ought to be legislated as
such in any form by a British statute," The Hindu and Mohammedan laws
drew their authority from the Hindu and Mohammedan religions, respectively.
As a result, just as a British legislature cannot make Mohammedan or Hindu
law, it also cannot make Mohammedan or Hindu religion. The East India
Company did not resolve to "Stand out as Diwan" i.e., civil
administrators until 1772 in order to improve the old judicial system and bring
impartial and regular administration of justice.44 Warren Hastings established
a Uniform Criminal Law and the concept of equality before the law for both
Hindus and Muslims, but he also stipulated that in all cases involving marriage
and inheritance, the laws of the Koran for Mohammedans and the shastras for
Hindus must be strictly followed. Following that, Brahmin pundits and
Muslim jurists were recruited and consulted on a regular basis to administer
and construct Anglo-Hindu and Anglo-Islamic personal law.
When the Supreme Courts of Judicature in Calcutta, Madras, and

Bombay were created in 1774, this practice governing the application of
Hindu law to Hindus and Muslim law to Muslims was extended to His
Majesty's Courts of Judicature. The British as a whole backed Warren
Hastings' aim of safeguarding Hindu and Muslim law. However, over time,
they strengthened their position and realised that the country was in desperate
need of transformation, based on differing legal systems and uncertainties
about their territorial application. The British Parliament codified the
legislation as a result of this. The goal was to achieve assurance and
consistency. Lord Macaulay was the Chairman of the first law commission,
which was established in 1883.45 Different law commissions were established
with the purpose of codifying all of British India's major laws. The British Raj
codified criminal and procedural law in India with the passage of The Code of
44
Second Law Commission of India, (1833) as quoted in M.P. Jain, Outlines of Indian Legal
History (1990) P.640.
45
V.D. Kulshreshtha, “Landmarks in Indian History and Culture" Eastern Book
Company,Lucknow (1981) P 91.
32
===================================================================================
Civil Procedure 1859, The Indian Penal Code 1860, and The Code of Criminal
Procedure 1861, all of which were applicable to everyone regardless of
religious belief, but the Britishers refrained from codifying personal law
involving marriage, dowry, dissolution of marriage, parentage and legitimacy,
guardianship, adoption, maintenance, gifts, wills, inheritance. These issues
were strongly connected with the practices and regulations of distinct religious
communities, according to British administrators and legal experts.
Many laws were passed in order to incorporate references into the old
Hindu Law. Conservative and orthodox Hindus viewed the Hindu Widows
Re-Marriage Act of 1856, which legalised the re-marriage of Hindu widows,
as violating Shastra injunctions. Although widow remarriages were authorised
in certain circumstances in ancient India prior to the Act's passage, the
majority of Hindus opposed them on religious grounds. The Hindu Women's
Right to Property Act of 1937 transformed Hindu law in the areas of joint
family, coparcenary, division, and inheritance, among other things. The Indian
Majority Act of 1875 established a minimum age of majority for Hindus in all
issues except marriage, divorce, and adoption. The Child Marriage Restraint
Act of 1929 was enacted to prevent current child marriages from continuing.
The Hindu Married Women's Right to Separate Residence and Maintenance
Act was enacted in 1946, allowing Hindu women to claim separate residence
and maintenance from their husbands in certain circumstances without the
marriage being dissolved. Apart from these, the Hindu Inheritance
(Removable of Disabilities) Act of 1928 and the Hindu Law of Inheritance
(Amendment) Act of 1929 changed the concepts of succession and inheritance
that were previously based on the old Hindu Law.46
46
Krishna Bhagwan Aggarwal, “Advisability of Legislating a Uniform Indian Marriage Code,
“in Mohammad Imam, (ed.) “ Minorities and the Law," N.M. Tripathi Pvt. Ltd. , Bombay
(1972) P.443.
33
===================================================================================
2.4 Constitutional Assembly debates and Uniform civil code:

The development of the Uniform Civil Code in the Constituent Assembly
begins during the Indian Constitution-making process' committee stages. The
Sub-Committee on Fundamental Rights was charged with compiling a list of
fundamental rights to be included in the Indian Constitution. The
subcommittee's first action was to ask its members to come up with their own
personal draughts of fundamental rights. We discover provisions in the
contributions of Ambedkar, Munshi, and Minoo Masani that urge for the
adoption of a uniform civil code. The subcommittee submitted its report to the
Advisory Committee about the fundamental rights. They divided fundamental
rights into two parts i.e. Justiciable and non- justiciable. The Uniform Civil
Code gets the position in second i.e is non-justiciable fundamental rights.47
The debate over the Uniform Civil Code in the Constituents Assembly
was among the most heated. In the Constituent Assembly, there was division
on the issue of putting the Uniform Civil Code in the fundamental rights
chapter. The matter was settled by a vote. By a majority of 5:4, the
fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held
that the provision was outside the scope of fundamental rights and therefore
the Uniform Civil Code was made less important than freedom of religion.48
The assembly positions were separated into two camps. On one hand,
there were some who wanted to use the Constitution's legal authority and
position to change religious practices and promote secularization and legal
conformity among all religious organisations. For example, KM Munshi
advocated for the confinement of religion to the private realm and the
promotion of societal unity and integration based on civic national identity. On
the other hand, some people argued that a constitution should represent the
nation's current spirit rather than imposing significant social and cultural
changes.49
47
https://clpr.org.in/wp-content/uploads/2017/11/UCC-Part-1-Constitutional-History.pdf.
48
https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-code/.
49
Ibid.
34
===================================================================================
2.4.1 Arguments against UCC are addressed at the Constituent

Assembly:
On November 23, 1948, the Constituent Assembly took up the
question of a Uniform Civil Code as part of Article 35 of the Constitution.
There were passionate arguments on the subject, which the Times of India
described as "a succession of full-blooded remarks" on November 24, 1948.
Five Muslim Members of constituent assembly - M. Muhammad Ismail,
Naziruddin Ahmad, Mahboob Ali Baig, B Pocker, and KTM Ahmed Ibrahim
– tabled modifications to the Draft. Their overwhelming viewpoint was that
UCC's implementation was "autocratic" and that the state had no right to
interfere in any community's personal laws. They argued that because the
British had not interfered with any community's religious laws, there was no
need for independent India to do so. However, the Constituent Assembly
debate on UCC is eye-opening. It demonstrated that there was always a thin
line separating groups, and that when it came to religious identification,
religious identity transcended national identity. Minority populations were
particularly vulnerable to this, and the majority society at the time thought it
was more important to cater to partisan politics than to develop India's basis.
The first member to propose an amendment to Article 35 was M.

Muhammad Ismail. He advocated adding the following proviso: "Provided
that any group, section or community of people shall not be obliged to give up
its own personal law in case it has such a law."
He stated that one of the fundamental rights is the freedom to follow

one's own laws, and that if the state decides to regulate on subjects of religion
and culture, it will be equal to intrusion.
One of the another member of constituent assembly propose amendment to

Article 35 in further ways, “Provided that the personal law of any community
which has been guaranteed by the statue shall not be changed except with the
35
===================================================================================
previous approval of the community ascertained in such manner as the Union

Legislature may determine by law.”50
He also took a sobering stance when he advised against radical

constitutional provisions: “I have no doubt that a stage would come when the
civil law would be uniform. But then that time has not yet come. We believe
that the power that has been given to the state to make the Civil Code uniform
is in advance of the time . . . What the British in 175 years failed to do or were
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 precede not in haste but with caution, with experience, with
statesmanship, and with sympathy”.51
According to Mahoob Ali Baig, the above provision to be added to

Article 35. "Provided that nothing in this article shall affect the personal law
of the citizen." He believes that the term "Civil Code" does not include a
citizen's completely personal law. "The Civil Code contains laws of this
nature," he explained, "such as laws of property, transfer of property, contract
law, evidence law, and so on." Article 35 does not include the law as it is
observed by a particular religious community. In any case, in order to explain
the issue, article 35 has no bearing on a citizen's personal law.52
Another member of constituent Assembly Mr.B. Pocker voted in favour of

Baig's motion with the following proviso: "Provide that any group, section or
community of people shall not be obliged to give up its own personal law in
case it has such a law."53
Further elaborating the amendment which is suggested by him in

article 35, he stated that, “It is a very moderate and reasonable amendment to
50
Parameswaran, Lekshmi. Debates in the Constituent Assembly and Thereafter on Uniform
Civil Code. 1st ed., Indian Policy Foundation, pp. 6–8.
51
https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-code/.
52
Civil Code. 1st ed., Indian Policy Foundation, pp. 9-12.
53
Ibid.
36
===================================================================================
this Article 35. Now I would request the House to consider this amendment
not from the point of view of the Mussalman community alone, but from the
point of view of the various communities that exist in this country, following
various codes of law, with reference to inheritance, marriage, succession,
divorce, endowments and so many other matters. The House will note that one
of the reasons why the Britisher, having conquered this country, has been able
to carry on the administration of this country for the last 150 years and over
was that he gave a guarantee of following their own personal laws to each of
the various communities in the country. That is one of the secrets of success
and the basis of the administration of justice on which even the foreign rule
was based. I ask, Sir, whether by the freedom we have obtained for this
country, are we going to give up that freedom of conscience and that freedom
of religious practices and that freedom of following one's own personal law
and try or aspire to impose upon the whole country one code of civil law,
whatever it may mean, - which I say, as it is, may include even all branches of
civil law, namely, the law of marriage, law of inheritance, law of divorce and
so many other kindred matters?” 54
2.4.2 Arguments in favour of UCC in Constituent Assembly:

It is obvious from the debates in the Constituent Assembly opposing the
adoption of UCC that minority believed their personal laws could not be
legislated and that the state had no right to interfere in matters of faith. Several
of the points made against UCC were addressed in the subsequent counter
debate, and many of the anxieties were calmed by individuals who spoke in
support of UCC. K. M. Munshi was one of the members in favour of UCC.
He opted to focus on the two main arguments made against UCC: that it
infringes on Article 19's fundamental rights and that it is oppressive to
minorities. He emphasised that the principle has already been adopted by the
House. He focused that, “if a religious practice followed so far covers a
secular activity or falls within the field of social reform or social welfare, it
would be open to Parliament to make laws about it without infringing this
Fundamental Right of a minority.” It means parliament has a right to enact
54
Ibid.
37
===================================================================================
uniform civil code whenever it is necessary. In response to the argument that

enacting a Civil Code would be dictatorial to minorities, he cited Turkey and
Syria as examples to show that "nowhere in advanced Muslim countries has
the personal law of each minority been recognised as so sacrosanct as to
prohibit the passage of a Civil Code."
The religious freedoms guaranteed by the Constitution were seen as

jeopardised by UCC. However, there were numerous arguments in favour of a
uniform civil code. K.M. Munshi was adamant in his rejection of assertions of
majoritarian hegemony over minorities. He Stated that,
“It is not therefore correct to say that such
an act is tyranny of the majority. If you will
look at the countries in Europe which have a
Civil Code, everyone who goes there from
any part of the world and every minority,
has to submit to the Civil Code. It is not felt
to be tyrannical to the minority. The point
however is this, whether we are going to
consolidate and unify our personal law in
such a way that the way of life of the whole
country may in course of time be unified and
secular. We want to divorce religion from
personal law, from what may be called
social relations or from the rights of parties
as regards inheritance or succession. What
have these things got to do with religion I
really fail to understand.”55
Munshi emphasized secularism as a unifying factor, arguing that one

way of life should be the way of everyone. This viewpoint, however, is the
most provocative of all since it appears to silence the voice of diversity. The
subject of women's empowerment was another factor for the UCC's support.
55
Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23, 1948.
38
===================================================================================
Since the right to equality had already been established as one of the most
prized rights, the unequal treatment of men and women under the law could no
longer be justified. As a result, activities that harmed a woman's right to
equality would have to be eliminated. A common civil law controlling
personal concerns would gather all women under one tent, and discriminatory
behaviors would be eliminated regardless of nationality or religion.56
Munshi further believes that the belief that personal law is a form of
religion has been fostered by British authority. He used the example of
Allauddin Khilji, who formed the first Muslim Sultanate in India and made
various modifications that were contrary to Shariat. When the Kazi of Delhi
expressed his dissatisfaction with what he considered as a clear violation of
the Shariat, Khilji assured him that he is acting in the country's best interests,
and that if he has gone against the Shariat, the Almighty will forgive him. In
response to Pocker's claim that the Drafting Committee had no idea what they
were doing, he wondered why there had been no uprising when the British
imposed a single criminal code that applied to all people of the country. To
emphasise his point, he used the example of contract law, which was ruled by
Anglo-Indian jurisprudence rather than the Quran's law. He expressed the
hope that, in the future, an uniform civil code will be enacted that will apply to
all aspects of civil law.57
Shri Alladi Krishnaswamy Ayyar provides a much more realistic basis for
aiming for a UCC, based on the myth of communities having stringent water
tight existences. He claims that in a country like India, there is a lot of
interaction between different communities, which leads to differences in
personal laws. Not only are there clashes, but one legal system is impacted by
another. He narrates,
“In very many matters today the sponsors of
the Hindu Code have taken a lead not from
56
Supra note 51.
57
Civil Code. 1st ed., Indian Policy Foundation.
39
===================================================================================
Hindu Law alone, but from other systems

also. Similarly, the Succession Act has
drawn upon both the Roman and the English
systems. Therefore, no system can be self-
contained, if it is to have in it the elements of
growth. Our ancients did not think of a
unified nation to be welded together into a
democratic whole. There is no use clinging
always to the past. We are departing from
the past in regard to an important
particular, namely, we want the whole of
India to be welded and united together as a
single nation. Are we helping those factors
which help the welding together into a
single nation, or is this country to be kept up
always as a series of competing
communities? That is the question at
issue.”58
He raises serious concerns about the pros and downsides of excessive

universalism. Separate personal laws ruled solely by religion, which has many
interpretations as its adherents, would restrict reform options. Unlike Munshi,
who cited examples of other Islamic countries where forcible implementation
of majoritarian law was justifiable as long as it brought reform, he pushed the
discussion of K.M. Munshi to a new level by presenting uniformity as a
necessary evil.
When the Constituent Assembly framed the Constitution in 1947, the

chairperson of the drafting committee, Dr. B.R. Ambedkar, advocated for the
creation of a uniform civil code, but it was strongly opposed on the grounds
58
Civil Code. 1st ed., Indian Policy Foundation.
40
===================================================================================
that it would infringe on the right to religion guaranteed by Article 25 of the

Indian Constitution, as well as being a tyranny to the minority. The first
ground was rejected because it does not impinge on the right to freedom of
religion, and Article 25(2) protects secular activity. In his response, Dr. B R
Ambedkar pointed out that the country already had a uniform code of laws
that covered practically all elements of human relationships, indicating that a
uniform civil code was feasible. On the 2nd of December 1948, Ambedkar
concluded the argument on UCC by saying,
“All that the State is claiming in this matter
is a power to legislate. There is no
obligation upon the State to do away with
personal laws. Therefore, no one need be
apprehensive of the fact that if the State has
the power, the State will immediately
proceed to execute or enforce that power in
a manner that may be found to be
objectionable by the Muslims or by the
Christians or by any other community in
India … Sovereignty is always limited, no
matter even if you assert that it is unlimited,
because sovereignty in the exercise of that
power must reconcile itself to the sentiments
of different communities. No Government
can exercise its powers in such manner as to
provoke the Muslim community to rise in
rebellion. I think it would be a mad
government if it did so”. 59
In his assertion, Dr. Bhimrao Ambedkar was extremely specific:

“There is no obligation upon the State to do
away with personal laws. It is only giving
power. Therefore, no one need be
59
Supra note 54.
41
===================================================================================
apprehensive of the fact that if the State has

the power, the State will immediately
proceed to execute or enforce that power in
a manner that may be found to be
objectionable by the Muslims or by the
Christians or by any other community in
India.”60
B. R. Ambedkar was an active supporter of the UCC as well. He

rejected arguments that establishing an uniform civil code in such a large
country as India would be impossible. He said that the only field of civil law
that did not have a consistent law was marriage and succession; otherwise, all
other areas of civil law, such as Transfer of property, Contract Act, the
Negotiable Instrument Act, Easement act, sale of goods Act, and so on, were
uniform. Let us not forget that Ambedkar was a firm believer in western-style
reform. In this regard, he differed from Mahatma Gandhi in that he saw the
western model of law and social relations as an appropriate reference point for
bringing social reforms to the Indian system. He did not want to add the
proviso to the already unenforceable article 35, but he was open to the
communities gradually being included with their voluntary consents if the
government fulfils its promise of a UCC. He further states that,
“I quite realise their feelings in the matter,
but I think they have read rather too much
into article 35, which merely proposes that
the State shall endeavour to secure a civil
code for the citizens of the country. It does
not say that after the Code is framed the
State shall enforce it upon all citizens
merely because they are citizens. It is
perfectly possible that the future parliament
may make a provision by way of making a
beginning that the Code shall apply only to
60
https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-
code/.
42
===================================================================================
those who make a declaration that they are

prepared to be bound by it, so that in the
initial stage the application of the Code may
be purely voluntary. Parliament may feel the
ground by some such method. This is not a
novel method.”61
It is well known that Ambedkar has always been a vocal opponent of

Hinduism as a dominating religion. In 1936, he had already highlighted one of
Hinduism's numerous doctrines, namely casteism and untouchability, to the
point where he rejected himself as a Hindu. Despite this, he denied in the
Constituent Assembly that UCC was a platform for the majority or that
majority rule existed. He added that the Shariat Act of 1936, which was made
applicable to all Muslims in India, was an example of how useful uniformity
in legislation is, and that it was appreciated by Muslim brothers. For their own
benefit, the Muslims who were controlled by Hindu laws in distinct locations
were all collectively and consistently brought under the ambit of this unified
law. Similarly, if any majoritarian religion concepts, such as Hinduism, were
adopted into the UCC, it would be because they were appropriate for a
progressive society, not because they belonged to Hinduism.62
He further states that,
“Therefore if it was found necessary that for
the purpose of evolving a single civil code
applicable to all citizens irrespective of their
religion, certain portions of the Hindus law,
not because they were contained in Hindu
law but because they were found to be the
most suitable, were incorporated into the
new civil code projected by article 35, I am
quite certain that it would not be open to
any Muslim to say that the framers of the
61
Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November, 1948.
62
Dr. B.R. Ambedkar, The Annihilation of Cast: The Annotated Edition, 11 Navayana
Publication, New Delhi,2014.
43
===================================================================================
civil code had done great violence to the

sentiments of the Muslim community.”63
This remark by Ambedkar says a lot about his commitment to

establishing a UCC to bring about the much-needed changes in an Indian's
personal dimensions, regardless of religion or community. His tooth-and-nail
campaign to pass the Hindu Code Bills after independence, which eventually
resulted in his resignation from the cabinet, is just another example of his
commitment to UCC. Despite the fact that the proposed modification to
Article 35 of Indian Constitution did not pass, and there was no clear majority
on the UCC issue, some of the reservations resurfaced in the 2016 debates.
63
Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November,1948.
44
===================================================================================
CHAPTER 3
CONSTITUTIONAL PERSPECTIVE:
Indian society is multilingual, multicultural, and multi-religious. Despite that
different religious peoples live with brotherhood in India. The main object of
this research paper is to emphasize an ignored constitutional imperative.
Article 44 of the Indian constitution lays an important duty on the state to
secure for the citizens a Uniform Civil Code throughout the territory of India.
Uniform Civil Code is an important means to achieve national integration.
Initially, the founding fathers of our Indian constitution tried to incorporate
Uniform Civil Code in the fundamental rights chapter but because of some
strong opposition, the Uniform Civil Code was introduced in chapter IV i.e.
Directive principle of State Policy. Many provisions in our Indian constitution
support the Uniform Civil Code. These provisions are included in fundamental
rights, the directive principle of State Policy, and fundamental duties in our
Indian constitution.
The Indian Constitution is the supreme law of the land. It is not only a
document that lays out the framework and primary functions of a state's
government organs, but it also lays out the fundamental principles that define
the legitimacy and constitutionality of other laws in light of socio-economic
and political trends and requirements. As a result, the relationship between the
'Constitution of India' and 'personal laws' needs to be explained.
Different provisions in our Indian constitution are directly and indirectly

related to the burning issue i.e. Uniform Civil Code. Article 44 is only
provision in our Indian constitution that directly relates to the Uniform Civil
Code. The Other provisions which are included in the fundamental right, the
directive principle of State Policy, fundamental duties, as well as Preamble of
our Indian constitution, are indirectly related to the Uniform Civil Code.
Uniform Civil Code is one of the most awaited dreams of our India which
could not be fulfilled due to the lack of political will. Every political party
45
===================================================================================
wants to safeguard their vote Bank. Hence till no party dares to touch this
sensitive issue of the Uniform Civil Code.
Constitutional provisions relating to Uniform Civil Code
Various provisions in the Indian constitution are ultimately related to the

Uniform Civil Code. These provisions are mainly categorized under four
different heads.
1) Preamble
2) Fundamental rights and Uniform Civil Code
3) Directive principle of State Policy and Uniform Civil Code
4) Fundamental duties and Uniform Civil Code.
3.1 Preamble:
The Preamble of our Indian constitution also highlighted some aspects of the
Uniform Civil Code. The word secular is added in the Preamble of our Indian
Constitution by the 42nd Amendment Act, 1976. The word secular means the
state does not have its own religion. Here the state has to treat all religions
equally but practically in India, there are some inequalities in different
religions. The inception of the Uniform Civil Code will be a major step to
achieving the true meaning of a secular state.
The Indian Constitution establishes a separation between the state and

religion. The word "secular" was added to the preamble of Indian
Constitution in 1976 to emphasise that no particular religion in the state will
receive any state patronage, and no citizen in the state will be treated
differently or discriminated against simply because he or she practises a
particular religion. To put it another way, the practise of any particular religion
will not be taken into account in governmental matters.64 but the Constitution
protects various religions and religious groups by including religious rights as
Fundamental Rights under Articles 25-30, but religious freedom is not an
absolute right and is subject to state regulation, with the exception of the right
64
Larson James Gerald, (ed.), “Religion and Personal Law in a Secular India - A Call to
judgement”, Social Science Press, Delhi (2001) P.24.
46
===================================================================================
to freedom of conscience under Article 25 (1)3 and the right of minorities to

preserve their distinct language, script, and culture under Article 29 (1)4. Faith
has been defined as a set of beliefs and commandments that persons who
profess that religion believe are beneficial to their spiritual well-being.
The Supreme Court ruled in Bijoe Emmanuel v. State of Kerala65 state that
religion is more than just faith and belief; it also includes rituals, rites, and
religious acts that follow the religion's precepts. Courts are asked to evaluate
not only whether a religious practice is an essential part of the religion, but
also whether governmental limits on the practice and propagation of religion
satisfy the test of public order, morality, and health, and if not, whether they
should be upheld. When youngsters from the Jehovah's Witness community
were expelled from school for refusing to sing the national song, the Supreme
Court ruled that saluting and singing the national anthem were prohibited by
their religion, and the expulsions were overturned. Also a group of Muslims in
Gujarat claimed that a legislation forbidding the public slaughter of cows,
bulls, and bullocks infringed their religious and cultural rights under Article
29, but in Usmanbhai Hasanbhai v. State66 Gujarat High Court held that the
right in question was not part of the Muslim faith or culture.
3.2 Fundamental rights and Uniform Civil Code:

Part III of the Indian Constitution provides certain fundamental rights to the
citizens of India. These fundamental rights are justifiable. Therefore if the
fundamental right of any person is violated by the state then that person can
approach the competent court under Article 32 or Article 226 of the Indian
Constitution. The relationship between the constitution and various personal
laws is one of the important hurdles for enacting the Uniform Civil Code. It is
very much difficult to resolve the dispute between the power of the state to
enact the Uniform Civil Code and the fundamental rights of citizens to
exercise freedom of religion under various personal laws. Following are some
65
AIR 1987 SC 748.
66
AIR 1981 Guj. 40.
47
===================================================================================
provisions under part III of the Indian constitution which indirectly deal with
this concept.
Every law which violates any of the provisions of Part III is ruled void
under Article 13 of the Indian constitution. Article 14 stipulates that the state
shall not deny anyone equality before the law or equal protection under the
law. When a state agency is used to enforce practises, usages, and laws that
permit discrimination in matrimonial rights, succession, partition,
maintenance, and guardianship. Then it is a clear violation of Article 14 of
Indian constitution. According to Article 21 of the Constitution, everyone has
the right to personal liberty, which must be exercised in accordance with legal
procedures. The Supreme Court has recently ruled that such a procedure must
be equitable, fair, and reasonable.67 Because family is a type of association, it
is subject to only reasonable legal constraints based on public order and
morality. These constitutional provisions, in general, stress on equitable
conditions, even in the area of personal law.
There are other provisions that allow or direct the state to implement
social changes. Nothing in this article (specifically, Article 25(1) ensuring
freedom of religion) shall influence the operation of any existing law or
prohibit the state from "passing any law providing for social welfare and
reform...", according to Article 25(2)(b). The state has the authority under
Article 15 (3) to enact laws that make specific arrangements for women and
children. Furthermore, the right to preserve religion under Article 29(1) cannot
be construed to defend personal laws, either because personal law is not an
essential matter of religion or because the state has the authority to make
social reforms under Art. 25. (1).
The question of whether personal law is law at all for the purposes of
Part III of the Constitution is central to the use of Part III of the Constitution as
a touchstone for determining the constitutional legitimacy of personal laws.
Personal law, whether based on custom or in the form of legislation, is a
system of legal norms that regulate people's behavioural rights and
67
Meneka Gandhi v. Union of India, 1978 1 (SCC) 248.
48
===================================================================================
obligations, and is enforced by a court of law or by state power. In reality, as

the court correctly observed, the challenged Act was a measure of social
reform aimed at equalising the rights of males and females in the Hindu
community. The comparison between Hindus and Muslims could have been
answered in this way: because each community's personal law is connected to
distinct social, cultural, and historical reasons, large-scale reforms affecting all
communities cannot be enacted at once; instead, piecemeal and gradual
reforms must be enacted reasonably, choosing the community that is mature
and ready to receive the reforms.
The debates in the Constituent Assembly on Article 44 indicate at the

criterion that will be used in this case. The challenged regulation may have
been affirmed as in line with Art. 14 if the foundation of classification could
be explained with sufficient reasons from a sociological and cultural
perspective. On the basis of the right to equality, this would have been the
logical solution to the problem. By ruling that personal law is not law for the
purposes of Article 13, the decision prevented judicial proceedings from
having a libertarian or egalitarian impact on personal law.
Now we will discuss in detail every provision of Indian constitution which is

directly or indirectly related with Uniform civil code.
3.2.1 Article 13:

―Laws inconsistent with or in derogation of the fundamental rights:-
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) ―law‖ includes any Ordinance, order, bye law, rule, regulation, notification,
custom or usages having in the territory of India the force of law;
49
===================================================================================
(b) ―laws in force‖ includes laws passed or made by Legislature or other

Constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution
made under Article 368.‖
According to this article, the laws which are inconsistent with the provisions
of part III of the Indian Constitution shall to the extent of such inconsistency
be declared as void. In India, there are various provisions in different personal
laws which are inconsistent with the provisions of Part III of the Indian
Constitution But still; those provisions of personal laws are not declared void.
It was challenged in one of the historical cases State of Bombay V. Narasu
Appa Mali68 In this case, the Bombay High Court held personal laws do not
cover by the expression 'law in force. Therefore they do not become void even
though they violated the provisions of part III of the Indian Constitution.
Any ordinance, order, rule, regulation, by-law, notification, custom, or

usage that is opposed or inconsistent with the provisions of the Constitution is
void to the degree of such contradiction or inconsistency, according to the
intent of this Article. No state has the authority to enact laws that would take
away or limit the rights granted by Part III of the Constitution. Laws that were
in effect prior to the Constitution's adoption but were completely or partially
inconsistent with Part III of the Constitution were and are void to the extent
that they were or are inconsistent with Part III. The intention of the founding
fathers of the Constitution is clearly stated in the language of this Art 13. Part
III, which primarily protects fundamental rights to Indian citizens, cannot be
adversely altered by any act or authority. This section is particularly well-
protected since the rights enshrined here have a direct impact on individuals'
lives. Whatever essential rights are guaranteed in Part III, they are of such a
type that without them, neither the residents of this country nor India can
claim to be Secular in the genuine sense.
68
AIR 1952 Bom.84.
50
===================================================================================
To divide individuals in providing the rights enshrined in Part III of the

Constitution is contradictory to the scheme of this Art. In India's personal law
system, there is bifurcation in guaranteeing equal civil rights to all citizens
based on their religious affiliations. Many of these rights are fundamental
rights, such as equality in the application of the law and the provision of equal
justice to all. In this regard, the personal law system, which is largely founded
on local conventions and usages, is in direct conflict with Art. 13. There is no
rational reason given in this article to justify the disparities in personal laws
between different communities.
Article 13 has two clauses, one for pre-constitutional laws and the
other for post-constitutional laws to be enacted. The laws of both groups must
follow the provisions of Part III. The phrases "law" and "laws in force" as used
in the first two clauses of Article 13 are defined in a third provision. The
conspicuous absence of a reference to "personal law" in Article 13's definition
clause, combined with the meaningful use of the term "competent authority" in
relation to pre-constitutional laws, leads to the unavoidable conclusion that un-
codified personal laws are outside of Article 13's purview (1). Article 13 of the
Indian Constitution includes any ordinance, by-law, rule, regulation,
notification, custom, or usage having the effect of law in the territory of India.
It further said that a 'law in force' "includes laws passed by a legislature or
other competent authority in the territory of India prior to the commencement
of this Constitution and not previously repealed, notwithstanding that any such
laws or any part thereof may not be in operation at all or in a particular area at
the time." This article makes no reference to personal law.
In Narasu Appa's case69, the M.C. Chagla was forced to register these
"extremely unambiguous points" to the inapplicability of Article 13(1) to non-
statutory personal laws. P.B. Gajendragadkar had argued in the same case that
Article 13(1) only extended to "what may compendiously be defined as
statutory legislation." Eminent scholars such as D.D. Basu, H.M. Seervai, and
Mohammad Ghause disagree with this judicial view of the two renowned
justices of the time, believing that Article 13 applies to all personal laws,
69
AIR 1952 Bom.84
51
===================================================================================
including their non-statutory aspects. All of the country's higher courts have,
however, followed the Chagla Gajendragadkar verdict of 1952, though
somewhat silently and without specific mention.
The following points were stressed by the Chief Justice of India in this case:
1) In article 13, the phrases 'custom and usage' do not include personal laws.
'Custom or usage is a deviation from personal law, not the law itself,' says the
author.
2) Reiterating the distinction between customary and personal law, the

Constituent Assembly has expressly and wisely utilised just the word "custom
or practise" in defining "law" under article 13 and has left out personal law.
This is a "clear indicator" to the Constitution-making body's intention to
remove personal law from the scope of article 13.
3) There are also other 'points.' Untouchability is abolished under Article

17. Article 25(2)(b) empowers the state to enact legislation to open Hindu
religious institutions of a public nature to Hindus of all classes and sections.
Now, if Hindu personal laws became void as a result of article 13 and its
provisions violating any fundamental rights, it was necessary to specifically
provide for some components of Hindu personal law that violated articles 14
and 15 in article 17 and article 25(2). This plainly demonstrates that the
Constitution only dealt with personal law in limited ways.
4) The existence of different personal laws is "acknowledged" by Article 44 of

the Constitution. The Concurrent List entry No. 5 grants legislators the
authority to enact legislation affecting personal laws.
5) It is clear from the language of article 372 (1) and (2) that the expression
'laws in force' used in this article does not include personal law, as article 372
authorises the President to make adaptations and modifications to law in force
by repeal or amendment, and it cannot be argued that this provision was
intended to authorise the President to make alterations and adaptations in any
community's personal laws.
52
===================================================================================
The chief justice of India has concluded his arguments by following

observation.
―Although the point urged before us is not

free from difficulty on the whole, after a
careful consideration of the various
provisions of the Constitution we have come
to the conclusion of personal law is not
included in the expression „law in force‟
used in article 13 (1)”70
Chief Justice Chagla's arguments were accepted by Justice

Gajendradkar and he added that article 13(1) referred to "what may
compendiously be defined as statutory laws," i.e., laws "approved or made by
a legislative or other competent body." He went on to say that the Muslim and
Hindu personal rules, which were founded on their respective "scriptural
scriptures," could not be claimed to have been established or made by a
legislature or competent authority, and so "do not fall within the ambit" of
article 13. (1).71
The Supreme Court held in one another case Sri Krishna Singh v.
Mathura Ahir72 that personal law is not law for the purposes of Part III of the
Constitution. This case also presented itself in an unusual situation. In this
situation, after Swami Atmavivekanand of 'Sant Math' Mathura Ahir died, his
closest discipline was appointed as new Mahant by the 'Bhesh of Sant Math' in
a solemn Bhandra ceremony, as per late Atmavivekanda's desires. The math's
attributes were in the hands of Srikrishna Singh, the son of Atma Vivekanand
(in his purvahrama). After the new Mahant claimed ownership of the Math,
Krishna Singh argued that the law requiring natural sons to serve their fathers
when the latter accepted sanyasa was discriminatory, and that the Shudra
could not become a Mahant of Sant math. Regarding the first point of defence,
the court determined that the rule in question was not discriminatory, and that
70
AIR 1952 Bom. 89, para 13.
71
AIR 1952 Bom. 91, para 13.
72
AIR 1980 SC 707.
53
===================================================================================
even if it was, it could not be invalidated because personal law was not a law
under Art. 13. The court elaborated on the conventions of devolution of
Mahantship in Sant Math Sampradaya and supported the legitimacy of the
appointment on the second issue. The fact that personal law was not covered
by Article 13 was not relevant to the outcome of the case. In both Narasu
Appa and Krishna Singh, the challenged statute or customs were not in spirit
contrary to Article 14, 15, or 16. The Court reached a similar decision by
reasoning on the basis of the right to equality. The judiciary walked a narrow
road because it was ambivalent and the elastic and activist nature of the right
to equality had not emerged as an influencing factor.
The High Court of Punjab stated in Gurdayal Kaur v. Mangal Singh73,

that, "If the claim of discrimination based on caste or race is true, it will be
impossible to have different personal laws in this country, and the court will
have to go so far as to say that different creeds or communities are
constitutional. To make such a claim is to be denied." It is argued that,
notwithstanding its merits, the logic based on the principle to equality did not
need to be extended to such an extreme. Part III can undoubtedly be used to
combat unjust, discriminatory, and anti-liberation concepts found in each
personal law. As Mohammad Ghouse points out, the existence of a diverse
body of personal law cannot be a valid defence when that body of law
infringes on fundamental rights. He regards the Punjab High Court's ruling as
obiter dictum.
For the first time in Sant Ram v. Labh Singh74 in 1965, the Supreme
Court was asked to assess whether personal law of Muslims relating to pre-
emption was law under Art. 13 and whether it was violative of Art. 19 (1) (f).
The Court responded that the definition of the phrase "laws in effect" is
dependent on the definition of "law" in Art. (3) (b), and that the interpretation
of Article 13 is controlled by both definitions (1). Because pre-emption
principles were founded on conventions and usages, it was ruled that they
violated Article 19 (1)(f), which secured the right to acquire, keep, and dispose
of property.
73
AIR 1968 Punj. 396. at 398.
74
AIR 1965 SC 314.
54
===================================================================================
3.2.2 Article 14:

"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"
According to this Article the state shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.
It means all people should be treated equally and equal protection shall be
rendered by the state irrespective of religion, race, caste, sex, place of birth.
But in India for different religious persons, different personal laws are
applicable. There are inconsistencies in different personal laws.
This Article basically states that everyone who is in India's territory

will never be treated unequally when it comes to legal protection or treatment.
This is a fundamental right that applies to both Indian nationals and non-
Indians. The phrase "any person" expresses the framers' goal behind this
article. "Equality of statutes and of opportunity..." is a value enshrined in the
Indian Constitution's preamble. This means that the legislature is obligated to
apply the same laws to all citizens of the country. This is a violation of the
Constitutional obligation if it is not followed.
Equal treatment is made a binding principle of governmental conduct

in Article 14 through the use of two terms. The first says that everyone is
equal before the law, that no one may claim special privileges, and that all
classes are equally subject to the ordinary law of the land; the latter asserts that
all people are protected equally in the same position and under the same
conditions. There can be no discrimination in the benefits given or the
obligations imposed. The influence of negative content on positive content has
yet to be determined, and the Supreme Court has focused on the positive side.
When it comes to the applicability of Part III of the Constitution to

non-statutory personal laws, the question that has been raised is whether the
religious and sex-based diversity present in the fabric of such laws would be
influenced by the Constitution's equality clauses included in articles 14 and
15. It is said that all traditional personal rules – notably those that apply to
Hindus and Muslims are riddled with discrimination based on religion or sex.
Many cases of alleged discrimination under various laws have been brought to
55
===================================================================================
the attention of the courts, but the courts have largely upheld those laws,
believing that Part III of the Constitution does not apply to non-statutory
personal laws.
The Patna High Court concluded in Nalini v. State of Bihar75 that

Article 15 of the Constitution does not apply to the regulation that daughters
cannot be coparceners. The Karnataka High Court concluded in Mukta v.
Kamalaksha76 that the legitimate illegitimate differentiation in the question of
children's maintenance rights under Hindu law does not result in
unconstitutional discrimination. On the basis of article 15, the Punjab High
Court earlier refused to put the power to dispose of ancestral property to the
test.77
It's worth noting that, in Ahmedabad Women Action Group v. Union

of India78, the Supreme Court of India dismissed three writ petitions
challenging the constitutionality of various parts of several personal laws,
alleging, among other things, that they violated articles 14 and 15. The
matters addressed in the case were issues of State policies with which the
court will not typically have any concern, the Court said. In Maharshi
Avadhesh v. Union of India79, the Supreme Court shared the same sentiment.
So far, the judicial trend shows reluctance on the part of the courts to rule on
the validity of numerous personal legislations based on the criteria of article
14 and 15.
3.2.3 Art. 15.

"Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.-
(1) The state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
75
AIR 1977 Pat. 171.
76
AIR 1960 Mys, 182.
77
1971 Cur. L.J. 660.
78
(1997) 3 SCC 573.
79
1994 Supp. (1) SCC 713.
56
===================================================================================
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth
or any of them, be subject to any disability, liability, restriction or condition
with regard to-
(a) access to shops, public restaurants, hotels and places of public
entertainments; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of state funds or dedicated to the use of the
general public.
(3) Nothing in this article shall prevent the state from making any special
provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes.
(5) Nothing in this article or in sub-clause(g) of clause (1) of article 19 shall
prevent the State from making any special provisos, by law, for the
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as special
provisions relate to their admission to educational institutions including
private educational institutions, whether aided by the state, other than the
minority educational institutions referred to in clause (1) of article 30.‖
This article forbids discrimination based on religion, race, caste, sex, or

place of birth against any citizen. However, when this Article is examined in
light of India's Personal Law System, it becomes evident that the Personal
Law System is in violation of this Article as well, because it treats laws
differently depending on religion, race, caste, sex, and place of birth. Hindu
citizens have a separate set of personal laws than Muslims. Christian citizens
have a separate set of personal laws than Parsis. Such prejudice is not covered
by Article 15(3), 15(4), and 15(5).
57
===================================================================================
3.2.4 Article 25 to 28:

Right to freedom of religion.
Article 25 of the Indian Constitution provides individual rights to every citizen

of India. According to this article, every Citizen of India has freedom of
conscience and free profession, practice, and propagation of religion. Article
26 provides freedom to manage religious affairs. This article guarantees every
religious denomination the right to establish and maintain institutions for
religious and charitable purposes. Article 27 of the Indian Constitution
provides freedom as to the payment of taxes for the promotion of any
particular religion. According to this article, no person shall be compelled to
pay any taxes for the promotion or maintenance of any particular religion or
religious denomination. As well as article 28 provides freedom as to
attendance at religious instruction or religious worship in certain educational
institutions. This article is clearly stated that no religious instruction shall be
provided in any educational institution which is wholly maintained out of the
state funds. If we study articles from 25 to 28 of the Indian constitution then
we come to know that these articles are the major hurdle for the enactment of
the Uniform Civil Code. But the freedoms guaranteed under these articles are
not absolute.
Article 25 of the Indian Constitution guarantees religious freedom,

including freedom of conscience, practise, and propagation. As a result, (1) all
persons are equally entitled to freedom of conscience and the right freely to
profess, practise, and propagate religion, subject to public order, morality, and
health, and to the other provisions of this part; and (2) nothing in this article
shall affect the operation of any existing law or prevent the state from making
any law – (a) regulating or restricting any economic, financial, political, or
other secular activity which may be associated with religion; and (b) Providing
for social welfare and reform or the throwing open of Hindu religious
institutions of public character to all classes and sections of Hindus The
wearing and carrying of kirpans should be deemed to be included in the
profession of the Sikh religion, according to its explanation clause (1).80
80
The Constitution of India, Article 25.
58
===================================================================================
It's worth noting that Articles 25 and 26 should be read in parallel.

Article 25 guarantees an individual right, as opposed to a right of an organised
entity, such as a religious denomination or any component thereof, which is
covered by Article 26. Both provisions safeguard religious doctrines and
beliefs, as well as religious acts such as rituals, observances, ceremonies, and
styles of worship. These articles contain the concepts of religious tolerance
that have been a defining aspect of Indian civilization since the dawn of time,
with any occurrences or times where this quality was missing being only a blip
on the radar.
Religious liberty, on the other hand, cannot be used as a shield against

behaviours that are harmful to public order, health, or morals. As a result,
according to Article 25, religious freedom is subject to "public order, health,
and morals." The Supreme Court held in Ramji Lal Modi v. State of Uttar
Pradesh81 that section 295-A of the Indian Penal Code82 is not in conflict with
articles 25 and 26 because it imposes a restriction in the interest of public
order, making punishable the deliberate and malicious intention of outraging
the religious feelings of any class of Indian citizens. While the freedom to
freely pursue religion is protected, subject to the constraints of public order,
health, and morality, there is no similar protection for actions that are
economic, commercial, or political in nature, even if they are related to
religious practise. It is true that determining whether a given topic belongs
under basic religious practise or is just a secular, commercial, or political
action that has become linked with religion is not always easy. The Supreme
Court, on the other hand, has ruled against relying on foreign authorities in
establishing what matters are covered by religion and which are not.
The Supreme Court held in Ratilal Panchand v. State of Bombay83 that

everyone has a fundamental right "not only to entertain such a religious belief
as may be approved by his judgement or conscience, but to exhibit his belief
and ideas in such overt acts as are enjoined or sanctioned by his religion,"
81
AIR 1957 SC 620: 1957 SCR 860.
82
Indian Penal Code, 1860, Section 295-A: Deliberate and malicious acts, intended to outrage
religious feelings of any class by insulting its religion or religious beliefs.
83
(1954) SCR 1055.
59
===================================================================================
subject to the restrictions imposed by Article 25. The Supreme Court said in
another case, Comm. H.R.E. v. Lakshmindra84 that, ―Religious practises or the
performance of activities in furtherance of religious belief are as much a part
of religion as faith or belief in certain doctrines,"
In Mulla Tahir Saifuddian v. State of Bombay85, the Supreme Court

stated that in order to apply Article 25(2)(a), religious acts must be divided
into those that are primarily religious in nature and those that are not. It was
held in Durgah Committee v. Hussain86 that determining whether a religious
activity is an essential aspect of a religion is an objective question for the court
to decide, and that a religious denomination's position is not final. In light of
these legal decisions, we must consider the role of personal law as an integral
aspect of Islamic faith, to which a Muslim will typically respond with a
resounding affirmative. There are numerous comments made by Muslim
ulemas, attorneys, and politicians, as well as resolutions approved at Muslim
conferences, declaring that Muslim personal law is an integral element of
Islam. However, in light of the Supreme Court's decision in the Durgah
Committee case, their conviction is not conclusive in the case and must be
reviewed by the courts.
In two separate judgments, the Allahabad High Court has ruled that
contracting a bigamous marriage is not an intrinsic component of either the
Muslim or Hindu religions. It may be stated by justice Oak in the first case,
"that under Muslim personal law, one may have as many as four wives."
However, I do not believe that having more than one wife is a religious
practise... As a result, a statutory provision prohibiting a Muslim male from
having more than one wife does not constitute a restriction on freedom of
conscience or the right to profess, practise, and spread religion."
In Narasu Appa Mali‘ s case Justice Chagla had said :
―If religious practices run counter to public order,

morality or health, or a policy of social welfare
84
(1954) SCR 1005.
85
AIR 1962 SC 853.
86
AIR 1961 SC 1402.
60
===================================================================================
upon which the state has embarked, then the

religious practices must give way…. Marriage is
undoubtedly a social institution, an institution in
which the state is vitally interested. Although there
may not be universal recognition of the fact, still a
very large volume of opinion in the world today
admits that monogamy is a very desirable and
praise worthy institution. If, therefore, the state of
Bombay compels Hindus to become monogamists, it
is a measures of social reform the state is
empowered to legislate with regard to social reform
under Art. 25(2) (b) notwithstanding the fact that it
may interfere with the right of a citizen of process,
practice and propagate religion.‖87
As a result, the courts do not accept bigamy as "an essential feature" of

any religion or as a "religious practice." Most likely, the judicial attitude
regarding unilateral divorce in Islamic law will remain the same, because it
cannot be proven by any strong arguments that Islam forbids a husband to
divorce his wife in a unilateral and arbitrary manner. But what about the
individual heirs' shares in the inheritance arrangement, which are specifically
part of their particular laws and considered to be a "integral aspect" of their
religion? Marriage and divorce appear to be more easily allocated to the realm
of "secular activities linked with religion" in the case of Muslims than
inheritance and succession.
Despite the lack of a clear cut demarcation between "essentially

religious" and "secular" activities, it may be inferred from the discussion thus
far that the judicial trend is such that personal laws do not find the protection of
Religious Freedom promised under Article 25. Of course, how one reads the
various elements of article 25 will decide where the personal law system fits
into the scheme of article 26, which guarantees every "religious denomination"
87
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. pp. 86-87.
61
===================================================================================
the freedom to handle its own "affairs in issues of religion." Art 26 cannot
apply to personal laws if "practice of religion" does not include adherence to
personal laws, and if matters now regulated by personal laws are "secular
activity associated with religion."88
Art. 29(1) provides a fundamental right of protection for any group of

the citizens resident in India or any part of it who speak a different language,
script, or culture. However, by guaranteeing this fundamental right, the
Constitution does not intend to create a separate set of personal law or to
bestow special status on any group of persons. The terms "different language,
script, or culture" have a narrow definition and do not encompass the existence
of separate personal laws.
The Supreme Court in A. S. Namyana Deekshitulu v. State of Andhra

Pradesh89 strongly opined that the right to religion guaranteed under Art. 25 or
26 is not an absolute or unfettered right to propagate religion that is subject to
State legislation limiting or regulating any economic, financial, political, or
secular activity associated with religious belief, faith, practice, or custom. They
are subject to social welfare reform if the state passes suitable laws. Though
religious rituals and deeds performed in support of religious beliefs are as
much a component of religion as faith or conviction in a certain doctrine, this is
neither conclusive nor decisive. As a result, the religious freedom provided by
Article 25 and 26 is intended to serve as a guide to communal life, requiring
each faith to operate in accordance with its cultural and social demands in
order to maintain an egalitarian social order. As a result, Article 25 and 26
strike a balance between the rigidity of religious belief and faith, as well as
their inherent restrictions in matters of religion, religious beliefs, and religious
practices, and the guaranteed freedom of conscience to commune with his
Cosmos, Creator, and realise his spiritual self.
In this judgement, it was also stated that the validity of the genuine
categories must be determined carefully within the parameters of the
88
Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
89
AIR 1996 SC 1765.
62
===================================================================================
individual's right and the legitimacy of the State for social progress, well-being,
and reforms, social intensification, and national unity. Law is a social
engineering tool and a tool for social change that has changed over time.
In well-known case, Bijoe Emmanuel v. State of Kerala90 while dealing

with the issue of Arts. 19(l)(a), 25(1), and 51A(a), the division bench of O.
Chinnappa Reddy and M. M. Dutt JJ. observed that the right to freedom of
conscience and freely to profess, practice, and propagate religion guaranteed by
Article 25 is subject to (1) public order, morality, and health; (2) other
provisions of Part III of the Constitution. The State, on the other hand, is given
the power to enact legislation to regulate or restrict any economic, financial,
political, or other secular activity that may be associated with religious
practice, as well as to provide for social welfare and reform, even if such
regulation, restriction, or provision infringes on the right guaranteed by Art. 25.
(1). While summarizing the judgement, the bench stated, "Our tradition teaches
tolerance; our ideology preaches tolerance; our constitution practices tolerance;
let us not dilute it."
In Bal Patil v. Union of India91, a Supreme Court bench consisting of

R. C. Lahoti, the then Chief Justice of India, D. M. Dharmadhikari, and P. K.
Balasubramanyan JJ. remarked that while making Minority Commissions
fulfill their obligation to minorities, the Constitutional purpose must be borne
in mind by Minorities Commissions established up at the Central or State
levels. Minority commissions must focus their efforts on preserving India's
integrity and unity by gradually removing the minority and majority classes. If
a claim of a section of Indian society to the status of "minority" is considered
and conceded solely on the basis of a different religious belief or a lack of
health, wealth, education, power, or social rights, there will be no end to such
claims in a society as multi-religious and multilingual as India. A claim by
one group of citizens would prompt another group of citizens to make a
similar claim, resulting in conflict and warfare.
90
AIR 1987 SC 748.
91
AIR 2005 SC 3172.
63
===================================================================================
As a result, Hindu society is divided into various minority groups,

which are based on caste. Each caste asserts that it is distinct from the others.
No division or unique group of people can claim to be the majority in a caste-
ridden Indian society. Among Hindus, they are all minorities. Because of their
limited number, many of them claim such status and expect the state to protect
them on the grounds that they are backward. If one minority group is terrified
of the other, a climate of reciprocal dread and distrust will emerge, posing a
severe threat to our nation's integrity. In India, this would plant the seeds of
multi-nationalism. As a result, the Minority Commission must work in such a
way as to avoid instilling feelings of multi-nationalism in various parts of the
Indian population. Instead of encouraging claims from various communities to
be included to a list of notified minorities under the Act, the Commission
should offer ways and means to assist in the creation of societal conditions in
which the list of notified minorities is gradually decreased and eventually
eliminated.
3.3 Directive principle of State Policy and Uniform Civil

Code:
Article 37 to 51 of Part IV of the Indian constitution deals with the directive
principle of State Policy. These Directive principles are Non-justiciable; it
means one cannot approach the Court of law for its violation. This is a major
drawback of the directive principle of State Policy. However, the constitution
itself declared that these principles are fundamental in the Governance of the
country and it shall be the duty of the state to apply these principles while
making laws.
Article 3792 states that the state is responsible for ensuring a social
order in which social, economic, and political justice are reflected in all
aspects of national life. Wealth and its sources of production must not be
concentrated in the hands of a few, but must be divided to serve the general
92
Application of the principles contained in this Part. The provisions contained in this Part
shall not be enforceable by any court, but 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 laws.
64
===================================================================================
good, with enough means of subsistence for all and equal remuneration for
equal work. The state shall make every effort to ensure employees' health and
strength, their right to work, their right to education, and their right to
assistance in times of need, reasonable and humane working conditions, a
living wage, a uniform civil code, and free and obligatory education for
children. The state must take steps to form local panchayats, promote the
educational and economic interests of the poorer sectors of society, enhance
public health, organised agricultural and animal husbandry, separate the
executive from the judiciary, and promote international peace and security.93
3.3.1 Article 44:

Article 44 is the only provision in our Indian constitution that directly deals
with Uniform Civil Code. This provision read as follow,
"The state shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territory of India".
Article 44's placement in the Constitution's structure makes it apparent

that the state must make efforts in this regard. After much debate, this
provision was inserted into Part IV of the constitution, obliging the state to
implement the goals set forth in this section by implementing suitable laws,
the terms 'endeavour and secure' are crucial in this regard.94 These two terms
imply that the state can take a liberal approach as well as use an intermediary
arrangement to ensure that Indian residents have a consistent civil code.
Article 44 uses the word state, which has a broad definition and is similar to
Article 12 of the Indian Constitution. According to Article 12 of Indian
constitution the word ' state' includes the Government and Parliament of India,
the Government and state legislatures of each state, and all local and other
authorities either within India's territory or under the control of the
Government of India.
93
Ashutosh Kumar Mishra, Leading Cases of the Supreme Court of India, 825 (Discount
Book Publisher, New Delhi, 2014).
94
Vishal Gangopadyay, Inherent Pluralism and Social Demand for Uniformity, MJIS, Vol.
20(3) 1999.
65
===================================================================================
However, all authorities operating inside India's territory under the

Constitution are obligated to work toward a uniform civil code. The
constitutional structure for power sharing between the center and the state also
gives legitimacy in this regard. The relevant provision, entry 5 of list III of
schedule VIII of the Constitution, authorises both the national and state
legislatures to work toward a uniform civil code. This entry reads as follows.
"Marriage and divorce, infants and minors; adoption; wills; intestate;

and succession; joint family and partition; all matters in respect of which in
judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law.‖95
Article 44 of Indian Constitution, list III, entry-5, and Article 12 make it clear
that it is not only the legislature's responsibility, but also the responsibility of all
government officials, to work toward establishing a common code for citizens of this
country so that our democracy can develop over time. The whole goal of our
democratic system is to break down all kinds of barriers, such as religion, caste, and
creed, and to build a legal framework that will help to keep the rule of law in Indian
society.
As a result, the goal of including Article 44 in the Constitution is to transform

a heterogeneous society into a homogeneous one. Even today, the truth is that India
was divided along religious and caste lines before to freedom. This form of
segregation, which we might call heterogeneous society, persisted until our homeland
gained freedom. The great founding fathers of our constitution, on the other hand,
worked hard to insert Article 44 into our National Charter in order to create an
environment of uniformity.96
Thus this article does not direct any law-making authority to enact
Uniform Civil Code but only imposes a duty to enact it. The major difference
between fundamental rights and the directive principle of State Policy is about
justifiability. Fundamental rights are justiciable but DPSP is Non-justiciable.
Therefore till today, the lawmaker has not taken any initiative to enact a
special Act on Uniform Civil Code.
95
Constitution of India, Schedule VII List III, entry-5.
96
Rajan Pillai, Framing of a Uniform Civil Code and Some Policy Issues, Published by
Centre for Social Studies, at page 333.
66
===================================================================================
3.3.2 Relationship between Directives and Fundamental Rights:

The Directive Principals which are enshrined in Part IV of the Indian
Constitution are not enforceable hence a law giving effect to them will not be
valid if it infringes any of the provisions of part-III or indeed any provision of
the Constitution. Article 13(2) specifically states that the state shall not pass
any law restricting or limiting the rights guaranteed by Chapter III of the
constitution, which enshrines the Fundamental Rights. The Directive
Principles cannot overcome the state's legislative power being categorically
limited. The Constitution must be built in a harmonious manner in order to
achieve the Directive Principles, but it must do it in such a way that its laws do
not abridge or take away Fundamental Rights.97
The Directive Principles must be consistent with and run in tandem

with the Fundamental Rights Chapter. Nonetheless,
(i) in determining the scope and ambit of the fundamental rights relied on by
or on behalf of any person or body, the court may not entirely disregard the
Directive Principles of State Policy set forth in Part IV of the Constitution, but
rather should apply the principle of harmonious construction, attempting to
give effect to both as much as possible, and
(ii) The Directive Principles can be taken into account in construing
ambiguous provisions of the Constitution.98
In deciding whether a restriction is in the public interest, the Supreme

Court has referred to Article 4799 of the Constitution. It also considered Article
39 in sustaining its position that the state's abolishment of Zamindari was for a
public benefit, as well as Article 43100 in affirming the constitutionality of the
Minimum Wages Act 1948. State laws forbidding the killing of cows, calves,
and other livestock have been affirmed because they are intended to carry out
97
Shailja Chander, Justice V. R. Krishna lyer on Fundamental Rights and Directive
Principles, 65 (Deep and Deep Publication, New Delhi, 2015).
98
Ibid.
99
Duty of the State to raise the level of nutrition and the standard of living and to improve
public health.
100
It reads: Living wages, etc., for workers.
67
===================================================================================
Article 48101 of the Constitution. The constitutionality of the excise rules

allowing small co-operative societies producing cotton fabrics to be free from
paying duty has been upheld once again, citing Article 43.
The Directive Principles have gained in popularity over time, and both
Parliament and the Supreme Court have assessed their standing in relation to
the Fundamental Rights. Parliament's addition of provisions to Article 81 was
a bold step in this direction. Its legality was questioned in the Fundamental
Rights case, as previously mentioned. Consider the views of Mathew, J., and
Beg. in the same situation. The relevance of Directive Principles was
emphasised by J. Mathew, J. as follows: "There are rights that inhere in human
beings because they are human beings—whether you name them natural rights
or by any other nomenclature is immaterial." The Constitution was created by
the people to protect basic human rights such as liberty and equality, as stated
in the preamble, and these basic rights are essential characteristics of the
Constitution; the Constitution was also enacted by the people to secure
political, social, and economic justice.
As a result, the moral rights enshrined in Part IV of the Constitution

are equally important features of it; the only difference is that the moral rights
enshrined in Part IV are not specifically enforceable as against the state by a
citizen in a court of law if the state fails to carry out its duty, but they are
nonetheless fundamental in the country's governance and all of the state's
organs. Those directions must be followed by all parties, including the
judiciary. The Fundamental Rights themselves have no predetermined content;
for the most part, they are empty vessels into which each generation must pour
its own content based on its own experiences. Restriction, abridgment,
restriction, and even abrogation of these rights may be necessary under
circumstances not anticipated by the constitution builders; their claim to
primacy or priority is liable to be over-borne at some points in the nation's
history by the moral arguments represented in Part IV of the constitution.102
101
It reads: Organization of agriculture and animal husbandry.
102
Maddukuri Venkatarao and Others v. The State of Andhra Pradesh, AIR 1975 AP 315.
68
===================================================================================
Therefore the language of the articles in Part IV has been left in the way that
the Drafting Committee deemed appropriate. It's pointless to give a
permanent, hard form to something that isn't rigid, that is inherently
changeable, and that must change in response to situations and times. It's also
pointless to claim that the directive principles have no significance. The state
shall try to promote the welfare of the people by establishing and safeguarding
a social order in which social, economic, and political justice inform all
aspects of national life as effectively as possible.103
3.4 Fundamental Duties and Uniform Civil Code:

Fundamental duties were not a part of the Indian constitution at its initial
stage. This part IV-A which deals with fundamental duties, is inserted by the
Constitution 42nd Amendment Act, 1970. There is quite a similarity between
the object of the Uniform Civil Code and Article 51-A (e) of the Indian
Constitution. The object of the Uniform Civil Code is to achieve national unity
and integrity through Communal harmony. The article 51A(e) states to
"promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women‖. The
present article imposes a duty on the citizen of India to protect the dignity of
women in India. But in reality, different religious personal laws discriminate
against women based on their religion. Ultimately we can say that every
citizen of India also has to support the principle of the Uniform Civil Code.
Uniform Civil Code is still a dream of our India. This dream is not
accomplished due to the lack of political will as well as a strong opposition
of certain communities in India. At present, there are so many misconceptions
among the citizens of India about the Uniform Civil Code. Therefore it is a
need to literate persons about the importance of UCC. If Uniform Civil Code
is enacted and enforced then it will help to accelerate the national integrity of
India. As well as it helps to reduce the litigations in different courts of India
which are based on different personal laws? If Uniform Civil Code can
103
The Constitution of India, Article 39.
69
===================================================================================
applicable in different Muslim countries all over the world as well as in India
also it is applicable in the state of Goa then there is a big question why
Uniform Civil Code is still not applicable in India. We hope it will be
applicable soon.
3.5 Article 372

Article 327 of the Constitution of India ensures the application of "all the law
in force in the territory of India immediately before its commencement.‖ This
Article is read a under:
Article 372 of Indian constitution: Continuance in force of existing laws and
their adaptation
(1) Notwithstanding the repeal by this Constitution of the enactments
referred to in Article 395 but subject to the other provisions of this
Constitution, all the laws in force in the territory of India immediately before
the commencement of this Constitution, all the laws in force in the territory of
India immediately before the commencement of this Constitution shall
continue in force therein until altered or repealed or amended by a competent
Legislature or other competent authority
law
Constitution; or
said clause.
70
===================================================================================
Explanation I.- The expression ―law in force‖ in this article shall include a law
passed or made by a Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously
repealed, notwithstanding that it or parts of it may not be then in operation
either at all or in particular areas.
Explanation II.- Any law passed or made by a Legislature or other competent

authority in the territory of India which immediately before the
commencement of this Constitution had extra-territorial effect as well as effect
in the territory of India shall, subject to any such adaptations and
modifications as aforesaid, continue to have such extra-territorial effect.
Explanation III.- Nothing in this article shall be construed as continuing any

temporary law in force beyond the date fixed for its expiration or the date on
which it would have expired if this Constitution had not come into force.104
The Muslim Personal Law (Shariat) Application Act, 1937, which

ensures and governs the application of Muslim Personal Law, is the 'law in
force' as it is enacted by the competent legislature, according to the letter and
spirit of Article 372 of the Constitution. The Act has been altered, repealed, or
amended by the competent legislature or other competent authority since its
inception, making it the "law in force" or "living law" as defined by Article
372 of the Constitution.
In this article 372, the phrase "all the law in force" refers to statutory,
customary, and, it appears, personal laws. Article 372(1) is similar to section
292 of the Government of India Act, 1935, which recognised the ongoing
application of "all law in force" at the time. In United Provinces v. Atiqa105,
the Federal Court concluded that the phrase also covered non-statutory laws,
such as personal laws. Even after the Constitution was enacted, the High
Courts of Rajasthan, Hyderabad, Calcutta, Madhya Pradesh, and Bombay
confirmed that Article 372 applied to personal laws. In any case, this article is
104
Artcle 372 of the Indian Constitution.
105
A.I.R. 1941 F.C. 16
71
===================================================================================
the sole place in the Constitution where personal laws can be claimed to be
acknowledged. If we don't apply it to personal laws, those laws won't be
recognised by the Constitution.106
In terms of the Constitutional postulate of continuity and change in

pre-1950 laws, a range of personal laws, both codified and uncodified, were
applied to many religions and ethnic communities at the time of the
Constitution's inception. All of these laws, in its various forms, were given a
statutory lease by virtue of Article 372 of the Constitution. However, it was
not a long-term lease. For all such statutes, the lease duration was prolonged
until "further action," if any, by a "competent authority." This "additional
action" could take the form of revision, repeal, amendment, or adaptation, as
indicated in Article 372(1). Parliament or a state legislature would, of course,
be the primary "competent authority" that might take such "activity."
However, a delegated legislative power could be used by an executive
authority.107 The question of whether the President of the Republic's authority
of adaptation and modification of existing laws, as allowed by Article 373 (2),
can be used by him also in the event of an uncodified law or custom, has been
a difficult one to answer. However, because the President did not use such
power during the first three years of the Constitution's creation, the subject is
now largely irrelevant.108
All the three lists in Schedule VII of the Indian Constitution include
subjects relating to personal laws. List III (Concurrent List) provides
following subjects relating to personal law.
(1) Marriage and divorce; infants and minors; adoption; wills, inheritance and
succession; joint family and partition; all matters in respect of which parties in
judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law.109
106
Mohd. Shabbir, "Muslim Personal Law, Uniform Civil Code, Judicial Activism : A
Critique", XII Alig. L.J. 1997,p. 97.
107
Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code, p. 43 (1998).
108
Ibid.
109
Entry 5 of List III in Schedule VII of Indian Constitution.
72
===================================================================================
(2) Transfer of property other than agricultural land; registration of deeds and
documents.110
(3) Charities and charitable institutions, charitable and religious endowments
and religious institutions.111
The sole entry relevant to Muslim law in List I is "Pilgrimage to places outside
India."112 Parliament can pass laws governing Haj and Ziyarat under this
provision.
As a result, practically every matter that usually falls under the

purview of personal law has been placed in the hands of either the state
Legislature or Parliament. Personal laws became politicised in post-
independence India. The Constituent Assembly saw vigorous debates in
favour of and against the Uniform Civil Code for two years. In actuality, the
residence was partitioned along community lines under the Uniform Civil
Code. Members of the Muslim community were opposed, but Hindus were
active supporters. Indian Constitution authorises Parliament to create a
Uniform Civil Code. The need for modifications in Muslim Personal Laws and
the Uniform Civil Code grew after the Hindu Code was enacted. All laws,
including personal laws, can be changed or amended under the Constitution.
In actuality, personal laws fall under the jurisdiction of Parliament and the
legislature.
3.6 International Provisions Relating to Uniform Civil Code:

In the evolution of modern democracy under the rule of law, the concept of
human rights is crucial. Civil society can only be governed in a humane
manner if Dharma, which is rich in content, is administered fairly. Integration
of human rights, social justice, equality, and gender justice is required for
social integration in an inclusive democracy so that all persons can reach their
full potential and, as a fundamental duty, continuously develop their individual
and collective brilliance. Justice necessitates the equality and compassionate
treatment of all segments of the population. The most certain approach to
110
111
112
Entry 20 of List I in Schedule VII of Indian Constitution.
73
===================================================================================
construct a functional society and integrated 'Bharat' would be to combine

human growth with the protection and enjoyment of human rights. Law is a
form of social engineering designed to aid inhabitants. Casting aside caste,
communal, regional, linguistic or religious enmity and distrust in favour of
ushering in just and humane governance under participatory democracy unity
will remain a pious platitude unless they enhance their thinking process,
human rights spirit, and human rights culture. For compassionate governance,
distributive justice must be a part of inclusive democracy.113
Though the concept of ‗human rights recognition‘ has profound roots

in both world history and Indian history. However, major changes happened at
both the international and national levels following the Second World War.
Because many international declarations, conventions, and conferences were
held after 1945 and they recognised various types of rights for "Human
Beings" and "Different Groups of People." The following are some of the
most important instruments and themes.
3.6.1 Universal Declaration of Human Rights, 1948

Article l states, ―All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards
one another in a spirit of brotherhood.‖
Article 2 states, ―Everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind, such as race, colour, sex,
language religion, political or other opinion, national or social origin, property,
birth or other status. Furthermore, no distinction shall be made on the basis of
the political, jurisdictional or international status of the country or territory to
which a person belongs, whether it be independent, trust, non-self-governing
or under any other limitation of sovereignty.‖
113
M. Rama Jois, Ancient Indian Law Eternal Values in Manu Smriti xx (Universal Law
Publishing.
Co., New Delhi, 6th edn.,2012).
74
===================================================================================
Article 16(1) states, ―Men and women of full age, without limitation due to
race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its
dissolution....‖
Article 18 states: ―Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to
manifest his religion or belief in teaching, practice, worship and observance.‖
Article 22 states, ―Everyone, as a member of society, has the right to social

security and is entitled to realisation through national effort and international
co-operation and in accordance with the organisation and resources of each
state, of the economic, social and cultural rights indispensable for his dignity
and the free development of his personality.‖
3.6.2 International Covenant on Economic, Social and Cultural Rights,

1966
Article 2(2) declares, ―The State parties to the present Covenant undertake to
guarantee that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status."
Article 3 declares, "The States parties to the present covenant undertake to
ensure the equal right of men and women to enjoyment of all economic, social
and cultural rights set forth in the present covenant.‖
3.6.3 International Covenant on Civil and Political Rights, 1966
Article 2(1) states, ―Each State party, to the present Covenant undertakes to
respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the present covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or other
opinion, national, or social origin, property, birth or other status.‖
75
===================================================================================
Art.-2(2) states, ―Where not already provided for by existing legislative or

other measures, each State party, to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes and with
the provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the
present Covenant.‖
Article 3 states, ―The State parties to the present Covenant undertake to ensure
the equal right of men and women to the enjoyment of all civil political rights
set forth in the preset Covenant.‖
Art.-26 states, ―All persons are equal before the law and are entitled without
any discrimination to be equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, political or other opinion, national or social origin, property,
birth or other status.‖
Article 27 states, ―In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use own language.‖
3.6.4 International Convention on the Elimination of All Forms of

Racial Discrimination, 1966
Article 2(1) promulgates, ―States, parties condemn racial discrimination and

undertake to pursue by all appropriate means and without delay a policy of
eliminating racial discrimination in all its forms and promoting understanding
among all races, and, to this end :
(a) Each State party, undertaken to engage in no act or practice of racial

discrimination against persons, groups of persons or institutions and to ensure
76
===================================================================================
that all public institutions, national and local, shall act in conformity with this
obligation.
(b) Each State party undertaken not to sponsor, defend or support racial
discrimination by any persons or organizations;
(c) Each State party, shall take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;
(d) Each State party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial
discrimination by any persons, group or organization;
(e) Each State party undertakes to encourage, where appropriate, integrationist

multi-racial organizations and movements and other means of eliminating
barriers between races, and to discourage anything which tends to strengthen
racial division.‖
Article 2(2) promulgates, ―States parties shall, when the circumstances so

warrant, take, in the social, economic, cultural and other fields, special and
concrete measures to ensure the adequate development and protection of
certain racial groups or individuals belonging to them, for the purpose of
guaranteeing them the full and equal enjoyment of human rights and
fundamental freedoms. These measures shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial
groups after the objectives for which they were taken have been achieved.‖
77
===================================================================================
3.6.5 Convention on the Elimination of All Forms of Discrimination

Against Women (CEDAW), 1979
Article 2 explains, ―States Parties condemn discrimination against women in

all its forms, agree to pursue by all appropriate means and without delay a
policy of eliminating against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation if not yet incorporated
therein and to ensure, through law and other appropriate means, the practical
realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions

where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with
men and to ensure through competent national tribunals and other public
institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination against

women and to ensure that public authorities and institutions shall act in
conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against

women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or

abolish existing laws, regulations, customs and practices which constitute
discrimination against women;
(g) To repeal all national Penal Provisions which constitute discrimination

against women.‖
78
===================================================================================
Article 3 explains, ―States Parties shall take in all fields, in particular in the
political, social, economic and cultural fields, all appropriate measures,
including legislation, to ensure the full development and advancement of
women for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.‖
3.6.6 UN convention on the Rights of the child, 1989
Article 2(1) mandates, ―States Parties shall respect and ensure the rights set
forth in the present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her parents or
legal guardian's race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other status.‖
Article 4 mandates, ―States Parties shall undertake all appropriate legislative,

administrative, and other measures for the implementation of the rights
recognized in the present Convention. With regard to economic, social and
cultural rights, States Parties shall undertake such measures to the maximum
extent of their available resources and, where needed, within the framework of
international co-operation.‖
Article 27(1) mandates, ―States Parties recognize the right of every child to a
standard of living adequate for the child's physical, mental, spiritual, moral
and social development.‖
3.6.7 Declaration on the Right to Development, 1986
Article 2(2) states, ―All human beings have a responsibility for development,
individually and collectively, taking in to account the need for full respect for
their human rights and fundamental freedoms as well as their duties to the
community, which alone can ensure the free and complete fulfillment of the
human being, and they should therefore promote and protect an appropriate
political, social and economic order for development.‖
Article 2(3) states, ―States have the right and the duty to formulate appropriate
national development policies that aim at the constant improvement of the
79
===================================================================================
well-being of the entire population and of all individuals, on the basis of their
active, free and meaningful participation in development and in the fair
distribution of the benefits resulting there from.‖
Article 6 states, ―(1) All States should co-operate with a view to promoting,
encouraging and strengthening universal respect for and observance of all
human rights and fundamental freedoms for all without any distinction as to
race, sex, language or religion.
(2) All human rights and fundamental freedoms are indivisible and
interdependent; equal attention and urgent consideration should be given to the
implementation, promotion and protection of civil, political, economic, social
and cultural rights.
(3) States should take steps to eliminate obstacles to development resulting

from failure to observe civil and political rights, as well as economic social
and cultural rights.‖
Article 8 states, ―(1) States should undertake, at the national level, all
necessary measures for the realization of the right to development and shall
ensure, inter alia, equality of opportunity for all in their access to basic
resources, education, health services, food, housing, employment and the fair
distribution of income. Effective measures should be undertaken to ensure that
women have an active role in the development process. Appropriate economic
and social reforms should be carried out with a view to eradicating all social
injustices.
(2) States should encourage popular participation in all spheres as an

important factor in development and in the full realization of all human
rights.‖
80
===================================================================================
3.6.8 Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief, 1981
Article 4(1) narrates, ―All states shall take effective measures to prevent and
eliminate discrimination on the grounds of religion or belief in the recognition,
exercise and enjoyment of human rights and fundamental freedom in all fields
of civil, economic, political, social and cultural life.‖
Article 4(2) narrates, ―All states shall make all efforts to enact or rescind
legislation where necessary to prohibit any such discrimination, and to take all
appropriate measures to combat intolerance on the grounds of religion or other
beliefs in this matter.‖
3.6.9 Declaration on Rights of National or Ethnic, Religious and

Linguistic Minorities, 1992
Article 2 declares, ―1. Persons belonging to national or ethnic, religious and

linguistic minorities (hereinafter referred to as persons belonging to
minorities) have the right to enjoy their own culture, to profess and practice
their own religion and to use their own language, in private and in public,
freely and without interference or any form of discrimination.
2. Persons belonging to minorities have the right to participate effectively in

cultural, religious, social, economic and public life.
3. Persons belonging to minorities have the right to participate effectively in

decisions on the national and, where appropriate, regional level concerning the
minority to which they belong or the region in which they live, in a manner
not incompatible with national legislation.
4. Persons belonging to minorities have the right to establish and maintain

their own associations.
81
===================================================================================
5. Persons belonging to minorities have the right to establish and maintain,

without any discrimination, free and peaceful contacts with other members of
their group and with persons belonging to other minorities, as well as contacts
across frontiers with citizens of other States to whom they are related by
national or ethnic, religious or linguistic ties.‖
Article 4(1) declares, ―States shall take measures were required to ensure that
persons belonging to minorities may exercise fully and effectively all their
human rights and fundamental freedoms without any discrimination and in foil
equality before the law.‖
Article 4(2) declares, ―States shall take measures to create favourable

conditions to enable persons belonging to minorities to express their
characteristics and to develop their culture, language, religion, traditions and
customs, except where specific practices are in violation of national law and
contrary to international standards.‖
82
===================================================================================
CHAPTER 4
NEED OF UNIFORM CIVIL CODE:

It was realised during the constitution-making process that all of the
freedom movement's ideals could not be accomplished in a single day; certain
ideals were given greater weight and incorporated as fundamental rights, while
the rest were incorporated as directive principles of state policy. This fourth
chapter is related to the need of uniform civil code. In India, different personal
laws are applicable for different religious people. Article 14 of the Indian
constitution deals with right to equality. It means all are equal before the law
and equal protection shall be rendered by the law. But actually, under personal
laws different persons are treated differently on the name of religion, different
rights and liabilities are prescribed for different people under personal laws.
The uniform civil code will help to make universal civil law that will secure
equality among all persons.
The personal laws of all religions discriminate women from the men. She
is not having equal status under personal laws. She is deprive from various
personal and property rights, hence UCC will play vital role in the
empowerment of women under personal laws. In this present topic researcher
is going to focus on the important objectives of the uniform civil code. The
following taxonomy might be used to discuss the purposes that have emerged
as the most important:
1) The Uniform Civil Code is a tool for achieving gender equality
and justice in society.
2) The Uniform Civil Code is a tool for achieving societal unity
and integrity.
3) The Uniform Civil Code is a tool for achieving India's
secularism.
4) As a means of achieving clarity, simplicity, and intelligibility in
personal laws, the Uniform Civil Code was created.
83
===================================================================================
4.1 The Uniform Civil Code is a tool for achieving gender

equality and justice in society.
In this present research topic, we will attempt to cover all aspects of the
equality factor of the Uniform Civil Code. We shall look at the position of
equality under personal laws in this article. We will cover the arguments in the
constituent assembly, court rulings, and conflicting expert opinions in this
discussion. The concept of equality has been examined in this article in two
separate ways: uniformity between communities and uniformity within
communities.
Article 14 of the Indian Constitution deals with right to equality. As

per this article, all are equal before the law and equal protection has been
rendered by law. But if we study the personal laws in India we will come to
know that there is inequality among the personal laws based on caste, race,
and gender. From the pre-independence period women's movements have
been demanding uniform civil code for India. Women are highly discriminated
under the personal laws of India. Because the Indian legal system recognises
the existence of different personal laws, numerous women's movements, as
well as progressive and secular leaders, have been campaigning for the
Uniform Civil Code. These leaders have been vocal in their opposition to the
alleged discriminatory character of personal laws. It has been suggested that
we cannot have separate personal laws for different religious groups in a
secular democracy like India. Separate discriminating laws are
unconstitutional; hence there should be a single law that applies to all citizens.
4.2 The Uniform Civil Code is a tool for achieving societal

unity and integrity.
When we look at the role of civil codes in other countries, we can see that in
France and Germany, civil codes have helped to establish national unity.
Considering India's continued failure to attain this goal, the unifying
component of the Uniform Civil Code becomes even more important.
According to Indian history, the country has been susceptible to foreign
aggression and even had to endure two centuries of British rule as a result of
84
===================================================================================
its lack of cohesiveness. We were unable to resist the British authority due to
the British policy of "divide and rule," and all of our independence movements
had many ups and downs. We even gained our independence at the cost of the
country's split. India's post-independence history has been similar, in the sense
that we are still striving to protect the country's unity and integrity. A Uniform
Civil Code is now more vital than ever, given the rise of Communism and
fanaticism in Indian culture. Despite the fact that, unlike the United States, we
do not have dual citizenship, single citizenship has yet to accomplish its goal
of a uniform civil code.
4.3 Reasons for a Need of Uniform Civil Code:

There are few important reasons, why India needs a Uniform Civil code.
1) To promote secularism: In India, we currently have selective secularism,
which implies that we are secular in some sectors but not in others. A uniform
civil code means that all Indian citizens, whether Hindus, Muslims, Christians,
or Sikhs, must follow the same rules. This seems as reasonable and secular. A
uniform civil code does not mean that people's ability to practise their religion
will be restricted; it just means that everyone will be treated equally. That is
the true meaning of secularism.
2) To achieve societal unity and integrity: A uniform civil code will assist
India in becoming more integrated than it has been since independence. A lot
of the antagonism stems from the law's preferential treatment of certain
religious communities, which might be eliminated if there was an universal
civil code. It will aid in the unification of all Indians, regardless of caste,
religion, or tribe, under a single national civic code of behaviour.
3) To reduce anomalies from Personal Laws: The many personal laws are
essentially a backdoor for people in positions of authority to exploit. Our
panchayats continue to pass judgements that are in violation of our
constitution, and we do nothing to stop them. Honor killings and female
foeticide are widespread violations of human rights in our society. By
establishing personal laws, we have created an alternative legal system based
85
===================================================================================
on ideals that date back thousands of years. That would change if there were a
single civil code.
4) Modernisation of India Society: The indication of a modern progressive

nation is a consistent civil code. It's an indication that the country has moved
away from religious and caste politics. Our economic growth has been the
fastest in the world, but our social growth has been insignificant. In fact, it's
possible that we have degraded to the point where we are neither modern nor
traditional socially and culturally. A unified civil code will aid in the
advancement of society and assist India achieve its aim of being a developed
nation.
5) Empowerment of Women: A uniform civil code will also aid in the

advancement of women's rights in India. Our society is exceedingly
patriarchal and misogynistic, and we are committing all Indian women to
subjugation and mistreatment by permitting archaic religious laws to continue
to dictate family life. A universal civil code would aid in the eradication of
these long-standing customs that have no place in today's society, where we
recognise that women should be treated equally and respectfully.
6) To Reduce Vote Bank Politics in India: A uniform civil code will also aid
in the reduction of vote bank politics, which most political parties engage in
throughout each election cycle. If all religions are subject to the same laws,
politicians will have less to promise them in exchange for their votes. The
absence of Uniform Civil code is harmful to Indian democratic system and it
is a need of an hour.
4.4 Comparative Study of Various Personal Laws in India:
India is a land of incredible diversity and socioeconomic disparities. We have

16 official languages and about 1000 minor languages. The Criminal
Procedure Code applies to all citizens; nevertheless, personal laws govern
marriage, divorce, inheritance, guardianship, custody, and other concerns
according to the individual's religious beliefs. This separation has a history,
86
===================================================================================
but its influence may be observed when a single person is exposed to not only
various sets of laws, but also different implementing agencies. The poor and
underprivileged individuals are the heavily impacted by this legal mess.
In India, the Hindu Marriage Act, 1955 governs marriage and divorce for
Hindus, Sikhs, Jains, and Buddhists, while Muslim Personal Law (Shariat)
Application Act, 1937 and Muslim Dissolution of Marriage Act, 1939 rule
marriage and divorce for Muslims. The Indian Christian Marriage Act of 1872
and the Divorce Act of 1869, respectively, govern marriage and divorce for
Christians. Beside from personal laws, the Special Marriage Act of 1954,
which is a secular legislation that allows parties of many religions and castes
to marry, governs these concerns in relation to those parties.
In this chapter researcher is trying to do comparative study of different

personal laws in India. The present study is divided into following issues.
1) Position of Marriage and Divorce under various personal Laws in India.
2) Position of Maintenance under various personal Laws in India.
3) Position of Adoption under various personal Laws in India.
4) Position of Succession under various personal Laws in India.
5) Position of Guardianship under various personal Laws in India.
Position of Marriage and Divorce under various personal Laws in India.
4.4.1. MARRIAGE
a) Position of Marriage under Hindu Law: Marriage was regarded by
ancient Hindu law as "Sanskara." The Hindu view of marriage as a
sacramental holy union involves a variety of things, including:
a) The marriage of a man and a woman is divine in nature. It is not a contract.
However, in exceptional cases among Hindus, marriage is treated as a
contractual arrangement. A wife could never ask for divorce or another spouse
in the traditional Hindu marriage system, and the husband could not ask for
divorce either. But he could always mock the sacramental union with impunity
and arrogance by taking another woman and a comparable sacramental tie, and
he could do so as often as he wanted, the only limit being his physical or
87
===================================================================================
mental capacity. In five situations, however, the wife might request "Another
Husband." When husband departed, or lost, became a Sannyasi, was impotent,
or was Patita.114
b) Under the Grahya Sutras, Hindu marriage is one of the most significant
Sanskara: the law of marriage is indeed "the great point at which all Hindu law
converges." Manu justifies marriage for women as Upanayanan, service to the
husband as teacher service, and attention to household tasks as sacred fire
tending. There are several preliminary ceremonies in Sanskara marriage:
(i) "Panigrahana, Homa."
(ii) A few fundamental rites, such as going around the fire and Sapta Padi, and
(iii) Certain post-central rites, such as sighting the pole star.115
The Hindu Marriage Act of 1955 incorporated certain contractual components

into Hindu marriage, such as:
i) The bridegroom's minimum age is 21 years, while the bride's minimum age
is 18 years.
(ii) To provide valid consent to marriage under Section 12, both parties must
be of sound mind. The marriage is voidable due to the violation of the
requirement.
(iii) Either spouse has the right to divorce on the reasons set forth in Section
13 of the Act.
(iv) Either spouse has the right to seek Restitution of Conjugal Rights in the
circumstances and on the grounds set forth in Section 9 of the Act; and
(v) Either spouse has the right to seek judicial separation under Section 10 of
the Act.
The sacramental nature of Hindu marriage has dissolved as a result of

the introduction of the divorce remedy under statute law of marriage,
according to the preceding arguments. By allowing divorce by mutual
permission of the parties, a significant change has been accomplished. Parties
114
A.M. Bhattacharjee, Hindu Law and Constitution, Eastern Law House (1983) at page 8.
115
V. Narayan Karan Reddy, Essays in Hindu Jurisprudence and Philosophy, Clarendon
Press, Oxford (1980) at page 27.
88
===================================================================================
can get divorced under Section 13-B if they agree to it. As a result of this
modification, the sacramental nature of a Hindu marriage has been severely
weakened. Although a sacramental ceremony is still required in most
marriages, the balance scale tilts considerably toward the contractual idea of
marriage due to the classification of marriage into valid, void, and voidable for
the purposes of determining matrimonial rights and remedies.116
b) Position of Marriage under Muslim Law: A Muslim marriage is a

contract between two people of opposite sexes for the purposes of intercourse,
procreation, and child legalisation. It is a civil contract, so there is no need for
a Priest or a Qazi to complete it. Permanent and temporary marriages (Mutta)
were accepted under Shia law. According to Sunni law, mutta marriage is
void.117
A marriage contract may be entered into by any Mohammadan who

has reached puberty and is of sound mind. Lunatics and minors who have not
reached puberty may enter into legitimate marriage contracts with their
guardians. In the lack of proof, puberty is assumed to occur when a person
reaches the age of 15. A marriage proposal should be made by or on behalf of
one of the parties. The proposal must be accepted by or on behalf of the other
in the presence of two male witnesses or one male and two female witnesses.
The proposal and acceptance must be given at the same meeting.118
A man is allowed to have four wives at the same time under Islamic
law. If he marries his fifth wife after already having four, it will be considered
irregular. However, a marriage between a woman and her husband who is still
alive and has not been divorced by him is null and void. It is not permissible
for a Muslim woman to have multiple husbands at the same time. Fighting was
the order of the day prior to the foundation of the Muslim republic (Islam),
and as a result, the number of men was far lower than the number of women.
116
Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 38.
117
Gibh, Mohammedanism : An Historical Survey, New American Library, Oxford
University Press, Toronto (1953) at pages 125-127.
118
M. A. Qureshi, Muslim Law of Marriage, Divorce and Maintenance, Deep & Deep
Publications, Rajouri Garden, New Delhi (1995) at pages 58-59.
89
===================================================================================
This situation contributed significantly to the institution of polygamy's

survival during the early period of Islamic history.119
It is obvious that the Quran only allows, not encourages, polygamy,

and only in circumstances where a man finds it unable to protect the interests
of widows and orphans. It's worth noting that, Is it feasible for a man to love
and care for all four wives equally? It's simply not feasible. As a result, the
Muslim husband's arbitrary power to have many wives has been curtailed in
practically all countries. Polygamy has been completely abolished in some
places, while it has been partially eliminated in others. Polygamy is more
common among Hindus than among Muslims, according to statistical studies.
Marriage between a Shia male or female with a non-Muslim is void under
Shia law. A Muslim male can form a lawful marriage with Kitabia under
Sunni law, but a Muslim woman can only contract a valid marriage with
another Muslim. If a minor is engaged in marriage by a guardian, the minor
has the right to repudiate the marriage once he or she reaches majority.120
c) Christian Marriage:
The Indian Christian Marriage Act of 1872 governs all marriage matters for
Indian Christians. For the purposes of the Christian Marriage Act of 1872,
anyone who professes and believes in the Christian religion is a Christian.
Marriage among Indian Christians is examined from two perspectives: land
law and canon law. Marriage will be genuine and legitimate if it is performed
in accordance with the laws of the land that control the parties. A marriage
performed by a schismatic priest between Roman Catholics will not be
recognised as legal, and the children will be illegitimate, according to canon
law. The children of such a marriage will be completely legitimated under
Sections 4 and 5 of the Indian Christian Marriage Act 1872. Marriage must be
119
J.D .M. Derret, The Convert's Polygamous Marriage, Vol .67, Bombay Law Reporter
(1965).
120
Syed Jaffer Hussain, Legal Modernism in Islam : Polygamy and Repudiation, Vol. 7,
Joumal of Indian Law Institute (1965) at page 384.
90
===================================================================================
registered, which is the most significant element of the Christian Marriage

Act.121
According to Section 88 of the Christian Marriage Act of 1872

"Nothing in this Act shall be regarded to recognise any marriage whereby
personal law applicable to either of the parties prevents the following
conditions to be completed for acquiring certificate of marriage between
Indian Christians"
1) Neither party to the marriage shall have a living wife or husband.
2) In the presence of one person licensed as per rule and at least two credible
witnesses other than such licensed person.
3) The age of the boy shall not be less than 21 years and a girl below 18 years
at the time of marriage.
d) Position of Parsi Marriage: Parsi Marriage and Divorce Act, 1865 is

applicable to the members of Parsi community in India. This Act has been
amended in 1988 by Parsi Marriage and Divorce (Amendment) Act, 1988. The
following are valid marriage requirements:
1. If he is a male, he must be 21 years old, and if she is a female, she must be
18 years old.
2. Any child born from an invalid marriage who would have been legal if the
marriage had been valid is regarded legal.
3. Contracting parties must not be related in any of the degrees of
consanguinity or affinity listed in Schedule I of the Act.
4. A Parsi husband or woman cannot remarry if his or her marriage is
dissolved by a competent court during his or her lifetime, even if he or she
converts to another faith. If a person marries during the lifetime of his or her
spouse, he or she will be penalised under Sections 494 and 495 of the Indian
Penal Code.
e) Jewish Marriage: In India, Jewish marriage and divorce laws are not
codified. They are still governed by their religious laws. In courts, David
121
Gnanamuthu v Anthoni,AIR 1960 Mad. 430.
91
===================================================================================
Melzinar's book "Marriage and Divorce" is used. Marriage is regarded by Jews

as a relationship between two people involving particularly sacred duties,
rather than a civil contract. Jews may marry under the Special Marriage Act of
1954 in lieu of religious requirements as specified by their personal
law because this Act is applicable to all citizens of the country regardless of
their religious affections. All Hindus, Muslims, Christians, Parsis, and Jews
are covered by this secular option statute.
4.4.2 DIVORCE
a) Divorce under Hindu Law: The Hindu Dharmashastras emphasized the
sacramental nature of marriage and the indissolubility of marriage even after
death.
Although Kautilya did not reject this concept, he did allow for specific
circumstances in which divorce might be permitted. Marriage performed in an
unauthorized form, according to him, can be dissolved by mutual consent, but
marriages performed in recognized forms are irrevocable. However, divorce
was acceptable as caste custom in a number of conditions and social
situations. According to William Strange, an expert on Indian customary
practices says that customary divorce did exist and was permitted in some
areas.122 In Hindu civilization, there was also Tyaga, in addition to the
conventional divorce. Tyaga, as opposed to Moksha, was a concept that was
well-known. According to Derrett, the concept of nullity was recognized in
ancient Hindu law. However, this cure was only available in a few
circumstances. According to B.S. Nagarajuna, A man might discard a wife
and marry another under certain conditions. But the wife remained the legal
wife and her marriage tie as a result of her Sanskara could not be snapped.123
Even an adulterous wife could not be divorced under Hindu law in the
past. If she had committed adultery with men from lower classes, she could be
penalised at best. However, it has been stated that if she becomes pregnant as a
122
William Strange, Treatise on Hindu Law (1928) at page 52; Also see Kuldip Kaur V
Amanpreet Singh, AIR 2009 (NOC) 2959 (P&H).
123
B.S. Nagarajuna, Some Glimpses on Indian History, Culture and Civilization, Pooja
Publications, Ghoshal Street, Calcutta (1976) at page 112.
92
===================================================================================
result of an illicit relationship, she may be renounced. 124 The word "Tyaga"
plainly implies that she might be expelled from the family, not only for killing
the foetus or husband, or for Mahapatka, but also for further pregnancy in
adultery. It may however, be observed that in spite of her being turned out of
the house the marriage knot was never dissolved. She couldn't legally marry
anyone else. Thus, husbands were free to abandon their spouses, but wives had
no power to abandon or leave their husbands for any reason, or to remarry
even after they died. Because India is such a large country, the concept of
divorce varied from caste to caste and location to location. Divorce was never
legal, but it was always and always accepted by custom in many sections of
the country.
Soon after India's independence, a new demand for a unified divorce

law arose. The suffering of Hindu women was the driving force behind this
demand. There was a large group of conservative Hindus who were opposed
to divorce. Their main argument was that any formal provision for divorce
would be considered interference in Hindu religion by the same parliament
that has a policy of non-intervention in other religious legislation.125 The
government was eventually able to implement the institution of divorce among
the Hindu community after intense deliberations in parliament.
Divorce is recognised under Hindu personal law under the Hindu

Marriage Act, 1955. Section 2 of this Act applies to any person who is a
Hindu by religion in any of its forms or to any Buddhist, Jain, or Sikh by
religion, and to any other person domiciled in the territories to which this Act
extends who is not a Muslim, Christian, Parsi, or Jew by religion. Section 13
of the Act allows for the dissolution or divorce of a marriage, for which either
spouse can make an application in the proper court for a decree.126 The
following are the grounds for divorce which are available under the provision:
124
V. Narayan Karan Reddy, Essays in Hindu Jurisprudence and philosophy, Clarendon Press
Oxford (1980) at page 283.
125
Indra Malani, Women of the World: Illusion and Reality, Vikas Publications (1978) at
page 22.
126
file:///C:/Users/Lenovo/Desktop/Divorce%20under%20different%20personal%20laws%20i
n%20india%20_%20a%20comparative%20study%20-%20iPleaders.html.
93
===================================================================================
1) The spouse engaged in voluntary sexual activity with anyone else.

2) The applicant has been cruelly treated by the partner.
3) Has been unfaithful to the relationship for a period of at least two years.
4) Has become a follower of a different religion.
5) Has an incurable unsound mind or mental illness that makes living with him
unreasonable.
6) Has been infected with a venereal disease that is infectious.
7) Has entered a holy order and abandoned the world.
8) Has not been heard alive in at least seven years.
There are some specific grounds, on which a wife may seek a divorce
decree, including:
1) If the spouse is guilty of rape, bestiality, or sodomy, the woman may seek
divorce.
2) Where a maintenance order has been issued in the wife's favour and there
has been no cohabitation between them for a year or more.
3) Where the wife's marriage took place when she was under the age of 15
years old (whether consummated or not), and she repudiated the marriage
before turning 18 years old.
4) That the husband had already married another woman who was alive at the
time the divorce application was filed.
Section 13-B of The Hindu Marriage Act of 1955, allows divorce by mutual
consent if both parties have lived separately for one or more years and have
filed a petition for divorce on the grounds that they have been unable to live
together and have jointly consented to terminate the marriage.
b) Divorce Under Muslim Law:

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937
stipulates that where the parties are Muslims, the Shariat or Muslim Personal
Law will regulate the dissolution of marriage, disregarding any customs or
usages. The dissolution of marriage by Muslim spouse is divided into
following ways:
94
===================================================================================
i) Divorce by Muslim Husband- Muslim husband can seek to dissolve their

marriage by the pronouncement of talaq to his wife. It is a type of divorce
available just to the husband, allowing him to dissolve relations with his wife
without the interference of a court or the wife's previous agreement. Every
man who has reached puberty and is of sound mind has the right to talaq his
wife. Talaq is an arbitrary act based on the husband's wants and desires with
no reasons or constraints. Some other restrictions may or may not be applied
depending on which school of Muslim law you follow. For example, under
Hanafi law, talaq can be given under duress, coercion, deception, or voluntary
intoxication, however under other schools, this is not the case, and the
husband's assent must be freely given at the time of talaq. The talaq is
effective from the moment it is pronounced, and the terms used must be clear
and unambiguous. The Sunni sect does not require any formalities for the
talaq; however the Shia faith requires it to be spoken in front of two witnesses.
Talaq can also be revocable or irrevocable, which are referred to as Talaq-ul-

Sunnat and Talaq-ul-Biddat, respectively. Talaq-ul-Sunnat is a lawful form of
divorce that is divided into two types: Talaq Ahsan and Talaq Hasan. Except
for Sunnis, Talaq-ul-Biddat in any form is regarded undesirable and is not
acknowledged by the majority of schools. It's also known as triple talaq, which
the Supreme Court deemed unlawful in the case of Shayara Bano v. Union of
India.127 The Muslim Women (Protection of Rights on Marriage) Act, 2019,
was enacted immediately after the verdict in Shayara Bano case and any
declaration of Talaq by a Muslim husband becomes unlawful and illegal. The
Act provides for severe penalties for the violation of provisions of this Act.
ii) Divorce by Muslim Wife- The Muslim Personal Law (Shariat) Application
Act, 1937, recognises a divorce by a Muslim wife under personal law.
The first type of divorce available to a wife is „Khula‟ which is a divorce
purchased from her husband and entails the lady paying compensation from
her assets to the husband in order to end the marriage. Except for any
127
AIR 2017 9 SCC 1 (SC)
95
===================================================================================
specifically agreed-upon rights, all of the spouses' rights are lost when this
type of divorce is applied.
The second type of divorce is known as ‘ila’, which literally means

"oath." In law, it indicates that if a husband takes an oath that he would not
have sexual intercourse with his wife for four months or more after making ila,
the marriage will be dissolved if the husband has abstained from sexual
intercourse throughout that time.
The third type of divorce which is available to the Muslim wife is

‘Zihar’. When the husband compares his wife to his female relatives who are
in the banned degree of kinship, such as his mother, it is available. The Shariat
Act recognises this and allows the woman to seek divorce in this situation.
Under Muslim Personal Law, spouse can take divorce by mutual

consent of parties. In this form of divorce where both the spouses are agree to
terminate their marital relation mutually. As well as after the enactment of
Dissolution of Muslim Marriage Act, 1939 a Muslim woman has a legal right
to divorce from her husband in courts based on the grounds listed in Section 2
of the Act. A Muslim wife has the right to seek judicial separation in certain
circumstances, including impotency of the husband, cruelty by the husband
making it unsafe for her to live in the husband's dominion if the marriage was
irregular, and failure of the husband to perform marital obligations imposed on
him by the marriage contract.
MaulanaAbdul Kalam Azad in his book "Tarjuman-ul-Quran" says:

“In the seventh century before the advent of Islam
males had uncontrolled rights. Manu considered
women only a birth machine. It was considered to
be the duty of women to be most obedient towards
their husband. Under the Jewish system a women
was considered to be nothing more than a property.
She was given no right at all. Under Christianity it
96
===================================================================================
has been said that males and females are not equal.
Under the Roman law; mothers, sisters, wives and
daughters were given no right at all. It is the belief
of Jews and Christians that Eve was responsible for
insisting Adam to commit sin. It was only the Quam
which declared that the males and females have
equal rights.”128
c) Divorce under Christian Personal Law: Under the Indian Divorce Act of
1869, the parties to a Christian marriage may petition a court to break their
marriage bonds. The "Christian Marriage and Matrimonial Causes Bill" was
introduced in parliament as a bill to modify this law. With the dissolution of
the LokSabha in 1962, the bill lapsed. The Christian marriage may be
dissolved if the provisions of Section 10 of the Indian Divorce Act, 1869 are
met. The Act states that the court does not have jurisdiction to dissolve a
marriage unless both parties are domiciled in India at the time when petition is
filed.
If a court has issued a judgement for dissolution of marriage with no

jurisdiction, the marriage will continue to exist, and either of the parties who
enter into a subsequent form of marriage will be guilty of bigamy, and any
children born as a result of such subsequent marriage will be illegitimate. As a
residury section of the Act, Section 7 allows the court to interpret the
provisions of the Act using the principles and norms of English courts.
However, this Section 7 cannot be interpreted as obstructing or expanding the
reasons for dissolution of marriage set forth in Section 10 of the Act. As a
result, dissolution of marriage cannot be sought for reasons not listed in
Section 10 of the Act.129
The Indian Divorce (Amendment) Act, 2001 has now been passed by
the Indian Parliament. This Act addressed a long-standing issue that Christian
128
Maulana Abdul Kalam Azad, Tarjuman- UI - Quran (1956) at pages 186-187.
129
Aviral Saxena, Codified Laws Versus Personal Laws: In Light of Imrana, Daily Times
(online edition) 27th May 2005.
97
===================================================================================
spouses have, especially Christian women, were denied recourse to divorce.

The 2001 amendment has brought Indian Christian divorce law in line with the
rest of the country's divorce laws, which are governed by different personal
laws and the primarily optional provisions of the secular Special Marriage Act
of 1954. In section 10 of the new Indian Divorce (Amendment) Act, 2001, the
wife has an extra cause for dissolution of marriage if she can prove that "the
husband has, after the solemnization of the marriage, been guilty of rape,
sodomy, or bestiality."
Under the Divorce Act of 1869, anyone who professes Christian faith
can receive a divorce. If one of the parties to a marriage is a Christian, the Act
applies, and the marriage can be dissolved without a court order. Section 10 of
Indian Divorce Act, 1869 provides following grounds for divorce.
1) When the spouse has been caught in the act of adultery.
2) The respondent changed his religion.
3) For a period of two years, the respondent has been suffering from an
incurable unsound mind.
4) The respondent has been diagnosed with a severe and incurable form of
leprosy for the past two years.
5) If the respondent has been suffering from a communicable form of venereal
illness for at least two years.
6) For a period of seven years or more, the responder has not been heard alive.
7) When the respondent wilfully refuses to consummate the marriage.
8) Where a restitution of conjugal rights decree was issued and the respondent
failed to follow it.
9) The respondent abandoned the respondent for at least two years.
10) Where the petitioner's ability to remain with his or her spouse is
jeopardised due to cruelty perpetrated against him or her.
11) A wife can file for divorce if her husband has committed rape, sodomy, or
bestiality.
The parties to the marriage can also submit a joint petition for divorce
under Section 10-A if they have mutually agreed to divorce after living apart
for two years or longer and are unable to live together.
98
===================================================================================
d) Parsi Divorce: Under section 31 of the Parsi Marriage and Divorce Act
1936, a Parsi husband or wife may file a suit to dissolve the marriage bond,
and the marriage of such husband or wife shall be dissolved if the
requirements of said Section are met.130 Parties to a Parsi marriage may seek
divorce on any of the grounds set forth in Section 32 of the Act. When a court
issues a divorce decree, the court must send a copy of the decree to the
registrar appointed under Section 7 of the Act for registration. The Registrar
shall enter the same in a register to be kept by him for the purpose, and the
provisions of Part II (Sees.3-17) applicable to Registrars and Registrars of
Marriage shall apply to Registrars and Registrars of Divorces, to the extent
possible.
The grounds for divorce as provided Parsi Marriage and Divorce Act,
1936 are as fallow.
“(a) That the marriage has not been consummated within one year after its
solemnization owing to the wilful refusal of the defendant to consummate it;
(b) That the defendant at the time of the marriage was of unsound mind and
has been habitually so up to the date of the suit.
(c) That the defendant was at the time of marriage pregnant by some person
other than the plaintiff.
(d) That the defendant has since the marriage committed adultery or
fornication or bigamy or rape or an unnatural offence.
(e) That the defendant has since the marriage voluntarily caused grievous hurt
to the plaintiff or has infected the plaintiff with venereal disease or, where the
defendant is the husband, has compelled the wife to submit herself to
prostitution.
(f) That the defendant is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian Penal Code.
(g) That the defendant has deserted the plaintiff for at least.
(h) That an order has been passed against the defendant by a Magistrate
awarding separate maintenance to the plaintiff, and the parties have not had
marital intercourse for [one year] or more since such decree or order;
130
V.S.Deshpande, Studies in Parsi Marriage and Divorce, JLSI, Vol. 20, No.l, 1982, Page
251.
99
===================================================================================
(j) That the defendant has ceased to be a Parsi [by conversion to another
religion].”131
e) Divorce Under Jews: There are no codified divorce laws for Jews. They
follow the customary laws. If the Jewish couples choose to register their
marriage under the Special Marriage Act of 1954, their divorce cases will be
resolved according to the requirements of the Special Marriage Act of 1954.
The Special Marriage Act is a secular optional statute that applies to all
people, regardless of their religious beliefs. Two people can either marry
directly under it or have their marriage registered under it if they are already
married under their personal laws. As a result, this secular optional law, which
provides proper matrimonial remedies including divorce, applies to all citizens
of the country, including Hindus, Muslims, Christians, Parsis, Jews, and
others.
4.4.3 MAINTENANCE
The term „maintenance‟ is not defined in any marriage laws of the religious
communities in India. However, the right to claim maintenance is founded on
the principle that the complainants have an insufficient means to maintain
themselves. The expenses for necessities or requirements for the substance of
life are often covered by maintenance. It is not, however, solely a right of the
claimant to live. When deciding on the amount of maintenance to be paid to
the parties, the court must consider the husband's and wife's possession of
property, the husband's ability to earn, the parties' behaviour, and other factors.
Before determining the amount of maintenance, the status of the parties and
the style of living they have enjoyed during the marriage must be taken into
account. Here we are going to study the position of maintenance under various
personal laws in India and trying to find out anomalies between them.
a) Maintenance under Hindu Law:

Maintenance relief is an ancillary relief that can be obtained only after filing
for the primary relief, such as divorce, restitution of conjugal rights, or judicial
131
Section 32 of Parsi Marriage and Divorce Act, 1936.
100
===================================================================================
separation. Furthermore, under matrimonial law, if the husband is willing to

cohabit with the wife, the wife's claim is usually dismissed. However, even if
she is not seeking divorce or any other important matrimonial remedy, a
married woman's right to live apart and claim maintenance has been
recognised only in Hindu law. The Hindu Adoptions and Maintenance Act of
1956 allow a Hindu wife to live separately from her husband without losing
her right to maintenance.
i) Maintenance of wife: The wife or husband can claim for interim

maintenance under Section 24 of the Hindu Marriage Act of 1955. The claim
for interim maintenance is based on the claimant's inability to maintain
himself or herself without a source of independent income. The clause is silent
on the amount of maintenance to be paid, leaving it to the judge's discretion to
decide. Similarly, if the claimant does not have an independent source of
income, support pendente lite must be paid, and the other spouse must cover
the financial necessity for litigation expenditures.
Interim maintenance is payable from the date of petition is filed until

the suit is dismissed or the decree is issued. The petitioner's urgent
requirements are meant to be met via interim maintenance. The purpose of
maintenance pendente lite is to cover the claimant's legal costs.
The maintenance is granted to the wife under Hindu Adoption and

Maintenance Act, 1956 after proving at least one of the grounds mentioned
hereinafter.
a. The husband has deserted her or has wilfully neglected her.
b. The husband has treated her with cruelty.
c. The husband is suffering from virulent form of leprosy/venereal diseases or
any other infectious disease.
d. The husband has any other wife living.
e. The husband keeps the concubine in the same house as the wife resides or
he habitually resides with the concubine elsewhere.
f. The husband has ceased to a Hindu by conversion to any other religion.
g. Any other cause justifying her separate living.
101
===================================================================================
ii) Maintenance of Children:

Section 20 of Hindu Adoption and Maintenance Act of 1956 impose an
obligation on the parents – both mother and father – to support their children
whether they are legal and illegitimate. This is a unique aspect of Hindu law,
in which both parents share equal responsibility for the maintenance of the
children. According to Section 20 (2) of the HAM Act Children are entitled to
maintenance during their minority, the daughter's claim to maintenance is
extended till she marries. Her parents are obligated to cover her wedding costs.
However, if a minor married daughter is unable to support herself after
marriage, she may file a claim for maintenance under S.125 of Criminal
Procedure Code of 1973. When an application is made under sections 24 and
25 of the Hindu Marriage Act, 1955, the children are also entitled to
maintenance if the claimant is responsible for their maintenance, i.e. the
claimant's right to maintenance includes the children's entitlement to
maintenance. Section 26 of the same Act also states that the court can issue
interim orders and establish provisions for the custody, maintenance, and
education of minor children in any process brought under the Act.
iii) Maintenance of Parents:

S. 20 of the Hindu Adoption and Maintenance Act of 1956 also establishes a
maintenance responsibility for elderly and infirm parents who are unable to
maintain themselves from their own work and property. The HAM ACT is the
first law in India to make it mandatory for children to support their parents.
The need to maintain does not just apply to boys but it also applies to
daughters. Both the mother and the father have an equal right to maintenance
under the HAM Act, 1956. The term parent is also used in this section
to include stepmother. It is significant to highlight that the provision only
applicable to those parents who are unable to maintain themselves.
b) Maintenance under Muslim Law:

It is a duty of every Muslim husband to maintain his wife, whether she is
Muslim or Kittabiyyah, rich or poor, young or old. However, if the wife is too
young for matrimonial intercourse, she has no right to claim maintenance from
her husband, whether she lives with him or with her parents. The husband's
102
===================================================================================
obligation to maintain his wife is only limited in circumstances where she is

disobedient and does not grant him full access at all reasonable times. If the
Muslim husband has not paid the first portion of the dower or if she refuses to
live with him because of his cruelty, he is obligated to support her. When a
spouse marries a second wife or has a mistress, the wife has the right to refuse
to live with him and also entitled to claim maintenance against him.132 During
the duration of the marriage, the husband is obligated to provide maintenance
to his wife as long as she remains faithful to him and follows his reasonable
orders. In one example, the court ruled that a disrespectful wife need not to be
maintained by husband.
Even throughout the iddat period, the widow was not entitled to
maintenance if the Muslim marriage was dissolved due to the death of the
husband.
According to the Privy Council, a woman is not entitled to

maintenance after the death of her husband under the law, because the
husband's entitlement to his property terminates when he dies. In the event of
a divorce, the wife is entitled to maintenance until the Iddat expires.133 The
right to maintenance of Muslim widow is discussed in brief in the six chapter
i.e. Role of Judiciary.
c) Maintenance under Christian Law:

The Indian Christian Marriage Act of 1872 and the Indian Divorce Act of
1869 deal with Christian marriage and divorce, respectively. The topic of
alimony pendent lite is dealt with in Sec.36 of the Indian Divorce Act,
1869[now replaced by The Indian Divorce (Amendment) Act 2001], under
which a wife alone can seek maintenance. The Hindu Marriage Act, on the
other hand, provides both spouses with maintenance allowance (Section 24).
Children's maintenance is not covered by Section 36. Permanent maintenance
is dealt with in Section 37 of the Indian Divorce Act, which allows the court to
make an order for the payment of a lump sum for permanent support. In this
132
Noor Saba Khatoon V. Mohd. Quasim AIR 1997 SC 3280.
133
Aga Mohd Jafar v.Noora Bibi, 1980 Cr.L.J. 1180.
103
===================================================================================
section, the husband might have his payment order changed from time to time
according to his financial situation. In each of these cases, the Court may issue
an order directing the husband to pay the wife such monthly or weekly sums
for her maintenance and support as the Court deems appropriate.
If the husband becomes unable to make such payments later for any
reason, it shall be lawful for the Court to discharge or modify the order, or
temporarily suspend it as to the whole or any part of the money so ordered to
be paid, and to reinstate the same order wholly or in part as the Court deems
fit. As per section 38 of Indian Divorce Act, 1869, In all cases in which the
Court makes any decree or order for alimony, it may direct the same to be paid
either to the wife herself, or to any trustee on her behalf to be approved by the
Court, and may impose any terms or restrictions that the Court deems
appropriate, and may appoint a new trustee from time to time if it appears to
the Court to be necessary.
d) Maintenance under Parsi Law:

Section 39 of the Parsi Marriage and Divorce Act, 1936, deals with alimony
pendent lite, which is awarded by the court based on the parties' financial
circumstances. According to section 40 of The Parsi Marriage and Divorce
Act, the court have an authority to issue perpetual alimony while issuing a
decree or later. The aforesaid Section 40 is founded on public policy and
directly on the idea of not enabling parties who have broken their marital
connections to become a burden on community charitable institutions.134
4.4.4 ADOPTION
Adoption in India is governed by personal laws, and due to the diversity of
religions practised in our country, there are primarily two sets of regulations in
place. Because formal adoption is forbidden in these religions, the Guardians
and Wards Act of 1890 governs Muslims, Christians, Parsis, and Jews. The
Hindu Adoption and Maintenance Act of 1956 is followed by Hindus, Sikhs,
Buddhists, and Jains. Adoption is a procedure in which one person acquires
134
B.P. Beri, Law of Marriage and Divorce in India, Eastem Book Company, Lucknow
(1988).
104
===================================================================================
parental responsibility for another, permanently transferring all parental rights

and duties, as well as filiation, from the biological parent or parents.
(i) Under Hindu Law:

Hindus are the one who recognises adoption in their personal law. Adoption,
according to Manu, is the "taking of a son, a substitute for male issue failure."
Thus, it is the gifting of a boy from his birth family to another family. He is
considered a son given if his father and another give him as a son, provided
the donee has no issue and the boy is of the same class and affectionately
disposed, the gift being confirmed by pouring water.
The origin of the adoption ritual is unknown in history, but it may have
been nothing more than a natural desire for a son as an object of devotion, a
protector in old age, and, finally, an heir. The duty that every Hindu has to his
ancestors to prepare for the continuation of the line and the solemnization of
the requisite rites lies at the heart of the Brahmanical theory of adoption.
However, as time passed and society became more organized, the number of
subsidiary sons decreased as people became less tolerant of the sexual
looseness that characterised many of them, and the value of adoptive sons
began to rise.135 When the Hindu Adoption and Maintenance Act of 1956 was
passed, the legislators had only the secular purpose of adoption in mind. A
daughter may be adopted under this Act, but she would be unable to provide
funeral cake or perform last rites for the deceased, and would only be able to
carry on the family line of the adoptive family. The Act makes no provision
for religious ceremonies to be performed at the time of adoption. It solely
specifies the giving and receiving ceremonies. Adoption becomes a secular act
as a result of this factor.136
The Hindu Adoption and Maintenance Act of 1956 made the following
amendments to the legislation concerning adoption: -
1) It is possible to adopt a female.
135
Raghavachariar N.R., Hindu Law: Principles and Precedents (1987) at pages 13-14.
136
Mathur Nimesh, Common Civil Code: Concept and Ideology at page 125.
105
===================================================================================
2) A virgin, divorcee, or widow is eligible to adopt, and in some cases, the

wife can adopt as well.
3) A male can only adopt with the approval of his wife or wives, if there are
any.
4) Except in limited circumstances, the father cannot give a child for adoption
without the approval of the mother.
5) Unless the custom allows it, the adoptee must be under the age of 15 and
unmarried.
6) The Datta homam ceremony is really not required.
7) The capacity to transfer property should not be taken away from an
adoptive mother or father solely because of the adoption of a child.
8) The provisions for the registration of adoption is introduced under this Act.
9) If a child of opposite sex is adopted, the adopter and adoptee must be at
least 21 years age difference.
10) The adopter and adoptee do not have to be from the same caste; all that is
required is that they are Hindus.
ii) Adoption under Muslim Law: Adoption is not recognised as a form of

filiation in Mohammadan law. Adoption is not permitted in Islam, as it is
forbidden by the Quran. It is referred to in Muslim law as "Acknowledgement
of Paternity."
The notion of paternity acknowledgement ensures the child's validity. In this
principle, the child is recognised as a legitimate child, which means his
paternity is confirmed. Adoption is handled a little differently under Islamic
law than it is in other cultures. „Kafala‟ is the Islamic name for what is often
referred to as adoption. Adoption, like everything else in Islamic Law, is
strictly controlled. Instead of a parent, a guardian/ward function is played.
There are particular regulations that govern this interaction. These rules are
primarily in place to protect the family line's integrity. Adoption is not
forbidden in any way. It is against the law to attribute one's adopted child to
106
===================================================================================
oneself as though they are biologically related. This is because Islam aims to
preserve biological lineage rather than complicate it.137
In Islam, there are a few laws that govern the concept of adoption:
1) An adopted child keeps his or her biological family name and does not
change it to fit the adoptive family's name.
2) Instead of inheriting from the adoptive parents, an adopted child inherits
from his or her biological parents.
3) If the biological family provides the kid with property, the adoptive parents
must take care not to mix that property with their own. They just act as
trustees.138
These Islamic norms underscore to the adoptive family that they are
trustees and custodians of someone else's kid, rather than taking the place of
the birth family. Their role is well-defined, but they are highly appreciated and
crucial.
It's also worth noting that in Islam, the extended family network is extensive
and powerful. It's unusual for a youngster to be entirely orphaned, with no
family to look after him or her. Before permitting someone outside of the
family, much less the community or country, to adopt and take the child from
his or her familial, cultural, and religious origins, Islamic law would prioritise
finding a relative to care for the child.139
iii) Adoption under Christian Law:

The Christian personal law do not recognise adotion, however an adoption
from an orphanage can be done by obtaining court permission under the
Guardians and Wards Act 1890. Personal law applies to adoption because it is
a legal affiliation of a kid. Christians have no adoption laws and have to
approach court under the Guardians and Wards Act, 1890. Only in foster care
can Christians take a child under the stated Act. When a foster child reaches
137
Thomas, Liris. “Legal framework governing Adoption laws in India- Academike, 4 Feb.
2015.
138
Ibid.
139
Ibid.
107
===================================================================================
the age of majority, he is free to cut all ties. Furthermore, such a child is not
entitled to inherit under the law. The Guardians and Wards Act of 1890 is the
general law governing guardians and wards. It expressly states that the father‟s
right is prioritise, and that no one else can be nominated unless the father is
proven unfit. This Act also states that when assigning a guardian, the court
must consider the child's welfare.140
In India, there is no particular law that allows or regulates Christian

adoption. Foster children are not treated as children in the eyes of the law
unless they have a statutory or customary adoption recognised by the courts.
When foster parents die, their inheritance is divided among the intestate legal
heirs, to the prejudice of foster children. Christians in India can adopt children
under section 41 of the Juvenile Justice (Care and Protection of Children) Act
2006, as well as different state government guidelines and rules.141
iv) Adoption under Parsi Law:

Adoption is not recognised in Parsi Law, as it is in Hindu Law. The Parsis are
fighting for their survival as a community. According to a poll of Parsis, a
number of issues contributed to the democratic challenge, all of which are
unique to the Parsi community. According to one census, the community's
strength will drop to 22000 when India's population is predicted to reach 1300
million. This was quite upsetting. As a result, the Parsi Panchayat agreed to
sponsor a third child. Panchayat should instead change legislation to allow
interreligious marriages and adoption of non-Parsi children, it was also
suggested. However, it should be highlighted that adoption is not recognised
as such, and it is only because of a community's social necessity that it is
permitted.142
140
Supra note 103.
141
Ibid.
142
Afzal Qutb, A treatise on Competing Faith Oriented Family Norms, Upright Study Home,
(1990).
108
===================================================================================
4.4.5 GUARDIANSHIP
A guardian is someone who is in charge of a child's health, needs, education,
and other basic requirements. In most cases, a father is the child's natural
guardian, and in his absence or death, the mother becomes the child's
guardian. Other than the mother and father, no one else can be the child's
natural guardian. When a person other than the child's father and mother has
legal custody of the child then it is considered that guardianship is formed. A
guardian has an authority over a child and has the authority to make all
decisions concerning the child. When someone other than the kid's mother and
father has legal custody of the child, the word guardianship is used. Because a
minor is physically and mentally defective and immature, and thus requires the
care, attention, and protection of another person, guardianship is appropriate
for a minor child under the age of eighteen.143
I) Hindu Guardianship:
The Hindu Minority and Guardianship Act, 1956, govern guardianship of
minor children in Hindu. According to section 4(a) of this Act, a minor is
defined as person under the age of eighteen years. A guardian, according to
Section 4(b) of the Act, is a person who is accountable for the child's care,
property, or both. The section goes on to describe the many categories of
guardians:
1) Natural Guardian.
2) Testamentary Guardian.
3) Guardian appointed by court.
Other than the above three types of guardian there are other two types of
guardian are there, which are 1) Guardians by affinity and 2) De facto
Guardian. Let‟s describe all these types of guardians under Hindu law.
i) Natural Guardian:
Only the mother, father, and husband are considered natural guardians,
according to Section 6 of the Hindu Minority and Guardianship Act, 1956. A
father or husband of a minor child or minor wife cannot be stripped of their
143
“Guardianship of a Child under Different Personal Laws - IPleaders.” IPleaders, iPleaders,
9 Mar. 2021, https://blog.ipleaders.in/guardianship-child-different-personal-laws.
109
===================================================================================
natural guardianship unless the court judges them incompetent to care for the
minor child or wife, according to Section 19 of the Guardians and Wards Act
of 1890. Section 13 of the Hindu Minority and Guardianship Act
1956, provides that the welfare of minor children is paramount, and that if the
court determines that a person's guardianship is not in the best interests of the
child, the court may remove that person from guardianship.144
Even if the father is alive, the mother is the natural guardian of minor
illegitimate children under Section 6(b) of the Hindu Minority and
Guardianship Act, 1956. The natural guardianship of the adopted son under
Section 7 is passed on to the adoptive father and, following his death, to the
adoptive mother. In the event of legitimate children, a mother can only
become a guardian after the father's death or inability to become a guardian.
Section 6(a) states that, the custody of a child under the age of five years shall
be with the mother unless the court determines that the doing so would be
harmful to the child's welfare.145
ii) Testamentary Guardian:

The natural guardian appoints a testamentary guardian through a will. A father
has the testamentary power to appoint a guardian for his legitimate children or
property, or both, under Section 9(1), but Section 9(2) states that if the mother
is alive after the father's death, she will be the guardian of the children, and the
father's will will be revived only if the mother dies without naming a guardian
by will. Under Section 9(4) of Hindu Minority and Guardianship Act of 1956
the mother of illegitimate children has the authority to appoint a guardian for
the children, property, or both. The guardianship of a minor girl ends when she
marries, and it does not come back even if she becomes a widow while still a
minor. The person chosen as a testamentary guardian must directly or
implicitly accept the guardianship. He has the right to reject to be the
guardian, but once he has agreed to be the guardian, he cannot withdraw or
quit until the court gives him permission.146
144
Supra Note 109.
145
Ibid.
146
Supra Note 109.
110
===================================================================================
iii) Guardian appointed by court:

Under the Guardians and Wards Act of 1890, the court can appoint a "certified
guardian" to look after a child. The Act also specifies the powers of the
certified guardian. District courts are given authority under this Act. If a
district court believes it is necessary for the child's welfare, it can appoint
anyone as the child's guardian. According to the Act, while appointing a
guardian for a child, the court must consider the child's sex, age, parental
wishes, and personal law. The Act considers the child's welfare to be of
primary importance, and any decision made by the court should be in the
child's best interests.147
iv) Guardianship by affinity:

The guardianship of a minor widow by a relative within the degree of sapinda
is known as affinity guardianship. A father-in-law can be a guardian by
affinity; however Section 13 of the Hindu Minority and Guardianship Act,
1956 specifies that the child's welfare must come first, so it's important to
make sure the minor widow is safe and that her needs are met by the guardian
by affinity.148
v) De facto Guardian:
The word "de facto guardian" is not specified in any statute, but the court has
always accepted it. A de facto guardian is someone who has consistently
shown an interest in caring for, controlling, or managing the child, his or her
property, or both. A de facto guardian is not a legal guardian, and so has no
legal authority over the child or the child's property, but he has assumed
responsibility for the child and the property. A de facto guardian is not formed
by a single or few acts, but rather by a consistent pattern of behaviour towards
the child's property. A de facto guardian is someone who has taken
responsibility for the land in good faith in order to save the estate.149
147
“Guardianship of a Child under Different Personal Laws - IPleaders.” IPleaders, iPleaders,
9 Mar. 2021, https://blog.ipleaders.in/guardianship-child-different-personal-laws.
148
Ibid.
149
Supra Note 113.
111
===================================================================================
II) Guardianship under Muslim Law:

Guardianship (Wilayat) can be granted to a person, property, or marriage.
There is guardianship of the person in the first instance. In Islamic Law,
guardianship of property is rarely appointed; instead, an executor (Wasi) is the
guardian of property. Marriage guardianship is a type of Wilayat, and the
marriage guardian is known as Wali.150 The Muslim rule of guardianship is
based on a few texts in the Quran and a few hadis. There are just three sorts of
guardians in Muslim law:
i) Natural Guardian:
The sole father is considered the natural guardian of a child in Muslim law,
and the mother is not considered a natural or other guardian even after the
father's death. Even if the child's custody is not with him, the father is
considered the child's only natural guardian and has authority over all
decisions concerning the child. The guardianship of the father is only upon his
legitimate children. He is not entitled to guardianship of the illegitimate
children. A Muslim mother may have custody of her children, but she is not
permitted to be their guardian.
The father is the natural guardian of a child in Sunnis, and the

guardianship is given to the executor following the father's death. The father is
the natural guardian of Shias, however after his death; the guardianship is
handed to the grandpa, if he is still living. If the grandfather is alive then the
guardianship will be vested upon him even though the father has appointed an
executor. Only in the absence or after the death of the grandfather would the
executor become the guardian. If the grandfather names an executor before his
death, the executor named by the grandfather becomes the guardian following
the grandfather's death.151
150
Yusuf M.Khan, Mohammadan Law Relating to Marriage and Divorce, Tagore Law
Lectures, Thackers-Sprink company, Calcutta(1990) at pages 214-215.
151
Ibid.
112
===================================================================================
ii) Testamentary Guardian:

The term wali, guardian, amin, or kaim-mukam refers to a testamentary
guardian. In both Shia and Sunni traditions, the father can designate a
testamentary guardian. In Sunnis, the grandfather has the authority to
designate a testamentary guardian in the absence of the father and his
appointed executor. In Shias, the father's guardian is only legitimate if the
grandfather is deceased; otherwise, the grandfather has the authority to
designate the testamentary guardian. Both Shias and Sunnis believe that the
mother has no authority to appoint a guardian for her children.
A mother can be appointed as a testamentary guardian or executrix of a

child by the will of father or grandfather. A non-Muslim mother can be named
a testamentary guardian for Sunnis, but not for Shias. A squanderer cannot be
appointed as a guardian since it will be detrimental to the child's welfare. A
testamentary guardian must directly or impliedly accept the guardianship.
Once the guardianship is approved, it can only be revoked or relinquished with
the court's approval.152
iii) Guardianship appointed by court:

When natural and testamentary guardians fail, the court has the authority to
appoint a guardian for the child. The Guardians and Wards Act of 1890
governs the appointment of a guardian for a child from any community. The
Act empowers the district court to appoint a guardian after evaluating the
child's best interests. The High Court also has the authority to appoint a
guardian for a juvenile, which it only does on rare occasions.
III) Guardianship under Christian Law:

The Guardianship and Wards Act, 1890, which is a secular Act, determines
the guardianship of Christians. According to Section 17 of the Act, the
guardian for the child's property must be chosen with the child's best interests
in mind. The section stipulates that the guardian must be chosen after taking
into account the child's sex, age, religion, the prospective guardian's character
152
Supra Note 113.
113
===================================================================================
and capacity, the preferences of the child's parents, and, if the minor child is
mature enough, his preference.
When the father or husband is fit to be the guardian of the child or wife,
Section 19 of the Act states that the court has no power to appoint a guardian
or when the property is under the control of the Court of Wards. Section 24
indicates that the guardian should have custody of the kid and that it is the
guardian's responsibility to care for the child's health, education, and other
needs.
IV) Guardianship under Parsi Law:

The Guardianship and Wards Act of 1890 governs a child's guardianship of
Parsi. The Parsis do not have their own personal guardianship legislation. It is
mostly regulated by Hindu customs and regulations. In addition, Muslims,
Christians, and Parsis have no personal rules regarding adoption. The
Guardianship and Wards Act of 1890 requires them to go to court. A child can
only be taken for foster care. Once he reaches the age of majority, he has
complete autonomy over his decisions.
4.4.6 SUCCESSION
Succession deals with the transfer of property after the demise of an
individual. The law of succession is a set of rules that governs the inheritance
of property. In simple words, it refers to the process through which an
individual's property is transferred to others, granting them ownership rights.
You will purchase several properties over your life. Your estate is made up of
all of these properties put together. Your estate must find new owners once
you die. It will be left in a 'ownerless' estate otherwise.
As a result, when you die, your estate will pass to new owners. it is
called Succession or Inheritance . The successors to your estate are the next
proprietors of your estate. The law that oversees this entire procedure is called
succession law. Inheritance is not the same as succession. The process of an
heir inheriting his ancestors' property is known as inheritance. The manner in
which an inheritance is passed down is governed by succession. A succession
114
===================================================================================
certificate is necessary under Indian succession law. A Succession Certificate

is verifiable proof that the person who obtains it is the legitimate successor.
Types of Succession:
There are two types of succession:
1) Testamentary Succession.
2) Intestate Succession.
The succession of your estate will be testamentary or intestate after

your death. It's impossible to be both at the same time. If you have left a Will,
your estate will be passed down in a testamentary manner. Otherwise, your
estate will be passed down intestate.
1) Testamentary Succession:
Executing a will is what testamentary succession is all about. The distribution
of your property among your legal heirs would thereafter be governed by a
will. The following information is included in a will:
a) Who inherits your inheritance, and
b) How is your estate divided among your heirs?
Your legatees are the people that you name in your will. Your legatee can be
anybody you want. It is not necessary for a legatee to be a family member. He
can be outside of your family.153
Wills are made and enforced under the Indian Succession Act of 1925.
In India, it is the law that governs testamentary succession. Except for
Muslims, the Indian Succession Act of 1925 applies to everyone. Muslims
have their own set of rules that govern them. A will allows you the
opportunity to divide your assets as you see fit. If you are a Muslim, however,
you cannot bequeath more than 1/3 of your property through a Will unless
your lawful heirs agree. This restriction is not applicable to the other
religions.154
153
https://www.legalkart.com/legal-blog/what-does-the-succession-law-say.
154
Ibid.
115
===================================================================================
If you are not a Muslim, you can use the Indian Succession Act, 1925 to make
your Will. If you are a Muslim, you must follow the Muslim personal laws
when executing your Will. Make a written record of the will and sign it. Your
thumb impression can likewise be affixed to the Will. The Will must be
attested by two witnesses. You should have signed the Will in front of these
witnesses. On plain paper, a will can be written. A will does not have to be
written on stamp paper. It is also not required to register.
Muslims can have their Wills carried out in a significantly more

straightforward manner. It is not necessary to sign or write your will. It could
even be done orally. Witnesses are not required for attesting the will.155
2) Intestate Succession:
Your property will pass through Intestate succession if you die without leaving
a Will. In India, the laws governing intestate succession are not universal.
Your religion's personal law governs your property. In India, different
religions are governed by different intestate succession laws. For example,
The Hindu Succession Act of 1956 covers Hindu intestate succession. The
Indian Succession Act of 1925 governs Christian intestate succession. As a
result, if you are a Hindu, the Hindu Succession Act of 1956 will apply,
whereas if you are a Christian, the Indian Succession Act of 1925 would
apply. While different laws apply to different religions, the fundamental
provisions of all laws are the same. The new owners of your estate will be a
select group of people. These people are referred to be your legal heirs.156
Each of your lawful heirs will receive a portion of your estate. As a

result, the applicable Intestate Succession Law will identify your legal heirs as
well as the shares of your estate that each legal heir is entitled to inherit.
Consider the case of a Hindu man who is married. If you are a Hindu married
man, your legal heirs are usually your wife, kids, daughters, and mother. They
each will get an equal portion of your estate. If you leave a son, a daughter,
and a wife behind, each of them will be entitled to an equal amount of your
155
Supra Note 119.
156
Ibid.
116
===================================================================================
estate. Your grand-daughter would have a right to the property through her
deceased mother if your daughter is already died and is survived by her
daughter.157
I) Succession under Hindu Law:

The following three sources contain the Hindu Law of Succession:
1) The Indian Succession Act of 1925, which governs the testamentary
succession of Hindus.
2) The Hindu Succession Act of 1956, which governs the intestate succession
of the property of Hindus.
3) With the exception of some eastern parts, the Hindu Joint Family Property
succession is still governed by old religious traditions in practically all of
India. This is only a small part of the Hindu Succession Law.
The Hindu Succession Act of 1956 which is amended in the year 2005
lays out the provisions governing intestate succession. This Act applies to
anybody who is legally defined as a "Hindu," which includes Jains, Buddhists,
and Sikhs. The Hindu Succession Amendment Act, 2005 has now given
daughters an equal succession rights. The Hindu Succession Act of 1956 was
enacted to fulfil the needs of a modern society. It eliminates inequities in
property rights between men and women, and it expands the list of heirs
entitled to succeed on intestacy based on natural love and affection rather than
religious efficacy.
The main features of this Act are as follows:
(a) All Hindus, Buddhists, Jains, and Sikhs are covered by the Act, but
Muslims, Parsis, and Jews are not. (Section 2)
(b) The Act abolished the transferable estate and its special method of
succession
(Section 5).
(c) The Act does not apply to the property of a person who is married under
the Special Marriage Act of 1954.
(d) Mitakshara coparcenary property has undergone a transformation.
157
Ibid.
117
===================================================================================
(e) The Act establishes a succession order based on the concept of love and
affection. Act has repealed the rule of preference based on the right to offer
Pinda or blood propinquity.
(f) The Act does not distinguish between male and female heirs;
(g) The Act repeals portions of various Acts relating to succession under the
Matherchal system, which is prevalent in the south.
(Section 7)
(h) The Act established a consistent order of succession for male Hindu
property. (Sections 8 and 13)
(i) The Act established a consistent code for determining succession rules.
(j) The Act removed Hindu women's restricted estate and made them absolute
owners of property, including those in their lawful possession at the time of
the Act's inception (Sec, 14).
(k) The Act also established a uniform succession order for female Hindu
property. (Section 16-17.)
(l) Where the relationship is the same in other ways, the full blood shall
exclude half-blood (Sec, 18).
(m) When two or more heirs accede to an intestate's property, they shall divide
it per capita rather than per strips and as tenants in common rather than joint
tenants.
(n) The right of a child in the womb at the time of the intestate's death and
afterwards born alive must be traced back to the date of the intestate's death.
(Section 20)
(o) The Act allows an unmarried woman, a widow, or a woman who has been
abandoned or separated from her spouse to live at her father's home.158
(p) A convert's descendant has been disqualified from inheriting the property
of Hindu relatives,
(q) Disease, defect, or deformity is not a ground of exclusion from inheritance
under the Act.
(r) The Act allows a male Hindu to wilfully dispose of his Mitakshara
coparcenary property interest.
158
The Hindu Succession (Amendment) Act, 2005, altered Section 23.
118
===================================================================================
Hindu Succession (Amendment) Act, 2005:

The Hindu Succession (Amendment) Act, 2005, which was enacted by the
Rajya Sabha on August 16, 2005, and the Lok Sabha on August 29, 2005, and
then signed by the President of India on September 5, 2005, has had a
significant impact on the Mitakshara Hindu coparcenary concept. Because the
daughter is treated like a son under the Hindu Succession Amendment Act of
2005, the concept of Mitakshara coparcenary has been severely harmed. By
virtue of her birth, she is entitled to a share of the coparcenary. She is a
coparcener in her own right in the same way that the son is; she is not only
given the coparcenary right as the son, but she is also given all of the rights
that the boy has in the coparcenary.
Separate property is not covered by the Hindu Succession

(Amendment) Act 2005. Daughters, on the other hand, are included as
coparceners in the Mitakshara joint family property, with the same rights to
shares, claim partition, and become Karta as sons, as well as sharing the
responsibilities. Furthermore, the Act balances the heirs of predeceased sons
and daughters by recognising two generations of predeceased daughters'
children as Class I heirs, as was previously the case for sons.
The most major shift, which makes all daughters (including married
ones) co-owners of joint family property, is also crucial for women, both
monetarily and symbolically. It can improve women's economic security by
granting them birth rights to property that cannot be willed away by men. This
is a significant victory in a male-dominated society where wills frequently
disinherit women. Women can also become Kartas of the property, as
previously stated. All of this signifies that sons and daughters are equally
valued members of the parental household. It disproves the concept that a
daughter belongs only to her husband's family after her marriage. If her
marriage fails, she has the legal right to return to her paternal home, rather
than being forced to do so by family. In both parental and marital homes, this
will boost her self-esteem and social worth, as well as provide her more
bargaining power for herself and her children.
119
===================================================================================
The elimination of Section 23 of the Hindu Succession Act, 1956,

would also benefit married daughters, as they will now have residence and
partition rights in the parent‟s dwelling house under the 2005 Amendment Act.
Women who are victims of domestic violence, in particular, will have a safe
haven. The only disadvantage is that enabling division may make ageing
parents more vulnerable. If the family just had one home, a better option
would have been to prohibit both sons and daughters from pursuing divorce
during their parents' lives.
II) Muslim Succession Law:

Under Muslim law, succession refers to the transfer of property from a
deceased person's estate to the legitimate heir. When a Muslim dies, his entire
estate can be passed on to his heirs, whether he obtained it himself or received
it from his ancestors.
The Muslim Personal Law (Shariat) Application Act, 1937 governs

non-testamentary inheritance under Muslim law. In the case of testamentary
succession, the relevant Muslim Shariat Law as it applies to Shias and Sunnis
governs the succession.159
The Muslim Law of Succession is founded on the following principles:

1) It is governed by the rules laid out in the holy book Quran.
2) Hadis and Sunnah have rules on the subject.
3) The customs and practises that are now in use.
4) The Ijma, Qiyas, and Fatwas created rules.
5) Acts and statutes relevant to the succession of Muslim law.
General Principals of Succession under Muslim Law:

General Principals of succession under Muslim law is discussed as under:
1. In Muslim law, all property passes down through the succession. There is
no distinction made between movable, immovable, self-acquired, or ancestral
property.
159
https://www.writinglaw.com/succession-under-muslim-law.
120
===================================================================================
2. Under Muslim law, heirs do not inherit any rights by birth, regardless of the
nature of the property. At the death of an ancestor, the right to inherit arises.
3. After appropriations such as debts, valid legacies, and statutory duties have
been made out, the heirs can only claim their part of what is left.
4. Muslim law does not distinguish between males and women's rights. On the
death of an ancestor, both a female and a man can become the legal heir of the
property.
5. A widow is not barred from inheriting under Muslim law. After paying for
the deceased husband's burial expenses and debts, a Muslim widow with no
children is entitled to a quarter of the deceased husband's property.
6. When a Muslim dies without an heir, his property is inherited by the
government through the escheat process.
7. There is no reciprocal right of succession or inheritance in step
relationships.160
Heirs under Muslim Law:

Heirs under Muslim Law are classified under following categories:
1) Sharers.
2) Residuary.
3) Distant Kindred.
1) Sharers:
They are the Quranic heirs, and according to the Quran's regulations, they are
entitled to a certain share of the property. They are total 12 in number. The
following are the details:
(1) Husband,
(2) Wife,
(3) Daughter,
(4) Daughter of a son (or son's son, etc.),
(5) Father,
(6) Paternal Grandfather,
(7) Mother,
160
Ibid.
121
===================================================================================
(8) Grandmother on the male line,

(9) Full sister,
(10) Consanguine sister,
(11) Uterine sister, and
(12) Uterine brother.
2) Residuary:
They are also referred to as agnatic heirs because they are solely related to the
deceased through men. They are entitled to a part of the property's residual
value. After the sharers have taken their assigned share, they are entitled to a
fraction.161
3) Distant Kindred:
The property will devolve upon the distant kindred if the sharers and residuary
are not present. They are the offspring of the uterus (persons descended from
common mother but by different husbands).162
Doctrine of Aul:
In most cases, the deceased's property is equal to the total shares of the heirs.
There may be times when the amount of property to be distributed is less than
the number of shares stipulated in the Quranic property distribution. When the
total number of shares exceeds one, a common denominator is used to lower
each person's share. The denominator is subsequently increased to total shares,
and the shares are then allotted according to the new denominator.163
Doctrine of Radd:
In Maximum Situation, the deceased person's property is equal to the heir‟s
entire shares. However, in some circumstances, the available property exceeds
the shares stipulated in the Quranic property allocation, and there is no
residuary. The surplus is returned to the sharers, not to distant relatives.164
161
Supra Note 125.
162
Ibid.
163
https://www.writinglaw.com/succession-under-muslim-law.
164
Ibid.
122
===================================================================================
In India, the Indian Succession Act has taken the role of Islamic law,
and the following plan has been established. The payments must be made in
the following order:
(a) Funeral and death-bed expenditures;
(b) Obtaining probate or letters of administration expenses.
(c) Wages for services performed to the dead by a labourer or servant within
three months of his death.
(d) Prioritization of debt.
(e) After all of the aforesaid payments have been completed, legacies of not
more than 1/3 of the remaining balance.165
III) Christian Succession Law:

This chapter discusses the Inheritance Laws that apply to Christians in India.
All other religions, including Christians, are protected by the Indian
Succession Act, which was passed in 1925. On succession and familial
relations, Christians have a variety of laws. The Indian Succession Act, 1925,
established the standards for Christian succession; however customary
traditions have an impact on inheritance principles. The Indian Succession
Act, 1865, was enacted by the British Indian Government and applied to
Christians. The Indian Succession Act, 1865 was later replaced by the Indian
Succession Act, 1925, which now controls Christian inheritance.166
This Act recognizes three types of heirs for Christians:-

1. Spouse
2. Lineal Descendants
3. Kindred
Lineal Descendants:
The term "Lineal Descendant" means "A Descendant born out of a valid
marriage,". As a result, an illegitimate son or daughter of a daughter, or any
other illegitimate issue, cannot be considered a "Lineal Descendant." Within
165
See Indian Succession Act 1925.
166
https://districts.ecourts.gov.in/sites/default/files/team%20ii.pdf.
123
===================================================================================
the sense of the legislation, an illegitimate child is not a child. As a result, such
a child is not entitled to any of his or her parents' property.167
Kindred:
"Kindred" refers to blood connections formed through a legal marriage. As a
result, the Act does not consider illegitimate birth relations as Kindred.
Kindred does not include affinity relationships such as mother-in-laws,
stepmothers, and stepfathers. As a result, a stepfather or stepmother has no
legal claim to the property of his or her stepchildren. In the event of a father-
in-law, the situation is the same.168
Christian law only recognises valid marriages and does not recognise
children born out of wedlock. Polygamous marriages are also not recognised
by the law. Despite the fact that the legislation does not clearly declare so, it
has been decided that adoption is recognised and that an adopted kid is
deemed to have all of the rights of a natural-born child.
Section 2(d) of the Indian Succession Act, 1925 defines “Indian

Christian” It means, “a native of India who is or in good faith claims to be, of
unmixed Asiatic Descent and who professes any form of the Christian
Religion.”
The succession to a deceased person's estate is determined by the

deceased person's religion. In a nutshell, succession refers to how a deceased
person's property is distributed to his heirs. This property might be inherited or
acquired by the owner, and it could pass down in one of two ways.
1) By Testamentary Succession.
2) By Intestate Succession.
Testamentary Succession among India Christian:

A will is a statement of a person's wishes that will only come into effect after
his death. To make a legal will, a testator must have a testamentary purpose
167
Ibid.
168
Ibid.
124
===================================================================================
that he expresses in writing and intends to be carried out only after his death.
Part VI of the Indian Succession Act, 1925, deals with testamentary
succession. Sections 57 to 191 of Part VI of the Act cover all aspects of wills
and codicils, including their creation and enforcement, as well as capacity and
formalities for creating a will. Every person of sound mind who is not a
juvenile may dispose of his property by will, according to Section 59. Married
women, as well as deaf/dumb/blind people who are unable to form a will, have
the right to dispose of their property by will. Pre-requisites to the process
include mental clarity and the absence of intoxication or other condition that
renders a person incapable of comprehending what he is doing.169
Intestate Succession among India Christian:

Intestate Succession is defined in Section 30 of the Indian Succession Act,
1925 as "a person is presumed to die intestate in respect of all property of
which he has not made a testamentary dispossession capable of taking effect."
As a result, any property that has not already been gifted or assigned according
to legal process would devolve according to the rules provided in Chapter II of
the Act following the death of the owner, in so far as he is an Indian Christian.
A person is presumed to have died intestate in respect of his entire estate if he
has not made a testamentary disposition of his property that is capable of
taking effect. Intestacy can be complete or partial. When the deceased does not
successfully dispose of any beneficial interest in any of his property by will, it
is known as total intestacy. Partially intestacy occurs when the deceased
effectively disposes of some, but not all, of the beneficial interest in his
property by his will.170
If we study anomalies between various personal laws in India, We are on

conclusion that Uniform civil code is a need of an hour.
169
https://districts.ecourts.gov.in/sites/default/files/team%20ii.pdf.
170
Supra Note 135.
125
===================================================================================
4.5 The Goa Civil Code as a possible model for other parts of
India
Goa is the only state in India which has uniform civil code that applies to all
citizens, regardless of religion, gender, or caste. Goa's family law is similar to
that of the rest of the country. As a result, Goa is the only Indian state with a
uniform civil code. In Goa, Hindus, Muslims, and Christians are all subject to
the same marriage, divorce, and succession laws. When Goa became a union
territory in 1961, the Goa Daman and Diu administration Act 1962 authorised
the Portuguese civil code of 1867 to be applied to Goa, with the competent
legislature having the authority to amend and repeal it.
Dr. Noronha is sure that the Goa civil code may be used as a model for
the rest of India. He claims that everyone in Goa, including the less educated,
follows the substantive concepts of the code and is aware of them. The
Portuguese civil code and other regulations, he said, are a significant practical
and operational aspect of Goa's heritage since they are deeply embedded in the
minds and emotions of people in Goa.171
In some ways, the condition of personal law in Goa indicates a heterogeneous

legal system, influenced by the state's legal and political history. The current
legislation is mostly based on the Cordigo Civil Portuguese Code, or the
Portuguese Civil Code of 1867. In 1910 and 1946, the Portuguese Civil Code
was revised. The code applies to all communities, but it makes some exclusion
for specific portions of Goa's communities. As a result, Hindu men have the
right to qualified polygamy; they can have a second wife in specific conditions
depending on the usages and customs of gentile Hindus in Goa, Daman, and
Diu.172
The Portuguese Civil Code was recognised by the Muslim population

in Goa. An attempt in 1981 to bring Indian law to Goa was successfully
171
Understanding the Common Civil Code: An Introduction to Civil Law, Dr. Noronha
Pg.141-142, 2008.
172
126
===================================================================================
resisted by Goan Muslim youth groups and women's organisations. Despite

the backing of Goa Muslim Sharia organisations for such a move, the civil law
is largely applied in Goa. It can be considered as a effective model for an
uniform civil code in India, despite the fact that it is not strictly uniform and
allows for certain exceptions. The exceptions provided by the Goa civil code
cover a wide range of topics. The law of marriage is one aspect. The civil code
of Goa recognises three types of marriage: Catholic marriages, Catholic
marriages not supervised by the Catholic Church, and non-Catholic marriages.
Catholics have the option of marrying in a catholic church. In this scenario,
the church is also in charge of the registration.173
In the public and academic debate over the construction of a Uniform

Civil Code, as required by Article 44 of the Indian constitution, Goa can
surely serve as an instructive model. The fact that its provisions provide
exceptions and special arrangements as a result of Goa's unique historical
context further adds to the case for revising it. This is because it demonstrates
how sensitive the Goa code was, and how it was founded on consensus rather
than unilateral imposition. It also achieved the goal of establishing a civil code
that would be accessible to all communities, subject to certain agreed-upon
exclusions. The alternate strategy is to allow each of India's communities to
introduce parliamentary legislation to update the laws that apply to them. This
is inefficient and insufficient in terms of providing the necessary legal
solutions to societal change and changing issues.174
173
Supra note 77.
174
127
===================================================================================
CHAPTER 5
IMPLEMENTATION OF UNIFORM CIVIL CODE:

In this chapter, the researcher has analysed the initiatives undertaken in India
to reform personal laws. This topic has been split into two sections. The pre-
independence history is covered in the first section, and the progress achieved
in the post-constitutional period is addressed in the second. This chapter deals
only with the contribution made by the legislature and executive in India. The
role of the judiciary in the advancement of uniform civil code in India will be
discussed in a separate chapter.
5.1 Efforts made before independence:

The effort of reforming personal laws began during the British period. As you
are all aware, the British had a strong desire to preserve political control over
India. As a result, they were uninterested in reforming India's personal laws.
While ruling in India, they followed a policy of non-interference from the
start. They were appointed Law Commissions during the British government
to alter certain laws. In that period, several religious and customary laws were
in effect. As a result, it was necessary to codify these laws. An important
function of the law commission is to work for legal reform. The Second Law
Commission which was held in the year 1853 was against the codification of
the personal laws. Following was the observation of Law Commission,
“But it is our opinion that no portion either of

Mohanunedan Law or Hindu Law ought to be
enacted as such in any form by a British legislation;
such legislation, we think, might tend to obstruct
rather than promote the gradual progress of
improvement in the state of population….Secondly,
the Hindu Law and Mohammedan Law derive their
authority respectively from Hindu and Mohammedan
religion. It follows that British Legisiature cannot
128
===================================================================================
make Mohammedan or Hindu religion; no, neither

can it make Mohammedan law or Hindu law.”175
Because Hindu family law is flexible and has an inherent potential to

evolve, Britishers had little difficulty for adapting it. This statute has changed
as a result of court interpretations and legislation. The social status and legal
statuses of Hindu women were given a lot of thought. The writers of the
Dharmashastras, as well as the corrupt norms that developed in Hindu culture
under Muslim rule, were responsible for weakening and unequalizing the
social standing of Hindu women. A number of acts were introduced to better
their situation, including the Hindu Widow's Remarriage Act of 1856, which
legalised the remarriage of Hindu widows at the request of a reformist Hindu
portion. The Hindu Women's Right to Property Act of 1937 followed, giving
Hindu women greater property rights than they had previously. This Act
revolutionised Hindu law in the areas of joint family, coparcenary, partition,
inheritance, and so on.
Similarly, the Hindu Married Women's Right to Separate Residence

and Maintenance Act was enacted in 1946, allowing a Hindu woman to claim
separate residence and maintenance from her husband under certain conditions
specified in the Act, even though the marriage was not dissolving. In the
pretext of religious rituals, a few statutes were also passed to repress some
unpleasant social practises that existed in the culture. One of them was Sati.
Lord William Bentick was a staunch opponent of the practise, and it was
outlawed. The Child Marriage Restraint Act was created in 1929 to discourage
existing child marriages. The British were not particularly passionate about
improving the lives of Hindu women. However, several reformers forced them
to appoint a committee in 1940, chaired by Jagannadha Rao, J., to examine the
different initiatives that may be done in this direction. The Committee
presented their findings, which was eventually used as a guide by the Indian
government.
175
Agrawal, KB. Advisability of legislating a Uniform Indian Marriage code, In Imam
Mohammd (ed.) Minoritied and the law, (1972), 442-443.
129
===================================================================================
The British administrators' non-interference approach in the case of

Hindu law was reflected much more tenaciously in the case of Muslim law.
The changes in Hindu law were significantly more significant than those in
Muslim law. Because of a false and erroneous idea that Muslim law is
completely resistant to change and devoid of flexibility and dynamism, only a
few adjustments have been achieved through legislation. As with other
personal laws, Muslim law is subject to two forces pulling in opposed
directions. On the one hand, there are conservative forces attempting to
maintain Muslim law in its current form, strictly in accordance with the Quran
and Hadith, while on the other hand, there are forces attempting to amend
ancient legislation to meet changing societal requirements.
The first law commission was established in the year 1934 under the
chairmanship of Lord Macauly. He recommended the codification of the
Indian penal code and the Criminal Procedure Code. In 1853, 1861, and 1879
respectively the second, third and fourth law commissions were constituted.
The 2nd Law Commission Report of 1853 emphasised the need for uniformity
in the codification of Indian Laws relating to crimes, evidence, and contracts,
but cautioned that codification should not extend to matters such as Hindu and
Muslim personal laws, which were based on their respective religions.176 The
British were not particularly passionate about changing the situation of Hindu
women. However, a group of reformers persuaded them to appoint a
committee in 1940, chaired by Jagannadha Rao, to examine the different
initiatives that may be taken in this direction. The committee presented their
findings, which were eventually used as a guide by the Indian government.177
Before independence British Indian Government had codified some important
civil laws. They are as follows:
1) Hindu Widow Remarriage Act, 1856

2) Indian Divorce Act, 1869
3) Indian Christian Marriage Act, 1872
4) Married women‟s Property Act, 1874
176
www.penacclaims.com.
177
Kumar, Dr. Ranjan. The Need for a Uniform Civil Code. First, Pilgrims Publishing, pp.
172-173.
130
===================================================================================
5) Indian Minority Act, 1875

6) The Guardianship and Wards Act, 1890
7) Hindu Inheritance (Removal of Disabilities) Act, 1928
8) Parsi Marriage and Divorce Act, 1936.
9) Hindu Women‟s Right to Property Act, 1937
10) Muslim Personal Law (Shariat)Application Act, 1937
11) Dissolution of Muslim Marriage Act, 1939.etc
5.2 Efforts made after independence:

Directive Principles' uniform civil code is not a justiciable article of the
Constitution. We've already discussed the grounds for the Directive Principles'
existence and the founding fathers' compulsion to include UCC in the
Directive Principles. Even at the Constituent Assembly, it was believed that if
the State failed to achieve the Directive Principles, nothing could be done. In
response to such anxieties, Dr. Ambedkar remarked that in a democracy,
voters would evaluate the government's performance at the time of election
and teach a lesson if the administration failed to meet the Directive Principle's
aims.178 It is true that in free India, successive governments have showed the
bravery to follow a few directive principles in order to court people. Even this
component, however, has failed to deliver any favourable results. In India, the
UCC. Indeed, vote politics has become one of UCC's most significant
roadblocks. The UCC has served as a rallying point for secular and
progressive elements of Indian society since the country's independence. A
famous muslim lawyer made one of the first requests for enacting a UCC in
free India.
As we are aware that Art. 44's obligation is not limited to the legislature; it
uses the term "state" to refer to the Government and Parliament of India, as
well as the Government and Legislatures of each of the States, as well as all
local and other authorities within India's territory or under the control of the
Government of India. Art. 44 state that the state must "encourage" the creation
178
Vll CAD. PP. 494-95.
131
===================================================================================
of a UCC. It also means that the state cannot pass a UCC in a straight-forward
manner. However, as we previously stated, a clear mandate is not required for
the enactment of the UCC, and the Parliament has the requisite competence to
do so under entry 5 of list Ill of the VIIth schedule of the Indian Constitution.
Because they were aware of the actual challenges that future rulers would
confront, our founding fathers purposefully employed the expressions
'endeavour' and'secure' in art.44. They hoped that by the end of the
evolutionary era, both the legislature and the government would have educated
society on the importance of adopting UCC and enforcing it.
Article 44 of the Indian Constitution establishes the notion of a uniform civil

code. This article is part of a set of non-justiciable directive principles of state
policy. Article 44 imposes an obligation on the state to ensure that citizens
have access to a Uniform Civil Code throughout India. As previously stated,
the current article is not justiciable in nature, and as a result, the state has yet
to codify legislation in this regard. After 1947, Independent governments
made few attempts to secularise the personal laws in India. In respect of it, the
following laws are passed in the free Indian Parliament.
1) The Special Marriage Act, 1954.

2) The Hindu code of 1955-56.
3) The Dowry Prohibition Act, 1961.
4) Medical Termination of Pregnancy Act, 1971.
5) Juvenile Justice (Care and Protection of Children) Act, 2015
5.2.1 The role of Special Marriage Act in advancement of Uniform Civil

Code:
The Special Marriage Act of 1954 was a watershed moment in India's
secularisation of personal laws. The Act establishes a common or uniform
marriage for all Indian citizens, regardless of religion or caste. As a result, any
Indian citizen can marry beyond the scope of a certain strict religious rule.
C.C. Biswas, while proposing the bill in the Lok Sabha, stated that the bill was
an attempt to establish a consistent regional law of marriage for the entire
132
===================================================================================
country.179 This law is practiced and is being prevailing in our country so that
the couple can have their marriage outside the limits of their own personal
law. This law is applicable everywhere except the state of Jammu and
Kashmir because of Article 370. This law is almost quiet similar to Hindu
marriage act 1955. This act determines polygamy as illegal. The practice of
divorced shall also governed by such law, if marriage contracted. But for
divorce there are certain sections that are only followed in the region of Goa
like Muslim people who have got their marriage registered cannot have more
than one wife. Moreover under Special Marriage Act the consent of both the
contracting parties to the marriage is essential for getting the certificate is
issued. Under Section 12 (2) of the said act, party is free to solemnize the
marriage as per their own form. So this kind of religion neutral law can be said
to be the foundation stone for UCC. Furthermore, the approval of both
contracting parties to the marriage is required for the certificate to be issued
under the Special Marriage Act. Parties are free to solemnise the marriage in
their own way under Section 12 (2) of the abovementioned laws. As a result,
this type of religion-neutral legislation might be considered the cornerstone of
Uniform Civil Code.180
Inter-religious marriage is a union between people who belong to two

different religions. The Special Marriage Act is a one-of-a-kind law that was
enacted to allow for a special sort of marriage by enlisting in which the parties
to the marriage do not have to forsake their religion. As stated in the preamble
of Special Marriage Act, the purpose of this Act is to create a special form
marriage in specific circumstances, to register such and other marriages, and
to provide for divorce. We are apprehensive to put the Uniform Civil Code
into effect. Although India has a consistent criminal law, it does not have a
uniform civil code. Individuals' religious beliefs are served by the country's
personal laws. Indian citizens are regulated by their personal laws in civil
matters such as marriage, divorce, property, and succession. In the case of
179
Zoya Khan v. State of UP.
180
https://www.jusdicere.in/desirability-of-uniform-civil-code-in-india-need-of-the-hour/.
133
===================================================================================
marriage and related concerns, this Act takes a different approach, as it

extends to specific individuals regardless of their religious affiliation.181
Under this Act, the parties must file a notification with the Marriage
Registrar in the region in where at least one of the party to the marriage has
resided for at least 30 days prior to the date on which such notice is being
documented. The marriage is then intended to be solemnised after a period of
30 days has passed since the notification was sent out. However, if any
individual connected with the parties of marriage can opposes to the marriage
and if Registrar finds it to be a reasonable reason for complaint, he has the
authority to cancel the marriage. Such marriage can be solemnized within the
presences of three witnesses. In its judgement in Seema v.Ashwani Kumar ,182
the Hon'ble Supreme Court highlighted the importance of enlisting all ties of
Indian residents having a place with different religions in their particular
States following the solemnization of the marriage. The court observed that,
“The marriage of all people who are citizens
of India having a place with different
religions ought to be made obligatorily
registrable in their particular states where
the marriage is solemnized. In the event that
the marriage is enlisted the debate
concerning solemnization of marriage can
be kept away from, it will secure women’s
privilege identifying with marriage an
extraordinary broaden.”183
The registration of marriage becomes compulsory in India after the

historical judgement in Seema V Ashwani Kumar.184 Under age marriage or
non-age partnerships, bigamous relationships, and deceptive connections, the
requisite enrolment of marriage would be checked. Enlistment should be made
181
Article „in the absence of ucc- special marriage act is a better bet for women‟ written by
Dr. A. Krishna Kumari.
182
AIR 2006 SC 1158.
183
https://www.ijlmh.com/paper/special-marriage-act-in-absence-of-uniform-civil-code/.
184
AIR 2006 SC 1158
134
===================================================================================
compulsory in order to keep a safe distance from rumoured partnerships and to

demonstrate the situation with women and the genuineness of children born
from that union. A lady who has given herself really, inwardly, and in any
case acquires only stands to lose everything if the marriage is disallowed by
the men due to non-enrolment of marriage. Compulsory registration is the act's
most distinctive and finest feature.
While considering a habeas corpus petition, the Allahabad High Court

commented that changing one's religion solely for the sake of marriage is
perplexing. The court observed that,
“However, under the Constitution, a citizen has the
privilege to pronounce, practice, or engenders the
religion of his/her decision to the others only for
marriage and that’s it. Marriage is one thing belief
is another. On the off chance that two individuals
from various religions choose to wed, the special
marriage act is available to them.”185
Therefore we can say that Special Marriage Act, 1954 is one of the important
steps towards the Uniform Civil Code.
5.2.2 The Hindu code of 1955-56:

Hindu personal laws were, in reality, subjected to gradual reform before to
independence. As a result, soon after the constitution was adopted, the Indian
parliament continued to codify and reform Hindu personal law. A complete
code was drafted by the government. Many people objected to the
government's move, citing a variety of reasons. Instead of Hindu personal law,
it was proposed that the government should bring forth a Uniform Civil Code
that would apply to all communities in India. It is pointed out that article 44
does not allow for partial treatment, and the government's actions were in
violation of the constitution's equality principle. Supporters of the proposed
bill, on the other hand, saw the government's action as a crucial step toward
achieving a Uniform Civil Code. Members opposing the bill and advocating
185
D.M. Derrett, Religion, Law and the State in India 327-28.
135
===================================================================================
for a Uniform Civil Code, it was said on behalf of the administration, were not
making a demand on principle. The opponents' approach was seen by Dr.
Ambedkar as a stalling tactic. The Hindu Code Bill, according to the
government, is the first step toward a Uniform Civil Code. According to the
letter, the intended comprehensive Hindu code bill could only be passed in the
form of different acts because to overwhelming opposition. When we look at
the history of the Hindu bill, we can see that, while it was a good idea to
change Hindu personal law, the opponents' arguments were not without merit.
The administration justifies its decision by claiming that other communities
were not consulted. On the subject, and that a secular state did not imply that it
could disregard popular sentiments. Opponents of the bill raised doubt in the
legislature about whether the government would bother to enact a Uniform
Civil Code if it was passed. As a matter of fact, the opponents' doubt has
become a reality. The personal laws of other communities have not been
secularised by successive governments. Prior to 1956, Hindus were controlled
by inconsistent property rules that differed from region to region, and even
within the same region.186
Although several improvements were made to provide women more

rights, they were still denied the crucial coparcenary rights. As a result,
numerous states developed their own rules governing the partition of ancestral
property. Daughters were awarded coparcener rights or a claim on ancestral
property by birth in Maharashtra, Karnataka, and Andhra Pradesh. In 2000, the
Law Commission of India's 174th report recommended that discrimination
against women be amended, and this report is the foundation of the law that
has now been clarified by the Union Cabinet.187
The Bill has been introduced in the Rajya Sabha and is currently being
debated. Women‟s empowerment looks to be the talk of the town. It started
with the Right to Information Act, then the Employment Guarantee Act, and
now it's time for the Hindu Succession Act of 1956 to be amended. It grants
186
Kumar, Dr. Ranjan. The Need for a Uniform Civil Code. First, Pilgrims publishing.
187
The times of India, New Delhi, December 18, 2004,pp 14.
136
===================================================================================
women equal rights to inherit family riches, which was formerly reserved only
for male heirs. As it stands presently, the woman is entitled to an equal part of
her father's property as her male brothers, but she has no claim to ancestral
property. The perception of women's economic worthlessness and their
incapacity to negotiate a better bargain for themselves is maybe the single
most important reason for their devaluation in our culture. Both of these
impediments are mitigated to some extent by the right to property. These
revisions, according to famous lawyer Leila Seth, will prevent dowry. When
males grow up knowing that they cannot enjoy special benefits when it comes
to property rights, their thinking is sure to change for the better. Since family
law is on the concurrent list, discriminatory clauses have been eliminated in
five states.188
5.2.3 The Dowry Prohibition Act, 1961:

The Dowry Act of 1961 prohibits all persons, regardless of religion, from
engaging in monetary or other transactions in marriage. However, the Act
notably exempts the system of Mehr (dower) under Muslim Law from its
application. The Dower is a present given to the wife by the husband as part of
his commitment at the time of marriage or is set to be paid to her in the event
of divorce. Dowry, on the other hand, is money or goods claimed by the
husband's family in exchange for marriage. It's worth noting that the Dowry
Act of 1961 was one of the first of its type, enacted and implemented along
secular lines. However, experts have demonstrated its shortcomings in
combating the dowry evil. Not only among Hindus, but also among other
communities, this vice has reached deadly proportions. Although anti-dowry
legislation has not been proven to be successful, it is required since its absence
would result in greater challenges for women. It is argued that a true secular
Act is essential to curb the practise of dowry among all Indians.189
5.2.4 Medical Termination of Pregnancy Act, 1971:

Unwanted pregnancies have long been a significant issue for women. At both
the national and international levels, there has been debate on the termination
of undesired pregnancies. It has been suggested that a woman's right to
188
Ibid.
189
Kumar, Dr. Ranjan. The Need for a Uniform Civil Code. First, Pilgrims publishing.
137
===================================================================================
terminate a pregnancy should be solely hers. Opponents, on the other hand,

have contested their allegation. It should be noted that, whereas such
legislation has received heavy criticism and opposition in modern countries
such as the United States, the Medical Termination of Pregnancy Act of 1971
has luckily received no such opposition in India. It is said that the Act, which
gives women a fair choice in cases of unplanned pregnancy, is a major step in
addressing societal vices from a secular perspective. Furthermore, social
problems including religion and custom may only be addressed through
secular legislation, and laws should not be construed as an infringement on
human rights or religion.190
It is said that the Act, which gives women a realistic choice in cases of
unplanned pregnancy, has been viewed as a significant step toward a secular
approach on social issues. Furthermore, social problems including religion and
custom may only be addressed through secular legislation, and laws should not
be construed as an infringement on human rights or religion.
5.2.5 Juvenile Justice (Care and Protection) Act, 2015:

The Juvenile Justice Act of 2015 replaced the Juvenile Justice (Care and
Protection of Children) Act of 2000. This Act of 2015 covers both children
who are in legal trouble and children who are in need of care and protection. It
provides a comprehensive framework for domestic and international adoption
of orphans, abandoned children, and children who have been relinquished.
Adoption is a legal process through which a child legally becomes the lawful
child of his adoptive parents and is therefore permanently separated from his
biological parents.
5.2.5.a Objectives of the Act:

The Juvenile Justice (Care and Protection of Children) Act, 2015 has the
following objectives:
1) The Act establishes the fundamental principles for delivering justice to a
minor or juvenile.
190
Supra Note 91.
138
===================================================================================
2) To make the juvenile justice system, this is made for children, more
responsive to developmental needs than the criminal justice system, which is
aimed at adults.
3) Compliance to the United Nations Convention on the Rights of the Child in
juvenile legislation.
4) Establish an age of eighteen for both men and women.
5) To ensure that cases involving juveniles or minors are handled as promptly
as practicable by the authorities envisioned by this Act, within the four-month
time limit set forth in Article 21 of the Indian Constitution.
6) Define the state's role as a facilitator, rather than a doer, by involving non-
profits and local governments in the implementation of proposed legislation.
7) Specific juvenile police units with a humanitarian mentality will be

developed through police personnel indoctrination and training.
8) Create Juvenile Justice Boards, Child Welfare Committees, and Homes in

each area or collection of districts to make juveniles and children more
accessible.
9) The Act should be separated into two portions, one for juveniles in violation
of the law and the other for juveniles or children in need of care and
protection, to reduce stigma and to accommodate the developmental needs of
the juvenile or child.
10) Adequate measures and a variety of options for abandoned, destitute,

neglected, and delinquent juvenile and child offenders' rehabilitation and
social reintegration, such as adoption, foster care, sponsorship, and
aftercare.191
191
“An Analysis of Adoption under the Juvenile Justice (Care and Protection of Children)
Act, 2015 - IPleaders.” IPleaders, iPleaders, 12 Aug. 2021, https://blog.ipleaders.in/analysis-
adoption-juvenile-justice-care-protection-children-
act2015/#:~:text=Section%202%20(2)%20of%20the,with%20being%20a%20biological%20c
hild.
139
===================================================================================
This Act gives right of adoption to all religious persons irrespective of their
personal laws. Therefore first we will study the meaning and right of adoption
under this Act.
5.2.5.b Adoption under (Juvenile Justice Care and protection) Act, 2015.
Adoption is the legal process of putting a child with a parent or parents other
than the biological parents for the rest of their lives. The parental
responsibilities and rights of the parents are severed when a child is adopted,
and those responsibilities and rights are transferred to the adoptive parents. It
is a globally recognised institution. Adoption is mentioned in almost all faiths
and mythologies in some way. The desire for the concept of adoption has
shifted in the modern world from delivering a child to the childless to offering
a home to the homeless.
Section 2(2) of Juvenile Act, 2015 defines the term „Adoption‟ as under:
“Adoption means the process through which the adopted child is permanently
separated from his biological parents and becomes the lawful child of his
adoptive parents with all the rights, privileges and responsibilities that are
attached to a biological child.”
Adoption was initially only available to Hindus after the Hindu Adoption and
Maintenance Act went into effect in 1956, which made it easier for Hindus to
adopt Hindu children. It did not apply to Muslims, Christians, or Parsis, who
had to rely on the Guardians and Wards Act, 1890, to become guardians. The
method, however, simply established a guardian-ward relationship. The
Juvenile Justice (Care and Protection) Act of 2000 was the first step toward
secular adoption legislation, and it was last modified in 2015.192
The Juvenile Justice Act outlines detailed procedures for both in-country and
intra-country adoptions, which are overseen by the Central Adoption Resource
Authority, a government of India statutory authority. Each state's Adoption
Coordination Agency (ACA), which is a CARA-accredited agency, accepts
applications from prospective parents. This adoption agency conducts a
192
Supra Note 189.
140
===================================================================================
thorough assessment of the family, including three-year pre-adoption

counselling. At this moment, prospective parents have the opportunity to voice
their preferences. Following the selection of a suitable child, the agencies can
arrange for hopeful parents to meet the child. After signing the foster care
agreement, the child might be placed in pre-adoption foster care if the match is
made.193
Meanwhile, the Specialized Adoption Agency/Child Care Institution and the

prospective parents file an application with the District Court as co-applicants
within 10 working days of matching. All processes must be held in private and
completed within two months after filing, according to Section 61(2) of the
Juvenile Justice Act. According to data from the Ministry of Women and
Child Development, there are many pending adoption cases in India's Civil
Courts that have been there for longer than the time limit allowed in section
61(2) of the Juvenile Justice Act. Despite the fact that various changes have
been made throughout time to address concerns raised during the Act's
implementation. The Child Welfare Committee (CWC) is no longer the
"ultimate authority" in cases of children in need of care and protection. The
CWC's grievance redressal authority will be the District Magistrate, and
anyone connected to the child may submit a petition with the district
magistrate, who will consider and give appropriate orders.194
193
Ibid.
194
Ibid.
141
===================================================================================
CHAPTER 6:
ROLE OF JUDICIARY:
Uniform Civil Code is offered to replace the existing personal laws in
India with a common set of rules governing every citizen. There are three
important organs of our government i.e. legislative, judiciary, and executive.
The Legislature has the power to enact laws for India. The law which is passed
by the legislature will be interpreted by the judiciary and the role of an
executive is to execute the laws. Article 44 of the Indian constitution imposes
a duty on the state to secure for the citizen a Uniform Civil Code for the
territory of India. But till today state has failed to accomplish its duty. It means
the Legislature of India has to enact a law on Uniform Civil Code. But
unfortunately due to the lack of political will still this dream doesn't come
true. Therefore Judiciary plays a vital role in the advancement of the Uniform
Civil Code. From Shah Bano to Shayara Bano cases, Judiciary has given
important verdicts in favour of Uniform Civil Code and directed Parliament to
frame Uniform Civil Code.
The apex court i.e. supreme court of India is considered as a Guardian

of the Indian Constitution. According to Article 13 of the constitution of India,
The Judiciary has the power to declare any law or the provision of any law as
null and void if it is inconsistent with the provision of the Indian Constitution.
In India for different religious people, different personal laws are applicable.
Some provisions of these personal laws are inconsistent with the provision of
Indian constitution hence the Judiciary is having the power to declare those
provisions as void. Judiciary has plays a vital role from Shah Bano(1985) to
shayara Bano(2017) cases. Part IV of the Indian Constitution contains
eighteen articles for the country's good governance, which are bracketed under
the term "Directive Principles of State Policy." None of these directions has
prompted as many responses as the constitutional mandate for a Uniform Civil
Code that applies to all citizens across the country. These are the state's active
responsibilities. The state is responsible for ensuring a social order in which
social, economic, and political fairness are reflected in all aspects of national
142
===================================================================================
life. The Constitution's Directive Principles of State Policy, which are defined
in Articles 37 to 51, have two qualities. Firstly, they are not enforceable in any
court, thus if a directive is violated, the offended party has no remedy through
legal action. Second, they are fundamental to the country's governance, and it
is the state's responsibility to apply these principles while establishing laws.
The purpose of this chatter is to examine the state's constitutional commitment
to provide residents with a Uniform Civil Code across India's territory, as well
as the judicial craftsmanship of the High Courts and Supreme Court. The cases
described in this chapter are those in which the validity of a personal-law
provision was challenged, or the court, suo moto, debated the merits of
establishing a Uniform Civil Code.
Role of judiciary in the advancement of Uniform Civil Code:

6.1 Narsu Appa Mali Case
The validity of the Bombay Prevention of Hindu Bigamous Marriage Act,
1946, was challenged in this case, with the claim that, this Act is a violation of
articles 14195, 15196, and 25197 of Part III of the Indian Constitution. In this
case, it was decided that Hindu marriage is a sacramental union, and marriage
under Hindu religion is for the purpose of procreating a male heir, which is
essentially a religious practise or belief, and that restricting this practise by the
Bombay Prevention of Hindu Bigamous Marriage Act, 1946 is a violation of
one's freedom to profess, practise, and propagate religion as stated in Article
25 of the Constitution (i). The court ruled that if a religious practise is
incompatible with public morals or policy, the religious practise must take
precedence over the public's welfare or benefit. That is, the wellbeing of the
people should take precedence.198
195
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.
196
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
197
Freedom of conscience and free profession, practice and propagation of religion.
198
https://www.lawyersclubindia.com/articles/state-of-bombay-v-narsu-appa-mali-air-1952-
bom-84--7855.asp.
143
===================================================================================
The Bombay Prevention of Hindu Bigamous Marriage Act, 1946, was

used in court to argue that by permitting Muslims to practise polygamy, the
state is discriminating against Hindus on the basis of religion. Marriages for
the aim of having a male heir are not forbidden in Hindu law because having a
male successor is a component of the faith. It was also found that Article 44 of
the Directive Principles of State Policy mandates the state to ensure for its
inhabitants a Uniform Civil Code throughout India's territory, and that the
state of Bombay discriminated against religious minorities. Even section
494199 of the IPC applies to everyone except Muslims. The council also asked
to add personal laws as laws under Article13 (3) and held that personal laws
comes under ‗laws in force‘ under Article372 (3). The court held that
reasonable discrimination can exist, and that the Hindu community has been
discriminated against for the purpose of social reform, and that the Hindu
community cannot claim violation of Article 14 or Article 15 (i) under Part III,
and that even though Article 44 calls for a Uniform Civil Code, Article 44 can
never be asked to be implemented because the DPSPs (Directive Principles of
State Policy) cannot be enforced. Despite the fact that Articles 14 and 15 (i)
urge for equality, reasonable limitations are permitted for the benefit of
society. Because Hindu and Muslim law have different beginnings, they
cannot be coerced to fall under the UCC.200
The council's argument that personal laws should be added to the list
of laws under Article 13 (2) is similarly unworkable because each personal
law has a separate source and is based on customs, religion, and practises
rather than legislation. So, personal laws are not covered under Article13 (3).
In this case, Justice Gajendra Gadkar ruled that if personal laws are brought
under the ambit of Article13 (3), the eradication of untouchability under
Article17 will be null and void, because to the Hindu religion's recognition of
199
Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife
living, marries in any case in which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with imprisonment of either description for
a term which may extend to seven years, and shall also be liable to fine.
200
https://www.lawyersclubindia.com/articles/state-of-bombay-v-narsu-appa-mali-air-1952-
bom-84--7855.asp.
144
===================================================================================
untouchability. As a result, personal laws are not covered by Article 13. (3).
Justice Gajendra Gadkar has expressed the limitations of Judiciary in
following words:
"Article 44 of the Constitution is, in my
opinion very important. This Article says
that the State shall endeavour to secure for
the citizens a Uniform Civil Code
throughout the territory of India. In other
words, this article by necessary implication
recognizes the existence of different Codes
applicable to the Hindus and Mohammedans
in matters of personal law and permits their
continuance unless the State succeeds in its
endeavour to secure for all the citizens a
Uniform Civil Code. The personal laws
prevailing in the country owe their origin to
scriptural texts. In several respects their
provisions are mixed up with and based on
considerations of religion and culture; so
that the task of evolving a Uniform Civil
Code applicable to the different
communities of this country is not very easy.
The framers of the Constitution were fully
conscious of these difficulties and so they
deliberately refrained from interfering with
the provisions of the personal laws at this
stage but laid down a Directive Principle
that the endeavour must hereafter be to
secure a Uniform Civil Code throughout the
territory of India".201
201
AIR 1952 Bom.84.
145
===================================================================================
The former chief Justice of the Bombay High Court Honourable M.C.
Chagala observed in this case that,
“One community might be prepared to
accept and work for social reform; another
may not yet be prepared for it, and Article
14 does not lay down that any legislation
that the state may embark upon must
necessarily be of an all-embracing
character. The state may rightly decide to
bring about social reform by stages and
stages may be territorial or they may be
community wise. From these considerations
it follows that there is discrimination
against the Hindus in the applicability of the
Bombay Prevention of Hindu Bigamous
Marriage Act, 1946 the discrimination is not
based only upon ground of religion. Equally
so if the law with regard to the bigamous
marriages is not uniform, the difference and
distinction is not arbitrary or capricious, but
is based upon reasonable grounds”202
Thus, although supporting the legislation's constitutionality, the High

Court favoured the establishment of the Uniform Civil Code, and the court
correctly stated that polygamy was not a need. If there was no son from the
first marriage, the right course of action was to adopt a son instead of
remarrying. Concerning the claim of discrimination against Hindus and
Muslims, the court stated unequivocally that the classification was acceptable
and did not violate Article 14 of the Constitution. The court further stated that
the legislation must be implemented in its entirety as a necessary step toward
202
AIR 1952 Bom. 84.
146
===================================================================================
ensuring that individuals have access to a Uniform Civil Code throughout

India.203
6.2 Shah Bano Case

In history, the Supreme Court was first time directed to enact Uniform Civil
Code in the year 1985 in historical case, Mohammed Ahmed Khan V.Shah
Bano Begum204 Which is popularly known as Shah Bano case.
In this particular case Shah bano has claimed maintenance against her
husband, Mohammed Ahmed Khan under section 125 of the Criminal
Procedure Code after she was given triple talaq by him. According to the
appellant Mr.Mohammed Ahmed Khan, respondent is not entitled to claim
maintenance under section 125 of Criminal Procedure Code, 1973 because
under Muslim personal law the liability of the husband is to provide
maintenance during the period of iddat only. But the Supreme Court has given
judgement in favour of Shah Bano and the court held that a Muslim divorced
woman is entitled to claim maintenance under section 125 of the Criminal
Procedure Code. This is the historical judgement given by the honorable
Supreme Court. The court also held that article 44 of the Indian constitution is
still a dead letter. In this case Chief Justice of Supreme Court Y.V.
Chandrachud observed that "A Common Civil Code will help the cause of
national integration by removing disparate loyalties to the law which have
conflicting ideologies."
A lot of discussions, meetings, and agitations were held after this

historical judgement. To meet such kind of situation the then Prime Minister
Rajiv Gandhi had enacted the Muslim Women (Right to protection on the
divorce) Act 1980 which curtail the right of Muslim women under section 125
of the Criminal Procedure Code. Now we will this case very deeply.
203
Ibid.
204
(AIR 1985) SC 945
147
===================================================================================
In 1932, the appellant, Mohd. Ahmad Khan, a practising counsel in

Indore, M.P., married the respondent. In 1975, the appellant shattered the
matrimonial home by forcibly removing Shah Bano Begum from it. The
respondent had three sons and two daughters throughout this time span. In
1978, the respondent filed a suit in the court of judicial magistrate 1st class,
Indore, under section 125 Cr.P.C., seeking maintenance at the amount of Rs.
500/- per month. The appellant divorced the respondent irrevocably on
November 6, 1978, using the so-called unilateral right of talaaq. In his
defence, the appellant said that because she was deemed to be his wife by
talaaq, he was no longer obligated to support her and that he had previously
paid her maintenance at the amount of Rs.200/- per month for about two years.
During the period of iddat, he paid Rs. 3000 to the court in lieu of dower. The
appellant was ordered to pay Rs. 25 per month in maintenance by the lower
court in August 1979. In 1980, the respondent filed an appeal with the Madhya
Pradesh High Court, requesting an increase in the support amount. The
maintenance payment was increased by the High Court to Rs. 179.20 per
month. Against this order, the spouse applied for special leave to the highest
judicial institution.205
Two judgements of this Court, Bai Tahira v. Ali Hussain Fidalli

Chothia206 and Fazlunbi v. K. Khader Vali207, resolve the question of whether
section 125 of the Code applies to Muslims as well. The divorced Muslim wife
is entitled to apply for support under section 125, according to these
judgements. However, a Bench comprising of our erudite Brethren, Murtaza
Fazal Ali and A. Varadarajan, JJ., were of the opinion that those matters were
incorrectly determined. As a result, by ruling dated February 3, 1981, they sent
this appeal to a larger Bench, as follows:
"As this case involves substantial questions
of law of far-reaching consequences, we feel
that the decisions of this Court in Bai Tahira
v. Ali Hussain Fidaalli Chothia &
205
AIR 1995 SC945.
206
1979 AIR 362, 1979 SCR (2) 75.
207
AIR 1980 SC 1730.
148
===================================================================================
Anr and Fuzlunbi v. K. Khader Vnli & Anr.

require reconsideration because, in our
opinion, they are not only in direct
contravention of the plain and an
unambiguous language of s.127(3)(b) of the
Code of Criminal Procedure, 1973 which
far from overriding the Muslim Law on the
subject protects and applies the same in
case where a wife has been divorced by the
husband and the dower specified has been
paid and the period of iddat has been
observed. The decision also appear to us to
be against the fundamental concept of
divorce by the husband and its consequences
(1) 1979 (2) SCR 75 (2) 1980 (3)SCR
1127 under the Muslim law which has been
expressly protected by sec.2 of the Muslim
Personal Law (Shariat) Application Act,
1937-an Act which was not noticed by the
aforesaid decisions. We, therefore, direct
that the matter may be placed before the
Honorable Chief Justice for being heard by
a larger Bench consisting of more than three
Judges. " 208
The right of maintenance which is defined under section 125 of

Criminal Procedure code is defined as follows:
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself,
(b)...
(c)...
208
https://indiankanoon.org/doc/823221/.
149
===================================================================================
(d)...
a Magistrate of the first class may, upon proof of such neglecter refusal, order
such person to make a monthly allowance for the maintenance of his wife .. at
such monthly rate not exceeding five hundred rupees in the whole as such
Magistrate think fit Explanation-For the purposes of this Chapter,-
(a)......
(b) "Wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband has not remarried.
(2)..... .
(3) If any person so ordered fails without sufficient cause to comply with the
order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such
person, for the whole or any part of each month's allowance remaining unpaid
after the execution of the warrant, to imprisonment for a term which may
extend to one month or until payment if sooner made:
Provided further that if such person offers to maintain his wife on condition of
her living with him.and she refuses to live with him, such Magistrate may
consider any grounds of refusal stated by her, and may make an order under
this section notwithstanding such offer, if he is satisfied that there is just
ground for so doing.
Explanation-If a husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to be just ground for his wife's refusal
to live with him." 209
Section 127(3)(b), on which the appellant has built up the edifice of his
defence reads thus:
"Alteration in allowance
127. (1).....
(2)......
209
Section 125 of Cr.P.C.
150
===================================================================================
(3) Where any order has been made under section 125 in favour of a woman
who has been divorced by, or has obtained a divorce from her husband, the
Magistrate shall, if he is satisfied that-
(a).....
(b) the woman has been divorced by her husband and that she has received,
whether before or after the date of the said order, the whole of the Sum which,
under any customary or personal law applicable to the parties, was payable on
such divorce, cancel such order,-
(i) in the case where such sum was paid before such order, from the date on
which such order was made.
(ii) in any other case, from the date of expiry of the period, if any, for Which
maintenance has been actually paid by the husband to the woman." 210
If a person with sufficient means neglects or refuses to maintain his

wife, who is unable to support herself, a Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to make a monthly
allowance for his wife's maintenance at a monthly rate not exceeding five
hundred rupees in total. A woman who has been divorced by, or has received a
divorce from, her spouse and has not remarried is considered a "wife" under
Explanation (b). If a husband has contracted marriage with another woman or
keeps a mistress, it shall be deemed a just basis for his wife's reluctance to
remain with him, according to the explanation below sub section 3 of section
125. If the husband agrees to support his wife in exchange for her agreeing to
live with him, the Magistrate may consider any of the factors for the wife's
unwillingness to live with him before ordering maintenance. The Magistrate
shall cancel the order made by him under section 125 in favour of a woman
who has been divorced by, or has obtained a divorce from, her husband if the
woman who has been divorced by her husband has received the entire sum
payable on such divorce under any customary or personal law applicable to the
parties, whether before or after the date of the said order.211
210
Section 127 of Cr.P.C.
211
Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.
151
===================================================================================
According to Shariat Act, a Mahomedan may have up to four wives at

a time, but not more. If he marries a fifth woman after having four, the
marriage is not null and void, but rather irregular. The explanation gives the
wife the right to refuse to live with her husband if he marries again, much
alone three or four more times. It clearly establishes that, if there is any
disagreement between the two, section 125 takes precedence. The entire
debate over whether section 125's right overrides the parties' personal law has
proceeded on the assumption that there is a conflict between the provisions of
that section and those of the Muslim Personal Law. The claim that, under
section 2 of the Shariat Act, 1937, the rule of law in matters relating to
maintenance, among other things, "must be the Muslim Personal Law" is
based on a similar notion. We began deciding the question of priority between
the Code and Muslim Personal Law on the assumption that the two were in
conflict because, to the extent that it was within our power, we wanted to put
to rest once and for all the question of whether section 125 would prevail over
the parties' personal law in cases where they were in conflict.212
The husband and the interveners who support him argue that under
Muslim Personal Law, the husband's liability to support a divorced wife is
limited to the term of iddat. They cite a statement of law on the subject found
in some text books to back up their claim. "After divorce, the wife is entitled
to maintenance during the term of iddat," according to a passage in Mulla's
Mahomedan Law.213 - says the learned author –
“Where an order is made for the
maintenance of a wife under section 488 of
the Criminal Procedure Code and the wife is
afterwards divorced, the order ceases to
operate on the expiration of the period of
iddat. The result is that a Mahomedan may
defeat an order made against him under
section 488 by divorcing his wife
immediately after the order is made. His
212
Ibid.
213
18th Edition, para 279, page 301.
152
===================================================================================
obligation to maintain his wife will cease in

that case on the completion of her iddat,”214
This case was considered by a Constitution Bench made up of five

judges: Chandrachud, C.J., D.A. Desai, J.O., Chenappa Reddy, J.L.S., Venkat
Ramiah, J., and Rangnath Mishra J. The decision was written and delivered by
Chief Justice Chandrachud. In this case apart from observations relating to the
maintenance of Muslim divorcee the Supreme Court held that:
1) There are no words of limitation in Clause (b) of the Explanation to
Section 125 (1) of the Code, which defines "wife" as include a divorced wife,
to explain the exclusion of Muslim women from its reach. Wife refers to any
woman who is married, regardless of her or her husband's faith. As a result, a
divorced Muslim woman is a wife for the purposes of section 125 if she has
not married.215
2) The wife's entitlement to maintenance was based on the continuation of her

married status, according to section 488 of the Code of 1898. As a result, the
spouse could abrogate that privilege by unilaterally divorcing her under
Muslim Personal Law or getting a divorce decision against her under other
legal systems. To minimize this burden, the Joint Committee proposed that the
benefit of the maintenance provisions be extended to a divorced woman as
long as she has not remarried after the divorce. Clause (b) of the Explanation
to Section 125 arose from this (I). The character of Section 125 of the Code is
really secular. Section 125 was designed to give a class of people who are
unable to care for themselves a quick and simple treatment. Whether the
spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is
wholly irrelevant in the application of these-provisions.216
3) The objective factors that determine the applicability of section 125 are a
person's lack of sufficient means to sustain them and their inability to maintain
themselves. Such provisions, which are fundamentally preventative in nature,
214
Mullas‘s Mohomedan Law, Page No. 302
215
216
Ibid.
153
===================================================================================
cut across religious borders. True, they do not replace the parties' personal
law; but, the parties' religion or the status of the personal law by which they
are governed cannot have any effect on the applicability of such laws unless
they do so within the framework of the Constitution. The clause in the
Explanation to the second proviso to section 125 (3) of the Code reinforces the
fact that the right provided by section 125 can be exercised regardless of the
parties' personal law. This is especially true in the case of Muslims. According
to the explanation, the wife has the right to reject to remain with her husband
if he enters into another marriage, let alone three or four, which a
Mohammedan may have under Islamic law. Furthermore, it demonstrates
unequivocally that, in the event of a conflict, section 125 takes precedence
over personal law.217
4) The argument that, under Muslim Personal Law, a husband's obligation to

provide for his divorced wife's maintenance is limited to the period of iddat,
despite the fact that she is unable to support herself, cannot be accepted,
because that law does not contemplate or sanction the situation described in
section 125 of the Code. The question of whether a husband is obligated to
support his wife, including a divorced wife, in all circumstances and in all
events is not addressed by section 125. Section 125 deals with situations in
which a person with sufficient means neglects or refuses to provide for his
wife, who is unable to provide for herself.218
5) The correct situation is that if the divorced woman can support herself, the
husband's obligation to give maintenance for her ends after the iddat term
expires. She has the right to use section 125 of the Code if she is unable to
support herself. On the topic of a Muslim husband's need to give maintenance
for a divorced wife who is unable to support herself, there is no conflict
between the provisions of section 125 and those of the Muslim Personal Law.
The Holy Koran's Aiyat Nos. 241 and 242 reaffirm that the Muslim husband is
217
Supra note 114.
218
Ibid.
154
===================================================================================
obligated to make provision for or pay maintenance for the divorced wife. The
alternative argument does not do credit to the Koran's teachings.219
6) The easy answer of the All India Muslim Law Board that the Personal Law
has devised the system of Mahr to meet the requirements of women and that if
a woman is indigent, she must look to her relatives, even nephews and
cousins, for support is a most unreasonable view of law and life. The sum of
Mahr is normally split into two portions under Muslim Personal Law, one of
which is termed "prompt" and is payable on demand, while the other is called
"deferred" and is payable on the death or divorce of the couple. However, the
fact that postponed Mahr is due at the moment of the marriage's dissolution
does not imply that it is due 'on divorce.' Even if the entire amount of Mahr is
of the deferred variety payable on the dissolution of marriage by divorce in a
certain case, it cannot be argued that it is an amount payable on divorce.220
7) Divorce may be a convenient or recognised point in time when the husband

must pay the delayed sum to the wife. However, the payment of the sum is not
triggered by the divorce, which is what the phrase "on divorce" in section 127
(3) (b) of the Code means. If Mahr refers to a sum due to the wife from the
husband in consideration of the marriage, it is the total opposite of the amount
due in consideration of divorce. Because divorce dissolves the marriage, no
sum paid in consideration of the marriage can be defined as an amount paid in
consideration of divorce. Mahr is a duty put on the husband as a token of
respect for the wife, which makes the claim that it is a sum payable to the
woman on divorce completely false. A man may marry a woman for a variety
of reasons, including love, appearance, education, or nothing at all. As a token
of respect for her, he may also settle money on her. He does not, however,
divorce her out of respect. As a result, a money payable out of respect to the
wife cannot constitute a sum due on divorce'. As a result, the payment of Mahr
can be postponed until a later point, such as death or divorce. However, this
219
Ibid.
220
Supra note 117.
155
===================================================================================
does not rule out the possibility of the deferred dower being paid as a result of
these occurrences.221
While delivering the judgement in Shah Bano case Chandrachud, chief Justice
of Supreme Court has made following observation,
"There is no evidence of any official activity
for framing a common civil code for the
country... ... A common Civil Code will help
the case of national integration by removing
disparate loyalties to laws which have
conflicting ideologies. No community is
likely to bell the cat by making gratuitous
concessions on this issue. It is the State
which is charged with the duty of securing a
uniform civil code for the citizens of the
country and, unquestionably, it has the
legislative competence to do so. A counsel in
the case whispered, somewhat audibly, that
legislative competence is one thing, the
political courage to use that competence is
quite another. 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.
Inevitably, the role of the reformer has to be
assumed by the courts because; it is beyond
the endurance of sensitive minds to allow
injustice to be suffered when it is so
palpable. But piecemeal attempts of courts
to bridge the gap between personal laws
cannot take the place of a common civil
221
Ibid.
156
===================================================================================
code. Justice to all is a far more satisfactory

way of dispensing justice from case to
case."222
In his book 'Muslim Personal Law'223 Dr. Tahir Mahmood makes a

convincing case for the creation of an uniform Civil Code for all Indian
residents. He argues, ―The State must stop administering religion-based
personal legislation in order to achieve the goal of secularism," He wants the
majority community to take the lead, but we should have realised that, lead or
no lead, the state must act. It would be beneficial to paraphrase the author's
appeal to the Muslim community:
"Instead of wasting their energies in exerting
theological and political pressure in order to
secure an "immunity" for their traditional
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." 224
The judgement given in Shah Bano case is highly criticised by some

institutions on the following grounds.
1) If the parties are Muslims, the Muslim Personal Law (Shariat) Application
Act 1937 governs maintenance. By stating that secular laws of societal
significance take precedence over the Shariat Act's provisions, the Supreme
Court has opened the door for courts to intervene in Muslim Personal Law.
2) That the Supreme Court in this case not only ignored legislative history and
clear intent of the Legislature, but also set itself up as a "Super Legislature" or
a "Third Chamber of Legislature," violating well-established rules of
222
223
(1977 Edition, pages 200-202).
224
157
===================================================================================
harmonious construction for interpreting statutes and harmonising conflicts

between different parts of the same law.
3) The Our'an and Shariat have been misinterpreted, and the Supreme Court
relied on them to rule that there is no conflict between personal law and
Section 125 Cr.P.C., ignoring authorised texts and Ulema unanimity.The
Supreme Court has violated established norms of Islamic law interpretation by
Muslim jurists and Ulema, as well as a 1400-year-long practise by Muslims
over the world.
4) That the Constitution empowers the Supreme Court to interpret the

Constitution, not the Qur'an, and to examine the legitimacy of laws made by
competent legislatures. The Supreme Court has no authority under the
Constitution to reinterpret or perform religion.
6.3 Ms. Jorden Diengdeh V. S.S. Chopra:

The Supreme Court highlights the importance of Uniform Civil Code in one
another landmark judgement in Ms. Jorden Diengdeh V. S.S. Chopra225 The
fact of this case is very interesting. In this case the petitioner, the wife was a
Christian and the husband was a Sikh. Both of them married under Christian
Marriage Act 1872. The petitioner's wife filed a petition for nullity of marriage
as well as judicial separation under the Indian divorce Act 1976. Her petition
for nullity of marriage was rejected by the honorable High Court but on the
ground of cruelty, the Decree for separation was granted in favour of the
petitioner. In this case, the Supreme Court observed that the marriage between
both the parties is broken down but mutual consent or irritable breakdown of
marriage is not a ground under the Indian Divorce Act. This ground will be
available only when both the parties belong to the same religion i.e. Christian.
Here once again the Supreme Court focuses on the need of a Uniform Civil
Code.
225
AIR 1985 S.C.935.
158
===================================================================================
In this case the honourable Supreme Court has narrated following

observations-
1) The relevant provisions of the Christian Marriage Act 1872, the Hindu
Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and
Divorce Act 1936, and the Dissolution of Muslim Marriage Act, 1939, show
that the law relating to judicial separation, divorce, and nullity of marriage is
far from uniform.226
2) If there has been no resumption of cohabitation, a decree for judicial

separation may be followed by a decree for dissolution of marriage after one
year or upwards from the date of the decision for judicial separation,
according to the Hindu Marriage Act. The Indian Divorce Act lacks an
equivalent provision; therefore a person who obtains a judicial separation
decision must be content with it and cannot seek to replace it with a divorce
decree once a certain period of time has passed.227
3) In this case, the marriage looks to have irreversibly broken down. There is
no way out for the pair if the High Court's conclusions are upheld. They will
remain married since the Indian Divorce Act does not recognise mutual
consent or irreversibly broken marriage as grounds for divorce. The
continuation of a marriage that has so thoroughly and clearly broken down
serves no purpose or benefit. A marital bond binds the partners together,
which is better undone. 228
4) The time has come for the legislature to step in and provide for a standard
code of marriage and divorce, as envisioned by Article 44, as well as a legal
way out of the terrible situations that couples find themselves in. In all cases,
irreversible breakdown of marriage and mutual consent must be introduced as
grounds for divorce.229
226
Ms. Jorden Diengdeh V. S.S. Chopra AIR 1985 S.C.935.
227
Ibid.
228
Ibid.
229
Supra note 126.
159
===================================================================================
Justice CHINNAPPA REDDY has delivered judgement in this case. A

Constitution Bench of this Court had to stress the importance of breathing new
life into Article 44 of the Constitution, which states, "The State shall
endeavour to secure for the citizens a uniform civil code throughout the
territory of India." The current case is simply another example of the urgent
and indisputable necessity for a standard civil code. The facts of this case
reveal the completely unsatisfactory state of affairs that result from the lack of
a uniform civil code. The facts of the case are unusual and unusual. The
petitioner's wife claims to be a member of the 'Khasi Tribe' of Meghalaya,
having been born and raised as a Presbyterian Christian in Shilong. She is
currently employed at the Indian Foreign Service. Sikh is the husband's
religion. The Indian Christen Marriage Act of 1872 was used to marry them.
On October 14, 1975, the couple married. The current petition was filed in
1980 under sections 18, 19, and 20 of the Indian Divorce Act, 1869, for a
declaration of nullity of marriage or judicial separation. A learned single judge
of the High Court denied the request for a declaration of no nullity of
marriage, but a judgement of judicial separation was obtained on the basis of
cruelty.230
On appeal, a Division Bench of the High Court upheld the learned

single judge's decision. This petition for special leave to appeal against the
High Court's decision was filed by the wife. She wants the marriage declared
null and void. The grounds for the declaration of marriage in the lower courts
and the grounds for the declaration now are the husband's impotence in that,
despite his ability to achieve erection and penetration, he ejaculates
prematurely before the wife has an orgasm, leaving the wife completely
unsatisfied and frustrated. We are not concerned at this time with the extent to
which the wife has been able to prove her case. However, if the High Court's
conclusions are upheld, the couple will be unable to divorce because neither
mutual consent nor irreversible breakdown of the marriage are grounds for
divorce under the Indian Divorce Act. The Indian Divorce Act, Section 10,
specifies the grounds on which a husband or wife may seek to dissolve their
230
Ibid.
160
===================================================================================
marriage. Adultery by the wife is one of the grounds on which a husband

might obtain a decree of dissolution of marriage. Change of religion from
Christianity to another religion and marriage with another woman, incestuous
adultery, bigamy with adultery, marriage with another woman with adultery,
rape, sodomy or bestiality, adultery coupled with cruelty, adultery coupled
with desertion for more than two years are the grounds on which a wife may
obtain a decree for dissolution of marriage. The Indian Divorce Act 1869 only
applies to cases in which the petitioner or respondent is a Christian.231
Section 19 of Indian Divorce Act, 1869 provides following grounds for

nullity of marriage:
(1) that the respondent was impotent at the time of the marriage and at the
time of the institution of the suit;
(2) that the parties are within the prohibited degrees of consanguinity (whether
natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the
marriage, and the marriage with such former husband or wife was then in
force. Nothing in this section shall affect the jurisdiction of the High Court to
make decrees of nullity of marriage on the ground that the consent of either
party was obtained by force or fraud.232
Section 22 of the Indian Divorce Act, 1869 provides grounds for the judicial
separation. This section is read as follow:
―Bar to decree for divorce a mensa et toro; but judicial separation obtainable
by husband or wife. - No decree shall hereafter be made for a divorce a mensa
et toro, but the husband or wife may obtain a decree of judicial separation, on
the ground of adultery, or cruelty, or desertion without reasonable excuse for
two years or upwards, and such decree shall have the effect of a divorce a
231
Supra note 128.
232
Section 19, Indian Divorce Act, 1869
161
===================================================================================
mensa et toro under the existing law, and such other legal effect as hereinafter
mentioned.‖ (Section 22 of Indian Divorce Act)
Other enactments and legislation that allow for decisions of nullity of

marriage, divorce, and judicial separation can now be compared to the
provisions of the Indian Divorce Act 1869. Sec. 10 of the Hindu Marriage
Act, 1955 establishes judicial separation. It allows either party to a marriage to
seek judicial separation on any of the grounds listed in sec. 13(1) and wife can
also claim Judicial Separation on the ground provided under section 13(2).
The grounds for dissolution of a marriage on the petition of a husband

or wife are listed in Section 13(1) of Hindu Marriage Act, 1955. It provides
that a marriage may be dissolved by a decree of divorce if the other party-
―(i) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse, or (i-a)has, after the
solemnization of the marriage, treated the petitioner with cruelty, or (i-b)has
deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition, or
(ii) has ceased to be Hindu by conversion to another religion, or
(iii)has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the respondent.
(EXPLANATION) omitted for the present purpose)
(iv) has, been suffering from a virulent end incurable form of leprosy, or
(v) has been suffering from venereal disease in a communicable form, or
(vi) has renounced the world by entering any religious order, or
(vii)has not been heard of as being alive for a period of seven years or more by
these
persons who would naturally have heard of it, had that party been alive.‖ 233
Section 13(2) provides grounds for judicial separation claimed by wife.

Section 13 (2) provides-
233
162
===================================================================================
"(2) A wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground-
(i) in the case of any marriage solemnized before the commencement of this
Act, that the husband had married again before such commencement or that
any other wife of the husband married before such commencement was alive
at the time of the solemnization of the marriage of the petitioner, or Provided
that in either case the other wife is alive at the time of presentation of the
petition, or
(ii) that the husband has, since the solemnization of the marriage, been guilty
of rape, sodomy or bestiality, or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance
Act, 1956, or in a proceeding under section 125 of the Code of Criminal
Procedure, 1973 (or under the corresponding section 488 of the Code of
Criminal Procedure, 1898), a decree or order, as the case may be, has been
passed against the husband awarding maintenance to the wife notwithstanding
that she was living apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one year or
upwards, or
(iv) that her marriage (whether consummated or not) was solemnized before
she attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years."234
When the Hindu Marriage Act and the Indian Divorce Act are
compared, it is clear that the Hindu Marriage Act contains a special provision
for a joint application by the husband and wife for the grant of a decree of
divorce by mutual consent, whereas the Indian Divorce Act does not. Another
significant distinction between the two Acts is that, under the Hindu Marriage
Act, a decree for judicial separation may be followed by a decree for
dissolution of marriage after a year or more has passed from the date of the
decree for judicial separation if there has been no resumption of cohabitation
in the interim. The Indian Divorce Act lacks an equivalent provision; therefore
a person who obtains a judicial separation decision must be content with it and
234
Supra note 131.
163
===================================================================================
cannot seek to replace it with a divorce decree once a certain period of time
has passed. We should also note that, despite the fact that the idea appears to
have been recognised in sec. 13 (1-A) and sec. 13 (B), irreversible breakdown
of marriage is still not a reason for dissolution of marriage under the Hindu
Marriage Act, 1955.235
The Special Marriage Act, 1954 is applicable to those marriages which are
solemnized under this Act. Now we will focus on the grounds provided under
this Act for nullity of marriage and divorce. Section 25 states that a marriage
shall voidable and may be annulled by a decree of nullity if,-
―(i) the marriage has not been consummated owing to the willful refusal of the
respondent to consummate the marriage; or
(ii) the respondent was at the time of the marriage pregnant by some person
other than the petitioner; or
(iii) the consent of either party to the marriage was obtained by coercion or
fraud, as defined in the Indian Contract Act, 1872.‖236
According to Section 27 of Special Marriage Act, 1954 either the

husband or wife is entitled to claim decree of divorce under the following
grounds:
―(a) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an
offence as defined in the Indian Penal Code;
(d) has since the solemnization of the marriage treated the petitioner with
cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably be expected to live with the respondent.
235
236
http://indiankanoon.org/doc/569459/.
164
===================================================================================
(f) has been suffering from venereal disease in a communicable form; or

(g) has been suffering from leprosy, the disease not having been contracted
from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of the respondent if the
respondent has been alive.‖237
Section 30 of the Parsi Marriage and Divorce Act, 1936, states that a
marriage may be deemed null and void if consummation is impossible due to
natural causes. Sec. 31 allows for the dissolution of a marriage if a husband or
wife has been continually absent for seven years and has not been heard from
during that time. Section 32 of this Act provides following grounds for
divorce.
―(a) that the marriage has not been consummated within one year after its
solemnization owing to the willful refusal of the defendant to consummate it;
(b) that the defendant at the time of the marriage was of unsound mind and has
been habitually so up to the date of the suit;
(c) that the defendant was at the time of marriage pregnant by some person
other than the plaintiff;
(d) that the defendant has since the marriage committed adultery or fornication
or bigamy or rape or an unnatural offence.
(e) that the defendant has since the marriage voluntarily caused grievous hurt
to the plaintiff or has infected the plaintiff with venereal disease, or, where the
defendant is the husband, has compelled the wife to submit herself to
prostitution.
(f) that the defendant is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian Penal Code;
(g) that the defendant the deserted the plaintiff for at least three years;
(h) that a decree or order for judicial separation has been passed against the
defendant, or an order has been passed against the defendant by a Magistrate
awarding separate maintenance to the plaintiff, and the parties have not had
marital intercourse for three years or more since such decree or order;
237
Section 27 of Special Marriage Act,1954.
165
===================================================================================
(i) that the defendant has failed to comply with a decree for restitution of
conjugal rights for a year or more; and
(j) that the defendant has ceased to be a Parsi.‖238
According to the Mohammedan Law a Muslim husband can obtain divorce

from his wife by the pronouncement of talaq. A Muslim wife can obtain a
decree of dissolution of marriage under Muslim Marriage Act, 1939 on any
one of the following ground:
―(i) that the whereabouts of the husband have not been known for a period of
four years;
(ii) that the husband has neglected or has failed to provide for her maintenance
for a period of two years;
(iii)that the husband has been sentenced to imprisonment for a period of seven
years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his
martial obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to
be so;
(vi) that the husband has been insane for a period of two years or is suffering
from leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage before
attaining the age of eighteen years.
(viii) that the husband treats her with cruelty that is to say-
(a) habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill- treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it,
or
(e) obstructs her in the observance of her religious profession or practice, or
238
Section 32 of Parsi Marriage and Divorce Act, 1936.
166
===================================================================================
(f) if he has more wives than one, does not treat her equitably in accordance
with the injunctions of the Qoran;
(ix) on any other ground which is recognised as valid for the dissolution of
marriages under Muslim Law.‖ 239
As we see that, the law governing judicial separation, divorce, and

nullity of marriage is far away from uniformity. Surely, the time has come to
completely alter the rule of marriage and create a standard legislation that
applies to everyone, regardless of religion or caste. In all circumstances, it
appears to be important to include irreversible breakdown of marriage and
mutual consent as grounds for divorce. The current case is an example of a
situation in which the parties are connected together by a marital connection
that should be severed. We believe that the time has come for the legislature to
step in and give a consistent code of marriage and divorce, as well as a legal
way out of the uncomfortable situations that couples like the current ones have
found themselves in.
In this case Justice O. Chinnappa Reddy has made his observation as
follow:
“It was just the other day that a Constitution
Bench of this Court had to emphasise the
urgency of infusing life into Article 44 of the
Constitution which provides that "The State
shall endeavour to secure for the citizens a
uniform civil code throughout the territory
of India." The present case is yet another
which focuses. On the immediate and
compulsive need for a uniform civil code,
the totally unsatisfactory state of affairs
consequent on the lack of a uniform civil
code is exposed by the facts of the present
case. Before mentioning the facts of the
case, we might as well refer to the
239
http://indiankanoon.org/doc/569459/.
167
===================================================================================
observations of Chandrachud, CJ in the

case decided by the Constitutional
Bench.”240
6.4 Saira Banu V. A.M. Abdul Gafoor

In the year 1987, the dispute which was decided by the Supreme Court in the
Shah Bano case was once again raised before the court in Begum Subanu
241
alias Saira Banu V. A.M. Abdul Gafoor case. The question which was
arises before the Supreme Court in this case, whether a Muslim wife whose
husband performed the second marriage is entitled to live separately and claim
maintenance? The Supreme Court held that under Muslim personal law though
the husband is entitled to take more than one wife, the first wife is entitled to
live separately and claim maintenance. Hence Supreme Court once again
reaffirmed the judgement of Shah Bano case and created a foundation for
Uniform Civil Code.
In this case Begum Subanu alias Saira Banu was an appellant and
A.M.Abdul Gafoor was respondent. On May 11, 1980, the appellant married
the respondent Mr. Abdul Gafoor and a girl was born On May 9, 1981 out of
their marriage. The appellant filed a petition under Section 125 of the Code of
Criminal Procedure, 1973, alleging neglect and failure to give support for
herself and her daughter at Rs.500 and Rs.300 per month, respectively. The
petition was dismissed by the Magistrate because the appellant had failed to
provide sufficient justification for living separately. To the Sessions Judge, the
appellant preferred a Revision Petition. Respondent married again on October
18, 1984, while the petition was pending. In the revision petition, it was
argued on behalf of the appellant that, regardless of the other grounds, the
respondent's second marriage was a sufficient reason to give support. The
Sessions Judge, on the other hand, decided that the appellant was not entitled
to maintenance because the respondent had entered into a second marriage
after giving the appellant every opportunity to re-join him and had promised to
240
AIR 1985 SC 935.
241
A.I.R.1987 S.C.1103.
168
===================================================================================
accept her back even after the second marriage. In the case of the daughter, the
Sessions Judge ordered that maintenance be paid at the rate of Rs.100 per
month.242
The appellant filed a petition in the High Court under Section 482
seeking maintenance for herself and an increase in the child's maintenance, but
the High Court declined to intervene on the grounds that the appellant's claim
was barred by the concurrent conclusions of the Court below. The appellant
was barred from pursuing her claim due to concurrent decisions of the Court
below. The appellant argued in her special leave appeal to this Court that the
respondent's second marriage had introduced a new dimension to her
maintenance case, and that she had become entitled under law to live apart and
claim maintenance as a result. The respondent challenged the appeal on the
grounds that he was forced to marry again because the appellant had failed to
re-join him, and he had promised to take her back to maintain her, and that the
said offer exonerated him from his obligation to pay maintenance. It was also
argued that while he was allowed to take more than one wife under Muslim
law, his second marriage could not provide a legal basis for the appellant to
live separately and seek maintenance. On the issues of whether the
respondent's second marriage gives the appellant the right to live separately
and claim maintenance and whether the appellant's rights are harmed in any
way by the personal law governing the parties allowing a husband to marry
more than one wife, and whether, even if the respondent is liable to pay
maintenance, he is absolved of his liability after his offer to take back and
maintain the appellant.243
In this case the honourable Supreme Court has narrated following

observations-
1) Before a maintenance order can be issued, the following three conditions
must be satisfied (1) the person liable to provide maintenance has sufficient
means; (2) he has neglected or refused to provide maintenance; and (3) the
242
Indian Kanoon - http://indiankanoon.org/doc/709902/.
243
Ibid.
169
===================================================================================
dependent/dependents is/are unable to maintain himself/herself/themselves as

the case may be.244
2) The liability to provide maintenance for children has been established on

the basis of the father's paternity and the child's minority, and in the case of
major children on the basis of their physical handicap or mental abnormality,
without regard to the children's legitimacy or illegitimacy or their marital
status.245
3) The purpose of the Explanation is to put the matrimonial injury suffered by

the first wife as a result of the husband marrying again or taking a mistress
during the subsistence of the marriage with her on an equal footing with the
rights of a Muslim husband to take more than one wife or to denigrate in any
way the legal and social status of a second wife to which she is entitled as a
legally married wife, as compared to a mistress. This Explanation must be
interpreted in light of the wife's matrimonial rights, rather than the husband's
right to marry again.246
4) The husband's need to pay maintenance is not discharged by the offer to

take back the wife and support her. A husband who marries again cannot
compel the first wife to return to the conjugal house and stay with the co-wife,
and any offer to take her back cannot be regarded genuine unless he
undertakes to build up a separate residence for her. The offer to accept back
the appellant in this instance was made only before the Revisional Court, and
that too after the second marriage had taken place. The offer did not include
the provision of a separate house for the appellant in order for her to live in
peace and dignity. The appellant's rights cannot be invalidated or defeated on
the basis of such a dishonest promise.247
244
Indian Kanoon - http://indiankanoon.org/doc/709902/.
245
Supra note 142.
246
Ibid.
247
Ibid.
170
===================================================================================
Hence forth the honourable court has granted maintenance to the

appellant-wife Rs.300 per month and enhanced the maintenance to the minor
girl to Rs.200 per month.
6.5 Sarla Mudgal v.Union of India
In Sarla Mudgal v.Union of India248 raised a few important questions before

the Supreme Court.
1. Whether a Hindu husband who is married under Hindu law can
solemnize second marriage after conversion in Islam?
2. Whether such second marriage without dissolution of the first marriage
would be valid?
3. Whether such an apostate Husband can be prosecuted under section
494 of the Indian penal code?
4. Does India need a Uniform Civil code for its citizen?
While deciding the above case Supreme Court clearly explained that a
Hindu married husband cannot solemnize second marriage after embracing
Islam. If he performs such a second marriage that marriage would be invalid
and he would be guilty for an offence under section 494 of the Indian penal
code.
Four petitions were filed in the Sarla Mudgal case under Article 32 of the
Indian Constitution, which establishes the right to constitutional remedies
through Writ Petitions in the Supreme Court. There were two petitioners in
Writ Petition 1079/89. The first was Sarla Mudgal, who was the founder and
president of the 'KALYANI' registered society. This organisation focuses on
the needs of low-income families and women in distress. The second
petitioner was Meena Mathur, who married Jitender Mathur on February 27,
1978. Three children were born out of wedlock (two sons and a daughter). The
petitioner was shocked to know in early 1988 that her husband had married a
second time, to Sunita Narula @ Fathima. After they converted to Islam and
joined the Muslim religion, the marriage was solemnised. According to the
248
A.I.R1995 SC 153.
171
===================================================================================
petitioner, her husband's conversion to Islam was only for the purpose of
marrying Sunita and avoiding the prohibitions of Section 494 of the Indian
Penal Code. Jitender Mathur claims that because he converted to Islam, he can
have four wives, despite the fact that his first wife is still Hindu.249
Interestingly in Writ Petition 347 of 1990, Sunita Narula alias Fathima,

contends that she along with Jitender Mathur who already had a marriage alive
with Meena Mathur, converted into and adopted Islam and thereafter got
married. A son was born to her. Further, she states that after marrying her,
Jitender Mathur gave an undertaking in April, 1988 that he had reverted back
to Hinduism and will be maintaining his wife and children out of first
wedlock. She grieved for maintenance by her husband.250
On November 13, 1988, Geeta Rani, the petitioner in Writ Petition 424
of 1992, married Pradeep Kumar according to Hindu rituals. According to the
petition, her spouse used to mistreat her and once gave her such a severe
beating that her jaw bone was broken. The petitioner learned in December
1991 that Pradeep Kumar had run away with a woman named Deepa and
married her after converting to Islam. The conversion to Islam was said to be
only for the purpose of facilitating the second marriage. 251
One another unlucky lady, Sushmita Ghosh, is the petitioner in Civil

Writ Petition 509 of 1992. On May 10, 1984, she married G.C. Ghosh
according to Hindu traditions. The spouse informed her on April 20, 1992, that
he no longer wanted to live with her and that she should agree to a divorce by
mutual consent. The petitioner was taken aback and requested that she was her
legally married wife who wished to live with him, and that the issue of divorce
would be avoided. Finally, the petitioner's husband informed her that he had
converted to Islam and would soon marry Vinita Gupta. He had gained a
249
https://main.sci.gov.in/jonew/judis/10742.pdf.
250
https://probono-india.in/Indian
Society/Paper/405_Case%20Analysis%20on%20Sarla%20Mudgal%20v.%20Union%20of%2
0India%20-%20Shristi%20Khandelwal.docx.
251
https://main.sci.gov.in/jonew/judis/10742.pdf.
172
===================================================================================
certificate from the Qazi stating that he had accepted Islam on June 17, 1992.
The petitioner also requested that her husband be barred from marrying Vinita
Gupta in a second marriage in the writ case.252
Few important questions were raised before the Supreme Court in this
historical case. In which honourable Supreme Court has find the following
reasoning:
1) Whether a Hindu husband who is married under Hindu law can solemnize
second marriage after conversion in Islam?
After converting to Islam, a Hindu husband's second marriage is a

violation of justice, equality, and good conscience. These situations are also
subject to the prohibitions of Section 494 of the Indian Penal Code, which
prohibit bigamy. According to the courts, a Hindu marriage exists under
Hindu personal law prior to its codified in 1955, even if one spouse converts
to another religion, resulting in no automatic dissolution of the marriage.
Section 4 of the Hindu Marriage Act, which applies to Hindus including
Buddhists, Jain, and Sikhs but excludes Muslims, Christians, and Parsis,
mentions the Act's overriding effect. A marriage solemnised before or after the
Act's enactment has overriding effect and can only be dissolved by a divorce
order based on one of the grounds listed in Section 13 of the Act. They
believed that when a marriage occurs under Hindu law, the partners acquire
status and rights as defined by Hindu marriage, and if one of the parties is
allowed to dissolve the marriage by adopting a different personal law, the
rights of the current spouse who remains a Hindu will be destroyed. A Hindu
husband has the right to convert to Islam, but he does not have the right to
marry again until his first marriage is legally dissolved.253
2) Whether such second marriage without dissolution of the first marriage

would be valid?
The Hindu Marriage Act, 1955, stipulates that a primary prerequisite of
a Hindu marriage is that neither party has a spouse living at the time of the
252
Ibid.
253
https://probonoindia.in/IndianSociety/Paper/405_Case%20Analysis%20on%20Sarla%20M
udgal%20v.%20Union%20of%20India%20-%20Shristi%20Khandelwal.docx.
173
===================================================================================
marriage and that monogamy is strictly enforced. Any marriage performed

under the Act cannot be invalidated unless the grounds specified in Section 13
of the Hindu Marriage Act are met. Parties who have solemnised their
marriage under the Act remain married even if the husband converts to Islam
in search of a new wife. Because his first marriage was performed according
to Hindu customs, a second marriage by an apostate by conversion to Islam is
a marriage in violation of the rules of the Act by which he will be regulated
even after his conversion. As a result, an apostate's second marriage would be
null and void for his wife, who wedded him under the Hindu Marriage Act and
remains a Hindu.254
3) Whether such an apostate Husband can be prosecuted under section 494 of

the Indian penal code?
When a Hindu spouse marries for the second time following
conversion to Islam, all four requirements of Section 494255 are met, as in the
instance of Sarla Mudgal case. He also has a wife who lives with him before
remarrying. Because it occurred during the life of the first wife, the marriage
is null and invalid. The court supported religious unity by interpreting the
rules in such a way that Hindu and Muslim laws operate independently of one
another and do not infringe on each other's persons laws. As a result, the court
ruled that a Hindu husband's second marriage following his conversion to
Islam is void under Section 494 of the Indian Penal Code.256
4) Does India need a Uniform Civil code for its citizen?

The court argued that India needed a Uniform Civil Code to avert
administrative chaos by closing loopholes in the laws. "Uniform Civil Code
since Article 44 of our Constitution has remained a dead letter and a single
Civil Code will promote the cause of national unification by removing
disparate loyalties to laws which have competing ideologies," Justice Y.V.
Chandrachud said in Mohd. Ahmed Khan vs. Shah Bano Begum257. The court
254
Ibid.
255
Indian Penal Code 1860.
256
Supra note 151.
257
174
===================================================================================
also cited Ms. Jordan Diengdeh vs. S.S. Chopra258 to emphasise the
importance of Article 44's adoption in India, and referred to J. Y.V.
Chandrachud's decision in the Shah Bano case. The judges also urged the
government to speed up the adoption of the Uniform Civil Code.259
6.6 Shabnam Hashmi v. Union of India260

While deciding this writ petition filed under Art.32 of the Constitution
of India, a Supreme Court bench comprised of P. Sathasivam, the then Chief
Justice of India, Ranjan Gogoi, and Shiva Kirti Singh JJ. discussed and made
several observations regarding Arts. 14, 15, 44, and S.41 of the Juvenile
Justice (Care and Protection of Children) Act, 2000, (Popularly known as
JJAct), R.33 of the JJ Rules, 2007, and various aspects of personal laws in
relating to adoption. This was a public interest litigation (PIL) filed under
Article 32 of the Constitution, asking the Supreme Court to establish optional
rules to allow and facilitate the adoption of children by people of all religions,
castes, and creeds. The petitioner, a Muslim civil rights activist, had asked the
Supreme Court to recognise him as the biological parent of her adopted
daughter. The petitioner had gained custody of her daughter in 1996, but under
the current Muslim adoption regulations, the petitioner was only referred to as
a guardian and her daughter as a ward. In light of the provisions of the JJAct,
as amended in 2006, the petitioner stated that the writ petition's prayer
regarding the guidelines was satisfactorily answered, and admitted before the
Supreme Court that the JJ Act, 2000 is a secular law that allows anyone,
regardless of religion, to adopt a child.
The All India Muslim Personal Law Board (AIMPLB) has raised an
objection that Islamic Law (Muslim Personal Law) does not recognise
adoption and instead promotes the "kafala" system, in which the child is
placed under the care of a "kafir" who is legally allowed to take care of the
child and provides for the child's well-being, including financial support.
258
259
Supra note 151.
260
(2014) 4 SCC 1
175
===================================================================================
Furthermore, Islamic law does not accept an adopted child as equal to a

biological child, and an adopted child is still considered a true ancestor of his
biological parents, not the "adoptive" parents.
"The Juvenile Justice (Care and Protection of Children) Act, 2000, as

amended in 2006 (JJ Act, 2000), is an enabling legislation that gives a
prospective parent the option of adopting an eligible child by following the
procedure prescribed by the JJ Act, 2000, the Rules i.e. the Juvenile Justice
(Care and Protection of Children) Rulings," the bench stated in rejecting the
AIMPLB's objection regarding adoption under Muslim law and the
applicability of the JJ Act, 2000. The JJ Act, 2000 does not compel any
prospective parent to take any action, and such a person has the option of
using the provisions of the JJ Act, 2000 if he so wishes. Such a person is
always free to adopt or refuse to adopt, opting instead to follow what he
perceives to be the demands of the Personal law that applies to him. The JJ
Act of 2000 is a small step toward achieving the Constitution's goal of Art. 44.
Personal views and faiths must be respected, but they cannot override the
stipulations of an enabling statute.
It was also said that the fundamental rights enshrined in Part III of the
Constitution are the basic human rights that every person possesses, as well as
additional rights that are essential to citizens' dignity and well-being. While it
is true that the dimensions and perspectives of the meaning and content of
fundamental rights are constantly evolving, as is inevitable in a vibrant
democracy where the mind is always free, it was also stated that the
fundamental rights embodied in Part III of the Constitution constitute the basic
human rights that inhere in every person, as well as other rights that are
fundamental to citizens' dignity and well-being. The legislature, which is
better placed to appreciate the mental capacity of the entire community to
reflect together on the matter, has voiced its perspective, for the time being, by
the passing of the JJ Act 2000, which must be respected. The vision
envisioned by Art. 44 of the Constitution, i.e. a Uniform Civil Code, is yet to
be fully realised, and the Court is reminded of its earlier concern about the
need for restraint.
176
===================================================================================
6.7 Shayara Bano V. Union of India:

In such a way few persons are trying to take advantage of loopholes of the
law. Recently Supreme Court in Shayara Bano V. Union of India261 had
declared the practice of triple Talaq (Talaq e bidat) as unconstitutional and set
a solid platform for Uniform Civil Code.
The Indian Supreme Court ruled Shayara Bano v. Union of India and
Others, a significant decision involving Muslim family law in India. This isn't
the first time that the legality of Triple Talaq has been questioned in court. The
current decision takes into account dozens of new previous cases in which this
problem has been raised. However, the constitutional legality of Triple Talaq
has never been challenged before a Constitution Bench of five Supreme Court
judges.262
The case of Shayara Bano vs Union of India, also known as the 'Triple
Talaq Case,' which declared the practise of Tripal Talaq to be unconstitutional
. The Triple Talaq decision is often viewed as a safeguard against societal
evils across jurisdictions. India finally abolished the outdated and unethical
practise of immediate Triple Talaq according to the Supreme Court's majority
bench's intelligent and justifiable argument.263
The fact of the case is as under:

The petitioner, Shayara Bano, has petitioned the Supreme Court to overturn
her husband Rizwan Ahmad's divorce on October 10, 2015, in which he
stated, "...in the presence of witnesses declaring that I gave 'talak, talak, talak,'
so like this I divorce from you from my wife." There is no husband and wife
relationship as of this date. I am now 'haraam' and have changed my name to
'naamharram'. You are free to use your life in the future..." The divorce was
granted in the presence of two witnesses: Mohammed Yaseen and Ayaaz
Ahmad. The petitioner is seeking a determination that her husband's 'talaq-e-
261
2017 SCC1.
262
https://www.legalserviceindia.com/legal/article-5947-case-comment-on-shayara-bano-v-s-
union-of-india-2017-9-scc-1.html.
263
https://lawplanet.in/shayara-bano-vs-union-of-india-case-summary-2017-scc/.
177
===================================================================================
biddat', which he issued on October 10, 2015, is void from the beginning. It is
also her view that a divorce that dissolves the ties of matrimony abruptly,
unilaterally, and irreversibly, ostensibly under Section 2 of the Shariat Act,
1937, be ruled unconstitutional. During the hearing, it was argued that her
husband's 'talaq-e-biddat' (triple talaq) was invalid since it did not fall under
the 'Shariat' (Muslim 'personal law'). The petitioner also contends that a
divorce of this type cannot be considered a "rule of decision" under the Shariat
Act. It was further argued that the practise of 'talaq-e-biddat' is a violation of
Articles 14, 15 and 21 of the Indian Constitution, which guarantee citizens'
fundamental rights. The petitioner further claims that the practise of 'talaq-e-
biddat' is not protected by the constitutional rights guaranteed to religious
denominations in Articles 25(1), 26(b), and 29. It was argued that the practise
of 'talaq-e-biddat' is condemned internationally, and that a substantial number
of Muslim theocratic governments have outlawed it, hence it cannot be
deemed fundamental to the Muslim religion's principles.264
The counter affidavit filed by respondent Rizwan Ahmad the

petitioner‘s husband, discloses, that the ‗nikah‘ (marriage) between the
petitioner and the respondent was solemnized on 11.04.2001, as per ‗Shariat‘,
at Allahabad. It was submitted, that the petitioner – Shayara Bano, performed
her matrimonial duties intermittently, coming and leaving the matrimonial
home from time to time. The matrimonial relationship between the parties
resulted in the births of two children, a son Mohammed Irfan and a daughter –
Umaira Naaz , both at Allahabad.265
The petitioner-wife left her matrimonial house on 9.4.2015 with her

father Iqbal Ahmad and maternal Uncle Raees Ahmed, as well as children
Mohammed Irfan and Umaira Naaz, to live at her parental home, according to
the respondent–husband. The respondent argues that he continued to see the
petitioner for the purpose of paying her support and checking on her health. In
May and June 2015, when the husband saw the wife at her parents' house, she
refused to join him and so refused to return to the matrimonial home. Rizwan
264
https://main.sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug-2017.pdf.
265
Ibid.
178
===================================================================================
Ahmad requested that Shayara Bano be returned to her matrimonial home on

July 3, 2015. After a few days, her father informed him that the petitioner was
not interested in living with the respondent.266
The petitioner's father took his two children, Mohammed Irfan and
Umaira Naaz, to Allahabad on July 7, 2015. Both of the children have since
been in the husband's care and custody in Allahabad, according to the
husband. The husband claims that the petitioner's father gave him the idea that
the petitioner would prefer to return to Allahabad as a result of the husband's
care and custody of both children at the matrimonial home. The respondent-
husband claims that on 09.08.2015, he attempted to bring the petitioner-wife
back from her parental house, but Shayara Bano refused to join him. Rizwan
Ahmad was allegedly opposed in the aforementioned endeavour by both the
petitioner's father and maternal uncle.267
Finding himself in the aforementioned situation, Rizwan Ahmad filed

Matrimonial Case No.1144 of 2015 with the Principal Judge of the Family
Court in Allahabad, Uttar Pradesh, and requesting restitution of conjugal
rights. The petitioner, Shayara Bano, filed Transfer Petition (C) No. 1796 of
2015 under Section 25 of the Code of Civil Procedure, 1908, read with Order
XXXVI-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial
Case No. 1144 of 2015, filed by the respondent-husband (seeking restitution
of conjugal rights), pending in Allahabad, Uttar Pradesh, to the Principal
Judge, Family Court, Kashipur, Uttarakhand.268
The wife claimed in the above transfer petition that the Petitioner, who
belongs from Kashipur, Uttarakhand, is unemployed, and her father is a
government employee. The Petitioner's only source of income is his low-
income father, and despite this, the Petitioner made arrangements that were
beyond their means at the time of their marriage. However, shortly after the
marriage, the Respondent husband began demanding more dowry and
266
Supra note 162.
267
Ibid.
268
Ibid.
179
===================================================================================
excessive demands for a car and money. The Respondent and his family
tortured and physically mistreated the Petitioner for refusing to comply with
the Respondent's demands. She was frequently abused and imprisoned in a
dark chamber for days on end. The Respondent's family gave her drugs that
caused her memory to deteriorate. She was rendered comatose for several
hours as a result of the medications.
The Respondent attempted to kill the Petitioner by giving medications

on April 9, 2015. Following a later assessment by a doctor, these drugs were
discovered to induce loss of mental balance following regular use. The
Petitioner was brought to Moradabad in a severe near-death condition with the
idea of abandoning her if the Respondent's dowry demands were not met.
Following that, on April 10, 2015, the Respondent invited the Petitioner's
parents to Moradabad to pick up their daughter. The Petitioner's parents urged
that he travel to Kashipur to meet with them and resolve the matter. He
refused to travel to Kashipur, stating that they should either come and take
their daughter or meet his dowry demands. He asked for Rs. 5,00,000/-
(Rupees Five Lakh Only).269
After the consideration of above fact Honorable Supreme Court has

given the judgment as fallow:
The Supreme Court's Constitution Bench upheld and ruled the practise
of instantaneous Triple Talaq or Talaq-e-biddat to be unlawful under Article
14 read with Article 13(1) of the Indian Constitution by 3:2 majorities. The
Court concluded in Shayra Bano v. UOI that the Muslim Personal Law
(Shariat) Application Act of 1937 sanctioned the practice as a matter of
personal law. The Court explained that "...an arbitrary action must contain
negation of equality" and concluded that triple talaq violates Article 14 of the
Indian Constitution since it specifies that the marital tie might be destroyed
capriciously with no attempt at reconciliation to save it.270
The Supreme Court also ruled in Shayra Bano v UOI that the Muslim
Personal Law (Shariat) Application Act 1937 is void because it recognises and
269
Supra note 165.
270
https://lawplanet.in/shayara-bano-vs-union-of-india-case-summary-2017-scc/.
180
===================================================================================
enforces triple talaq, citing Article 13(1) of the Constitution, which states that
all laws in force immediately before the commencement of the current
Constitution (including the 1937 Act) are void if they are incompatible with
the Constitution's fundamental rights. The Supreme Court held that the
practice of Talaq-e-biddat is not protected by Article 25's exception since it is
not an essential component of the Islamic religion. The court defended its
position by claiming that, while the Hanafi School follows it, it is immoral to
do so. Triple Talaq goes against the Quran's essential teachings, and whatever
goes against the Quran goes against Shariat; hence, what is terrible in theology
cannot be good in law.271
The Shayra Bano ruling is definitely a step toward equality, and it has
laid the groundwork for future personal law and societal reforms. This case,
Shayara Bano v UOI, dealt with the minority in a very practical way, which is
a step toward secularism. Despite the fact that the primary focus was not on
gender justice, it will have a substantial positive impact on women's rights and
gender equality in India. This judgement is supposed to be objectively
examined, assisting Muslim women in living a better and more secure life as
guaranteed by the law of the state.
Uniform Civil Code is also known as 'one Nation one law'. In India, for
different religious people, different personal laws are applicable therefore it is
a dream of India to make one unified law for all religious people. But from the
inception of the Indian constitution, this dream is preserved in cold storage.
There is a demand to unify all these personal laws and Set a standard set of
secular laws which deals with issues of marriage, adoption, Succession,
divorce maintenance, partition, etc. But due to the lack of political will or to
preserve and protect a vote bank, the principle of the Uniform Civil Code has
not come to existence.
271
Supra note 166.
181
===================================================================================
6.8 Indian Young Lawyers Association v. The State Of

Kerala
(2019) 11 SCC 1) (Sabrimala Case)
The Sabrimala Temple, considered the residence of Lord Ayyappa, is located

in the Periyar Tiger Reserve in Kerala's Pathanamthitta District, in the
Western Ghat mountain ranges. On the basis of worship, it forbade women in
their menstruating years i.e. between the ages of 10 to 50 from entering in the
temple.
The Indian Young Lawyers Association brought a public interest

litigation petition to the Supreme Court in 2006, contesting the Sabrimala
Temple's practise of excluding women. According to the Association, the
custom infringes on female devotees' rights to equality under Article 14 and
freedom of religion under Article 25. The State argued that the Temple's
priests had final authority on this matter. The Travancore Devastan Board has
legal jurisdiction to administer the Sabrimala Temple. A religious
denomination's ability to conduct its own internal religious affairs is
guaranteed under Article 26 of the Constitution. Additionally, Rule 3(b) of the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965
preserved the Sabrimala custom. This rule authorised the exclusion of women
from public places of worship if the exclusion was based on "custom."272
In the case of S. „Mahendran v. The Secretary, Travancore‟273 the

exclusion was challenged in the Kerala High Court in 1991. The exclusion
was found to be constitutional and justified by the Court since it was a long-
standing custom that had existed from the beginning of time. The Supreme
Court issued notices to the parties on August 18th, 2006. The case was sent to
a three-judge bench on March 7th, 2008. On the 11th of January 2016, it was
brought up for hearing for the first time in seven years. The Court expressed
its willingness to refer the case to a Constitution Bench on February 20, 2017.
272
―Sabarimala Temple Entry - Supreme Court Observer.‖ Supreme Court Observer,
https://www.scobserver.in/cases/indian-young-lawyers-association-v-state-of-kerala-
sabarimala-temple-entry-background/. Accessed 16 Feb. 2022.
273
AIR 1993 Ker 42
182
===================================================================================
Finally, on October 13th, 2017, a bench consisting of Chief Justice Dipak

Misra, Justice R. Banumathi, and Justice Ashok Bhushan directed that the case
be heard by a Constitutional Bench. The Constitution Bench handed down its
decision on September 28th, 2018.
With 4:1 majority, the court decided that Sabrimala's exclusion of

women between the ages of 10 and 50 years infringed their fundamental
rights, and that Rule 3(b) of the Public Worship Rules was unconstitutional. In
a dissenting opinion, Justice Indu Malhotra stated that in a secular
government, courts should not engage in religious affairs, which should be left
to individuals who practise the religion. Various organisations, including the
National Ayyappa Devotees (Women's) Association, the Nair Service Society,
and the All Kerala Brahmin's Association, submitted more than 50 review
petitions as a result. The Court will decide the review petitions after it has
resolved key overarching constitutional questions about the interaction of the
fundamental rights to equality and freedom of religion.274
Issues of the case:

1) Whether an exclusionary practise based on a biological feature unique to
the female gender constituted "discrimination" and so violated Articles 14, 15,
and 17 of the Constitution, without being covered by "morality" as defined in
Articles 25 and 26.
2) Whether the practise of barring such women under Article 25 constituted a

"essential religious practise," and whether a religious institution might
establish a claim in that regard under the canopy of the freedom to govern its
own affairs in matters of religion.
3) Whether Ayyappa Temple had a denominational character, and if so, was it

permissible for a ‗religious denomination' managed by a statutory board and
funded from the Consolidated Fund of Kerala and Tamil Nadu to violate
constitutional morality; and
274
Supra Note 231.
183
===================================================================================
4) Whether Rule 3(b) of the KHPW Rules, 1965 was ultra vires the KHPW
Act, 1965, and, if treated as intra vires, whether it violated Part III of the
constitution.275
Arguments in the case:

1) The Petitioners stated that discrimination against menstruation women was
arbitrary under Article 14 since there was no constitutional justification for
creating a separate, excluded class of women aged 10 to 50. They further
claimed that the Lord Ayyappa temple and its worshippers did not qualify as a
separate religious sect under Article 26 of the constitution.
2) Compulsory revelation of menstruation status, according to one of the

Intervening Applications (No. 10 of 2016), is a violation of women's right to
privacy. They used the decision in K.S. Puttaswamy and Anr. vs. Union of
India ((2017) 10 SCC 1) to claim that denying menstruation women access
was discriminatory and infringed on their dignity.
3) The Respondents asserted that Rule 3(b) was not unlawful since it only
denied entrance to women of a certain age group for a specific purpose, rather
than all women as a class. Mr. K. Ramamoorthy, Amicus Curiae, also
contended that Lord Ayyappa devotees may be considered a religious sect, and
thus was not subject to Article 25's reform provisions, but could govern their
own affairs under Article 26 of the Indian constitution.
4) Amicus Curiae is a legal term that refers to a person who is Mr. Raju
Ramchandran argued that the exclusionary practice's implementation
necessitated women's involuntary disclosure of their menstrual status and age,
which amounted to forced disclosure, as recognised in the Puttaswamy
decision, and thus violated their right to dignity and privacy under Article 21
of the Indian Constitution.276
275
―Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors.‖ Privacy
Law Library, https://privacylibrary.ccgnlud.org/case/indian-young-lawyers-association-and-
ors-vs-the-state-of-kerala-and-ors. Accessed 16 Feb. 2022.
276
Supra Note 234.
184
===================================================================================
Judgement of the case:

The Supreme Court ruled in a 4:1 decision that the limits on women between
the ages of 10 and 50 entering the Sabrimala temple were unconstitutional,
and Rule 3(b) of the KHPW Act was repealed. The Court also issued
instructions to guarantee that women pilgrims accessing the site are protected.
The majority found that devotees of Lord Ayyappa were not a separate
religious sect but were part of the Hindu fold, and that the exclusion of women
could not be regarded an essential religious practise in the lack of biblical or
textual proof. Rule 3(b) was also found to be in violation of the KHPW Act's
goal of reforming and opening public Hindu sites to all people, according to
the opinion. The Court also found Rule 3(b) of the KHPW Rules invalid
because it violated Part III of the Indian Constitution.
The social exclusion of women based on physiological characteristics

such as menstrual status, according to Justice D.Y. Chandrachud, was
comparable to a form of untouchability, based on notions of "purity and
pollution," which served to stigmatise individuals, and could not be justified in
the scheme of constitutional morality, despite being explicitly prohibited under
Article 17. In his decision on the right to privacy, Justice D.Y. Chandrachud
stated that a woman's menstrual status would be an integral aspect of her
private. He further claimed that imposing discriminatory barriers based on
menstrual status violated the Constitution's guarantee of women's dignity.
In her dissenting opinion, Justice I. Malhotra stated that the case

should be dismissed due to the Petitioners' lack of standing. She also found
that Ayyappans, or Sabrimala Temple devotees, met the conditions of being a
religious group, and hence may benefit from Article 26 safeguards. She also
stated that the limited limitation on women's admission would not be in
violation of the Constitution's Part III.277
277
―Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors.‖ Privacy
Law Library, https://privacylibrary.ccgnlud.org/case/indian-young-lawyers-association-and-
ors-vs-the-state-of-kerala-and-ors. Accessed 16 Feb. 2022.
185
===================================================================================
6.9 Sameena Begum V. Union of India278

Sameena Begum, who has become the face of the anti-Nikah Halala and anti-
polygamy movement, has received death threats. With three children to raise
and no parental assistance following her father's death, Sameena's life has
devolved into a never-ending battle for survival and justice. The 40-year-old is
unable to provide for her family. Despite her training in acupressure therapy,
she refuses to leave her one-room rented flat in south-east Delhi to see her
patients because she was under "continuous threat."279
Sameena's problems started in 1999, when her father, a government

schoolteacher from Sambhal (UP), married her at the age of 18 to a man from
Delhi. She filed a police report after being beaten and mistreated by her
husband for dowry and was soon given talaq. Sameena was compelled to
remarry an older man who was already married by her family. During her third
pregnancy, though, she was again granted triple talaq over the phone after a
little quarrel. Sameena, who is one of the primary petitioners in the case along
with Delhi-based counsel Ashwini Kumar Upadhyay, aims to put an end to the
pain of other women like her now that the Centre is constructing a case to
abolish Nikah Halala and polygamy. She is overjoyed since the Supreme
Court requested a response from the Centre on her plea last week. "I started
talking to other women through activists and social media and founded an
NGO called Mission Talaq," she added, alleging that neighbours and gangsters
in Okhla Vihar, where she had tried to rent a property, were threatening her
life.280
Sameena was able to obtain security from local police after much
work, but she reports that her two personal security guards rarely show up for
duty, leaving her unprotected. "The goons are pressuring me to drop the case,
278
Writ Petition (Civil) No. 222, 202, 235 And 227/2018 | 26-03-2018.
279
Sarda, Kanu. ―Sameena Begum, Face of the Fight against Nikah Halala, Facing Death
Threats- The New Indian Express.‖ The New Indian Express, The New Indian Express, 8 July
2018, https://www.newindianexpress.com/thesundaystandard/2018/jul/08/sameena-begum-
face-of-the-fight-against-nikah-halala-facing-death-threats-1839857.html.
280
Ibid.
186
===================================================================================
but I am determined to fight for Muslim women's rights and will see this
through to the end," Sameena declared.
In this case Petitioner Sameena Begum was divorced by her first

husband after he used triple talaq to divorce her. She filed a case with the
Indian Penal Code, 1860, under Section 498A. Her second marriage came to
an end when she was given triple talaq over the phone. Ms. Sameena Begum
submitted the petition as part of a public interest lawsuit to end polygamy and
Nikah Halala. The petitioner cited the Supreme Court's decision in Shayara
Bano v Union of India, which declared triple talaq unconstitutional. She also
mentioned the Supreme Court's Suo Moto Writ suit, which was filed in 2015
to look into gender discrimination against Muslim women.
The Petitioner investigated polygamy's history. She said that it was

created as a tool to assist war widows and orphans, and that it does not give
the modern Muslim male permission to marry many women. She also
mentioned that in Islam, marriage is seen as a contract, and a woman might
make it a condition of the contract that her groom not marries again. A man's
second marriage, on the other hand, will be considered a breach of
contract, not as retaliation.
Petitioner had prayed following thing before the honourable court:

1) Declare Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, unconstitutional to the extent that it validates polygamy and the Nikah
Halala system.
2) Declare Sections 498A, 375, and 494 of the IPC to be applicable to Triple
Talaq, Nikah Halala, and Polygamy, respectively.
3) Direct the Law Commission of India to publish its report introducing the
Uniform Civil Code in furtherance of Article 44 of the Constitution.
187
===================================================================================
CHAPTER 7:
CONCLUSION AND SUGGESTIONS:

The investigation of the hypothesis, which was framed at the beginning of the
research problem, is the focus of this seventh chapter. The researcher will
draw certain conclusions and make specific recommendations, which will be
the outcome of this research project.
India has a complicated legal system that governs interpersonal

relationships. Despite the Constitution's directive to the legislature to enact a
Uniform Civil Code applicable to all religious groups that should govern all
family relationships such as marriage and divorce, maintenance, custody of
children, guardianship of children, inheritance and succession, adoption, and
the like, India has a patchwork of personal laws. In fact, the lack of
consistency in the laws governing these crucial inter-personal relationships has
resulted in the denial of constitutionally mandated equality of all citizens
before the law and equal protection of the laws, as well as the related mandate
of non-discrimination on the basis of sex in the crucial area of family law.
In India, there are five basic sets of family rules based on the many
religions practised by the various communities. All Hindus, as well as
Buddhists, Jains, and Sikhs, are governed by Hindu law. Muslims are
governed by Islamic Law, Christians by Christian Law, and Parsees by Parsee
Law. Jews have their own code of conduct. The Special Marriage Act 1954,
which allows people of any faith or differing faiths to marry, is an overarching
secular civil law that the parties can choose. If they marry under the Special
Marriage Act, the Indian Succession Act of 1925 governs the selection of their
heirs and the right to inheritance or succession, which applies to anyone
married under the Special Marriage Act except Hindus. These religious rules
are taken from religious texts and their interpretations by scholars or judges,
and they are interlaced with customary law that varies by region. Legislation
has also changed these statutes from time to time. With the exception of
188
===================================================================================
Muslims and Jews, practically all other communities in India now have
statutory matrimonial law.
Hence, the idea of a Uniform Civil Code strikes at the very heart of
religious tradition and orthodoxy. The goal of this research is to integrate India
by bringing all communities together on a shared platform, which is now
regulated by personal rules that are not religious in nature. In terms of social
ethics, there should be a Uniform Civil Code that applies to all religions. The
term "uniform civil code" comes from the concept of a civil law code. It
envisions enforcing the same set of civil laws across all religions and areas.
This transcends citizens' rights to impose distinct personal rules on themselves
depending on their religion or race. A Uniform Civil Code envisions a legal
system in which all citizens of a country are subjected to the same set of civil
laws, regardless of gender, religion, race, or other factors. The Indian
Constitution's Article 44, entitled "Directive Principles of State Policy," asks
for the creation of a Uniform Civil Code. Even after seventy-four years of
independence, India has yet to develop such a universal code.
Despite the fact that the Preamble to the Constitution of India describes
the modern nation state of India as a "Sovereign, Socialistic, Secular,
Democratic, Republic," diverse religious communities' own laws continue to
operate. In modern India, the fact that a Hindu, a Muslim, and a Christian are
all citizens of the same country but are subject to different personal laws is an
anachronism that runs counter to the fundamental principle of secularism. The
word 'secular' was added to the preamble of Indian Constitution in 1976 to
emphasise that no particular religion in the state will receive any state
patronage, and no citizen in the state will be given preferential treatment or
discriminated against solely because he or she practises a particular religion.
Religious rights are included in the Indian Constitution, which protects many
religions and religious groups. Article 25 of the Constitution guarantees
everyone the right to freedom of conscience and the freedom to freely profess,
practise, and propagate religion, subject to public order, morality, and health,
whereas Article 26 grants every religious denomination the fundamental right
to manage its own religious affairs. This is not transferable in any way.
189
===================================================================================
Minorities, on the other hand, have an unequivocal and indisputable right to

preserve their own language, script, and culture under Article 29.
While the Constitution recognises the need for ethnic and religious
groups to affirm their religious identities, personal laws are not treated as
religion, even if they may have originated in religion. The fundamental idea of
Article 44 of the Constitution is that a Uniform Civil Code would build
national unity. The Constitution guaranteed that a Uniform Civil Code could
only be enacted by Parliament by making Article 44 a Directive
Principle despite the fact that the seeds of a Uniform Civil Code are sowed in
the exact article of the Constitution that protects religion. The personal laws of
any religious sect are not included in Article 25 of the Constitution; therefore a
citizen cannot claim a basic right to observe the personal law of the
organisation or community to which he belongs. However, Article 25 contains
a clause that gives the state the authority to regulate and restrict economic,
financial, political, and other secular activity that may be linked to religious
practise. As a result, religious freedom does not extend to social and economic
behaviours, as well as certain civil law issues that are not part of the essence of
religion.
As a result, the Uniform Civil Code is not anti-secular and would not
contradict Articles 25 and 26 of the Indian Constitution. The Uniform Civil
Code will not interfere with one's religious convictions in things such as
marriage, divorce, maintenance, succession, and so on; rather, it will establish
a common law for all such subjects. In a civilised society, the judiciary has
also endeavoured to make it apparent that there is no necessary relationship
between religion and personal law. Marriage, succession, and other matters of
a secular nature can be regulated by legislation. No religion allows for
intentional deception.
While the British Raj codified criminal and procedural law in India
with the Code of Civil Procedure 1859, the Penal Code 1860, and the Code of
Criminal Procedure 1861, they refrained from codifying the so-called
"personal law" of Hindus and Muslims. The issues (marriage, divorce,
190
===================================================================================
maintenance, succession, and so on) were inextricably linked with the customs
and laws of their respective religious communities. According to the British
Administrator and legal experts, these issues were handled in regular courts by
judges trained in and familiar with the common law style. Until around 1860,
the courts had "local law officers" i.e pundits and kazis assigned to them to
advise them on Hindu and Muslim law, respectively. To make the law more
uniform, certain, and accessible to British judges, as well as to control the
discretion of law officials, courts increasingly relied on text translations,
digests, and guides, as well as their own precedents. When the entire court
system was rationalised and unified in 1860, the law officers were disbanded,
and the judges were given sole authority to find and implement personal law.
The Hindu Code Bill, introduced shortly after independence in 1948

was a first step toward a Uniform Civil Code for all. Hindus were outspoken
in their opposition, and the bill was withdrawn from consideration before the
end of the session. Later, in the shape of a series of legislations, the Hindu
Code Bill was submitted and passed. Thus, even the Hindu laws that were
varied in different areas of the country saw a turbulent transformation as a
result of a geographically united India, which Hindus recognised as a positive
shift given the passage of time. Independent India brought a note of
voluntarism while keeping the personal law system. In 1954, the parliament
passed the Special Marriage Act, which establishes a special form of marriage
that can be used by anyone in India and all Indian nationals living abroad,
regardless of their religious beliefs. Even parties who have solemnised their
marriage under a different law may have their marriage registered under this
Act if they meet the Act's requirements. Persons who marry under this Act are
entitled to its benefits and are bound by its prohibitions. Even though one's
personal law allows for more than one spouse, after the marriage is solemnised
under this legislation, there can be no more than one wife. However,
compliance with this Act is voluntary, which runs counter to the principle of
uniformity.
In 1979, the Supreme Court took the first step toward uniformity by
granting support to a Muslim wife under Section 125 of the Code of Criminal
191
===================================================================================
Procedure, 1973. A wife, including a divorced wife, has a right to maintenance

from her husband under Section 125. However, Section 127 of the Code
stipulates that a woman is ineligible for maintenance if she has received any
money under any customary or personal law relevant to the parties. While
granting relief, the Supreme Court interpreted Muslim law, stating that the
goal of any payment made under customary or personal law must be to
prevent the divorcee from becoming homeless and to give her with the means
to support her. Law is dynamic, and its meaning must be meaningful rather
than pedantic. According to the Apex court of India, "Neither personal law nor
any other salvationary claim will prevail against the policy of public law
dominating Section 127(3)."
While emphasising the goal of Article 44 of the Constitution, the court

stated that an uniform civil code will help in the cause of national unification
by removing desperate allegiances to law that are ideologically contradictory.
Making gratitutious concessions on this issue is unlikely to ring the bell for
any community. It is the state's responsibility to ensure a Uniform Civil Code
for the residents of this country, and it has undoubtedly the authority to do so.
We recognise the challenges of bringing people of all religions and ideologies
together on a single platform. However, if the Constitution is to be
meaningful, it must begin somewhere. Because it is beyond the endurance of
sensitive minds to allow injustice to exist when it is so applicable, the Courts
must invariably assume the role of the reformer. However, this decision
sparked outrage among a segment of the Muslim community, which the
government in power sought to quash by quickly enacting the Muslim Women
(Protection of Rights on Divorce) Act 1986, which is not only in violation of
Article 44 of the Constitution, but also contains the provisions that the
Supreme Court had condemned as a "most unreasonable view of law and life."
As a result, this Act re-established Muslim law, at least in the sense that it was
formerly understood. Concerns of Minorities about their personal law are
related to their privileged position as minorities in a country, not to the laws
themselves. Political strife over personal law appears to be more frequent in
India than the problem of the Uniform Civil Code. For political reasons, fear
of political loss, or a misunderstanding of the term "religious tolerance,"
192
===================================================================================
successive governments have acquiesced in this argument. They haven't

grasped those disparities in the law lead to a sense of injustice and, inevitably,
animosity.
The principle of equality before the law and equal protection under the
law is a key feature of Indian Constitution. The UCC is an excellent addition
to this notion. It is self-evident that all religions in the country must be given
equal rights and protection. However, it is equally clear that the traditions of
each faith must not contradict the religious equality guaranteed by Indian
Constitution. The UCC's implementation would only ensure that religious
laws be applied equally to all women, children, and men. It would not give
preferential consideration to a specific gender, caste, or subcaste. It would not
be against Secularism's beliefs. On the other hand, the UCC's goal isn't to
change people's minds about religion or to damage their religious feelings;
rather, it's to create a common legal system that benefits everyone on an equal
footing. The prohibition of social evils such as Sati and Child Marriages, as
well as female infanticide, was not merely a gesture toward assisting Hindu
women and children, but a legal measure to ensure that no one's right to life
was violated. One of the earliest symbolic steps toward the adoption of the
UCC was taken with this measure.
Article 44, dealing to the Uniform Civil Code, received very little
attention from legislators, attorneys, judges, and legal academics over the
seventy-one years of our Constitution. In fact, it was a sincere wish of the
Constitution's founders that was occasionally repeated in various forms.
Article 44 was viewed as a magic cure to all problems, an ideal that could put
an end to the great communal divide that was becoming more strident with the
passage of time in a nation struggling to deal with phenomenal
problems, combating with separatist forces threatening its very existence.
However, over the last two decades, Article 44 has sparked a rush of activity
in a variety of sectors, resulting in political agitations, judicial decisions,
legislative discussions, and scholarly outpourings all focusing on this article,
with players taking sides on both sides of the debate. Beyond four wives and
three talaqs, the debate over the Uniform Civil Code must be broadened. Take
193
===================================================================================
a look at the honour killings and Khap Panchayant rulings. They all wish to
impose their religious and cultural values on their family and community
members. If they are forced to follow a system that is not in line with their
beliefs, it usually leads to societal instability. India is a country with millions
of different cultures and communities. Everyone believes that his or her
religion and traditions are the finest. No one wants to think about fixing their
own system while worrying about the systems of others. Rather than genuine
social improvements, the Uniform Civil Code is frequently utilised to target
minorities. Minority bashing will simply make members of such communities
more possessive of their supposed identity and customs, thereby limiting the
opportunity for nurturing the Uniform Civil Code, which is still in its infancy.
The notion is that everyone should be treated equally and that everyone
should be protected by rules that are just, fair, and predictable. Time has
passed, cultures have evolved, and it is a time for laws to evolve as well.
Education, economic prosperity, agricultural advancements, cross-border
migration, and western influence have extended throughout urban India. Rural
settlements, on the other hand, continue to struggle with traditional and
superstitious ideas on family problems. A uniform civil code would not only
transform the way families are governed, but it will also affect the lives of
millions of people by filling in the gaps in diverse religious regulations.
Apart from reaching a consensus, the most difficult component of

establishing the Uniform Civil Code is drafting a uniform civil code. Should it
be a synthesis of all existing personal laws or a new law based on the
Constitution's mandate? Many argue that if a Uniform Civil Code is
established, the new laws will reflect the majority Hindu population's
concerns. The Muslims, India's second largest community, are the most vocal
opponents of the UCC's formulation. In the name of religion, culture, or the
immutability of the law as ordained by Allah and the prophet, they object to
even the smallest reform or change in their own law. The Christians, another
minority group, are concerned that without a separate personal law, their status
and autonomy as a minority group may be jeopardised, and that their
constitutionally recognised status may fade, causing them to lose their identity
194
===================================================================================
as well as their freedom to practise their religion. Many Parsis also contend
that if there is no separate personal law system, the result will be a Uniform
Civil Code that will invariably support Hindu interests.
The notion that the Hindu Code will be imposed on everyone under the
pretext of the Uniform Civil Code is a myth. A uniform law code does not
always imply a single community's (Hindu) law, but rather the incorporation
of personal laws from several religious communities based on the principles of
gender equality and individual liberty. The Uniform Civil Code should strike a
balance between fundamental rights protection and individual religious
dogmas. It should be a code that is not prejudiced towards religious or political
reasons. It should be a code that is not prejudiced towards religious or political
reasons. During the Constituent Assembly debate on why Article 44 was
included in the Directive Principles, it was stated that "when you wish to
consolidate a community, you have to examine the benefits that may accrue to
the complete community, not to the customs of a section of it." When you look
at the countries in Europe that have a civil code, you will notice that everyone
who visits becomes a member of the globe, and every minority is required to
follow the civil code.
While drafting the Uniform Civil Code, it is necessary to strike a

balance, i.e. to protect civil rights and minorities' identities while refusing to
pander to religious fundamentalism of any colour. Under the uniform laws, a
Hindu will not be forced to perform a nikah, and a Muslim will not be forced
to perform saptapadi, but it does mean that basic essentials or principles of
marriage, divorce, maintenance succession, and so on will be common to all,
regardless of their religions, e.g., the principle of monogamy should be
imposed on all, or the age at which a couple can marry should be fixed for all.
When it comes to the operation of the Uniform Civil Code, some legal
experts believe that a conducive environment must be developed so that all
segments of society are prepared to accept uniform regulations in areas
relating to marriage, divorce, maintenance, and succession, among other
things. Some believe that the Uniform Civil Code will be abused or rejected,
195
===================================================================================
but this should not prevent Parliament from passing the Uniform Civil Code
because the social welfare and benefits that will follow from its adoption are
considerably larger. Hindus objected to the Hindu Code Bill when it was
adopted in 1948, claiming that it was in violation of the Dharamshastra, which
integrates classical Hindu jurisprudence. However, the then-law minister, Dr.
B. R. Ambedkar, had stated that a codified law was required for India's unity,
and four Acts were eventually passed. In a similar vein, the Uniform Civil
Code might be introduced, which would apply to all religious communities as
well as anybody visiting India. In addition, the state of Goa has a Uniform
Civil Code called Family Law that applies to all communities and was
developed and implemented by Portuguese colonial rulers through different
legislations in the 19th and 20th centuries. Following the liberation of Goa in
1961, the Indian state repealed all colonial laws and applied Central laws to
the province, with the exception of family laws, which were retained in Goa
because the people in wanted it.
Furthermore, there is debate over the best timing to establish the

Uniform Civil Code; it might be argued that India has strayed far from the
ideal since the Constitution was written seventy-one years ago. It is
crucial time for India to have a standard legislation governing marriage,
divorce, succession, and maintenance, among other things. Rather, it is vital
that thoughts and passions be cooled and tempered by genuine attempts to
modify the public's thinking and adopt the Uniform Civil Code.
In this last chapter, the researcher is going to conclude and will try to
make certain suggestions. If a uniform civil code is enacted and enforced,
1) It would help and accelerate national integration.
2) Litigations due to personal law world decrease.
3) Overlapping provisions of the law could be avoided.
4) The country would emerge with new force and power to face and odds
finally defeating the communal and the divisional forces. These are a few
outcomes of the uniform civil code.
196
===================================================================================
Suggestions for forming draft of Uniform Civil Code:

The following suggestions should be followed or considered while drafting the
Uniform Civil Code in matters relating to marriage, divorce, maintenance,
succession, inheritance, and adoption in order to promote the spirit of
uniformity of laws and achieve the goal enshrined in Article 44 of the
Constitution. These are organised under the headings:
1) Marriage and Divorce:

There is just the Special Marriage Act of 1954, under which anybody can
marry, and such marriages are called as "Civil Marriages." Marriages
solemnised in any other way can also be registered under this legislation, and
once the parties are registered under this legislation, they must abide by the
regulations set forth in it. There are several personal laws that address the
marital parties' obligations and rights, resulting in various inconsistencies. To
eliminate such disparities and disadvantages, all communities should be
subjected to the requirements of the SMA, with certain better provisions from
other personal laws being considered for inclusion in the Code. In relating to
marriage researcher will make following suggestions:
i) Monogamy should be imposed on all and polygamy should be prohibited in
the Uniform Civil Code since it discriminates against women and violates
their basic rights.
ii) Minimum age of male and female for marriage should be twenty one and
eighteen years, respectively. This would aid in the prevention of child
marriages. Any person who violates this clause shall face severe penalties.
Punishment for the parents of such minors should be imposed as well, as this
would serve as deterrence to society.
iii) Marriage registration should be made mandatory. This will help to
determine validity of marriage. As well as government officer and legal
representative of village should be empowered to preserve a marriage register
for the purpose of detecting and preventing fraud and fake marriages.
iv) The grounds for divorce should be clearly defined for everyone, regardless
of religion. It is required to introduce the premise of irreversible breakup of
197
===================================================================================
marriage and divorce based on mutual consent, which is necessary in light of

society's changing needs.
2) Maintenance:
Hindu, Muslim, and Christian maintenance laws are highly distinct from one
another. The Muslim Women (Right to Protection on Divorce) Act of 1986
allows a Muslim woman to seek maintenance. A Hindu wife or husband can
seek spousal support as well as permanent alimony while the divorce is
pending. Apart from the particular laws of many religious communities,
Section 125 of the Code of Criminal Procedure, 1973, allows one to claim
support. Apart from that, the Hindu Adoption and Maintenance Act of 1956
provide maintenance to the wife, father, mother, son, and unmarried daughter.
As a result, we have a variety of laws in place to assist those who are in need.
However, these regulations are not prevalent, and they can be discriminatory
towards women. In problems of maintenance, the Uniform Civil Code should
include the following core principles:
i) A husband should support his wife not just during their marriage but also
after they divorce till she remarries.
ii) The parents should be held responsible for the maintenance of their
children, the son until he is able to support himself and the daughter until she
marries. This is advised because, unlike western countries, we lack a social
security system that can meet the requirements of individuals, particularly
those who are unable to care for themselves, such as the disabled.
iii) The responsibility of maintenance of parents should be lies on son and
daughter.
3) Adoption:
Adoption in this country is one of the most difficult socio-legal concerns. On
the one side only Hindus have the legal right to adopt a child and there is
provision for adoption of child in the personal laws of other religion and on
the other side, the number of orphaned and abandoned children is staggering.
The percentage of orphaned and abandoned children has increased as a result
of this unbalanced condition. A child's right to have a family is unalienable.
198
===================================================================================
However, if no one wants to adopt him or her, the child is forced to live a life
in which having a family is either impossible or extremely rare. People, with
the exception of Hindus, avoid adopting children for a variety of reasons,
including legal inability and traditional attitude. People who desire to adopt an
orphan child but are unable to do so because their personal legislation
prohibits adoption have also been seen. In such cases, both the child in need of
a family and the family in need of a child are subjected to injustice in the name
of religion or a specific personal law.
But section 41 of Juvenile Justice (Care and Protection of Children)

Act, 2000 helps such needy people to adopt a child. This provision is read as
fallow,
“(1) The Primary responsibility for providing care and protection to children
shall be that of his family.
(2) Adoption shall be resorted to for the rehabilitation of the children who are
orphan, abandoned or surrendered through such mechanism as may be
prescribed.
(3) In keeping with the provisions of the various guidelines for adoption issued
from time to time, by the State Government, or the Central Adoption Resource
Agency and notified by the Central Government, children may be given in
adoption by a court after satisfying itself regarding the investigations having
been carried out as are required for giving such children in adoption.
(4) The State Government shall recognize one or more of its institutions or
voluntary organizations in each district as specialized adoption agencies in
such manner as may be prescribed for the placement of orphan, abandoned or
surrendered children for adoption in accordance with the guidelines notified
under sub-section (3):
Provided that the children’s homes and the institutions run by the State
Government or a voluntary organisation for children in need of care and
protection who are orphan, abandoned or surrendered, shall ensure that these
children are declared free for adoption by the Committee and all such cases
shall be referred to the adoption agency in that district for placement of such
children in adoption in accordance with the guidelines notified under
subsection (3).
199
===================================================================================
(5) No child shall be offered for adoption :- a) until two members of the
Committee declare the child legally free for placement in the case of
abandoned children,
b) till the two months period for reconsideration by the parent is over in the
case of surrendered children, and
c) without his consent in the case of a child who can understand and express
his consent.
(6) The court may allow a child to be given in adoption-
(a) to a person irrespective of marital status or:
(b) to parents to adopt a child of same sex irrespective of the member of living
biological sons or daughters; or
(c) to childless couples.”
This section 41 helps the childless parents to adopt a child and orphan
children to get a house. This section need to be aware is the society. The
purpose of this legislation is to protect the wellbeing of orphan children.
However, several of the law's provisions indicate the legislature's strong
concern for children's rights.
The Uniform Civil Code should include specific guidelines for child custody
and adoption, such as:
i) Both parents should have equal power to adopt the child.
ii) Adopted children should be treated the same as biological children born out
of wedlock.
4) Successions and Inheritance:

In the laws of many religious organisations, succession and inheritance laws
varied dramatically. Male heirs have an advantage in inheritance rights. Hindu
law forbade women from inheriting property until the Hindu Code Bill was
passed in 1956. Women now have an equal part in coparcenary property as a
result of a recent revision to the Hindu Succession Act, 1956. However, there
is still a distinction between joint family property and self-owned property
under Hindu law. Women, on the other hand, have inferior inheritance rights
under Muslim personal law. Muslims, Jews and Christens have their own
200
===================================================================================
property laws. The right to succession of women is not recognised in

these Acts. From time to time, the judiciary has attempted to provide justice to
the aggrieved parties by interpreting legislation in light of the rights
guaranteed by the Indian Constitution. The Hindu concept of an undivided
family must be abandoned. Similarly, testamentary rights are constrained
under Muslim and Christian law, which has to be modified in today's fast-
changing world.
Hence following are the suggestions in respect of succession.

i) In cases of inheritance, there should be no discrimination based on gender
because it violates the Fundamental Right to Equality guaranteed by Articles
14 and 15 of the Indian Constitution.
ii) Both son and daughter should have equal right on self-acquire and ancestor
property of the parents.
iii) In terms of testamentary power, there should be no restrictions on the
amount of property that can be bequeathed, the person to whom it can be
transmitted, or the donation of the property for religious or philanthropic
reasons.
iv) The procedure for effective execution and compulsory registration of the
will should be given in order to decrease the possibility of fraud and disputes
over immovable property.
There are few other suggestions for the enactment of Uniform Civil code.
1. Broadcast media, including as radio, television, and newspapers, should be
used to create awareness about the Uniform Civil Code and its benefits to the
general public in today's society.
2. A committee of prominent jurists and representatives from many religions

should be formed to facilitate the job of achieving legal uniformity and to
assist the legislature in enacting the cherished objective of a Uniform Civil
Code. It should be attempted to adopt the finest of the many religious
organisations' personal laws.
201
===================================================================================
3. It is the responsibility of legal scholars, advocates, and academics to

promote the idea of secularism and to foster an environment conducive to the
adoption of uniform personal laws that apply to everyone, regardless of faith.
4. In order to achieve a UCC the first need to have a Comprehensive Draft

Bill. This Draft must be prepared by an expert body in consultation with
minorities.
5. At Initial stage make Uniform civil code as an optional.
6. The Supreme Court as a Guardian of the constitution has the inherent power
to issue any direction to give the complete justice hence it must direct the state
to legislate the law to implement UCC.
Researcher must conclude this thesis with following quote,
“The Goal of Uniform Civil Code is not to

change people’s mind about religion or to
damage their religious feelings, rather it is to
create a common legal system that benefits
everyone on an equal footing.”
202
===================================================================================
BIBLIOGRAPHY:
1. A.M. Bhattacharjee, Hindu Law and Constitution, Eastern Law House (1983)
at page 8.
2. A.S. Alteker, State and Government in Ancient India p.100(1958).
3. Afzal Qutb, A treatise on Competing Faith Oriented Family Norms, Upright

Study Home, (1990).
4. Agrawal, KB. Advisability of legislating a Uniform Indian Marriage code, In
Imam Mohammd (ed.) Minoritied and the law, (1972), 442-443.
5. Article „in the absence of ucc- special marriage act is a better bet for women‟
written by Dr. A. Krishna Kumari.
6. Ashutosh Kumar Mishra, Leading Cases of the Supreme Court of India, 825
(Discount Book Publisher, New Delhi, 2014).
7. Aviral Saxena, Codified Laws Versus Personal Laws: In Light of Imrana,

Daily Times (online edition) 27th May 2005.
8. B.P. Beri, Law of Marriage and Divorce in India, Eastem Book Company,
Lucknow (1988).
9. B.S. Nagarajuna, Some Glimpses on Indian History, Culture and Civilization,

Pooja Publications, Ghoshal Street, Calcutta (1976) at page 112.
10. Basu D.D., commentary on the constitution of India, lexis nexis butter worths
wadhawa, Nagpur, 8th Edition, 2008.
11. Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23,
1948.
12. Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd
November, 1948.
13. D.K. Srivastava, Religious Freedom in India, p. 213(1982).
14. Dina raina, uniform civil code and gender justice, reliance publishing house.
15. Dr. B.R. Ambedkar, The Annihilation of Cast: The Annotated Edition, 11
Navayana Publication, New Delhi,2014.
16. Dr. M.P.Raja UCC: A mirage? , Media House.
203
===================================================================================
17. Dr. Ranjan Kumar, The need of Uniform civil Code, pilgrims publishing, first
edition 2017.
18. Dr.J.N.Pande, constitutional Law of India, central law agency, 44th Edition,
2007.
19. Frontline, personal laws past, present, future, Indian national magazine,
September 6, 2013.
20. Gibh, Mohammedanism : An Historical Survey, New American Library,
Oxford University Press, Toronto (1953) at pages 125-127.
21. Indra Malani, Women of the World: Illusion and Reality, Vikas Publications
(1978) at page 22.
22. J. Schacht, An Introduction to Islamic Law, p. I (1964).

23. J.D .M. Derret, The Convert's Polygamous Marriage, Vol .67, Bombay Law
Reporter (1965).
24. John L. Esposito, Islam: The Straight Path, 37-67 (Oxford University Press,
1988.
25. Krishna Bhagwan Aggarwal, “Advisability of Legislating a Uniform Indian

Marriage Code, “in Mohammad Imam, (ed.) “ Minorities and the Law," N.M.
Tripathi Pvt. Ltd. , Bombay (1972) P.443.
26. Kumar, Dr. Ranjan. The Need for a Uniform Civil Code. First, Pilgrims
Publishing, pp. 29–30.
Publishing, pp. 172-173.
publishing.
29. Larson James Gerald, (ed.), “Religion and Personal Law in a Secular India -
A Call to judgement”, Social Science Press, Delhi (2001) P.24.
30. M. A. Qureshi, Muslim Law of Marriage, Divorce and Maintenance, Deep &
Deep Publications, Rajouri Garden, New Delhi (1995) at pages 58-59.
204
===================================================================================
31. M. Rama Jois, Ancient Indian Law Eternal Values in Manu Smriti xx
(Universal Law Publishing.
32. M.P.Jain, The constitution of India, Butterworths Wadhwa, Nagpur, sixth

Edition.
33. M.S.Ratnaparkhi, uniform civil code: An ignored constitutional imperative,
Atlantic publisher.
34. Mathur Nimesh, Common Civil Code: Concept and Ideology at page 125.
35. Maulana Abdul Kalam Azad, Tarjuman- UI - Quran (1956) at pages 186-187.
36. Mohd. Shabbir, "Muslim Personal Law, Uniform Civil Code, Judicial
Activism : A Critique", XII Alig. L.J. 1997,p. 97.
37. Parameswaran, Lekshmi. Debates in the Constituent Assembly and Thereafter
on Uniform Civil Code. 1st ed., Indian Policy Foundation, pp. 6–8.
38. Parashar archana, women and family reforms in India, sage publication.
39. Partha S. Ghosh, The Politics of Personal Law in South Asia; Identity,
Nationalism and the Uniform Civil Code 190 (Routledge, 2007).
40. Qutab jehan kidwi; personal law reforms and gender empowerment: A debate
on uniform civil code, D.K.Publishers distributor‟s pvt. Ltd.
41. Raghavachariar N.R., Hindu Law: Principles and Precedents (1987) at pages
13-14.
42. Rajan Pillai, Framing of a Uniform Civil Code and Some Policy Issues,
Published by Centre for Social Studies, at page 333.
43. Riazul Hasan Gilani, The Reconstruction of Legal Thought in Islam p. 55

(1982).
44. Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code, p.
43 (1998).
45. Second Law Commission of India, (1833) as quoted in M.P. Jain, Outlines of
Indian Legal History (1990) P.640.
46. Seervi H.M., constitutional law of India, universal publishing co.pvt.Ltd, New
delhi, 4th Edition, 2004.
205
===================================================================================
47. Shailja Chander, Justice V. R. Krishna lyer on Fundamental Rights and

Directive Principles, 65 (Deep and Deep Publication, New Delhi, 2015).
48. Shetreet, Shimon. Uniform Civil Code For India. First, oxford university
press, pg. 103.
49. Syed Jaffer Hussain, Legal Modernism in Islam : Polygamy and Repudiation,
Vol. 7, Joumal of Indian Law Institute (1965) at page 384.
50. Tahir Mahmood, Personal Laws in Crisis, p. 20 (1st Ed. New Delhi, 1986).
51. Tahir Mahmood, Uniform Civil Code, Fictions and Facts p. 43(1995).
52. The constitution of India, bare act, Professional Book Publishers.

53. Thomas, Liris. “Legal framework governing Adoption laws in India-
Academike, 4 Feb. 2015.
54. U.C. Sarkar, Epoch in Hindu Legal History, Visheshvaranand Vedic Research
Institute, p. 23 (1958).
55. Understanding the Common Civil Code: An Introduction to Civil Law, Dr.
Noronha Pg.141-142, 2008.
56. V. Narayan Karan Reddy, Essays in Hindu Jurisprudence and Philosophy,

Clarendon Press, Oxford (1980) at page 27.
57. V. Narayan Karan Reddy, Essays in Hindu Jurisprudence and philosophy,

Clarendon Press Oxford (1980) at page 283.
58. V.D. Kulshreshtha, “Landmarks in Indian History and Culture" Eastern Book
Company,Lucknow (1981) P 91.
59. V.S.Deshpande, Studies in Parsi Marriage and Divorce, JLSI, Vol. 20, No.l,
1982, Page 251.
60. Vishal Gangopadyay, Inherent Pluralism and Social Demand for Uniformity,
MJIS, Vol. 20(3) 1999.
61. William Strange, Treatise on Hindu Law (1928) at page 52; Also see Kuldip
Kaur V Amanpreet Singh, AIR 2009 (NOC) 2959 (P&H).
206
===================================================================================
62. Yusuf M.Khan, Mohammadan Law Relating to Marriage and Divorce, Tagore
Law Lectures, Thackers-Sprink company, Calcutta(1990) at pages 214-215.
MISCELLANEOUS / WEBLIOIGRAPHY
1. “An Analysis of Adoption under the Juvenile Justice (Care and Protection of
Children) Act, 2015 - IPleaders.” IPleaders, iPleaders, 12 Aug. 2021,
https://blog.ipleaders.in/analysis-adoption-juvenile-justice-care-protection-
childrenact2015/#:~:text=Section%202%20(2)%20of%20the,with%20being%
20a%20biological%20child.
2. “Guardianship of a Child under Different Personal Laws - IPleaders.”

IPleaders, iPleaders, 9 Mar. 2021, https://blog.ipleaders.in/guardianship-child-
different-personal-laws.
3. “Indian Young Lawyers Association and Ors. vs. The State of Kerala and
Ors.” Privacy Law Library, https://privacylibrary.ccgnlud.org/case/indian-
young-lawyers-association-and-ors-vs-the-state-of-kerala-and-ors. Accessed
16 Feb. 2022.
4. “Sabarimala Temple Entry - Supreme Court Observer.” Supreme Court
Observer, https://www.scobserver.in/cases/indian-young-lawyers-association-
v-state-of-kerala-sabarimala-temple-entry-background/. Accessed 16 Feb.
2022.
5. Chiara Letizia, Secularism and statebuilding in Nepal, available

at:https://www.c r.org/downloads/SecularismAndStatebuildingInNepal.pdf (
last visited on February 12, 2020).
6. Contributors to Wikimedia projects. (2005, August 15). Code of law -

Wikipedia. Retrieved October 5, 2021, from Wikipedia, the free encyclopedia
website: https://en.wikipedia.org/wiki/Code_of_law.
7. http:// www.sacw.net/article621.html.
8. http://centreright.in/2011/10/need-for-uniform-civil-code-in-india.
9. http://en Wikipedia.org/wiki/uniform_civil_code_of_india.
10. http://www.goforthelaw.com/articles/formlawstu.
11. http://www.hindubooks.org/sudheer_birodkar/hindu_history/secularism.html
(Visited on January 06, 2016).
12. http://www.legalserviceindia.com/articles.
13. https://clpr.org.in/wp-content/uploads/2017/11/UCC-Part-1-Constitutional-
History.pdf.
14. https://www.lawyersclubindia.com/articles/state-of-bombay-v-narsu-appa-
mali-air-1952-bom-84--7855.asp.
207
===================================================================================
15. https://www.legalkart.com/legal-blog/what-does-the-succession-law-say.
16. https://www.researchgate.net/publication/316782091_Arguing_for_a_Uniform
_Civil_Code_in_India_in_the_Light_of_Gender_Discriminatory_Practices_un
der_Muslim_Personal_Law.
17. https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-
uniform-civil-code/.
18. https://www.writinglaw.com/succession-under-muslim-law.
19. Kanak Bikram Thapa, “Religion and Law in Nepal” National Report: Nepal,
available at: https://www.iclrs.org/content/blurb/files/Nepal.pdf (last visited on
February 5, 2020).
20. Sarda, Kanu. “Sameena Begum, Face of the Fight against Nikah Halala,
Facing Death Threats- The New Indian Express.” The New Indian Express,
The New Indian Express, 8 July 2018,
https://www.newindianexpress.com/thesundaystandard/2018/jul/08/sameena-
begum-face-of-the-fight-against-nikah-halala-facing-death-threats-
1839857.html.
21. Sudheer Birodkar, Religious Tolerance and the Challenge of Secularism,
available at:
22. www.frontline.in
208
“THE NEED OF UNIFORM CIVIL CODE AND ITS UTILITY
WITH SPECIAL REFERENCE TO CONSTITUTIONAL
PROVISIONS”
THESIS SUBMITTED TO:
SWAMI RAMANAND TEERTH MARATHWADA UNIVERSITY

NANDED, MAHARASHTRA, INDIA
FOR THE AWARD OF DEGREE OF

DOCTOR OF PHILOSOPHY
IN LAW
SUBMITTED BY:
MR. SANDIP DIGAMBARRAO YADAV
Assistant Professor,
K.J.Somaiya College of Arts and Commerce, Vidyavihar, Mumbai.
UNDER THE SUPERVISION OF:
DR. J. B. AURADKAR DR. V. M. MORE

Guide Co-Guide
Principal, Principal,
Shri Shivaji Law College, Kandhar Shri Shivaji Law College, Parbhani
INDIA
MARCH-2022
RECOMMENDATION
The nature of Indian society is pluralistic. Pluralism refers to the existence of
diverse ethnic groups, cultural traditions, languages, religions, and other
characteristics within a nation or society. India, as we perceive it today, is
made up of several groups with various ideologies, such as multilingual,
multicultural, and multi-religious. India is a secular country, which means it
does not have a state-sanctioned religion. However, India is home to the
world's major religions. The primary religions are Hinduism, Islam,
Christianity, and Judaism. Generally, people in India follow their own
personal laws and these laws apply to them. Means for different religious
people‘s different personal laws are applicable in India. There is a huge
contradiction in all these personal laws in respect to marriage, adoption,
maintenance, divorce, and succession.
Hindus and Muslims each have their own set of rules. Statutory
enactments have secularised and modernised Hindu law. Muslim law, on the
other hand, has remained unchanged in terms of content and methodology.
The Christians have their Christians Marriage Act, 1872, the Indian divorce
Act, 1869, and the Indian Succession Act, 1925. The Jews have their un-
codified customary marriage law and in their succession matters, they are
governed by the Succession Act, 1925. The Parsis have their Parsi Marriage
and Divorce Act, 1936. Therefore to achieve uniformity of law Uniform Civil
code is a need of the hour.
Meaning of Civil Code: The present research is going on the burning issue
Uniform Civil Code. So it is very difficult to understand the concept of UCC if
we are unaware of the term civil code. Hence researcher is trying to elaborate
the concept in the following ways.
Civil law refers to the law governing private individual rights and legal
actions relating to those rights, as opposed to criminal, military, or
international regulations or proceedings. Code is a term used in programming
1
to refer to both the statements written in a programming language and the
statements written in a different programming language. A civil code, on the
other hand, is a systematic collection of laws meant to deal with the main
areas of private law, such as business and negligence actions and activities. A
civil code is usually accompanied by a code of civil process in a jurisdiction1.
1.1 Constitutional Provisions:

Some of the provisions of our Indian constitution speak about the Uniform
Civil Code. Especially Article 442 which enshrined under part IV of the
constitution of India. The constitutional makers dreamed that in the coming
future article 44 will be converted into a separate Act but still, the dream is not
fulfilled due to lack of political will. The following provisions of the Indian
constitution narrate about Uniform Civil Code.
i. The preamble of the constitution of India: India is a secular country,

according to the preamble of the Indian constitution. It denotes the absence
of a state religion. A secular state must not discriminate against anyone
based on their religious beliefs. Religion's personal law, on the other hand,
discriminates against others.
ii. Article 13 of the constitution of India: Laws inconsistent with or in

derogation of the fundamental rights-
(a) All laws in force in the territory of India immediately before the
commencement of this constitution, in so far as they are inconsistent with
the provisions of this part, shall, to the extent of such inconsistency, be
void.
(b) The state shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
(c) In this article, unless the context otherwise requires-
1
Contributors to Wikimedia projects. (2005, August 15). Code of law - Wikipedia. Retrieved
October 5, 2021, from Wikipedia, the free encyclopedia website:
https://en.wikipedia.org/wiki/Code_of_law.
2
It reads Uniform civil code for the citizens.
2
(i) ‗Law‘ includes any ordinance, order, bye-law, rule, regulation, notification,
custom, or usage having in the territory of India the force of Law.
(ii) ‗Laws in force‘ includes laws passed or made by legislature other
constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular areas
(d) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.3
Today there are several Acts, laws with abridges the provision of the Indian
Constitution. According to Article 13, the apex court and High Courts of
States are the powers to declare any law or Act, or ordinance which is
inconsistent with the provision of the Indian Constitution.
iii. Article 14 of the constitution of India: 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. Article 14 guarantees the
fundamental right of equality before the law. This means all are equal
before the law irrespective of their caste, religion, etc. But in India for a
different religious person, different personal law is applicable.4
iv. Article 24 of the Constitution of India: Freedom of conscience and

free profession, practice and propagation of -
(a) Subject to public order, morality, and health and to the other provisions
of this part, all persons are equally entitled to freedom of conscience
and the freely to profess, practice, and propagate religion.
(b) Nothing in this shall affect the operation of any existing law or prevent
the state from making any law –
(i) Regulating or restricting any economic-financial, political, or other
secular activity which may be associated with religious practice.
3
4
3
(ii) Provide for social welfare and reform or the throwing open of Hindu
religious Institution of a public character to all classes and sections of
Hindus.5
Explanation I- The wearing and carrying of kripans shall be deemed to be

included in the profession of the Sikh religion.
Explanation II- In sub-clause (b) of clause (2) the reference to Hindus shall be
constructed as included a reference to persons professing the Sikh, Jaina, or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.6
Article 25 of the Indian constitution guaranteed the right of religion to every

citizen of India, he can have the right to practice, profess and propagate his
religion but this right is not absolute. Subject to public order, morality, and
health state is having the power to restrain any person or group of persons
from the enjoyment of the right of religion.
v. Article 44 of the constitution of India- uniform civil code for the citizens-
The state shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.7 Article 44 expressly mandates the
government to introduce a uniform civil code that would include such
items as marriage, inheritance, and divorce.
Part IV of the Indian constitution, which deals with directive principles of

state policy, includes Article 44. Fundamental rights are enforceable in India;
however, directive principles of state policy are not. As a result, Article 44
remains in place, preventing it from becoming a separate Act.
vi. Article 372 of Indian constitution: Continuance in force of existing laws

and their adaptation
(1) Notwithstanding the repeal by this Constitution of the enactments referred
to in Article 395 but subject to the other provisions of this Constitution, all the
laws in force in the territory of India immediately before the commencement
5
6
Ibid.
7
4
of this Constitution, all the laws in force in the territory of India immediately
before the commencement of this Constitution shall continue in force therein
until altered or repealed or amended by a competent Legislature or other
competent authority
law.

Constitution; or
said clause8.
On the one hand, the constitution recognizes the continuous presence of
personal law, which is why Article 44 anticipates that India will have a
uniform civil code at some point in the future. On the other side, some
provisions guarantee equal rights, such as article14 to 19. Article 15 would
render personal law unlawful because personal laws for distinct groups are
fundamentally unequal. Article 15 also prohibits discrimination based on
gender. Whereas, Muslim law favors the man in many cases especially in the
issue of divorce and polygamy.
8
5
1.2 Objectives of Study:
The important object of this research is to identify anomalies in various
personal laws and to explain why the Uniform Civil Code is so crucial for
society's growth. Followings are certain other objectives of the study.
1) To highlight the significance of adopting a uniform civil code
and its urgency.
2) to examine the obstacles to enacting a uniform civil code in
India and to suggest solutions for achieving the UCC
3) To find out the reasons why still Uniform civil code is not
applicable in India.
4) Critical study of inconsistencies in various personal Laws
5) To analyse the role of the judiciary for the improvement of the
Uniform Civil Code.
6
1.3 Scope of the research:
The present research is going to conduct to examine the role of
uniform civil code in the present scenario. After independence, our
independent government adopted the world's largest constitution. In the olden
days, our society was divided based on language race, caste, religion, place of
birth. As well as literacy rate was also very poor. Therefore it was told that it
is difficult to rule a uniform civil code in the olden days. But in the 21st
century, the position is in favour of a uniform civil code. To describe the scope
of a research problem, the researcher is going to refer to various articles,
documents, books which describe the role and importance of UCC. The
researcher also refers to the constitution of India and related amendments. The
judiciary also plays sine qua none role to call UCC, therefore the researcher
will refer to different judicial decisions which are related to this present
research. To conduct this doctrinal research the various articles published in
journals and newspapers have also been referred. In this present research, the
researcher is going to focus on the concept 'Secular State' because in India
there is a contradiction between the word secular state and the right to religion.
Article 44 of the Indian constitution deals with the Uniform Civil Code
therefore researcher will especially focus on this article. Today‘s world is
affected by information technology; therefore the research will be conducted
with the support of the internet.
7
1.4 Significance of research problem:
Under uniform civil code, there is a proposal to make one unified set of
laws that will comprise all these personal rules. Every citizen of India has to
abide by those unified set of laws irrespective of their religion and castes. This
means all religious persons will be treated equally in matters relating to
marriage, maintenance, adoption, and succession.
Dr.B.R.Ambedkar takes the initial step to call uniform civil code. he

while speaking about article 44 observed that ―it is perfectly possible that the
future parliament may make a provision by way of making a beginning that
the code shall apply only to those who make a declaration that they prepared
to be bound by it, so that in the initial stage the applicant of the code may be
purely voluntary.‖ Dr. Ambedkar was clear in his feeling that the state had the
power to legislate over the personal laws and can call for a uniform civil code.
But unfortunately due to lack of political will still after 74 years of
independence uniform civil code is not in existence in India. If it was enacted
immediately after independence, today the picture of our India will be
different.
It is strongly stated that the uniform civil code is mainly opposed by

the Muslim minority community. They don't want to reform or amend their
personal law. But actually, those who wish to reform the Muslim personal law
have often cited Muslim countries as examples that such reform is possible.
Terence Faries in his chapter ‗the development of Islamic Law‘ points out that
in 1961 Muslim family ordinance of Pakistan makes it obligatory for a man
who desires to take a second wife to obtain written permission from a
government-appointed arbitration council. The interesting thing regarding
Pakistan is that until 1947 India and Pakistan Muslims were governed under
the Shariat Act, 1930. However, in 1961 Pakistan, a Muslim country had
actually reformed its Muslim law more than India.
Polygamy is abolished in the countries like Tunisia and Turkey in the

present situation. Iran, South Yemen, and Singapore all reformed their Muslim
8
laws in the 1970s. It is a big question if Muslim countries can reform Muslim
personal law, so why it is not possible in India, therefore it is a subject matter
of research.
Our Indian judiciary also takes a vital role to call uniform civil code.
While deciding various eminent cases the honorable court directed the central
government to form a uniform civil code, but still, it is a mere dream. In India,
Goa is the only state which adopts a uniform civil code. In a historic judgment
in Sarla Mudgal V. Union of India9 the Supreme Court has directed Prime
Minister Narshimha Rao to take a fresh look at Article 44 of the constitution
which enjoins the state to secure the Uniform Civil Code. The above direction
was given by the court while dealing with a case where the question for
consideration, where a Hindu husband married under Hindu law, after
conversion to Islam, without dissolving the first marriage, can solemnize a
second marriage? The court has held that such marriage will be illegal and the
husband can be prosecuted for bigamy u/s 494 of the Indian penal code. In
India, the personal law of Muslims allowed to perform four marriages but to
perform a second marriage without dissolving the first marriage is punishable
offence u/s 494 of for all other communities other than Muslim. Is it not a
violation of article 14 of the Indian constitution?
In another significant judgement in Noor Saba Khatoon V.

Mohd.Quasim10 the Honourable Supreme Court has held that a divorced
Muslim woman is entitled to claim maintenance for her children till they
become major, the court held that both under Muslim personal law and u/s 125
of criminal procedure court, 1973 the obligation of the father was absolute
when the children were living with divorced wife. That was an active step
towards Uniform Civil Code.
In another landmark judgement in Danial Latif V. Union of India11

the Supreme Court upheld the constitutional validity of the Muslim woman
(protection of rights on divorce) Act.1986 and held that a Muslim divorced
9
AIR 1995 SC 153
10
AIR 1997 SC 3280
11
AIR 2001 SC 3262
9
woman has the right to maintenance even after the iddat period under the 1986
Act. The court said that a Muslim husband is liable to make reasonable and
fair provisions for the divorced wife which extends beyond the iddat period in
terms of section 3(1)(a) of the Act.
Again in Shamina Ara`s case 12 the court held that the husband did not
have a unilateral right to tripe talaq which simply consist of the husband
saying "I divorced you" three times to his wife but had to provide a good
reason for the divorce and had to first go through attempts at reconciliation.
The above decisions of the court will make the job of introducing the uniform
civil code much easier.
12
(2002) 7 SCC 518
10
1.5 Hypothesis:
i. Whether the endeavour of the Indian parliament's to establish UCC
in India is sufficient or not?
ii. Uniform Civil code can eradicate gender injustice and anomalies
between personal laws.
iii. Supreme Court can play a vital role in the protection of the
fundamental right to equality and to avoid conflicts under personal
laws.
iv. The government should act to achieve a Uniform Civil Code
throughout the territory of India.
11
1.6 Literature Review:
The researcher has adopted the doctrinal research methodology; hence
it is important to study the relevant books and documents. It is also necessary
to study the judgements of the Supreme Court of India and respective High
courts of the state. The relevant articles in journals and newspapers are also
needed to study. Due to lack of political will still uniform civil code is not in
existence therefore the role of governments is also to be analysed.
1.7 Research Methodology:

The researcher used a doctrinal research approach to conduct the
current study. Doctrinal research is one that examines current legislative laws
and cases and applies reasoning power to them in order to come up with a
legal proposition or notion. Many authors have produced books about this
topic and offered their unique viewpoints. As a result, the researcher will turn
to those books for information. For this form of research, the library is the
most important resource. As a result, the researcher must rely on Indian
libraries for information. The Supreme Court and high court judgements must
be considered when analysing this research.
The doctrinal study entails analysing case law in order to organise,
order, and systematise legal arguments. This type of legislation includes acts
of parliament and acts passed by the legislature. Case laws decided by the
Supreme Court and other high courts that are binding on subordinate courts
are known as precedents.
When conducting doctrinal research, a researcher will begin by

focusing on one or more legal propositions. After reading and analysing all of
these sources, the researcher will formulate his conclusions and
recommendations.
12
The preamble of the Indian Constitution states the country to be a
sovereign, socialist, secular, democratic republic that guarantees equality of
status and opportunity to all citizens. The Supreme Court of India has stated
that 'secularism' is the fundamental structure of the Indian Constitution, which
cannot be undermined even by constitutional amendment. The creation of a
uniform civil code is a wise method for achieving our constitutional aims, and
it is envisaged that our system will remain free of politics and religious
clutches as a result of its creation. India is a religiously diverse country.
Despite the fact that the characteristics of secularism were made available in
the Indian Constitution from the beginning as the right to religion under
Article 25-28, the word "secular" was incorporated directly into the
Constitution's preamble. The goal of insertion was to establish strong secular
principles in order to preserve the nation's integrity. In India, there is no state-
recognized religion. The state is not required to protect one religion or its
adherents above any other. It is also the State's responsibility to ensure that no
further benefits be given to anyone else in the name of religion.
The objective of the uniform civil Code's formulation is to achieve

India's integration by uniting all citizens of all groups on a common platform
in matters covered by their separate personal laws, as well as to provide
equality before the law and equal protection under the law. Because the
Supreme Court of India has proclaimed equality to be a part of the
Constitution's essential structure, no legislation may violate it. The Uniform
Civil Code does not intend to infringe on a person's right to conscience and to
profess, practise, and propagate their religion; rather, it will erect barriers only
to conservative and coloured activities that have been carried out in the name
of religion for centuries in the partial interest of some religious and powerful
groups. According to the Indian Constitution, religion is not a basis for
discrimination amongst individuals.
13
1.8 Position of UCC in Other Countries:
We can understand the true meaning of Uniform Civil code after the
comparative study with other countries. In this chapter researcher is trying
analysis the situation of Uniform Civil Code in Bangladesh, Turkey, Israel,
Nepal and U.S.A.
1.8.1 Uniform civil code in Bangladesh:

In some nations, such as India, the constitution recognises a uniform Civil
Code; article 44 of the Indian constitution states that the uniform Civil Code
shall strive for the citizens. There is no constitutional recognition of a Uniform
Civil Code in Bangladesh. Other laws, such as contract law, have a single law
that applies to all religions. In personal law, however, various laws apply to
different religions. Bangladesh as a secular state should not have its own
religion.
Because of the following important factors, a country like Bangladesh, which

is based on religious faith and political power, cannot properly implement the
Uniform Civil Code.
a) Diversity: The Uniform Civil Code is unlawful and unworkable in a

diverse country like Bangladesh. Articles 2A and 41 of our constitution are in
contradiction with it. "If there is a consistent criminal code, why not a uniform
civil code?" is one of the most important arguments in favour of the Uniform
Civil Code. However, while there is no variance in offences in the Criminal
Code, different religions have diverse practises, rituals, and solutions in
personal law. If we use the Uniform Civil Code in personal or civil law, it will
add to the complexity.
b) Conflict between Majority and Minority: A uniform civil law can be

used by a majority to oppress a minority. It has the potential to oppress
marginalised groups. Other religions will be oppressed by the main religion's
culture and religious rule. All other religious communities will be controlled
by the majority religious community, which will obstruct their religious
14
practise. Bangladesh is a Muslim-majority country, with Muslims accounting
for 89 present of the population. Minor religions are currently suffering greatly
as a result of the Muslim majority.
c) Political interference: The influence of the universal civil code is

determined by two factors: the substantive content of the law and the
mechanism used to establish it. Gender justice must be ensured by a unified
civil code that ensures uniformity and equality of rights. All types of
communities must be involved in the development of a uniform civil code. If
this legislation is utilised to isolate the minor population as a political
instrument, it will create a vulnerable position that will impair social ties and
national integrity. As a result, if our country adopts a uniform civil code, there
is a risk of inequity.
d) Problem of Implementation: In a country like Bangladesh, the

implementation process is lengthy, and even if the uniform civil code is
approved, it will take a long time to implement, causing more instability,
confusion, and tensions in the meanwhile.
e) Possibility of religious riots: People are sensitive to religious issues, so

there is concern that if the uniform civil code is approved, religious riots may
ensue. Different religions have their own set of rituals that they practise
religiously. However, if an uniform civil code is established, there will be one
law that applies to everybody, which may be detrimental to their religious
feelings and faith.
1.8.2 Turkey: UCC

In introducing and strengthening secularism, Turkey has taken an assertive
approach. Prior to introducing democracy, Ataturk enacted his changes
through authoritarian authority, believing that a stage of search was required to
stabilise his reforms. Turkish secularism was a form of state control over
religion, rather than the separation of state and religion that some societies
practise. As a result, secularism was neither neutral nor value-free; it was a
reaction to other governing influences, such as Islam, Kurdish nationalism,
15
Marxist ideology, and liberalism. The prohibition of religious instruction in
1924, the dismantling of religious courts in 1926, and the 1933 directive
requiring Islamic summons to worship and public readings of the Quran to be
in Turkish rather than Arabic were all used to maintain control. Alternative
developments were tolerated in order to reaffirm these principles.13
In Turkey, many religious groups are outspoken in their opposition to

secularism. For Muslims, the concept of belief and political authority are fused
by the union of dinve devlet...the prophet having both revealed and founded a
state. This remark is the foundation for a putative anti-secularist stance. The
rising liberalisation of the civil society movement since the 1980s might be
considered as a major current challenge to Turkish secularism. Civil society
and democratisation, with their emphasis on providing voice to specific
interests, are remedies to previous aggressive forced secularism, in which
ethnic interests were muted for the sake of Turkish modernity and unification.
Special rights for specialised interest groups, particularly those of a religious
or cultural background, contrasts with a secular society in which all people,
regardless of race or religion, are subject to the same set of civil laws. One
noteworthy aspect to note is that while Turkey recognises non-Muslim
religious communities as official minorities, it does not do so for Muslim
ethnic minorities.14
Globalization has put pressure on Turkish secularism by providing

alternatives to Ataturk's concept of modernity, which included the necessity of
secularism. Given these changes, it will be interesting to observe how
secularism performed in the future. Provisions of the Turkish constitution that
had previously protected military coup leaders have been repealed. Further
military officers accused of plotting a coup against the civilian administration
will no longer be protected by a military tribunal and will instead face civilian
courts. Dismissed military officers can also seek reinstatement of their
commissions through the civilian judiciary.15
13
Shetreet, Shimon. Uniform Civil Code For India. First, oxford university press, pg. 103.
14
Ibid at Pg. 104.
15
Ibid at 105.
16
Several new provisions were enacted as a result of Turkey's
constitutional revisions. Individual liberties and judicial changes are addressed
in these reforms. Those legal relationships with the state have been changed,
allowing ombudsmen to address issues and individuals who are still
dissatisfied to go straight to the constitutional court. Individual group
constitutional protection was recognised as being consistent with the
constitution's general ideal of equality. The constitutional court will be
expanded, with some members appointed by the Turkish parliament, and the
number of the supreme court of judges and prosecutors will be increased. In
addition, all people can now file a petition directly with the constitutional
court. 16
1.8.3 Uniform Civil Code in Israel:

A variety of debates have erupted in Israel over religious equality, marriage,
separate school systems, separate transportation, and separate living. When
applied to the Israeli context, the widely held belief that democracy cannot
tolerate separation is not necessarily true, and each example of separation must
be considered on its own merits. To distinguish between valid and non-
legitimate separation, one should look at the aim of separate education or
transportation. In Israel, it is expected that the educational system will exist in
order to safeguard the Jewish identity of future generations. Thus, Jewish
education serves two purposes: the first is to help young men and women
grow their personalities in accordance with their unique capabilities and
inclinations; the second is to help young men and women develop their
personalities in accordance with their unique talents and inclinations. The
second goal is to prepare young people for adulthood by giving them the
ability to adjust to the conditions of their social environment.17
Separation between the Ultra-Orthodox sector of school and public

transportation has sparked a number of debates in Israel. Disputes emerged in
general society on the subject of selective methods for admitting citizens to
16
Supra note 14, at 105.
17
Ibid at 115.
17
tiny settlements. There were debates about marriage and divorce, specifically
the lack of a civil marriage option. The subject of gunot wives whose
husbands refuse to give geth (Jewish certificate of divorce), which generates
harsh criticism, is a particularly tricky matter.18
Despite the fact that religious law governs marriage and divorce in
Israel, significant progress has been made in the acknowledgment of the de
facto status of same-sex relationships. In a landmark judgement, a judge in
Israel ordered a couple of same sex who married in Canada to be listed as
married in the population registry. This is despite the fact that in Israel, same-
sex marriage is not permitted. A female same-sex couple was also allowed to
adopt each other's children by the court. In a series of cases, the court also
recognised that a reputed spouse of the same sex has the same economic rights
as a reputed spouse of a different sex.19
Israel has a judicial system that is both civil and criminal. When the
State of Palestine-Eretz Yisrael was established in 1948, its legal system was
primarily comprised of Ottoman legislation enacted during the four centuries
that Palestine-Eretz Yisrael was a part of the Ottoman Empire (until 1917) and
British legislation and case law enacted during the British Mandate Period
(1917–1948). In other areas, such as marriage and divorce, the religious
communities—Muslims, Christians, and Jews—had autonomous authority,
with independent tribunals implementing their own religious laws.
1.8.4 Position of UCC in Nepal:

Despite the fact that Nepal is a multi-ethnic and multi-religious country, it has
had an uniform civil code in effect since 1963. The fact that this code is
fundamentally a Hindu code is a separate issue that will be addressed later. It's
no surprise, then, that the 1990 Nepalese Constitution (which has since been
repealed) is mute on the question of other communities' personal laws, given
that the Constitutional Monarchical Kingdom of Nepal is itself 'Hindu' (Article
4). 'Every person should have the freedom to profess and practise his own
18
Ibid at 116.
19
Supra note 18.
18
religion as passed down to him from ancient times, with due regard for
traditional practises,' the Constitution states.20
Prior to the unification of Nepal, the acceptance of law based on the

Dharmashasthra viz. veda, smirities, purana, and commentaries was a common
feature among the princes. Dharmaadhikara was entrusted with the
responsibility of justice by King Prithivi Narayan Shah. The King was the
cornerstone of the rule of law and justice. In all provincial and district level
courts, he established trial and appellate courts. Pundits from the Brahmin
caste were designated as Dharmadhikari delegates, who were in charge of
applying the law and religion in all matters. The equality teachings were
disregarded, the caste system was prominent, and criminals were handled
according to their caste.21
The code (Muliki Ain, 1854) contained Nepal's diverse customs, laws,
uses, social norms, and royal proclamations, including untouchability and
penalty for breaching the caste order, making caste-based discrimination
official. The first code of modern Nepal, the country code of 1854, was thus
founded on Hindu law and included the various castes and ethnic groups of
Nepal within the framework of the national caste hierarchy. Muluki Ain's
preface states that the code went into effect in 1854 to bring uniformity to the
country's legal administration. The 1854 Code has been revised and
reconstructed several times over the years, with up to thirteen minor and
significant revisions. It served as the country's primary source of legislation
for about 110 years, until it was replaced in 1963 by the country code (Muliki
Ain). Until 1951, Nepal's legal system was founded on the 1854 law. When
the Prime Ministerial dynasty, the Rana Dynasty, fell out of power following a
popular uprising, the Code was left in limbo. After the monarchical authority
was restored in 1960 in its panchayati manifestation, King Mahendra updated
the 1854 law in 1963.
20
Partha S. Ghosh, The Politics of Personal Law in South Asia; Identity, Nationalism and the
Uniform Civil Code 190 (Routledge, 2007).
21
Kanak Bikram Thapa, ―Religion and Law in Nepal‖ National Report: Nepal, available at:
https://www.iclrs.org/content/blurb/files/Nepal.pdf (last visited on February 5, 2020).
19
Nepal's civil, criminal, religious, and customary laws were fully
codified in the Country Code of 1963. All sorts of prejudice and
untouchability were banned under the code. Certain indigenous communities'
traditional rules and practices were also recognised by the Code. It makes it
illegal to convert someone from one religion to another. An attempt to convert
another person is punishable by three years in prison, while a successful
conversion is punishable by six years in prison. If the person is a foreign
national, he or she will be ejected from the country after serving six years.22
Only with the demise of the party-less Panchayat regime in 1990 did
the grave and most widespread demands of secularism emerge. The effort,
which was launched by Theravada Buddhist monks and lay people who no
longer wanted to be labelled as members of a Hindu sect and was backed by
Janajati (indigenous) initiatives, attempted to secure equal recognition, rights,
and space for all religions practiced in the country.
The activists observed that a century-old process had merged
Hinduism into Nepalese national identity, attempting to homogenies a highly
diverse people and led to the "upper caste" Hindus' dominance in all domains,
including political, legal, economic, and educational. Secularism was thus a
demand for the country's multi-ethnic and multi-religious structure to be
recognised. It wasn't a call to eliminate religion from public life; rather, it was
a call for non-Hindus to be treated equally to Hindus. The de-hinduization of
the state (for example, the substitution of Hindu symbols and rituals for the
state), the push for a multicultural Nepal, and the acknowledgement of ethnic
groups' separate identities were all central to this appeal.23
Nepal's status as a Hindu kingdom was preserved in the 1990

Constitution, but secularism prevailed after seventeen years thanks to the
Maoist party's efforts. Since the commencement of their ten-year insurgency,
22
Bangladesh Constitution amend. V, act 1 of 1979.
23
Chiara Letizia, Secularism and statebuilding in Nepal, available at:https://www.c
r.org/downloads/SecularismAndStatebuildingInNepal.pdf ( last visited on February 12,
2020).
20
the Maoists have advocated for secularism. It was included in a 40-point
demand petition sent to the government prior to the start of the "People's War"
in 1996. Its pro-secular stance was popular with the Janajatis, who made up a
significant portion of its supporters. Opinion polls have consistently revealed
that, unlike other prominent groups in the country, the majority of Janajatis
favour a secular state — while there is still a sizable minority who prefer the
Hindu state. In 2007 and 2008, the NC and UML parties supported secularism
because they considered it as a vital step in dismantling the monarchy's
dominance, which had a symbiotic relationship with Hinduism. Despite their
reservations, many of their leaders went along with the secular flow for fear of
being labelled monarchists.
Secularism has been met with tremendous criticism because it

represents a new pluralistic sense of national identity in which people of all
religions come together on an equal footing. The sanatan Dharma (Hinduism
as transcendental, the "everlasting Religion") is a shared Nepalese (and South
Asian) heritage, according to anti-secular and Hindu nationalist organisations
and political parties. They say that Hinduism is the world's most secular
religion, as it encompasses many diverse sects and promotes tolerance and
harmony among Nepal's various religious communities. Hindu nationalists
disregard the reality that Hinduism's diverse ethnic and religious identities
(particularly Islam) have a long history in Nepal, and that categorising some
people as more Hindu than others grants them specific benefits.
With fifty-five ethnic groups in Nepal, the country is distinguished by

a multitude of ethnic diversity. Nepal's varied spectrum of religion and
language groups, in addition to caste groups, play crucial roles. Nepal was a
monarchy with the king's word from the eighteenth century until 1951. For a
decade starting in 1951, the monarchy was replaced by a democracy.
However, political instability afflicted the democracy, as indicated by the fact
that full elections were held only in 1959. Nepal's first elected government
was formed as a result of these elections. However, less than two years after
21
the elections, the king dissolved parliament and the cabinet, ushering in a
period of party-less administration.24
Nepal was proclaimed Hindu by the Panchayat Regime in 1962.

Opponents of the statement stated that it was done to oppress Nepalese people
and strengthen Panchayat authority by putting the king in a reversed role, as
the rebirth of the Hindu god Vishnu, uploading dharma on the earth. He would
grant blessings at Hindu festivities. The growth of feudal elites from top
Hindu castes and ethnic groupings was also considered in the government as a
source of Hindu dominance.25
During its rule, the Panchayat government endeavoured to eliminate

political opponents in order to maintain control. However, in 1980, king
Birendra called a vote to allow the people to choose between a multi-party
democracy and a modified Panchayat system as a result of a massive student
political movement that could not be quenched. A revised system was chosen
by the voters. Regardless of the outcome, the vote undermined the Panchayat
system. The government was ousted in 1990, and a multi-party democracy
took its place. The people were made sovereign for the first time, and a new
constitution was enacted within a year. In the Kathmandu valley, democracy
resulted in the creation of a liberal social middle class. Poverty in rural areas,
on the other hand, persisted.26
Many ethnic groups believed they were being discriminated against

because of their ethnicity, case, or gender, which sparked protests and
violence. In both the private and public domains, Dalits campaigned against
caste-based oppression, especially caste-based untouchability. They also
marched in support of Dalit women, regional discrimination, and equal
language rights. The Madhesis, for their part, have complained about regional
prejudice and their inability to get citizenship. They desired their own federal
state, complete with regional autonomy, proportional representation, equal
24
25
Ibid.
26
22
access to government jobs, affirmative action, and equal cultural and linguistic
rights.27
1.8.5 Uniform civil code in U.S.A.:

The current territorial federalism system in the United States has a lot in
common with "personal law" systems found all over the world. A state's
varied laws are enforced for each of the state's diverse religious or ethnic
communities under a personal law system, which is one of the reasons such
systems have been carefully scrutinised by the United Nations and other
international organisations for their human rights implications. Similarly,
religious-group exemption to generally applicable law has been frowned upon
in US First Amendment doctrine. Nonetheless, the United States Supreme
Court has recently reemphasized state sovereignty and other federal values.
27
Ibid.
23
CONCLUSION AND SUGGESTIONS:
The investigation of the hypothesis, which was framed at the beginning of the
research problem, is the focus of this seventh chapter. The researcher will
draw certain conclusions and make specific recommendations, which will be
the outcome of this research project.
India has a complicated legal system that governs interpersonal

relationships. Despite the Constitution's directive to the legislature to enact a
Uniform Civil Code applicable to all religious groups that should govern all
family relationships such as marriage and divorce, maintenance, custody of
children, guardianship of children, inheritance and succession, adoption, and
the like, India has a patchwork of personal laws. In fact, the lack of
consistency in the laws governing these crucial inter-personal relationships has
resulted in the denial of constitutionally mandated equality of all citizens
before the law and equal protection of the laws, as well as the related mandate
of non-discrimination on the basis of sex in the crucial area of family law.
In India, there are five basic sets of family rules based on the many
religions practised by the various communities. All Hindus, as well as
Buddhists, Jains, and Sikhs, are governed by Hindu law. Muslims are
governed by Islamic Law, Christians by Christian Law, and Parsees by Parsee
Law. Jews have their own code of conduct. The Special Marriage Act 1954,
which allows people of any faith or differing faiths to marry, is an overarching
secular civil law that the parties can choose. If they marry under the Special
Marriage Act, the Indian Succession Act of 1925 governs the selection of their
heirs and the right to inheritance or succession, which applies to anyone
married under the Special Marriage Act except Hindus. These religious rules
are taken from religious texts and their interpretations by scholars or judges,
and they are interlaced with customary law that varies by region. Legislation
has also changed these statutes from time to time. With the exception of
Muslims and Jews, practically all other communities in India now have
statutory matrimonial law.
24
Hence, the idea of a Uniform Civil Code strikes at the very heart of
religious tradition and orthodoxy. The goal of this research is to integrate India
by bringing all communities together on a shared platform, which is now
regulated by personal rules that are not religious in nature. In terms of social
ethics, there should be a Uniform Civil Code that applies to all religions. The
term "uniform civil code" comes from the concept of a civil law code. It
envisions enforcing the same set of civil laws across all religions and areas.
This transcends citizens' rights to impose distinct personal rules on themselves
depending on their religion or race. A Uniform Civil Code envisions a legal
system in which all citizens of a country are subjected to the same set of civil
laws, regardless of gender, religion, race, or other factors. The Indian
Constitution's Article 44, entitled "Directive Principles of State Policy," asks
for the creation of a Uniform Civil Code. Even after seventy-four years of
independence, India has yet to develop such a universal code.
Despite the fact that the Preamble to the Constitution of India describes
the modern nation state of India as a "Sovereign, Socialistic, Secular,
Democratic, Republic," diverse religious communities' own laws continue to
operate. In modern India, the fact that a Hindu, a Muslim, and a Christian are
all citizens of the same country but are subject to different personal laws is an
anachronism that runs counter to the fundamental principle of secularism. The
word 'secular' was added to the preamble of Indian Constitution in 1976 to
emphasise that no particular religion in the state will receive any state
patronage, and no citizen in the state will be given preferential treatment or
discriminated against solely because he or she practises a particular religion.
Religious rights are included in the Indian Constitution, which protects many
religions and religious groups. Article 25 of the Constitution guarantees
everyone the right to freedom of conscience and the freedom to freely profess,
practise, and propagate religion, subject to public order, morality, and health,
whereas Article 26 grants every religious denomination the fundamental right
to manage its own religious affairs. This is not transferable in any way.
Minorities, on the other hand, have an unequivocal and indisputable right to
preserve their own language, script, and culture under Article 29.
25
While the Constitution recognises the need for ethnic and religious
groups to affirm their religious identities, personal laws are not treated as
religion, even if they may have originated in religion. The fundamental idea of
Article 44 of the Constitution is that a Uniform Civil Code would build
national unity. The Constitution guaranteed that a Uniform Civil Code could
only be enacted by Parliament by making Article 44 a Directive
Principle despite the fact that the seeds of a Uniform Civil Code are sowed in
the exact article of the Constitution that protects religion. The personal laws of
any religious sect are not included in Article 25 of the Constitution; therefore a
citizen cannot claim a basic right to observe the personal law of the
organisation or community to which he belongs. However, Article 25 contains
a clause that gives the state the authority to regulate and restrict economic,
financial, political, and other secular activity that may be linked to religious
practise. As a result, religious freedom does not extend to social and economic
behaviours, as well as certain civil law issues that are not part of the essence of
religion.
As a result, the Uniform Civil Code is not anti-secular and would not
contradict Articles 25 and 26 of the Indian Constitution. The Uniform Civil
Code will not interfere with one's religious convictions in things such as
marriage, divorce, maintenance, succession, and so on; rather, it will establish
a common law for all such subjects. In a civilised society, the judiciary has
also endeavoured to make it apparent that there is no necessary relationship
between religion and personal law. Marriage, succession, and other matters of
a secular nature can be regulated by legislation. No religion allows for
intentional deception.
While the British Raj codified criminal and procedural law in India
with the Code of Civil Procedure 1859, the Penal Code 1860, and the Code of
Criminal Procedure 1861, they refrained from codifying the so-called
"personal law" of Hindus and Muslims. The issues (marriage, divorce,
maintenance, succession, and so on) were inextricably linked with the customs
and laws of their respective religious communities. According to the British
Administrator and legal experts, these issues were handled in regular courts by
26
judges trained in and familiar with the common law style. Until around 1860,
the courts had "local law officers" i.e pundits and kazis assigned to them to
advise them on Hindu and Muslim law, respectively. To make the law more
uniform, certain, and accessible to British judges, as well as to control the
discretion of law officials, courts increasingly relied on text translations,
digests, and guides, as well as their own precedents. When the entire court
system was rationalised and unified in 1860, the law officers were disbanded,
and the judges were given sole authority to find and implement personal law.
The Hindu Code Bill, introduced shortly after independence in 1948

was a first step toward a Uniform Civil Code for all. Hindus were outspoken
in their opposition, and the bill was withdrawn from consideration before the
end of the session. Later, in the shape of a series of legislations, the Hindu
Code Bill was submitted and passed. Thus, even the Hindu laws that were
varied in different areas of the country saw a turbulent transformation as a
result of a geographically united India, which Hindus recognised as a positive
shift given the passage of time. Independent India brought a note of
voluntarism while keeping the personal law system. In 1954, the parliament
passed the Special Marriage Act, which establishes a special form of marriage
that can be used by anyone in India and all Indian nationals living abroad,
regardless of their religious beliefs. Even parties who have solemnised their
marriage under a different law may have their marriage registered under this
Act if they meet the Act's requirements. Persons who marry under this Act are
entitled to its benefits and are bound by its prohibitions. Even though one's
personal law allows for more than one spouse, after the marriage is solemnised
under this legislation, there can be no more than one wife. However,
compliance with this Act is voluntary, which runs counter to the principle of
uniformity.
In 1979, the Supreme Court took the first step toward uniformity by
granting support to a Muslim wife under Section 125 of the Code of Criminal
Procedure, 1973. A wife, including a divorced wife, has a right to maintenance
from her husband under Section 125. However, Section 127 of the Code
stipulates that a woman is ineligible for maintenance if she has received any
27
money under any customary or personal law relevant to the parties. While
granting relief, the Supreme Court interpreted Muslim law, stating that the
goal of any payment made under customary or personal law must be to
prevent the divorcee from becoming homeless and to give her with the means
to support her. Law is dynamic, and its meaning must be meaningful rather
than pedantic. According to the Apex court of India, "Neither personal law nor
any other salvationary claim will prevail against the policy of public law
dominating Section 127(3)."
While emphasising the goal of Article 44 of the Constitution, the court

stated that an uniform civil code will help in the cause of national unification
by removing desperate allegiances to law that are ideologically contradictory.
Making gratitutious concessions on this issue is unlikely to ring the bell for
any community. It is the state's responsibility to ensure a Uniform Civil Code
for the residents of this country, and it has undoubtedly the authority to do so.
We recognise the challenges of bringing people of all religions and ideologies
together on a single platform. However, if the Constitution is to be
meaningful, it must begin somewhere. Because it is beyond the endurance of
sensitive minds to allow injustice to exist when it is so applicable, the Courts
must invariably assume the role of the reformer. However, this decision
sparked outrage among a segment of the Muslim community, which the
government in power sought to quash by quickly enacting the Muslim Women
(Protection of Rights on Divorce) Act 1986, which is not only in violation of
Article 44 of the Constitution, but also contains the provisions that the
Supreme Court had condemned as a "most unreasonable view of law and life."
As a result, this Act re-established Muslim law, at least in the sense that it was
formerly understood. Concerns of Minorities about their personal law are
related to their privileged position as minorities in a country, not to the laws
themselves. Political strife over personal law appears to be more frequent in
India than the problem of the Uniform Civil Code. For political reasons, fear
of political loss, or a misunderstanding of the term "religious tolerance,"
successive governments have acquiesced in this argument. They haven't
grasped those disparities in the law lead to a sense of injustice and, inevitably,
animosity.
28
The principle of equality before the law and equal protection under the
law is a key feature of Indian Constitution. The UCC is an excellent addition
to this notion. It is self-evident that all religions in the country must be given
equal rights and protection. However, it is equally clear that the traditions of
each faith must not contradict the religious equality guaranteed by Indian
Constitution. The UCC's implementation would only ensure that religious
laws be applied equally to all women, children, and men. It would not give
preferential consideration to a specific gender, caste, or subcaste. It would not
be against Secularism's beliefs. On the other hand, the UCC's goal isn't to
change people's minds about religion or to damage their religious feelings;
rather, it's to create a common legal system that benefits everyone on an equal
footing. The prohibition of social evils such as Sati and Child Marriages, as
well as female infanticide, was not merely a gesture toward assisting Hindu
women and children, but a legal measure to ensure that no one's right to life
was violated. One of the earliest symbolic steps toward the adoption of the
UCC was taken with this measure.
Article 44, dealing to the Uniform Civil Code, received very little
attention from legislators, attorneys, judges, and legal academics over the
seventy-one years of our Constitution. In fact, it was a sincere wish of the
Constitution's founders that was occasionally repeated in various forms.
Article 44 was viewed as a magic cure to all problems, an ideal that could put
an end to the great communal divide that was becoming more strident with the
passage of time in a nation struggling to deal with phenomenal
problems, combating with separatist forces threatening its very existence.
However, over the last two decades, Article 44 has sparked a rush of activity
in a variety of sectors, resulting in political agitations, judicial decisions,
legislative discussions, and scholarly outpourings all focusing on this article,
with players taking sides on both sides of the debate. Beyond four wives and
three talaqs, the debate over the Uniform Civil Code must be broadened. Take
a look at the honour killings and Khap Panchayant rulings. They all wish to
impose their religious and cultural values on their family and community
members. If they are forced to follow a system that is not in line with their
29
beliefs, it usually leads to societal instability. India is a country with millions
of different cultures and communities. Everyone believes that his or her
religion and traditions are the finest. No one wants to think about fixing their
own system while worrying about the systems of others. Rather than genuine
social improvements, the Uniform Civil Code is frequently utilised to target
minorities. Minority bashing will simply make members of such communities
more possessive of their supposed identity and customs, thereby limiting the
opportunity for nurturing the Uniform Civil Code, which is still in its infancy.
The notion is that everyone should be treated equally and that everyone
should be protected by rules that are just, fair, and predictable. Time has
passed, cultures have evolved, and it is a time for laws to evolve as well.
Education, economic prosperity, agricultural advancements, cross-border
migration, and western influence have extended throughout urban India. Rural
settlements, on the other hand, continue to struggle with traditional and
superstitious ideas on family problems. A uniform civil code would not only
transform the way families are governed, but it will also affect the lives of
millions of people by filling in the gaps in diverse religious regulations.
Apart from reaching a consensus, the most difficult component of

establishing the Uniform Civil Code is drafting a uniform civil code. Should it
be a synthesis of all existing personal laws or a new law based on the
Constitution's mandate? Many argue that if a Uniform Civil Code is
established, the new laws will reflect the majority Hindu population's
concerns. The Muslims, India's second largest community, are the most vocal
opponents of the UCC's formulation. In the name of religion, culture, or the
immutability of the law as ordained by Allah and the prophet, they object to
even the smallest reform or change in their own law. The Christians, another
minority group, are concerned that without a separate personal law, their status
and autonomy as a minority group may be jeopardised, and that their
constitutionally recognised status may fade, causing them to lose their identity
as well as their freedom to practise their religion. Many Parsis also contend
that if there is no separate personal law system, the result will be a Uniform
Civil Code that will invariably support Hindu interests.
30
The notion that the Hindu Code will be imposed on everyone under the
pretext of the Uniform Civil Code is a myth. A uniform law code does not
always imply a single community's (Hindu) law, but rather the incorporation
of personal laws from several religious communities based on the principles of
gender equality and individual liberty. The Uniform Civil Code should strike a
balance between fundamental rights protection and individual religious
dogmas. It should be a code that is not prejudiced towards religious or political
reasons. It should be a code that is not prejudiced towards religious or political
reasons. During the Constituent Assembly debate on why Article 44 was
included in the Directive Principles, it was stated that "when you wish to
consolidate a community, you have to examine the benefits that may accrue to
the complete community, not to the customs of a section of it." When you look
at the countries in Europe that have a civil code, you will notice that everyone
who visits becomes a member of the globe, and every minority is required to
follow the civil code.
While drafting the Uniform Civil Code, it is necessary to strike a

balance, i.e. to protect civil rights and minorities' identities while refusing to
pander to religious fundamentalism of any colour. Under the uniform laws, a
Hindu will not be forced to perform a nikah, and a Muslim will not be forced
to perform saptapadi, but it does mean that basic essentials or principles of
marriage, divorce, maintenance succession, and so on will be common to all,
regardless of their religions, e.g., the principle of monogamy should be
imposed on all, or the age at which a couple can marry should be fixed for all.
When it comes to the operation of the Uniform Civil Code, some legal
experts believe that a conducive environment must be developed so that all
segments of society are prepared to accept uniform regulations in areas
relating to marriage, divorce, maintenance, and succession, among other
things. Some believe that the Uniform Civil Code will be abused or rejected,
but this should not prevent Parliament from passing the Uniform Civil Code
because the social welfare and benefits that will follow from its adoption are
considerably larger. Hindus objected to the Hindu Code Bill when it was
31
adopted in 1948, claiming that it was in violation of the Dharamshastra, which
integrates classical Hindu jurisprudence. However, the then-law minister, Dr.
B. R. Ambedkar, had stated that a codified law was required for India's unity,
and four Acts were eventually passed. In a similar vein, the Uniform Civil
Code might be introduced, which would apply to all religious communities as
well as anybody visiting India. In addition, the state of Goa has a Uniform
Civil Code called Family Law that applies to all communities and was
developed and implemented by Portuguese colonial rulers through different
legislations in the 19th and 20th centuries. Following the liberation of Goa in
1961, the Indian state repealed all colonial laws and applied Central laws to
the province, with the exception of family laws, which were retained in Goa
because the people in wanted it.
Furthermore, there is debate over the best timing to establish the

Uniform Civil Code; it might be argued that India has strayed far from the
ideal since the Constitution was written seventy-one years ago. It is
crucial time for India to have a standard legislation governing marriage,
divorce, succession, and maintenance, among other things. Rather, it is vital
that thoughts and passions be cooled and tempered by genuine attempts to
modify the public's thinking and adopt the Uniform Civil Code.
In this last chapter, the researcher is going to conclude and will try to
make certain suggestions. If a uniform civil code is enacted and enforced,
1) It would help and accelerate national integration.
2) Litigations due to personal law world decrease.
3) Overlapping provisions of the law could be avoided.
4) The country would emerge with new force and power to face and odds
finally defeating the communal and the divisional forces. These are a few
outcomes of the uniform civil code.
Suggestions for forming draft of Uniform Civil Code:
32
The following suggestions should be followed or considered while drafting the
Uniform Civil Code in matters relating to marriage, divorce, maintenance,
succession, inheritance, and adoption in order to promote the spirit of
uniformity of laws and achieve the goal enshrined in Article 44 of the
Constitution. These are organised under the headings:
1) Marriage and Divorce:

There is just the Special Marriage Act of 1954, under which anybody can
marry, and such marriages are called as "Civil Marriages." Marriages
solemnised in any other way can also be registered under this legislation, and
once the parties are registered under this legislation, they must abide by the
regulations set forth in it. There are several personal laws that address the
marital parties' obligations and rights, resulting in various inconsistencies. To
eliminate such disparities and disadvantages, all communities should be
subjected to the requirements of the SMA, with certain better provisions from
other personal laws being considered for inclusion in the Code. In relating to
marriage researcher will make following suggestions:
i) Monogamy should be imposed on all and polygamy should be prohibited in
the Uniform Civil Code since it discriminates against women and violates
their basic rights.
ii) Minimum age of male and female for marriage should be twenty one and
eighteen years, respectively. This would aid in the prevention of child
marriages. Any person who violates this clause shall face severe penalties.
Punishment for the parents of such minors should be imposed as well, as this
would serve as deterrence to society.
iii) Marriage registration should be made mandatory. This will help to
determine validity of marriage. As well as government officer and legal
representative of village should be empowered to preserve a marriage register
for the purpose of detecting and preventing fraud and fake marriages.
iv) The grounds for divorce should be clearly defined for everyone, regardless
of religion. It is required to introduce the premise of irreversible breakup of
marriage and divorce based on mutual consent, which is necessary in light of
society's changing needs.
33
2) Maintenance:
Hindu, Muslim, and Christian maintenance laws are highly distinct from one
another. The Muslim Women (Right to Protection on Divorce) Act of 1986
allows a Muslim woman to seek maintenance. A Hindu wife or husband can
seek spousal support as well as permanent alimony while the divorce is
pending. Apart from the particular laws of many religious communities,
Section 125 of the Code of Criminal Procedure, 1973, allows one to claim
support. Apart from that, the Hindu Adoption and Maintenance Act of 1956
provide maintenance to the wife, father, mother, son, and unmarried daughter.
As a result, we have a variety of laws in place to assist those who are in need.
However, these regulations are not prevalent, and they can be discriminatory
towards women. In problems of maintenance, the Uniform Civil Code should
include the following core principles:
i) A husband should support his wife not just during their marriage but also
after they divorce till she remarries.
ii) The parents should be held responsible for the maintenance of their
children, the son until he is able to support himself and the daughter until she
marries. This is advised because, unlike western countries, we lack a social
security system that can meet the requirements of individuals, particularly
those who are unable to care for themselves, such as the disabled.
iii) The responsibility of maintenance of parents should be lies on son and
daughter.
3) Adoption:
Adoption in this country is one of the most difficult socio-legal concerns. On
the one side only Hindus have the legal right to adopt a child and there is
provision for adoption of child in the personal laws of other religion and on
the other side, the number of orphaned and abandoned children is staggering.
The percentage of orphaned and abandoned children has increased as a result
of this unbalanced condition. A child's right to have a family is unalienable.
However, if no one wants to adopt him or her, the child is forced to live a life
in which having a family is either impossible or extremely rare. People, with
34
the exception of Hindus, avoid adopting children for a variety of reasons,
including legal inability and traditional attitude. People who desire to adopt an
orphan child but are unable to do so because their personal legislation
prohibits adoption have also been seen. In such cases, both the child in need of
a family and the family in need of a child are subjected to injustice in the name
of religion or a specific personal law.
But section 41 of Juvenile Justice (Care and Protection of Children)

Act, 2000 helps such needy people to adopt a child. This provision is read as
fallow,
―(1) The Primary responsibility for providing care and protection to children
shall be that of his family.
(2) Adoption shall be resorted to for the rehabilitation of the children who are
orphan, abandoned or surrendered through such mechanism as may be
prescribed.
(3) In keeping with the provisions of the various guidelines for adoption issued
from time to time, by the State Government, or the Central Adoption Resource
Agency and notified by the Central Government, children may be given in
adoption by a court after satisfying itself regarding the investigations having
been carried out as are required for giving such children in adoption.
(4) The State Government shall recognize one or more of its institutions or
voluntary organizations in each district as specialized adoption agencies in
such manner as may be prescribed for the placement of orphan, abandoned or
surrendered children for adoption in accordance with the guidelines notified
under sub-section (3):
Provided that the children‘s homes and the institutions run by the State
Government or a voluntary organisation for children in need of care and
protection who are orphan, abandoned or surrendered, shall ensure that these
children are declared free for adoption by the Committee and all such cases
shall be referred to the adoption agency in that district for placement of such
children in adoption in accordance with the guidelines notified under
subsection (3).
35
(5) No child shall be offered for adoption :- a) until two members of the
Committee declare the child legally free for placement in the case of
abandoned children,
b) till the two months period for reconsideration by the parent is over in the
case of surrendered children, and
c) without his consent in the case of a child who can understand and express
his consent.
(6) The court may allow a child to be given in adoption-
(a) to a person irrespective of marital status or:
(b) to parents to adopt a child of same sex irrespective of the member of living
biological sons or daughters; or
(c) to childless couples.‖
This section 41 helps the childless parents to adopt a child and orphan
children to get a house. This section need to be aware is the society. The
purpose of this legislation is to protect the wellbeing of orphan children.
However, several of the law's provisions indicate the legislature's strong
concern for children's rights.
The Uniform Civil Code should include specific guidelines for child custody
and adoption, such as:
i) Both parents should have equal power to adopt the child.
ii) Adopted children should be treated the same as biological children born out
of wedlock.
4) Successions and Inheritance:

In the laws of many religious organisations, succession and inheritance laws
varied dramatically. Male heirs have an advantage in inheritance rights. Hindu
law forbade women from inheriting property until the Hindu Code Bill was
passed in 1956. Women now have an equal part in coparcenary property as a
result of a recent revision to the Hindu Succession Act, 1956. However, there
is still a distinction between joint family property and self-owned property
under Hindu law. Women, on the other hand, have inferior inheritance rights
under Muslim personal law. Muslims, Jews and Christens have their own
36
property laws. The right to succession of women is not recognised in
these Acts. From time to time, the judiciary has attempted to provide justice to
the aggrieved parties by interpreting legislation in light of the rights
guaranteed by the Indian Constitution. The Hindu concept of an undivided
family must be abandoned. Similarly, testamentary rights are constrained
under Muslim and Christian law, which has to be modified in today's fast-
changing world.
Hence following are the suggestions in respect of succession.

i) In cases of inheritance, there should be no discrimination based on gender
because it violates the Fundamental Right to Equality guaranteed by Articles
14 and 15 of the Indian Constitution.
ii) Both son and daughter should have equal right on self-acquire and ancestor
property of the parents.
iii) In terms of testamentary power, there should be no restrictions on the
amount of property that can be bequeathed, the person to whom it can be
transmitted, or the donation of the property for religious or philanthropic
reasons.
iv) The procedure for effective execution and compulsory registration of the
will should be given in order to decrease the possibility of fraud and disputes
over immovable property.
There are few other suggestions for the enactment of Uniform Civil code.
1. Broadcast media, including as radio, television, and newspapers, should be
used to create awareness about the Uniform Civil Code and its benefits to the
general public in today's society.
2. A committee of prominent jurists and representatives from many religions

should be formed to facilitate the job of achieving legal uniformity and to
assist the legislature in enacting the cherished objective of a Uniform Civil
Code. It should be attempted to adopt the finest of the many religious
organisations' personal laws.
37
3. It is the responsibility of legal scholars, advocates, and academics to
promote the idea of secularism and to foster an environment conducive to the
adoption of uniform personal laws that apply to everyone, regardless of faith.
4. In order to achieve a UCC the first need to have a Comprehensive Draft

Bill. This Draft must be prepared by an expert body in consultation with
minorities.
5. At Initial stage make Uniform civil code as an optional.
6. The Supreme Court as a Guardian of the constitution has the inherent power
to issue any direction to give the complete justice hence it must direct the state
to legislate the law to implement UCC.
Researcher must conclude this thesis with following quote,
“The Goal of Uniform Civil Code is not to

change people’s mind about religion or to
damage their religious feelings, rather it is to
create a common legal system that benefits
everyone on an equal footing.”
38

Ilovepdf Merged

Uploaded by

Copyright:

Available Formats

Ilovepdf Merged

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ilovepdf Merged

Uploaded by

Copyright:

Available Formats

“THE NEED OF UNIFORM CIVIL CODE AND ITS UTILITY

WITH SPECIAL REFERENCE TO CONSTITUTIONAL

THESIS SUBMITTED TO:

SWAMI RAMANAND TEERTH MARATHWADA UNIVERSITY

FOR THE AWARD OF DEGREE OF

UNDER THE SUPERVISION OF:

DR. J. B. AURADKAR DR. V. M. MORE

Dr. J.B. Auradkar

Place: Nanded Sandip Digambarrao Yadav

I am thankful to Swami Ramanand Teerth Marathwada University

It is a pious obligation upon me to express my sincere and honest

Sandip Digambarrao Yadav

1.1 Constitutional Provisions: ................................................................... 2

1.2 Objectives of Study: ............................................................................ 6

1.3 Scope of the research: ......................................................................... 7

1.4 Significance of research problem: ....................................................... 8

1.5 Hypothesis: ........................................................................................ 11

1.6 Literature Review: ............................................................................. 12

1.7 Research Methodology:..................................................................... 12

1.8 Position of UCC in Other Countries: ................................................ 14

1.8.1 Uniform civil code in Bangladesh: ............................................ 14

1.8.2 Turkey: UCC .............................................................................. 15

1.8.3 Uniform Civil Code in Israel: .................................................... 17

1.8.4 Position of UCC in Nepal: ......................................................... 18

1.8.5 Uniform civil code in U.S.A.: .................................................... 23

CONCEPT OF UNIFORM CIVIL CODE: ................................................ 24

2.1 Meaning of UCC ............................................................................... 24

2.2 Matters of Uniform civil code: .......................................................... 25

2.3 Historical Background of UCC: ........................................................ 25

2.3.1 Position in Ancient India: .......................................................... 26

2.3.2 Position in Medieval India: ........................................................ 28

2.3.3 Position in the British Period: .................................................... 30

2.4 Constitutional Assembly debates and Uniform civil code: ............... 34

2.4.1 Arguments against UCC are addressed at the Constituent

2.4.2 Arguments in favour of UCC in Constituent Assembly: ........... 37

3.1 Preamble: ........................................................................................... 46

3.2 Fundamental rights and Uniform Civil Code: ................................... 47

3.2.1 Article 13: .................................................................................. 49

3.2.2 Article 14: .................................................................................. 55

3.2.3 Art. 15. ....................................................................................... 56

3.2.4 Article 25 to 28: ......................................................................... 58

3.3.1 Article 44: .................................................................................. 65

3.3.2 Relationship between Directives and Fundamental Rights: ...... 67

3.4 Fundamental Duties and Uniform Civil Code: ................................. 69

3.5 Article 372 ......................................................................................... 70

3.6 International Provisions Relating to Uniform Civil Code:................ 73

3.6.1 Universal Declaration of Human Rights, 1948 .......................... 74

3.6.2 International Covenant on Economic, Social and Cultural Rights,

3.6.3 International Covenant on Civil and Political Rights, 1966 ...... 75

3.6.4 International Convention on the Elimination of All Forms of

3.6.5 Convention on the Elimination of All Forms of Discrimination

3.6.6 UN convention on the Rights of the child, 1989 ....................... 79

3.6.7 Declaration on the Right to Development, 1986 ....................... 79

3.6.8 Declaration on the Elimination of All Forms of Intolerance and

3.6.9 Declaration on Rights of National or Ethnic, Religious and

NEED OF UNIFORM CIVIL CODE: ......................................................... 83

4.3 Reasons for a Need of Uniform Civil Code: ..................................... 85

4.4 Comparative Study of Various Personal Laws in India: ................... 86

4.4.1. MARRIAGE .............................................................................. 87