Introduction
Articles 25 to 28 guarantee right to freedom of religion. Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to public order, morality and health and to the other provisions of Part III of the Constitution. Clause 2 of Article 25 also empowers the State to regulate or restrict any economic, financial, political or other secular activity, which may be associated with religious practice and state can also enact laws which provide for social welfare and reforms.
Uniform Civil Code resonates with one country one rule, to be applied to all religious communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part 4, Article 44 of the Indian Constitution. Article 44 says, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum popularly known as the Shah Bano case. In this case, a penurious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from her husband. The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter.
The then Chief Justice of India Y.V. Chandrachud observed that,
A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies
Sarla Mudgal v Union of India where the question in point was whether a Hindu man who was married under Hindu law can solemnize a second marriage by converting to Islam. Supreme Court observed that adopting Islam for a second marriage is a violation of personal laws. Further, Hindu marriages can be dissolved under the Hindu Marriage Act, 1955, i.e. just converting to Islam and marrying again would not terminate the marriage under Hindu Marriage Law, and hence will be a violation of Section 494 of the Indian Penal Code.
What are personal laws:
Personal laws refer to a set of laws where an individual is governed in respect of matters relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. Here are some of the key personal laws in India:
The Hindu Marriage Act, 1955
The Indian Christian Marriage Act, 1872
Parsi Marriage and Divorce Act, 1936
Apart from these, personal laws in India also include the Indian Divorce Act, 1869; Child Marriage Restraint Act, 1929; Foreign Marriage Act, 1969; The Kazis Act, 1880; The Indian Succession Act, 1925, and the Anand Marriage Act, 1909.
Muslim marriage law in India
Unlike the Hindu Marriage Act, the Mohammedan law or Muslim law on marriage is not codified in India. However, the Parliament has passed various revisions and acts to deal with the challenges like consent, age, divorce, inheritance etc.
In 1939, the Dissolution of Muslim Marriage Act was enacted to provide a Muslim wife with the right to seek dissolution of her marriage on grounds such as imprisonment of her husband for seven or more years, unknown whereabouts for four years, non-maintenance for two years, failure to perform marital obligations, impotency, cruelty, leprosy or virulent venereal disease and if the marriage took place before the wife attained the age of 15 years and not consummated.
What possibly should UCC bring
The new code should impose monogamy banning multiple marriages under any religion. Polygamy discriminates against the women and violates their basic human rights.
The minimum age limit for a male should be 21 years and for a female should be 18 years. This would help in curbing child marriages. Punishment should be prescribed for any person violating this provision.
Equal shares to son and daughter from the property of the father, whether self acquired or joint family property. There should be no discrimination based on sex in the matters of inheritance.
The maintenance laws for the Hindus and Muslims are very different. Apart from personal laws, a non-Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure. A Muslim woman can claim maintenance under the Muslim Women (Right to Protection on Divorce) Act, 1986. Apart from maintenance of wife, there are also provisions for maintenance of mother, father, son and unmarried daughter under the Hindu law.
Arguments against the implementation of UCC
A move against secularism.
A secular India is what the founding fathers promised when they formulated the Constitution and that is what the minority is demanding for. The government must respect the emotions of the minority population and thus decide on whether to infringe upon the personal law or not.
In the landmark judgment of S. R. Bommai v Union of India the honourable Supreme Court explained the concept of Secularism as,
“The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.”
Infringement of personal religious laws.
The Muslim community vehemently opposes the move by the government and they all say that UCC would violate their personal laws gravely and would thus result in irreversible damage to their religion and the laws therein.
A strong argument which goes against the implementation of the Uniform Civil Code is, the very idea of assimilating all the personal laws into a uniform code will infringe the constituents of personal laws of most of the minority religion.
Way Ahead:
For the current government to fully implement a workable Uniform Civil Code, it is necessary that they formulate a code that is acceptable to all the communities,
- Govt would have to justify that those laws which are to be absolved violate basic human rights and thus need to be abolished for proper governance.
- Checking the Social Adaptability: There is a need to consider social adaptability of UCC while forming a blueprint for a uniform civil code.
- Starting with the areas of personal law that are most widely accepted and uncontroversial, such as laws related to marriage and divorce. This could help to build consensus and support for the UCC, while also addressing some of the most pressing issues faced by citizens.
- Taking stakeholders into confidence: involving a broad range of stakeholders, including religious leaders, legal experts, and community representatives, in the process of developing and implementing the UCC. This could help to ensure that the UCC takes into account the diverse perspectives and needs of different groups, and that it is seen as fair and legitimate by all citizens.
Questions for Practice.
- Part 3 of Indian Constitution provides for freedom of religion. Discuss whether unifrom civil code undermines the secular fabric of Indian Constitution?
- Unifrom Civil Code has been a topic of discussion for decades but law makers has been hesitant in codifying the personal laws. Critically examine.
