UNIFORM CIVIL CODE [PART 1]

RISHEE RHUDRA AND SHUBHAM APARAJITA

SYMBIOSIS LAW SCHOOL, PUNE

(First Published on Volume 01 Issue 03, November 2016)

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ABSTRACT

India is a country of diverse culture with distinct religions. They are being governed by different laws in relation to marriage, divorce and some other aspects. In the recent days there has been chaos in the Muslim community regarding the following of their personal laws. Many other religions also have some stigma related to their personal laws. In the current paper we would like to highlight some aspects of women and personal laws with regards to different personal laws with a brief history and legal perspective of uniform civil code.

INTRODUCTION

"I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty ... “ B. R. AMBEDKAR.

India has been a country of personal laws. Till the early twentieth century, different sets of rules were followed by Muslims in India. It was till the year 1935 that different sects of Muslims like the Khoja Muslims and the Kutchi Memons had their own rules of practice. The latter worshipped the Hindu Gods and Ali as their tenth avatar instead of Kalki. Their inheritance and also the matrimonial laws were as per the Hindus. The enactment of the Muslim personal law, many such minority creeds of Muslims had to accept those laws even if they differed in practice from their customary ones. This was not the case only among the Muslims. The Hindus too had various personal laws prevailing in different parts of the country. But, these have undergone a drastic change due to the geographical unification of India as well as the reforms brought about by the British regime viz. ban on the practices of child marriage, sati and human sacrifice, encouraging widow-remarriage, introducing divorce and amending inheritance laws in India. Article 44 of our constitution gives as a directive principle of state policy a uniform civil code. The UCC aims at creating a uniform code for the dispensation of justice so that the various complications arising out of personal laws like the Hindu law or the Muslim law are nullified and people are governed not by different sets of laws as is the case today but by one common civil code. For example if a Muslim and a Hindu marry, in the case of a divorce, the courts will first decide under whose laws will the case proceed and later see what the conditions in the household were. Similarly, If a Hindu changes his religion and becomes a Muslim, he now has the legal ability to marry five women. Similar problems arise in property disputes as well with people using the complicated and diverse laws to suit their ends, we need to understand that men pick what suits them and choose to ignore the rest which is why the entire problem arises. The UCC, on the other hand, forgets your religion, your local customary laws and lays down that which is relevant. Take for example the abolition of Sati by William Bentick, had he too given consideration to customary and religious laws, we might still have been witnessing our mothers and sisters burning themselves alive on funeral pyres. Despite the obvious benefits the UCC has met with a lot of opposition.

HISTORY AND THE UNIFORM CIVIL CODE

The issue of introduction of the Uniform Civil Code in India has been debated upon since the time India attained independence with the Indian Parliament debating on it in as early as 1948. It witnessed some strong opposition from the Muslim fundamentalists like Poker Saheb and members from other religions. Though it did get support from the Chairman of the Draft Committee and father of our Constitution Dr. B.R. Ambedkar along with some prominent journalists like G.S. Iyengar, K.M. Munshiji and Alladi Krishnaswamy Iyer amongst others to name a few. Though the Congress had promised it would allow Muslims to practice Islamic laws, there was a fear, among Muslims, of a possible interference with the Muslim personal laws and they contended that India would not be the same again if UCC was to be introduced. As a compromise, the architects of the Constitution included the Uniform Civil Code under the head of Directive Principles of State Policy in Article 44. Some distinguished members did show their dissent stating that the path towards nationhood was being hampered by the very existence of religion-based personal laws. Earlier it was favoured to guarantee the Uniform Civil Code to the Indians within five to ten years. Sixty-three years have passed and we’re still pondering over such a possibility.

THE DISCUSSIONS ON UNIFORM CIVIL CODE

There have been many debates, articles, discussions, contradictions but neither our political leaders nor individuals have concentrated their efforts towards the realization of the Uniform Civil Code in India. The common knowledge about this system includes a common law understanding of the concept of marriage, succession or property and everyone’s guessing what exactly these laws will be. Article 44 of the Constitution of India states that:- “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”. Thus, we can safely say that even the Constitution says that establishing the UCC is the only way to achieve national integration. However these are just “Directive Principles” and are not enforceable in any court of law under Article 37 of the Constitution. Though these can be regarded as the fundamentals of governance, the Constitution itself is unclear of its stand about the implementation of UCC which it does not make mandatory. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde. The Press Council of India Chairperson Justice Markandey Katju said in a write up and I quote- “I am fully in support of Uniform Civil Code” and “one of the reasons for the backwardness of Muslims is the lack of modernisation of their personal law”. The need for a uniform civil code constitutes a key concern in the concept of secularism and religious freedom in India. Though the substantive laws of crime, commerce, economy etc are now governed by secular law based on the principles of ‘justice, equity and good conscience’, personal religious laws continue to operate in the private domain of citizens. Certain personal laws, especially of the Hindus, have been codified (i.e. incorporated into statutes) accompanied by certain amendments in light of the compulsions of modern times, while others continue to apply to the respective religious groups in their long-established, traditional forms. Constitutional directive to the Legislature to enact a uniform civil code applicable to all religious groups which should govern all family relationships such as marriage and divorce, maintenance, custody of children, guardianship of children, inheritance and succession, adoption and the like. This Constitutional directive has not been acted upon in more than six decades since independence due to lack of political arising from the fear of offending electoral vote bank groups and backlash from religious communities. The prevalence of personal laws in the country has had far-reaching ramifications in terms of its implications on the human rights discourse.

STATUS OF WOMEN AND PERSONAL LAWS

The most significant manner in which personal laws in civil matters affect the rights discourse is by delineating rights for women belonging to their respective religious communities. The ‘family’ remains one of the most contested sites of women’s rights. One of biggest criticism working against personal laws is that these antiquated provisions are discriminatory towards women and seek to undermine their position within the private domain. Personal religious laws need to be tested for their conformity with principles of egalitarianism that are the touchstones of our Constitution as well as international declarations/agreements to which India is a party. There are five broad sets of family laws in India based on the religions professed by its different communities. Hindu law governs all Hindus, as also Buddhists, Jains and Sikhs. Muslim law applies to Muslims, Christian law governs Christians, Parsee law applies to the Parsees. Jews have their own personal law. Many provisions of the various Indian personal laws are notorious for being discriminatory towards women. A brief description of how women’s rights are undermined under various personal laws follows:

Marriage: The right of all men and women of certain to marry through free consent and with complete freedom in the choice of a spouse is recognized internationally. However, Indian personal laws are found wanting in this aspect. Muslim law, for instance, appears to recognize the right of a guardian to contract his minor ward into marriage. There is a remedy in the form of ‘option of puberty’ (right to repudiate marriage on attaining puberty) but it is restricted for as far as women are concerned. Under Hindu law¹ too, it is not the mere absence of consent but the obtaining of consent by fraud or force or vitiation of consent by proved unsoundness of mind that renders the marriage void. Fortunately, Special Marriage Act, 1954, possibly the most progressive piece of Indian legislation enacted under family law, overcomes the bar or strict restrictions on inter-religious marriages under personal law. Polygamy is a contentious issue in today’s world where monogamy, fidelity and family welfare are the norm. This institution used to prevail in Hindu society previously but modern legislation² prohibits bigamy (covering both polygamy and polyandry) the Penal Code makes it an offence. Muslim personal law, however, recognizes and permits the institution of polygamy. Many scholars believe that under Indian circumstances, polygamy is largely an anachronism from patriarchal times and that very few Indian Muslims practice it. This view may be correct to some extent but ignores that such a practice that is the prerogative of a select few creates fissures and religious tensions in society. There have been many instances in the past of abuse of this practice as permitted under Islam. Often, non-Muslims convert to Islam in order to marry more than once and while Courts examine the intention behind such conversions to decide on the question of validity of second marriages, such a phenomenon generates strife and also affects rights of the parties involved.

Divorce: Traditional Hindu law did not recognize the concept of divorce but modern law provides for it under the Hindu Marriage Act, 1956, which largely provided for fault-grounds which either spouse could avail in order to obtain a divorce. The most remarkable, and most discriminatory, feature of Islamic law of divorce is the recognition of the concept of unilateral divorce, wherein the husband can divorce his wife unilaterally, without any cause, without assigning any reason, even in a jest or in a state of intoxication, and without recourse to the court and even in the absence of the wife, by simply pronouncing the formula of repudiation. Muslim law also entitles the woman to ask for a divorce under certain restricted circumstances. Modern law³ allows a wife to obtain a divorce through the intervention of a judge, before whom she must establish one of a limited number of acceptable bases for divorce. The fact that on a moral plane, divorce is reprehensible in Islam and has been denounced by Prophet does not provide relief to women as unilateral divorce continues to be an accepted practice in many countries including India.

[CONTINUED IN PART 2]