NEED OF UNIFORM CIVIL CODE IN INDIA

Let us take a look at some painful yet interesting examples of discord in Indian society owing to prevailing laws related to family matters:

In India, until a decade ago, only a Hindu person could (legally) adopt a child. (Adopting a child and being a guardian are separate things)

It was in 2014, after a Muslim woman Shabnam Hashmi petitioned to adopt a child, that SC decreed that the prospective parents irrespective of their religious background are free to adopt children- with the Juvenile Justice (care and Protection of Children) Act (amended in 2006) superseding the personal religious laws in matters related to adoption.

Even till the date of writing this article (22.01.23), a Jewish couple residing in India can’t get divorced because Jewish customs don’t allow it.
In 2012, a Jewish couple applied for divorce but they were denied because the Bandra court observed that “there is no provision of divorce in uncodified Jewish matrimonial laws”.
SC judgment in Shayara Bano vs Union Of India, 2017, and subsequent legislation, thankfully led to a purging society of menace called Triple Talaq. However, unfortunately, many sections of Muslim society are still plagued by social evils like Nikah Halala and Polygamy.

Nikah halala is a practice in which if a Muslim man gives Talaq to his wife out of impulse and later the couple wants to remarry, the onus is on the divorced wife to “halala” (purify) the marriage.
For this, she has to marry another man, consummate marriage with him, and then wait to get divorced by him to return to her former husband.
Many religious scholars are milking this unreasonable and inhuman tradition by charging hefty money for night stands with divorced wives to enable them to “save” their marriage.

Many cases related to the Christian community have turned up in the last 2–3 decades where SC made important amendments in existing laws to purge them of disparity in matters related to divorce, succession, maintenance, etc.

Earlier a Christian husband was eligible to divorce his wife on grounds of infidelity on her part, but a woman wasn’t eligible to claim divorce solely on the grounds of Husband’s adultery.
Also, the minimum judicial separation period required for divorce in the case of Christians was 2 years, unlike one year in the case of other religions.
No Christian man having a nephew or niece or any nearer relative was allowed to bequeath any property to religious or charitable uses, until this restrictive clause in the Indian succession act was struck down by SC verdict in the John Vallamattom case, 2003.
In Mrs. Mary Roy vs State Of Kerala, 1986 Supreme repealed the Travancore Cochin Succession Act, 1092 and decreed that Indian Succession Act,1925 shall be applicable uniformly to Indian Christians.

A peek into perhaps the most painful chapter related to Muslim laws:

Shah Bano, a 60-year-old woman was thrown out of the house by her rich and influential lawyer husband Ahmad Khan after his second marriage. On claim of maintenance money, Khan instantly divorced her by saying Talaq-Talaq-Talaq, thus making him responsible only for the alimony up to 3 months (“iddat”).
On petitioning- Subordinate, HC, and SC all upheld section 125 of CrPC, thus obligating Khan to pay lifelong monthly maintenance to Bano.
There was a huge uproar by the Muslim Community at the prospect of SC upholding Criminal law in the case, instead of Muslim Personal law.
Succumbing to the pressure, Rajiv Gandhi's government, overturned the judgment by passing a so-called “Muslim Women’s (Protection of Rights in Divorce) Act”, which stated that Muslim personal law would supersede CrPC in matters related to Muslim divorce and maintenance.

In the famous Sarla Mudgal vs Union of India case, in 1995 numerous cases were brought to light where Hindu married men converted to Islam solely to marry another woman (without divorcing the first wife) since Muslim Personal Laws permit polygamy.
Honorable SC decreed that in such cases, second marriage shall be considered illegal and punishable under section 494 of IPC.

Notably, during all these landmark judgments, honorable SC has repeatedly directed that it is high time the government worked seriously on the implementation of the Uniform Civil Code.

Justice Kuldip Singh during his rather strong-worded judgment of the Sarla Mudgal case, 1995 not only emphasized the need for a Uniform Civil Code but lamented vehemently how it continues to be an ignored constitutional provision:

“Pandit Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949.”

WHAT IS UNIFORM CIVIL CODE?

Having a “Uniform Civil Code” means having uniformly applicable laws about civil matters, especially family matters such as marriage, divorce, succession, adoption, maintenance, etc. for all Indian citizens irrespective of their religious faiths.

Currently, while all criminal cases come under the purview of IPC and CrPC; the civil laws for Hindus are governed by the Hindu Code Bill (1956), while those belonging to other faiths they are governed by their religious personal laws.

Article 44 of the Indian Constitution states that

“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”

However, the above article comes under the Directive Principles of State policies, which are not enforceable by a court of law. But the constitution states that these are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Currently, the Uniform Civil Code is limited to the state of Goa and there are only a few civil laws like the Special Marriage Act and Juvenile Justice (care and protection of children) Act which apply uniformly to all Indian citizens.

HISTORICAL BACKGROUND:

Dr B.R. Ambedkar was a staunch supporter of the Uniform Civil Code as a means to establish equal treatment in the true sense and wanted to implement it constitutionally. However, due to opposition from all sides, he could only introduce it as a Directive Principle in Article 44.

Later, PM Nehru tried to implement the Hindu Code Bill as a precursor to UCC, i.e. codifying and unifying personal laws for Hindus before extending it to Minorities.

GHOST OF NARASU- A verdict that shielded religious personal laws from the test of violation of fundamental rights:

While being tried for bigamy in 1951, a Hindu man Narasu Appa Mali questioned the permissibility of polygamy in Islam and called out the discrimination based on religion as an infringement of the fundamental right of equality under the newly enforced constitution which ensures the “absence of legal discrimination only on the grounds of, inter alia, religion”- a bench of 2 Bombay HC judges contemplated an important question- whether Article 13 of the constitution (which nullifies those laws which are inconsistent with or in derogation of the fundamental rights) takes effect on the personal laws like “Shariyat” which violates the fundamental rights established by constitution.

Interestingly, while the Muslim Judge MC Chagla was of the opinion that it does and wanted to outlaw the Muslim Personal Law (Shariyat Application) Act, 1937 as a part of the decision, Justice Gajendragadkar interpreted the wording of Article 13 of the constitution differently and opined that it calls for repealing of “laws in force” i.e. the ones made by legislation and not the personal laws like Shariyat which come under the category of custom or practice.

Hence on the reasoning of Justice Gajendragadkar, Personal laws were shielded from the constitutional scrutiny of violation of Fundamental rights and unfortunately, this understanding would remain intact for years to come...

… only to get challenged recently by Justice DY Chandrachud, who during his Sabrimala Verdict gave an opinion that the reasoning in the Narasu Case was flawed.

THE NEED OF UNIFORM CIVIL CODE

The question of readiness:

Unfortunately, the words of the 1995 judgment by Justice Kudlip regarding the Successive Governments being wholly re-miss in their duty of implementing the Uniform Civil Code on the pretext of lack of readiness in society, continue to be true even after 75 years of Independence.

It is pertinent to mention here:

When First PM Nehru introduced the concept of “Divorce” under the Hindu Code Bill, 1956 he witnessed a strong uproar and criticism by fellow heavy-weight Hindu leaders. Our first President Dr. Rajendra Prasad questioned his audacity to even imagine the concept of separation when marriage is considered a “Sanskar” (sacrament) in Hinduism.
The provisions like the right to property for Indian women evoked similar reactions and many accused Nehru-Ambedkar of attacking Hinduism and aping West.
In fact 200 years ago, when social reformers like Raja Ram Mohan Roy condemned Sati Practice, and Lord William Bentick declared it illegal (1829); or when Ishwar Chandra Vidyasagar persuaded Lord Dalhousie to pass Hindu Widow Remarriage Act (1856)- it wasn’t as if the Hindu community welcomed it gladly. Practicing Hindus became extremely uncomfortable at the prospect of interference in their religious affairs.

Here are some old cartoons (1950 Newspapers) depicting the uproar regarding Nehru-Ambedkar trying to push through Hindu Code Bill:

However, it is to the credit of Hindus to have made peace with these inconvenient changes in their practices eventually; unfortunately, the Muslim community couldn’t find such apt reformers or reforms- neither during British rule (with the British succumbing to the pressure of Muslim League and passing The Muslim Personal Law (Shariat) Application Act in 1937) nor under Nehru (who was apprehensive of alienating minorities).

The point is- any progressive change is always inconvenient for any religious follower. Anyone who believes that the Uniform Civil Code should be implemented only when society is ready for it should understand that society wasn’t even ready for the abolishment of Sati.

Also, it takes time for any hard-hitting reform to get reflected at the societal level after it is implemented on the legal level (and NOT the other way around). For example, despite legislation on the above matters, society took its own sweet time to stop practicing them furtively. (Sati was illegalized in 1829, yet the last big issue- the Roop Kanwar case- came in 1987)

Constitutional Aspects:

Articles 14, 15, and 16 call for equality and emphasise that there shall be no discrimination by the State, on the grounds of religion, race, caste, sex, or place of birth.
Having personal laws of different communities often violate this “no discrimination based on religion or sex”.
While Article 25-26 of the constitution provides citizens with the freedom of conscience and the right to profess, practice, and propagate any religion,

these provisions are subjected to “public order, morality, and health”.
this article doesn’t restrict states from enacting laws providing for social welfare and reforms or laws regulating any economic, financial, political, or other secular activity that may be associated with a religious practice.

The biggest concern raised by people opposing the Uniform Civil Code is regarding the preservation of the plurality of the country and the encroachment of religious freedom.

Firstly, it is intended only to formulate uniform laws on matters of marriage, divorce, inheritance, succession, guardianship, adoption, and maintenance, and not to dictate citizens have a uniform way of life. We do have the right to life and personal liberty under Article 21.
Secondly, there is a “doctrine of essentiality” which is a legal framework is a doctrine to protect the religious practices that are essential or integral and do not violate any fundamental right. For example, Article 25 permits Sikhs to carry Kirpans because it is considered essential to their religious belief.

CONCLUSION

It is high time we did away with discriminatory, regressive, obsolete laws and legally dispelled the toxic practices like Nikah Halala and bring all citizens under the ambit of one law as India is a secular country- not a theocracy and thus “Rule of law” should overpower religion whenever there is a conflict.

REFERENCES:

Cases and judgments mentioned in the article:

M/S Shabnam Hashmi vs Union Of India & Ors on 19 February 2014
Smt. Sarla Mudgal vs Union Of India & Ors on 10 May 1995
Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April 1985
Shayara Bano vs Union Of India And Ors., 22 August, 2017
Mrs. Mary Roy vs State Of Kerala, 1986
John Vallamattom & Anr vs Union of India, 2003
Mrs.Pragati Vargheese vs Cyril George Vargheese, 1997
The State Of Bombay vs Narasu Appa Mali on 24 July 1951
Indian Young Lawyers Association vs The State Of Kerala on 28 September 2018

Links to related news articles:

Note: The article contains some portions that have been published by me, Bhavya Jain, previously in a Quora answer.

Link: https://qr.ae/prHts6

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