It is argued that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.[i] The necessity or otherwise of a uniform civil code cannot be debated in the absence of a coherent conception of what the UCC will be and what it will do.[ii] Recently, it has been reported that the Union Law Minister has requested the Law Commission to examine the issues pertaining to the implementation of UCC and submit a report to the government.
Article 44 of the Constitution of India provides that “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The object behind this Article is to effect an integration of India by bringing all communities on the common platform on matters which are at present governed by diverse personal laws but which do not form the essence of any religion, e.g., divorce, maintenance for divorced wife.[iii] The Constitution of India stands for a secular state, i.e. the state has no official religion. Dr. Radhakrishnan, former President has once said, “When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives…We hold that not one religion should be given preferential status…This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International life”.[iv]
Political history of India shows that during the Muslim regime, justice was administered by the Qazis and they applied the Muslim Scriptural law to Muslims, but there was no similar assurance so for litigations concerning Hindus was concerned. This system, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Muhammadans. The 1772 Regulations followed by the Regulations of 1781 prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage and institutions…This broad policy continued throughout the British regime until independence.[v]
The Supreme Court has felt the need for a uniform civil code for the first time in a case wherein a Muslim woman seeking maintenance under S.125 of the Cr.P.C. The Court has then observed that a common civil code would help the cause of national integration and thereby directed the Parliament to frame a UCC.[vi] In Jorden Diengdeh v. Chopra, S. S., [vii] the Supreme Court reiterated the same issue but in a different context and held that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. It is the state which is charged with duty of securing a UCC for the citizens of the country and, unquestionably; it has the legislative competence to do so.
Further, in Sarala Mudgal v. U.O.I,[viii] the issue was whether a man embracing Hindu religion, who has converted into Islam for the sole purpose of marrying second time, commits the offence under S.494 IPC. The Apex Court, while discussing the above question, has opined that it was high time that a UCC be introduced. The Supreme Court had observed: “Pt. Jawahar Lal 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 Art. 44 from the cold storage where it is lying since 1949… The utmost that has been done is to codify the Hindu Law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority & Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, which has replaced the traditional Hindu law based on different schools of thought and scriptural laws into one codified code when more than 80 percent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil Code for all citizens.”
The Court once again urged the government to come up with a UCC in Danial Latifi v. U.O.I, [ix]wherein the Court has liberally interpreted S.3 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986.
In most cases, it is argued that the marriage, succession and like matters are not of a secular character and the same has been protected under Arts. 25, 26 and 27.[x] But the Court in Ratilal v. State of Bombay,[xi] held that Art. 25(2) (a) saves the power of the state to regulate or restrict secular activities associated with religious practice. But these restriction or regulations should be primarily concerned with the secular aspects of religious practice rather than with the essentials of religion as per judicial pronouncement and it is upon the court to decide the dividing line among them. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society.[xii] Nevertheless the Court has continued to emphasize that a common civil code will help the cause of national integration by removing the contradictions based on ideologies.[xiii]
Though the repeated judicial reminders have urged the government to implement a common civil code throughout the country, the Supreme Court’s judgments in itself reveals the lacuna in its understanding of what Art. 44 means. Recently, Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, in a letter to Prime Minster Narendra Modi in November 2015, has stated the importance for codifying Muslim Law as a part of framing a common civil code in the country.[xiv] Starting from the Shah Bano[xv] till the recent case of Shayara Banu[xvi] (the constitutional validity of triple talak divorce and polygamy is challenged); the court has failed to interpret the notion behind adopting a UCC. It has been frequently stated in media that the codification of Hindu laws is considered as a stepping stone in framing a UCC in the country. Also, it has been debated that, if the state of Goa could frame a UCC, then why not others?
The Goa Civil Code is based on the Portuguese Civil Code of 1867. Goa is the only state in India which has enforced uniform civil code for all citizens. The notable provision of the Goa Civil Code is that the Community Property Law guarantees immediately upon betrothal, for each spouse 50% of all assets owned and due to be inherited at the time of marriage. Both the wife and husband own half of the property but each partner must take the spouse’s permission before disposing of any of these assets.
However, the Goa Civil Code is not strictly a UCC, as it has specific provisions for certain communities. For example, The Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa. Whereas for other communities, the law prohibits bigamy; the Roman Catholics can solemnize their marriages in church after obtaining a ‘No Objection Certificate’ from the Civil Registrar. For others, only a civil registration of the marriage is accepted as proof of marriage.[xvii] So, if the UCC means uniformity so as to the cause of national integration then how can we argue that the government should adopt the Goan Model in rest of the states?
M.K. Gandhi has once said, “We should get out of the miasma of religious majorities and minorities.” It is explicit from the above observations that a UCC is not just an attempt to put an end to the discrimination against women on religious grounds but to strengthen the unity and integrity of the nation.
[i] Ahmed Khan, Mohd. v. Shah Bano Begum, AIR 1985 SC 945
[iii] Supra note. i
[iv] Radhakrishnan, Sarvepalli., RECOVERY OF FAITH, 1956, p. 184
[v] Sarala Mudgal v. U.O.I, (1995) 3 SCC 635
[vi] Supra note. i
[vii] AIR 1985 SC 935
[viii] Supra note. v
[ix] AIR 2001 SC 3262
[x] The Constitution of India
[xi] (1954) SCR 1055
[xii] Supra note. v
[xiii] John Vallamattom v. U.O.I, (2003) 6 SCC 611
[xv] Supra note. i
[xvii] Partha S. Ghosh on The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code, ROUTLEDGE, pp. 19-22