Introduction
Law as a term provides faith in itself to a person seeking justice. The main reason is its adaptability and flexibility according to the circumstances that are changing continuously. It is said the rule of law is same for all, but it is not the whole truth.
Sometimes even law differentiates among different sections, religions etc. in accordance with their customs. But in the current scenario, where these inter-caste and inter-religious marriage and divorce are totally acceptable, Uniform Civil Code has been in demand.
Uniform Civil Code, as the term suggests calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption and succession. Article 44 of the Indian constitution explains about the Uniform Civil Court.
Recently, in a case Satyaprakash Meena Vs Alka Meena, Delhi High Court felt the need of making one law for all. This subject has also been aroused in Triple Talaq case, Shayara Bano Vs Union of India[1] but at both times, it has faced lot of opposition.
Now the question is whether the Uniform Civil Code can be implemented? What are the challenges waiting ahead? This article answers all these questions.
What is the historical perspective of Uniform Civil Code?
Uniform Civil Code also known as Samana Nagrika Samhita, has a long account of history which starts back to the colonial period in India., when Lord William Bentinck tried to suppress Sati-Pratha where a widow was burned alive on her husband funeral pyre. An act called Bengal Sati Regulation, 1829 was passed to satisfy the purpose.[2]
In 1840, when codification of Indian Law was taking place, personal laws of Hindus and Muslims were kept aside which were said to be used as per customs for their communities. But different social evils prevailing in different religions were curbed at time to time by passing different acts and laws.
B.N. Rau committee was set up to determine the necessity of common Hindu laws. The committee in its report said that it was a time of Uniform Civil Code, which would give equal rights to women but only Act of 1937 was reviewed.
The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was enacted in 1872 but it had a limited scope.
After Independence, when committee was made to discuss in 1951-1954, Dr. B.R. Ambedkar recommended the adoption of a Uniform Civil Court but was opposed by Hindu upper caste. Then after the session the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act were introduced one by one. But for the future reference, Article 44 of the Directive Principles of the Constitution was added.
What constitution provides for Uniform Civil Code?
As mentioned above, Article 44 of the Directive Principles of State Policy deals with the concept of Uniform Civil Code. This states that:
“Uniform Civil Code for the citizens: The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
The objective of inserting this article was to protect vulnerable groups from any type of discrimination and providing them umbrella of law. In this way the diverse culture of the country could be saved.
This article was provided under the Directive Principle of State Policy in Part IV of the Constitution, so that it can be implemented when society would be in a state of accepting this particularly.
Only the implementation by the government is not going to work. The citizens have to adapt themselves accordingly. But in the modern times as we can see, the society is being more and more homogenous which is leading towards the acceptance by the society for uniform civil code especially in the cases where customs under two religions contradict and where one do not understand that customs of which religion should be followed like in the case of inter-caste marriages, adoptions, succession, inheritance and guardianship etc.
What is the Shah Bano Case? How is it related to the Uniform Civil Code?
The Mohd. Ahmad and Ors. Vs Shah Bano Begum and Ors[3]., or the Shah Bano Maintainence Case is seen as one of the legal milestones in battle for protection of rights of Muslim women.
This even led a conflict between secular and religious authorities over the issue of the Uniform Civil Code. Due to making of personal laws a separate branch, the Muslim community was kept away from any reforms.
Facts of the case:
Bano was a 73 year old woman who sought maintenance from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of marriage by triple Talaq ( saying “I divorce thee”) three times) and denied her regular maintenance. This is a type of unilateral divorce permitted under the Muslim Personal law. [4]
She was initially granted maintenance by the verdict of a local court in 1980. Khan, himself took this case to Supreme Court saying that he had fulfilled all his obligations under Islamic Law.
The Supreme Court held the maintenance given to Shah Bano was right under “Maintenance of wives, children and parents” provision under Section 125 of the All India Criminal Code, which applies on all citizens of the country.
Effects:
Muslim being minorities were threatened and in order to protect themselves the All India Muslim Board defended the application of their laws and supported the Muslim conservatives who accused the government for promoting Hindu Dominance over Indian citizen at the expense of minorities. The Criminal Code was seen as a threat to Muslim law and was opposed.
Even the judiciary was trusted to be a threat to Muslim personal Law. The members of the Muslim board started a campaign for complete autonomy in their personal laws. It soon reached a national level, by constituting legislators, ministers and journalists.
Even a bill of to protect Muslim personal Law was proposed. Even Bano has to reject the Supreme Court’s verdict. The Muslim Women’s (Protection of Rights on Divorce) was passed in 1986, which made Section 125 of the Criminal procedure Code inapplicable to Muslim women.
In this way, the society at that time did not accept the provision of Uniform Civil Code to be substituted with their Personal Laws.
What is the Current scenario and Point of Views?
As we know that UCC meant to replace currently applicable to various respective communities which go different to each other like Hindu Laws and Islamic Laws.
The difference has to be faced by Muslims more than Hindus as they have been already applicable to Hindus through Hindu Code Bills for decades. There is a lot of debate in application of One Nation – One Law.
The debate has two points of views:
- First View:
This view is mainly on religious ground. According to its proponents, India is a secular country that provides freedom to profess, propagate any religion. Also, the State has no right to interfere in religious affairs of any religion until and unless comes under restrictions so provided under constitution.
With this point, it is clear that Uniform Civil Code in the country would not be able to replace the Personal laws as this would harm the interest of a particular religion and their faith.
- Second View:
According to some people, the application of the Uniform Civil Code is very important in this phase of modernity because Indian society is on its way to be homogenous day by day. The youth has boycotted the orthodox point of views and is stepping forward towards the equality and justice.
The inter-caste and inter-religion marriage is quite popular in the recent terms. And for the ambiguity of laws to be applied in such cases can be resolved by Uniform Civil Code. Moreover the cases like Shayra Bano in 2019 where women have to face discrimination on religious grounds have shown the urgency to apply the concept.
Does this concept apply on any state or area?
When whole British India was struggling with the debate to apply the Uniform Civil Code against the personal laws, a state already has applied this concept of Law which is applicable till date. The state is Goa which has Goa Family law to deal with all personal affairs irrespective of the religion or faith of person.
The Goa Family Law is a set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961.
Although it has faced a lot of opposition, still enforced by the state and is acceptable by the people of that area happily. This shoed the positive side of Uniform Civil code to the people and its need.
Case Laws
- Ms Jordon Diengdeh Vs SS Chopra, 1985[5]
Implementation of Article 44
It was observed by the Supreme Court that Article 44 of the Constitution needs to be implemented in its letter and spirit and appropriate steps should be taken regarding this.
But three decades have been passed since then and it is unclear as to what steps have been taken in this regard till date.
- Satprakash Meena Vs Alka Meena, 2021[6]
Inter religious marriage calling for the need of Uniform Civil Code
In this case, the Delhi High had to face the problem of divorce of people on which different laws were applicable in which wife shuts the husband’s petition for divorce by saying that the law is applicable on her. This generated lot of ambiguity in concern and Justice Pratibha M Singh observed that:
“In the modern Indian society which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.”
Conclusion
In closing, we got know that modern society is in need of a Uniform Civil Code to be implemented. The Article 44 of the constitution allows the government to secure for its citizens Uniform Civil Code. The state interfering in the matters of religions on the other hand is not acceptable in the diverse Indian Culture.
From the pre-Independence period, Indian government has tried to apply the ONE NATION-ONE LAW concept but in vain.
The main reason is non-acceptance by the Indian society. There are various religions having different customs and procedures handled by their board.
These religions never let the government to interfere in their matters. But time to time the government had interfere because of prevailing evils and discrimination like the Sati and the Triple Talaq where religion was kept before humanity.
The only way to curb this problem is to broaden our thinking and make religion and the modernization to go hand in hand so that individual can balance between the two: faith and development in the modern society.
Reference
- Shayara Bano Vs Union Of India, (2017) 9 SCC 1 ↑
- What is Uniform Civil Code, available at: business-standard.com (Last visited on July 21st, 2021) ↑
- Mohd. Ahmed Khan Vs Shah Bano Begum (1985) 2 SCC 556 ↑
- Express Web Desk, “What is Shah Bano case?” available at: indianexpress.com(Last visited on July 21st, 2021) ↑
- MC Jordon Diengdeh Vs SS Chopra, (1985) 3 SCC 62 ↑
- Satprakash Meena Vs Alka Meena, C.R.P.1/2021 ↑