[Guest Post] Uniform Civil Code: A Perspective on the basis of Personal Laws by Suhani Gupta & Vaishali Jethi


Uniform civil code as mentioned in Article 44 of Indian Constitution as the Directive Principles of state policies has been under debate since a long period of time and has come into light recently with ongoing debate happening regarding it. The BJP leaders in 2019 elections tried to replace the personal laws prevailing in India which are based on scriptures and customs and people being governed by their personal laws in respect of marriage, divorce, adoption etc. Article 44 states that “The State shall endeavor to secure for its citizen a uniform civil code in territory of India.” As the recent issues which are led by the government i.e. Article 370 and related issues, there seems an intention of the government to articulate and bring Uniform Civil Code in India. The purpose of Article 44 is ONE COUNTRY, ONE RULE and thus UCC will be a safeguard of citizen’s rights.

At the time of Britishers, when they ruled India, they made uniform laws for the evidence, crime and even the contract but they left the personal laws based on customs and rights of different religions intentionally. When the constituent assembly had a meeting in 1946 before independence, the people were both in favour and even in the opposition of UCC, as a result they added uniform civil code in DPSP’s. It is given a status in Part IV of the Indian Constitution as DPSP’s are not enforceable and non-justiciable. This in the context doesn’t mean that they are not given any status in Constitution, they are stated as the moral obligation which needs to be followed by every state while making any law. There were mainly three words which got the people’s attention regarding the UCC: Politically, Socially and Religiously. At that time people were mainly focusing on empowerment of women status and dignity in society. The Supreme Court of India in various landmark cases directed the Parliament to bring a UCC, like in Shah Bano case[1], Sarla Mudgal case[2], John Vallamattom v. Union of India[3] case.  By the virtue of these cases, Supreme Court said that a common civil code will contribute in the cause of national integration by eradicating the contradictions based on religions and ideologies.

In a country like India where different religions exist, different personal laws exist for them which state the status of such religions in our country and are a driving force for people. Each and every religion has its own personal laws which explain the customs or practices which they follow and with time these laws have gained a habitual status or vice-versa i.e. the habits of the people were framed into personal laws. In India the majority lays in two religions, Hindu and Muslim. Both have their personal laws and abide to it. Flexibility in personal laws is accepted in both religions but the process is time consuming. For example, the sati pratha of Hindus was a practice but after a strict law was made it came to an end, same was the case with Muslims the practice of triple talaq had to come to an end but the process took time.

To understand the concept of Uniform Civil Code it is important to understand the different personal laws existing in our country. In our country if we talk about it the focus automatically shifts to Hindu and Muslim personal laws. Hindu personal laws have been prone to changes since the past as sati pratha was a practice which was followed in our country by all hindu women but when the jurists shifted focus from custom to gender then they understood rationality of the custom and this is the only reason it was possible even for the religious people to remove this custom. No change is impossible. It is the efforts and the rationality which plays the part in bringing the change.

The Muslims are efficiently religious and deeply believe in their religious texts: Quran and Hadith. These are the people who are bound to oppose the concept of Uniform Civil Code as they think that it goes against their commitments to Shariat laws. For them this draft of UCC doesn’t exist at all and they didn’t give any consensus as it simply is a political question for them. They circulated a structuralized questionnaire to get the opinions of the different people and the concerned citizens on UCC. The Fundamental Rights were given the best and more notion in respect of the Uniform Civil Code as they form the basic source to bring reform in the personal laws of all communities. The laws like Triple Talaq and Article 370 have made people’s focus in respect of UCC, as they now believe that it can be brought into our nation. The view of the modern Muslim jurists is different as they believe that knowledge can be attained only through reason, they believe that good and evil have also originated from reason. They believe that mutual relations between man to man can only be brought through continuous development and to start on the point of development, it is clearly seen how the concept or believe of triple talaq was removed just to bring development and safeguard women. They took time to understand the need for this change so as to ensure safety and to safeguard women, but it’s never late for improvement.

In our country we have right to equality and right to freedom of religion and both of these rights are contradictory to each other as when it comes to equality the religious personal laws stop from achieving this goal. For example, when it comes to divorce the remedies provided in different personal laws are different, as on one side Hindu personal law talks about maintenance but on the other hand Muslim women were deprived of this right. If there is a difference in remedy for same problem just on the basis of religion there is no equality. Now here Uniform civil code plays its part in the picture as there can be complete uniformity and equality can be achieved. If Uniform civil code is applied there will be equality like in case of divorce, every woman irrespective of her religion will be granted same remedy and it’s not only about divorce but also several issues like property rights, maintenance and inheritance. Under Hindu Law: the spouse has an outright right to guarantee upkeep from her significant other. Under Hindu law, an individual has individual commitment to keep up his better half, youngsters, and matured guardians. Under Muslim law, a Muslim has an individual commitment to keep up his youngsters yet it is not an outright commitment. A father will undoubtedly keep up his female youngsters until they are hitched, a Muslim widow has no option to upkeep out of her better half's domain notwithstanding what she got by legacy as his better half.

In any family or society, the most significant and regularly grating issue emerges from the privilege to legacy and progression. Be it political, money related or even strict capital. The inquiry and settlement of legacy and progression have been a major issue from prehistoric times and history is loaded with occurrences when only settlement of these rights has prompted monstrous demolition and brutality. In this manner, it was just normal to have laws and standards of legacy and progression in the family laws likewise and we will attempt to investigate some of them with regards to the subject focusing basically on privileges of women in the Laws of Inheritance and Succession. Religion assumes a significant job in the progression of property by ladies as the individual laws of strict networks are generally commanded by the sacred writings of those religions. The Hindu succession act improved the Hindu individual law and gave women more prominent property rights, permitting her full proprietorship rather than constrained rights in the property she acquired under section 14 with a new load of beneficiaries under section 15 and 16 of the act. The Hindu Succession (Amendment) Act 2005 looked to make two significant corrections in the Hindu Succession Act 1956. To start with, it proposed to expel the gender discrimination caused by section 6 of the first act. Secondly, it proposed to omit section 23 of the act, which disentitles a female beneficiary to request portion in house, entirely involved by a joint family until the male beneficiary decides to separate their individual offers in that. The oversight of section 4(2) of The Hindu Succession Act 1956 is another accomplishment of the 2005 amendment. Presently, women have legacy rights over rural grounds similarly as men. There is a vast difference between these rights in Hindu and Muslim personal laws. The personal laws do provide rights but at different degrees. To remove these different degrees we need uniform civil code as it will be same for all people irrespective of their religion.

 

It is to be understood that by bringing Uniform civil code we do not question the believes of the people, as they will still have all the right to follow their religion. Uniform civil code just focuses on a code which is uniform and certain for all people. It does not question any religious practice like, for example, every religion has its own rituals in performing marriage and this is not questioned under Uniform civil code. It focuses on same law for all people in respect to divorce, inheritance, maintenance. India is a country of unity in diversity, and this unity has to be maintained in terms of law as well. We should have a law which unites everyone and which is not different on the basis of religion even in the 21st century. Our constitution gives us right to follow any religion of our choice, but when it comes to maintaining law and order in the country it should be one and equal for all. It isn't expected to state that the undertaking of the code would simply be to acclimatize and arrange the current guidelines of the individual law. Indian culture is in no way, shape or form static and with the development of society different social issues and circumstances develop which were not accommodated by the customary laws. For example, the issue of divorce has gotten dire in present times. The way that conventional Hindu law contained no arrangements for it doesn't imply that the code likewise ought to contain none. It is not possible to examine in detail all the issues liable to be experienced in the definition of a uniform common code. It is self-evident that they would be of a complex and even sensitive nature. The Constitution creators appear to have known about this. They set article 44 in the directive principles of state policy which, however major in the administration of the nation, doesn't lay the state under a positive commitment enforceable either by legitimate or protected methods. Also, the mellow language of the article itself appears to communicate an expectation as opposed to give an order. All things considered, the article has defined an objective and exertion ought to be made to accomplish it despite the fact that the assignment would be long and challenging.

Goa is the only state in India which crosses the barrier of religion and has Uniform Civil Code (UCC) for all residents despite the fact that India has different civil laws for different religions. The Portuguese Civil Code that remains in power even today was brought in the nineteenth century in Goa and wasn't changed after freedom. The Uniform common code in Goa is a dynamic law that permits equivalent division of income and property irrespective of gender and also children. Every death, birth and marriage has to be registered. For divorce there are different arrangements. Muslims that have their marriage registered in Goa can't take more than one wife or divorce by speaking "talak" thrice. Over the span of marriage all the property and wealth possessed or gained by every life partner is regularly held by the couple. Every spouse if there should be an instance of divorce is entitled for a half portion of the property and if any of spouse dies, the responsibility for the property is held by the other. As per the Uniform Civil Code regardless of whether the children (both male and female) are married or not, the other half must be divided similarly among them. Along these lines the guardians can't exclude the kids absolutely as they can arrange just 50% of the property in a will and the rest must be necessarily and similarly shared among the children.

The uniform civil code in Goa is a light of hope and guidance for us that yes uniform civil code can also be brought in rest of the parts of the country.

The uniform civil code is necessary for the country to enact as:

1.      It will promote harmony and secularism in the country. The people will not be differentiated on religion and caste basis, it actually should be interpreted as it does not restrict or bind anyone not to follow their religion but it actually conveys the message that the citizen of India should be treated alike.

2.      All laws related to marriage, divorce etc. should be same for all the Indians.

3.      As we lived in patriarchal society, UCC will help the women to be an active part of the society and they would be able to fight for their rights as this kind of patriarchal society doesn’t exist now.

4.      As the nation should be developed and we should make our country a developed one, so taking this step towards UCC would be a great and efficient step towards the same. It will be denoting a sign that out country and society have moved away from discrimination on the basis of caste, religion etc.

All the different views and ideas of different religions should be merged and accepted as one in our country. Most of the developed countries have done the same so that the nation should be united and regarded in the world as ONE NATION.

There are even some drawbacks for the uniform civil code to be enacted as:

1.      Article 25 and 26 of The Constitution of India are interpreted and cover the wide area of the personal laws which need to be protected in the society and these are the fundamental rights which are given by the constitution, and are even justiciable and enforceable in courts. These articles are the contradictory provisions to Article 44.

2.      As India is regarded as the most diversified country, laws vary from society to society and even from the religion to religion. The practices are formed through customs and beliefs of people, which eventually got evolved, ina number of years should be also given the equal respect and due importance

3.      As people are very focused towards their language, in the same way people don’t want their customs and practices to not be followed.

4.       There are even the general laws which generally prohibit certain actions like child marriage, abortion etc. which cannot be violated by even the provisions, if any, mentioned in the personal laws. There should be harmony built between the personal laws and the uniform civil code.

Every country has its own way of bringing law and then abiding by it. The most important role played is by the citizens of the country because in the end it’s the citizens who have to follow and for whom the law is made. It is the citizens of the country who will be benefited or will suffer loss from a particular law, but it is also the duty of the citizens to understand that everything takes its own time to adjust itself in a country. No law can give immediate results. If Uniform civil code is brought in our country there will be unity, equality and development but subject to time.

 The Author of the article, Suhani Gupta & Vaishali Jethi is a student of UPES, Dehradun. She can be reached at jethivaish[at]gmail.com 




[1]Mohd. Ahmed Khan v. Shah Bano Begum, Air 1985 Scr (3) 844

[2] Sarla Mudgal v Union of India, AIR 1995 SC 1531

[3]John Vallamattom and another v. Union of India (2003) 6 SCC 611.

  






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