The concept of Uniform Civil Code (hereinafter referred to as UCC) is being deliberated widely today. It has been envisaged in Article 44 of the Constitution of India in Part IV, which deals with Directive Principles of State Policies, which aren’t enforceable by any court, but they play a significant role in the governance of the country. The question that would ascend in the minds of readers is what exactly comprises civil code. Generally, it shall include all the civil laws of a specific community or nation. In legal terms, it shall include all personal laws of any religious or ethnic community, which would also include criminal laws and any other customs or more which are practiced by such a community. There exist an emerging need for the implementation of UCC and make uniform personal laws.

Since DPSP’s are not enforceable by Courts, in many occasions, the Supreme Court of India has directed the Parliament to frame UCC. In 1985, in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case, a claim for maintenance had been initiated by a penniless Muslim woman from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. Invoking Section 125 of C.P.C, the Supreme Court held that the Muslim woman has a right to get maintenance from her husband. In addition, the Court also remarked that Article 44 of the Constitution has remained a dead letter. It was observed by the then Chief Justice of India Y.V. Chandrachud that, a common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies. Shah Bano case decision was curtailed by way of enactment of Muslim Women (Right to Protection on Divorce) Act, 1986, which curbs the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure.

The second occurrence in which the Supreme Court again directed the government for implementation of UCC was in the case of Sarla Mudgal v. Union of India. The issue was whether a Hindu husband, married as per the norms of Hindu law, can solemnize second marriage by embracing Islam. The Court held that the first marriage can be dissolved under the Hindu Marriage Act, 1955. The first marriage would therefore, still be valid and under Hindu law. Under Section 494 of the Indian Penal Code, 1860 the second marriage, solemnized after his conversion, and would be illegal. The Court has reminded the government to have a re-look into Article 44 of Indian Constitution, which suggest Uniform civil code for the citizens. Court felt that there is need to retrieve the concept of UCC from cold-storage where it is lying since enactment of the Constitution.

In 2003, the Supreme Court has again made a cue to the government about the constitutional obligations to enact a UCC, in John Vallamatton v. Union of India when the doors of the Court was knocked by a Christian priest challenging the constitutional validity of Section 118 of the Indian Succession Act. A writ petition was filed by a Priest stating that Section 118 of the said Act was discriminatory against the Christians as it impose unreasonable restrictions on their donation of property for religious or charitable purpose by will. The Court struck down the Section declaring it to be unconstitutional, and also stated that – “Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India It is a great regret that Article 44 of the Constitution has not been given effect. Parliament should take step in for framing a common civil code in the country. A codification of common civil code will help the cause of national integration by removing the contradictions based on ideologies.”

Recently, the heroic battle put up by Muslim women against the practice of triple talaq has once again brought into focus the lack of a uniform civil code in India, where the Supreme Court has issued another reminder to the Government on having a uniform civil code in India after hearing a petition filed by a group of Muslim women claiming that the personal law superseded their fundamental rights.

Secularism v. Uniform Civil Code

The spine of controversy revolves around whether the codification of a civil code replacing the personal laws would end up in affecting the strong religious feeling. The preamble of the Constitution states that India is a secular democratic republic, which means that there is no State religion and no person shall be discriminated on the basis of religion. A State is only concerned with the relation between man and man, and not concerned with the relation of man with God. It was held in S.R.Bommai v. Union of India, religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.

UCC is not against the concept of secularism or will not be violation of Article 25 and 26, which deals with right to freedom of religion. In the words of Article 44, in a civilized society, there is no necessary connection between religion and personal law. Law can regulate those matters which are of secular nature, i.e., marriage, succession and like. The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. UCC will not compel a Hindu to perform a nikah or force a Muslim to carry out saptapadi. But there will be a common law in the matters of inheritance, right to property, maintenance and succession.

Obstacles exist with regard to codification of UCC, it shouldn’t be again repackaging of existing personal laws. Rather, it shall sculpt a balance between protection of fundamental rights and religious dogmas of individuals.

To conclude, the intention behind the concept of UCC in the Constitution to effect an integration of India by bringing all communities on a common place on problems which are governed by personal laws. Despite the odds stacked against it, the uniform civil code will one day become a reality. The plea for a uniform civil code rests upon harassments and gender inequality rather than ecclesiastical considerations. Such new interpretation would broaden the scope of discussion and also helps to keep religious arguments and the resultant communal out of it.

 

Rini Mathew

Student, School of Law, SASTRA University