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  • Asmita Shrivastava

UNIFORM CIVIL CODE

Written by : Asmita Shrivastava, 3rd year student pursuing B.A.LL.B (H) from Narsee Monjee Institute of Management Studies, Indore


INTRODUCTION

The Indian Constitution’s Article 44 covers the Uniform Civil Code, which is included in Directive Principles of State Policy. These are not legally enforceable but have been planned to guide the state in policy implementation. This aims for the implementation of one law for all religions in India in affairs pertaining to marriage, divorce, inheritance and adoption. It has been encouraged by some people as a strategy to elevate national integrity and end gender discrimination between men and women prevailing in the country. On the other hand, some people are against the enforcement of the Uniform Civil Code as it is a violation of the right to freedom of religion and would be a hindrance to religious diversity in the country. Goa is the only Indian state that has a Uniform Civil Code, maintaining its common civil law known as the Goa Civil Code after its liberation from the Portuguese rule in 1961. The rest of the Indian states follow different personal laws that have been established on their religious or personal identity.


PERSONAL LAWS IN INDIA

Laws that are applicable to a specific group of people pertaining to their faith, belief, caste and religion are made after deliberately considering  religious texts and customs. The source and authority of the Hindu and Muslim personal laws are embodied in their religious ancient texts. In Hindus, legal issues concerning marriage, divorce, adoption, inheritance, succession, co-parenting, duties of sons to compensate their fathers' debts, guardianship, the division of family property, maintenance and donations made by charity are governed by personal laws. In Muslims, matters concerning succession, dowry, inheritance, guardianship, wills, marriage, legacies, wakfs, gifts, divorce and pre-emption established by Quran.

Presently, all the religious communities in India, such as Hindus, Muslims, Jews, Parsis, Christians, Buddhists, Jains and Sikhs are being administered as per the rules of theirlaws.  Personal laws are set based on religious identity. Hindu personal laws that have been reformed still embody certain traditional practices. Special Marriage Act, 1954 allows people from different religious communities to marry without changing their religious identities. Discrepancies arise between Hindus and Muslims when they marry under the Special Marriage Act because Hindus continue to be governed by their own personal laws whereas Muslims are not governed by their own personal laws.[1]


CHALLENGES FACED IN THE IMPLEMENTATION OF UNIFORM CIVIL CODE

1.        India is a secular country which is represented by its diverse cultures, traditions and religious groups. Implementation of Uniform Civil Code is looked upon as a violation of their right to freedom of religion, which is guaranteed under Article 25 of the Indian Constitution and a hindrance towards their cultural independence by various religious and minority groups.

2.        A common law for all religions will disregard the distinctive identities and practices of different religious groups.

3.        It can bring communal tensions and conflicts in the country as there is absence of political will and consensus among the legislature, the judiciary and the government for its enforcement.

4.        Implementation of Uniform Civil Code requires a large scale harmonization, drafting, codifying and rationalising the variety of personal laws and practices that are prevalent in India.

5.        In addition, it will require active participation of various stakeholders which include legal experts, religious leaders and women organizations.


SIGNIFICANCE OF UNIFORM CIVIL CODE

1.        Personal laws have numerous complications and inconsistencies in the legal system which would be simplified after implementing the Uniform Civil Code.

2.        It will modernize the society by bringing an end to obsolete and orthodox religious practices such as child marriage, triple talaq, polygamy, etc., that are violating the fundamental rights of women and values of the Indian Constitution.

3.        Women would be granted equal rights in matters pertaining to maintenance, divorce, adoption, marriage and inheritance. This will promote gender equality and exterminate the oppression and discrimination faced by women under different personal laws.

4.        It will bring a feeling of secularism and national integrity among the citizens of India. It will endorse the constitutional values and bring an end to communal tension and conflicts arising out of various personal laws.

5.        In addition, it will be a broad-minded approach for meeting the needs of the changing society and aspirations of the public.[2]


CASE LAWS

1.        Shayara Bano vs. Union of India (2017)

This case is commonly known as the “Triple-Talaq case”. The decision was given in favour of Shayara Bano and others by the Supreme Court. The practice of triple talaq was declared unconstitutional by a 3:2 majority. It was a violation of the dignity and equality of Muslim women. The legislature was directed by the Supreme Court to take measures against triple talaq and protect the muslim women from being oppressed. A law must be enacted by the parliament for regulating marriage and divorce in Muslims. This landmark decision is undoubtedly an initiative for the upliftment of the status of Muslim women.[3]

2.        Shah Bano Begum vs. Mohammad Ahmed Khan (1985)

The Supreme Court declared that a Muslim women can claim maintenance from her husband even after divorce. If she is incapable of supporting herself and her children after divorce, then she is entitled to get maintenance from her husband. It was held that as per section 125 of the Code of Criminal Procedure, a Muslim women is entitled to claim maintenance from her husband even after expiry of the Iddat period. It is often considered that these traditional religious beliefs and principles will come to an end after implementation of the Uniform Civil Code.

3.        Sarla Mugdal vs. Union of India (1995)

Indian constitution has granted the right to freedom of religion. It gives freedom to an individual to convert to any religion of his choice in which he was not born. Sometimes this provision is also being used fraudulently due to the diversity of religions and personal laws. The Supreme Court gave its decision that the right to freedom of religion does not grant a right to an individual to overthrow the provisions of law and practice bigamy. A Hindu husband has to dissolve his first marriage if he wishes to convert to Islam. He cannot practice bigamy and convert to Islam without dissolving his first marriage. The implementation of the Uniform Civil Code will be a step towards bringing an end to fraudulent conversion of religion and bigamous marriages.


CONCLUSION

India is a diverse country with a unique combination of religions which include Hindus, Muslims, Jews, Christians, Parsis, Sikhs, Jains and Buddhists. Implementing the Uniform Civil Code would be an ideal approach for bringing national integrity to the country. It will help in bringing an end to the regressive practices prevalent in various personal laws. A common law for all religions will safeguard the rights of the citizens of the country. The majority opposes of the Indian population are opposing the implementation of the Uniform Civil Code because they fear that it will violate their religious freedom. They want to preserve the distinct identity  of their religions.[4]

It is a matter of question that whether a country like India which has a variety of cultures, religions and tradition can execute a Uniform Civil Code without any unintended consequences. A Uniform Civil Code will bring unity in the country and help in eliminating gender discrimination. This will also be a step towards upliftment of the status of women. Its not a matter of minority protection or national unity but equal treatment of all citizens with dignity. Most of the personal laws have failed to safeguard the fundamental rights of citizens and bring gender equality in the country. [5]

References

 

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