Posted by UNIFORM CIVIL CODE & THE INDIAN JUDICIARY
Atish Chakraborty[i]
“Injustice anywhere is a threat to justice everywhere”- Martin Luther King
Part IV of the Indian Constitution provides for Directive Principles of State Policy. Though these principles are guidelines and are not enforceable in a court of law however they are indispensable in the governance of the country. One such directive principle is given under Article 44 of the Constitution which creates an obligation on the state to enact a Uniform Civil Code. Various directions have been issued by the Apex Court for its implementation however, due to excessive politicization in our country it is still a distant dream. In the absence of a uniform law regarding personal matters like marriage, divorce, adoption etc., various personal laws are applicable to different religious communities who reside in our country. These laws find their source and authority in their religious texts and customs which provides for gender discriminatory practices in all forms and often is biased towards males than that of females. This paper aims at achieving a balance between Right to Freedom of Religion and Right to Equality by segregating the ‘essential religious practices’ and ‘secular activities’. Thus one can say that the need of the hour is to enact a Uniform Civil Code but that needs to be done slowly and gradually after making the people especially the minorities, aware about its scope and extent as well as their rights
- INTRODUCTION
Uniform civil code traces its origin from the concept of a civil law code. It envisages administering the same set of secular civil laws to govern different people belonging to different religions and regions. This supersedes the right of citizens to subject themselves to different personal laws based on their religion or ethnicity.[ii] The common areas that stand covered by a civil code include personal status, rights related to acquisition and administration of property and marriage, divorce and adoption.
India being a diverse land with large religious and social diversities, it is highly essential to have a Uniform Civil Code at the earliest to bridge the gap created by various personal laws which have crept in through the years. Such a uniform law is necessary to not only promote legal uniformity but also it would do justice to the diversities that are present in our country by bridging the unintentional discrimination that the personal law brings forth among the citizens.
The constitution has a provision for Uniform Civil Code under Article 44 as a Directive Principle of State Policy which states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”[iii] Since it has been a part of Directive Principles which is nothing but unenforceable guidelines hence it still has not been implemented and such cases of paper protection is not an adequate ground to move the Court of Law.
The Uniform Civil Code is not included in Fundamental Rights, but in post modern India, quick footed thinking of this kind has now resulted in well considered production of a mirror image of the desired object of the uniform civil code in the form of harmonised personal law system. The demand for a uniform civil code essentially means unifying all these personal laws to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community to which they belong. Though the exact basis on which such a uniform code is to be framed have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.[iv] The main cause of controversy pertaining to the Uniform Civil Code has been secularism and the freedom of religion enumerated in the Constitution of India. The preamble of the Constitution states that India is a Secular Democratic Republic and thereby it means that the State does not endorse any specific religion. A secular State is one which shall not discriminate against anyone on the ground of religion. It means that religion should not interfere with the life of an individual. The Indian Constitution contains articles mandating equality and non discrimination on the grounds of sex (Articles 14-18). However, several laws exist that apparently violate these principles and continue to be there especially in personal laws of certain communities which contain provisions that are deemed to be highly discriminatory against women.
The Indian Constitution expressly stands for gender equality. However, even after half a century from the framing of the Constitution, the ideal of Uniform Civil Code is yet to be achieved. Women, who make up nearly a half of India, continue to demand for a gender just code to enjoy equality and justice irrespective of the community to which they belong. The Uniform Civil Code is thus required not only to ensure (a) uniformity of laws between communities, but also (b) uniformity of laws within communities ensuring equalities between the rights of men and women.[v]
It is neither time-bound nor carries a compulsive urgency. But the Hindu fundamentalists make it a militant demand that the Hindu law should be made the national family law. There is apprehension in the mind of the Muslim minority that the Quran’ is in danger, that its sacred family law will be ineffective if the former is brought into force. The Supreme Court has often expressed displeasure at the delay in framing a uniform civil code, which was regarded as a secular imperative. Raging controversy demanding the uniform code followed and was resisted in full fury by the Muslim minority, with distinguished exceptions whenever an attempt had been made at enacting of such a code.
Attempts have been made from time to time for enacting a Uniform Civil Code after independence and the Supreme Court in various cases has been giving directions to the government for implementing Article 44 of the Constitution and to reform the personal laws specially those relating to the minorities and to remove gender bias as well as laws that disfavour women therein. While a uniform civil code is not particularly high on the national agenda, value-based progressive changes, preserving the separate identity of each religious group, is a feasible project avoiding insult and injury to any minority. This may be a preliminary step to pave the way for a common code. Mobilization of Muslim, Christian and Parsi opinion in this direction is sure to yield results and reduce fundamentalist resistance across the country. Maybe, to facilitate a national debate, a facultative common code may be drawn up at a non-governmental level and that it will be purely optional for minorities to accept or reject those provisions.
Initially the idea of Uniform Civil Code was raised in the Constituent Assembly in 1947 and it was incorporated as one of the directive principles of the State policy by the sub-committee on Fundamental Rights and clause 39 of the draft directive principles of the state policy provided that the State shall endeavour to secure for the citizen a Uniform Civil Code. The arguments put forward was that different personal laws of communities based on religion, crippled India in its progress and it was suggested that a Uniform Civil Code should be in place at the soonest possible juncture to promote the development of the newly independent nation. Since the Uniform Civil Code was a politically sensitive issue, the founding fathers of the Constitution arrived at a compromise by placing it under Article 44 as a directive principle of state policy.
II.JUDICIAL MARCH THROUGH THE YEARS
The Judiciary through its various judgements time and again has always upheld gender justice in cases pertaining to the Uniform Civil Code.
In the case of Mohammad Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 popularly known as Shah Bano case, the Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” Though this decision was highly criticized by the Muslim Fundamentalists, yet it was considered as a liberal interpretation of law as required by gender justice. Later on, under pressure from Muslim Fundamentalists, the central Government passed the Muslim Women’s (Protection of rights on Divorce) Act 1986, which denied right of maintenance to Muslim women under section 125 Cr.P.C. The activist rightly denounced that it “was doubtless a retrograde step. That also showed how women’s rights have a low priority even for the secular state of India. Autonomy of a religious establishment was thus made to prevail over women’s rights.”
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others AIR 1995 SC 1531 the Apex Court while delivering the judgment directed the Government to implement the directive of Article 44 and to file affidavit indicating the steps taken in the matter and held that, “Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Article 44, Therefore the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavour to secure for its citizens a uniform civil code throughout the territory of India.”
However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India, AIR 1997 SC 3614 a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory and non-statutory law. In this case the Supreme Court became a bit reserved and held that the matter of removal of gender discrimination in personal laws involves issues of State polices with which the court will not ordinarily have any concern. The decision was criticized that the apex court had virtually abdicated its role as a sentinel in protecting the principles of equality regarding gender related issues of personal laws of various communities in India.[vi]
The Apex Court pursued the same line in Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650 and held that the desirability of Uniform Civil Code can hardly be doubted. But it can concretize only when social climate is properly built up by the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change for the betterment of the nation at large.
The situation regarding the personal laws for Christians in India was different. In their case, the courts seemed to be bolder and took a progressive stand in terms of gender equality. For instance when the case of Swapana Ghosh v. Sadananda Ghosh AIR 1989 Cal. 1 the Calcutta High Court expressed the view that sections 10 and 17 of the Indian Divorce Act, 1869, should be declared unconstitutional but nothing happened till 1995. Again in yet another case, the Kerela High Court in Ammini E.J. v. Union of India AIR 1995 Ker.252 and Bombay High Court in Pragati Verghese v. Cyrill George Verghese AIR 1997 Bom. 349 have categorically struck down the section 10 of Indian Divorce Act, 1869 as being violative of gender equality.
In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the divorce provisions in Muslim law as well as that of polygamy. The Supreme Court asked her to approach the Parliament, who refused to entertain the petition. Julekhabhai had sought equality with Muslim men, requesting court to declare that “dissolution of marriage under Muslim Marriage Act, 1939, can be invoked equally by either spouse”. It also requested the court to strike down provisions relating to “talaq, ila, zihar, lian, khula etc”, which allowed extra-judicial divorce in Muslim personal law.[vii]
Mohammed Abdul Rahim Quraishi, the then Secretary of All India Muslim Personal Law Board said that it needs to be seen that the subjects pertaining to that of marriage and divorce, infants and minors, wills, intestacy and succession, partition etc, are enumerated in the concurrent list of 7th Schedule of the Constitution and these being concurrent subjects both the central and state governments have the power to make laws. As a result, we find many regional variations affected by the state legislatures in the Hindu Laws. Bigamy is punishable by law in all communities under the I.P.C except the Muslims, who are governed by the Sharia law. The Muslim Personal Law (Shariat) Application Act 1937 was passed by the British government to ensure that the Muslims were insulated from common law and that only their personal law would be applicable to them. Bigamous marriages are illegal among Christians (Act XV of 1872), Parsis (Act II of 1936) and Hindus, Buddhists, Sikhs and Jains (Act XXV of 1955). Enactment of a Uniform Civil Code would abolish the Muslim rights to polygamy. In almost all recent cases where the need for a Uniform Civil Code has been emphasised women were always found to be at the receiving end of torture in the garb of religious immunity ultimately causing them to suffer irreparable loss and injuries at all cases. Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there has been numerous other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife. To conserve the cohesion of Hindu society, the Hindu laws made allowances for customs and usages. The imposition of uniformity would have undermined Hindu social cohesion. If matters relating to family laws and customs fall under the jurisdiction of Parliament and state legislatures, the country will have a variety of regulations thus leading to unnecessary and undue advantage to some while depriving many other people who will be left to their fate to suffer. The State amendments have made many in-roads in the Hindu laws damaging the uniformity of these laws, affecting many substantive rules as well.
In a Uniform Civil Code which is the cherished constitutional goal, if we have a single ground of divorce viz. that the marriage has broken down irretrievably, the scope of any controversy is ruled out.[viii] Where factually marriage has broken down irretrievably, no useful purpose will be served in finding out the guilt or innocence of the parties and in such cases law proceeds to cut off the tie.[ix]
Analytical discussion on these issues shows that there should be one single ground of divorce, viz. irretrievable breakdown of marriage.[x]
Irretrievable breakdown of marriage and divorce by mutual consent should be made uniformly a ground to dissolve the marriage of spouses irrespective of their religious faiths. The critical analysis of different existing grounds of divorce contained under various divorce laws shows more uniformity and less contrast in them. Therefore, the conceptual analysis of the different existing ground of divorce paves the way to push up the matter of uniformity in them legislatively.
In Naveen Kohli v. Neelu Kohli 2006 (4) SCC 558 the Supreme Court, boldly laid down that while permitting dissolution of thirty year old mismatch, urged the Government of India to amend Hindu Marriage Act in order to make Irretrievable break down of marriage a valid ground for divorce. The court held that irretrievable break down of marriage was prevalent as a ground for divorce in many other countries and recommended the Union of India to seriously consider bringing an amendment in Hindu Marriage Act, 1955 to incorporate irretrievable break down of marriage as a ground for the grant of divorce. The court ordered to send a copy of the judgment to the Secretary, Ministry of law and justice, Department of legal affairs, Government of India for taking appropriate steps and to accommodate such demands that arose before the Court in the instant case.
The express introduction of the principle of irretrievable break which has been in place already in England will be much more conducive and functional than merely relying on the implied principle. Besides, the administration of justice on the basis of clearly codified law is superior to the adjudication from case to case. For this, Parliament could reintroduce the Marriage Laws (Amendment) Bill, 1981 (No.23 of 1981), which earlier did not fructify into law for expressly introducing irretrievable break down of marriage as the singular ground for divorce, as the bill was allowed to lapse.[xi]
Recently in Ramesh Jangid v. Sunita 2008 (1) HLR 8 (Raj.), the wife wanted her husband to leave his parents and live separately. The Court held that the demand of the wife was unreasonable and as wife was living separately for 13 years and denying physical relationship, so divorce was granted on the aforesaid grounds. The court observed that the differences that have grown up between the parties, the distance which has widened for over a decade cannot be brushed aside lightly. Thus irreparable break down of marriage is obvious so a divorce in such a case is the only way available to the parties as well as for the court.
In Prabhakar v. Shanti Bai 2008 HLR 250 (Nagpur), parties were married in 1955 however they have not stayed together since 1958, and no cohabitation was there since last 49 years. The court granted the decree of Divorce as the marriage between the parties was irretrievably broken and it was no use to continue with such a marriage any longer.
The Law Commission of India and the Supreme Court have recommended that the irretrievable break down of marriage should be made a separate ground of divorce by the legislature. No useful purpose would be served by keeping alive de jure what is dead de facto. It is possible that if Parliament does not act on this recommendation the legislature of some states of India may take the lead, exercising power under entry 5 of the concurrent list of the 7th schedule.[xii]
The Law Commission has suggested that immediate action needs to be taken to introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of irretrievable breakdown of marriage as another ground for grant of divorce.[xiii]
For long Christian women too had the law loaded against them. A Christian man could obtain a divorce on the basis of adultery; a woman had to establish an additional charge like desertion or cruelty under the Indian Divorce Act 1869 as well. But in 1997, cruelty, physical and mental torture were made ground enough for a Christian woman to obtain a divorce, with the Bombay High Court recognizing cruelty and desertion as independent grounds for the dissolution of a Christian marriage. Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of adultery, cruelty, desertion for two years, conversion in religion, an unsound mind, suffering from venereal disease or leprosy or if the spouse has renounced the world and has not been heard from for seven years. Also no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights, or if the husband is guilty of rape, sodomy or bestiality.[xiv]All major religions thus have their own laws that govern divorces within their own community, and there are separate regulations under the Special Marriage Act, 1954 regarding divorce in interfaith marriages. Under a common civil code, one law would govern all divorces for all communities based on religion. One should not forget that nationhood is symbolized by one Constitution, a single citizenship, one flag and a common law applicable to all citizens and India’s obligations under international law and requirements of various international instruments relating to the human rights of women such as Universal declaration of Human Rights, 1948 and the Convention on the Elimination of all forms of Discrimination Against Women, 1979 also demand that even if one rules out Article 44 the Union of India cannot evade its international obligation to make laws to remove discrimination against women.[xv]
The Article 44 of the Constitution of India requires the state to secure for the citizens of India a Uniform Civil Code throughout the territory of India. As has been stated above, India is a unique blend and merger of codified personal laws of Hindus, Christians, Parsis and to some extent the laws of Muslims. However, there exists no uniform family law in a single statute which is applicable for all Indians which are universally acceptable to all religious communities who co-exist in India.
As discussed above, the Supreme Court of India for the first time directed the
Indian Parliament to frame a Uniform Civil Code in 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945. In this case a penurious Muslim woman claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after her husband pronounced triple Talaq. The Apex Court held that the Muslim woman had a right to get maintenance under Section 125 of the Code and also held that Article 44 of the Constitution had remained a dead letter. To undo the above decision, the Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim Woman for maintenance under Section 125 of the Court was enacted by the Indian Parliament. Thereafter, in the case of Sarla Mudgal Vs. Union of India AIR 1995 SC 1531, the question which was raised was whether a Hindu husband married under Hindu law can, by embracing Islamic religion, solemnize a second marriage. The Supreme Court held that a Hindu marriage solemnized under Hindu Law can only be dissolved under the Hindu Marriage Act and conversion to Islam and marrying again would not by itself dissolve the Hindu marriage. Further, it was held that a second marriage solemnized after converting to Islam would be an offence of bigamy under Section 494 of the Indian Penal Code.
The Supreme Court has always put forth the need for Parliament to frame a common civil code which will help the cause of national integration by removing contradictions based on ideologies. The Directive Principle of enacting a uniform civil code has been urged by the Apex Court repeatedly in a number of decisions as a matter of urgency and top priority to stop the unevenness and often inequalities and immunities that such personal laws have continued to offer over the years. Unfortunately, in a subsequent decision of Lily Thomas v.Union of India 2000 (6) SCC 224, the Apex Court, dealing with the validity of a second marriage contracted by a Hindu husband after his conversion to Islam, clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different benches had only expressed their views in the facts and the circumstances of those cases. Even the lack of will to do so by the Indian government can be deciphered from the recent stand stated in the Indian press that the Indian government does not intend to bring legislation to ensure a uniform civil code because it does not want to initiate changes in the personal laws of minority communities. However, this ought not to deter the efforts of the Supreme Court of India in issuing mandatory directions to the central government to bring a common civil code applicable to all communities irrespective of their religion and practices in a secular India. Hopefully, the Apex Court may review its findings in some other case and issue mandatory directions to the central government to bring a common civil code applicable to all communities irrespective of their religion.
The Preamble of the Indian Constitution resolves to constitute a Secular Democratic Republic as stated earlier and this means that there is no State religion and that the state shall not discriminate on the ground of religion. Articles 25 and 26 of the Constitution of India guarantee the citizens the freedom of religion and freedom to manage religious affairs. At the same time Article 44 which is not enforceable in a Court of Law states that the state shall endeavour to secure a uniform civil code in India. The ingredients of a Uniform Civil Code is indeed a difficult task to determine since the personal laws of each religion contain separate ingredients, the uniform civil code will need to strike a balance between protection of fundamental rights and religious principles of different communities and most importantly not harm the sentiments of the communities that coexist in our country. Marriage, divorce, succession, inheritance and maintenance can be matters of a secular nature and law can regulate them. India needs a codified law which will cover all religions in relation to the personal laws of different communities.
Critics of the uniform civil code think that the true principles of Muslim law remain eclipsed by its extensive alleged misreading over the years. It is suggested by Prof. Tahir Mahmood, an eminent scholar in his article that “An Indian Code of Muslim Law based on an eclectic selection of principles from the various schools of Shariat is the ideal solution to all the contemporary problems of Muslim Law.”[xvi] It has been reported that the Supreme Court of India dismissed a public interest litigation petition challenging the legality of the customs of polygamy, talaq and divorce practiced by Muslims under the personal laws. The plea for a direction to the Central Government to make Uniform Marriage Laws for all communities was rejected on the ground that it is for the Parliament to change or amend the law. Thus, the debate is endless and the issue has continued to remain unresolved even till the present day.
III.CONCLUSION
Thus to conclude we need to understand the importance and the need the urgent enactment of the uniform civil code. The time has come to place all personal laws of all religions under a stringent check and discard all laws that are found to violate the Constitution. Personal laws of all religions discriminate against women on matters of marriage, divorce, inheritance and so on. There is an urgent need to carve out the just and equitable laws of all religions and form a blueprint for a uniform civil code based on gender justice and to ensure the principle of equality enshrined by our Constitution and to alter laws which are discriminatory and biased. The Hindu code cannot be applied uniformly to all religions. On the other hand, triple talaq would have to go, as would polygamy and all the advantages that accrue to Hindu undivided families in matters of property and inheritance.[xvii]
In this backdrop, one can say that in our country, personal laws continuously affect the lives and rights of a large number of women of all most all the communities and most importantly leave them in a very deprived position. Although various efforts are being initiated and taken by means of introducing international instruments, reforms of national laws, changing judicial trends, recommendations of Law Commissions and other social elite groups to ensure gender equality but still women in our country are not treated equally and discriminated in the field of family law especially in cases of marriage, divorce, maintenance, inheritance etc. In these situations, a gender-just code is the need of the hour for long. So a Uniform Civil Code is a very important step towards the protection of oppressed women, to protect their human rights, to remove discrimination against them irrespective of their religion or community to which they belong to and lastly to make our national laws in accordance with the international instruments which are legally binding on India through various international conventions and international Human Rights instruments which are ratified by India. The present time is ripe for us to try to bring into light the idea of having a Uniform Civil Code through. To sum up at last, it can be said for citizens belonging to different religions; it is imperative that for promotion of national unity and solidarity and to promote national integration a unified code is an absolute necessity on which there can be no compromise that one can afford to make. Different streams of religion have to merge to a common destination and some unified principles must emerge in the true spirit of Secularism. India needs a unified family law code under an umbrella of all its constituent religions. Whether it is the endeavour of the State, the mandate of the court or the Will of the people it is an issue which time only can decide.
ENDNOTES:
[i] 3rd year Law student at AMITY Law School, AMITY University, Kolkata. I would also like to extend my gratitude to Mr Faisal Fasih, Dr Manik Chakraborty,Dr Pratyusha Das and Ms Aratrika Chakraborty for their valuable insights and guidance in writing this article. I also take the opportunity to thank Mr Avantik Tamta for his valuable research assistance for this article.
[ii] http://india.wikia.com/wiki/Uniform_civil_code Accessed on 27.03.2017 20:38 IST
[iii] http://www.clearias.com/uniform-civil-code-ucc/ Accessed on 27.03.2017 20:44 IST
[iv] http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, Accessed on 08.04.2017 20:45 PM IST
[v] F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” XXX (50) Economic and Political
Weekly 32 (1995); B. Karat, “Uniformity v. Equality” Frontline 17 Nov, 1995.
[vi] Rajeev Dhawan, “The Apex Court and Personal Law” The Hindu, 14 March 1997
[vii] Nilanjana Bhaduri Jha, “Does India really need a Uniform Civil Code?” from website of Times of
India, visited on 12.04.2017 20:03 PM IST
[viii] Paras Diwan and Peeyushi Diwan,; Law of Marriage and Divorce, 47 (Lexis Nexis, Gurgaon 1997 edition).
[ix] Shiv Sahai Singh, ; Unification of Divorce Laws in India, 376 (Lexis Nexis Gurgaon 1993edition ).
[x] IBID
[xi] Virender Kumar, “See the Rift, not the Fault” 12, The Tribune, 21 May, 2006.
[xii] Ramesh Chander Nagpal, Modern Hindu Law, 182 (2008 Butterworths Wadhwa Publications, Nagpur)
[xiii] 217th Indian Law Commission Report was forwarded on 30 March 2009.
[xiv] B.M Gandhi, Hindu Law 376 (Eastern Book Company,Lucknow,4th edition,2016)
[xv] Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under International And
Domestic Law” 46 JILI 577 (2004).
[xvi] “Muslim Personal Law: Clearing The Cobwebs”, The Hindu, July 30, 2006.
[xvii] Shabana Azmi, Women, Stand Up For Your Rights, The Times of India, 7 July 2005
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