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Scope of Development of Uniform Civil Code in India

By Joel S Thomas & Ayush Gaur

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Abstract: 

This paper focuses on the opinions of Uniform civil code and its application, the research focuses on the central meaning of the Uniform civil code and its implications. This paper commences with the introduction to the uniform civil code and also discusses about the yearning of the implication of the uniform civil code and the strengths and weaknesses of the same. 

As we further progress while understanding the research paper, it talks about the relationship of the Uniform civil code with secularism, also gives us and insight about the judgements and the perspective of law and order regarding the Uniform civil code. This paper gives a better understanding of the Uniform civil code, the reasons as to why it may be essential and the never-ending doubts about its essence.

Objectives: 

This research paper is aimed to make the reader aware of the current status and position of the Uniform civil code and its practical implications if applies and adopted by the constitution. Implication and adoption of the code is on the basis of the following factors:1) Rule of Judiciary in interpreting the Uniform Civil Code and the efforts applied by the ways of case laws.2) To comprehend the relations between body of rules (constitution) & uniform civil code and how it was encapsulated in the constitution. 3) To understand the relation of personal laws and the impact of such law in the form of religious values. 

Methodology: 1) A meticulous approach has been adopted while preparing this research paper, as it was aimed to make the reader easily understand the essence of the paper, so that the reader connects to the researcher by this paper.2) A historical study focusing on the status of the code by the way of case-laws, statues and legal sources. 

Introduction:

Uniform civil code (UCC) is provided underneath article 44 of the constitution which implies under directive principles of state policy. It states that it’s the duty of the state to secure the citizens a consistent civil  code throughout the territory of India. 

Uniform civil code places a collection of laws to manipulate affairs of all citizens regardless of religion and is probably the requirement of the hour and ensuring that their fundamental and constitutional rights are protected, in other terms it means one country one rule.

India is a secular country and follows the principle of secularism, the term secularism was introduced in the Preamble of the constitution in the 44th amendment Thismeans that people have the choice to follow any religion. Such is specified under the constitution as a fundamental rightunder Article 25 & Article 26. 

The term secularism holds a critical value amongst the people of India. The concept of faith has always been used as a strategy by the authorities and forums along with their governing bodies. 

In a country like India laws are governed by different religions. Different Communities such as the Hindus, Buddhist, Jains and Sikhs are governed  under the Hindu Marriage Act of 1956. Such rules apply for them regarding marriage, maintenance, divorce, etc.

Christians follow rules established under Christianity meanwhile Muslims  follow their Islamic Laws. The three broad factions of private laws in India  are: Hindu Law, Christian Laws and Islamic Law. 

A real issue starts with the very fact that In India, positive secularism separates the individual faith, this can be because most of the western countries like America and Europe went through the stages of reformation and renaissance. 

On the other hand, India failed to go under the process of reformation or rejuvenation pointing pressure on the sovereign state to trespass in the matters of faith in order to remove the obstacles that hamper functioning  of a state, the explanation why a rustic like India cannot undergo a reformation is extremely plain. There are chances that disputes will ascend in numbers rather than descend causing back-peddling effects on the rules  that are made. 1. A Muslim man can keep more than one wife but not a Hindu or Christian. But of course, no woman from Muslim, Hindu or Christian can have more than one husband in our patriarchal society; 2. Hindus can form an undivided family (HUF) in order to manage their assets better & in the process they tend to reduce their tax liability but not a Muslim or Christian; 3. A Muslim marriage can be dissolved merely on the pronouncement of Triple Talaq but not a Hindu or Christian marriage; 4. A Christian woman cannot get a share in her deceased child’s property while other communities have their own set of bylaws with respect to it.

These observations differentiate the sufferance one goes through at different stages of his/her life and also differentiates the privileges an individual enjoys at various stages of life. If we compare our constitutional provisions with our personal laws it will be reflecting the failure of our own constitution and therefore the burden of our self-acclaimed personal.

In India, we have uniform criminal code that is applicable to every citizen of India thus maintaining the secularism and integrity however, similar code does not exist especially with relevance to divorce and succession and that we are still governed by the private laws. These personal laws vary in their sources and applications hence to bring secularity among the people of India. Uniform civil code shall act as a boon to our country. 

Uniform civil code means uniformity in personal laws. It will be a neutral law which doesn’t have anything to do with religion, the concept of uniform civil code originated from the concept of civil law code which includes:a) Personal status b) Rights associated with acquisition and administration of property c) Marriage, divorce and adoption 

After years of heated debates and arguments regarding the implication of Uniform civil code result in no outcome that was solid enough to be registered. The Uniform civil Code unfortunately only became a directive principle under article 44 of Indian Constitution, India is a land of diversities with different religions because of which personal laws, poses a contradiction. 

The idea behind the controversy for a few people was that the application of UCC would help in constructing Indian national identity and eradicate those who supported caste and religion whereas for a few it would destroy the cultural identity of minorities.

Uniform Civil Code and Role of Judiciary

During the post-colonial era in India, judiciary holds a vitalrole for the implementation of uniform civil code. Judiciary tried to pave ways by  creating interpretation of varied personal laws of assorted communities and formed them into one common law for all communities. Jurists of the high court and Supreme courts grace the foremost vital instruments for advancement relating to the implication of Uniform civil code. The efforts of the judiciary are usually well discovered in some cases as under:

In the Case of Mohamad Ahmed Khan V Shah Bano Begum, popularly  referred as Shah Bano’s case. The parties were married for forty-three years and also the ill and elderly wife was thrown out of the residence. The husband provided 200 per month up to 2 years. 

But when this payment ceased the wife filed the petition and claimed for  maintenance under S.125 of Cr.P.C. after she was given triple talaq  pronouncements by her husband. 

Madhya Pradesh high court on the filing of petition enhanced the number  of Rupees twenty-five and Rupees 179 per month and directed the husband to pay the quantity. 

Immediately after filing of the petition the husband paid Rupees 3000 as deferred Mahar and further sum to cover areas of maintenance for the Idaat period and he sought thereafter to have the petition dismissed on the ground that she had received the mount due to her on divorce as per the Muslim law applicable to the parties. 

The Hon’ble Supreme Court held that Muslim Women have a right to  induce maintenance from their husband under section 125 and commented that Article 44(3) of the Constitution of India has remained in dead light. 

The most important feature that needs to be outlined during this case is that the women, who managed to matrimonial home for 43 years and was incapable of taking up employment and supporting herself or re-marrying, managed with monthly allowances of Rs. 200 even though having 5 children from her husband, who was a successful advocate and received a monthly salary of 5000 and gave only 200 for the maintenance of her own wife and children who were in a desperate need of money to survive. 

Thus the main issue in front of the court was to interpret the section 127(3)(b) of Cr.P.C. where the, Muslim husband who has paid the mehr can exempt him from his liability under section 125 of Cr.P.C. to decide over this issue five judge bench was made and the court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and will have an overriding effect on the personal laws of the parties.  

If there was a dispute amongst the terms of the code and the rights and obligations of the individuals, the previous would prevail. A valuable  orthodoxy deemed the attack on Islam; However, the Rajiv Gandhi government has overturned the Shah Bano case decision by Muslim women (Right to protection on Divorce) Act, 1890 which curtailed the right of maintenance of a Muslim woman and also to secure votes of Muslims caved under the pressure of the orthodoxy enacted the Muslim women (Protection of rights on Divorce) Act, 1896. 

The most disputed provision of the act was that it gave a Muslim woman the right to maintenance for the period of Iddat (about three month) after the divorce and shifted the obligation/ responsibility of maintaining her to her relatives or the Wakf board. Therefore, it can be validly said that according to Muslim personal laws Muslim husbands are not liable to pay maintenance to their divorced wives beyond the period of Iddat.

Uniform Civil Code and Prospective Aspects:

What we have to analyse from the situation is the method of operating a uniform law in India without possessing a codified civil code. For this the Indian state has acted very purposefully and efficiently for keeping the various Indian personal law along similar lines without challenging their status or either wound their dignity as a separate personal law. All the experiences in India, state that evolution does not require any  desperate step for a newly implemented uniform enactment in family law for all citizens. Rather, a secular country like India has applied a plan  according to which a minor change has been done for a long period of time, related to a cautious flexibility between judicial activism and parliamentary intervention leaving the various bodies of personal law as permeate  structure. 

Due to this programmed strategy, personal laws appear similar/identical to each other but they are still noticeable in terms of ethics and identity as a Hindu, Muslim, Parsi or Christian law not only by name but by its content also. 

Uniform Civil Code and the Indian Constitution:

The Uniform civil code was originally abbreviated in article 35 of the draft constitution. There was a requirement to feature a proviso in Article 35 of the which might make the Uniform Civil Code whenever it would have been enacted, not obligatory in nature and personal laws be kept out of its purview. The proviso read as, “Provided that any cluster, section or community of people shall not be obligated to administer its own personal law simply just in case it’s such a law”

The main problem occurs regarding the designers/ drafters of constitution  since they had intended for a consistent civil code to be enforced in India. They placed the code under article 44 of the Constitution of India as a part of the Directive Principles of the state policy. 

The DPSP seated within Part IV (Art. 36 – 51) of the constitution because as the name suggests are mere directions to the state. They have not been  obligatorily followed and are not enforceable by the court. They act as positive obligations on the state which will help in good governance and good will of the state.

The preamble of the Indian Constitution clearly specifies that India is secular, democratic, republic. Inferencing the fact that there is no state religion. An un-consecrated state shall not discriminate against anyone on the basis of faith, a sect or faith is only concerned with the relation of a man with God. It implies that religion should not be meddling with the mundane life of an individual. 

The task of secularisation is informally connected with the goal of uniform  civil code like a cause and effect factor. In the case of S.R. Bommai V/s Union of India, as per Justice Jeevan Reddy, it had been held that religion is the matter of individual faith and cannot be mixed with secular activities. In India, there is an on-going idea of positive secularism as distinguished from  the doctrine of secularism accepted by the United States and the European states i.e. there is a wall of separation between the faith and also the state. 

Highlights on Personal Laws:

Divorce: In Hindu personal law it is found that divorce is given only when the spouses have been living separately for last one year or more. Under Christian personal law marriage is dissolved when petition is filed for divorce after two years or more whereas in Muslim law permits the man to divorce his wife immediately after pronouncing talaq thrice 

Inheritance: According to Hindu succession act the right of daughter in her ancestral property is equal to that of a son whereas a Muslim daughter share is one half to that of son and wife’s share is half to man. A Christian woman cannot get a share in her deceased child’s property while other communities have their own set of bylaws with respect to it.

Polygamy: Hindu law prohibits the practise of polygamy but still in certain rural areas it is accepted as the wives wilfully approves it whereas polyandry has been traditionally permitted in few Hindu tribes. Christian law also prohibits polygamy but in Mizoram two particular section namely the Pu Chana pawl” and Chana practices polygamy. Muslim’s differs from the rest as their law permits polygamy. 

Adoption: Muslim, Christian and Parsis have no adoption laws and have to approach the court under Guardianship and wards act, 1890 whereas Hindu’s are governed by Hindu Adoption and Maintenance act, 1956. 

Government of India strongly needs to bring reforms in personal laws of different communities to bring uniformity so as to make India a progressive nation. The biggest example is state of Goa who has adopted the Goa Civil Code also known as Goa family law which was introduce in the year 1870 and is based on Portuguese civil code 1867. The Goa model includes-• Registration as compulsory to every birth, death and marriages• Strict provisions regarding divorce• Muslims residing in Goa cannot practice polygamy of‘triple talaq’• Equal division of property amongst the couple in case of divorce and if one dies the ownership is retained by the other one. ​

Supreme Court’s take on the Uniform Civil code:

In the case of Pannalal bansilal pitti & others, Etc. v/s the state of Andhra Pradesh & Anr, it was concluded that: the chief question is the doubt of fact that is it necessary that the legislature make law which by nature is consistently applicable to any and most religions or charitable public  institutions and financing or maintaining records and funds by people professing all religions. In a cross-cultural society like India where people have faith in their respective religion and being born in different castes, sex and creed in the society whilst speaking different languages and dialects in different regions and provided secular constitution to combine/ merge all sections of the society as a Unified Bharat. 

The directive principles in the constitution demonstratediversity and attempt to foster uniformity among people of different faiths. A uniform law, though tremendously beneficial, may be counter-productive to unity and integrity of the nation. In an autonomy thrived by rule of law, gradual progressive change and order should be key. Making law or amendment to a law is a taxing process and the legislature attempts to provide with  remedy wherever there is a question of law which is acute for answering. It would, therefore, be inexpedient and grossly wrong to interpret that all laws have to be made uniformly applicable to all people in one go.

Factors that need to be considered in order to carry out the Uniform civil code:

Article 25 of the constitution provides liberty of conscience and free practice and propagation of religion.

Article 26 of the constitution equips entitlement to manage religious affairs. 

At whatever time the altercation of Uniform civil code get initiated the rights given in above two articles forms a defence against the implementation of Uniform civil code get initiated the rights given in above two articles forms a defence against the implementation of Uniform Civil Code; however, the rights given above though being fundamental rights aren’t absolute in nature, as they’re subject to public order, morality and health as consistent with clause 1 of article 25 and 26 of the constitution.

As specified under sub-section 2 of Article 25- “Nothing in this article shall effect the operation of any existing law or prevent the State from making any law-

Regulating or restricting any economic, financial, political or other secular activity which may be related to religious practice;” Hence, baseless implications in customary laws are often enacting by a law of the central government. 

Downside of a consistent civil code: Generalization of oppression of women

Uniformity in civil law has for protracted time been advocated so to secure the rights of the women and social reforms to empower the women  supressed by the diseased ways of religion and culture. The debates around an even civil code have always side tracked the experiences of various categories of women from their perspective. Not only people against UCC but also seeks to realize gender justice and national integrity and secondly, that it seeks to supress the identity of the minorities and is grave threat to the cultural diaspora. The 2 downsides of a common civil code which might be culled out are:1) The threat to the various diverse identities of the people and also the collective identity of the communities. 2) The uncertain and somewhat stalled prescription of uniformity was adequate to acquire the rights of the women, the previous may be a more considered and more emphasized upon arguments against the Uniform civil code although the latter may be a pass-over argument lost within the political cacophony.

Arguments in favour of Uniform civil code:

Uniform Civil code will promote justice, equity and national integration which will enhance the gender equality and welfare of women, In the absence of uniform civil code judges interpret provisions according to their prejudices and opinions, Introduction of UCC will prevent such interference and will promote uniform provisions for welfare of women. The paramount objective of Unity and integrity of India given in the preamble could be achieved only when article 44 will be enforced. In India, secular laws such as Special Marriage Act, 1954, exists which shows that there is no reason why uniform civil code cannot be enforced in India. 

Arguments against Uniform civil code:

India is a land of diverse cultural and various religions which they have been practicing and professions from a very long time so it is not possible to blindly copy the west positivism central Legal trajectory. It at large focuses on the identity of Muslims as code favours majority population of Hindus rather being a uniform code it looks more like uniform Hindu code.

Repercussions of Uniform civil code:• The civil code that is to be followed in India is variedonly on the topics of non-public law (i.e. family law) -marriage Divorce, Alimony, Succession and inheritance. • If someone X governed by a special personal law than person Y, there is not any possible way in which X’s personal law can affect Y (Except for Y’s egoistic approach) So, if one community traditionally has certain customs, the personal law for them has been framed to fit those columns. • If one is specifically talking about the subject of non-public freedom and cross religion marriages. Any Indian is absolved to marry under the Special Marriage Act of 1954 which is the most progressive of India’s civil code, the default of many smaller communities like Christians, and almost the image of Hindu Marriage Act.• As the community matures, its personal law is oftenamended to become more progressive. The Hindu personal law is incredibly progressive now because it had been amended by the Hindu marriage Act of 1955, based on the progressive Special Marriage Act of 1954. • Similarly, the Muslim personal law requires some amendments from within the community as we currently follow a really old act which doesn’t keep rapidity with the current standards of gender equality. 

India features a diverse personal law because our culture and tradition is diverse. Some cultures follow different systems of inheritance (the law takes that into account) some follow different ones in marriage (the law considers that as well). The Uniform Civil Code may be a good initiative, if the population is uniform enough. But as long as the personal law for every community is amended to the standards of the constitution. 

Recent developments regarding the Uniform Civil Code:

It is a supposed assumption that after the banning of triple talaq and subduing the special status of Jammu and Kashmir under article 370, the next big move under Modi government’s agenda could be Uniform Civil Code. 

During the month of August 2018, the Law commission submitted a report “Reform of Family Law”. The report presents us with the diversity of Indian culture and how the weaker sections of the society must not be “dis-privileged” in the process. Which also hinted the fact that the commission dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nonetheless desirable.  

There is a firm belief that the way forward may not be uniform civil code but the codification of personal laws, suggestive of the fact that that amendments in personal laws so that the stigma and prejudices attached to them would come to light & could be tested on the anvil of fundamental rights. This is a long-established fact that the opposition had been stalling the Uniform Civil code bill. 

There have been a number of petitions regarding the urgent need to the Uniform Civil Code in order to promote national integration as well as gender justice, equality & dignity of women. The petitions also aim that the Uniform Civil Code would replace the personal laws, based on the scriptures and customs of various religious communities, with a common set of rules governing every citizen of the country.

Conclusion:

The Uniform civil code is a suggested topic that has been misused by one political party to focus on its favourite communal enemy and appear progressive at the same time. Mostly a master political move, allowing them to take moral high stand since the Hindu Marriage act is progressive in gender equality while the Muslim marriage act is unequal. It also allows that party to incite fear in folks who fail to understand the act by making them believe that this law favours one community more than the other. 

Although, I firmly think that each community should suggest reforms with personal laws on modern and liberal lines. Communities should be convinced that UCC is to bring reforms not suppress them and it will never intent to interfere with the rights, rituals, ceremonies or religious beliefs of a community. A piecemeal reform instead of a holistic reform starting with what minorities are most comfortable of doing away with.

The authors are final year law students in Amity Law School.

ACKNOWLEDGEMENT

During the preparation of my research paper, I was inclined to take the help and guidance of some respected persons, who deserve our deepest gratitude. As the completion of this research paper gave e much pleasure, I would like to show my gratitude towards Amity Law School, Noida for allowing me to work on my topic and giving me quality guidelines for assignment throughout numerous consultations. I would also like to expand my gratitude to all those who have helped me during this time period. 

References

1) 44th amendment references and understanding the changes that it brought. – https://byjus.com/free-ias-prep/44th-amendment-act/

2) Article 25 & 26 of the Indian constitution – P.M. Bakshi(Constitution of India)  

3) Uniform civil code in a nutshell. – https://www.clearias.com/uniform-civil-code-ucc/

4) Article by the Indian express regarding the personal law reform emphasis on Uniform civil code – https://indianexpress.com/article/india/supreme-court-hearing-uniform-civil-code-personal-law-6261570/

5) Current status regarding the Uniform civil code, the outlook of the high court- https://economictimes.indiatimes.com/news/politics-and-nation/hc-allows-centre-more-time-to-file-reply-on-plea-for-drafting-uniform-civil-code/articleshow/72441868.cms

6) No new steps regarding the Uniform civil code in 63 years as quoted by the Supreme court – https://economictimes.indiatimes.com/news/politics-and-nation/no-steps-taken-in-63-yrs-on-uniform-civil-code-says-supreme-court/articleshow/71122653.cms

7) http://www.legalservicesindia.com/article/2157/Uniform-Civil-Code-in-Goa.html Understanding the application of Goan civil code. 

8) https://www.clearias.com/uniform-civil-code-ucc/ – Pros and cons of Uniform civil code

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