Author: S.B. MAHIN FATHIMA AL SARAH, 3rd YEAR BALLB STUDENT, CHRIST(DEEMED TO BE UNIVERSITY), Delhi NCR.

INTRODUCTION:

Gender equality is a fundamental human right, Which plays a very crucial role in fulfilling the dream of a welfare state.

Women represent half of the world’s population. Therefore, it of paramount importance to provide equal access to health

,education , employment , payment of wages, equal decision making power, equal property rights and equal representation in the parliament and the state legislative assemblies. It is foremost essential to extirpate all forms of gender violence and to ensure safety and security of women in order to establish a welfare state.

The united nations declared in Article 1 of its chartered to achieve international cooperation in promoting and

encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.

The term uniform Civil Code is explicitly mentioned in part 4 article 44 of the Indian constitution. According to article 44 of the Indian constitution, the state shall endeavour to secure for all the citizens a uniform Civil Code throughout the

territory of India. They cover areas like marriage , divorce , maintenance, inheritance, adoption and succession of the property. According to article 37 of the Indian constitution, the directive principle of state policy are fundamental in the

governance of the country and it shall be the duty of the state to apply these principles in making laws. However, article 37 of the Indian constitution also states that the DPSPs are not enforceable by any court.

Historical background:

During their regime , the British have been very enthusiastic in bringing the uniform set of rules to govern the legal guidelines of India. The Lex Loci Report of October 1840, One of the most significant achievement of the “First Law

Commission” which was appointed in 1835 under the charter act of 1833. There was no civil law applicable in the

Moffusils for the Christians, Anglo Indians, the Armenians, Parsees and the Portuguese. It was the substantive law of the country of the person or his ancestors which was in

application, therefore it led to great difficulty. The first Law Commission considered laws applicable to non Hindus and

non Muslims and therefore presented a report in 1837 under chairmanship of Lord Macaulay, which is prominently called as the Lex Loci report of 1840. The Lex Loci report emphasised the importance and necessity of uniformity in the codification of Indian laws relating to crimes, evidence and contract. But the Queen’s 1859 proclamation promised

absolute non interference in religious matters of the country. Consequently the personal laws continued to be governed by separate codes for distinct communities.

Constituent assembly debate:

The constituent assembly had a debate about whether uniform Civil Code should be included as a fundamental right or a directive principle. The constituent assembly decided it to be settled by vote with a majority of 5:4 . The sub committee

headed by Sardar Vallabhai Patel that was basically on the fundamental rights , decided that securing a uniform Civil Code was not with the scope of fundamental rights. Certain members of the constituent assembly felt that India was too diverse to implement uniform Civil Code.K.M. Munshi

believed that the constitution allowed the government to make laws covering secular activities related To religious practices , if they were intended for social reforms. He rejected the notion that a uniform Civil Code would be against freedom of religion. Therefore, K.M. Munshi

advocated the implementation of a uniform Civil Code throughout the territory of India. The first Prime Minister of India Pt.

Jawaharlal Nehru said “The UCC had his extreme sympathy, but the time was not ripe for it, as India was already burning due to partition on the grounds of religion”. Therefore first

time demand for a Uniform Civil Code was raised by Pandit Jawaharlal Nehru but he failed to implicate the provision

because some sections of the society were not ready for the change. Dr. B.R. Ambedkar had a perspection that the laws were grossly discriminatory in nature, where women were given little to no rights. He demonstrated his will to reform Indian society by adoption of a Civil Code of western

inspiration. He raised questions by saying ‘I personally do not understand why religion should be given this vast’. He also felt the uniform Civil Code should remain purely voluntary in the initial stages.

Judicial perspective:

The Supreme Court has instructed the government to

implement UCC in several cases as it has been discussed several times in the Supreme Court.

Mohammad Ahmad Khan vs Shah Bano Begum case , 1985:

Shah Banu Begum, a 73 year old women was divorced by her husband through uttering triple talaq. She was denied

maintenance after divorce. Later she decided to approach the courts. Both the district and the High Court ruled in her favour. This led her husband to file an appeal in the apex court. The apex court ruled in her favour in 1985 under the

maintenance of wives, children and parent’s provision section 125 of the crpc. The Supreme Court held that section 125 of crpc is a secular provision and will apply to all women

irrespective of their religion. The court also held that if the Muslim women are excluded then their right to equality

under article 14 and right to life and personal liberty under article 21 of the Indian constitution will be infringed. Section 125 of crpc is a social welfare legislation and it’s objective is to protect women from poverty, hunger, destitution and

vagrancy.

After this historical decision the then government under pressure passed “The Muslim Women Protection Of Rights On Divorce Act in 1986.

According to Section 3(1)(a) of the Muslim Women

Protection Of Rights On Divorce Act,Muslim husband is bound to maintain his wife till the period of iddat.

Section 4(1) of the Muslim Women Protection Of Rights On Divorce Act: If she is unable to maintain herself and not remarried, heirs who will inherit the property after her death, shall maintain her.

Section 4(2): If the heirs can’t maintain, the maintenance liability shifts to the state waqf board.

Danial Latifi vs UOI, 2001 SC:

In this case the constitutional validity of the act of 1986 was challenged on the grounds that it violated right to equality

under Article 14, right against discrimination under Article

15 and right to life under Article 21 of the Indian constitution. The Supreme Court interpreted Section 3(1)(a) of the act of 1986 and held that the phrase within the period of iddat is not to be interpreted as the ‘liability to maintain divorced wife

till the period iddat’. It means that the husband has to make arrangements within iddat period, which will enable wife to get maintenance till the period she remarries.

Sarla Mudgal vs UOI:

It laid down the principles against the practice of solemnising second marriage by conversion to Islam, with first marriage not being dissolved. The court held that conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnised after converting to islam would be an offence

under Section 494 of IPC. John Vallamattom Case:

In this case, a priest from Kerala John Vallamatton

challenged the Constitutional validity of Section 118 of the Indian Succession act.He contended that Section 118 of the Act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by Will. Therefore, the

bench struck down the section as unconstitutional.

Shayara Bano vs UOI:

This case focused on the constitutional validity of triple talaq. It affirmed that the fundamental rights of Muslim women including the right to equality and dignity, cannot be violated by arbitrary divorce practices. Shayara Bano was married to Rizwan Ahmed for 15 years and was subjected to dowry

harassment and domestic violence. She was divorced in 2016 through talaq-e-bidat. Later a writ petition was filed before

the Supreme Court. The petition stated that the practices of Nikah Halala, polygamy and triple talaq under Muslim

personal law were unconstitutional, illegal and violated the fundamental rights guaranteed under article 14, 15 and 21 of the Indian constitution. A 5 judge constitution bench which

include Justice J.S. Khehar (the Chief Justice ), Justice Kurian Joseph,

Justice R.F.Nariman, Justice U.U. Lalit and Justice Abdul

Nazeer was set up on 30th March 2017 to hear the case.

Justice Nazeer Ahmed and Chief Justice Khehar dissented on the grounds that the right to religion protected talaq-e-bidat and that Parliament should have drafted legislation to control the practice. Therefore, Triple Talaq was declared

unconstitutional under Article 14 read with Article 13(1) of the Indian constitution. It was held that who ever commits this crime of talaq-e-biddat shall be liable for 3 years of

imprisonment. The apex court found that the practice of Talaq-e-biddat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam. The Supreme Court held that triple talaq is against the

fundamental principles of Islam.

After Shayara Bano judgment the Government of India passed the Muslim Women (Protection Of Rights On Marriage) Act 2019. This act criminalised the practice of instant triple talaq and made it a punishable offence. The

enactment of the Triple Talaq Act was a legislative response to the Supreme Court’s judgment in the Shayara Bano case.

Jordan Diengdoh vs SS Chopra, 1984:

In this case a Christian women married to a Sikh man under the Indian Christian Marriage Act 1872. Later, she sought nullification of her marriage under the Indian divorce act

1869. But could only be granted a decree of separation due to lack of an enabling provision under the Indian divorce act,

which prompted the supreme court to point once again to the implementation of UCC.

International Law Provisions:

The convention on the elimination of all forms of

discrimination against women was adopted by the United nation General Assembly in 1979. Article 30 of this

convention explicitly defines discrimination against women and sets up an agenda for national action to end such

discrimination.

Article 1 of the Universal Declaration Of Human Rights:

All human beings are born free and equal in dignity and rights.

Article 3 UDHR:

Everyone has the right to life , liberty and security of person.

Article 6 UDHR:

Everyone has the right to recognition everywhere as a person before the law.

Article 7 UDHR:

All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 16(1) UDHR:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Article 16(2) UDHR:

Marriage shall be entered into only with the free consent of the intending spouses.

Article 28(2) UDHR:

Everyone, without any discrimination has the right to Equal pay for equal work.

Under international law state that ratifies an international instrument becomes legally bound to implement its provisions.

India having ratified ICCPR, 1966, CEDAW 1979 Is bound to enforce the relevant provisions and ensure gender equality under national law. The prevalence of discrimination against women under various personal laws of Different

communities in India was openly accepted by India in it’s periodic report before the United nations committee on the elimination of discrimination against women.

Goa Civil Code:

Goa is the only Indian state to have UCC. The Goa civil court allows equal division of income and property between husband and wife and also between children regardless of gender.

• During the course of a marriage, all the property and wealth acquired by each spouse is commonly held by couple.

• Every birth, marriage and death have to be compulsorily registered.

• Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.

• The inherited property must be shared equally among their children irrespective of their gender.

However, there are certain drawbacks in the Goa Civil Code as well:

The Hindu men have the right to bigamy, if the wife fails to

deliver a child by the age of 25 or if she fails to deliver a male child by the age of 30.

Suggestion:

• India being a country known for its unity in diversity the legislature has to take all the religious texts into consideration while drafting a Uniform Civil Code so as to protect a secular spirit of India.

• A uniform civil code must be drafted and implemented in the light of the grand and noble vision expressed in the preamble of the Indian constitution.

Conclusion:

Currently, due to applicability of personal laws Muslim men can have 4 wives, but Hindu and Christian can only have one wife. This brings inequality and confusion.

Therefore, polygamy Should be encouraged at any cost.

If we look at the countries in Europe which have a Civil Code everyone who goes there from any part of the world and

every minority has to submit to that civil code. It is not felt to be tyrannical to the minorities. Further, it is argued that if Uniform Civil Code is implemented it will be violative of

article 25 and 26 of the Indian constitution which speaks

about right to practice and propagate religion. But it is to be

noted that implication of uniform Civil Code will not be stopping anyone from practicing their religion. It will be merely a guideline to all the citizens in order to prevent exploitation of any particular part of society. If a uniform

Civil Code will be implemented, provisions like compulsory registration of marriage, monogamy, rules and procedures for succession etc , will not stop anyone from following their

religion.

Even Justice Khare in John Vallamottom’s case said that a common civil code will help the cause of “National

Integration” by removing the contradiction based on ideologies. Indeed the Supreme Court also directed the state in several instances as mentioned above to implement a uniform civil code in matters of marriage , divorce ,

adoption, maintenance, inheritance and succession of the property throughout the territory of India without any discrimination. Hence, the moment a uniform civil code is

implemented throughout the territory of India, it is then that India will get its true meaning of being a secular state. A full fledged secularism could be attained only after successful

implementation of a uniform civil code throughout the territory of India. Hence the UCC should be moulded and

worded in such a way that it promotes fundamental rights of women across the religions, caste and classes of society and gives them an equal right to inheritance, equal decision making power in marriage, divorce, adoption etc. Therefore, every modern nation which has truly embraced secularism

has a uniform Civil Code and it is time we have it too.

I conclude my article by asserting that a uniform civil code shall be drafted and implemented throughout the territory of India, so as to fulfil the aim of our first Prime Minister Pt.

Jawaharlal Nehru, who first proposed the concept of uniform civil code in the constituent assembly.