UNIFORM CIVIL CODE – CHALLENGES IN IMPLEMENTATION

INTRODUCTION

Uniform Civil Code aims to establish a single national law i.e. “ONE NATION ONE LAW”

A Uniform Civil Code means that all the sections of the society irrespective of their religion, shall be treated equally according to national civil code, which shall apply to all uniformly. Uniform Civil Code is defined in our constitution under Article 44 of Directive Principles of State Policy, which states that it is the duty of the state to secure for the citizens a Uniform Civil Code throughout nation.

The primary aim of the UCC is to promote equality, social justice and gender parity by eliminating disparate legal provisions that exist within different religious communities. The area it focuses on are – Marriage, divorce maintenance, inheritance, adoption and succession of the property.

HISTORY

The origin of the Uniform Civil Code is from colonial India. The Lex Loci Report submitted in October 1840 stressed upon the importance and need for uniformity in the codification of Indian law, relating to crimes, evidence and contract, specifically recommending that personal laws of Hindus and Muslims should be kept outside such codification.

The B N Rau Committee in 1941 was constituted to codify Hindu law, due to an increase in personal concerns of the legislation at the end of British rule. The committee was supposed to examine the issue whether common Hindu laws are necessary was the Hindu Law Committee’s responsibility.

According to the committee’s recommendation, which was based on the scriptures, women would have equal rights under a codified version of Hindu law. The 1937 Act was reviewed, and the committee propound to establish a civil code for Hindu marriage and succession.

During the drafting of the constitution, leaders like Jawaharlal Nehru and Dr B.R Ambedkar strongly was in favor in implementing the uniform civil code. However, they included the UCC in the Directive Principles of State Policy (DPSP, Article 44) because of lack of awareness among the people during the time.

Some of the reforms were-

The Hindu Code Bill and Succession Act – The draft of the Rau Committee report was submitted to a select committee chaired by B R Ambedkar after the adoption of the Constitution in 1951.It was under discussions when the Hindu Code Bill lapsed, after that it was resubmitted in 1952. After the discussion the bill was then adopted in 1956 as the Hindu Succession Act. This act was introduced to amend and codify the law relating to unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act improved and states that the Hindu personal law will give women greater property rights, and ownership. It gave women equal property rights in their father’s estate as of son.

The general rules of succession under the Act 1956 for a male who dies without a will, the heirs in Class I are given preference to heirs in other classes. The 2005 amendment to the Act added more descendants elevating females to Class I heirs. The daughter will be allotted the equal share as is allotted to a son.

The Hindu Marriage Act

Minority and Guardianship Act

Adoptions and Maintenance Act

Special Marriage Act

WHY DO WE NEED UNIFORM CIVIL CODE?

For the Rights based society. India is a democratic country. In the name of a modern welfare, state cannot give permission for regressive practices against women in the lunge of religion. Cultural practices must be in tune with substantive equality and gender equality. Opposition to UCC comes from the reluctance to remove the patriarchal notions and traditions.

JUDICIAL INTERVENTIONS –

Shah Bano Begum v. Mohammad Ahmed Khan (1985)

In the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case, it was the first time when Supreme Court directed the Parliament to frame the Uniform Civil Code in the year 1985

Facts of the Case – Mohd Ahmed Khan, a lawyer, who was the husband of Shah Bano Begum, they had three sons and two daughters. In 1975, when Shah Bano was 62 years old, Ahmed Khan the husband abandon her and exude her from their marital home, along with their children. In 1978, she filed an appeal before the Judicial Magistrate of Indore that she had been left without the monthly maintenance of Rs. 200 that her husband was presumed to provide. She also requested an increase in the maintenance to Rs. 500 per month.

Later, Ahmed Khan the husband pronounced irreversible triple talaq on November 6th, 1978, using it as a defense so that he does not have to pay maintenance. In August 1979, the magistrate ordered him to pay a total of Rs. 25 per month as a maintenance. In July 1980, Shah Bano appealed to the High Court of Madhya Pradesh to increase the amount of the maintenance which was accepted by the High Court.

Later on the decision of the High Court was challenged by Ahmed Khan the husband in the Supreme Court through a special leave petition.

Shah Bano Case Judgment

The verdict of Shah Bano case resulted in the dismissal of Mohd. Ahmed Khan’s appeal. The Supreme Court ruled that Section 125 of the Code of Criminal Procedure applied to all citizens, irrespective of their religion, without any discrimination. The court also clarified that Section 125(3) of the Code of Criminal Procedure was applicable to Muslims as well. It was highlighted that in case of any conflict between Section 125 and Muslim Personal Law, Section 125 prevailed.

The Supreme Court finally ruled in Shah Bano case that a husband’s legal obligation would come to an end if the divorced wife could support herself. However, this obligation would be reinstated if the wife remained unable to support herself after the iddat period and she would be entitled to receive maintenance under Section 125 of the Code of Criminal Procedure.

Sarla Mudgal v. Union of India

It is a Supreme Court of India case. Its judgement in 1995 formulated the principles against the practice of officiating second marriage by converting to Islam, without dissolving the first marriage. The judgement discussed about the bigamy, the disagreement between the personal laws in matters relating to marriage and invokes article 44 of Indian Constitution. It is considered a landmark decision that focus attention on the need for a uniform civil code.

Shayara Bano vs. Union of India & Ors.

Shayara Bano v. Union of India was a landmark case heard in the Supreme Court of India that challenged the legitimacy of the action of triple talaq (instant divorce) in Islamic personal law. A landmark judgment was announced by the Supreme Court of India in the case of Shayara Bano v. Union of India, deeming the practice of triple talaq (talaq-e-biddah) unconstitutional by a 3:2 majority.

John Vallamattom Vs. Union of India

John Vallamattom was the priest in Kerala, he filed a writ petition stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it urges the restrictions without any reason on the donation of their property for religious purpose.. The bench repealed the Section declaring it to be unconstitutional. Further stated that;

“A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies”

CHALLENGES IN IMPLEMENTATION OF UNIFORM CIVIL CODE

The implementation of the Uniform Civil Code in India faces significant challenges starting from religious complexities and resistance from diverse religious communities. While proponents argue for its benefits, there are several challenges associated with the implementations.

RELIGIOUS AND CULTURAL DIVERSITY – India is the land of diversified religion and culture. Personal laws have evolved and are deeply ingrained in the society. The Muslim Community, governed by the Sharia Law, has been a focal point of resistance. The fear of diluting Islamic principles and the apprehension that a UCC might impact minority rights within the broader framework fuel this resistance The Hindu majority’s support for the UCC might be perceived with lack of faith by religious minorities, leading to heightened resistance. Carrying out UCC that consider the diversity while providing a common civil code is a significant challenge.

POLITICAL CHALLENGES – India being a large country with cultural and religious difference has always required a representative from every nook and corner of the country. The regional political party which stems themselves on the sole vote bank of caste community or religion would definitely create a hinderance in smooth legislation of uniform civil code.

GENDER SENSITIVITY – It is the modification of the behavior by raising awareness of gender equality concern. It is about changing behavior and instilling empathy into the views that are held about personal and other genders. While a UCC is expected to improve gender justice, it must also address deeply rooted patriarchal norms present in different personal laws. Making a balance between the rights of women, religious beliefs and cultural sensitivities is a complex task.

FUNAMENTAL RIGHTS – UCC brought people together by following one common code of conduct but many were of the view that it violated the fundamental rights of the people since it was in conflict with what is express. Freedom of sense of right and wrong belonging to a free profession, practice propagation of religion as per Article 25 and the freedom to manage religious affairs under Article 26 get infringed.

LEGAL COMPLEXITY – Drafting a inclusive UCC that addresses the complications in different personal laws. Balancing the need for a uniform code with states rights can be contentious. Therefore, framing a single comprehensive civil law that caters to diverse needs of a vast country like India is a complex task.

EDUCATION AND AWARENESS – Implementing UCC may require extensive education and awareness campaigns to inform citizens about the changes and implications. Lack of awareness can lead to uncertainty and reluctance.

MIXED PUBLIC OPINION- India’s public view on UCC is varied as nation itself. A fairly large minority opposes the UCC, seeing it as an threat on religious freedom and cultural variety, even if a some people favors its adoption as a step toward gender equity and national unity. Religious differences frequently cause this split, with minority groups expressing greater hostility to the UCC than does the dominant society. There is a need for extensive public awareness and education regarding the UCC. Misinformation or lack of understanding can contribute to resistance, making it essential to communicate the rationale and benefits of a uniform civil code effectively.

PAST PRESENT AND FUTURE OF UCC

UCC IN GOA – State of GOA has adopted the Portuguese civil code just after the Independence which enforced a Uniform Civil Code for all its citizens. Under this code –

Married couple holds Joint Ownership in all assets owned and acquired by each spouse.
Muslim persons who have registered their marriage in Goa are not allowed to practice Polygamy or Divorce or through triple talaq.
Every birth, marriage and death have to be compulsory registered. For divorce there are several provisions.
Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
Parents can’t disinherit their children from the property entirely.

However, this code has certain drawbacks and not strictly a uniform code. For example, Hindu men have a right to bigamy under specific circumstances mentioned in codes of usage and customs of gentle Hindus of Goa (if the wife fails to deliver a child by the age of 25 or if she fails to deliver the male child by age of 30). For other communities the law prohibits polygamy.

UCC IN UTTARAKHAND – On Feb 7, 2024 the Legislative Assembly of the state of Uttarakhand in India passed the Uniform Civil Code (UCC) Bill. On March 13, the bill was signed and was given consent by President. The bill asserts to initiate a uniform and equal set of rules on personal law, including marriage, divorce, succession, and inheritance, that applies to all citizens of the state irrespective of religion.

The purpose of this act is to govern and regulate the laws relating to marriage and divorce, succession, live in relationship etc. But nowhere in the act is mentioned how adoption, maintenance and guardianship will be specifically dealt with. There are references to maintenance during matrimonial proceedings, but as a standalone right, Act does not have any special provisions.

BENEFITS TO NATION – According to Article 44 of Indian Constitution “The State Shall Endeavour to Secure for the Citizens a Uniform Civil Code Throughout the Territory of India.”

Implementation of UCC will bring uniformity to country.
It will Uplift the Women and appressed religious communities deprived of their rights.
It will support the National Integration.
It will accommodate the aspirations of the young population.
Casting down outdated practices and traditions and promoting modernization and social progress.
It respects the individual freedom to choose personal laws based on personal convictions rather than birth-based associations and secular society.
Even countries like Turkey, Egypt, Jordan, and Morocco have legal code for personal laws.
Also, Jordan and Egypt have banned triple talaq.

SUGGESTIONS FOR IMPLEMENTING UCC

A Progressive and broad mind set is needed among the general public in order to understand the spirit of UCC. It can be achieved by educating, spreading awareness through various programs.
It should be rafted keeping in mind the diversification of the nation in respect of culture and religion, being it a sensitive matter the initiative should come from the various religious groups.
Committee can be constituted to maintain the uniformity and care must be taken not to hurt the sentiments of any community or particular group of people.
Highlight the importance of public discourse, consensus building, and careful consideration of social, cultural, and legal implications in any decision regarding the Uniform Civil Code.

CONCLUSION

The UCC was introduced to unite India into one nation one law. Even after 7 decades of its introduction, it is struggling to make its existence because of its misinterpretation for the political, religious and personal gains. The people of the country may not be ready for the big change but are definitely ready for the strong deliberation. The drafting of the complete code seems difficult but it is the time to ask the question to move on the path that unite the people of country in terms of the different personal laws, for strong nation building.

FAQ

What is Uniform Civil Code?

A Uniform Civil Code means that all the sections of the society irrespective of their religion, shall be treated equally according to national civil code, which shall apply to all uniformly.

What is Article 44?

Part IV, Article 44 of Indian Constitution states that “the state shall endeavor to secure the citizen Uniform Civil Code throughout the territory of India.