Uniform Civil Code and Personal Laws

INTRODUCTION

Before the advent of the Constitution, the concept of the Uniform Civil Code was there. This concept of UCC has been a hot topic for debate across the centuries. There are several diversities across the border and religions and these religions are governed by various personal laws. Family laws across the country are accused of several discriminations against genders. In the pre-independence era, no importance was given to uniform code which is available from the following reports. According to the Lex Loci Report of 1840, it was given that there could be uniform laws for crime, and contract but there would be no interference with personal laws hence it would be separate for all religions. Additionally, in the year 1859, The Queens Proclamation also mentioned the same thing. So, it can be concluded that there was no importance or interference of the government in the personal laws in the pre-independence era.

It was in the post-independence era that some importance was given to UCC and was given recognition by the leaders like BR Ambedkar and Javahar Lal Nehru, from this Article 44 was added to Directive Principles of State Policy. But the lack of awareness shrieked the same.

A nation whose secularism is enshrined in the constitution, but the concept of secularism itself is contradictory, especially when considering the individual laws of its people. It’s evolved into a perplexing mashup of religions such as Hinduism, Islam, Christianity, and Parsi law marriage differently succession, divorce, guardianship, adoption, and so forth.

WHAT IS UCC

In India various personal laws are there that guide the people across the nation these laws are being made on the customs and scriptures. In India debate is being there to replace the personal laws with the uniform code that would guide all the people across the nation equally irrespective of their religion, customs, or gender. These personal laws are to be ruled out by the uniform code.

According to Article 44 of the constitution of India, it is stated that The state shall endeavor to secure the citizen a uniform civil code throughout the territory of India. But under article 37 of the constitution, it is being mentioned that. Application of the principles contained in this Part. —The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.[1]

From the above articles, it can be seen that although our constitution itself believes in the Uniform Civil Code it does not make it anyhow mandatory to enforce the same.

UCC AND HINDU PERSONAL LAW

Hindu personal law refers to the law’s rules, and regulations that guide the Hindus across the nation about marriage, divorce, maintenance, adaptation, etc. The Hindu personal laws guide the Hindus and each Hindu has to follow the rules as mentioned by this act about various subject matters.

There has been a long-serving debate about UCC and Hindu Personal laws. It is being argued that the act is old and some provisions create discrimination among the genders. For instance, The Hindu Succession Act provides for the right of inheritance of the property of the father, this was held in the case of Prakash v. Phulavati[2]. But there are some of the restrictions that are also imposed which is the daughter cannot claim the property if her father had died before commencement of this particular act. By seeing this it can be concluded that there is discrimination among the genders. Additionally in Hindu Law, it is seen that marriage is a sacrament and a pure bond. It provides for divorce among the spouses. However, the laws are different in both religions. UCC aims to ensure that all divorce would be governed under the same codified law.

UCC AND MUSLIM LAW

Muslim laws govern Muslims across the nation and help us to understand the method of marriage, divorce, and maintenance. It guides all the Muslims across the nation. The area of conflict between UCC and Muslim personal law is that marriages and divorce are governed by the Sharia law, but UCC aims to provide a uniform code for all citizens.

The Muslim law seeks to put for the polygamy among the Muslims but the UCC focuses on abolition of this practice as it creates inequalities and discrimination among genders. UCC also seeks at formation of one act for divorce as under Muslim law husbands have more power of divorce than women. To reduce the same there is the need for UCC in India.

EXAMPLE OF UCC IN INDIA

In India Goa is only the state that has recognized the concept of a Uniform civil code and no other country so far has recognized the same.  In the particular state, the Hindu, Muslim, and Christians all are compiled to be under the Code that permits an equal distribution of property and income between spouses, law irrespective of race, sex, or gender.  Goa’s progressive Uniform Civil Code offspring (of either gender).

All births, marriages, and deaths must be formally recorded. For a divorce, there are various clauses.

Muslims who have registered their marriages in Goa are prohibited from engaging in triple talaq divorce or polygamy. Inherited property equally.

Nevertheless, the code is not strictly a uniform code and has some. Both the spouses jointly own the assets of the particular property and no one can be denied of the same. In the course of a divorce, the property is divided in half by both spouses.

Parents are not allowed to completely disinherit their children from the property. The children must inherit at least half of their property. The children have to split up this shortcoming. For instance, under certain conditions outlined in the Codes of Usages and Customs of Gentile Hindus of Goa, Hindu men are entitled to bigamy (if the wife fails to produce a male kid by the age of 30 or if she fails to deliver a child by the age of 25). In other communities, polygamy is illegal.

ADVANTAGES

UCC will help in the national integrity of the people across the borders and help to come up with unity. It will also provide justice, and equity, and remove discrimination all around. Many personal laws have loopholes so it also helps to cure the same. It establishes a simplified legal system all across the world. Additionally, it will be a sign of a modern progressive nation.

The need for the same is there to restrict the khyap panchayat in honour killing and to put an end to the various inequalities in the tax laws.

DISADVANTAGES

 The main concern is religious freedom across the world. It is argued that UCC might violate the rights of people which is the constitutional rights. The various regions of the country like the northeast have different rules so it is difficult to form a complete uniform code. There are minority groups and the concern of the same needs to be kept in mind. Numerous cultures challenge the same. Additionally, it is difficult to practice the same.

VIEW OF THE SUPREME COURT

 In the case of Shah Bano case[3]. Shah Bano filed a request demanding maintenance under sec 125 of Crpc as her husband had given talaq to her. In this case, the court upheld that Muslim women claim maintenance under section 125 of the CrPC It also observed that UCC would help to remove contradictions.

Another case where the Supreme Court used Article 44 to order the government to do something was the Sarla Mudgal case[4]. In this instance, the question was whether a Hindu husband who was married under Hindu law may then convert to Islam and get married again. According to the Supreme Court, converting to Islam to get married again is against Indian Penal Code Section 494 since it violates one’s rules.

A Kerala priest contested Section 118 of the Indian Succession Act in the John Vallamattom Case[5]. Because he believed it to be anti-Christian. The Supreme Court declared this part to be unconstitutional and expressed sorrow about the non-implementation of Article 44 of the Constitution, which mandates a UCC.

CONCLUSION

It has been seen that there has been a great debate on the matter of UCC across the nation and the government has also taken some of the efforts to claim for the same. Opponents of the UCC express worries about possible restrictions on religious freedom and the imposition of a particular religious philosophy, while supporters of the UCC contend that it would be a positive step towards defending citizens’ rights and promoting equality.

It seems doubtful that a Uniform Civil Code could be successfully implemented in a nation as diverse in culture and religion as India without suffering too many negative effects.

Reference(s):

Uniform Civil Code. (n.d.). https://www.legalserviceindia.com/legal/article-773-uniform-civil-code.html

Uniform Civil Code And Conflicts Of Personal Laws. (n.d.). https://www.legalserviceindia.com/legal/article-12974-uniform-civil-code-and-conflicts-of-personal-laws.html#:~:text=The%20UCC%20aims%20to%20replace,religious%20freedom%20and%20cultural%20identity

[1] Constitution of India | Legislative Department | India. (n.d.). https://legislative.gov.in/constitution-of-india/

[2] 2016

[3] 1985

[4] 1995

[5] 2003