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UCC: INDIA’S STRUGGLE WITH PERSONAL LAWS

Aayushee Gautam1 & Harsh Kamdar2

ABSTRACT

India is the most diverse country in the world. People of all religions live here. It is the country

with largest Hindu population, Second largest Muslim population and many other minorities.

Indeed Pt. Jawaharlal Nehru was right when he said that India is a “Unity in Diversity”, because

people of all religion reside here peacefully. All of these religions have their own personal laws,

which govern their family affairs such as marriage, divorce, succession and inheritance. This

difference in personal laws often leads to contradictions among the various Religious groups.

This article talks about personal laws of various religious communities in India and about how

these contradictions can be resolved by implementing Uniform Civil Code.

INTRODUCTION

India is a sovereign, socialist, secular democratic republic. The constitution of India guarantees I)

social, economic and political justice, ii) liberty of thought, expression, faith and worship and iii)

Equality of status and of opportunity. One of the directive principles, enshrined in article 44 of

the constitution, mandates that the state shall endeavor to secure for the citizens a uniform civil

code throughout the territory of India. Article 14 of the Indian Constitution guarantees every

citizen equality before law. To quote, “The state shall not deny any person equality before the

law or the equal protection of the laws within the territory of India.”

Then, India is a land of diversity. Having said that, it comes that the numerous religions and

tribes have their own set of beliefs and traditions. Such beliefs and traditions form their personal

laws, which governs them in matters of Matrimonial laws, Inheritance Laws and other “Family

Laws”. Article 25 of the Indian constitution gives the citizen freedom of conscience and free

profession, practice and propagation of religion. Although clause 1 of the same article places the

1 2nd year BA LLB student, Institute of Law, Nirma University 2 2nd year BA LLB student, Institute of Law, Nirma University

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provision subject to public, order, morality and health, and restricts the freedom for the public

good. Similarly, article 26 clause (b) gives people the freedom to manage their religious affairs.

To quote, “freedom to manage religious affairs- Subject to public order, Morality and health,

every religious denomination or any section thereof shall have the right- (b) to manage its own

affairs in matters of religion.” True to a great extent, India is a country, which abounds in

personal laws and each community has its own personal law.3 Not only religious belief, but also

acts done in pursuance of religious performance or practice: rituals, rites, ceremonies,

observances and modes of worship are protected under Article 25(1) and 26(B) of the

Constitution. These Constitutional provisions embody the principle of religious tolerance and

serve to secular nature of Indian democracy, which the architects of the Constitution considered

the very basis of it.4

Different religious community rule themselves differently in the matters of their personal law. To

bring about a uniformity in the structure, and to ensure that no one gets discriminated on

religious grounds, and to uphold the essence of Justice, Equity and good conscience, the state

endeavors to bring about a uniform civil code.

The debate on UCC is as old as the constitution itself. It could never be but implemented. The

Constitutional bench of five Judges in Mohd. Ahmad Khan vs. Shah Bano Begum Opined on the

Uniform Civil Code as noted below:-

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It

provides that the state shall endeavor to secure for the citizens a Uniform civil code throughout

the territory of India. There is no evidence of any official activity for framing a common civil

code for the country. A belief seems to have gained ground that it is for the Muslim community

to take a lead in the matter of reforms of their Personal Law.”5 Law commission of India

chairman Justice B.S.Chauhan said in a recent interview that if any amendment is proposed on

uniform civil code, it would definitely be without affecting the freedom of any religion.6

3 2 PARAS DIWAN, (Imprint Publication 23) (2016). 4 Sardarsyedma Tahir Saifuddin Sahib v. state of Bombay, A.I.R 1962 S.C. 853. 5 Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 S.C. 945.

6AnushaSoni, Law Commission Chairman on Uniform Civil Code: Each religion would continue to have personal

laws, indiatoday.in, November 14, 2016 22:52 IST, http://indiatoday.intoday.in/story/uniform-civil-code-law-

commission-chariman-religion-personal-laws-gender-justice/1/810271.html

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To further understand what UCC is and whether it is necessary for our country, we need to

understand the personal laws of the major religions, and how they govern their personal matters

of marriage, adoption, inheritance, divorce and other family matters.

PERSONAL LAW AND HINDUS IN INDIA

Personal laws are the laws, which are inspired by the personal customs of a particular religion. In

India, its own personal laws in the matters of inheritance, marriage, divorce, adoption etc. govern

every religious community. The personal laws must not be in contradiction to the Public order,

Health and Morality of the nation at large7, as mandated in Article 25 of the Constitution.

Hinduism and personal laws have a great history. Originally, the Society, rather than the state

was the organizational unit. Sages used to be the leaders of the societies. . Even though the early

laws were not codified, they were to be followed as the will of the God. The king was no doubt

divine, but the established laws and customs were still more so. The king was required to take a

vow at his coronation that he would scrupulously respect them. He had no power to change them

at his own sweet will.8 The early Hindu society considered law to be an integral part of their

religion.9 This claim is perhaps, founded on the basis that the sages being Hindu law-givers,

where regarded as divinely inspired.10

Hinduism is the major religion of the continent of south Asia. Its adherents in India number well

over three hundred million. Hinduism has gone through several stages in its evolution11, and

therefore ‘Hindu’ is a very broad term. It is not a single religion, but encompasses several

traditions in itself. This makes it obvious that the customs and rituals will also not be the same, it

will vary. According to the Hindu marriage act 1955, the act will apply to (a) to any person who

is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or

a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or

Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends

7 INDIAN CONST. ART. 25, CL. 1. 8 A.S. ALTEKAR, STATE AND GOVERNMENT IN ANCIENT INDIA, 49-54 (3rd rev. ed.1958). 9 A. CHAKERBARTI, NEHRU HIS DEMOCRACY AND INDIA, 213-14(1st ed. 1961). 10 U.C. SARKAR, EPOCHS IN HINDU LEGAL HISTORY, 213-14 (2d ed. 1956). 11 A.L.BASHAM, THE ORIGINS AND DEVELOPMENTS OF CLASSICAL HINDUISM, ( 1st ed. 1911)

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who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person

would not have been governed by the Hindu law or by any custom or usage as part of that law in

respect of any of the matters dealt with herein if this Act had not been passed.12 Hindu includes

or implies any person who is Hindu by religion Including Bramho, Prarthana and Arya Samaj

persons and Buddhists, Jains and Sikhs, It also includes any other person who is domiciled in

India and who is not a Muslim, Christian, Parsi or Jew by religion. So the term Hindu is a broad

catch all term.13

Article 25 of the constitution guarantees freedom of conscience and free profession, practice and

propagation of religion. (1) Subject to public order, morality and health and to the other

provisions of this Part, all persons are equally entitled to freedom of conscience and the right

freely to profess, practice and propagate religion.14 Therefore, if any law interferes with the

public order, morality and health of the nation at large, amendments are called for. There were

some Hindu laws which interfered with the public order, morality and health of the nation at

large, and therefore legislation sought to reform such laws. For example- The Caste Disabilities

Removal Act (1850), Hindu Widow’s Remarriage Act (1856), The Hindu Women’s Right to

Property Act (1937), The Hindu Married Women’s Right to Separate Residence and

Maintenance Act (1946), Hindu Widow’s Remarriage Repeal Act (1983), Commission of Sati

(Prevention) Act (1987) and so on.

The Hindu marriage act 1955 assured that monogamous marriages become the law. This Act

provided for the first time registration of Hindu marriages; an attempt to prevent bigamous

marriages. 15 The act also provides for the capacity of marriages and also the grounds for

divorce. It also gives women the right to divorce.

Similarly, the opening lines of The Commission of Sati (Prevention) Act, 1987 states why it was

important to come up with this legislation. To quote, “An Act to provide for the more effective

prevention of the commission of sati and its glorification and for matters connected therewith

or incidental thereto.”

12 Hindu Marriage Act 1955, No. 25 of 1955, § 2. 13 MeherK.Master, Personal Laws of Religious Communities in India, 11 JOD:DJR, 266-267(1986). 14 INDIA CONST. ART. 25, CL. 1. 15 Ibid at 11.

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Whereas sati or the burning or burying alive of widows or women is revolting to the feelings of

human nature and nowhere enjoined by any of the religions of India as an imperative duty;

And whereas it is necessary to take more effective measure to prevent the commission of sati and

its glorification;

Be it enacted by Parliament in the Thirty-eighth Year of Republic of India”.16Nothing more can

be said about the reformative effects this legislature has on the society.

Similarly, every other reformative legislature truly represents an attempt to bring about

uniformity in the Hindu society. These Acts in effect provides a kind of Uniform Civil Code for

the millions of Hindus living in India with their, great varieties of customs.17

PERSONAL LAW AND MUSLIM LAW IN INDIA

There has been a never-ending debate about whether UCC should be implemented in India or

not. The most ardent opposition has always come from the Muslim community. They fear that

implementing uniform civil code will take away the basic essence of their religion. Recently, the

law commission of India sleeked public opinion regarding revision of Article 44 of the Indian

Constitution, which talks about the Uniform Civil Code. Reacting to the same, The All India

Muslim Personal Board slammed the central government, and exclaimed that the uniform civil

code is volatile of the constitution and the right to religion provided by it to every citizen.18

The debate is not new. The last time this issue gained public prominence was in 1985 when the

Shah Bano case had questioned the Islamic legal norms. In the case of Mohd. Ahmed Khan Vs.

Shah Bano Begum ,the Supreme Court speaking through Y. V. Chandrachud, the then Chief

Justice held that Section 125 Cr. P.C. is applicable also to the Muslims and that even a Muslim

husband also is liable to maintain his divorced wife beyond the Iddat period. Because of the

16 The Commission of Sati (Prevention) Act 1987, No. 3 of 1988.

17 MeherK.Master, Personal Laws of Religious Communities in India, 11 JOD: DJR, 274-275 (1986). 18 AdrijaRoychowdhury, Shariat and Muslim Personal Law: All your questions answered, THE INDIAN EXPRESS

(October 13, 2016 3:45 pm), http://indianexpress.com/article/research/shariat-muslim-personal-law-sharia-history-

shayara-bano-shah-bano-triple-talaq-personal-laws-religious-laws-uniform-civil-code-2784081/.

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controversy, the parliament had passed the Muslim Women (Protection of Rights on Divorce)

Act, 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim

husband is not liable to maintain his divorced wife beyond the Iddat period, unless both the

spouses submit to the court at the appropriate time that they would like to be governed by

Cr.P.C.19 The definition of Iddat according to this act is, in case of divorced women,- I ) three

menstrual courses after the date of divorce, if she is subject to menstruation; ii) three lunar

months after her divorce, if she is not subject to menstruation; iii) if she is enceinte at the time of

her divorce, the period between the divorce and the delivery of her child or the termination of

pregnancy, whichever is earlier.20 The Muslim Woman (Protection of rights on Divorce) Act,

1986 sought to achieve the following objectives-

(a) Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance

within the period of iddat by her former husband and in case she maintains the children born to

her before or after her divorce, such reasonable provision and maintenance would be extended to

a period of two years from the dates of birth of the children. She will also be entitled to mahr or

dower and all the properties given to her by her relatives, friends, husband and the husband’s

relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply

to the Magistrate for an order directing her former husband to provide for such maintenance, the

payment of mahr or dower or the delivery of the properties;

(b) Where a Muslim divorced woman is unable to maintain herself after the period of iddat, the

Magistrate is empowered to make an order for the payment of maintenance by her relatives who

would be entitled to inherit her property on her death according to Muslim Law in the

proportions in which they would inherit her property. If any one of such relatives is unable to pay

his or her share on the ground of his or her not having the means to pay, the Magistrate would

direct the other relatives who have sufficient means to pay the shares of these relatives also. But

where, a divorced woman has no relatives or such relatives or any one of them has not enough

means to pay the maintenance or the other relatives who have been asked to pay the shares of the

defaulting relatives also do not have the means to pay the shares of the defaulting relatives the

19 ChintamaniRout, UNIFORM CIVIL CODE AND GENDER JUSTICE: AN ANALYSIS UNDER CUSTOMARY

LAW, 1IMPACT: IJRHAL 29, 29-33 (2013). 20 The Muslim Women (Protection of Rights on Divorce) Act, 1986, No. 25 of 1986.

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Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the

shares of the relatives who are unable to pay.21

The Constitutional validity of the above stated act was challenged before the Supreme Court of

India in the Case of Daniel Latifi V. Union of India (2001). The court although dismissed the

petitions that challenged the constitutional validity of the act, the Supreme Court constitutional

bench held that

1) A Muslim husband is liable to make reasonable and fair provision for the future of the

divorced wife which obviously includes her maintenance as well. Such a reasonable and fair

provision extending beyond the iddat period must be made by the husband within the iddat

period in terms of Section 3(1) (a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to

pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself

after iddat period can proceed as provided under Section 4 of the Act against her relatives who

are liable to maintain her in proportion to the properties which they inherit on her death

according to Muslim law from such divorced woman including her children and parents. If any

of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board

established under the Act to pay such maintenance.22

This clearly states that the Muslim woman would necessarily need the nod of her husband to be

able to be governed under Section 125 Cr.P.C in matters of maintenance.

The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to

formulate an Islamic law code for Indian Muslims. The Shariat law has come under various

controversies till date. The most recent one is the case of triple talaq. Triple talaq is the practice

where a Muslim male can give divorce to his wife by pronouncing ‘talaq’ three times anytime

anywhere. A recent judgment on triple talaq by the Allahabad high court observed that Talaq by

21 Ibid at 18. 22 Daniel Latifi v. Union of India (2001) 7 S.C.C.740.

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a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental

rights guaranteed under Article 14 and 21 of part III of the Constitution. The court also

concluded that a society that does not respect its women cannot be treated to be civilized. It is the

need of the present day that people are made aware that it is obligatory to treat the women with

respect and dignity so that humanism in its conceptual essentiality remains alive.23

PERSONAL LAW AND PARSIS LAW IN INDIA

The term Parsi Zoroastrian is double barreled. The word Parsi refers to ethnic origin and means

and includes all those persons in India who are descended from the people who came from Iran

to India who were Zoroastrians. This includes descendants of the original group who came to

India, over a thousand years ago as well as descendants of Irani Zoroastrians who came to India

at any time during the past about one thousand years. The word Zoroastrian refers to religion and

means a person whose religious initiation, Navjote ceremony, were in the Mazdayasne

Zarathushtrian Daena. A person who is born a Parsi can never cease to be a Parsi. Therefore, this

divorce ground only refers to a person who is not only ethnically a Parsi but has also ceased to be

a Zoroastrian.24

In the 19th century, in the territorial area of the Princely States of India, various Laws applicable

in each separate Princely State were applicable to the subjects of each Prince or Ruler of the

State. Parsi Zoroastrians living in Navsari was subjects of the Gaekwad of Baroda and as such

were governed by the Laws of the State of Baroda. The Parsi’s were the first religious

community in India to demand its own personal laws. It happened in 1840-1860s in the case of

Ardeshir Cursetjee vs. Pherozabai.25 After the Case, the Parsi Marriage & Divorce Act 1865 was

promulgated.26 Mostly, under this Act the following salient legal provisions were made

regulating Matrimonial Personal Laws for the Parsi Zoroastrians in British India.

23 Live law news network, Triple Talaq: Under The Garb Of Personal Law Constitutional Rights Can’t Be

Infringed: Allahabad HC, Livelaw.in, May 10, 2017 8:38 pm,http://www.livelaw.in/triple-talaq-garb-personal-

law-constitutional-rights-cant-infringed-allahabad-hc-read-judgment/.

24 MeherK.Master, Personal Laws of Religious Communities in India, 11 JOD: DJR, 269-270 (1986). 25 Ibid at 21. 26 Ibid at 21.

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i) Marriage amongst Parsi Zoroastrians was made monogamous. Provisions were made

concerning capacity, essential validity and formalities of marriage. The marriage

ceremony would be legally valid only if performed by Zoroastrian priests according to

Zoroastrian religious Ashirvad ceremony and customs.27

ii) Special Courts called “Parsi Chief Matrimonial Courts” were constituted in Bombay,

Madras and Calcutta; and in other mofussil places in the districts, Parsi Matrimonial

Courts were constituted. In the three Presidency towns the status of the three Parsi Chief

matrimonial Courts was co-eval with the Original Side of the High Court in dignity ; and

the Chief Justice or other Judge presided in these Court assisted by “Delegates” who

were all Parsi Zoroastrians. These Delegates were final Judges of facts and had the

power to grant matrimonial reliefs. 28

iii) The Matrimonial Courts had the power to grant the following matrimonial reliefs:

divorce; nullity; judicial separation; restitution of conjugal rights; and also award

alimony to the wife and maintenance for the children as Well as provide for custody of

the children.29

This act was repealed and replaced by the act of 1936.Under the present Act; Marriages can only

be dissolved in the special Parsi Chief Matrimonial Courts or Parsi Matrimonial Courts in India.

No other courts have the power to grant decrees of divorce to Parsi Zoroastrians who have

married under the Parsi ceremony of marriage .i.e. marriage solemnised in the religious

Ashirvad.

The act of 1936 has still maintained special status in India. This Special Parsi courts have been

dealing with all the Matrimonial matters of Parsis in India. Over the years, the number of

delegates in the Parsi courts has reduced to seven from previous ten. The grounds for divorce has

also increased to ten, of which the main grounds are desertion, adultery, grievous bodily hurt,

etc. One special ground arises when the defendant (guilty-party) has ceased to be a Parsi

Zoroastrian.

27 MeherK.Master, Personal Laws of Religious Communities in India, 11 JOD:DJR,270-271 (1986) 28 Ibid at 24. 29 Ibid at 24.

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PERSONAL LAWS AND CHRISTIANS LAW

When the British colonized India, many Europeans, especially from Britain started residing in

India. Many of these people belonged to either the Church of England or Scotland. They were

supposed to get married in their respective Churches only. For their convenience, an act known

as Matrimonial Cause Act of 1857 was brought into existence by the British government, which

allowed them to get marry in India. It was a long journey from Britain to India and sometimes it

took about 2-3 months to reach here. This distance lead to many difficulties in personal laws and

hence the Indian Divorce Act IV of 1869 came into existence.

Under this, the Charter jurisdiction of the three presidency high courts was supplemented. Which

meant that now the High courts could transfer the Matrimonial cases to the District courts. The

laws of this case were rather unfair to the wife. It was easy for the husband to get divorced

compared to wife. Under the act there were two grounds to file for divorce, they are:

(i) Change of religion to some other religion than Christianity by the

defendant/respondent.30

(ii) Adultery. The wife in addition to adultery must prove that the husband has been

guilty of incestuous adultery, bigamy with adultery, marriage with another woman

with adultery, or adultery coupled with cruelty or adultery coupled with two years

desertion or rape, sodomy or bestiality.31

The court also had the freedom to grant a decree of divorce on the ground of either the person-

turning lunatic or being minor. This has been taken care under Section 21 of the same act.

The post-Independence view of the Indian government on these laws has been quiet negligent.

Christians being minority, have the liberty to amend their personal laws only when they feel like

doing it. This is negligent in the view that how unfair these rules are against the women as

compared to the men. There is a great need to amend these laws, considering the fact that the

grounds for divorce are limited and most of the times it is not adultery.

30 MeherK.Master, Personal Laws of Religious Communities in India, 11 JOD: DJR, 271-272 (1986). 31 Ibid at 27.

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The Goa Civil Court is an example of Christian Personal laws applicable to everyone. In Goa,

everyone is supposed to get married in a Church according to Christian traditions and all the

marital matters are taken care of in the same Christian traditional matter.

WHAT IS UNIFORM CIVIL CODE ?

India is a Secular State, which means that the state has no official religion. It gives to its citizen

the right to follow any religion they want. This leads to existence of various personal laws in

India. Every religion has its own personal laws, which governs it. These personal laws govern

the matters relating to family affairs, i.e., marriage, divorce, succession, etc. Uniform Civil Code

is a proposal to replace all these personal laws with a single common law, which will govern all

the matters relating to family affairs, i.e., marriage, divorce, succession and inheritance.

WHY UNIFORM CIVIL CODE ?

We need UCC mainly because we need to establish a secular way of life in our country. The

preamble of the Indian Constitution pronounces the Indian state to be a socialist secular

democratic republic. Article 14 of the Indian constitution states that the state shall not deny to

any person equality before the law or the equal protection of laws within the territory of India.32

There should be no discrimination on the name of religion, gender, caste or creed. It has been

rightly said by B.R Ambedkar “We have in this country uniform code of laws covering almost

every aspect of human relationship. We have a uniform and complete criminal code operating

throughout the country which is contained in the Indian Penal Code and the Criminal Procedure

Code. The only province the civil law has not been able to invade so far as the marriage and

succession and it is the intention of those who desire to have Article 35 as a part of Constitution

so as to bring about the change.”

Another reason why we need UCC is to end the age old gender injustice which has been

prevailing from the time immemorial. Be it be Hindu, Muslims, Christians or any other religion,

all of them have always considered women inferior to men. In addition, it is about time that we

32 INDIA CONST. art 14.

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break this old age stereotype by implementing laws against such injustice, which is to be held by

everyone regardless of personal beliefs or faith.

Accordingly, India having ratified the International Covenant on Civil and Political Rights, 1966,

and International Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), 1979, is bound to enforce the relevant provisions and ensure gender equalities in its

national laws33.

Along with the other two points, it is the duty of a government to protect the rights of its citizens

regardless of their gender, caste or creed. It treat all its citizens equally and fairly for which it is

necessary to demolish the existing personal laws which create discrimination and this can only

be achieved by Implementing UCC.

33 Mahesh Sharma, Declassifying the uniform civil code, Livelaw (Oct 16, 2016, 10:11 AM) Available at

http://www.livelaw.in/declassifying-uniform-civil-code/.