Uniform Civil Code

PROJECT ON Uniform Civil Code: A Secularization of Family Law

Submitted by

Gowrang

BBA-LLB (B) 49

Of

Symbiosis Law School, NOIDASymbiosis International University, PUNE

OnNovember 25, 2011

Under the guidance of

VIKRAM SINGH & ASHOKE WADJEAssistant Professors

1 Uniform Civil Code: A Secularization of Family Laws In India

C E R T I F I C A T E

The project entitled “Uniform Civil Code: A Secularization of Family

Law” submitted to the Symbiosis Law School, NOIDA for Special Contracts

as part of internal assessment is based on my original work carried out

under the guidance of Prof. Vikram singh and Ashoke wadje from 15

September to 21 November. The research work has not been submitted

elsewhere for award of any degree. The material borrowed from other

sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the candidate:

Date: 25 November 2011


ACKNOWLEDGEMENT

I, Gowrang express my sincere gratitude to, Prof. Vikram singh and Ashoke wadje my Special Contract-II teacher for giving us the opportunity to work under his guidance on the project “Uniform Civil Code: A Secularization of Family Law” Several people have been instrumental in allowing this project to be completed. Any attempt at any level cannot be satisfactorily completed without the support and guidance of learned people. I also acknowledge & convey thanks to the library staff and Mr. Neelesh (COMPUTER INCHARGE) for their kind and valuable support. I have endeavoured my best to make this project and would be grateful for any suggestions for improvement.

Thanking you


Index

S.NO TOPIC Pg.No

1. Introduction 5

2. Is There Any Codified Law In India? 7

3. Article 44: Uniform Civil Code 11

4. Position of the Court 12

5. Conclusion 16

6. Bibliography 18


Introduction:

In law, codification is the process of collecting and restating the law of

a jurisdiction in certain areas, usually by subject, forming a legal code, i.e.

a codex (book) of law. The collection and systematic arrangement, usually

by subject, of the laws of a state or country, or the statutory provisions,

rules, and regulations that govern a specific area or subject of law or

practice. The term codification denotes the creation of codes, which are

compilations of written statutes, rules, and regulations that inform the

public of acceptable and unacceptable behavior.

Codification rearranges and displaces prior statutes and case decisions.

Codification of an area of law generally constitutes the whole source that is

relied upon for a legal question in that area. Thus, when a state codifies its

criminal laws, the statutes contained within the new code supersede the

laws that had been in place prior to the codification. There are exceptions

to this general rule, however. For example, the Michigan Supreme Court

ruled in 1994 that Dr. Jack Kevorkian could be prosecuted under Michigan

common law for assisting patient with suicide, despite the absence in

Michigan's criminal code of a statute that prohibits such action law1.

The civil law system and the common law system were driven by diverging

philosophies. Proponents of comprehensive codification and the civil law

system saw the benefits of public notice. By using simple language to

inform the citizenry, the state could allow people more freedom to conduct

their affairs without fear of the unexpected. Codifiers contended that it was

more democratic to live by rules that had been enacted by elected

legislators, rather than judges, and that the common law system was too

vast and obtuse for the lay public.

What is code of law?

1 People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 7145

Uniform Civil Code: A Secularization of Family Laws In India

A code is a type of legislation that purports to exhaustively cover a

complete system of laws or a particular area of law as it existed at the time

the code was enacted, by a process of codification. Though the process and

motivations for codification are similar in common law and civil

law systems, their usage is different. In a civil law country, a Code typically

exhaustively covers the complete system of law. By contrast, in a common

law country a Code is a less common form of legislation, which differs from

usual legislation that, when enacted, modify the existing common law only

to the extent of its express or implicit provision, but otherwise leaves the

common law intact. By contrast, a code entirely replaces the common law

in a particular area, leaving the common law inoperative unless and until

the code is repealed.

Is codification desirable?

Votaries of codification of customary laws have little idea about the

consequences of any such codification. Custom and tradition of a tribal

formation is always evolving and at times old customs are phased out due

to the impact of modernity and change in lifestyle. Codification of customs,

customary rights, and customary law can therefore be never exhaustive

and it would also amount to stopping growth of customs and customary

rights of future generations. In addition to these courts may also arrive at

different interpretations of the customary rights, once they are codified, by

following strict rules of construction or functional interpretation. Votaries of

codification should also remember that law and justice are often not on

talking terms. Further, the attempt to codify the customary rights will only

aggravate the problem as many of the customs may fail to graduate to

customary laws as they may be against the public policy or judiciary may

not recognize them due to contrary orders passed by the Apex Court in

similar situations.

Is There Any Codified Law In India?6


Under the British rule, the legislature rarely legislated in the sphere of

personal law. To remove some obnoxious customs legislation was

occasionally undertaken, e.g., Abolition of sati (Reg. XVII of 1829); Hindu

Widow’s Remarriage Act (XV of 1856). After independence, legislative

interference in the field of Hindu personal law is more pronounced.

Comprehensive codification has been effected in relation to the Hindu Law

of Succession, Marriage, Guardianship, Maintenance and Adoption. Central

Acts have covered these fields. In regard to Hindu Religious institutions

these are various State Legislative enactments. Mahomedan Wakfs (Public

Trusts) are governed by the Mussalman Wakfs Act, 1923. This Act was

passed for making provision for the better management of wakf property

and for ensuring the keeping and publication of proper accounts. This Act

was repealed by Wakf Act, 1954 and this Act also was repealed by Wakf

Act, 1995 (Act 43 of 1995). A comprehensive legislation applicable to all

public trusts, whether Hindu or Mahomedan is proposed to be introduced

by the Indian Parliament. The question of Uniform Civil Code, i.e., a

territorial law in the field of Marriage, Succession, Guardianship and

Maintenance is raised in the Parliament from time to time. Such a Civil

Code continues to be the goal of Government policy for which there is a

Directive Principle of State Policy to the following effect in the Constitution

of India.

As India is a secular state, out of all the religious laws followed in India, the

Hindu law is the only codified law.

Hindu law:

A comprehensive Hindu code was drafted by the Rau Committee. It was

introduced in the Legislative Assembly in1947. It was discussed in the

provisional Parliament but could not be passed before its dissolution and

consequently the Bill lapsed.

The code was then split into separate parts for facilitating discussion and

passage in Parliament.

1. The first of these dealt with Hindu Marriage and became law as the

Hindu Marriage Act of 1955 (with effect from 18 may 1995). This did

not deal with civil marriage as that subject was dealt within the


Special Marriage Act (43 of 1954) which came into force on 9 October

1954. The Hindu Marriage Act, 1955 has been extensively amended

by Act 63 of 1976, which received the assent of the President on 17

may 1976.

2. The Hindu Succession Act, 1956 (w.e.f. 17 June 1956) was the next

installment of the Code to be passed. It treats sons and daughters as

equals in the matter of succession.

3. The Hindu Minority and Guardianship Act, 1956 (w.e.f. 25 January

1956) was the third installment of the Hindu code. This Act is

supplemental to the Guardians and Wards Act, 1890. Besides the

guardians appointed under the Act of 1890, the Hindu Majority and

Guardianship Act, 1956 also deals with natural guardians and

testamentary guardians under Hindu law. It has abolished “de facto”

guardianship.

4. The fourth installment of the Code deals with Adoptions and

Maintenance. The law of adoption could be simplified considerably

because of equality between could be simplified considerably

because of equality between daughters and sons introduced by the

Hindu Succession Act. The Hindu Adoptions and Maintenance Act,

1956 (w.e.f. 21 December 1956) provides for the adoption of boys as

well as of girls. A husband can no longer forbid his wife from making

any adoption after his death. A Hindu widow’s adoption will hereafter

be not only to her deceased husband but also in her own individual

right. Adoption will not hereafter divert anyone of property which had

vested in him prior to the adoption.

The rule of divestment, which was the cause of much ruinous litigation

under the Shashtric Hindu law, has now been abandoned. The latter part of

this Act deals with the subject of maintenance. It is based on the existing

law as codified in the Bills of the Rau Committee.

Other Personal Laws:

The British colonial government administered India largely through a policy

of noninterference, allowing civil matters to be dealt with through

respective religious communities. Matters that fell under the jurisdiction of

these communities were called “personal laws.” The British began the


intensive process of codifying Hindu personal law in the early 1940s in an

attempt to notate and therefore organize the Indian political system. Dr.

Ambedkar drafted a Hindu Code Bill; however most of its progressive

provisions could not be adopted by the parliament due to orthodox

thoughts to its opposition. As first law minister of India Dr. Ambedkar gave

his resignation from the parliament as he could not implement this Hindu

code bill in parliament. However, they did not complete codification before

granting India its independence in 1947, and this process was adopted and

later completed by the postcolonial government under Jawaharlal Nehru.

Whenever there is a talk of formulating a Uniform Civil Code in the country,

some minority fundamentalist organizations come together protesting that

it poses a threat to their religious identity. The politics of vote bank takes

precedence over India’s integrity and unity. The Uniform Civil Code does

not mean a Hindu Code. It means an attempt to inculcate the best from all

the communities and religions, both minorities as well as majority. The

Code shall not endanger the freedom of religious minorities in any way. It

will rather reflect the sanctity of one’s religious beliefs and practices in a

more matured form.

Other than Hindu Personal Laws, no other Personal Laws is codified in India

due to some or the other problems raised during the discussion of the

codification.

The Muslim community opposed a uniform law regarding adoption

applicable to all communities since Islam does not recognize adoption. Due

to this opposition, the bill was subsequently dropped and reintroduced in

1980 with an express clause of non-applicability to Muslims. This was again

opposed, this time by the Bombay Zoroastrian Jashan Committee, which

formed a special committee to exempt Parsis from the bill. The Adoption of

Children Bill, 1995, was passed by both Houses of the Maharashtra

legislative assembly, but is still awaiting presidential assent.

In the Shah Bano case2 which gave a divorced Muslim woman the right to

claim maintenance even after the period of iddat. If the amount known as

meher, paid to her on divorce was not sufficient for her livelihood, she

2 MOHD. AHMED KHAN v. SHAH BANO BEGUM AND ORS; 1985 AIR 9459


could claim maintenance under S.1253. There was great agitation against

this decision, led by Mullas and Maulvis and other fundamentalist sections,

as being against the tenets of Islam. Succumbing to the pressure of vote-

bank politics and in order to appease the Muslim fundamentalists, the Rajiv

Gandhi government enacted The Muslim Women (Protection of Rights in

Divorce) Act to undo this decision. This Act exempted Muslims from the

general law regulations of the Cr.P.C, including S.125. It tried to restrict the

divorced Muslim woman’s right to maintenance up to the iddat period only

and provided that under section 3(1)(a)4 a divorced women is entitled to

reasonable and fair provision and maintenance within the iddat period. The

activists rightly denounced that it “was doubtless a retrograde step. That

also showed hoe women’s rights have a low priority even for the secular

state of India. Autonomy of a religious establishment was thus made to

prevail over women’s rights.”

The main problem in codification of all the personal laws (mohamaden law,

Parsi law, Christian law; etc.) and in implication of Uniform Civil Code is that

the customs practices of different religions are different from each other.

Some personal laws allows some customary laws while does not allow them

as they are against their religious traditions. On the other hand, at the time

of independence, Hindu religion was at the majority in India and many

other religious communities believes that the codification of personal laws

will give the Hindu law an upper hand and the other personal laws will be

under the Hindu law.

Article 44: Uniform Civil Code

Article 44 of the Constitution pledges for a uniform civil code. It states that-

“The State shall endeavor to secure for the citizens a uniform civil code

throughout the territory of India”. Article 44 of the Indian Constitution

requires the State to secure for its citizens a Uniform Civil Code throughout

the territory of India. The term ‘civil code’ is used to cover the entire body

of laws governing rights relating to property and personal matters such as

3 The Criminal Procedure Code (Cr.P.C)4 The Muslim Women (Protection of Rights in Divorce) Act; 1986


marriage, divorce, maintenance, adoption and inheritance. The object of

this code is to enhance national integration by eliminating contradictions

based on ideologies. It aims to bring all communities on a common platform

on matters which are currently governed by diverse personal laws.

However, even after 60 years of independence, our law makers are yet to

give effect to this provision. This article focuses on:

The status of the implementation of a Uniform Civil Code and,

The steps taken and directed to be taken by the Legislature and

Judiciary in this regard.

Need for a Uniform Civil Code:

Ours is a country with several different religions and belief systems. The

accepted principle of law is that personal belief systems and laws must be

in conformity with the Constitution and not the other way round. Article 25

of the Constitution guarantees to every person the freedom of conscience

and the right to profess practice and propagate religion. Article 26 of the

Constitution guarantees to every religious denomination the right to

manage its own affairs in the matters of religion. No set of laws can violate

these Articles, which essentially protect the religious freedom of different

person or communities.

With multiple belief systems, come multiple ideological conflicts. To live

together in concurrence with such diversity, we need to have uniformity at

some level so as to avoid such conflicts. What we need is a Uniform Civil

Code in the form of a sophisticated, harmonized system of legal regulation

that maintains and skillfully uses the input of personal laws and yet

achieves a measure of legal uniformity. As long as the code does not go

against the essence i.e. the core or fundamental belief of any particular

religion, it will not go against the religious freedom guaranteed by the

Constitution.

The basic reason for asking a separate nation at the time of independence

was that the Muslim League argued that the Muslims do have a separate

Personal Law which can be effectively incorporated & implemented in an

altogether different nation only. This resulted into deplorable partition

of India. Thus, separate personal law was underlying reason behind offering

a separate nation. That in turn implies that in the concept of ‘different


personal law’ lies the bug of theory of ‘two nations’. The framers of the

Constitution had seen this all and had in their minds an urge to not let this

happen again. Hence in the Constituent assembly, it was made clear that in

a secular nation, personal laws relating to such matters as marriage,

succession and inheritance could not depend upon religion, but must rest

on the law of the land. A uniform civil code was accordingly necessary for

achieving the unity & solidarity of the nation, which was envisaged by the

very Preamble to the Constitution.

Position of the Court:

Whether Art. 44 imply one thing or the other, it is not a thing of

interpretation for any scholars of any religion or political dignitaries. It is

the Judiciary that has been vested with the sole & final power of

interpreting the provisions of the Constitution. The Supreme Court seems to

have a divided opinion on the introduction of a Uniform Civil Code. On one

hand, it has rejected attempts to do so through public interest litigation but

on the other, it has recommended early legislation for its implementation.

So it would be noteworthy to see the stand of the Judiciary on this issue.

In Pannalal Bansilal v. State of Andhra Pradesh5, it held that a uniform

law though highly desirable, the enactment thereof in one go may be

counter-productive to the unity and integrity of the nation. Gradual

progressive change should be brought about.

Similarly, in Maharishi Avadhesh v. Union of India6, the Supreme Court

dismissed a writ petition to introduce a common Civil Code on the ground

that it was a matter for the legislature and in Ahmadabad Women Action

Group v. Union of India, the Supreme Court showed reluctance to interfere

in matters of personal law.

But in the case of Sarla Mudgal v. Union of India7, which is one of the

most recent cases, amongst many others, in this context, the observations

of the Honorable Apex Court would prove to be eye-openers to the general

5 AIR 1996 SC 1023 paragraph 12: (1996) 2 SCC 4986 1994 Supp (1) SCC 7137 AIR 1995 SC 153


public as well as the Government. The Supreme Court directed the then

Prime Minister P.V. Narsimha Rao to take a fresh look at Article 44, which

the Court held to be imperative for both protection of the oppressed and

promotion of national integrity and unity. It instructed the Union

Government through the Secretary to Ministry of Law and Justice to file an

affidavit, enumerating the steps taken and efforts made by the Government

towards achieving a common civil code for the citizens of India. The

Division Bench of Kuldip Singh and R.M. Sahai said that since 1950 a

number of Governments have come and gone but have failed to make any

efforts towards implementing the constitutional mandate under Article 44.

It is based on the concept that there is no necessary connection between

religion and personal law in a civilized society. No religion permits

deliberate distortion. Marriage, succession and the like are matters of a

secular nature and therefore can be regulated by law. Unfortunately, it was

later clarified in an appeal that the direction issued by the Court was only

an obiter dicta and not legally binding on the Government.

In John Vallamattom v. Union of India8, the Supreme Court in a PIL by a

Christian priest, John and other citizens of Christian community, hallenging

the validity of the section 118 of the Indian Succession Act9, 1925, while

striking down the said section as being violative of article 14 of the

Constitution, and also concerned over the contradictions in marriage laws

of various religions, in a historic judgments , emphasized the need for a

legislation by Parliament on common civil code. Stressing that there was no

“necessary connection” between religious and personal laws in a civilized

society, a three judge bench held that it was matter of regret that article

44 of the Constitution, which provided for the state to „Endeavour” to

secure a UNIFORM CIVIL CODE for its citizens throughout India, had not

been affected. The Court further observed that “Parliament is still to step in

for framing a UNIFORM CIVIL CODE in the country. A UNIFORM CIVIL CODE

8 AIR 2003 SC 2902

9 Bequest to religious or charitable uses.-No man having a nephew or niece or any nearer

relative shall have power to bequeath any property to religious or charitable uses, except by a

will executed not less than twelve months before his death, and deposited within six months from

its execution in some place provided by law for the safe custody of the wills of living persons:

["Provided that nothing in this section shall apply to a Parsi."]13


will help the cause of the national integration by removing the contradiction

based on ideologies.”

It can be said that after mentioning the apex court view regarding the

implementation of UNIFORM CIVIL CODE that Art. 44 needs to be

interpreted to sustain the plurastic character of the Indian community. It

should be on the gender justice rather than on uniformity. Although the

Supreme Court has not yet interpreted Art. 44. On all his decisions the

Court enjoined upon the parliament to enact a UNIFORM CIVIL CODE

without specifying what a UNIFORM CIVIL CODE would mean. However, the

word “uniform” should not mean the same law for all but it should mean

similar laws for all and similarly should be regarding equality and gender

justice.

In Danial Latifi v. Union of India10, a very controversial question of

political significance (in the background of a secular constitution and the

concept of welfare state) was revisited i.e. whether or not a divorced

Muslim woman after divorce post iddat period is entitled to maintenance by

her husband. Here, the Supreme Court adopted a middle path and held that

reasonable and fair provisions include provision for the future of the

divorced wife (including maintenance) and it does not confine itself to the

iddat period only.

In the case, Reynold Rajamani v. Union of India11, the court rejected a

prayer to remove the discrimination between men and women under

section 1012 (applicable to Christians). The Court based its approach on the

limits of the court’s jurisdiction. It held that when a legislative provision

enumerates the grounds of divorce, those grounds limit the courts’

jurisdiction and the court cannot re-write the law, so as to add grounds of

divorce not permissible under the section.

10 2001 7 SCC 74011 AIR 1982 SC 126112 The Indian Divorce Act, 1869


In Lily Thomas etc. v. Union of India and others13 the Court held that:-

“The desirability of UNIFORM CIVIL CODE can hardly be doubted. But it can

concretize only when social climate is properly built up by elite of the

society, statement amongst leaders who instead of gaining personal

mileage rise above and awaken the masses to accept the change.”The

court further added while it was desirable to have a UNIFORM CIVIL CODE,

the time was yet not ripe and the issue should (be) entrusted to the Law

Commission which may examine the same in consultation with minorities

Commission. That is why when the court drew up the final order signed by

both the learned judges it said, “the writ petition are allowed in terms of

the answer to the questions posed in the opinion of kuldip Singh, J. These

questions we have extracted earlier and the decision was confined to

conclusions reached thereon whereas the observations on the desirability

of enacting the UNIFORM CIVIL CODE were incidentally made.”

Conclusion:

The issue under Art. 44 today is not whether the provision under Art. 44 are

undesirable but only whether its implementation should be started now.

The quotation of Hassan Imam, a member of Constituent Assembly, would

be a befitting climax to this long discussion—

“Talk of making India strong; it is all right and a very desirable thing to

have a uniform law. It is a must thing because otherwise we would be guilty

of making a nation within a nation, a community within a community”.

The section of the nation against the implementation of Uniform Civil Code

contends that in ideal times, in an ideal State, a UCC would be an ideal

safeguard of citizens’ rights. But India has moved much further from ideal

than when the Constitution was written 50 years ago.

“In view of these conflicts of various personal laws, all equally recognized

in India, it will be in the fitness of things that all inter-religious marriages

[except those within the Hindu, Buddhist, Sikh and Jain communities] be

required to be held only under the Special Marriage Act 1954. Even if such

a marriage has been solemnized under any other law, for the purposes of

13 AIR 2000 SC 1650 at 1668.15


matrimonial causes and remedies the Special Marriage Act can be made

applicable to them. Such a move will bring all inter-religious marriages in

the country under uniform law. This will be in accordance with the

underlying principle of Article 44 of the Constitution of India relating to

uniform civil code.”14

But to conclude, I would like to say that citizens belonging to different

religions and denominations follow different property and matrimonial laws

which is not only an affront to the nation’s unity, but also makes one

wonder whether we are a sovereign secular republic or a loose

confederation of feudal states, where people live at the whims and fancies

of mullahs, bishops and pundits.

14 LAW COMMISSION OF INDIA; report no. 212; 200816


Bibliography:

Websites referred

http://lawcommissionofindia.nic.in/reports/report212.pdf

http://jurisonline.in/2010/03/uniform-civil-code-an-unfulfilled-vision/

http://www.goforthelaw.com/articles/fromlawstu/article14.htm

Cases Referred

Danial Latifi and another v. Union of India (2001) 7 SCC 740

John Vallamattom v. Union of India 2003 (5) SCALE 384

Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650 at

1668.

Mohammad Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556.

Maharishi Avadhesh v. Union of India; 1994 Supp (1) SCC 713

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714

Pannalal Bansilal v. State of Andhra Prades; AIR 1996 SC 1023

paragraph 12: (1996) 2 SCC 498

Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and

others, AIR 1995 SC 1531

Reynold Rajamani v. Union of India; AIR 1982 SC 1261

Acts

The Criminal Procedure Code (Cr.P.C); 1973

The Muslim Women (Protection of Rights in Divorce) Act; 1986


http://www.goforthelaw.com/articles/fromlawstu/article14.htm

http://jurisonline.in/2010/03/uniform-civil-code-an-unfulfilled-vision/

http://lawcommissionofindia.nic.in/reports/report212.pdf

The Indian Divorce Act, 1869


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