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The Concept of Uniform Civil Code in India with reference to the Social Structure of India

The article speaks about the need for political development of common law that applies uniformly on all citizens of the nation irrespective religion and communities of the state. Implementation and enforcement of Uniform Civil Code is considered to be an essentialist move by the feminists since it strongly address the aspects of prioritizing gender over politics and agendas.

India being a heterogeneous house of diverse cultures and religions where some form the dominant and other the minorities with their respective individual law ruling them. The objective of Uniform Civil Code is to address each individual and every issue with a common law for all and evict contradiction based on religious ideologies of various communities.

The Constitution of India addresses the concept of Uniform Civil Code under Article 44 of the Directive Principles of State Policy of the Constitution. Article 44 states to secure a uniform civil code for the citizens throughout the territory of India. Uniform Civil Code dates its roots to the civil law that aims to administer common and equal law for governing people from different religious community and various regions of the State.

Uniform Civil Code is an aggregation of uniformity, civil and codified rules, regulations, procedures and conduct. Pre-independence, the Britishers during their reign realized the importance of codification of law to bring uniformity in the society and this tendency led to the formulation of Lex Loci report which enforced common law based on crime, contract in the form of Indian Penal Code,1861; Indian Evidence Act, 1872 and Indian Contract Act, 1872 respectively.

However, Lex Loci report has failed to attend or introduce in any common code in aspects of personal law that can cover all aspects of different religion. However, Post-independence there has been several debates but emphasized that Uniform Civil Code was should not be intermingled with religion rather it should be portrayed as an aspect that is for the welfare of the state from the religion-less position.

Indian Scenario of Prevailing Family Law

The oldest part of family law in India is stated and categorized broadly under Hindu Law and Muslim Law. The personal Hindu laws has gone under several amendments and codifications over the period to address various issues with increasing complexity and upcoming of new scenarios in the court of law.

The major law codifications followed under family law in India includes Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; Christian Marriage Act, 1872; Muslim Personal Law (Shariat) Application Act, 1937; Muslim Women (Protection of Rights on Divorce) Act, 1986 and several others.

These acts broadly address aspects of family issues and disputes. There has been also formation of Family Court Act in 1984 to address any case matter related to family law for their speedy settlement and recovery. Inspite of all regulated mechanism there still has been existence and functioning of religious courts that works in unauthorised and illegal way without maintaining the sanctity of justice.

Conflict Areas in Indian Family Law

  • Gender Inequality:

    Family law is closely associated with personal law and regulate areas of marriage, divorce, inheritance, succession, adoption and guardianship. Women has been subjected to humiliation and discrimination based on their gender since time immemorial. Women has been subjected to stratification in family as well as in work space. Women has been exploited, tortured and has been both physically and mentally which has affected the peace and hindered the development of society.

    There has been codified law under contract, property that is common to all but failed to implement the same for family law issues. But even after development of specialized codified law under respective religion there was still prevalence of inequality such as only son�s inheritant right to property since birth, Section 6 of the Hindu Succession Act also minimizes females right in a property and also limiting aspects in field of marriage.

  • Divorce:

    The detailed grounds of divorce is intricately stated under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The grounds include cruelty, adultery, failure to restitute conjugal rights, non-compliance with judicial separation and mutual consent. Irretrievable breakdown of marriage is not a ground under any family law in India but in Naveen Kohli v Neelu Kohli 1, it was urged to consider this as a ground of divorce.

    In India, to prevent excessive surge of divorce due to minor issues, hasty divorce, absence of suitable ground the codification and inclusion of irretrievable breakdown of marriage can be inserted as a ground only when both the parties have assented to the court at the same point and won�t be available at the disposal of single party.

  • Dowry:

    Dowry is one of the oldest prevailing conditions and failure to provide for dowry led to several crimes such as burning, hanging of the bride or commitment of suicide. Though there has been law against this crime, but however it still continues with Hindu religious justifications and often failure to fulfil the demands result in crimes stated above including heinous torture on the bride. To mitigate the situation, there is requirement of education as well as strict codified law to deal with any minor shortcomings of the field.

Indian Constitution and Uniform Civil Code

Article 44 in the Indian Constitution states about the implementation of common code of law with a specific objectivity to attain uniformity and justice from religion-less standpoint. The Constitution being a comprehensive document that points out the tendency of the framers to assure dignity and opportunities to citizen irrespective of caste, creed, sex or religion.

Articles 14 and Article 15 chalks out the right to equality and no discrimination can be made on the grounds of religion or sex. But the existing discriminatory personal laws has affected and violated the concepts of Article 14 and Article 15. Article 15(3) allows to make special provisions for women to ensure their upliftment and social advancement but still personal laws have led to the misuse or discrimination thereby stratifying their position and role in the society.

Thus, Uniform Civil Code will certainly help to curb these limitations, though most of them have been addressed under codified marriage laws; followed by certain amendments such as a Hindu woman�s right to adopt a child, considering a Hindu woman only a coparcener in a property. The objective is to attain uniformity and smooth functioning of the system.

Indian Case Law � to enact a code

In Sarla Mudgal v. Union of India 2, 1995; the issue raised was that a man could dissolve his marriage under Hindu Law by converting to Muslim in order to solemnise his second marriage. Supreme Court held that Hindu marriage can be dissolved only under Hindu Marriage Act and not by conversion to Muslim religion followed by solemnisation of second marriage. The court found the husband guilty under the offence of bigamy under section 494 of Indian Penal Code. Justice Kuldip Singh stated in the case the requirement to facilitate the enactment of Uniform Civil Code as it will help to remove contradictions based on conflicting ideologies.

In Lily Thomas v. Union of India3, 2000; the issue referred to contracting of second marriage (bigamy) after converting oneself to another religion, here, Muslim religion to ensure dissolution of the previous marriage. The court discouraged the ideology and there by held that marriage can�t be dissolved just by converting oneself to another religion. The case matter also highlighted that unplanned and improper advent to formulate Uniform Civil Code might result in an opposite way thereby giving rise to more societal and inter-religious conflicts.

Need for Uniform Civil Code

The objective of Uniform Civil Code in family law is to render justice and equality irrespective of any discrimination and set a common ground to address all issues thereby removing contradiction of conflicting ideologies. It ensures that there would be no compulsion to change religion of an individual. This will aid in maintaining uniformity and lessen the complexity of civil matters. Uniform Civil Code is needed as it will ensure unifications of all personal laws under one roof which will be conferred on all citizen. Moreover, it will be liberal and secular in nature thereby aligning itself to the goal of Constitution framers.

Uniform Civil Code is a very sensitive total concept. To formulate the common code for family law as well as personal law of all religious community comprised, there must be systematic and strategic plans and procedures to enact and enforce. This will greatly aid to bring about social transformation. Uniform Civil Code should be formulated with time, deep understanding and considerations, maintaining sentiments of all communities and with the aid of experts, representatives of various communities. Uniform Civil Code won�t seize the rights or prevent performance of rites and rituals rather it will be a protector of all citizen under one realm. It is a Herculean task but Indians are civilized and highly adaptive to changes that are for their reforms.

  1. (2006) 3 SC 491.
  2. AIR (1995) SC 1531.
  3. (2000) 6 SCC 224.

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