The preamble of our Indian Constitution guarantees freedom of opinion,
expression, freedom of religion, etc. Throughout our constitutional history, the
judiciary have considered, examined and extended the meaning of these words. The
significance that our legislature accorded to religion while trying to remain
secular was perhaps the masterstroke of our legislators.
Everyone is well aware that Family laws in India are governed by personal status
laws based on religious leanings. While others are statutes enacted by states,
while some are based on customary law or religious principles. And further,
religion in India is not concerned with personal law, while it is practised in
Having to look at the tenets of any religion and the principles of the personal
law of any religious community, religion is entrenched in spirituality, worship,
sacrament, and rituals of religious practise. In fact, different personal laws
from time being are in confrontation with the Right to Equality and to Safeguard
Gender Justice. Personal law, however, has nothing to do with objects such as
marriage, divorce, adoption, succession and inheritance.
Since these multicultural laws are misleading and contradictory and are
ingrained in outdated principles, when India adopted its Constitution in 1950, a
provision on the enactment of a uniform civil code governing family relations
was included in the Directive Principle of State Policy.
The Government was mandated to make every possible effort in this direction so
that the people of a multicultural society would gradually accept the new code,
which could initially be optional. Apart from the promulgation of a few
legislations, such as the Special Marriage Act of 1954, the Protection of
Women from Domestic Violence Act of 2005, etc., no attempt has been made in
this direction by successive governments in this.
The Supreme Court repeatedly argued for the implementation of the Uniform Civil
Code as laid down in Article 44 of the Directives Principles of State Policy of
the Constitution to get rid of the above-mentioned complexities and other
Legal Complexities of Personal Laws:
Personal laws might resemble each other but they are still way apart in terms of
ethics and identity as a Hindu, Muslim, Parsi or Christian law not only by its
nomenclature but by its content also.
The interpretation that a uniform civil code would necessarily entail changes to
only Muslim personal law is quite incorrect. As has repeatedly been pointed out
by women's rights groups and others, personal laws governing different
communities in India, all are gender discriminatory and have a common feature.
For example, the law on succession among Hindus is lopsided in the way it treats
men and women. In today's contemporary world, a secular, non-discriminatory and
progressive code would therefore mean changes to all personal laws.
In Hindu personal law it is found that divorce is allowed only when the spouses
have been living separately for last one or more years. And in Christian
personal law marriage is dissolved when petition is filed for divorce after two
years or more whereas in Muslim law permits the man to divorce his wife
immediately after pronouncing talaq thrice, though triple talaq had been held
unconstitutional by our Judiciary.
Further in context of inheritance, according to Hindu succession Act the
right of daughter in her ancestral property is equal to that of a son whereas a
Muslim daughter share is one half to that of son and wife's share is half to
man. And in terms of adoption, no laws have been promulgated in Muslim,
Christian and Parsis and they have to approach the court under Guardianship and
wards act, 1890 whereas Hindu's are governed by Hindu Adoption and
Maintenance act, 1956.
Now we can see that we have barely scratched the issues of personal laws, there
are still a number of inconsistencies that need to be addressed. Thus, it is
very obvious that the Uniform Civil Code will be the only remedy to fill the
loopholes of personal laws.
Judiciary point of view:
The Uniform Civil Code is a reforming move and this would not be fair to
consider the exemplar of Goa in the debate on the UCC, particularly in the wake
of the latest judgement of the Supreme Court, Jose Paulo Coutinho V. Maria
Luiza Valentina Pereira & Anr
, wherein the court lauded the state's
unique position of being the only Indian state to have uniform personal law,
though with some concessions.
Though, in India's erratic reality, the likelihood of such reform has become
increasingly contentious. Judiciary is of the opinion that uniform civil code
sets out a collection of laws to manipulate the affairs of all citizens,
regardless of religion, and is certainly a requirement of the hour and to ensure
that their fundamental and constitutional rights are protected, in other words,
one country is governed by one rule.
Moreover, calls for a uniform civil code in our country are based on claims for
legal uniformity and national integration, as well as equal protection, in
particular for women who are often discriminated against under India's religious
The Supreme Court of India has always been a great proponent of the UCC. In the
case of Mohd. Ahmed Khan v. Shah Bano
, that brought the issue of UCC
back to the foreword. Though the Supreme Court had taken on the role of social
reformer in many other previous cases, the case of Shah Bano was a landmark in
the history of debate on religion, secularism and women's rights. If we
meticulously evade the political drama that later unfolded, we would be able to
trace the problems that our country's courts have faced because of a separate,
conflicting personal laws.
Recently the bar of justice tilted in the favour of transformative mindset when
our Hon'ble Judges in their insight finally corroded the regressive precedent,
in the Sabrimala verdict and finally allowed women to walk the grounds of
Sabrimala. This landmark judgement has definitely moved one step closer towards
ending the injustices ingrained in our personal laws.
A Way Ahead:
Detractors of the Uniform Civil Code claims that it is not possible to implement
UCC in the view of Articles 15, 25 and 26 of the Indian Constitution. A critical
analysis of these articles, with interpretations has been pronounced from time
to time by the Apex Court, and made it clear that they are not in conflict with
the objective of Article 44.
Since, religion and personal law are a variety of avenues. And this is why the
Supreme Court has suggested that a uniform civil code should be established in
order to achieve equality and to bring an end to discrimination in the field of
dispensation of justice. The constructive side of the argument on UCC repeatedly
reminds people to deal with maladies in their personal law system and to adapt
them to today's context, taking cues from another community that might be more
progressive in some instances.
It must never be ignored that all this is a slow process, and any unreasonable
haste would only result in failure rather than the desired outcome.
- The Special Marriage Act, 1954, Act No.43 of 1954.
- The Protection of Women from Domestic Violence Act,2005, Act No. 43 of
- The Hindu Succession Act, 1956, Act No. 30 of 1956.
- The Guardian and Wards Act 1890, Act No .08 of 1890.
- The Hindu Adoption and Succession Act,1956, Act No. 78 of 1956
- Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC Online SC
- Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945
- Indian Young Lawyers Association V. The State of Kerala Writ Petition
(Civil) No. 373 Of 2006