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Uniform Civil Code: Freedom from Personal Laws-Based Legal Complexity and Litigation

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 religious sects.

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Since these multicultural laws are misleading and contradictory and are ingrained in outdated principles, when India adopted its Constitution in 1950, a provision on the enactment of a uniform civil code governing family relations was included in the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[1], the Protection of Women from Domestic Violence Act of 2005[2], 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 issues.

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[3] 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[4] whereas Hindu's are governed by Hindu Adoption and Maintenance act, 1956.[5]

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[6], 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 personal laws.

The Supreme Court of India has always been a great proponent of the UCC. In the case of Mohd. Ahmed Khan v. Shah Bano[7], 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[8] 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.

  1. The Special Marriage Act, 1954, Act No.43 of 1954.
  2. The Protection of Women from Domestic Violence Act,2005, Act No. 43 of 2006.
  3. The Hindu Succession Act, 1956, Act No. 30 of 1956.
  4. The Guardian and Wards Act 1890, Act No .08 of 1890.
  5. The Hindu Adoption and Succession Act,1956, Act No. 78 of 1956
  6. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC Online SC 1190
  7. Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945
  8. Indian Young Lawyers Association V. The State of Kerala Writ Petition (Civil) No. 373 Of 2006

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