Uniform Civil Code

Table of Contents

Serial Content Page No.

2 Benefits of the Uniform Civil Code - 5

3 Challenges in the Implementation of the 6

4 The Status Quo regarding the Uniform Civil 7

5 Role and Position of the Courts 8

7 Conclusions and Suggestions 9

8 Bibliography 10

1
 Introduction

Uniform Civil Code is set of secular civil laws so as to govern all people irrespective of their
religion, caste and tribe. The need for such a code is believed to take into account the
constitutional mandate of securing justice and equality for all its citizens. In simple words,
Uniform Civil Code was defined as a proposal in which the personal laws of the country should
be replaced on the basis of the scriptures and customs of each major religious community in
India with a common set governing every citizen1. The Directive Principles of State Policy
enjoin our leaders to implement a common personal law for all religions which has been a
matter of debate for generations. A Uniform Civil Code means that all sections of the society
irrespective of their religion shall be treated equally according to a national civil code, which
shall be applicable to all uniformly.

Uniform civil code which in itself brings the sense of ‘uniformity’ which is to be brought in
the secular state and the applicability of such code extends to all the citizens in an equal manner
irrespective of their religion, caste and tribe. After being applicable to all, such a code becomes
futile pertaining to our personal laws whether it is Hindu law, Muslim law or any other personal
law in which the issues related to marriage, divorce, succession, inheritance, adoption and other
family matters2.

In India there exists multiplicity of family laws and Indians have their own personal laws like
the Hindus have the Hindu Marriage Act, 1955 etc., for muslims different law, christians have
their Christians Marriage Act, 1872, the Indian Divorce Act, 1869, the Jews have their
uncodified customary marriage law, Parsis have their own Parsi marriage and Divorce Act,
1936 and other laws. It is seen personally so far that each person carries his own law wherever
he goes in India. The personal laws vary widely on the basis of ones sources, philosophy and
application. Therefore, in India there exists an inherent difficulty and resistance to something
like the uniform civil code.

1
https://www.rajras.in/index.php/uniform-civil-code-definition-debate-way-forward/
2
http://www.legalserviceindia.com/legal/article-685-uniform-civil-code-one-nation-one-
code.html

2
Dr. B. R. Ambedkar in the Constituent Assembly Debates has genuinely said, “I personally do
not understand why religion should be given this vast, expansive jurisdiction so as to cover the
whole of life and to prevent the encroaching upon that field.” Giving religion such a wide
scope in the judicial organ such that it cannot be questioned even in the case of violation of
Human rights is not a good sign for any country, especially for a country like India which aims
at equality and justice to all.3

Benefits of the Uniform Civil Code -

In a country like India, Uniform Civil Code is of high necessity for the individuals belonging
to different religion, culture and denominations. The idea behind having this uniform civil code
that governs personal laws is to treat every person equally with just and fair laws. Moreover,
such code would aid to put in place the set of laws which would govern personal matters of all
citizens irrespective of their religion, which is the cornerstone of secularism.4 In the modern
era, a secular democratic republic should have a common civil and personal laws for its citizens
irrespective of their religion, class, caste, gender etc. All the laws related to marriage,
inheritance, family, land etc. should be equal for all Indians. UCC is the only way to ensure
that all Indians are treated the same.

Another pros of having this code would ensure national unity and integrity, to put an end to
gender discrimination and also to strengthen the secular fabric. It is to be noted that the
emphasis has been laid only on the gender friendly reforms of personal laws which is seen from
Shah Bano case to Shayara Bano case who filed PIL in the Supreme Court in which triple talaq
was declared unconstitutional. It is noteworthy that in the political and social scenario, the
liberal sections of the society are demanding this code to be put into effect which would govern
individuals across all religions, caste and tribe and to protect their fundamental and
constitutional rights as guaranteed by the Constitution of India.

3
Deepika T & Manisha S, ALARMING NEED FOR UNIFORM CIVIL CODE: A

HUMAN RIGHTS PERSPECTIVE

3
Bringing this uniformity also promotes national unity. In order to achieve this goal, adhering
to the spirit of secularism, various divergent religious ideologies must merge into a common
and unified principles and objectives. It will integrate India. A uniform civil code will help in
integrating India more than it has ever been since independence. It will help in bringing every
Indian, despite his caste, religion or tribe, under one national civil code of conduct.

It is commonly observed that personal laws of almost all religions are discriminatory towards
women. Men are usually granted upper preferential status in matters of succession and
inheritance. Uniform civil code will bring both men and women at par. A uniform civil code
doesn’t limit the freedom of people to follow their religion, it just means that every person will
be treated the same and all citizens of India have to follow the same laws whether they are
Hindus or Muslims or Christians or Sikhs.

A minority of people will not be allowed to pick and choose the laws they want to be
administered under. These personal laws were formulated in a specific spatiotemporal context
and should not stand still in a changed time and context.

The codification and unification of the variegated personal laws will produce a more coherent
legal system. This will reduce the existing confusion and enable easier and more efficient
administration of laws by the judiciary

Challenges in the Implementation of the Uniform Civil Code –

India in this modern age remains a widely diverse country with different beliefs and cultures
and religion. This diversity leads to each community having a different opinion of the same
subject matter and having different personal laws. It is opinion of various scholars that personal
law is derived from the personal life and religious and cultural belief. Also, India being a
secular country guarantees its minorities the right to follow their own religion, culture and
customs under Article 29 and 30. They argue that implementing UCC will contravene these
articles.
The task of actually devising a set of rules that will govern all communities is a very formidable
and tedious one considering the vast range of interests and sentiments to be accounted for.

4
There is also a lot of misinformation regarding the UCC making certain communities to feel
ignored or feel underprivileged. There also exists a lack of political will due to the complexity
and sensitivity of the issue.

The Status Quo regarding the Uniform Civil Code –

Article 44 of the Part IV, of the Constitution states that “The State shall endeavour to secure
the citizen a Uniform Civil Code throughout the territory of India5”. Whereas Article 37 of the
Constitution itself makes it clear the DPSP “shall not be enforceable by any court”.
Nevertheless, these are “fundamental in the governance of the country”. This indicates that
although our constitution itself believes that a Uniform Civil Code should be implemented in
some manner, it does not make this implementation mandatory.

The ideals of freedom and secularism are represented in the Constitution as in Article 15 which
represents no discrimination, Article 25 which gives an individual a right to freely profess,
practice and propagate one’s own religion. Article 26 establishes the right to establish and
administer religious institutions while Article 27 prohibits the state from levying a tax,
proceeds from which are used for the benefit of a particular religion.

These articles show the spirit of secularism as engrained in our country which was further held
as a basic feature of the constitution in the S.R.Bommai vs Union of India case.

Role and Position of the Courts –

The Supreme Court of India has always supported the idea of the Uniform Civil Code. This
can be traced back to the Mohd. Ahmed Khan v. Shah Bano6 (referred to as Shah Bano case)
in which a 73-year-old woman called Shah Bano was divorced by her husband using triple
talaq and was denied maintenance. The Supreme Court ruled in the wife’s favour in 1985 under

5
Constitution of India
6
Mohd. Ahmed Khan v. Shah Bano; AIR 1985 SC 945

5
the Section 125 of the All India Criminal Code, which applied to all citizens. Further, It
recommended that a uniform civil code be set up.

In the Danial Latifi Case7, the Muslim Women's Act (MWA) was challenged on the grounds
that it violated the right to equality under Articles 14 & 15 as well as the right to life under
Article 21. The Supreme Court while holding the law as constitutional, harmonised it with
section 125 of CrPC and held that the amount received by a wife during iddat period should be
large enough to maintain her during iddat as well as provide for her future. Thus under the law
of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime
or until she is remarried.

In John Vallamattom Case8, a priest from Kerala, John Vallamattom had challenged the
Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for the
non-Hindus in India. Mr Vallamatton had contended that Section 118 of the act was
discriminatory against Christians as it imposes unreasonable restrictions on their donation of
property for religious or charitable purposes by will. The bench ruled in favour of Mr.
Vallamatton and struck down the section as unconstitutional.

In Mary Roy v. State of Kerela9, it was argued before the Supreme Court was that certain
provisions of Travancore Christian Succession Act, 1916, were unconstitutional under Art. 14
Under these provisions, on the death of an intestate, his widow was entitled to have only a life
interest terminable at her death or remarriage and his daughter. It was also argued that the
Travancore Act had been superseded by the Indian Succession Act, 1925. The Supreme Court
did not clearly conclude the issue regarding gender inequality in matters of succession and
inheritance and if it violated Art. 14, but ruled that the Travancore Act had been superseded
by the Indian Succession Act.

In Narasu Appa Mali Case10, case the constitutional validity of the Bombay (Prevention of
Hindu Bigamous Marriages) Act, 1946 was to be determined by the High Court of Bombay.

7
Danial Latifi & Anr vs Union Of India;
8
John Vallamattom & Anr vs Union Of India
9
Mary Roy v. State of Kerela
10
State Of Bombay vs Narasu Appa Mali; ILR 1951 Bom 775

6
One of the two major contentions was that it was violative of articles 14 and 15 since the Hindus
were singled out to abolish bigamy while the Muslim counterparts remained at full liberty to
contract more than one marriage and this was discrimination on the grounds of religion.
Questions such as these were raised due to an absence of a common civil code and clash of
different principles in different personal laws.

In the Sarla Mudgal11 case, the question was whether a Hindu husband who was married under
the Hindu law, can by embracing Islam, can solemnize a second marriage. The court held that
the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds
specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would
not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized
after converting to Islam would be an offence under section 494 of the Indian Penal Code (IPC).
The court reasoned it on the basis that if such a thing were to be permitted it would in turn lead
to defeat the very purpose of law which was implemented to stop such an offence.

The stance of the court has been ever evolving over the past few decades and although it has
expressed its wish for a Uniform Civil Code but still keeps on guarding the rights guaranteed
to an individual by the constitution.

Conclusions and Suggestions –

India consists of various codified personal laws of Hindus, Muslims, Christians, Parsis etc.
There exists no uniform family-related law in a single statute book for all Indians which is
acceptable to all religious communities to co-exist in India till date. However, a portion of the
society considers the Uniform Civil Code is definitely desirable and would go a long way in
strengthening and consolidating the Indian nationhood. The differences of opinion are on its
timing and the manner in which it should be realized.
If the Uniform Civil Code is used and drafted in the proper manner it can create a pathway to
treat each human person with dignity, something which the divided personal laws have so far
failed to do.

11
Sarla Mudgal, & others. v. Union of India

7
Suggestions - A progressive and broadminded approach should be made among the people to
understand the spirit of the Uniform Civil Code. For this, education, awareness and
sensitisation programmes must be taken up. And further the Uniform Civil Code should be
drafted keeping in mind the best interest of all the religions, cultures and communities and no
one should be given any special privilege and no leniency.
A committee of eminent jurists, judges, high ranking bureaucrats should be constituted
to maintain uniformity and care must be taken not to hurt the sentiments of any particular
community. The matter being sensitive in nature, it is always better if the initiative comes from
the religious groups concerned.

India still remains a strong nation with diverse people belonging to different religions and
denominations follow different property and matrimonial laws which is not only for the
nation’s unity. I strongly believe that in the current moment of time the implementation of the
Code and homogenizing the personal laws remains a faraway dream. In my view a uniform
law dealing with marriage, divorce, succession, inheritance, and maintenance do seem
appealing but in the current context it must be a gradual process.

Bibliography –

1. Dr. Paras Diwan, Modern Hindu Law,2019 , Twenty-Fourth Edition.