Declaration

The work compiled in present thesis entitled "UNIFORM CIVIL CODE AND NEW
CHALLENGES (A SOCIO-LEGAL STUDY WITH REFERENCE TO INDIA)" is
submitted for the degree of Doctor of Philosophy (Department of Law) to Jai Narain
Vyas University, Jodhpur. The research described here in was conducted under the
supervision of Prof. (Dr.) Sunil Asopa, Department of Law, Jai Narain Vyas
University, Jodhpur Since May 2015 to till date.
To the best of my knowledge this work is original, except where
acknowledgement and reference are made to the previous work. The work has not been
submitted so far, in part or in full, for award of any other degree, diploma or other
qualification in this or any other University.
Part of this work has been published in the form of following research papers:
 Khan Anwar, April 2018, Uniform Civil Code in India: New Challenges.
Journal :EDU World, A Multidisciplinary International Peer Reviewed
/Refereed Journal, APH Publishing Corporation, ISSN No. 2319-7129, Vol. XII,
No. 9, Page No. 388-394.
 Khan Anwar & Asopa Dr. Sunil, October-December 2015, Uniform Civil Code
in India: New Challenges. Journal: Legal Issues (A Quarterly Refereed Diglot
Law Journal on Contemporary Legal Issues), ISSN No. 2455-1295, Vol. 1, Issue
No. 2, Page No. 107-116.
Seminar/Conference Certificate

 UGC Sponsored International Conference on Women Empowerment: Issues and

Challenges (23-24 March, 2017). Presented Paper Titled "Women Empowerment-
(A New Challenges)". Organised by Dept. of Economics Jai Narain Vyas University,
Jodhpur.
 7th National Students' Conference on International Humanitarian Law and Refugee
Law (8th August 2018). Attended, Organised by: Nirma University Ahmedabad in
Collaboration with ICRC and UNHCR.
 4th National Seminar on Uniform Civil Code and Constitutional Mandate – A need in
Secular India (8th Feburary 2020). Presented paper Titled: "Uniform Civil Code :A
New Challenges", Organised by : Vidyasthali Law College, Jaipur.

(Anwar Khan)
Research Scholar
 ACKNOWLEDGEMENT
First and Foremost, praises and thanks to the ALLAH, THE ALMIGHTY,
for His showers of blessings throughout in completion of my research work
successfully.

I would like to express my deep and sincere gratitude to my Research

supervisor, Dr. Sunil Asopa, Professor, Faculty of Law, Jai Narain Vyas University,
Jodhpur, for giving me the opportunity to do research and providing invaluable
guidance throughout the research. His dynamism, vision, sincerity and motivation
have deeply inspired me. He has taught me the methodology to carry-out the research
and to present the research-work as clearly as possible. It was great privilege and
honour to work and study under his supervision.

Also, I would like to express my special gratitude and thanks to Prof.

Chandan Bala Madam, Dean & Head, Faculty of Law, Jai Narain Vyas University,
Jodhpur, for her kind co-operation and generous encouragement.

I wish to avail this opportunity to express my deep sense to gratitude to all

respected teachers of faculty of Law for their helping nature and valuable suggestions
throughout this research work.

I have taken the benefit of the service of the staff and officials of the library,
Faculty of Law. I am thankful to them for their valuable services and assistance.

I am heartily obliged and thankful to my parents, Mr. Zafar Khan and

Rajiya Bano, specially my uncle Bahadur Khan, Treasury Officer, Govt. of
Rajasthan and Ramjan Khan, Inspector (Warden of Maharaja Ummed
Kayamkhani Hostel, Jodhpur) for providing inspiration, constant support, prayers
and encouragement throughout the research period. I express my whole hearted
regards to them.

Also, I would like to express my special love to my wife Saheen (M.Sc.,

B.Ed.) and my daughter Maheen for being my strength and my charm.

Finally I wish to thank all the people who were directly or indirectly
supported me in completion of my research work.

Date: 29-11-2021
Place: Jodhpur (Anwar Khan)

vii
 PREFACE

Article 44 of the Constitution of India mandates that the state shall

endeavour to secure to the citizens a Uniform Civil Code throughout the
territory of India. The issue of the Uniform Civil Code has been
exhaustively debated in the Constitution assembly and finally the matter
was included in the constitution as a directive principle of state policy
rather than as a fundamental right.

The concept of Uniform Civil Code is confined to having a

'Uniform Family Code' for members of all the communities living in the
country, not merely for the sake of uniformity but also for securing social-
justice to weaker sections in different communities in the sphere of
marriage, divorce, adoption and inheritance. Certain activities like
marriage divorce, adoption, maintenance etc. are mostly governed by
personal religious laws of certain communities. Some of them are gender
biased. They are generally against the women in certain matters and deny
them quality in treatment as against men. There are various obstacles
while drafting Uniform Civil Code, despite various setbacks and
hindrances in the way, the prospects of a uniform interests provided, 'We,
the people of India', all stand together in favour of it.

It is also felt by the judiciary and political parties that Uniform Civil
Code is the need of the hour that will help the cause of national integration
by removing disparate loyalties to laws which have conflicting
ideologies. Therefore, in order to achieve the constitutional goal including
secularism, all out-efforts will have to be made to enact a Uniform Civil
Code by educating the masses.

Anwar Khan

vi
 CONTENTS

SR. NO. TITLE PAGE NO.

CHAPTER-I
1 1-20
INTRODUCTION
CHAPTER-II
CONCEPTUAL ANALYSIS AND
2 21-32
HISTORICAL BACKGROUND OF THE
UNIFORM CIVIL CODE
CHAPTER-III

3 UNIFORM CIVIL CODE IN VARIOUS 33-64

COUNTRIES
CHAPTER-IV

4 CONSTITUTIONAL PROVISION AND 65-86

THE UNIFORM CIVIL CODE
CHAPTER-V
OBJECTION AND CONSTRAINTS ON
5 87-110
THE ENACTMENT OF THE UNIFORM
CIVIL CODE
CHAPTER-VI

6 IMPLEMENTATION OF THE 111-133

UNIFORM CIVIL CODE IN INDIA

CHAPTER CHAPTER-VII

7 SOCIO-LEGAL IMPACT OF THE 134-147

UNIFORM CIVIL CODE
CHAPTER-VIII

8 RIGHT TO RELIGION AND JUDICIAL 148-166

TREND

viii
 CHAPTER-IX

9 JURIMETRICS APPROACH TO THE 167-191

PROBLEM
CHAPTER-X
10 192-213
CONCLUSION AND SUGGESTIONS
 BIBLIOGRAPHY 214-219
 APPENDICES
 Future Model Draft of Uniform Civil Code
 Published /Accepted Papers
 Seminar/Conference Certificates
 Plagiarism Report

ix
 List of Abbreviations

A.D. Anno Domini (After Christ)

Ann. cas Annotated cases
A.I.R. All India Reporter
A.I.R. (J.) All India Reporter (Journal)
B.M.M.A. Bhartiya Muslima Mahila Andolan
C.A.D. Constituent Assembly Debates
CARA Central Adoption Resource Agency
CFR Common Frame of Reference
ETC Et Cetera
E.C.C. European Civil Code
H.C. High Court
I.C.L.Q. International and Comparative law Quarterly
J.W.P. Joint women's programme
L.R.A. Lawyers Reports Annotated
M.L.R. Modern Law Review
M.P.L. Muslim Personal Law
N.P.C. National People's Congress
PECL Principles of European Contract Law
PIL Public Interest Litigation
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.J. Supreme Court Journal
U.S.A United State of America
U.S.S.R. Union of Soviet Socialist Republic
V. Versus

x
 List of Cases
 St. Xavior's college society v. State of Gujarat AIR 1974 SC 1389
 TMA Pai Foundation v. State of Karnataka AIR 2002(8) SCC 481
 Badshah v. Saubhgyati Urmila Badshah Godse AIR 2018
 S.R. Bommai v. Union of India AIR 1994 SCC (1918)
 Sarla Mudgal v. Union of India AIR 1995 SC 1540
 State of Bombay v. Narasu Appa Mali AIR 1952
 Sriniwasa Aiyar v. Saraswathi Ammal AIR 1952 Mad. (193)
 Krishna Singh v. Mathura Ahir AIR 1980 SC (707)
 Baijanath v. Ramanath AIR 1951 HP 32
 Commissioner of Hindu Religions Endowments Madras v. Sri
Lakhsmindra Tristha Swam'sa of Srishirwimut, 1954 (SCR 1065)
 Ram Prasad v. State of UP AIR 1961 All 334
 Dargah Committee Ajmer v. Sayad Hussain Ali AIR 1961 SC 1402
 Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay AIR
1962 SC 853
 S.P. Mittal v. Union of India AIR 1983 SC(1)
 Bijoea Immanual v. State of Kerala AIR 1987 SC 748
 State of Madras v. Champakam Doriarajan AIR 1951 SCC 226
 Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC (739)
 Minerva Mills Ltd. v. Union of India AIR 1980 SC 1784, 1806
 Keshvananda Bharti v. State of Kerala AIR 1973 SCC 225
 Surya Narayan v. Union of India AIR 1982 SC 17
 Nanak Chandra v. Chandra Kishore Aggarwal 1969 3 SCC 802
Seema v. Ashwani Kumar AIR 2006 (2 SCC 578)
 S. Mahendran v. The Secretary, Travancore 1991, Ker 43
 Pranav Kumar Mishra v. Govt. of NCT, Delhi, 2009

xi
 Mohd. Ahmed Khan v. Shah Bano Begum (1985 2 SCC 556)
 Jorden Diengdeh v. S.S. Chopra (1985) 35 SCC 62
 Sarla Mudgal v. Union of India 1995 3 SCC 635
 Maharishi Avadesh v. Union of India (1994)
 Panalal Bansilal v. State of Andhra Pradesh 1996 (2) SCC 498
 Lily Thomas v. Union of India (2000) 6 SCC 224.
 John Valamatton v. Union of India (2003) 6 SCC 611
 Yunus Bhai Usman Bhai Shaikh v. State of Gujarat (2015) 3 GLR
2512
 Prakash v. Phulavati (2015 (II) Scale 643)
 Nikhil Soni v. Union of India AIR 2006 (Raj 7414)
 Ahmadabad Women's Action Group v. Union of India AIR 1997
SC 3614
 Shabnam Hashmi v. Union of India 2014m SCC1
 Shayara Bano v. Union of India AIR 2017, SCC 1
 Swapana Ghosh v. Sadananda Ghosh AIR 1989 Cal. 1
 Ammini E.J. v. Union of India AIR 1995 (Ker 252)
 Pragati Verghese v. Cyrill George Verghey AIR 1997 Bom 349
 S. Mahendra v. The Seceretary, Travancore, 1991
 Rev. Staini laws v. State of M.P.
 Ratilal v. State of Bombay, AIR 1954 SC 388
 Sardar Sarup Singh v. State of Punjab AIR 1959, SC 860
 Davis v. Benson 133 U.S. (1890)
 Commr. H.R.E. v. L.T. Swamiar, AIR 1954 SC 282
 T.S. Govind Lal Ji Maharaj v. State of Rajasthan AIR 1963, SC
1638
 Brahmchari Sidheswar v. State of W.B. AIR 1995 SC. 2089
 Jogdishwaranand v. Commissioner of Police AIR 1984, SC 51

xii
 Azeez v. Union of India, AIR 1968 SC 662
 T.M.A. Pai Foundation v. State of Karnataka AIR 2003, SC 355
 B.K. Deb v. State of Orissa, AIR 1964 SC 1501
 Dargah Committee v. Hussain, AIR 1961, SC 1902
 Govind Lal Ji v. State of Rajasthan, AIR 1963, SC 1638
 Ram Chandra v. State of Orissa, AIR 1959.
 Narendra Prasad Ji v. State of Gujarat, AIR, 1974, SC 2008
 Commr. HRE v. L.T. Swamiar, AIR 1961, SC 282
 Vasudev v. Vamanji, ILR 1881
 Naveen Kohli v. Neetu Kohli 2006 (4) SCC 558
 Ramesh Jangid v. Sunita 2008 (i) HLR 8 (RAJ)
 Mary Roy v. State of Kerela AIR 1986 SC 10
 Begum Sabanu Alias Saira Bano v. A.M. Adbul Gafoor, AIR 1987
SC 1103
 Pannalal Bansilal Pitti v. State of A.P. (1996) SCC 498
 Mathura Ahir Case, AIR 1982 SC 686
 Amar Singh v. Baldev, AIR 1960 Punj 1995 S.C. 1531
 Bhuri v. State of Jammu and Kashmir, AIR 1996 SC 1765
 Naveen Kohli v. Neetu Kohli 2006 (4) SCC 558 Ramesh Jangid v.
Sunita 2008 (i) HLR 8 (RAJ)

xiii
NIL

i
 UNIFORM CIVIL CODE AND NEW CHALLENGES

(A Socio-legal study with reference to India)

ABSTRACT

India is unique country not only in terms of its geographical aspect but also
in terms of its social scenario. It is a land of various religions and different
cultures. Diversity in social life is important aspect of the India society.
The Indian culture emphasizes the spirit of unity in diversity but,
unfortunately, this spirit of cultural unity has not helped to bring political
unity in India. If we look back to the history we find that India as a state
was divided in smaller political entities which ultimately brought foreign
subjugation for a long period of time. In 1947, India achieved
independence but again at the cost of partition of the country. In the light
of the historical experience the goal of unity and integrity of the country
had become the primary consideration for framers of the Indian
constitution.

Religion-cultural pluralism is India's past, present and future, indeed

its heart and soul. No religion is foreign to India, nor is India foreign land
for any religion.1

Religion has been a dominating factor in Indian society. On one hand

religions have brought spiritual upliftment and peace of mind, on the other
hand the religious practices have perpetuated many social evils like
untouchability, sattee, Devadassi etc. The religion and custom based on the
personal laws of different communities have been a major cause for its
discrimination. In the name of religion several ill and illogical but legal
practices are going on in the society. It has not only caused inequalities and

1
Tahir mahmood, law of India on religion and religious affairs (Universal) law publishing co. New
Delhi, 2008)

1
indifferences among the people of different religions, but also has caused
inter-religion inequalities and indifferences because there is such type or
system that each religion different sects and sub sects too have different
rules for them. They all are carried out in the name of religions, custom
and usages.2

After independence 'Secularism' is the most misinterpreted and

twisted concept in this country. People has used and misused this word
rather concept, as per their needs and desires.3 Most of the developed
countries have modified and uniformed their personal law system. Many
of them are Muslim countries. Laws of any country should be changed as
per the changing culture and demand of the society. If it does not happen
so, it cause grave injustice to the different group of people of the society.
Developing law system is one of the basic tools for a positive social
transformation.4

The constitutional goal cannot be achieved unless there are reforms

regarding the laws. The codification of laws are regarded as an important
means of legal reform. In India, the codification in the field of criminal and
commercial laws were done by the British rulers. The British maintained a
policy of non-interference in religious-matters. They did not attempt to
codify personal laws in view of their declared policy of 'Divide & Rule'5

The demand for a uniform civil code was first put forward by women
activists in the beginning of the twentieth century, with the objectives of
women's rights, equality and secularism. Till independence in 1947, a few
law reforms were passed to improve the condition of women, especially

2
D.K. Shrivastava, Religious freedom in India, P. 255 (1982)
3
Tahir mahmood, uniform civil code : Fictions and facts, p. 21 (1995)
4
Ibid
5
Sorabjee soli, Should Secular law be a personal choice? Express magazine, 29th June 1986

2
Hindu-widows. In 1956, the Indian parliament passed Hindu code bill
amidst significant opposition.6

In this respect, the concept of uniform civil code takes it roots in

Article of uniform civil code takes it roots in Article 44 of the Indian
constitution which lays down as under-

"The state shall endeavour to secure for the citizen a uniform civil
code throughout the territory of India."

The expression 'Uniform civil code' consist of three terms- 'Uniform'

'Civil' and 'Code.' The word 'uniform' refers to the form of a thing. The
constitution of India in its Article 44 uses the expression 'uniform' instead
of 'common' but generally these two terms have been used as synonymous
in the discussion relating to said provisions.7

In India, the expression 'civil code' is used in a very specific-sense,

meaning there by a code of law regulating civil matters which includes
marriage, divorce, inheritance and those other subjects which are at present
governed by different personal laws and the expression 'uniform civil code'
has a reference to enact a uniform family law intended to replace the
different personal laws governing Hindus, Muslims, Christians, Parsis and
Jews in matrimonial and other related matters.

Thus the concept of uniform civil code is confined to having a

'uniform family code' for members of all communities living in the country,
not merely for the sake of uniformity but also for securing social justice for
weaker section in different communities in the sphere of marriage, divorce,
custody, adoption and inheritance.8

6
V. Dhagamwas-Towards uniform civil code, 1989, at p. 63.
7
Encyclopedia Americana, vol. 6 (1960) 734.
8
Choudhari Hyder Hussain- "A unified code for India" A.I.R. (journal) 68, 71-72

3
 A uniform civil code has become relevant in today's context for
achieving the following goals-

A. National consolidation and integration

B. Safeguard against political domination
C. Linkage of Justice and equality
D. Clarity, simplicity and intelligibility of the personal laws
E. Removal of gender -bias
F. Improvement in women's position.

The historical background of the uniform civil code is closely linked

with the history of personal laws. In ancient and medieval period all
branches of law namely civil, criminal and commercial were based on
religion and custom. This religion and custom oriented legal system was
complicated and unprogressively. The British rulers attempted to bring a
systematic and progressive legal-system in India. British rulers gradually
codified and brought secular, criminal and procedural legislation. As
regards to the personal law they refrained to enact a comprehensive and
secular civil code.9

Generally all countries have uniform civil code or for that matter
uniform law- civil or criminal. The European nations and United States
have a secular law that applies equally and uniformly to all citizens
irrespective of their religion. The Islamic countries have a uniform law
based on shariah which applies to all individuals irrespective of their
religion.10

Goa is the only state in India that has uniform civil code regardless
of religion, gender, caste. Goa has a common family law. Thus Goa is the
only Indian state that has a uniform civil code. In Goa all religions are

9
Iyer krishna, - One country, one nationality and one legal system, express magazine 29th june 1986
10
Khodie Narmada, Reading in uniform civil code, Tacker company limited Bombay, 1975

4
bound with the same law related to marriage divorce, succession. The
registration of marriage is made compulsory under the Goan code so that
the disputes which may arise can be resolved by the law. Consent or of men
and women is required before the marriage. The Goan code allows for a
prenuptial agreement which can alter the ratio of the distribution of
assets.11

There are several provision in the Indian constitution which are

directly or indirectly relating to the uniform civil code.

A. Uniform civil code and fundamental rights

B. Uniform civil code as a directive principal of state policy.
C. Fundamental duties and uniform civil code.

Part IVth, Article 44 of the constitution states that "The state shall
endeavour to secure the citizen a uniform civil code throughout the territory
of India"

Justice Chandrachud said - "The Indian constitution is founded on

bedrock of the balance between part III and IVth of the constitution. To give
absolute primary to one over the other is to disturb the harmony of the
constitution. This harmony and balance between fundamental rights and
Directive principles of state policy is an essential feature of the basic
structure of the Indian constitution.12

In this connection one of the most important question is that how to

implement the Article 44 without affecting the fundamental Rights of the
citizen. In this connection prof. Thair Mahmood is of the opinion that
legislative enactment of an all India uniform civil code straight way is no
envisaged by the constitution even at the central or state level. Article 44

11
https://the companion. in/goas-experiences of - uccshow-things-not-go-well
12
Minerva mills ltd v. union of India AIR 1980 SCC 591

5
of the constitution wants the government and the legislature to make
possible endeavours which may in the long-run secure uniformity in the
making and application of civil laws13

The debate over the uniform civil code in the constituent's assembly
was among the most heated.

In the constituent assembly, there was division on the issue of

putting the uniform civil code in the fundamental rights chapter. The matter
was settled by a vote. By a majority of 5:4, the fundamental right. Sub-
committee headed by Sardar Vallabhbhai Patel held that the provision was
outside the scope of fundamental rights and therefore the uniform civil
code was made less important than freedom of religion.14

The position in the assembly were divided into two camps.

On one side were members who wished to use the legal power and status
of the constitution to modify religious customs and advance secularisation
and legal uniformity among all religious groups. 'K.M Munshi' one of the
member, called for the restriction of religion to the private sphere and the
promotion of unity and societal integration based on civil national identity.

On the other end were those who believed that a constitution should
reflect the spirit of the nation as it currently was and should not impose
deep social and cultural changes.

Dr. B.R. Ambedkar although did not accept the amendments and
defended the right of the state to interfere in the personal-laws of different
communities. He defended the arguments of supported members of the
constituent Assembly. But the same time he also gave some assurances to

13
Chaudhari Hyder Hussein- "A unified code for India" AIR (Journal- P. 71-72)
14
Desai C.C. 'Need for a uniform civil code for India' Journal of constitutional and parliamentary
studies, vol. 3 1969

6
the apposed members of the uniform civil code and he explained that the
proposal was creating only a 'power' not an 'obligation'

Thus the uniform civil code doesn't mean that there should be a
Hindu code which is made uniform. The most liberal elements of a personal
laws, whether it is Hindu law, Muslim law, Christian law and so on, should
be taken together to provide a uniform civil code. That should apply to the
entire country and will be acceptable to all communities.

The objection, difficulties and constraints relating to the uniform

civil code are as old as the idea of the uniform civil code itself, since the
idea involves the codification of personal laws and such laws often mingle
with religion and culture. There are various objection relating to the
uniform civil code-

A. Uniform civil code is against the freedom of religion.

B. Uniform civil code is against the cultural right.
C. The religious laws are immutable
D. Enhancement in the power of the state
E. There should not be no hurry to enact a uniform civil code.

A part from these objections there are certain more practical problems for
enacting uniform civil law in India.

A. Lack of information
B. No Build-up of public-opinion
C. No Draft-Bill

Dr. B.R. Ambedkar wanted to introduce an uniform civil code in India,

during constitutional debates by getting inspired by the western- world
where such uniform civil code already in societies, with the object of

7
bringing uniformity and unity in society.15 But due to vast varities of
culture and religion of India, the idea of uniform civil code was strongly
opposed by the other members of the constituent Assembly, debating that
implementation of uniform civil code will infringe the manage religious
affair given under Art 25 and 26 of the constitution respectively. Thus the
uniform civil code was left to be implemented by govt. in the future and
was added under part IVth of the constitution as one of the directive
principle of state-policy.

It is clear that there is distrust among the religious minority groups

relating to implementation of uniform civil code, as according to them it
will infringe there right to practice religion as a uniform civil code might
became bias towards the laws of community having major population.16

There can be a solution in implementation of uniform civil code, if

it is enacted as a 'Grundnorm' in which instead of replacing all the
customary laws, a set of guidelines should be made to abolish or replace
only those laws or customary practices which degrades the status of women
and does not provide equality status in society as compare to man. This
type of uniform civil code will be acceptable by all as it will not replace all
the customary laws or the major part of it. As it will also preserve the
diversity of Indian culture and religion, which rarely seen in western world
where the uniform civil code is already in practice.

In 1985, for the first time in Indian history, the Supreme Court in
Mohammad Ahmed Khan V. Shah Bano Begum17 directed the parliament
to enact a uniform civil code. The court said that it is matter of regret that
Article 44 of constitution has remained a dead letter. A common civil code

15
R.C.S. Sarkar, Uniform Civil Code, journal of constitutional & parliamentary studies, 1969, vol. 3,
83 at p. 87
16
https://www.outlookindia.com/website/story//and-the-uniform-civil-code/221068
17
Modh Ahmed Khan V. Shah Bano Begum (1985) 2 SCC 556.

8
will help the cause of national integration by removing disparate loyalties
to laws which have conflicting ideologies.

In past few years the courts through judicial activism have made
efforts to get rid of gender discriminatory practice which are in disguise of
religious practices. More recently on 23rd September 2015, the Gujarat
High-Court in Yunus Bhai Usman Bhai Shaikh V. State of Gujarat18
ordered to stop Muslim polygamy which it termed as "heinously
patriarchal." After one month in October, the supreme-court in Prakash V.
phulavati19 ordered an examination of practices like polygamy and triple
talaq in Muslim personal law and declared them injurious to public morals.
The supreme-court's latest reminder for implementation of uniform civil
code came on 12th October 2015. The court observed that there is 'total
confusion' due to personal laws governing different religious-practices and
asked the centre whiter it was willing to implement uniform civil code in
the country.20

Once the uniform civil code is formulated across the nation, nation
will undergo another social reforms in this country. For instance, in Indian
context, Muslim women are denied with personal laws in relation to
marriage, divorce etc. On contrary, various Muslim nations like Pakistan,
Bangladesh, Turkey, morocco etc. women enjoyed codified personal laws.
So after the implementation of uniform civil code Indian women will also
enjoy a codified personal law. Therefore, there will be a stepping stone
towards another social reforms across the country. It will enhance the status
of women and so called lower castes as many personal laws are biased
against them.

18
AIR 2015 (3 GLR 2512)
19
AIR 2015 (II) SCALE 643
20
Utkarsh Anand,- 'Uniform civil code' - The Indian express (New Delhi, 13 October 2011)

9
 Article 25 to 28 of Indian constitution guarantee freedom of religion
and uniform civil code is not opposed to secularism. There are signs that
the nation is moving away from caste and religion considerations.

The constitution of India does not define religion, but it has been
established that religion is not necessarily theistic, and there are well
known religions in India like Buddhism and Jainism which do not believe
in God. The freedom of religions conferred by Article 25 is not confined
to citizens of India but extents to all persons including aliens.21

Art 25 (1) of the constitution guarantees to every person the freedom

of conscience and the right to profess, practice and propagate religion. The
right guaranteed under Article 25 (1) is not absolute. This right is subject
to public-order, morality and health and to the other provision of part III of
the constitution.

In a democratic country the judiciary plays an important role as

dispute mechanism. It has a very wide powers to expound the provisions
of the constitution and to bring in to practice the basic philosophy
underlying the provision. The constitution of India guarantees to all person
equality, freedom of conscience and religion. The state is under
constitutional obligation to make earnest effort towards the establishment
of one civil code for all persons. Although the courts have sought to effect
uniformity in personal laws, but the wave to codify has been firmly upset
by parliament because of political generation. However the courts
consistently emphasized the need of the uniform civil code. The uniform
civil code is required not only to ensure uniformities of laws within
communities ensuring equality between rights of men and women.22

21
Ratilal V. State of Bombay, AIR 1954 SC 358
22
F. Agnel. "Hindu men monogamy and UCC XXX(50). Economic and Political weekly 32 (1995) B.
Kurat, "Uniformity V. Equality" Frontline 17 Nov. 1995.

10
 The judiciary through its various judgements time and again has
always upheld gender in cases pertaining to the uniform civil code. In the
case of Mohammad Ahmed Khan V. Shah Bano Beguam23 popularly
known as shah bano case, the supreme-court held that 'it is also matter of
regret that Article 44 of constitution has remained a dead letter.'

In saral mudgal v. union of India24 the Supreme Court requested the

govt. of India to have a fresh look at Article 44 of the constitution of India
and endeavour to secure for its citizen a uniform civil code throughout the
territory of India.

The Apex court in Lily Thomas V. union of India25 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 the society,
statesmen amongst the leaders who instead of gaining personal mileage rise
above and awaken the masses to accept the change for the betterment of
nation at large. Subsequently in Pannalal Bansilal pitti v. state of Andhra
Pradesh26 the Supreme Court observed that a gradual process in this regard
can bring about that uniformity. The court observed that' A uniform law is
though desirable but its enactment in one go perhaps may be counter-
productive to unity and integrity of the nation'

A survey of the judicial approach towards unification of civil code

make it clear that the court is very much interested in resolving the social
and economic tension in the society so that the state may create a social
order in which political, economic and social justice shall inform all the
institution of natural life. In fact the judgements of the many cases towards
making of uniform civil code make it clear that they are very much

23
AIR 1985 2 SCC 556
24
AIR 1995 SC 1531
25
AIR 2000 SC 1560
26
AIR 1996 SC 1023

11
concerned that fragmentage matrimonial laws should be intended into
uniform law.

The unification of civil code may raise a heat and fear among
political elites of India, but the judiciary has made it clear that the
community as a whole must be prepared to accept it as a measure of social
reform. The courts have always been of the opinion that Article 44 of
Indian constitution is very important in mitigating social-tension and it has
been insisting upon the introduction of uniform civil code. The court is also
of the opinion that institution of polygamy is not based on any necessity.
Thus the court is ready to do what the govt. of the day is unwilling to do.
A visit of judicial response to this problem makes it very clear that uniform
civil code should be made a reality of our constitutional frame-work. In its
many judgements, the court has said that every fundamental right has to be
interpreted in the light of Directive principles of state policy, which are not
enforceable, nevertheless which are fundamental in the governance of the
country. The Indian judiciary has favoured the idea of uniform civil code
and has been doing a great deal to mould the different matrimonial laws in
to one in the light of post-constitutional developments. The supportive and
suggestive attitude of judiciary towards achieving the goals of uniform
civil code to state must be followed by the state of fulfil the dreams of the
constitution makers constrained under Article 44 of the Indian
constitution.27

The uniform civil code may be a strong tool in curbing the virus of
communalism in country. It has become relevant in today's context of
country for achieving the goals of national integration, improvement in
women's position, achievement of gender-based justice and achievement
of secularism.

27
Dr. S.S. Singh-'unification of divorce laws in India deep & deep publication, New Delhi 1993

12
 The uniform civil code should carve a balance between protection
of fundamental rights and religious dogmas of individuals. It should be a
code. Which is just and proper according to a man of ordinary prudence,
without any bias with regards to religious or political considerations.

Here is an overview of the essentials of the uniform civil code in the

reference of personal laws.

Marriage and Divorce:- The personal laws of each religion contain

different essentials of a valid marriage. The new code should have the basic
essentials of valid-marriage which shall include-

i) The new code should impose monogamy banning multiple

marriages under any religion. Polygamy discriminates against the
women and violates their basic human rights. Thus, monogamy
should be imposed, not because it is the Hindu law, but because it
adheres to Article 21 of the constitution of India and basic human
values.
ii) The minimum age limit for a male should be 21 years and for female
should be 18 years. This would help in curbing child-marriages.
Punishment should be minimum 05 years for any person violating
this provision. Also, punishment for other person, involved in such
an act, like the relatives, should be minimum 03 years which would
have a deterrent effect on the society.
iii) Registration of marriage should be made compulsory. A valid
marriage will be said to have solemnised when the man and the
women sign their declaration of eligibility before a registrar. This
will do away with all the confusion regarding the validity of the
marriage.
iv) The grounds and procedure for divorce should be specifically laid-
down. The grounds enumerated in the code should be reasonable and

13
 the procedure prescribed should be according to the principles of
natural-justice.

Succession and Inheritance:- This area throws-up even more intractable

problems. In Hindu law, there is a distraction between a joint family
property and self-acquired property which is not so under the Muslim law.
The Hindu undivided family, formed under the Hindu law, run businesses
and own agriculture lands. Under the uniform civil code, this institution of
Hindu undivided family, peculiar to the Hindus, has to be abolished. There
are also fetters imposed on the extent to which one can bequeath property
by will under the Muslim law considering all these, the uniform civil code
should include:-

i) Equal share to son and daughter from the property of the father,
whether self-acquired or joint family property. There should be no
discrimination based on sex in the matters of inheritance.
ii) Provisions for inheritance of the property of mother, which she has
self-acquired or acquired through her father or relatives.
iii) The provisions relating to will should be in consonance with the
principles of equity. There should be no limitations imposed on the
extent to which the property can be bequeathed, the persons to whom
such property can be bequeath and the donation of the property by
will for religious and charitable purpose.
iv) The essentials of valid will, the procedure for registration and
execution of the will should be provided for.
v) Provision of gifts should not contain any limitations, though
essentials of valid gift and gift deed should be specified.

Maintenance:- The maintenance laws for the Hindus and Muslims are
very different. Apart from personal laws, a non-Muslim women can claim
maintenance under section 125 of code of criminal procedure, 1973. A

14
Muslim women can claim maintenance under the Muslim women (Right
to protection on Divorce) Act, 1986. Apart from maintenance of wife, there
are also provisions of maintenance of mother, father, son and unmarried
daughter under Hindu law. The uniform civil code should contain the
following with regards to maintenance:-

i) A husband should maintain the wife during the marriage and also
after they have divorced till the wife remarriages.
ii) The amount of alimony should be decided on basis of the income of
the husband, the states and the lifestyle of the wife.
iii) The son and daughter should be equally responsible to maintain the
parents. The reason for this being that if she claims

Equal share of the property of her parents, she should share the duty to
maintain her parents equally.

There are certain suggestion by the researcher for the purpose of the
printability of the uniform civil code in India.

A. The media including electronic and print-media should be persuaded

to play its national-role in the building of a healthy and balance
society and it must be reminded of its educative role to mould the
public-opinion especially of the minorities in favour of the
enactment of uniform civil code.
B. Article 44 may lack enforceability but, Article 15 clause (3) is not
like it. It is mandatory. The parliament will be fully justified to make
a special provision for women in field of personal laws and that will
be a good beginning of the process of the implementation of uniform
civil code.

15
C. Inter-caste, inter-religious, inter-citizen marriages, should be
encouraged and developed for consensus of the realisation of the
constitutional mandate.
D. No attempt should be made to hurt the religious feelings of any
community in the name of introduction of uniform civil code. If
possible, certain amendments should be made in the provisions of
'right to freedom' to remove dichotomy between uniform civil code
and the 'freedom of religion.'
E. Proper education like "we are Indian first, then the people belonging
to any particular caste or community" and "we, the people of India"
is essential for the uniform civil code. All-out efforts should be made
to facilitate the adoption of the uniform civil code through education.
F. The progressive-minded people amongst the various communities
will have to launch a campaign for making reforms in all the
personal laws. The reformative measures may ultimately yield to the
formation of the uniform civil code.
G. For codification of personal laws it is necessary to reduce the
distance between the laws of separate communities as well as laws
of sects within community.
H. It is high time, that the law commission must undertake a
comparative study of the persona laws of different communities in
India. A scientific classification must be made of the similarities and
dissimilarities in the various personal laws. In the first stage there
should be a uniform civil code on those subjects on which there is
very little controversy.
I. The criminal law provisions, which are secular in nature, should be
effectively enforced to arrest the dangerous anti-national trends in
the minority demands.

16
 In the light of the above suggestions, it is submitted that, enactment of
uniform civil code is necessary to achieve the constitutional objectives of
justice, liberty, equality, fraternity and above all unity and integrity of the
Indian nation.

Mode Draft for Uniform Civil Code:- After analysing the different
personal laws and also some secular laws, it can be concluded that, there
are such provisions under different personal laws and some secular laws,
which are adequate to constitute a uniform civil code. Hence such
provisions are chosen from different statutes and also some provisions with
some modifications and object of uniform civil code. And the suggested
model draft for uniform civil code is made from the best existing provisions
under different statues. The researcher suggested following model draft
code for uniform civil code which can be applied to all the citizens of India,
irrespective of their religion, caste, sub-caste and creed.

17
 CHAPTER-I
INTRODUCTION

A. Introduction:-

"Reject wealth/money and also desires which are contrary to

Dharma. Reject also such rules of Dharma, obedience to which leads to
unhappiness to some or bring about public resentment."

-Chapter IVth 176, Manusmriti

"We have just enough religion to make as hate but not enough to
make us love one another."
-Jonathan Swift

"Religion is not in doctrines, in dogma's, nor in intellectual

argumentation, it is being and becoming it is realisation."

-Swami Vivekand.

Let us forget- "I" am a Hindu, you are a Muslim". Let us think- "I"
and "mine" in a common Indian Nationality.

&

"I do not expect India of my dreams to develop one religion, i.e. to

be wholly Christian or wholly Muslims, but I want it to be wholly
tolerant, with its religious working side-by-side with one another."

-Mahatma Gandhi

"Wisdom alone can take your firm hand towards a common civil
code, a more progressive civil code so that we can achieve more
brotherhood, more intimacy."

-Justice Krishna Iyer

1
 "India is a unique country not only in terms of its geographical
aspect but also in terms of its social scenario. It is a land of various
religious and different cultures. Diversity in social life is important aspect
of the Indian society. The Indian Culture emphasizes the spirit of unity in
diversity but unfortunately, this spirit of cultural unity has not helped to
bring Political unity in India. If we look back to the history it is found that
India as a State was divided in smaller political entities which ultimately
brought foreign subjugation for a long period of time. In 1947, India
achieved independence but again at the cost of partition of the country. In
the light of the historical experience the goal of unity and integrity of the
country had become the primary consideration for framers of the Indian
constitution".1

Religio-cultural pluralism is India's past, present and future; indeed

its heart of soil. No religion is foreign to India, nor is India a foreign land
for any religion. India's great religious figures Rama and Krishna,
Buddha and Mahavira were very well- known to the human-world. When
the two global religions of today, Christianity and Islam, appeared on the
world scene one after the other, neither of them denied India's spirituality,
both treated India as their own land and India too hailed them with open
arms.2

Throughout its history, India has observed the principle of equality

of all religions and of their followers. Even when hereditary rules
belonged to a dynasty professing a particular religion Hindu, Christian,
Parsis or Muslim they did not impose their religion on others, and
allowed the followers of all religions to freely profess and practice their
own respective faith. There might have been some aberrations few and far

1
Dr. Ranjan Kumar- 'The need for a uniform civil code- 2017 at p. 16-17
2
Tahir Mahmood, Law of India and religion and religious Affairs & Coniversal law publishing co. New
Delhi, 2008

2
between, but the generally this tradition always prevailed. This age old
tradition was inherited by the country from its past at the time of the
advent of independence and of enforcement of a constitution over two
years later3

India is the home state of largest number of Hindus, and of the

second largest number of Muslims, in the entire world. Being home also
to millions of Buddhists and Christians, this country indeed qualities to
be called the only abode of all the four world religions together, among
the citizens of India there are sizable number of followers also of several
other religions including of followers also of several other religions. In
the pluralistic and multi-religious society of India, religious tolerance and
religious values have always had, and continue to have, a strong
influence.4

India is second most populous country of the world. The people

inhabiting this vast land profess different religions and speak different
languages. Despite the diversity of religion and language, there runs
through the fabric of the nation the golden thread of a basic innate unity.
It is mosaic of different religions, languages and cultures. Each of them
has made mark on the Indian polity and represents a synthesis of them
all.5

On 26th November, 1949, we the people of India through our

constituent Assembly solemnly resolved to secure to all its citizen,
'Justice' 'Liberty', 'Equality' and 'Fraternity.' In order to achieve these
goals, the concept of Fundamental Rights and Directive principles of state
policy were put in the chapter III and IV of Indian constitution. Chapter
III of the constitution were given immediate importance, for which one

3
Ibid
4
Ibid
5
St. Xavior's college society v. State of Gujarat AIR 1974 SC 1389.

3
could approach the courts and the ideas which were seemed difficult to
achieve straight away were put in the chapter IV and stated as Directive
Principles of State policy as the future object for the Indian State.6

These principles were declared to be the fundamental in the

governance of our country. The literal interpretation of Article 37 makes
it very clear that law-making organ of the Constitution must apply these
principles in making laws, and if political considerations dictate them to
work otherwise it will be illegal and unconstitutional on their part.7

Religion has been a dominating factor in Indian society. On one

hand religions have brought spiritual upliftment and peace of mind, on
the other hand the religious practices have perpetuated many social evils
like untouchability, suttee, Devadasi, triple talaq, halala etc. The religion
and custom based on the personal laws of different communities have
been a major cause for this discrimination. In the name of religion,
several ill and illogical but legal practices are going on in the society. It
has not only caused inequalities and indifferences among the people of
different religions, but also has caused inter-religion inequalities and
indifferences, because there is such type of system that each religion,
different sects and sub-sects, too have different rules for them. They all
are carried out in the name of religions, customs and usages.8

Due to different personal law, gender injustice has also accrued in

different areas of personal laws. Property rights, divorce grounds,
adoption issues, maintenance etc. are the major areas where such injustice
can be seen easily.

6
M.P. Jain- Constitution of India, 2006, at-112-113
7
Ibid
8
D.K. Shrivastava, Religious freedom in India, P. 225 (1982)

4
 The main reason behind such scenario is that, people are not
governed exactly by law, but they are dominated by certain selfish and
self-centred people, who do not want their people to go out of their reach.
Vote bank politics has given rise to this. The main argument from the
people of different religions is that, their personal laws are of divine
origin, hence they cannot be changed. If it is truth, then at least for the
people who are professing one religion i.e. Hinduism, Muslims,
Christians or parsis etc. the law should be one but it is not so. A Hindu
from east has different set of personal law, then a Hindu from south. A
Christian of Travancore has a different set of property law than of
Tirrunvely. Muslims of Sunni sect has different set of inheritance rules
than of Shia. If "God" is one, or "Allah" is one, haw can his children
differ from each-other.9

After Independence, "Secularism" is the most misinterpreted and

twisted concept in this country. People has used and misused this word
rather concept, as per their needs and desires. In fact the politics of
"Secularism" has changed and badly moulded its true meaning. Whatever
bad practices and ill-provisions of personal laws still have in existence,
only because of misinterpretation of this term of the constitution.10

While introducing the Hindu code bill, in 1954 Pt. Jawaharlal

Nehru, the then prime minister said, "I do not think that at the present
moment the time is ripe in India for me to try to push it through."11

In present age, when the whole world is going through drastic

changes, and the social values and stages are changing very fast
rethinking regarding Indian personal law system has become unavoidable
and necessity of the time. No system of any kind, can claim to be suitable

9
Ibid
10
Tahir Mehmood,- Uniform Civil Code : Fictions and facts, p. 21 (1995)
11
Parliamentary Debate - 1954.

5
for ever. From the time of framing of the constitution, society needed it
badly and Rulers of this country wanted to do so, but due to one or other
reason they avoided or were tempted to avoid it. Such situation led this
country with an illogical and unjustifiable personal law system.

Most of the developed countries have modified and uniformed their

personal law system many of them are Muslim countries. Laws of any
country should be changed as per the changing culture and demand of
society. If it does not happen so, it cause grave injustice to the different
group of people of the society. Developing law system is one of the basic
tools for a positive social transformation, if there is absence of such
changing system, society has to suffer problems. In India, even after 70
years of enforcement of the constitutions, weaker section like women and
children and tribals are bound to suffer grave injustice.12

The Founding fathers, adopted a unique federal system having a

strong centre. The founding fathers again saw a uniform civil code as an
important mean to achieve national integration. The progressive as well
as women's movement has seen the Uniform Civil Code as an important
means to achieve secular, progressive and non-discriminatory personal
laws in India.13 The feminist thinkers have always seen the personal laws
as an important source for women's exploitation; that is why feminists in
India have highlighted the need of a Uniform Civil Code to achieve
gender justice. The objectives of the preamble of the constitution are
both, non-discriminatory in matters of religion and have been
instrumental in the removal and suppression of the social evils which
have been the Hall-marks of our society. The aim of our nation become to
deal with the individual as a citizen irrespective of his religion and Article
44 of the constitution runs in this direction.
12
Gajendra Godkar, Secularism and the constitution of India p. 126 (1971)
13
Archana Parashar, - Women and family law Reform in India pp. 17-18 (1992)

6
 India has never been considered either a theocratic or an anti-
religion state. The Indian Constitution guarantees freedom of religion, yet
it reserves the right the state not only to regulate this freedom but also to
bring social-reform. The constitution of India tries to make a balance
between religious freedom and the concept of secularism. The insertion
of the word "Secular"14considered as basic features of the constitution
and have highlighted the cumulative effect of the constitution. The nature
of Indian secularism is neither anti-religion nor does it create a wall of
separation between the state and religion. It is based on the concept of
"Sarva-Dharma-Sambhava" i.e. equal respect of all religion.

However it has not been able to achieve the constitutional goal of

fraternity among "We the people of India." Secularism has not been able
to withdraw secular matters from the regime of religion and bring them
within the domain of law even in those matters which have direct bearing
on the fundamental rights of the citizens. In free India, though the state
did not take some important steps to regulate secular practices associated
with the Hindu religion and brought significant changes in the Hindu
personal law but it failed to do so in respect of other religious
communities. The state has not been able to enact a secular civil code
which might have helped to bring a secular ethos in the Indian society.15

Article 44 of Constitution imposes a positive duty on the state to

free many aspects of our life from the control of dogmas and evils of
religious practices, this may be done without interfering in the right to
conscience and religion. The main argument from the people of different
religions is that, their Personal laws are of divine origin, hence they
cannot be changed. If it is truth, then at least for the people who are
professing one religion, i.e. Hinduism, Muslims, Christians or parsis etc.
14
Added by 42nd Amendment 1976
15
"The codification of personal law in India- Hindu law" - Derret (1957) p. 183

7
the law should be one but it is not so. It is also necessary that religious
sentiments must be honoured, but it has to be remembered that our
founding fathers were not ready to accept what the many religions had to
say about religious matters. The supreme court stated that16a citizen of
India stands in a similar position the constitution recognises the
differences among the people of India; but it gives equal importance to
each of them, their differences notwithstanding, for only then there can be
a unified secular nation. Recognising the need for the preservation and
retention of different pieces that go into the making of a whole nation,
The Constitution.

The enactment of uniform civil code is bound to change the social

conditions of men in society and will ensure the effect of law on men.
The government of India has done the right thing by introducing the
changes in the Hindu succession Act,17 in which the woman is entitled to
an equal share as the male in her father's property rights. This will no
doubt empower the women to have their just property rights. This will
also arouse the awareness among the women folk.

The question of uniform civil code became topic of discussion in

1970 when attempts were made to introduce an Indian Adoption Bill on
secular lines. Uniform Civil Code is regarded as an important means to
achieve constitutional objectives but at the same time there has been
some genuine and practical problems for its adoption. There has been
apprehension, confusion, fear and distrust within the community and
between the communities. With the passing of each year the problem to
enact a uniform civil code is becoming more difficult in comparison to
the 1950. Now the Indian Society is less prepared to sacrifice their vested
interests which is a necessary condition for adoption of a uniform civil
16
TMA Pai Foundation v/s State of Karnataka AIR 2002 (8) SCC 481
17
Enforced 17 June 1956

8
code. In order to remove the fear and distrust relating the Uniform Civil
Code there is a great need to educate the people. The right thinking
people in general and academics in particular have a constitutional duty
to educate the public opinion for adopting a uniform civil code.18

It has to be under lined that Personal laws of all communities must

be tested on the touch stone of the constitutionality. The affidavit filed by
central government in the Supreme-court, seems to be influenced by the
tenets of the constitutionalism. The affidavits tells the supreme-court that,
"The issue of validity of triple talaq, nikha halala and polygamy needs to
be considered in the light of principle of gender justice and the overriding
principle of non-discrimination, dignity and equality"19

The Constitutional goal cannot be achieved unless there are

reforms regarding the laws. The Codification of laws is regarded as an
important means of legal reform. In India, the Codification in the field of
criminal and commercial laws were done by the British Rulers. The
British maintained a policy of non-interference in religious matters. They
did not attempt to codify personal laws in view of their declared policy of
"Divide and Rule"20

In free India, the successive governments have also adopted the

same approach. The Indian rules also followed a policy of non-
interference in religious-matters. There was no legislative attempt to
secularise the personal laws.

The judgment of Allahabad and Kerala High Court delivered in the

month of December 2016, invalidating triple talaq, are in tune with the
above dicta of the Supreme Court "Dismissing the petition of a 23 year

18
Tahir Mahmood, 'Unform Civil Code, Fictions and facts p. 143 (1995)
19
'The Hindu' News paper published on dated 28 oct, 2016, p. 10.
20
Sorabjee soli, should secular law be a personal choice? Express magazine, 29th June, 1986.

9
old woman, and her husband who was 30 old and her senior had married
her after effecting triple talaq to his wife"21

The Allahabad high-court observed through Justice Sumeet Kumar

that triple talaq is a demonic against spirit of Holy Quran. The court
added that it is Constitution of India that is Supreme and not the Muslim
Law Board. The High-Court bench said that triple-talaq violated human-
rights and personal law of any community cannot be above the
constitution.

The Kerala High Court has also stated that equality before law has
been denied to Muslim women in India in the matter of triple-talaq, the
state is committed to respect the promise of dignity before law and it
cannot avoid its responsibility by remaining mute spectator of melody
suffered by Muslim women in the name of religion.

The Court added that the Quran nowhere approves triple talaq in
one utterance and on the other hand promotes conciliation as best method
to resolve marital discord. Even Islamic countries like Egypt, Iraq and
UAE have totally derecognised the concept of triple-talaq. State must
endeavour to achieve meaningful action to keep balance towards national
oneness in character of society.22

These judgments will encourage those who are in favour of

enacting uniform civil code. Uniform Civil Code will create a healthy
atmosphere in which an Indian national identity may be constructed,
doing away separate identities of caste, religion and ethnicity.23

In this respect the concept of uniform civil code takes its roots in
Article 44 of the Indian-constitution which lays down as under:-
21
Badshah V. Saubhagyati Urmila Badhash Godse AIR 2018.
22
V. Dhagamwas, Towards Uniform Civil Code, 1989, at p. 63.
23
Robert Baird- A writer- " Uniform Civil Code and the secularization of Laws, Essays in the History
of Religion, (New York, Peter Long) 1991, p. 172.

10
 "The state shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India."24

The demand for a Uniform Civil Code was first put forward by
women activists in the beginning of the twentieth century, with the
objectives of women's rights, equality and secularism. Till independence
in 1947, a few law reforms were passed to improve the condition of
women, especially Hindu widows. In 1956, the Indian parliament passed
Hindu code Bill amid massive protests. Though a demand for a uniform
civil code was made by prime-minister Jawaharlal Nehru, his supporters
and women activists.25

There are number of cases where the Supreme Court has referred to
Article 44 and the concept of uniform civil code, mainly to highlight the
lack lustre attitude of the executive and the legislature in the
implementation of the directive.

Article 44 of the constitution calls upon the state to endeavour

towards securing a Uniform Civil Code throughout the territory of India.
It falls within part IV of the constitution titled as directive principles of
state policy and understood as exhortations to the state to be kept in mind
while governing the country. Article 44 laid down in part IV of the
constitution, though it plays an important role in part III that is
Fundamental Right, for providing meaningful justice to the people of
India.

In multicultural states, minorities are always in fear of the loss of

identity. Many minorities are naturally concerned that the application of a
uniform civil code would take on a Hindu appearance, or at least would

24
The Indian Constitution, with selective comments by P.M. Bakshi, universal law publishing co. pvt.
ltd, Delhi (1999) at p. 72.
25
Sorabjee Soli, Should secular law be a personal choice? Express magazine, 29th June, 1986.

11
not give them an adequate role to express their culture. There are several
models of state's attitudes towards multiculturalism, Indian constitution
seems to point towards a neutral model.26

The Constitution of India attempted to rectify these ills, by creating

a secular state with a uniform civil code, while at the same time
permitting freedom of religion. With the central importance religion has
in the life of all the citizens of India, the purpose of the constitution was
not to reflect the current state of India but to better shape the society, and
bring about social reform27

A uniform civil code is the indication of modern progressive

nation. It is an indication that the nation has moved away from the caste
and religious politics. While our economic growth has been the highest in
the world our social growth has not happened at all. In fact it might be
fair to say that socially and culturally we have degraded to a point where
we are neither modern nor traditional. The demand of change in personal
laws is important as it would affect directly on the status of woman in
family wide in the sphere of divorce, marriage maintenance, succession,
inheritance, guardianship and adoption. It is the need of hour to grasps the
utility of uniform civil code which is an effective tool to harmonise the
diversities of laws in personal matters which will ultimately achieve the
objective enclosed in gender justice.28

Article 44 of the constitution includes all citizens throughout the

territory of India. The constitution confers citizenship not on the basis of

26
Shimon Shetreet and Hiram E. Chodosh, uniform civil code for India: Proposed Blue print for
scholarly Discourse 27 (oxford university press, New Delhi, 1st edn, 2015)
27
Ibid
28
Article on "Uniform Civil Code towards gender justice" published in "The Hindu" dated 07 August
2006, p. 04

12
caste or religion, but on the basis of domicile, birth and choice of person
concerned.29

The territory of India comprises of the territories of the states, the

Union territories and such other territories as may be acquired30

In other words, no part of the country is excluded from the

expression "territory of India" in Article 44 through the application of the
laws made by parliament may be regulated in terms of the temporary,
transitional and special provisions of part XXI of the constitution.

The process of secularisation is closely linked with the goal of

Uniform Civil Code, a cause and effect. In the case of S.R. Bommai v/s
union of India.31 As per "Justice Jeevan Reddy" it was held that religion
is matter of individual faith and cannot be mixed with secular activities
and can be regulated by the state by enacting a law. In India there exist a
concept of positive Secularism as distinguished from the doctrine of
secularism accepted by the United States and European states i.e. there is
wall of separation between the religion and the state.

The Preamble of the Indian constitution resolves to constitute a

"secular" Democratic, Republic. This means that there is no state religion
or in other words the state does not recognise any particular religion and
shall not discriminate on the ground of religion. Article 25 & 26 of the
Constitution of India as enforceable fundamental rights guaranteed
freedom of religion and freedom to manage religious affairs. At the same
time Article 44 which is not enforceable in a court of law states that the
state shall endeavour to secure uniform civil code in India. Uniform civil
code is the uniform method or the uniform law that governs the people as

29
Art 5 to 11 of the Indian Constitution
30
Article 2 of the Indian constitution
31
AIR 1994 SCC (1918)

13
a uniform law and does not discriminate on the basis of any religion or
faith.32

As a new principle evolves and comes in to knowledge of the

people several Questions arise and criticism pave their way. In
Unification of the personal laws, an important question that arose was
what will be the ingredients of the uniform civil code, since the personal
laws of each religion contain separate provisions. Their unification will
bring not only resentment, but also enmity in the public towards one-
another. Therefore, the Uniform Civil Code will need to bring in such
laws that strike a balance between the protection of Fundamental rights
and the Religious principles of the different communities that exist in the
country. Issues such as marriage, divorce, maintenance, etc. can be
matters of secular nature and law can govern them.

B. Need of Uniform Civil Code:-

1. It promotes Real Secularism:- India have selective secularism,

which means that in some areas we are secular and in other's we are not.
A Uniform Civil Code means the same laws whether they are Hindus or
Muslims or Christians or Sikhs. A Uniform Civil Code doesn't mean it
will limit the freedom of people to follow their religion.33It just means
that every person will be treated the same, that is real secularism.

2. All Indians should be treated same:- Every religion have their

own personal law, which means that while Muslim can marry four time in
India, but a Hindu will be prosecuted for doing the same, this openly
violate right to equality which are mentioned in the Indian constitution.34

32
Kumar Dr. Ranjan, The need for Uniform Civil Code, 2017, Page no. 22-23
33
Mahmood Tahir, on securing a uniform civil code, in Narmada Khodie Ed; Reading in uniform civil
coce, 1975, p. 176.
34
Art 14 to 18, part IIIrd of the constitution

14
 All the laws related to marriage, inheritance family, land etc.
should be equal for all Indians, this is the only way to ensure that all
Indian are treated same.

3. It will provide more rights to the women:- According pundit

Jawaharlal Nehru, our first prime minister- "You can tell condition of
nation by looking at the status of women"

This is the only source in the form of Uniform Civil Code that will
impose the status of women in India.

4. Every modern nation has it:- A uniform civil code is the sign of
modern progressive nation, it is sign that the nation has moved away from
caste and religious politics. In fact it may be right to say that socially and
culturally are degraded, where neither modern nor traditional. A uniform
civil code will help society move forward and take India towards its goal
of becoming a developed nation.35

A Uniform Civil Code is of an absolute necessity for individuals

belonging to different religions and denominations and it is imperative for
the promotion of national unity and solidarity. Thus various religious
ideologies must merge and culminate in to common and unified
principles and objectives, adhering to the true spirit of secularism.

Israel, Japan, France and Russia are strong today because of their
sense of oneness which India have yet to more develop and propagate.
The European Nation and United States have a secular law that applies
equally and uniformly to all citizen irrespective of their religion.36

5. Enactment of women's status:- The Uniform Civil Code has

been a clarion call of the women's movement from pre-independence

35
Iyer Krishna, "One conutry, one Nationality and one legal system" Express magazine, published on
29th June 1986.
36
Baxiupendra: 'law Democracy and Human Right" Lokayam Bulletin vol. 1987, p. (75-91)

15
day's women's struggle for equality is intrinsically secular and it is a
cardinal principle of that struggle that barriers to achieving equality
enacted in the name of religion, caste, custom etc.

6. The Uniform Civil Code as a means to achieve unity and

integrity:- All Indian citizens are equal before the court of law, that is
criminal laws and other civil laws except Personal laws are the same for
all. So Uniform Civil Code is necessary to promote national integration.

7. As a safeguard against Political domination:- Uniform Civil

Code as a safeguard against Political domination by means of minority
fundamentalism, as a means preventing encouragement to communalism
in order to achieve their Political ends.

C. Significance of the Study:-

Present Research is made with a view to find out an amicable

solution of existing personal law system in India. The study and solution
given by the Researcher would be beneficial in many aspects. The main
significances of this research work are as under:

1. This research work is an attempt to bring uniformity in personal

laws of India, which at present give unequal and illogical treatment
to the citizen of India.
2. This research is an attempt to emphasis and reiterate the
importance and urgency for adopting a Uniform Civil Code.
3. The research intends to provide a systematic equality based and
logical legal system applicable to all the citizen of India,
irrespective of religion, caste, creed, community, sex etc.
4. This research is an attempt to remove the apprehensions and
misgiving of the people and particularly the minorities and to
evolve a consensus

16
 5. To promote public demand for uniform civil code and to suggest
strategies to achieve the uniform civil code in India.
6. Due to the clarifications and facts given by the Researcher, the
mind-set of the people, looking with doubts towards uniform civil
code, would be changed.
7. Present study would bring uniformity, in the laws relating to
marriage, divorce, adoption, maintenance, inheritance, succession,
will, gift etc.
8. The model draft is given at the end of research is intended to make
personal law system of India, easily accessible for all the citizens
of India.
9. If the model draft code of Uniform Civil Code, given by the
researcher, is accepted by the legislature, all the people and citizens
of India would be getting equal treatment of personal laws.

D. Hypothesis of the Study:-

After Studying and observing various aspects, the Researcher

formulates following Hypothesis for the present study:

1. Uniform Civil Code is the one envisaged by Article 44 of Part IV

of the Indian constitution dealing with the Directive Principles of
the state policy, which are fundamental in the governance of the
country and it is the duty of the state to apply in making laws.
2. The uniform civil code is meant not for the majority or the
minority but for the entire Indian community.
3. Islamic law is being badly distorted and abused in India that is
necessary to introduce necessary reforms that a proper codification
of the whole of Muslim law is inevitable
4. All the Personal practices followed in the name of religion are
usually gender bias and they have caused grave injustice to women.
17
 5. Uniform Civil Code would eradicate ill-practices existing in
different personal law due to different usages and customs.

E. Summary of Chapters:-

In order to give a comprehensive views of the position of Uniform

Civil Code under the constitution of India, the present research work has
been divided in ten chapters.

1. Chapter One- Introduction:-Uniformity of the Civil Code is the

greatest harbinger of national integration. It gives a sense of
coherence among the mental attitudes of natives of the land,
keeping in mind that secularism is an integral part of Indian
Constitution. It is the source of unity of mind of the People. The
chapter first introduces the subject, it also consist need of uniform
civil code, significance and hypothesis of the present research
work.

2. Chapter Two-Conceptual Analysis and historical background

of Uniform Civil Code:-The concept of 'Uniform Civil Code' is
confined to having a "Uniform Family Code' for members of all
communities living in the Country, not merely for the sake of
Uniformity but also for securing social justice to weaker sections in
different communities in the sphere of marriage, divorce, adoption
and inheritance. In the historical background Researcher have
detailed with the history of personal laws, origin of the idea of
uniform civil code in India.

3. Chapter Three-Uniform Civil code in various Countries:-It can

be stated that in the matters of Personal laws various other
Countries have adopted Common Civil Code. Also a large number
of Countries in west Asia and North Africa have been successful in

18
 reforming the laws related to Personal status and succession. This
chapter revels about the existence of Uniform Civil Code in
various countries.

4. Chapter Four-Constitutional provisions and the Uniform Civil

Code:-There is no denying fact that India is a land of diversities
and persons of various communities i.e. Hindus, Muslims and
Christians etc. follow their own personal law which to a great
extent differ from one another such types of laws instead of serving
the purpose of unity and integrity of the country encouraged the
separatist's tendencies which are detrimental to any growing
democracy. Thus keeping in view the national interest the
Constitution Assembly incorporated Article 44 in the Constitution.
This chapter states the relation of Uniform Civil Code with the
fundamental right, Directive principles and fundamental duties.

5. Chapter Five- Objections and constraints on the enactment of

the Uniform Civil Code:- In this chapter the efforts have been
made to discuss critically all the possible objections relating to
religion, culture immutability, undue interference of the state and
the appropriate time of enactment of Uniform Civil Code. Apart
from this, few major constraints have briefly highlighted.

6. Chapter Six-Implementation of the Uniform Civil Code:-

Implementation of Uniform Civil Code is need of the hour. It is the
time for the intellectuals of India to undertake the important and
urgent task of educating the follow citizens showing them the
rational virtue of the proposed cards. This chapter reviews the
progress made to achieve the Uniform Civil Code in India.

19
7. Chapter Seven- Socio-legal impact of Uniform Civil Code:-
This chapter stated social impact of Muslim as well as Hindu's
personal law through Uniform Civil Code.

8. Chapter Eight- Right to religion & Judicial Trend:- In this

chapter, the researcher tried to define the concept of religion and
it's relation with secularism and also role of judiciary regarding
religious matters

9. Chapter Nine- Jurimetrics Approach to the problem:- This

chapter tries to prove the approach and view of the judiciary to
implement common and uniform set of personal law to all the
citizen of India, irrespective of their religion, caste creed and sex
etc.

10.Chapter Ten-Conclusion and suggestion:- This chapter is related

with the concluding observation. This chapter not only summarises
the broad conclusion of the present study but also suggests advance
the ways to achieve a Uniform Civil Code in Indian circumstances.

20
 CHAPTER-II

CONCEPTUAL ANALYSIS AND HISTORICAL

BACKGROUND OF THE UNIFORM CIVIL CODE

A. The Concept and meaning of the Uniform Civil Code:-

As far as family law is concerned, Law is the formal codification of

customs which have achieved such acceptance as become the enforced
norm. The process of acceptance is accelerated by the existence of
legislative bodies which seeks to impose laws. Law codification involves
the legislation and regulation of states, as well as the resolution of
disputes.1In the civil law system codification is also an attempt to
structure the law according to fundamental ethical principal to create a
sense of order and simplicity that all members of society can
comprehend, not merely university trained jurists. Stating the law in
simple, precise terms, under stable to the lay person without a specialized
legal education is the only way they can reasonably obey it or be fairly
sanctioned for not obeying it. This overlaps the idea of a formal social
legal-code as understood in ethics.

The expression 'Uniform Civil Code' consist of three terms-

'Uniform; 'Civil; and 'Code. The word 'uniform' refers to the form of a
thing. The constitution of India in its Article 44 uses the expression
'Uniform' instead of 'Common' but generally these two terms have been
used as synonymous in the discussion relating to the said provision. 2 The
term 'Civil' is a very elastic expression and is used in number of sense.
This word is derived from the Latin word 'civils' which means a ‘Citizen’.
When it is used as an adjective to the term 'law' it means pertaining to the

1
http//www.knowledgerush.com/kr/encyclopedia/dispute Resolution/accessed on 20.06.2007
2
Encyclopedia Americana, Vol. 6 (1960), 734

21
private rights and remedies of a citizen as distinguished from criminal,
political etc.3

The expression 'Civil Law' has its predecessor in the 'jus civil' of
the Roman law in which it acquired various meaning in the course of
time. However, none of them covers what in English juristic terminology
is called civil law4

Thus the expression 'civil-law' which is derived from its Latin

equivalent - 'Jus civil' refers to the municipal law of a state. It refers to the
body of private law but does not include public or international law. It is
also used in contradiction of the criminal law.5

The term 'civil law' is used in the sense of family-related law,

besides it, has other components viz contracts, compensation, etc.

The word 'Code' is derived from the Latin word 'Codex' which
means a book. The study of history of law codes in Europe shows that a
code was not only commonly used of various ancient bodies of legal-
rules, it also frequently applied to the bodies of law known as maritime
customs and usages widely accepted throughout Europe.6 In modern
times a 'code' is used in the sense of a comprehensive work of legislation
regulating an entire province of law or a large portion of law provided
that it is arranged systematically and based on uniform principles. 7 It
refers to a collection and compilation in logical and concise form of all
the general statutes which may be incorporated in a 'code' under title
expressing to enact code.8

3
The shorter oxford English Dictionary, Vol. I (1973), 34
4
Encyclopedia Britanica, Vol. 5 (1959) 743.
5
Ibid (1960) 194.
6
The oxford companion to law (1980) 236.
7
Encyclopedia Americana, vol. 6 (1960) 194.
8
Word and Phareses, permanent edition, vol. 7A, 89.

22
 The term 'Civil Code' means a law relating to civil matters, to put it
precisely. A 'Civil Code' is an enactment of a branch of law directed not
to a partial but to a total codification of civil legislation. When the term
'civil code' is read in conjunction with adjective 'Uniform', it connotes a
code which shall be uniformly applicable to all citizens irrespective of
their religion, race, sex, caste and creed.

B. The Content of Uniform Civil Code:-

The Uniform Civil Code is a term originating from the concept of a

civil law code. It envisages administering the same set of civil laws to
govern different people belonging to different religious and regions. In
India, the expression 'civil code' is used in a very specific-sense, meaning
thereby a code of law regulating civil-matters which includes marriage,
divorce, inheritance and those other subjects which are at present
governed by different personal laws and the expression 'Uniform civil
code' has a reference to enact a uniform family law intended to replace
the different personal laws governing Hindus, Muslims, Christians,
Parsis, and Jews in matrimonial and other related matters.

Thus the concept of 'uniform civil code' is confined to having a

'uniform family code' for members of all communities living in the
country, not merely for the sake of uniformity but also for securing social
justice for weaker section in different communities in the sphere of
marriage, divorce, custody, adoption and inheritance.

It is relevant here to recall that before independence Hindus were

governed by their own personal laws, but after independence a large part
of traditional Hindu laws were codified in 1955. In sharp contrast till
today Muslim in family relation are governed by Shariat based personal
laws. As it will be evident from the discussion of the constituent

23
Assembly Debates the matter was fiercely debated and discussed in great
detail by the founding fathers of the constitution and there was a
consensus that personal laws are the part and parcel of a single uniform
civil code. Although the minority spokesperson9advanced several
arguments, to establish that personal laws are beyond the reach of a Civil
Code. The crux of their arguments was that the laws relating to minority
community in the family relations are primarily based upon their religion,
they are immutable and are not subject to re-interpretation for various
reasons and the same cannot be made a subject-matter of a 'civil code' but
the majority in the constitute Assembly10did not accept this view because
the religion could not and should not be made just an excuse for the
continuance of diversified personal laws.

There are two different views can be seen about the contents of a
'Civil Code', the first school takes the view that all civil relations are
covered by personal law, while other school maintains that the law
relating to marriages, divorce and inheritance largely are covered from a
'civil code'.

In India, various systems of 'personal law' prevail. The Hindu

system is based on the ancient texts of the Dhrmashastras. It was
improved in some respect by legislation. The Muslim system is based on
the Quran and other texts. This is also improved to a certain extent by a
few laws. There are matrimonial laws of Christians and Parsees and the
Indian succession Act, 1925 lays down, the law of succession for all
Indians except the Hindus and Muslims. India has accepted the ideal of

9
Constituent Assembly Debates, Vol. VII, 540-547
10
Constituent Assembly Debates, Vol. VII, 541.

24
secular-state Hence it is necessary to replace the various system of
personal laws by a uniform civil code.11

C. Relevance and Justification of Uniform Civil-Code in

India:-

The Uniform Civil Code is very much relevant and has also
become the need of the day in the communally surcharged atmosphere of
the country. It may be a strong tool in curbing the virus of communalism
in our country. Fundamentalism is the root cause of communal discord
and because of this the idea of having a uniform civil code for country is
resented by fundamentalist. However, the fact remains, as has been
widely pointed out by Mr. Justice Tulzapurkar, that:

"In the context of fighting the poison of communalism, the

relevance of fact it will provide a juristic solution to the communal
problem by striking at its root cause, it will foster secular forces so
essential in achieving social justice and common nationality."

Unlike the United States, India do not have the dual citizenship.
Indian constitution ensures a single citizenship, and the concept of single
citizenship demands that all the citizens should be governed by one single
set of civil laws. Thus Article 44 of the constitution becomes very much
important and relevant in the present socio-and political context of
country. The Supreme-Court requested through the central government of
India to make a uniform civil code for all the citizens of country.12

11
Justice Tulzapurkar, "Univorm civil code" A.I. (1) 1987, 17
12
SarlaMudgal v. union of India A.I.R. 1995, S.C. 1540

25
 A Uniform Civil Code has become relevant in today's context for
the nation for achieving the following goals -

(i) National consolidation and integration:-To integrate an

extremely fragmented society, the founding fathers in their wisdom,
provided for a directive to the state under Article 44 of the Constitution
that it shall "endeavour to secure for the citizens a Uniform Civil Code
throughout the territory of India." Such a Uniform Civil Code shall be
uniformly applicable to all citizen irrespective of religion, race, caste, and
sex.

A single law is essential for national integration, for almost a

century. Indian citizen have been governed by uniform laws in all other
areas like transfer, contract, civil and criminal procedure, penal code and
so on. This is even more "Uniform" than the United States of America,
where every state has its own laws.

However the Constitution makers insisted on the inclusion of

uniform civil code in the directive principles of state policy because they
had reasoned that national integration, and unity and secularism
demanded it. In their view justification for the inclusion of the uniform
civil code was inter-alia, that it would contribute to the secular idea and
facilitate the unity of India which was otherwise hampered by a diversity
of social practices and personal laws based on religion.13

A Uniform Civil Code is not just an instrument to achieve national

integration or national unity. It is a different matter that incidentally it
may help to achieve national integration or unity. Supreme-court also
underlined the importance of Uniform Civil Code.

13
Diwan Paras, The uniform civil code : A projection of Equality (1972), 420

26
 In the famous "Shah Bano case"14Justice "Chandrachud
observed: "A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have
conflicting ideologies. No community is likely to bell the cat by making
gratuitous concession on this issue. It is the state which is charged with
the duty of securing a uniform civil code for the citizens of the country
and unquestionably it has the legislative competence to do so"

In the Sarla Mudgal case15Justice R.M. Sahai" observed:

Freedom of religion is the core of culture, even the slightest deviation
shakes the social fibre, but religious practices violative of human rights
and dignity. So unified code is imperative both for protection of the
oppressed and promotion of national unity and solidarity.

In above case (Sarla Mudgal case) justice Kuldeep Singh' also

observed:

"The state shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India is an unequivocal mandate under
Art. 44 of the constitution of India which seeks to introduce a uniform
personal law, so it is necessary that all the communities should come
forward and contribute to the national integration."

(ii) Safeguard against political Domination: Uniform civil code is a

safeguard against political domination by means of minority
fundamentalism, as a harbinger of genuine democracy, and means of
preventing encouragement to communalism in order to achieve their
Political ends.

(iii) Linkage of Justice and Equality: Ancient Indian tradition of

equality as contained in hymn of Rigveda says: "All human beings are
14
Mohd. Ahmad Khan V. Shah Bano Begum, AIR, SC 954
15
Sarla Mudgal v. Union of India AIR 1995, SC 1540

27
equal. The king should have the same regard for his subjects that a
mother has for her sons." Secularism, justice, liberty, equality and
fraternity all are inseparable from one another. No one of them can stand
without the others. Justice without equality or fraternity is meaningless.
The cornerstone of a democratic society is equality. Everything that
characterises a democracy flows from this nation of equality. Without
equality there can be no justice.

True justice cannot be based on unjust laws though it has possible

to have a law-abiding society even with the most unjust laws. The
concept of justice also changes with the dynamics of the age. Laws
evolved and deemed sacred in primitive times should not continue if they
do not satisfy the condition of the doctrine of equality. 16 Recognition of
equality and justice in the preamble also guaranteed under Articles 14,
15, 16 etc. is the unique feature of the constitution. Personal laws are not
law under Article 13 of Indian constitution and therefore don't have to
conform enshrined in Article 14. But if personal laws were tested against
the doctrine of equality under law and due process, a large number of
them would be found unjust, arbitrary and unconstitutional. Article 14 of
the Indian constitution mandates equality before the law which, it read
with Article 44, would make the framing of Uniform Civil Code not only
a guideline for the state but would make it compulsory to frame such a
code. In Sarla Mudgal case, on the basis of the rule of natural justice, a
second marriage after conversion to Islam declared void. This shows that
court led emphasis on the doctrine of equality.

"Thus uniform civil code is one of the finest expressions of

civilised behaviour. No single community has a monopoly of ethical
values. All Citizens need those values and have to strive together. All

16
Chaudahri Hyder Hussein " A unified code for India" AIR (Journal) 68, 71-72

28
citizen don't want to be compartmentalised, they want to be unified under
a rational, fair, humane umbrella."

(iv) Clarity, simplicity and Intelligibility of the Personal laws:

Uniform Civil Code will ultimately lead to simplification and
modernisation of personal laws. The simplicity, accessibility and
intelligibility are the stock arguments in favour of the Uniform Civil
Code.

(v) Improvement in women's position:- A uniform civil code has

been a demand of the women's movement from pre-independence days.
Women's struggle for equality is intrinsically secular and it is a cardinal
principle of that struggle that barriers to achieving equality founded in the
name of religion, caste, customs tradition have to be dismantled.

The Supreme Court has also accepted that due to the absence of a
Uniform Civil Code the women have not found equal right's compare to
men and this is direct violation of the provision of Article 15 of Indian
constitution.17

The concept of a uniform civil code has two aspect Uniformity

between communities as well as uniformity within communities. A
gender just code would have to take account in both aspects, otherwise it
could end-up as a code for the uniformity of male privilege.

A Uniform Civil Code is not in complete concord with any

religion. It does not seek, the predominance of any religion. A Uniform
Civil Code calls for a modern outlook in keeping with present day needs
fair play, gender equality and reformative ideas.

17
SarlaMudgal v. Union of India AIR 1995, SC 1540

29
D. Origin of the Idea of a Uniform Civil Code in India:-

The idea of Uniform Civil Code was introduced in the national

political debate in 1940 when a demand for such code was made by the
national planning committee appointed by the central government. The
sub-committee for women's role in a planned economy was specifically
directed to study the role of women would play in the future independent
India and it presented its report to the national planning committee in
August 1940, the report advocated for enactment of uniform civil code.18

The historical background of the uniform civil code is closely

linked with the history of personal laws. In ancient and medieval period
all branches of law namely civil, criminal and commercial were based on
religion and custom. This religion and custom oriented legal system was
complicated and unprogressively. The British rulers attempted to bring a
systematic and progressive legal system in India. British rulers gradually
codified and brought secular criminal and procedural legislation. As
regards to the personal laws they refrained to enact a comprehensive and
secular civil code. Here British adopted the policy of non-interference in
matter of traditionally linked with the religion.19

The history of Indian legal development tells that after establishing

the political authority in India, the British attempted to bring a systematic
and progressive legal system. In this connection various schemes for
administration of justice in different parts of India were enforced.
Consequently the judicial system of Mughals and others were gradually
replaced with courts constituted by the British. Hence the British faced a

18
A Parashar, women and family law reform in India, 1992, PP 230-235
19
Ibid

30
problem as to which law should be applied in different kinds of cases by
the courts.20

The pre British legal system were mainly based on religious laws.
Civil, criminal, commercial as well as procedural laws were all based on
religion. The courts of the Mughals applied Islamic law relating to
crimes, evidence, procedure whereas the ancient Indian laws and custom
were applied by the courts in those places where the rulers were not
Muslims. In this way the law or custom of one or other religion formed
the rule of decision in every case21

The law based on religion was seen complicated and

unprogressively by the British. That is why they decided to reform the
law and legal system. In this connection the religion based criminal laws
of India were reformed gradually and the secular criminal code came in to
existence. Similarly the evidence Act and the civil procedure code were
enacted. So far as the civil code was concerned the British could not enact
the secular laws for all purpose because of political compulsions. In fact,
the British did not want to infuriate the religious societies by imposing
secular civil law for all purposes.22

The British were aware of the possibility of political repercussions

and therefore refrained from enacting comprehensive civil code on the
line of the penal and procedure code. It may be pointed out that British
replaced religion and custom only in non-personal civil areas, which were
not regarded by the religious societies as important to the religion as the
personal civil matters. That's why the British came forward with piece-
meal legislation. They enacted contract Act. 1872, and Transfer of

20
Dr. Ranjan Kumar - The need for a uniform civil code 2017 - p. 61-62
21
Ibid
22
M. Rama, - Legal and constitutional history of India, universal law publishing co. pvt. ltd Delhi 2009.

31
property Act, 1882. In regard to other subjects in civil matters the British
adopted a cautious approach.

The history of relationship between the personal laws and civil

code stated that it was warren Hasting's judicial plan of 1772 under which
the personal laws were given recognition. According to prof. Tahir
Mahmood this was the first authoritative "Policy declaration" by the
British rulers in regard to the religious laws of the Hindu & Muslims.23

The constitutional history revels that a comprehensive codification

of personal laws were generally not favoured by the British rulers. The
first law commission set-up under the charter Act 1833 had expressed
hope that in near future the codes of Hindu and Muslim law would be
prepared. But the second law commission appointed under the charter Act
of 1853 plainly rejected the idea of codification. The fourth law
commission too recommended against the codification of personal laws at
that stage24

Thus in British India no attempt was made to prepare a secular

civil code. It appears that the legislative power relating to personal laws
were used to bring piecemeal reform rather than to bring a civil code
replacing the personal laws of various communities because they wanted
to maintain law and order and they may achieve their goal i.e. profit
making form India.

23
Tahir Mahmood, 'Muslim personal law- role of the state in the subcontinent 1977, p. 6
24
M.P. Jain - 'codification of law' - 1990 pp. 461-514

32
 CHAPTER-III
UNIFORM CIVIL CODE IN VARIOUS
COUNTRIES

It can be stated that in the matters of personal laws various other

countries have adopted different courses of action. Countries like Turkey,
and Albania are predominantly Muslims and they have been successful in
replacing Muslim personal laws and other personal laws by Common
Civil Code. Some of the secular countries like Senegal, Indonesia, Mali,
Chad, and Nigeria have retained their traditional law and Islamic law,
without any substantive reforms. Also a large number of countries in west
Asia and North Africa have been successful in reforming the laws related
to Personal status and succession.

The idea of codification emerged during the age of enlightenment,

when it was believed that all spheres of life could be dealt with in a
conclusive system based on human rationality. The first attempts at
International level for codification were made in the second half of the
18th Century, when the Germen states of Prussia, Bavaria and Saxony
began to codify their laws. The first statute that used this denomination
was the Codex Maximilianeus Bavaricus Civilise of 1756 in Bavaria. It
was followed in 1792, by a legal compilation that included civil, penal,
and Constitutional law. The Allegmenies Landrecht fur die Pressuichen
Staaten (General National Law for the Prussian States) (promulgated by
King Frederick II the Great which never satisfied the standards of the
modern law-codification movement1.

In Austria, the first step towards fully-fledged codification were the

yet incomplete Codex Theresianus (compiled between 1753 and

1
http://www.encyclopedia.thefreedictionary.com

33
1766).The Josephinian Code (1787) and the complete west Galician Code
(enacted as a test in Galicia in 1797). The final Austrian Civil Code
(called AllgemeinesbtirgerlichesGesetzbuch) was only completed in
1811.

Meanwhile the French Napoleonic code2 (Civil Code) was enacted

in 1804 after only a few years of preparation, but it was a child of the
French Revolution, which is strongly reflected by its content. The French
code was the most influential one and was adopted in many countries
standing under French occupation during the Napoleonic wars, but it has
lasting influence much beyond that. In particular, Countries such as Italy,
Spain, Portugal, the Latin American countries, the state of Louisiana in
the United States, and all former French colonies base their civil law
systems to a strong extent on the Napoleonic Code.

A. German Civil Code:-

German Civil Code is the body of codified private law that went
into effect on 1 January 1900, and was considered a massive and ground
breaking project. The code actually evolved out of the desire for a
national law that would override the often conflicting customs and codes
of the various German territories. The Burgerliches Gesetzbuch (BGB) is
the civil code of Germany. It became effective on January 1, 1900, and
was considered a massive and ground breaking project. The German Civil
Code served as a template for the regulations of several other civil law
jurisdictions, including mainland China, Japan, South Korea, Taiwan, and
Greece.

The introduction in France of the Napoleonic code in 1804 created

in Germany a similar desire for obtaining a civil code, which would

2
http://www.encyclopedia.thefreedictionary.com/french

34
systematize and unify the various laws that were in effect in the country.
However, the realization of such an attempt during the life of the German
Confederation was difficult, for the appropriate legislative body did not
exist.

However, in 1871 the various German states were united into the
German Empire. In the beginning, civil law legislative power was held by
the individual states, not the Empire (Reich) the comprised those states.
An amendment to the Constitution passed in 1873 (called "LexMiquel-
Lasker" - referring to the amendment's sponsors, representatives Johannes
von Miquel and Eduard Lasker) transferred this legislative authority to
the Reich. Various committees were then formed to draft a bill that was to
become a civil law codification for the entire country, replacing the civil
law systems of the states.

A first draft code, in 1888, did not meet with favour. A second
committee of 22 members, comprising not only jurists but also
representatives of financial interests and of the various ideological
currents of the time, compiled a second draft. After significant revisions,
the German Civil Code was passed by the Reich legislature in 1896. It
was put into effect on January 1, 1900 and has been the central
codification of Germany's civil law.

German Civil Code, German Burgerliches Gesetzbuch, the body of

codified private law that went into effect in the German empire in 1900.
Though it has been modified, it remains in effect. The code grew out of a
desire for a truly national law that would override the often conflicting
customs and codes of the various German territories.

The code is divided into five parts. The first is general, covering
concepts of Personal rights and legal personality. The subjects of the

35
other four parts are: obligations, including concepts of sale and contract;
things, including immovable and movable property; domestic relations;
and succession.

The concept of law embodies in the code was gamines Recht, the
common law based on the 6th century codification of Roman law put in
force by the emperor Justinian. In family law and to some extent in the
law of property, some elements of Germanic tribal law also influenced
the code. Although altered to some extent by feudal law, customary law
again came under Roman influence in the 15th century, when Roman law
was received into Germany in an effort to systematize customs and legal
institutions. In some areas it superseded custom, particularly when there
was no conflict between the two; in others, Roman and customary law
existed side by side, with custom prevailing when there were
insurmountable differences.

Throughout the 19th century, German legal scholars argued about

the type of national code that should be written and indeed, whether one
should be written at all. The arguments were intense enough to have the
effect of delaying codification. Only with the formation of the Reich
("empire") in 1871 was it possible to undertake a program of national
codification. Commissions were established, and, when the first draft of
the code was presented for critical appraisal in 1888, it was rejected as
being too Roman. A second draft was promulgated in 1896 and went into
effect in 1900.

The German Civil Code has had an important influence on the private
law of other countries, particularly Japan, Switzerland, and Greece. It has
influenced the law of Austria and, in conjunction with the Swiss Civil

36
Code, that of Russia and the Scandinavian countries, among others.
Compare Napoleonic Code; Prussian Civil Code.3

B. Civil Code for China:-

China has a chance to improve rule of law by securing property,

family, and personal rights. According to the Chinese Constitution, the
National People's Congress is the most important political body
nationwide, with the power to legislate, oversee the operations of the
government, and elect the major officers of the State. However, critics
say that these powers are just de jure and that, in fact, the Communist
Party decides on all major issues, which is why National People's
Congress has been commonly referred to as a "rubber stamp" Parliament
by Western media. Unlike the National People's Congress, the
Communist Party of China has no legislative power. As its own name
suggests, the Communist Party of China is a consultative body with many
of its 2,000 members not members of the Communist Party. Among them
are some of China's most popular figures, like the actor Jackie Chan, the
basketball player Yao Ming, or Wang Jianling, the owner of Wanda
Group and also China's richest businessman.

During the two sessions, the Communist Party announced its

intention to introduce a comprehensive Civil Code, designed to improve
the existing civil rules that are expanded throughout many pieces of
legislation. This is part of a broader plan to reform the country's legal
system by 2020. The ambitious reform agenda was announced three years
ago during the Fourth Plenary Session4 of the 18th Central Committee of
the Communist Party of China (CPC), in October 2014.

3
https://www.britannica.com/topic/German-Civil-Code
4
http://www.china.org.cn/china/fourth_plenary_session/2014-12/02/content_34208801.htm

37
 Following the inauguration of the civil code, many laws currently
regulating various aspects of a civil nature, such as contract law, tort law,
adoption law, marriage law, etc., will most likely be completely or
partially abolished. The civil code will follow the general principles of
the civil law5 and the principles set out in the Chinese Constitution.
However, the new code is expected to shed more light on some rather
obscure areas of law that need further legislation, for instance with regard
to property, family relations, and personal rights.

Private property is protected under Article 13 of the 1982 Chinese

Constitution, as amended in 2014. The discussion on property rights
becomes sensitive when it comes to land ownership. In China, a country
with a powerful socialist heritage, land can only be owned by the state or
by collective organizations; private entities can only buy the right to use
the land for a limited number of years. According to the existing
legislation, land-use rights "usufructuary rights" can be granted for a
maximum of 70 years, after which the law is not very clear on what will
happen. Thus, individuals in China can own their houses and apartments,
but they cannot own the land on which these buildings are constructed,
nor can they own the natural resources underneath. The land-use rights
are transferable, however, observers say that the market for land prices is
monopolized by the government, even when the land is owned by a
collective.

The poor enforcement of real estate property rights is mirrored by

the numerous land-seizures seen during the past years, many a direct
consequence of China's urbanization process. This situation is particularly
damaging for businesses, as it makes investors reluctant to engage in
economic activities, knowing that the land on which they are conducting

5
http://www.wipo.int/wipolex/en/text.jsp?file_id=182628

38
their businesses is vulnerable to government decisions, sometimes at a
moment's notice. The new private property guidelines are thus expected
to strengthen the property rights regime and provide more protection for
private property, by narrowing the interpretation of "public interest" as a
means to prevent abusive expropriations. Likewise, a mandatory
condition for all acts taken by the state in relation to private property to
be publicized would highly contribute to increasing political trust in
China.

The Chinese Civil Code will touch upon family relations as well.
However, it is not clear how deep the new rules will go onto the matter,
since China already has in place several laws pertaining to adoption,
marriage, and other aspects related to family life. Whether the Civil Code
is going to replace these laws remains to be seen. More importantly, in
recent years, China has become aware of major challenges approaching at
a fast pace, among which the aging of its population raises the most
concerns. In a United Nations Report, it was estimated that, by 2050, each
retiree in China will be supported by 2.1 people in the workforce. Against
a background of vowing economic growth, this prediction does not seem
very optimistic.

But perhaps the most worrisome for the public consciousness is the
fact that an ever-increasing number of elderly people are being
abandoned by their children, who plunge headlong into very competitive
urban centres in search of a better life. This phenomenon is aggravated by
the similar situation of the many children left behind by parents who
leave their homes seeking higher incomes, hopeful that they will be able
to provide a better future for their children. The new guidelines are thus
expected to address the guardianship issue and to put in place better
protections for these highly vulnerable people.

39
 Every day 24,000 people turn 60 in China, meaning one person
every four seconds. Considering that, the National People's Congress
proposed a series of measures to improve elderly care services, including
crafting a multi-pillar, fairer, and more sustainable social security system
by 2020. The plan is to offer basic old-age insurance coverage for 90
percent of residents and basic medical insurance for more than 95 percent
of them; also, government-run nursing homes will account for at least 30
percent of the nation's total nursing beds for the elderly. Other efforts will
be directed toward improving elderly access to technology and enriching
their cultural life.

Another anticipated major headline in the new civil legislation is

represented by the so-called "personality rights," which call for a
dedicated section in the civil code. Personality rights are a series of
freedoms and liberties that each individual enjoys upon birth, such as the
right to life, to physical and mental integrity, freedom of speech, the right
to privacy, health, reputation, etc. These rights and freedoms are inherent
to the human person and the law merely encodes them. However their
free exercise, needs to be guaranteed and protected by the state through
legal provisions and specialized bodies designed to prevent and punish
any acts of violation.

The personality rights are currently guaranteed under Chapter II of

the Chinese Constitution, but such provisions cannot be cited in court,
due to the absence of a Constitutional Court that would ensure the
uniform interpretation, protection, and enforcement of such provisions.
Should anyone invoke the claim that a law or administrative act is
unconstitutional, there is no specialized organ to control rule upon such
matters. A possible explanation as to why China didn't also establish a
specialized Court to rule on constitutional matters at the moment when

40
the Constitution was adopted, China rejects the separation of powers
doctrine, out of concern that it would undermine the authority of the
Communist Party. Hence, without an autonomous judicial body to ensure
that the fundamental law prevails within the state, the Constitution is left
at the moment with only a symbolic role in China.

The importance of guaranteeing the free exercise of personality

rights is unquestionable and the new Civil Code should avoid, by all
means, rendering the protection regime dubious and rigid. The legislators
play an essential role in this; therefore, they should be cautious when
defining and enumerating these rights, and make sure they establish an
efficient enforcement mechanism. Though the outlook is not optimistic.
China is known for allowing restrictions when it feels that too much
liberty could weaken state authority or challenge the leadership of the
Communist Party.

All these are key areas in which Chinese legislation needs to be

further strengthened. But the legal system cannot truly improve unless it
ensures that citizens' personal rights, property rights, basic political
rights, and other inherent rights are guaranteed and protected by the state
as inviolable. Although the enactment of a Civil Code represents a big
step forward in the direction of a rule of law system, the legislative work
in China needs to continue. Likewise, the systems and mechanisms
through which the law is enforced need to be bettered, while at the same
time facilitating public participation in the process.6

C. European Civil Code:-

The European Civil Code (ECC) is a proposed harmonisation of

private law across the European Union.

6
https://thediplomat.com/2017/03a-civil-code-for-china-a -great-leap-forward-for-the-rule-of law/

41
 The ultimate aim of a European civil code is like a national civil
code, to deal comprehensively with the core areas of private law. Private
law typically covered in a civil code includes the family law, the law of
inheritance, property law and the Law of Obligations. The law of
obligations includes the law of contracts, torts and restitution. It was
frame work on European contract law that the push for a comprehensive
European civil code arose. The development of a European civil code has
primarily focused on creating a unified law of contracts. Thus, the term
'European Civil Code' is often used in specific reference to the
harmonisation of contract law throughout the European Union.

 The Lando Commission

The idea of a Unified European Civil Code can be traced in the

idea of a unified Europe and the creation of the European Union. The
European Parliament requested the creation of a European Civil Code in
19897, 1994 and 2000. A pragmatic approach has seen the proponents of
a European Civil Code to develop uniform laws in discrete areas before
working towards a comprehensive European Civil Code.

Development of a European Code for contract law began in 1982

with the formation of the Commission on European Contract Law. At the
same time UNIDROIT began similar studies leading to their 1994
publication Principles for International Commercial Contracts. The Lando
Commission focused on creating their Principles of European Contract
Law (PECL). The first part of the PECL was published in 1995, followed
by Part II in 1999 and the final Part Ill in 2003. These Principles of
European Contract Law may eventually form one part of the European
civil code.

7
Official Journal of the European Communities, 1989, N.C 158/400.

42
 Towards a European Civil Code

In 1997 the Dutch Government, as then Chair of the European Union,

held a conference titled 'Towards a European Civil Code'. The
conference considered the feasibility of such a code and led to the
creation of a book titled Towards a European Civil Code. The third
edition was published in 2004 and although the primary focus is
European contract law, it considers other areas of private law that may
form part of a European civil code as well. The years following this
conference have seen the development of many academic groups
focusing on different areas of private law. These include:

 The Study Group on a European Civil Code-8, formed in 1997 and

chaired by Professor Christian von Bar at the University of
Osnabruck.

 The Acquis Group (official name: Research Group on EC Private

Law) at the University of Munster focuses on existing European
Community private law.9

 The Commission on European Family Law based at Utrecht

University.

 The European Group on Tort Law, also called the Spier/Koziol

group, in association with the European Centre of Tort and
Insurance Law in Vienna.10

 The Common Core of European Private Law project conducted by

Mauro Bussani and UgoMattei at the University of Trento.

8
Hondius et al. (2004), p. 14.
9
Ideam, p. 15.
10
Hondius et al. (2004), p. 14.

43
  The Academia des PrivatisesEuropeans at the University of Pavia,
headed by Giuseppe Gandolfi. It published a Draft Code ('avant-
project') in 2002.

 The Leuven Centre for a Common Law of Europe, founded in

2001 by Professor Walter Van Gerven, who wrote a number of
European casebooks together with Basil Markesinis.

 The Joint Network on European Private Law has also been created
and includes several of the above groups.

 Common Frame of Reference

On 11 July 2001, the European Commission issued a Communication in

relation to possible developments in European contract law. Following
the review of submissions on the Communication, the Commission
released an Action Plan for a more coherent European contract law in
2003.11 The Action Plan began the process of creating what is known as
the Common Frame of Reference (CFR). This was followed in 2004 by
the publication of "European Contract Law and revision of the acquis: the
way forward". The CFR is intended to provide a structure and guideline
for the development of harmonised European private law but has a
specific focus on contract law. It was hoped that the creation of a unified
European contract law would be achieved by 2010.

The Draft Common Frame of Reference (DCFR), a joint project of

the Study Group and Acquis Group (funded by the European Commission
for €4.3 million), was published in December 2007. Although the
European Commission downplayed the CFR's expected future importance
in a July 2006 report, a March 2006 European Parliament resolution
stated that "Even though the Commission denies that this is its objective,

11
Von Bar et al. (2009), p. 4.

44
it is clear that many of the researchers and stakeholders working on the
project believe that the ultimate long-term outcome will be a European
code of obligations or even a full-blown European Civil Code."12
Economist Gerhard Wagner hailed "the drafting of a coherent set of
rules" for all of Europe, such as the DCFR, as "an immense scientific
achievement".13

 Contents of a European Civil Code

A comprehensive European Civil Code would cover the major

areas of private law in much the same way as domestic civil codes. The
major areas that have been suggested are contract law, torts, property,
restitution and also company law.

Although family law and inheritance law are normally covered by

domestic civil codes there is doubt whether it is possible to include them
in a broad European code. Family and Inheritance law is often closely
tied to a nation's culture. For this reason it may not be possible or suitable
to create a uniform code to cover the entire European Union. As
previously stated, contract law is perhaps the most suited for
harmonisation, followed by other areas of the law of obligations and the
law of property. The creation of individual codes for discrete areas of
private law is considered the most possible and realistic goal. For this
reason efforts have concentrated on creating a unified European contract
law before attempting a more comprehensive European civil code.

An example of a modern comprehensive code is the "Dutch

BurgerlijkWetboek" which came into force in 1992. The
BurgerlijkWetboek covers civil, commercial law, consumer law and

12
Mark Beunderman (22 October 2017). "Academic handbook could form basis for EU civil code".
Euobserver.
13
Wagner, Gerhard (2009). The Common Frame of Reference: A View from Law & Economics.
Munich: Sellier. European Law Publishers. p. 204. ISBN 9783866531109.

45
labour law and was almost 40 years in the making. This gives an
indication of how long it may take to create a complete unified European
civil code. The March 2006 European Parliament resolution
recommended taking the new Dutch civil code as a model as well.14

D. Japanese Civil Code:-

Japanese Civil Code, body of private law adopted in 1896 that, with post-
World War II modifications, remains in effect in present-day Japan. The
code was the result of various movements for modernization following
the Meiji Restoration of 1868. A legal code was required that would fill
the needs of the new free-enterprise system that predominated with the
dissolution of feudal land holdings. At the same time, the Japanese
desired to present themselves to the world as a more modern nation in
hope of renegotiating certain unfavourably balanced and often even
humiliating treaties with western nations. As a result the code was
modelled on the first draft of the German Civil Code, itself very Roman
in structure and substance.

The code is divided into five books. Those on family and

succession retain certain vestiges of the old patriarchal family system that
was the basis of Japanese feudalism. It was in these sections that most of
the post-war revisions were made. At that time it was considered no
longer necessary or desirable to pay such homage to the past, and the
sections dealing with family law and succession were brought closer to
European civil law.

The writing of the code provoked considerable disagreement

among segments of the Japanese legal and commercial communities,
largely over how much Japanese custom should be included. There was

14
European Parliament (23 March 2006). "European Parliament resolution on European contract law
and the revision of the acquis: the way forward". europarl.erupa.eu.

46
also disagreement as to whether the code should be based on the French
or the English system of law.

This disagreement arose from the rather strange position of both

those systems in Japanese law schools and courts. After the restoration,
law schools had been set up that gave courses in both English and French
law. Because of the way the courses and examinations were constructed,
it was possible to become a lawyer or judge by knowing only one system
of law. In their courtrooms, some judges administered only French law
and others only English.15

After the first Japanese Civil Code had been adopted in 1890, a
storm of criticism arose from the legal community. This code had been
the work of a French jurist, "Gustave-Emil Boissonade," who also had
written the criminal and penal codes of 1882. Opponents argued that, if
the civil code were to be based upon French law, then Japanese lawyers
trained in the French system would have an advantage over those trained
in the English. Further, the proposed commercial code was based on
German laws, and there were many lawyers and persons engaged in
commerce who felt there would be confusion if the two codes were based
upon different laws.

The code was made into a political issue by those wishing to

preserve the old feudalism, who charged that the old customs, particularly
the patriarchal family system, had been ignored in the individualistic code
of Boissonade. A revised code was produced, based on the first draft of
the German Civil Code but giving considerable weight to the old
customs, particularly in family and inheritance law. The final German-
based code was very similar in most respects to that of Boissonade, both

15
https://www.britannica.com/topic/Japanese-Civil-Code

47
including strong protection for landed property. The code was
promulgated in 1896 and went into effect in 1898.

Sex discrimination in marital status laws renders women and girls

subordinate in many aspects of family relations before, during and after
marriage.

Article 733 of Japan's Civil Code prohibits women, but not men,
from remarrying for 100 days after the dissolution or annulment of a
marriage. Articles 772 and 774 state that a child conceived by a woman
born 200 days after marriage or within 300 days of the end of a marriage
shall be presumed to have been conceived during marriage, which may
only be rebutted by the husband.

These provisions deny a mother the right to have a say in the

designation of the child's father in cases when the presumption of
paternity is incorrect. In many such cases, women do not obtain a birth
certificate for their children due to this provision (as they would be forced
to list the "legal father" of the child as opposed to the biological one), and
consequently the child is denied their right to identity.

Article 733. (1) A woman may not remarry unless 100 days have
passed since the day of dissolution or rescission of her previous marriage.

(2) In the case where a woman had conceived a child before the
cancellation or dissolution of her previous marriage, the provision of the
preceding paragraph shall not apply.

Article 772 (1), A child conceived by a wife during marriage shall

be presumed to be a child of her husband.

48
 (2) A child born after 200 days from the formation of marriage or
within 300 days of the day of the dissolution or rescission of marriage
shall be presumed to have been conceived during marriage.

Article 774, under the circumstances described in Article 772, a

husband may rebut the presumption of the child in wedlock.

E. Napoleonic Civil Code:-

The Napoleonic Code or Code Napoleon (originally called the Code

civil des Frangais) was the French civil code, established under Napoleon
I. According to him "My real glory is not to have won 40 battles;
waterloo will erase the memory of all these victories. What nothing will
erase, what will live eternally, is my Civil Code."

It was drafted rapidly by a commission of four eminent jurists and

came into force on March 21, 1804. Even though the Napoleonic code
was not the first legal code to be established in a European country with a
civil legal system. It was preceded by the Codex
Maximilianeusbavaricuscivilis (Bavaria, 1756), the AllegheniesLandrecht
(Prussia, 1792) and the West Galician Code, (Galicia, then part of
Austria, 1797).It is considered the first successful codification and
strongly influenced the law of many other countries. The Code, with its
stress on clearly written and accessible law, was a major step in
establishing the rule of law. Historians have called it "one of the few
documents which have influenced the whole world."

The Napoleonic Code, officially the Civil Code of the French is the
French civil code established under the French Consulate in 1804 and still
in force, although frequently amended.16

16
Code civil des francais: edition originaleetseuleofficielle. Paris: L'lmpremerie de la Republique. XII.
1804.

49
 It was drafted by a commission of four eminent jurists and entered
into force on 21 March 1804.17 The Code, with its stress on clearly
written and accessible law, was a major step in replacing the previous
patchwork of feudal laws. Historian Robert Holtman regards it as one of
the few documents that have influenced the whole world.

The Napoleonic Code was not the first legal code to be established
in a European country with a civil-law legal system; it was preceded by
the Codex Maximiliano'sbavaricuscivilis (Bavaria, 1756), the
AllegheniesLandrecht (Prussia, 1794), and the West Galician Code
(Galicia, then part of Austria, 1797). However, it was the first modern
legal code to be adopted with a pan-European scope, and it strongly
influenced the law of many of the countries formed during and after the
Napoleonic Wars. The Napoleonic Code influenced developing countries
outside Europe, especially in Latin America and the Middle East,
attempting to modernize and defeudalize their countries through legal
reforms.18

The categories of the Napoleonic Code were not drawn from the
earlier French laws, but instead from Justinian's sixth-century codification
of Roman law, the Corpus Juris Civilis and within it, the Institutes. 19 The
Institutes divide law into the law of:

1. Persons
2. Things
3. Actions.

17
Robert B. Hultman, The Napoleonic Revolution (Baton Rouge: Louisiana State University Press,
1981)
18
Mohamed A.M. Ismail (2016). Globalization and New International Public Works Agreements in
Developing Countries: An Analytical Perspective. Routledge. p. 19. ISBN 9781371727031-via Google
Books. All civil codes of Arab Middle Eastern states are based on Napoleonic Codes and were
influenced by Egyptian legislation
19
lain Stewart (2012). "Mors Codicis: End of the Age of Codification?". Tulane European & Civil Law
Forum. 27: 17 at 23-24.

50
Similarly, the Napoleonic Code divided law into four sections:
1. Persons
2. Property
3. Acquisition of property
4. Civil procedure (moved into a separate code in 1806).

 Prior codification attempts

Before the Napoleonic Code, France did not have a single set of
laws; law consisted mainly of local customs, which had sometimes been
officially compiled in "custumal" (costumes), notably the Custom of
Paris. There were also exemptions, privileges, and special charters
granted by the kings or other feudal lords. During the Revolution, the last
vestiges of feudalism were abolished.

Specifically, as to civil law, the many different bodies of law used

in different parts of France were to be replaced by a single legal code.
The Constituent Assembly, on 5 October 1790, voted for a codification of
the laws of France, the Constitution of 1791 promised one, and the
National Assembly adopted a unanimous resolution on 4 September
1791, providing that "there shall be a code of civil laws common for the
entire realm."20 However, it was the National Convention in 1793 which
established a special commission headed by Jean-Jacques Regis de
Cambaceres to oversee the drafting process. His drafts of 1793 (for which
he had been given a one-month deadline), 1794, and 1796 were all
rejected by a National Convention and Directory more concerned with the
turmoil resulting from the various wars and strife with other European
powers. The first contained 719 articles and was very revolutionary, but
was rejected for being too technical and criticized for not being radical or
philosophical enough. The second, with only 297 articles, was rejected

20
Constitution of 3 September 1791, 1.11: "ll sera fait un Code de loisciviles communes a toute le
Royauame".

51
for being too brief and was criticized for being a mere manual of morals.
The third, expanded to 1,104 articles, was presented under the Directory,
a conservative regime, but never even came up for discussion.

Another commission, established in 1799, presented that December a

fourth scheme drafted in part by Jean-IgnaceJacqueminot (17541813).
Jacqueminot's draft, the so-called loiJacqueminot, dealt almost
exclusively with persons and emphasized the need to reform the
Revolutionary divorce laws, to strengthen parental authority and increase
the testator's freedom to dispose of the free portion of his estate.21

 Napoleonic Reforms
Napoleon set out to reform the French legal system in accordance
with the ideas of the French Revolution, because the old feudal and royal
laws seemed confusing and contradictory. After multiple rejected drafts
by other commissions, a fresh start was made after Napoleon came to
power in 1799. A commission of four eminent jurists was appointed in
1800, including Louis-Joseph Faure and chaired by Cambaceres (now
Second Consul), and sometimes by the First Consul, Napoleon himself.
The Code was complete by 1801, after intensive scrutiny by the Council
of State, but was not published until 21 March 1804. It was promulgated
as the "Civil Code of the French" (Code civil des Francais), but was
renamed "the Napoleonic Code" (Code Napoleon) from 1807 to 1815,
and once again after the Second French Empire.

The process developed mainly out of the various customs, but was
inspired by Justinian's sixth-century codification of Roman law, the
Corpus luris Civilis and, within that, Justinian's Code (Codex). The
Napoleonic Code, differed from Justinian's in important ways: it

21
Tom Holmberg, "The Civil Code: an Overview", The Napoleon Series, September 2002, [online]
<https://www.napoleon-series.org/research/government/code/c_code2.htmll>.

52
incorporated all kinds of earlier rules, not only legislation; it was not a
collection of edited extracts, but a comprehensive rewrite; its structure
was much more rational; it had no religious content, and it was written in
the vernacular.

The development of the Napoleonic Code was a fundamental

change in the nature of the civil law system, making laws clearer and
more accessible. It also superseded the former conflict between royal
legislative power and, particularly in the final years before the
Revolution, protests by judges representing views and privileges of the
social classes to which they belonged. Such conflict led the
Revolutionaries to take a negative view of judges making law.

This is reflected in the Napoleonic Code provision prohibiting

judges from deciding a case by way of introducing a general rule (Article
5), since the creation of general rules is an exercise of legislative and not
of judicial power. However, the courts still had to fill in the gaps in the
laws and regulations and, indeed, were prohibited from refusing to do so
(Article 4). Moreover, both the code and legislation have required judicial
interpretation. Thus a vast body of case law has come into existence.
There is no rule of stare decisis (binding precedent) in French law, but
decisions by important courts have become more or less equivalent to
case law.

 The French Codes in the 21stCentury

The French codes, now more than 60 in number22, are frequently

amended, as well as judicially re-interpreted. Therefore, for over a
century all of the codes in force have been documented in the annually
revised editions published by Dalloz (Paris).23 These editions consist of

22
"Recherche simple dans les codes en vigueur-Legifrance". legifrance.gouv.fr.
23
"Code civil, Code du travil, tous les livres de droit des Editions Dalloz". dalloz. fr.

53
thorough annotations, with references to other codes, relevant statutes,
judicial decisions (even if unpublished), and international instruments.
The small version of the Civil Code in this form is nearly 3,000 pages,
available in print and online. Additional material, including scholarly
articles, is added in the larger "expert (expert)" version and the still larger
"mega (mega)" version, both of which are available in print and on
searchable CD-ROM. By this stage, it has been suggested, the Civil Code
has become "less a book than a database".24

The sheer number of codes, together with digitisation, led the

Commission superior de codification to reflect in its annual report for
2011:

The Commission observes that the age of drawing up new codes is

probably reaching its end. The aim of a nearly complete codification of
the law is no longer pursued, for three reasons: firstly, the technical
developments by which texts are provided in non-physical form offer to
users modes of access that are comparable in many ways to those
available through a code; secondly, the creation of new codes encounters
a kind of law of diminishing returns in that, the more progress that is
made in the development of new codes, the trickier it becomes to
determine in which code particular provisions should be located; and,
finally, it is clear that certain kinds of provision are unsuitable for
codification, since codification makes sense only when it involves
provisions that possess sufficient generality.25

A year later, the Commission recommended that, after its current

codification projects were completed, there should not be any further

24
lain Stewart (2012). "Mors Codicis: End of the Age of Codification?" Tulane European & Civil Law
Forum. 27: 17 at 24-25
25
Commission superieure de codification, Vingtetunieme rapport annual 2010 (Paris, 2011), 13; quoted
and translated, lain Stewart (2012). "Mors Codicis: End of the Age of Codification?" Tulane European
& Civil Law Forum. 27: 17 at 25.

54
codes; an additional reason was government delay in publishing reforms
that the Commission had completed.26 The government responded
encouragingly in March 2013, but the Commission complains that this
has not been followed through; in particular, that the government has
abandoned its plan for a public service code.27

F. Codes in Other Countries:-

Even though the Napoleonic Code was not the first civil code and
did not represent the whole of his empire, it was one of the most
influential. It was adopted in many countries occupied by the French
during the Napoleonic Wars, and thus formed the basis of the private law
systems of Italy, the Netherlands, Belgium, Spain, Portugal (and their
former colonies), and Poland (1808-1946). In the German regions on the
west bank of the Rhine (Rhenish Palatinate and Prussian Rhine Province),
the former Duchy of Berg and the Grand Duchy of Baden, the
Napoleonic Code was in use until the introduction of the
BurgerlichesGesetzbuch in 1900 as the first common civil code for the
entire German Empire.

A number of factors have been shown by Arvind and Stirton to

have had a determinative role in the decision by the German states to
receive the Code, including territorial concerns, Napoleonic control and
influence, the strength of central state institutions, a feudal economy and
society, rule by liberal (enlightened despotic) rulers, nativism (local
patriotism) among the governing elites, and popular anti-French
sentiment.28

26
Commission superieure de codification, Vingt-deusxieme rapport annual 2011 (Paris, 2012), 21.
27
Commission superieure de codification, Vingt-quatrieme rapport annual 2013 (Paris, 2014), 6-7.
28
Arvind TT; Stirton L (March 2010). "Explaining the Reception of the Code Napoleon in Germany: a
fuzzy- set qualitative comparative analysis". Legal Studies. 30 (1): 1-29. doi: 10. 1111/j. 1748-
121X.2009.00150.x.

55
 A civil code with strong Napoleonic influences was also adopted in
1864 in Romania, and remained in force until 2011.29 The Code was also
adopted in Egypt as part of the system of mixed courts introduced in
Egypt after the fall of Khedive Ismail. The Code was translated into
Arabic from the French by Youssef Wahba Pasha between 1881 and
1883. Other codes with some influence in their own right were the Swiss,
German, and Austrian codes, but even therein some influence of the
French code can be felt, as the Napoleonic Code is considered the first
successful codification.

Thus, the Civil law systems of the countries of modern continental

Europe, with the exception of Russia and the Scandinavian countries
have, to different degrees, been influenced by the Napoleonic Code. The
legal systems of the United Kingdom other than Scotland, as well as
Ireland and the Commonwealth, are derived from English common law
rather than from Roman roots. Scots law, though also a civil law system,
is un-codified. It was strongly influenced by Roman-Dutch legal thought,
and after the Act of Union 1707, by English law.

The term "Napoleonic Code" is also used to refer to legal codes of

other jurisdictions that are influenced by the French Code Napoleon,
especially the Civil Code of Lower Canada (replaced in 1994 by the Civil
Code of Quebec), mainly derived from the Coutume de Paris, which the
British continued to use in Canada following the Treaty of Paris in 1763.
Most of the laws in Latin American countries are also heavily based on
the Napoleonic Code, e.g. the Chilean Civil Code and the Puerto Rican
Civil Code.30

29
"Noul Cod civil promoveazamedierea". 2013-05-05.
30
Rabel, Ernst (1950), "Private Laws of Western Civilization: Part II. The French Civil Code",
Louisiana Law Review, 10, 9. 110

56
In the United States, the legal system is largely based on English common
law. But the state of Louisiana is unique in having a strong influence
from Napoleonic Code and Spanish legal traditions on its civil code.
Spanish and French colonial forces quarrelled over Louisiana during most
of the 1700s, with Spain ultimately ceding the territory to France in 1800,
which in turn sold the territory to the United States in 1803.31 The 10th
Amendment to the US Constitution grants states control of laws not
specifically given to the Federal government, so Louisiana's legal system
retains many French elements. Examples of the practical legal differences
between Louisiana and the other states include the bar exam and legal
standards of practice for attorneys in Louisiana being significantly
different from other states; Louisiana being the only American state to
practice forced heirship of a deceased person's estate; and some of
Louisiana's laws clashing with the Uniform Commercial Code practiced
by the other 49 states.32

G. Afghan Civil Code:-

The current Afghan Civil Code dates back to 1977; includes

provisions on family and inheritance law that are essentially a
codification of the Hanafi School of law, with inclusion of some
provisions of the Maliki School of law. Family law provisions cover
matrimonial law, polygamy, child custody, and divorce. The enactment of
the Civil Code constituted a step forward from its antecedent, the
Marriage Law of 1971, which was silent on polygamy. Moreover, its
provisions on child marriage and divorce did not match any of the family
law reforms that had taken place elsewhere in the Middle East, the
Maghreb, and Pakistan in the 1950s and 1960s. In contrast, the Civil

31
Bonfield, Lloyd (2006). "Napoleonic Code". Gale Virtual Reference Library. Charles Scribner's Sons.
32
Engber, Daniel. Is Louisiana Under Napoleonic Code? Slate.com,

57
Code of 1977 introduced reforms on child marriage, polygamy, and
divorce. These amendments do not, however, sufficiently address the
social need for more effective measures, and they do not further either the
equality clause contained in Article 22 of the 2004 constitution or the
principles outlined in the Convention on the Elimination of all forms of
Discrimination against to women (CEDAW) to which Afghanistan is a
signatory.

A vast gap exists between the professed support for the principle of
equality and the reality of tribalism in Afghanistan's traditional society.
The importance and prominence of customary law, and especially the
customs and principles that are known collectively as the Pashtunwali,
which enjoy quasi-legality and apply to virtually every aspect of daily
life, should not be understated. These rules pertain mostly, but not
exclusively, to the commission of crimes, especially those committed
against persons or property.33 Such conflicts are primarily resolved by an
exchange of women from the family of the perpetrator of the crime to the
family of the victim. Women involved in this exchange do not have any
say.

Custom-based and traditional attitudes towards women are difficult

to change. Many women in Afghanistan cannot even hope to dream of
enjoying something even resembling equal rights, despite the fact that the
twentieth-century constitutions all boldly proclaim the opposite.

 Marriage

The Civil Code of 1977 grants women the right to choose a

husband without the prior consent of their guardian, in accordance with
the Hanafi School of law. With reference to child marriage, Articles 70

33
International Legal Foundation (2004), 'The customary laws of Afghanistan', Report (September).

58
and 71 of the civil code specify a marriageable age of eighteen for boys
and sixteen for girls, but dilutes in the meantime the effect of its own
provision by providing that a 'valid marriage contract may be concluded
by the contracting parties themselves, or by their guardians and
representatives. Thus the law falls short of addressing abusive exercise of
the power of guardianship whereby parents, brothers, and uncles often
impose their will on minor, and even adult, boys and girls. More recently,
the Supreme Court has approved of a new standardised marriage contract,
with the explicit aim of curbing forced and child marriages. It remains to
be seen whether in absence of any sanction people will abide by it. This
will also depend on the observance of the requirement of registration.

The 1977 civil code introduced a registration requirement for all

marriages. According to Article 61 of the civil code, every marriage has
to be registered. The competent body for the registration of marriages is
currently the district court of the area where the parties reside.34 However,
according to Afghan officials and current reports, in most parts of the
country, marriages are neither certified nor registered. Only 5 per cent of
the marriages have been registered.35 This means that the vast majority of
Afghans are not officially registering their marriages. The registration of
births, marriages, divorce and deaths are indispensable for determining
the population number and ensuring legal security in a modern state. Due
to the lack of reliable registration, it is not possible to collect statistics
with regard to the marriage of minors for example. Likewise, in marital
disputes, due to the lack of official documents, it is hard to prove the
existence of a marriage.

34
https://www.juragentium.org/topics/islam/en/yassari.htm#28
35
Erturk, Y. (2006), 'Integration of the human rights of women and gender perspective: Violence
against Women, its causes and consequences', Report of the Special Rapporteur on Violence against
Women E/CN. 4/2006/61/Add.5 Mission to Afghanistan, dated 15 February 2006. New York:
Commission on Human Rights of the United Nation.

59
 The lack of registration is partly explained by the fact that non-
registration does not affect the validity of the marriage: a marriage is
considered religiously valid without registration. The participants of a
workshop on family law conducted by the Hamburg Max Planck
Institute in 2006 in Kabul36 argued that a further reason why people do
not register their marriages is their distrust in courts. Accordingly, it is
against the Afghans' way of thinking, habits, and traditions to begin their
marital life by going to a court, even if it is only in order to register the
marriages. The other reason for not registering marriages is the fact that
there is no need for it in daily life. Presenting certified documents is
rarely necessary in Afghanistan. Thus, a simple but effective method for
promoting registration would be a compulsory presentation of the
marriage certificate to employers and landlords. For this purpose,
trustworthy, extrajudicial registration authorities should be set up all over
Afghanistan.

A further important issue in marriage law is the so-called bride

price (walwar), which has to be differentiated from the Islamic dower
(mehar). Walwar is a customary tradition whereby the groom or his
family has to pay to the head of the bride's household a sum of money (or
commodity) supposedly to reimburse the parents of the bride for the
financial loss they suffered while raising their daughter. Walwar
originates in the tribal tradition of Afghanistan, and viewed from the
Pashtun perspective, it is a matter of honour: the higher the walwar, the
higher the esteem of the husband's family for the bride. Some have
argued that the concept of walwar is wrongly considered as 'selling girls',
since this view ignores the socio-cultural background of the institution.
The idea underlying walwar is to provide some financial relief to the

36
https://www.juragentium.org/topics/islam/en/yassari.htm#29

60
girl's parents who purchase gold and silver ornaments, clothes, household
utensils, etc. as dowry for their daughters. However, even if the dowry
may be paid for out of the walwar, this is not a legal or customary
obligation; walwar very often does not benefit the girl's family nor does it
flow into the expenses for the wedding ceremony, also paid for by the
family of the groom.37

The amount of commodities or money acceptable as walwar differs

from province to province, as do the social attitudes with regard to this
practice. In the 1980s, Kamali recorded amounts varying between 20,000
and 200,000 Afghanis depending on the geographic areas; a uniform
figure could not be given. Likewise, a report conducted by the Max
Planck Institute for Private Law in Hamburg in 2005 revealed equally
variable amounts of payment of walwar. Data revealed, for instance, that
the walwar for a virgin girl ranged 2,000 U.S. dollars (about 85,000
Afghani) to 40,000 U.S. dollars (1,700,000 Afghani) for the first marriage
of a girl. This amount might be even higher if the man was already
married; it would double for the third marriage and increase further for
the fourth marriage. It is important to add that the amount of walwar can
also vary according to chastity, beauty, education, and the social class or
economic standard of the girl's family.

The need to purge the Afghan way of life of this tradition

detrimental to society at large was strongly felt. Accordingly, walwar has
been prohibited in all family law legislation prior to the Civil Code of
1977. The Marriage Law (1921) explicitly forbade the practice of walwar,
as did its successor, the Marriage Law of 1926. Both statutes failed,
however, to specify any means of enforcement or sanction in case of
infringement. The Marriage Law of 1949 contains similar provisions.
37
Kamali, H. (1985), Law in Afghanistan: A study of the constitutions, matrimonial law and the
judiciary. Leiden: Brill.

61
According to its Article 5, the bride is denied any further gift (including
walwar) in addition to her dower. Article 6 provides the groom with some
means of action and stipulates that the government is authorised to take
action in a situation where, after the completion of a valid marriage, the
guardian of the bride refuses to allow the bride to join her husband
because of his refusal to pay extra money. However, provision had hardly
a scope of application since normally the bride price is to be paid before
the conclusion of the marriage.38

Subsequent legislation repeated the prohibition of walwar (so

Article 15 of the Marriage Law 1971), but as its predecessors, the
Marriage Act 1971 failed to specify the competent court to hear cases on
the matter, the penalties involved, or the way the violator should be
prosecuted. The absence of sanctions made Article 15 inapplicable in
practice. The intention of the legislator to eliminate walwar did not
include any effective measure for the enforcement of the prohibition or
sanctions for violation. The civil code also does not address the issue,
thus failing to tackle one of the most burning issues in Afghan legal
reality. With no effective measure to sanction its breach, the practise is
still widespread in Afghanistan today.

H. Common Civil Code in Gulf Countries:-

In Saudi Arabia, the basic law of 1992 confirmed that Quran and
Hadith are the sole sources of law and that all laws and regulation must
conform to Sharia, which is the Common Law of the Country. It follows
that no foreign Judgement nor any contractual provisions Contrary to
Islamic principles may be enforced in Saudi-Arabia.

38
Kamali, H. (1985), Law in Afghanistan: A study of the constitutions, matrimonial law and the
judiciary. Leiden: Brill.

62
 In Saudi Arabia, where there is no Civil Code, Sharia operates
directly as a common law of the country both in commercial courts as
well as in courts of personal matters. No other law is applicable if
contrary to sharia.

Article 2 of the Kuwait Constitution provides that "The religion of

State of Islam and the Islamic sharia is a Principle source of legislation."

It is noted that Sharia is a principle source, and not the source of

legislation.

In 1992, the Kuwait Constitution Court dismissed a claim that the

Kuwait Civil Code that provides for interest was unconstitutional and
contrary to Article 2 of the constitution.

In United Arab Emirates (UAE) Article 27 State that Civil Code

provides that in case of conflict of laws, no law contrary to Sharia can be
applied.

Article 1 of the Civil Code of Egypt and Iraq contains similar

provisions that in the absence of any applicable legislative provisions, the
court shall adjudicate according to custom and usage, and in the absence
of applicable of custom and usage, the court shall apply the principle of
Sharia, which are most consistent with the provisions of the law39

I. Common Civil Code in Bangladesh:-

In Bangladesh, the lack of uniform personal law undermines legal

equality. The Country relies on colonial-era legislation to govern issue of
marriage, divorce, alimony and property inheritance. According to
Human Rights Watch, Bangladesh law gives a Muslim female spouse
fewer rights to marital property than a male spouse. A Hindu female

39
On Arab laws" curzon, 2000, P-50 prof. W. Ballantyne, Essay and address

63
spouse does not have the right to divorce and a Christian female spouse
has limited freedom to divorce.

In Bangladesh, Buddhist families are governed under Hindu family

laws despite being of a separate religion. Religious laws restrict the
freedom of spouses to end abusive marriage and force many in to
poverty.

Discrimination and corruption are often seen during the process of

inheritance. Despite call for reform, the government has failed to provide
adequate legislation to abolish the existing inequalities in personal law.

Thus, it is observed by the Researcher that one of the reasons

behind the lack of Civil Code in Bangladesh is the legacy of the British
rule.

64
 CHAPTER-IV
CONSTITUTIONAL PROVISION AND THE
UNIFORM CIVIL CODE

There are several provision in the Indian constitution which are

directly related to the Uniform Civil Code.1 The Uniform Civil Code may
be discussed under following important reads namely.

(A) The Fundamental Rights

(B) The Directive principles of the State policy and

(C) The Fundamental Duties.

A. Uniform Civil Code and Fundamental Rights:-

One of the key problems for implementing the Uniform Civil Code
has been the relationship between the Constitution and various religious
personal laws. Here the important task is to resolve the conflict between
the power of the State to enact a Uniform Civil Code and fundamental
right of the people to exercise their right to freedom of conscience
including the right to be governed by their religious personal laws. In this
regard the provisions of the constitution of India are ambiguous and the
conduct of the State to reform the religious personal laws has been
inconsistent. Since there has been no substantial contribution of
legislature therefore, Researcher tried to discuss the judicial
pronouncement on the status of religious law and their relation with the
Constitution. Researcher also tried to discuss first the relationship
between the Constitution and personal laws. The important issue that
need to be clarified is whether part III of the constitution governs

1
Specially Part III & Part IV of the constitution

65
personal laws, and if so whether personal laws that provide less equal
rights to women discriminate on the basis of sex, violate the Constitution.

In Indian Constitution it may be asked whether fundamental right

to religion can have precedence over the fundamental right of equality.
Researcher argues that the founding fathers had not envisaged religious
personal law as an 'Extra' constitutional laws and the judicial decision that
put religious personal laws beyond the control of fundamental rights. In
this connection it may be pointed out that because all religious laws more
or less contain discriminatory provision, the state at times compromise
the rights of women when it chooses of safeguard the religious personal
laws.2 In view of this Researcher tried to explain that the state is obliged
to initiate the process to enact a Uniform Civil Code. The most
appropriate way to obtain the Constitution guarantee of equality is to
break the link between religion and personal law.

 Relationship between Personal law and the Constitution of India:

The Constitution of India guarantees the right to equality and also

prohibits the State from discriminating the citizen on grounds of religions
or sex etc.3 However, the existing religious personal laws have the effect
that the men and women of different communities have different rights
with regard to the same areas like marriage, divorce and succession.
Moreover, men and women of the same community also have different
rights in many personal areas and women in most of the cases, have fewer
rights. The continuance of religious personal law even after
commencement of the Constitution of India many jurists raise doubts
whether these laws are governed by the constitution at all.

2
Parashar, Arhana & Dhanda Amita (eds), Redefining family law in India, Routledge, New Delhi,
2008, P.P. 211
3
Art 14 & 15, Part III of the Indian constitution.

66
 The Constitutional development shows that except the Hindu
personal law the legislature has not modified any religious personal laws
to make them in tune with the constitution. Again even though Article 13
provides that the laws inconsistent with part III shall become void, at
times, the Indian courts have ruled that the religious personal laws are not
governed by part III of the constitution i.e. Fundamental Right chapter.

On the relationship between religious personal laws and the

constitution the starting pronouncements came from Bombay High court4
where the defendant was prosecuted under the Bombay prevention of
Hindu Bigamous marriage Act, 1946. He argued that the said Act was
unconstitutional because the provision of Hindu and Muslim law, which
allowed polygamy for males but not for women, violated Art 14 and 15 of
the Constitution.

In this case the Bombay High Court had to determine whether the
personal law of Hindus and Muslims were 'laws in force' within the
meaning of Art 13(1) and 372 (1) of the constitution. If personal laws
were covered by the term 'Laws in force' then in order to survive after
adoption of the Constitution, the same must comply with the provision of
part III of the Constitution. The Bombay High-Court held that the
personal laws do not cover by the expression 'laws in force' and thereby
do not become void at the commencement of the constitution, even if
they conflict with part III of the Constitution.5 The Division Bench of the
court presented several reasons for its conclusion, firstly Article 44,
indirectly recognized the existence of different personal laws and permits
their continuation until a Uniform Civil Code is enacted. The court
pointed out that the Constitution empowers the legislature to reform these
personal laws under entry 5 of the constitution list, Secondly, the specific
4
State of Bombay v/s Narasu Appamali AIR 1952 (Bom 84)
5
Justice MC chagla and PB Gajendra Gadkar J.

67
mention of personal law in entry 5 indicates that constitution makes
treated it as a distinct category and if personal law was to be included in
the phrase 'law in force' of Art 13(1) it would have been Intentional.6

In the similar case, before the Madras High-Court the petitioner

challenged the madras Hindu (Bigamy prevention and divorce) Act, 1949
it was contended that the Act by prohibiting polygamy amongst Hindus
only and leaving Muslim men free, denied Hindu men equality before the
law. Moreover, the Act restricted the Hindu male's right to profess,
practise and propagate religion.7 The Madras High Court did not
specifically decide whether the expression 'law in force' in Art 13(1)
includes personal laws. The court ruled that even assuming that the said
expression does include personal laws, and the Act does not violate
Article 15 which prohibits any discrimination on the grounds of religion,
caste, sex etc.

On this issue the another judicial dictum came from Supreme-

Court in the case of Krishna Singh V. Mathura Ahir8 where the Supreme
Court held that part III of the Constitution does not cover the personal
laws of the parties, However in this case the Supreme Court failed to
support its dictum with reasons. It may be pointed out that except the
Bombay High Court in NarasuAppa Mali case, no court has given a
reasoned decision as to why personal laws that violate part III of the
constitution should not be declared void. However the reasons provided
by the Bombay High- Court does not appear valid.9

A Number of Supreme Court decision including the said High-

Court decision, held that the term 'law in force' used in Art. 372(1) and in

6
The third list is titled the concurrent list and enumerates the saiect on which the union and states can
simultaneously legislate.
7
SriniwasaAiyar V. SaraswathiAmmal AIR 1952 Mad. (193)
8
AIR 1980 SC (707)
9
A Parashar, Women and family law reform in India, 1992, P. 207.

68
Article 13(1) includes statutory, non-statutory, written and unwritten,
customary, common, state made or judge made laws, even though the
definition of the phrase only refers to statutory laws.10

Although none of the referred decisions deal specifically with

personal laws it will be difficult to hold that personal laws form a
different categories from all those mentioned categories. The other
ground of the Bombay High-court decision in Narasu case that the
presence of Article 44 implies the existence of different codes of personal
law and their continued validity, even after the commencement of the
constitution, places under reliance on Article 44. In fact it is Article 372
which is intended to provide for the continuance of all pre-constitution
laws. Article 44 forms a part of the directive principles and simply
enjoins the state to enact a Uniform Civil Code. It can be best to support
the provision of Article 372 but cannot of it self-suffice to provide for the
continuation of the personal-laws, even if it is accepted that the presence
of Article 44 does imply the continuation of personal laws in the interim-
period. It does not by any means imply that such-personal laws are not
required to conform to the provision of part III of the constitution.11
Again, the fact that personal laws are mentioned as a subject of
legislation, but not specifically mentioned in Article 13 does not prove
that the constitution makers treated personal laws as a special category.
There are many other topics, legislation mentioned in the list of the VII th
schedule which find no specific mention in the expression "law in force"
in Article 13. No claim has been made that these topics are not governed

10
The definition of law in force is not exhaustive- (1) Sant Ra v/s Labh Singh AIR 1964 SC 314 P. 316
(2) Baijanath v/s Ramanath AIR 1951 HP 32.
11
A Parashar, women and family aw reform in India, 1992 (P. 208)

69
by the constitution because they are not specifically referred in Article
13.12

The interpretation put forward by the Bombay High Court is also

contrary to the action of the parliament which reformed and codified
Hindu personal law. The overriding clause in each Hindu law Act
provides that all rules or interpretation of Hindu-law and all customs and
usages forming part of that law, shall have no effect with respect to
matters dealt with by the Act, yet the reasoning of the Bombay High-
court leads to the anomalous conclusion that only a portion of personal
law are not recognised by the constitution.

The Bombay High Court decision in the case of NarsauAppa Mali

is untenable, in understanding the decision it has to be in view that the
two judges went to extreme lengths to declare personal law beyond the
scope of part III of the constitution because they wanted to save the
Bombay Prevention of Bigamy Act from being declared void.

Although the Constitution is silent about the religious personal

laws in order to make them conform to the constitution. Except the
provision of Article 25(2) (b) the inclusion of Article 44 gives an indirect
but sufficiently clear indication of the authority of the state. Article 44
implies that a Uniform Civil Code is a desirable goal and it also implies
that state supposed to at some time, remove various discriminatory
religious personal law to achieve the Constitutional objectives.13

12
Ibid at 209
13
A Parashar at P. 212

70
 Right to Freedom of Religion: Is it a Bar to Reform of Personal
laws:

Under the Indian Constitution there has been certain conflicting

interests, one of such areas of conflict has been between the goals of
Uniform Civil Code under Article 44 and freedom of religion. The history
of constitutional development of Uniform Civil Code shows that if there
has been any single most important hurdle in the way of Uniform Civil
Code, it has been religious freedom as guaranteed in the constitution
under this right. It has been claimed that people of India have
constitutional right to retain their personal laws. Since the claim to retain
the personal laws has been related to the interpretation of freedom of
religions. Therefore, the judicial pronouncements relating to the scope of
freedom of religion is relevant here. Again, since the constitutional
provision of freedom of religion have been used by both proponents and
opponents of the Uniform Civil Code, the real scope of these provisions
has become important.14 In this thesis Researcher tried to examine the
scope of the said constitutional provisions and judicial decision. In this
connection Researcher also tried to study the constituent assembly debate
which will help to determine whether the constitution makers intended
the right to freedom of religion to prevent state intervention with regard
to the reform of the personal laws.

Article 25 to 28 provides certain right relating to freedom of

religion not only to the citizens but all persons in India.

14
Solanki, Gopika, Adjudication in Religious family law, Cambridge university press, Chennai 2011, at
(P. 106)

71
 Article 25 freedom of conscience and free-profession, practice and
propagation of religion.

(i) Subject to public order, morality and health and to other

provisions of this part. All persons are equally entitled to
freedom of conscience and the right freely to profess, practice
and propagate religion.

 Article 26 guarantees certain right to the religious

determinations.15

The language of these two Articles makes it clear that freedom of

religion is not an absolute right. Their exercise is to subject to
maintenance of public order etc. It is interesting to note that under the
constitution the term 'religion' has not been defined but the courts have
given it an expansive meanings. However there has been some ambiguity
with regard to the true-scope of this Article. Again a religion may not
only lay down a code of ethical rules for its followers to accept but may
also prescribe rituals ceremonies and modes of worship which are
regarded as an interfere part of the religion. So far scope of the freedom
of religion is concerned, the courts in India have adopted the technique of
dividing religious practices in to those which are essential and those
which are not essential. The courts have declared that protection against
state intervention is only available for the essential practices of the
religion.16

The broad interpretation of the right of religious denominations

was bound to come into conflict with the powers of the state to regulate
certain aspects of religious personal laws. In the case of Ram Prasad V.

15
Art 26- Freedom to manage religious affairs, subject to public order, morality and health?
16
Commissioner of Hindu religions endowments madras v/s Sri Lakhsmindra Tristhaswamisa of Sri
Shriwim 4th, 1954, (SC R 1005)

72
State of Uttar Pradesh.17 The Court was asked to determine the
constitutional validity of a service rule which required to government
employee to seek permission of the government employee before entering
in to a polygamous marriage. This rule was challenged by a Hindu
petitioner as infringing his right under Article 25 and it came to the
conclusion that the permission for polygamy could not be regarded as
forming an integral part of religion.

The Supreme Court had occasion to consider Article 26 again in

Dargah committee Ajmer V. SayedHussain Ali18 In this case Supreme
Court opined that only those practices which are regarded by the religion
as an integral part of the religion should be protected under Article 26.
Otherwise even secular practices could become the subject of a claim for
protection under Article 26.This point view was further explained in
sardar syedna tahersaifuddin saheb v. the state of Bombay.19 The
Supreme Court expressly stated that whether a religious practice is an
essential part of religion is an objective question which has to be
determined by the Court. In this case Supreme Court observed that an
obviously secular practice was claimed to constitute on essential part of a
religion. The court would be justified in rejecting that claim20

Subsequently in S.P. Mittal AIR 198321 and BiojoeaImmanual AIR

198722 has taken the same approach.

It may be concluded in above discussion that our founding fathers

wanted to abolish the ill practices associated with the various religions
and therefore, they provided necessary power to the state under Article 25
(2) (a) and (b) but courts at times have given freedom of religion
overriding effect upon Art 25(2) (a) and (b) and this has strengthened the
17
AIR 1961 All 334
18
AIR 1961 SC 1402
19
AIR 1962 SC 853
20
Tilkayat Govind Lal N. v/s State of Rajasthan AIR 1963 SC 1638 at (P. 1661)
21
S.P. Mittal V. Union of India AIR 1983 SC (1)
22
Bijoeaimmanual V. State or Kerala AIR 1987 SC 748

73
hands of the religious leaders. The court must see ill effects of such
interpretation and help the legislature and the executive to achieve secular
ideals along with equality and gender justice. In this connection the
personal laws of the communities must also be interpreted in the light of
the said ideals so that Indian society may be prepared to adopt a Uniform
Civil Code.

B. Uniform Civil Code as a Directive Principle of State

policy:-

As it is known that part IVth (Article 36 to 51) contains certain

principles which have been described as the active obligation of the State.
The directive principals of state policy of the Constitution possess two
characteristics. (i) Firstly, they are not enforceable in any court and
therefore if directive is not obeyed or implemented by the state, its
obedience or implementation cannot be secured through judicial
proceeding (ii) Secondly, they are fundamental in the governance of the
Country and it shall be duty of the state to apply these principles in
making laws. The expression" law must be constructed in a generic sense
and should include all normative exercise of power including the decision
making.23 Article 44 is one of the important directive principles, which is
directly related to the Uniform Civil Code and it says "The state shall
endeavour to secure for the citizens a Uniform Civil Code throughout the
territory of India".

Since Article 44 is the only provision of the Constitution on the

basis of which enables to take about the unification of family laws.
Therefore, there has been much controversy about the real meaning,
message and scope of Uniform Civil Code. Article 44 of the constitution

23
V.N. Shuklals: constitution of India by M.P. Singh 9 th Edition, 1994 at P. 298.

74
does not direct any law making body to enact a Uniform Civil Code
straight away. It only says that the state shall endeavour to secure a
Uniform Civil Code for the citizens through the territory of India. The
cautiously selecting wording of Article 44 is extremely important. Every
word of it needs the deepest attention.

In relation to Article 44 the following questions have been raised:

 Is endeavouring to secure something the same as directly

enacting a law?
 What is meanings and scope of a civil-code? What is conveyed
by the expression uniform?
 Are "uniform" and "common" interchangeable words?
 What is the significance of the clause throughout the territory of
India in Article 44?
 Is the uniform civil code to be compulsory applicable to all
citizens of India?

The above are the few important questions which need proper
consideration while interpreting Article 44. There has been problem as to
how to determine the meaning and scope of expression "Civil Code" as
used in Article 44 in the constitution. The word "code" is used in many
different senses. It may be in a single comprehensive statute ex. Indian
Penal code. But it may also refer to a body of several statutes dealing
with the same subject.

Again it may be pointed out that the term "Uniform" is not equal or
similar to the term "Common" therefore a question arises that what are in
fact requirements of uniform in respects of a 'Civil Code'. Does the
constitution talk of a strict and rigid uniformity of family law? All the
questions are indeed important in the interest of a smooth implementation

75
of Article 44 of the constitution. The principle of Article 44 is basically
related to the Unification of civil laws. The state is expected to apply
these principles while making laws relating to civil matters. Ordinarily,
the principles of uniformity, to be applied in making civil laws, is
fundamental in the governance of the Country, but if the state cannot
enforce these principles, whether a court can enforce them? In fact the
Constitution leaves it entirely to the wisdom of the state when or how it
can apply the principle of uniformity in making civil laws.

It may be also pointed out that Article 44 cannot be read in its own
context only, in fact it may be interpreted in the light of the other
provision of the constitution. Therefore the demands of the Article 44 and
modalities with implementation both are to be determined in the light of
the provisions of part III of the constitution. So far the relationship
between the directive principle of the state policy, and the fundamental
right is concerned, there has been changing interpretations. In the
beginning of the constitution this problem came before the courts of
India. The supreme-court took the view that the directive principle can-
not be given preference over the fundamental rights.24 But this
interpretation was diluted subsequently and the Supreme Court saw
harmony between the fundamental right and the directive principle25

Finally in Minerva mills ltd. v. Union of India.26 The court held

that 'harmony and balance between fundamental right and directive
principles is an essential feature or the basic-structure of the constitution.
In pursuance of this approach, the court has been trying to draw a balance
and harmony between the fundamental-right and directive principle

24
State of Madras V. ChampakamDoriarajan AIR 1951, SC (226)
25
Mohd. Hanif Qureshi V. State of Bihar, AIR 1958 SC (739)
26
AIR 1980 SC 1784, 1806

76
 "Justice Mathew" observed: "I think there are rights which are
inherent in human beings because they are human being. Whether you
call them natural rights or by some other appellation are immaterial. The
preamble indicates, it was to secure the basic human rights like liberty
and equality that the people gave in to themselves in the Constitution and
these basic rights are an essential feature of the Constitution. The
Constitution was also enacted by the people to secure justice, political,
social and economic. Therefore the moral rights embodied in part IVth of
the Constitution are equally essential feature of it. The only difference
being that moral rights embodied in part IVth are not specifically
enforceable as against the state by citizen in a court of law."27

Justice Chandrachud said -"The Indian Constitution is founded on

the bedrock of the balance between part III and IVth of the Constitution to
give absolute primacy to one over the other is to disturb the harmony of
the Constitution. This harmony and balance between fundamental rights
and directive principle of state policy is an essential feature of the Indian
Constitution."28

In this connection one of the most important question is that how to

implement the Article 44 without affecting the Fundamental right of the
citizen. In this connection Prof. Tahir Mahood is of the opinion that
legislative enactment of Uniform Civil Code straightway is not envisaged
by the constitution even at the central or state level. Article 44 wants the
government and the legislature to make possible endeavours which may
in the long run secure uniformity in the making and application of civil
laws.29

27
Keshvananda Bharti V. State of Kerala, AIR 1973 SCC 225, 880-81-Para 1714
28
Minerva mills Ltd V. union of India AIR 1980 SCC 591
29
ChudhariHyder Hussein- "A unified code for India" AIR (Journal-P. 71-72)

77
C. Fundamental duties and the Uniform Civil Code:-

42nd amendment of the Constitution 1976 brought beautiful concept

of Fundamental duties in the Indian Constitution. It may be pointed out
that some of the fundamental duties are already being enforced through
ordinary laws but some of the fundamental duties appears to be legally
non-enforceable because they are vague and imprecise.30So far as the
legal status of fundamental duties are concerned these are not capable of
legal enforcement, this can be regarded as 'directory.' Again, these duties
of individual citizens cannot be enforced through Mandamus, as they do
not perform public duties.31However the above discussion does not
suggest that these fundamental duties have no legal value. It may be
mentioned that there is a close relationship between the ideals of
fundamental duties and uniform civil code and it may be demonstrated
that some of the fundamental duties also indicates desirability to have the
Uniform Civil Code in India.

The Object of the Article 44 in India is to achieve national unity

and integrity through communal harmony. The basic object of the
fundamental duties are also of the view that every citizen of India must
have a duty to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
sectional diversities.32 Uniform Civil Code is also a medium through
which the people belonging to heterogeneous elements come to united in
to a nation. Which also find a prime place in the preamble of the
constitution. It has been laid down in Art 51 A (c) that it shall be the duty
of every citizen of India to uphold and protect the sovereignty, unity and
integrity of India.

30
M.P. Jain, India constitutional law 1987 P. 750
31
Surya Narayan V. Union of India AIR 1982 S.C. 17.
32
ART 51-A (C) of the constitution

78
 Apart from that goal of the national unity, one of the most
important objects of the uniform civil code has been to protect the dignity
of women by giving them equal status in the society. As it is seen that the
personal laws of almost all the communities have been against the equal
right of women. The Uniform Civil Code has been considered as a friend
of women since it may abolish the ill effects of personal laws. One of the
fundamental duties also says that it shall be the duty of every citizen of
India "to renounce practices derogatory to the dignity of women",
therefore, from this point also the ideals of fundamental duties and
Uniform Civil Code is the same.

In the end it can be stated that there is close relationship between

ideals of fundamental duties and the Uniform Civil Code since the
fundamental duties have been used to determine the reasonableness of the
law. Thus if Uniform Civil Code is formulated, it should not be seen as
violation of the fundamental right of the religion.33

D. Constituent Assembly debates and Uniform Civil

Code:-

Personal laws attracted the attention of the constituent assembly

and heated the debates in favour of Uniform Civil Code. The proposal
related to uniform civil code was discussed under Article 35.34 Muslim
members strongly opposed it, whereas most of the Hindu members
supported it. B.R. Ambedkar opined in favour of interferences in Personal
laws.35

Soon after independence the question of the position of personal

laws got entangled in to the whirlpool of national politics on the floor of

33
D.D. Basu, Introduction to constitution of the India, 1997, P. 133.
34
VasudhaDhgamwar, Towards the uniform civil code, at P. 48 (1989)
35
Constituent Assembly debates, (1948), Vol. VII, P. 548

79
constituent assembly about two years. The Constituent assembly debates
in the constitution making process revealed that the constitution makers
debated the concept, relevance and utility of the Uniform Civil Code.

The Muslim members of the Constituent assembly opposed the

move with all possible intensity at their command. In this background the
arguments for and a quest for the objective evaluation of the Uniform
Civil Code will not be out of place in India which is known for its
religious, cultural and lingual diversities.36 The Constituent assembly had
its first meeting in December 1946. However, just after the freedom of
India from the grip of British imperialist, the place and shape of personal
laws in the future legal order in the country got much entangled in to the
whirlpool of national politics. Framers of the Constitution envisage to
establish a sovereign, democratic, republic, liberty, equality and
fraternity. Later on, in 1976 words 'Secularism' and ‘Socialism’ were
added37 to the preamble. Fundamental rights especially regarding the
right of freedom to religion was designed in our constitution before it's
commencement in 1950. Since then, in the Constituent assembly as well
as on every platform, a great deal of discussion on personal laws has
taken place repeatedly.38Even prior to commencement of the constitution
much was debated in the constituent assembly for and against the
personal laws. The Constituent assembly debated the Uniform Civil Code
under Article 35. Mohammad Ismail from Madras moved the following
proviso for addition to Article 33 which provided that "group, section, or
community of people shall not be obliged to give up its own personal law
in case it has such a law''. He advocated that the right to abide to one's
own personal laws was one of the fundamental rights. He asserted that

36
H.A. Gani, Reform of Muslim personal law, P. 58 (1988)
37
42nd Amendment 1976
38
Jain M.P. outlines of Indian legal & constitutional History, Lexis Nexis Nagpur, 6 thEdn, 2009

80
personal laws were a part of the way of the life of the people.39In his
opinion, personal laws were the part and parcel of religion and culture.
Any interference with the personal laws would tantamount to interference
with the very way of life of those who had been observing such laws from
generation to generation. Further, Mohd. Ismail elucidated that India was
emerging as a secular state and it must not do anything which hinder the
religious and cultural ethos of the people. To strengthen his argument, he
cited precedents of Yugoslavia, The kingdom of Serbs, Croats and
Slovenes which were obliged under treaty obligation to guarantee to
Muslims being in minority in the matter of family laws and personal
status.

"The Serbs, Croats and Slovene states agree to grant Mussalmans

in the matter of family law and personal status, provisions suitable for
regulating these matters in according to Musalman usage."

To enrich his arguments, he named similar protective clauses of

other European Constitution which deals with the minorities. However,
such clauses were narrow in scope as they dealt with any group, section
or community of the people and not confined to minorities only, the
proposed amendments sought to secure the rights of people in respect of
their existing personal laws. Mohd. Ismail contended that in favour of
Uniform Civil Code was counterproductive and the discontentment and
faithfulness would be the natural result. By following their personal laws,
people of difference caste and communities would not be in the conflict
with each other. The argument of Mohd. Ismail was objected by High
Court. Majumdar, another member of Constituent assembly, who
contended that the proposed amendment was in direct exclusion of
Article 35. Majumdar objection was sustained by the vice-president and
39
Constituent Assembly debates, (1948), P. 560

81
Mohd. Ismail could not succeed. Another member of the constituent
assembly Nazir Ahmed moved a proviso to Article 35 which read:

"Provided that the personal law of any community which has been
guaranteed by the statutes shall not be changed except with the previous
approval of the community ascertained in such a manner as union
legislature may determine by law.40 He further remarked that the Uniform
Civil Code would create inconvenience not only to Muslims but to all
religious communities who had religion oriented laws. He further pointed
out that the very concept of Uniform Civil Code clashed with religious
and cultural freedom guaranteed to every citizen. He was also
apprehensive that under Article 35 the state may violate the religious
freedom of the citizens.

Another member, Mahboob Ali Beg Sahib Bahadur moved the

following proviso to Article 35 "Provided that nothing in this article shall
affect the personal law of the citizen."

Mahbood Ali Beg emphasized that civil code spoken of in Article

35 did not include family law and inheritance but some people have
doubts about it. It should be made clear to assure that Civil Code would
cover transfer of property, contract, etc. but not matters regulated by
personal law. He also claimed that secularism did not negative diversity
in personal laws41

M.A Ayyanger42 member of the Constituent Assembly intervened

and remarked on it as a matter of contract. M.A. Ayyanger tried to put his
argument forcefully and asserted that the matrimonial contract was

40
Constituent Assembly debates, (1948)
41
Bakshi, P.M. the constitution of India, universal law publishing Co. Pvt. Ltd. Delhi, 15th Indian
reprint 2007
42
The first deputy speaker and then speaker of the Loksabha in the Indian Parliament.

82
enjoined by the Holy Quran and the traditions of the prophet (SAW). He
stated that the Indian concept of secularism tolerated the existence of all
religions with equal honour and dignity. He emphasised that in secular
state like India, different communities must have the freedom to practice
their own religion and culture, and they should be allowed to observe
their own personal law43 B. Pocker Sahib another member of the
Constituent assembly while supporting the motion proposed the following
provision to Art 35.

"Provided that any group, section or community of people shall not

be obliged to give up its own personal law in case it has such a law"

He said emphasis on the following points:-

(A) One of the 'secrets of success' of the British rulers and the basis
of their judicial administration was retention of personal laws,
(B) If the civil code was intended to supersede the provisions of
various civil code laws guaranteeing application of personal
laws to cases of family law and inheritance, etc. Article 35
should be termed as 'tyrannous provision; and
(C) No community favoured uniformity of civil laws.

Organisation, both of Hindus and Muslims, questioned the

competence of the Constituent assembly to interfere with religious laws.
Article 35 was antagonistic to religious freedom.44 Hussain Imam
Member of the Constituent assembly also expressed similar views and
pointed out that India is too big country with a large population so
diversified that is almost impossible to stamp them with one kind of
anything. In the North, we have got extreme heat, In Assam we have got

43
Guarnteed under Art 25 to 28 of the Indian constitution
44
Constituent Assembly Debates, (1948) Vo VIIth, P. 550

83
more rain than anywhere in else in the world. In Rajputana desert we
have no rain. If a country so diverse, is it possible to have uniformity of
civil law?

Concurrent jurisdiction to the provinces as well as to the centre in

matters of succession, marriage, divorce and other things, how is it
possible to have uniformity when there are 11 or 12 legislative bodies to
legislate on subject according to requirements of their own people?

He further argued and appealed that the apprehension felt by the

members of minority community is very real. Secular state does not mean
that it is anti-religious but non-religious and as such there is a word of
difference between irreligious and non-religious, therefore it was
suggested that it would be good policy for the member of drafting
committee to come forward to such safeguards in this proviso as it will
meet the apprehension genuinely felt and which people are feeling and I
have very hope that simplicity of Dr. Ambedkar will be able to find a
solution to this.45

The above account of the opinions expressed by Muslim members

in Constituent assembly shows two different opinions. While Naziruddin
Ahmad and Hussain Imam visualized the possibility of having Uniform
family law sometime in future. The other speakers ruled out the
possibility of having a Uniform Civil Code for all time to come. Thus,
Members of the minority strongly argued for exclusion of personal laws
from the ambit of the Uniform Civil Code despite their convincing
arguments and deep resentment. They could not succeed, only got some
assurance from Dr. B.R Ambedkar.

45
Constituent Assembly debate (1948)

84
 While many members of the Hindu community expressed their
opinions contrary to the views of Muslim members. K.M. Munshi
expressed the following views...

(A) Even in the absence of Article 35 it would be lawful for

parliament to enact a Uniform Civil Code, since the article
guaranteeing religious freedom gave to the state power to
regulate secular activities with religion.
(B) In some Muslim countries, for example, Turkey and Egypt
personal laws of religious minorities were not protected.

(C) Certain communities amongst Muslims, for example, Khojas and

Memons did not want to follow the Shariat, but they were made
to so under the Shariat Act, 1937.
(D) European countries had uniform laws applied even to minorities.
(E) Religion should be divorced from personal laws. The Hindu
code Bill did not conform in its provisions to the precepts of
Manu and Yajnvalkya.
(F) Personal laws discriminated between person and person on the
basis of sex which was not permitted by the constitution.
(G) People should outgrow the nation given by the British that
personal law was part of religion46
A.K. Iyer, a Member of the Constituent Assembly, supported K.M
Munshi and argued the assembly to pass the article dealing with the
Uniform Civil Code. He explained the scope of uniform civil code:

"A civil code runs into every department of civil relations to the
law of contract, to the law of property, to the law of succession, to the
law of marriage and similar matter".

46
Bhat, P. Ishwar, constitutionalism and constitutional pluralism, 2003

85
 The assembly passed the article accordingly, brushing aside the
proposal of the Muslim members for the exclusion of personal laws from
the ambit of Uniform Civil Code.

Dr. B.R. Ambedkar although did not accept the amendments and
defined the right of the state to interfere in the personal-laws of different
communities. He defended laws of different communities. He defended
the arguments of supported members of the Constituent assembly but at
the same time he also gave some assurances to the opposed members of
constituent assembly and he explained that the proposal was creating only
a 'Power' not an 'Obligation' and closed the debate with these memorable
words:

"Sovereignty is always limited, no matter even if you assert that it

is unlimited, because sovereignty in the exercise of power must reconcile
itself to the sentiments of different communities, no government can
exercise its power in such a manner as to provoke the Muslim community
to rise in rebellion. I think it would be a mad govt. if it did so. But that is
a matter which relates to exercise of power and not the power itself."

Besides, the above observation Dr. Ambedkar Persuaded the

Muslim members "Not to read too much in to Article 44." He affirmed
even if the uniform civil code was implemented it would be applicable to
those who would consent to be governed by it.47

Thus it is observed by the Researcher that Dr. Ambedkar wanted to

show the seriousness of the matter and opined that Uniform Civil Code
should be implemented very carefully.

47
B.R. Ambedkar, constitution of constitutionalism

86
 CHAPTER-V
OBJECTION AND CONSTRAINTS ON THE
ENACTMENT OF THE UNIFORM CIVIL CODE

The Objections, difficulties and constraints relating to the Uniform

Civil Code are as old as the idea of the Uniform Civil Code itself, since
this idea involves the codification of personal laws and such laws often
mixes with religion and culture, therefore, it has been under attack.
Researcher tried to discuss the main objection, difficulties as well as the
causes of non-implementation of the Uniform Civil Code in India.

A. Objection Relating to the Uniform Civil Code:-

Uniform Civil Code being a controversial idea has faced

innumerable objections ever since its concept has been introduced.

[1] The Uniform Civil Code is Against the Freedom of Religion

The Codification of laws in India was started during the British

period. During the period most of the civil and criminal laws were
codified, but Personal laws were not subjected to reform as it was done in
case of criminal or non-personal civil laws. The reason behind this policy
was that British did not want to infuriate the Indian religious society
which considered the personal laws as an integral of their religion.1

The Muslim Members opposed idea of Uniform Civil Code by

saying that it would violate their religious freedom. On the other hand the
supporters of the Uniform Civil Code saw it as a means to achieve
equality, gender justice and unity of the nation. They argued that Personal
laws are not an integral part of religion and if it is so the State has the
power to regulate freedom.
1
Asghar Ali Engineer, 'The right of women in Islam' 1992, pp. 167-169

87
 The Constitutional Conflict between freedom of religion and
requirement to have Uniform Civil Code has not been resolved even after
seventy three years of India's independence. It seems that the nation is as
divided as it was before 15 august 1947. The opponents of the Uniform
Civil Code still take shelter of religious freedom. However, in support of
the idea of the Uniform Civil Code the following submissions may be
upgraded:2

(i) Though traditionally religion has socio-religious aspects but

under the progressive thinking it has been said that it must be
confined to individual faith and beliefs and one's personal
relation with God must be separated from other aspects of social
life.

(ii) Though the Indian Constitution provides fundamental right to

freedom of religion but the same constitutional provision i.e.
Article 25 expressly saves.

(a) The laws relating to secular activity which may be

associated with religious freedom;

(b) The laws providing for social welfare and reform. It has
been right argued that the personal laws of various
communities may be amended or subjected to change
under the said regulatory power of the State. The
traditional orthodox of Indian society cannot be reformed
unless the state regulates the personal laws. At times, the
state has shown the courage to regulate religious freedom
but because of the political considerations nothing was
done to achieve the constitutional goal of Uniform Civil
Code in India. Constitutionally, Secularism is now the

2
Sarabjee soli, "Should Secular law be a personal choice"? Express magazine, 29th June, 1996

88
 "Basic Structure" and the State must start to secularise the
personal laws in order to achieve a preferred
constitutionally objective.

(c) Most of the European Countries have their uniform civil

code and every citizen including the minorities are subject
to the same sets of laws. No exceptions are made and no
protests are heard. In such countries the Uniform laws in
civil matters are not considered dictatorial or oppressive
by the minorities. In comparison to European Countries
position of India is totally different. Though Constitution
based on secular principles and adopted a Uniform Civil
Code as a future constitutional goal, still have various
discriminatory, unprogressively and dividing religious
personal laws. India is one of the few existing orthodox
nations where even an attempt to achieve gender justice
has been dubbed as an attack on a particular religion.
Many countries of the world including Islamic nations
have accepted progressive laws but in India it is unable to
secularise personal laws because of the resistance of
religious fundamentalists.

(d) At times, it is believed that the replacement of personal

laws with a state enacted uniform family code will prevent
further development of religious laws and undermine the
right and dignity of religion. It has been also argued that in
a religious society like India reforms in family laws may
be more effective if such reforms come from the initiative
of a community. In the context of such objection it can be
said that no doubt great religious messengers and leaders

89
 have succeeded in reforming the society by using the tool
of religion. But the succeeded here after the end of the life
of such messengers the often fail to carry the real spirit
behind the religion. They also fail to impart the required
interpretations, often needed in the changing time and
circumstances. Because of this failure, a religion loses its
authority and dignity and even some times stands against
reform its authority and dignity and even some times
stands against reform and progress. In the light of this
development the replacement of religious personal laws
by the state made Uniform Civil Code should not be seen
as an obstruction to the further development to religious
personal laws.

[2] The Uniform Civil Code is Against the Cultural Right

Another significant objection to the Uniform Civil Code in India

has been that the imposition of Uniform Civil Law on people would
damage the cultural heritages and by forcing uniformity, it would alienate
the people from the State. In this regard it has been argued that Article 29
guarantees to every section of the citizens of India the right to conserve
its languages, script or culture and since the Uniform Civil Code may
impose a different kind of values and culture on the citizens, hence a
Uniform Civil Code is against the constitutional protection. It has also
been said that the law or the legal system is closely interlinked with the
culture of any society, so it is necessary to protect the culture not to
interfere with the personal law of that society. It is interesting to note that
the objections based on cultural rights against the Uniform Civil Code in

90
India, has been raised by the minorities and especially from the Muslim
community.3

The argument that the substitution of the State enacted Uniform

Civil Code for personal law will damage the cultural identity of any
section of citizen, presents not a true role of the Uniform Civil Code.

The expression 'Culture' has not been defined in the Constitution of

India but historians, sociologists and other experts have defined it. Some
have defined it narrowly while others have defined it widely. 'Culture'
includes the whole way of life of a community4 and it includes the law
within its scope, in view of this broad definition it may be submitted that
culture of a community will not be damaged if one component of it is
subjected to modification or reform. The nature of culture has never been
static, arid change is one of the essential properties of any culture. The
law is part of culture, can also not be static and it requires the
modification with changing social circumstances. Therefore obsolete or
unjust laws cannot be prescribed in the name of protections of culture.

The objections that a Uniform Civil Code in India may impose

uniformity without appreciating the cultural practices of different
religious communities and lead to the alienation of such community from
the State is not true. Such apprehensions are misplaced because the Indian
Constitution ensures required protection under religious and cultural
freedoms and a free judiciary has interpreted the Constitutional
provisions to provide maximum protection to the religious and cultural
minorities. Moreover, the history of parliamentary practice show that

3
Paras Diwan, 'The uniform civil code; A projection of equality, (Minority and the law) 419 at 425.
4
Culture is defined as way of life in its scope it include value, beliefs, economic activity, institution,
technologies and many other factors.

91
laws are often formulated with the consent of affected population and
especially case of minorities communities.5

In order to bring a Uniform Civil Code in India and to protect it

from unnecessary objections based on cultural protection, it may be
suggested that in order to remove any confusion in the Constitution, a
proviso to article 29 (1) may be that nothing contained in this clause shall
affect the operation of any existing law or prevent the State from making
any existing law or prevent the State from making any law advancing
social welfare, reform or regulating any secular activity.

[3] The Religious Laws are Immutable

Another objection to the Uniform Civil Code in India is that the

religious communities cannot accept a Uniform Civil Code as their
personal laws being an inseparable part of religion are immutable. In
other words religious personal laws are divine and inviolable because
such laws are command by God or the Prophets. The history of personal
laws tells that most of the religious communities, except the Muslim
community have diluted their stands over time because of the dilution the
codification of Hindu law was done by ignoring the protest of a few
fundamentalist Hindu.6

So far the stand of the Muslim Community is concerned, they are

maintaining a rigid approach. The rigid stand of the Muslim community
is as old as the idea of Uniform Civil Code in India. In the Constituent
Assembly most of the Muslim members opposed the Uniform Civil Code
by advancing argument based on immutability of personal laws. On the
other side Shri Munshi, Shri Aiyer and Dr. Ambedkar presented a strong

5
Sayed Khalid Rashid; 'Muslim law' p. 34 (1996)
6
Baxi U. - "Uniform civil code and the crisis of common sense in family law and social change" p. 27
(1975.)

92
case in favour of the Uniform Civil Code. Shri Munshi argued that
nowhere in advanced Muslim countries like Turkey or Egypt the personal
laws of minority communities were recognised as sacrosanct to prevent
the enactment of a Civil Code. He further pointed out that Khojas and
Kutchi Memon were highly dissatisfied when the Shariat Act was passed
in India. Then, they followed certain Hindu customs to convert
generation. They did not want to conform to the Sharait, and by
legislation it was applied on them because certain Muslim members felt
that Shariat should be enforced upon the whole community.7 The Khojas
and Cutchi Memons most unwillingly had to submit to it. Shri Munshi
one of the member of the constituent Assembly argued:

"When you want to consolidate a community you have to take into

consideration the benefit which may accrue to the whole community and
not to be the customs of a part of it, If you will look at the Countries in
Europe which have a Civil Code, everyone who goes there from any part
of the world and every minority has to submit to the Civil Code"8

Shri Munshi was of the view that the personal law should be
separated from religion. He referred the proposed Hindu Law draft before
Legislative Assembly and said:

"If one looks at Manu and Yagnyavalkya and all the rest of them, I
think most of the provision of the new Bill will run counter to their
injunctions."

Shri Munshi, Finally opined:

We are in a stage where we must unify and consolidate the nation

by every means without interfering with religious practices. If the
religious practices in the past have been so sacrosanct as to cover the
7
Constituent Assembly debate VIII at 547
8
Constituent Assembly debate VIII of 555

93
whole field of life, we have reached a point when we must put our foot
down and say that these matters are not religion. They are purely matters
for secular legislation.9

In his concluding speech Dr. Ambedkar also contested the notion

of immutability of Muslim personal laws in India. In this connection he
presented several practices10 as existed in India and proved that the
personal law of Muslims was not rigid but it was subject to change and
amendment. Dr. Ambedkar reached the conclusion that "It is no use
making categorical statement that the Muslim law has been an immutable
law which they have been following from ancient times."11

It is analysed by the Researcher that immutability of personal laws

have brought many ill effects in India. It has prevented progressive
interpretation and it stands against the reform and secularism. It makes a
community blind and orthodox and finally it affects the growth of the
community in a fast changing world.

It is true that position of Muslim personal law in Islamic countries

itself does not strictly adhere to the concept of immutability. The Muslim
world has undergone a sea of change and adopted progressive
interpretation, thus insuring continues development of the society. For
example, polygamy has been completely prohibited in Tunisia and
Turkey while it has been curbed in Egypt, Iran, Syria and Pakistan by
making it permissible subject to certain condition. Similarly the right to
give unilateral and instant triple talaq by husband has been curtailed in
most of the Muslim countries.

9
Constituent Assembly debate VII at 547
10
Constituent Assembly debate VII at 551
11
Ibid

94
 The history of personal laws in India presents many examples
when the Muslim law was amended to bring about progressive reform
within the Muslim communities. For example by enacting the Dissolution
of Muslim Marriages. Act, 193912 the Muslim women got some grounds
for divorce that were not available to them under the traditional Muslim
personal laws.

The religious person laws of the minorities under the Indian

constitution are given a special status but it should not become an
obstruction for enactment of a Uniform Civil Code. In this connection the
argument of immutability of personal laws should not have any place
because it has potential to destroy the constitutional objectives of
equality, justice, fraternity and secularism.

[4] Enhancement in the Power of the State

One of the objections against the Uniform Civil Code is that if the
State has power to regulate personal affairs it will increase its power
which may not be in the interest of the people. This objection is related to
the nature of the "Power". There is famous saying "Power tends to
corrupt and absolute power tends to corrupt absolutely."

So far as 'Power of the State' is concerned, history tells that initially

it was discovered to save society from the exploitation of the Pope and
feudalism in Europe. But, later on the danger from power of the State was
also realised and certain safeguards were developed in different legal
systems. For example under the constitution of the United State of
America the concept of residuary Fundamental Rights was adopted to
save the citizens 'freedom from the power of the State. Again the whole
idea of Human Rights came into existence to save the freedom of the

12
(Act No. 8 of 1939)

95
people from the oppressive power of the State. But it has been difficult to
determine that what should be the desired extent of State power.13

In this respect history tells that the power of the State has been
used both for oppression as well as for the welfare of the people. The
concepts such as Democracy, Rule of law, Separation of power, Natural
justice and limited amending power of the legislature was developed to
check the possibility of misuse of the State power.

The idea behind the limited power of the State has been that a
community or denomination can better regulate certain areas of their own
affairs. The argument that various communities should be left free to
develop their personal laws, may present many ill consequences for
example, they may preserve discriminatory personal laws in the name of
religion and custom.

Thus it is observed by the Researcher that these may be genuine

problems of fears relating to the growing power of the State but such
fears are not applicable in India. Our Constitution provides effective
checks on State power and a free judiciary is the ultimate protector of the
rights of the citizen.

[5] There should be no hurry to enact a Uniform Civil Code

One objection to the adoption of Uniform Civil Code in India has

been the time factor. This objection is not new and not only related to
India. The objection of a time factor is as old as the idea of codification
itself. It may be pointed out that the usual objections which English
writers have made to codification are directly or indirectly based on the
theory of Savigny (1779-1869). Savigny successfully used his

13
UpendraBaxi, - "Law Democracy and Human Right" 1987, pp. 75-91

96
"Volksgeist" (Spirit of the people) theory to reject the French code and
the move to codification in Germany.14

In India the objections related to the appropriate time for Uniform

Civil Code was raised in the Constituent Assembly itself. In this
connection one Muslim member Shri Naziruddin Ahmad pointed out that
during the 175 years of British Rule the rulers had not interfered with
certain fundamental personal law and the people should not be asked at
that stage of Indian society to give up such laws associated with religion.

Dealing with the time factor Shri Ahmad Submitted the

interference with these matters should be gradual and must progress with
the advance of time.

"I have no doubt that a stage would come when the civil law would
be uniform. We believe that the power given to the State to make the Civil
Code Uniform is premature."15

In view of the strong sentiments as well as the practical difficulties,

the supporters of the Uniform Civil Code agreed to give reasonable time
period and it was left to the State (Future Parliament) to decide about the
appropriate time for adoption of a Uniform Civil Code in India. In this
connection Dr. Ambedkar specifically gave an assurance to the
minorities. He said:

"They have read rather too much into Article 35, which merely
propose that the State shall endeavour to secure a civil code for the
citizen of the county. It does not say that after the Code is framed the
state shall enforce it upon all citizens merely because they are citizens.
It's perfectly possible that the future Parliament may make a provision by
way of making a beginning that the Code shall apply only to those who
14
Shourie, A. - 'Religion in politics, p. 92 (1987)
15
Constituent Assembly debate VII at 542

97
make a declaration that they are prepared to be bound by it, so that in the
initial stage the application of the code may be purely voluntary, it would
be perfectly possible for Parliament to introduce a provision of that sort;
so that the fear which may friends have expressed here will be altogether
nullified.16

The two main objections were that it would infringe upon the
fundamental right to freedom of religion guaranteed by Article 25 and it
would constitute tyranny of the majority.

Resistance to a Uniform Civil Code has mainly come from the

Muslims, is heated by the Muslim Personal Law Bard. Even a reference
to a Uniform Civil Code is like showing a red cloth to the bull, with
Muslim Orthodoxy being up in arms whenever there is any reference to
Article 44. Surprisingly, where secular law benefits the community there
is no outcry against it. One of the weaknesses of the legal system in
countries such as Saudi Arabia, that strictly adhere to the Shariat, is that
the legal system is inadequately developed in commercial matters,
contract & Transfer of property. Therefore, a well-established legal
system based on Anglo-Saxon jurisprudence,17 as in India is welcome
because it eliminates ambiguity and gives litigants a fair chance in count.

Hindus, Sikhs and Christians consider marriage to be a sacrament

whereas Muslims view marriage as contract. There is nothing to prevent a
Uniform Civil Code from taking note of both these views and having
variations build into law which would recognise both types of marriages.

It is from the contractual nature of Muslim marriages that the next

point of divorce arises. The popular conception is that a marriage can be

16
Constituent Assembly debate VII at pp. 551-552
17
The body of legal principles that prevailed in England from the 6th century until the Norman
Conquest (1066).

98
ended, by the man by declaring talaq three times. Here too, there are
different views among Muslims as to whether the divorce is complete by
declaring talaq three times or whether there is need for a gap between
each of three declarations that would give time to both parties to see
whether reconciliation is possible.18

It is well settled question of law in India that a contract without

consideration is void, one-sided and almost totally weighed in favour of
one party, or terminable arbitrarily.19 In other words, equity is an essential
ingredient of a contract. There cannot be arbitrary termination in the
marriage contract, and even the Sharia stipulates the times of divorce.
The women cannot be abandoned, there is period of 'Iddat' or compulsory
waiting, during which the woman has to be maintained and there is the
'Mehar', which is contracted at the time of marriage which has to be paid
upon divorce. In a true contract the Mehar cannot be nominal and must be
sufficient to sustain the woman and the minor children throughout her life
time and during their minority. All these elements of the contract of
Nikah can certainly be made into a Uniform Civil Code. Personal law
would be protected, but justice will not be subject to the whims of
Individuals or Kazis.20

Then there is the question of polygamy. Polygamy was widely

practised by the nomadic Arabs, which clearly affected family life.
Although the Quran allows marrying more than one wife under
exceptional circumstances and with extremely stringent conditions. The
fourth Surah, 'An-Nisaa' gives the background to this Quranic view of
polygamy. The Quran Exhibiting deep concern regarding this matter-

18
Dalwai Hamid, 'Muslim Politics in secular India, 1968, at p. 96-97
19
Sec. 25 of India contract Act. 1872
20
Article by 'Asaduddin Owasi' member of parliament, published in Times of India Delhi; 07 Nov.
2016, p. 11

99
 "Render unto the orphans their possessions, and do not substitute
bad things (of your own) for the good things (that belong to them), and do
not consume their possessions together with your own: this verily, is a
great crime. And if you have reason to fear that you might not act
equitably towards orphans then marry two, of three, or four, but if you
have reason to fear that you might not be able to treat them with equal
fairness, then (only) one."

Therefore, the Quranic injunction requires complete impartial

treatment among co-wives. This injunction of the Quran should not be
taken as a moral instruction but as a legal condition precedent which
requires proving impartiality among co-wives through adequate evidence.

On this basis many Muslim Countries prohibit or strictly restrict

multiple marriages. If a Uniform Civil Code in India does the same, one
fails to understand how it would be an attack on Muslims Personal Law.
This is a myth spread by the Maulvis because it suits their interests and
politicians who feel that by supporting this fallacy they would command
a vote bank.

Thus, persuasion not the coercion, is the only way towards the
realisation of the goal of Uniform Civil Code. Persuasion gradually may
lead to social acceptability. If such an atmosphere is created all the
impediments towards the framing of a Uniform Civil Code will wither
away.

B. Constraints on the Enactment of Uniform Civil Code:-

The above objections often present a great difficulty before the

legislature. Apart from these objections there are also some more
practical problems for the implementation of Uniform Civil Code in

100
India. The major practical problems may be discussed under the
following heads:

1. Lack of Information
2. No Build-up of Public Opinion
3. No Draft Bill

1. Lack of Information

The importance of the 'Information' for the development of the

society has been realised at all stages of history. There is a famous saying
"Knowledge is Power". There cannot be a controversy about the
philosophy behind this proverb but in the information age of this 21st
century, the said saying is being replaced by a new one which is
"Information is Power".

If the history of law reforms in general and process of codification

in particular it has been observed that Criminal and Commercial laws in
India were codified by collecting and processing information from
several legal systems.

So far history of codification of personal law of various

communities is concerned, great efforts were made by the law makers in
India. As far as the process of codification of Hindu law is concerned, it
is found that there were several difficulties. One difficulty was related to
collection and assimilation the provisions of various schools and sub
schools of Hindu Law. The process of codification made difficult task to
the Muslim personal law due to the lack of information about the various
schools of Muslim law.21

It has been pointed out that the successive governments in India

have not dared to codify the Muslims personal law which is itself a
21
Alice Jacod - 'Constitutional development since independence" 1973 at pp. 656-657

101
bundle of diversity. So for enactment of Uniform Civil Code is
concerned, there is great need to collect the information about all the
personal laws existing in India. For this important task, it is submitted
that there should be a body of experts and it should be assigned this job.
Though various Law Commissions in India have ventured to collect such
information but this task is still unfinished. Again Law Commission have
been overburdened, therefore a separate body can do justice to this task.

2. No Build- Up of Public Opinion

The history of legal reform show that how difficult reform is.
There are two methods of the process of legal reform.

In the first method, the reforms may be imposed by the law makers
whereas in the second method it is necessary that the society should be
ready to accept the reform.22

The successive government in Independent India has made some

reform in the society. This method has been used especially in areas such
as land reform, untouchability, suttee, child marriage, triple talaq and so
on. But, this method has not been used to enact a Uniform Civil Code in
India. As it is known that our founding fathers were divide on the issue of
Uniform Civil Code and also on the methodology to achieve it.23 This
difference of opinion reflected in the language of Article 44 of the
constitution. They deliberately used the expression 'endeavour' to secure,
which envisages that the people would be prepared to accept the Uniform
Civil Code.

In free India the governments have failed to introduce any

programme of mass education. If the people of India had been educated
22
Sharma, S.D. uniform civil code: Dispensation of justice within the gamut of personal law, 2009 (1)
AIHC 26 (Journal Section)
23
Raju, M.P.- Uniform civil code: A mirage? Justice & peace commission & society for media & value
education, Delhi, 2003.

102
about the benefits of the Uniform Civil Code then there would have been
less problems to implement the Uniform Civil Code.

The public response towards the formulation of the Uniform Civil

Code is not too responsive. Most people in our country are illiterate and
they do not understand the impact of a Uniform Civil Code. They are,
especially the Muslims, guided by the opinions of the orthodox Muslim
leaders. The negative response on the part of Muslims makes it very
difficult to have a uniform civil code. The Institute for Development
studies at Aligarh has conducted a survey24 and the result reveals that the
majority of Muslim population have not responded to the questionnaire
and those who has responded have not favoured the Uniform Civil Code.
A survey conducted by the above Institute has revealed that barely 8.65
percent of the Muslims respondents to a questionnaire expressed the
desirability of introducing a uniform civil code. On the other hand, as
many as 74 percent of the Hindu respondents wanted a Uniform Civil
Code. The result of the survey is as follows:

"A majority of such Hindu respondents said that a uniform civil

code will not only help in promoting national integration and secularism
but will also contain the growing communal and caste violence. The
Muslim respondents who endorsed the idea of the uniform civil code
believe that such a proposition will strengthen the process of civil
justice."

A section of the Hindu respondents, who expressed the desirability

for the inclusion of the Uniform Civil Code, however shaped their
perception on the assumption that the content of the uniform civil code

24
Maheshwari Anil, Is a Uniform Civil Code needed? The Hindustan times, New Delhi, January, 1996
p.10

103
will be mainly drawn from the Hindu Act which already contained strict
provisions to check polygamy and unilateral divorce.

There were 395 respondents including 187 Hindus and 208

Muslims in the survey, Conducted by the Institute for Development
studies, Interestingly, about 60 percent of all the respondents, irrespective
of religious affiliation, expressed the undesirability of a uniform civil
code. They do not want any change in the personal laws of any
community until and unless the community members themselves feel the
necessity for any change.25

Sixty three percent of the Muslim respondents, irrespective of

occupational categories, accused political groups of exploiting the
religious sentiments of the people for creating their vote bank. A notable
feature of the perceptions expressed is that a sizeable section of the
middle classes amongst both Muslims and Hindus feel that the Indian
democratic system had become communalised and criminalised.

However, more than 70 percent of the Hindu respondents said that

main motive of political parties in raising such sensitive issues as a
common civil code was to cultivate and consolidate their vote bank but at
the same time, they opined that each community should join the
mainstream- step which will help promote Indian culture.

About 56 percent of the Hindus were of the opinion that the

uniform civil code will help in reversing the orthodox tendencies like,
polygamy and triple talaq which promote a discriminatory attitude
towards women. However, about 13% Hindus believe that the uniform
civil code will help in mitigating gender biases and will perpetuate the

25
Ibid

104
feeling of equality amongst women. These perceptions were also shared
by a negligible percentage of Muslims.

Another notable feature of the perceptions expressed by about 52

percent Muslims is that a Uniform Civil Code will generate heat,
discontent and intolerance amongst different religious groups as well
beget feeling of identity crisis, particularly amongst minorities.

About 76 percent Hindu respondents condemned both polygamy

and triple talaq prevalent amongst Muslims. As many as 24 percent
Hindus believe that the practice of polygamy and triple talaq reinforce
male domination and discrimination against women. About 69 percent
Muslims justified polygamy and divorce (in certain conditions) as
prescribed in their personal law, by saying that in Islam, marriage was a
social contract and it was healthier because it can check adultery and
provide freedom to both husband and the wife for living together or not.
According to them, living under strain and in distressful conditions was
humiliating. Furthermore, according to them, the ban on polygamy will
enhance the incidence of female deaths. They added that the Hindu often
demand a ban on polygamy, a matter about which they have no concern
whatsoever.

About 31 percent of the Muslims believe that the system of

polygamy and divorce in itself checks atrocities against and humiliation
of women. According to them, though some persons may misuse such
provisions, it did not mean that the law required change. The need is to
put in check those who misuse such provisions of the law according to
their own convenience.

Similarly, about 80 percent Muslim respondents pointed out that

the introduction of a uniform civil code would be counterproductive. It

105
will also tantamount to a denial of the fundamental right of freedom to
religion and will hamper the development of the concept of "Unity in
diversity". According to them, such a move will create hindrance and
negate the development of a composite culture in "our plural society"
However, only a small percentage of the Hindu respondents shared this
opinion. A majority of about 88 percent Hindu respondents said that the
uniform civil code will help India culture to flourish which in turn will
help in the promotion of patriotic sentiments.26

Researcher here tried to present the various approaches expressed

in writing of political parties, religious communities and intellectual
thinkers with regard to the framing of Uniform Civil code. The issue has
been confined to the three alternatives. The first is that there must be a
separate codification of every personal law. The second is that there
should be an optional Civil Code and the third is that there must be a
Compulsory Uniform Civil Code for each and every person of the
country.27

Those who approach the problem of a Uniform Civil Code in the

context of separate codification of every personal law urge that there
must be some minimum requirements for the codification of every
personal law so that it may-

(i) Endeavour to reduce the distance between the laws of separate

communities as well as laws of sects within the community.

(ii) Make changes in the personal law compulsory on the followers.

(iii) Give more rights to the disadvantaged groups like women and the
children, and better protection to tribal and other oppressed
groups.

26
Ibid.
27
Karia, Ashwin, Uniform, Civil Code, Need of the Hour, 2002 (2) GLH 14.

106
 (iv) Work toward achieving equality between men and women,
regardless of their religion.28

The Muslim leaders also say that they cannot go outside the
Shariat, even in areas recognised by others as secular. Therefore it is
difficult to see how codification of Muslim personal law could move in
the direction of Uniform Civil Code. Indeed, in the circumstances, there
is reason to doubt the possibilities of codification of Muslim law as a
genuine condition precedent to the Uniform Civil Code in the foreseeable
future.

On review of the existing situation vis-a-vis codification of

personal laws as the first step towards the Uniform Civil Code, it may be
summed up as follows:

(1) The Personal Laws of the Hindus, Christians, Muslims and Parsis
have been codified. The Hindu Laws which, are the most recent, by
and large meet the above mentioned four tests, though not in the
area of succession.
(2) The Christain Laws are discriminatory, both between men and
women, and between Christians and non-Christians. But the
Christians want to change their laws in the direction of a Uniform
Civil Code and are actively working towards this goal. The same
way be said of Parsis. Both these communities have practical
problems. Not difficulties in the score of religion.
(3) The Muslim law has been codified in such a way that with the
exception of Dissolution of the Muslim Marriages Act, it makes
difficult for implement of Uniform Civil Code.

28
Ibid

107
 (4) The Laws of Jews, Buddhists and Scheduled Tribes have not been
codified but there is reason to believe they will accept a Uniform
Civil Code.

 Practical Approach

It is clear that consistent with the observations of Justice Sahai in

the Sarla Mudgal case29 a very balanced and careful approach should be
adopted while framing of a Uniform Civil Code for all citizens keeping in
mind the requirements of gender justice and human rights jurisprudence
on one side and the pragmatic societal imperatives.

The Pondicherry Experience: A Common Civil Code has been the

dream of many political thinkers throughout the world. But an absolute
uniform code applicable to all is nearly impossible. That could be
attempted only when the country is a small one with homogenous
population.

The mostly resorted way is to have common code applicable to all

citizens and to subject such a code to exceptions and options provided in
the code itself. This technique was used in the Hindu Marriage Act when
the Hindu law in that field was sought to be unified. The same technique
was widely resorted to in the French-speaking African countries after
their independence. They have codified their family laws with the French
code as a mode, but they took care to incorporate all that was found
important in the local customs and they made room for options taking
into account the diversity of religions.30

The another way to reach uniformity at least in appearance is to

devise a common code open to all but imposed on none and this is the
voluntary common civil code.
29
AIR 1995 SC 1531
30
Keith Hodkinson, Muslim family law 230 (1984)

108
 It should not be the result of a hasty process in order just to assuage
the feeling of the protagonists of the common civil code. This last course
should be avoided at all costs because this it would eliminate the
possibility of common law for years to come. The Common Civil Code
should be elaborated with care and statesmanship. The main conditions
for its success are that it should be surrounded by a halo of prestige,
arising out of its intrinsic value. The code should be clear and simple, rich
in content without descending to details, offer the best solutions to
problems that are likely to arise and above all it should meet the
aspirations of the people. In this connection, it may be useful to recall the
reasons which made the French Civil Code one of the finest pieces of
legislation of modern times and a model for other Countries. The first
reason for the success is that they had before them a large number of
drafts elaborated during the course of a century.

Secondly, if the French Civil Code could penetrate deep in

Pondicherry it was on account of the attitude of judiciary prone to avail of
all the interstices with readiness allied with prudence.

The third reason for the success of the civil code in Pondicherry is
that the corresponding administrative and judicial machinery was within
easy reach of the population.

 Approach of Political Parties

There is a lot of difference among political parties. Some believe

that a Uniform Civil Code is necessary and desirable in principle, but the
time for this is not yet. Others believe that, the desirable Uniform Civil
Code should not be enforced by the State, but develop the bottom up. Still
others argue that a transitional measure is necessary in the form of a

109
voluntary, nonbinding model code which gradually gains consent support
before turning into a Uniform Civil Code.

 Female Centric Approach:

Female centric approach is the confrontationist approach. This

approach suggests several ways to manage plight of minority women.
First, the government should make a common law which is applicable to
women of all communities. Such a law would guarantee women certain
minimum economic rights within marriages, for example, the right to live
in a matrimonial home and joint sharing of property. Second a "Female
Centric" approach suggests that the Government should introduce a set of
alternative legislation such as the Special marriage Act, 1954 that women
of any religion can choose to be governed by both these gradualist
approaches. It is believed that it will not only spread the explosive issue
but also bring women the tangible relief they needed and prepare the
ground work for establishing greater equality between the sexes in the
institution of marriage and the family.

3. No Draft Bill

The law making process requisites to many things including

preparation of an initial draft of the proposed law. The preparation of a
draft requires collection of information study of the needs of people, and
comparative study of the needs of people, and comparative study etc.

At the end of this discussion it is submitted that if the government

of India is, serious to achieve the goal of Uniform Civil Code it must
order to ask the law minister to prepare a draft bill of the Uniform Civil
Code so that Parliament may discuss and try to achieve a consensus over
it.

110
 CHAPTER-VI

IMPLEMENTATION OF THE UNIFORM CIVIL

CODE IN INDIA

Dr. B.R. Ambedkar, inspired by the western world during the

constitutional assembly debates, wanted to introduce Uniform Civil Code
in India with the aim of bringing about uniformity and unity in the
society.1Because of India's vast variety of culture and religion, the idea of
uniform civil code was strongly opposed by the other members of the
constituent assembly, arguing that the implementation of Uniform Civil
Code would violate the right of freedom of religion and right to manage
religious affair given under Article 25 and 26 of the Constitution
respectively. Thus the Uniform Civil Code was left to be enforced by the
government in future and was added as directive principle of state policy
under part IV of the Constitution.

Dr. B.R Ambedkar, who was a staunch supporter rightly 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
legislature from encroaching upon that field; We the People having this
liberty in order to reform our social system, which is so full of
inequalities, discriminations and other things which conflict with our
Fundamental rights."2 The Statement clearly reflects Dr. B.R. Ambedkar's
commitment towards having a Uniform Civil Code which can bring about
fundamental change in the personal dimension of India.

1
R.C.S. Sarkar, uniform civil code, journal of constitutional & parliamentary studies, 1969 vol 3, 83 at
P. 87.
2
Constituent assembly debates, (1948), Vol. VII P. 544

111
 Uniform Civil Code is symbol of progressive nation. It implies that
the nation has moved ahead of caste and religion. India has seen
tremendous economic growth, but socially we have come to a stage
where we are neither modern nor conservative. The Code will help in
avoiding uncertainty and will integrate the nation.3

This is probably the most debated topic in recent times and is also
full of controversies. While a large number of citizens are in favour of it,
and an equal number of people are showing their general discomfort with
the concept of Uniform Civil Code. The supporters argue by saying that
the presence of different personal laws creates a cloud of confusion and
are also difficult to comply with. Those who are against it point out
several flaws in the concept and present the various arguments against it.

The Researcher has divided this chapter into two parts. The first
part discuss the pre-independence history and the second part discusses
the progress made in the post constitutional period.

A. Progress made before the Independence:-

The history of personal laws in India tells us that the process of

codification began during the British period, and it was appropriate
occasion to reform the personal laws. The various law commission
appointed by the British government from time to time were of the view
that personal laws should not be codified.

However, some changes were made by passing corrective and

ameliorative legislation. As far as changes in the Hindu family law is
concerned, The Britisher did not face much difficulty because of its
flexibility and an inherent ability to grow. The slow implementation of

3
Justice Tulzapurkar, - uniform civil code (An Article) 1987 P. 20

112
the Uniform Civil Code began from the British- Era period, when Lord
William Bentic tried to suppress unjust religious practices such as the
tradition of sati-pratha4

There are some of the important codifications, passed by the

British government which show uniformity in civil matters and bring
about religious stability and gender equality-

A. The special marriage Act, 1872

B. The Married, women's property Act, 1874
C. The Indian minority Act, 1875
D. The Guardianship and wards Act, 1890
E. The Child Marriage Restraint Act, 1929

But these were the exception rather than the rule, their policy was
to legislate in the area of family law at the behest of the concerned
community. This did not mean that entire community had to ask for the
reform. There were few members of the community asked for the reform.
Otherwise, the State regulation of 1829 would never have been passed.
However, the British were forced to adopt progressive approach to
eliminate some of the ill-effects of personal laws. Consequently, the
Britishers passed a few secular laws such as-

1. The State Regulation Act, 1829

2. The Caste Disabilities Removal Act, 1850
3. The Hindu widow's remarriage Act, 1856
4. The Dissolution of Muslim Marriage Act, 1939
5. The Indian divorce Act, 1869.

4
J.D.M. Derrett, 'The Indian civil code or code of family law-1975- at P. 21

113
 After independence prominent lawyer of Chaudhari Hyder Husein
Said "For almost two centuries under British rule, we have come to
believe that it is natural for Hindus to be governed by Hindu Law and
Muslim to be governed by Muslim Law, but it is purely medieval idea
and has no place in the modern world. Therefore, there is strong need of
one single code to be named as the Indian Civil Code. This is the juristic
solution to the communal problem. It appears to be absolutely essential in
the interest of integration of the country with a single law for the creation
of a single nation in the Country.5

The mandate of Article 44 is not addressed to the legislature only,

it uses the expression the 'state' which includes government and
parliament of India and the government and legislature of each of the
states and all local or other authorities within the territory of India or
under the control of the government of India.6

Our founding fathers deliberately used the expression 'Endeavour'

and 'Secure' in article 44, because they were alive with the practical
difficulties to be faced.

The above secular laws were enacted by the British because of the
pressure exerted by some but vocal and enlightened social reformers.
Otherwise, the British generally adopted a policy of making the family
laws on behalf of the concerned community. It may be noted that,
Britishers were less concerned with the idea of Uniform Civil Code, but
the government made a beginning to secularise the personal laws.

5
ChaudhriHyderHusein- "A unified code for India" AIR (1949) (Journal-Vol. 68) PP 71-72
6
Pandya Mayuri, uniform civil code, A need of the hour 2009 (2) GLHI.

114
B. The progress made after Independence:-

The Constitution has a provision for Uniform Civil Code in Article

44 under directive principle of state policy that is not justifiable provision
of the Constitution.

It is true that after independence of India the successive

government at times have shown courage to implement a few directive
principles to woo the voters. However this factor did not play a major role
in bring uniform civil code in India. In fact, vote-politics has become one
of the major hurdles in the way of uniform civil code.7

After Independence, the Uniform Civil Code has been a rallying

point for the secular and progressive sections of the society. It was one of
the earliest request to enact a Uniform Civil Law for future rulers. They
hoped that both the legislature and executive would educate the society to
adopt a Uniform Civil Code and enforce it at the end of an evolutionary
period.

In the light of this background the Researcher tried to examine the

role and contribution of the legislature and executive in implementing
Article 44 of the Constitution of India. After independence the central
government made many attempts whether directly or indirectly to
secularise the personal law and implementation of uniform civil code
throughout the India.

1. The Special Marriage Act, 1954:-

The special marriage Act 19548 (which replaced the Act of 1872 of
the same title) for the first time brought a secular code of marriage,
divorce and inheritance. Under this Act marriage was monogamous and
7
G. Saleem- uniform civil code and national integration, ALT 2004 Vol. 2.20
8
[Act No. 43 of 1954 dated 9th October, 1954]

115
divorce was permitted on the progressive ground as mutual consent. For
the purpose of succession, the couples were governed by the Indian
succession Act 19259

The Act enabled any two Indians to marry irrespective of their

religion. The Act of 1954 was an improvement on the old Act of 1872 in
the sense that under the old act it was necessary for the couples to
renounce their religion, whereas in the Act of 1954 it makes possible for
parties to marry without renouncing their religion. The Act of 1954 was
optional and it was not imposed on the Indian citizen as a binding
legislation.10

The Special Marriage Act, 1954 gives a common or uniform

marriage to all citizen of India irrespective of their religion and caste. In
this manner it allows any Indian citizen to have their marriage outside the
domain of a particular strict religious law. While presenting the Bill in the
Lok-Sabha C.C. Biswas articulated that the said bill was an endeavour to
set down uniform law of marriage for the entire country.

Inter-religion marriage is a marriage between individuals having a

place with two distinctive religion. The special marriage Act is
exceptional enactment that was ordered to accommodate a unique type of
marriage, by enlistment where the gathering to the marriage are not
needed to repudiate his/her religion.

9
The Indian succession Act, 1925 was applied with varying exceptions to Hindu, Muslim, Jew, Parsis
and Christans.
10
Modern Hindu law- Dr. Paras Diwan, Allahabad law Agency 2011, PP 86-87

116
 The Act does have its own limitation and inconsistencies on
account of Pranav Kumar Mishra V. Govt. of NCT, Delhi,11the hon'ble
Delhi High-court, noticed:-

"The exceptional marriage Act was sanctioned to empower a

unique type of marriage for any Indian proclaiming various beliefs or
craving a uniform type of marriage. The outlandish exposure of wedding
plans by two adults qualified for solemnize it might, in specific
circumstances, endanger the actual marriage. In specific occurrences, it
might even jeopardize the life or appendage of either party because of
parental obstruction. In such conditions, if such a technique is being
embraced by the specialists, it is totally unusual and without the authority
of law."

Despite of its inconsistencies, Special Marriage Act is the only

civil Alternative that respects the rights of inter-faith marriages.

Thus it is observed by the Researcher that the Special Marriage

Act, 1954 is the best-alternative to protect the interest of people in
interfaith marriages and it is one of the earliest endeavours towards the
Uniform Civil Code.

2. The Hindu Code of 1955-56:-

It is matter of the fact that there have been progressive reforms in

Hindu personal laws before independence. That is why soon after
adoption of the Constitution the Indian parliament continued the
codification and reform of Hindu personal law.12

This move of the government was opposed by several quarters for

various reasons. It was argued that instead of Hindu personal law only the
11
Air 2009 WP(C) 748 of 2009.
12
A. Parashar- "The goal of uniforming and sex equality (1992)

117
government should bring a Uniform Civil Code applicable to all
communities in India. It was pointed out that Article 44 does not envisage
the partial treatment and this move of the government was against the
principle of equality of the Constitution.13

On the other hand, the supporters of the proposed Bill saw the
move of the government as an important step towards achieving a
Uniform Civil Code on behalf of the government. The government took
the stand that the Hindu code Bill was the first step towards the Uniform
Civil Code.14 Subsequent developments suggest that the proposed
comprehensive Hindu Code Bill could only be passed in the form of
various enactments due to strong opposition. It has been found that it was
right move to reform in Hindu personal law, but there was some
substance in the arguments of the opponents. The government defended
its move by saying that other communities had not been consulted. 15

In the Parliament, the doubts were expressed by the opponents of

the Bill as to whether the government would bother to enact the Uniform
Civil Code after the enactment of the Bill. The fact is that doubts
expressed by the opponents have become a reality. The successive
government have failed to secularise the personal laws of other
communities.16

Thus, prior to 1956, Hindus were governed by property laws which

had no relation and varied from region to region and in some cases within
the same region, from caste to caste.

13
D.D. Basu, uniform civil code for India, 1997, P. 13
14
Tahir Mahmood, "The progress in implementing social directives of the constitution." 1973 at P. 61
15
Pylee M.V. constitutional government in India, Asia publication House, Bombay, 1965.
16
A. Parashar- "The goal of unfirming and sex equal of "chapter V" - Hindu Law Reform- (1992) PP
77-143

118
 Former Prime Minister Jawahar Lal Nehru championed the cause
or women's right to inherit property and despite the stiff resistance from
orthodox sections of Hindus, the Hindu succession Act was enacted and
came in to force on June 17, 195617

Many changes were brought about that they gave women greater
rights, but they were still denied the important coparcenary rights.
Subsequently, many of the states enacted their own laws for division of
ancestral property. In Kerala, the concept of coparcenary was abolished
and according to the Kerala joint family system (Abolition) Act, 1975,
the hers (male and female) do not acquire property by birth but only hold
it as tenants as if a partition has taken place.18

Andhra Pradesh (1986), Tamil Nadu (1989), Karnataka (1994), and

Maharashtra (1994) also enacted laws, where daughters were granted
'coparcener' right or a claim on ancestral property by birth as the sons. In
2000, the 174th report of the 15th law commission suggested amendment
to correct the discrimination against women, and this report forms
women, and this report form the basis of the bill which has now been
cleared by the union cabinet.19

The Hindu Succession Act of 1956, was introduced in Rajya Sabha

and it gives women equal rights in the inheritance of ancestral wealth,
something reserved only for male heirs earlier. As the Act stands now, the
woman is entitled to an equal share as her male siblings in her father's
property but has no right to ancestral property. Perhaps the single biggest
reason for devaluation of women in our society is their perceived
economic worthlessness and their inability to negotiate a better deal for

17
Hindu succession Act 1956
18
M Galanter- Hindu Law and the development of the modern Indian legal system (1964) at PP-61-66
19
The times of India, New Delhi December, 18, 2004, P. 14

119
themselves. The right to property eliminates, to some extent, both of these
hampering factors.

According to renowned jurist Leila Seth, these amendments will

discourage dowry. When men grow-up in the knowledge that they cannot
enjoy special privileges with regard to property rights, there is bound to
be a change of mind-set for the better. Since the family law is on the
concurrent list five states have already done away with discriminatory
clauses. The amendment reiterates the fundamental constitutional
principle of equality before the law.20

It is significant that none of the organisations or bodies in the pre-

Independence period had suggested the need for uniform civil code. It
may be said that the inspiration for a uniform civil code probably came
from the Hindu law drafts which was before the legislative Assembly
when the constitution was being framed.

Thus it is observed by the Researcher that the Hindu Code Bill was
introduced as the crusader of women rights. This Bill was attempted to
codify the heterogeneous practices of Hindus and at the same time
modernize it by introducing women centric laws. The need to introduce
the Hindu Code Bill was based on many reasons, these included the need
to codify the Hindu Law so as to move towards a Uniform Civil Code.

3. Dowry Prohibition Act, 1961:-

The Dowry Act, 196121prohibits the monetary and other

transactions in marriage for all the persons, irrespective of their religion.
But the Act specifically exempts from its operation the system of Mehr 22
(Dower) under Muslim law. Dowry is social evil in society that has
20
The times of India, New Delhi, 20, 2004, pp-20
21
(Act No. 28 of 1961)
22
An amount which the wife is entitled to relive from the husband in consideration of the marriage.

120
caused unimaginable tortures and crimes towards women and polluted the
Indian marital system. Dowry is payment made in cash or kind to a
bride's in laws at the time of her marriage.

It is important to note that dowry Act, 1961 was one of the first
laws of its kind which was enforced on secular lines. But the
commentators have proved it's limitation to check the vice of Dowry.
This vice has acquired a dangerous proportion amongst not only Hindus
but also in the other communities also.23

Thus it can be observed that such laws are necessary because their
absence would bring more difficulties for women. It is submitted that in
order to check the vice of dowry among all Indians a true secular Act is
required.

4. Medical Termination of pregnancy Act, 1971:24

The problem of the unwanted pregnancy has been one of the

important problems of the women. There has been a controversy at the
national and international level relating to the termination of unwanted
pregnancy. From the women's side it has been argued that a woman
should have sole right to terminate a pregnancy. On the other hand their
claim has been contested by opponents, such law has witnessed several
criticism and opposition in a modern country like America, but
fortunately the Act of 1971 has not seen that kind of opposition in India25

It is submitted that the Act which provides a reasonable choice to

the women in matters of unwanted pregnancy, has been seen as an
important step to look at the social vice with a secular outlook. Moreover,
social problems relating to religion and custom can only be checked by
23
D.D. Basu, uniform civil code for India, 1997, P. 38
24
(Act No. 34 of 1971)
25
S.G. Kabra- 'Abortion in India; Myth and Reality 2013, at P. 26-27

121
having a secular legislation and laws should not be seen as an interference
in the personal laws or religion.

5. The Indian Adoption Bill 1976:-

The Indian adoption Bill26 was introduced to secularise the

personal laws relating to adoption. The government saw this bill as the
first step to bring Uniform Civil Code in India. The Bill sought to enable
all Indians, regardless of religion, to adopt a child.

The adoption Bill was welcomed by all except two communities

i.e. Muslim and scheduled tribes. The objections raised by the scheduled
tribes were based on some practical problems and they demanded that the
bill should provide a solution by giving some concession to the
community. However, with a few exceptions the rest of the Muslim
leaders opposed the bill, arguing that the bill was against Muslim
personal law as it would allow a Muslim to disobey the Quranic
Injunction against adoption. It would breach the law of inheritance by
adding more persons to list of prohibited degree of relationship for
marriage. It was alleged that the Bill was nothing but an attempt to
impose Hindu law on the minorities.27

In August 1976, the joint committee of the parliament submitted its

report and recommended a revised draft of the Bill. The draft provides
that the bill shall not apply to schedule tribes unless notified in gazette in
respect of tribes specifically mentioned in particular states.

The Muslim members of joint select committee rejected proposed

amendment for the following reasons:

26
(Act No. 57 of 1976)
27
V. Dragmwas: "Towards the uniform civil code, 1989. PP-8-18

122
 1. The Bill was in the greater interest of children, and their welfare
transcended the religious or communal barriers.
2. It was an enabling law and did not compel Muslims to adopt it.
3. It was not against the Quranic injunction
4. It was the first step towards a Uniform Civil Code.

The adoption bill could not become law of the land because of the
dissolution of the Lok-sabha in March 1977. Subsequently, a new
adoption bill was introduced in the Lok-sabha in December 1980. This
Bill was substantially different from the old bill in the following manner:-

1. It gave no exemption to scheduled tribes.

2. It exempted Muslim from its operation

Section 3 (1) of the draft said "No adoption order shall be made in
respect of a Muslim child or for adoption by a Muslim of any child
whether a Muslim or not, under this Act."

The new bill again generated the objections from new corners.
Though this time no joint- committee was entrusted with the Bill, But
once again the new bill, lapsed because of the dissolution of the Lok-
Sabha in 1984. Again the objection raised by the Muslim community
because it was against secular ideals. Thus it can be observed that a
welfare law of the children should not be objected on religious grounds in
India. Religion has played a negative role in the sense that it has checked
the growth of progressive legislation and perpetuated social evils.

6. Provision of section 125 Under Criminal Procedure Code:-

An important effort was made in India to bring the spirit of

Uniform Civil Code under the criminal procedure code. Section 125 of
the code of criminal procedure provides for a speedy, effective and rather

123
inexpensive remedy against the person who neglect or refuse to maintain
their dependent parents, children, and wives. Though the subject matter
of these provision is civil in nature, but the primary justification for their
inclusion in the code is that the remedy provided is speedy and
economical.

Under section 125 of Criminal Procedure Code, if any person who

have sufficient means and neglects to maintain:-

 His wife,
 His legitimate or illegitimate minor child (whether married or
not),
 His legitimate or illegitimate major children (not being a married
daughter) who by reason of any mental or physical abnormality
or injury,
 His father or mother.

The scope of section 125 available to persons belonging to all

religions and have no relationship with the personal law of the parties.28In
the famous case29 the court held that Muslim women are also entitled to
maintenance under section 125 of Criminal Procedure Code. Even the
then Chief Justice Y.V. Chandarchud remarked in that case that a
common civil code will have the cause of national integration by
removing disparate loyalties to law which have conflicting ideologies.
Section 125 is a reflection of the idea of Uniform Civil Code.

The Muslim community opposed the inclusion of divorced wife in

the definition of wife, saying this provision was against their personal
laws.30 The law minister rejected all the objection of the Muslim

28
Nanak Chandra v. Chandra Kishore Aggarwal, (1969) 3SCC 802: 11970
29
Mohd. Ahmed Khan v. Shah Bano, (1985) 2SCC 556
30
Mohd. Ahmed Khan V. Shah Bano AIR 1985 [SC 945]

124
members saying that the provision relating to the wife has nothing to do
with personal law as it is being done on humanitarian grounds. Later the
government changed its stand, in order to please the Muslim community
the government brought an amendment. This amendment was
incorporated under section 127 which provides that a maintenance order
made by a magistrate may be set-aside if, according to the customary or
personal law of community a sum of money is paid to the wife before or
after the divorce. This was meant to cover the mehar (Dower) which is
supposed to be paid to a Muslim wife at the time of divorce.31

It may be concluded that in free India the successive government

failed to face the pressure of orthodox section of the Indian-society. It is a
pity that the Indian rulers failed to fulfill out the spirit of the Constitution
and worked more on political considerations rather than ideals of the
Constitution.

7. Protection of Women from Domestic Violence Act, 2005: A

Revolutionary Law:-

After Independence, although no codified law were enacted in the

area of personal law for all the citizens, but laws relating to some civil
issues are implemented in piecemeal, Protection of Women from
domestic violence Act was one of them.32

This law intends to provide to women all kind of relief which are
necessary in domestic relations, whether with reference to the right to live
in a shared household, or for protection or for residence or for monetary
relief or for custody of children or for compensation etc.33 This legislation
is for 'women' and not for any particular group of women of particular
religion. And it is a proved fact that women from all religions and groups
31
Aqil Ahmed- 'Mohammedan Law' - central law agency 2011
32
Mamta Rao- 'Law relating to women and children'- 2004. at P.P. 21-22
33
Sec. 17 of Act 2005

125
are approaching courts to get protection under this law34 and such law
leads to one step towards implementation of Uniform Civil Code.

8. Abolishment of Triple Talaq:-

On 30 July 2019, the parliament of India declared the practice of

Triple talaq illegal and unconstitutional, and made publishable act from
01 August 2019 which was deemed to be effective from 19 September
2018 and hence signed by the President on 31st July 2019.35

"Triple talaq" allows a husband to divorce his wife by repeating the

word "talaq" (divorce) three times in any form including email or text
message. The Supreme Court declared void such evil practices in 2017

Most Islamic countries, including Egypt, the United Arab Emirates,

Pakistan and Bangladesh, have banned triple talaq, but the practice
continued in India, which does not have a uniform set of laws on
marriage and divorce that apply to every citizen. A large majority of
Muslim women opposed Triple Talaq. Among them is Zakia Soman who
is co-founder of Bhartiya Muslim Mahila Andolan.36It was leading
campaign for the overhaul and codification of Muslim personal laws.
According to Zakia Soman "I strongly believe that abolition of Triple
Talaq is recognising the rights of married Muslim women this new law is
no way an attack on a particular religion. No one except the particular
woman, can imagine the agony that she goes through when her husband
leaves her just by saying, writing or messaging the word talaq three
times."37

34
Sec. 3 of Act 2005
35
The muslim women (Protection of Rights on marriage) Act, 2019
36
Also known as Talaque - biddat
37
Bharatiya Muslim Mahilaandolan or BMMA is an autonomous secular, rights based mass
organisation led by zakiasoman which fight for the citizenship rights of the Muslim in India.

126
 Thus it may be observed that for a developing and democratic
country like India, this law will prove to be a golden one in the run of
equality because such law will end the atrocities against Muslim wives by
their husband.

9. Prohibition of child marriage Act, 2006:-

Child marriage means "a marriage to which either of the

contracting parties is a child"38

Child means "a person who, if a male, has not completed twenty
one years of age, and if a female has not completed eighteen years of
age."39

Marriage being a cultural decision and not an individual one, is

essential for everyone. Several socio-cultural factors such as low status of
women and applicability of endogamy40 in marriages are forcing child
marriage.

Due to the toothless provision of the child marriage restraint Act

1929, the Indian society supported the growing demand for legislation on
child marriage with stringent punishments to eradicate or effectively
prevent the practice of child marriage.

The Central government after consulting the state government on

the recommendations of National commission of Women, and national
Human Right Commission decided to repeal and re-enacting the child
marriage Restrain Act 1929, As a result, the prohibition of Child
Marriage Act 2006 came in to force on January 10, 2007.

38
Times of India, Mumbai, 2016, pp. 07
39
Sec. 2(b) of the prohibition of child marriage Act. 2006.
40
Id, Sec. 2(a)

127
 Child marriage is a menace that cannot be curbed without support
from the society. There have been demand to make child marriage
void abinito under the prohibition of child marriage Act, but Indian
society is complicated and making child marriage void will only threaten
the rights of women who are victims of child marriages. Mere law will
not serve the purpose unless there is support from the society. Uniform
Civil Code also help in preventing child marriage to some extent.

Thus it can be observed by the Researcher that child-marriage is

grave social evil which violates the reproductive rights which is a major
part of the human rights of the girl child. The government took initiative
steps to abolish such type of social evil and reforms the personal law.

10. Registration of Marriage:-

Registration of Marriage41 is one step towards implementation of

the Uniform Civil Code. Registration of Marriage is a necessary reform
and in its absence, women in particular can become victims of fraud. In
2006, Supreme Court observed that marriages of all persons who are
citizen of India belonging to various religions should be registered
compulsorily in their respective states where the marriage is solemnised42

Thus registration of marriage is necessary reform in personal law

and in its absence women can become victim of feud. It denies women
social recognition and legal security. Compulsory registration of marriage
will ensure that conditions of valid marriage have been fulfilled.

41
The rule of Endogamy suggests that marriage of individuals belonging to a particular community
should be solemnized within that community only.
42
Sec. 8 of Hindu marriage Act. 1955.

128
11. Sabrimala Verdict: - A Watershed moment in the History of
affirmative Action:-

Sabrimala temple, a Hindu shrine is devoted to lord Ayyappa. The

Temple is situated at the periyar tiger reserve in the western ghat
mountain ranges of patnanamthitta district in Kerala. It prohibits the entry
of women, between the ages of 10 to 50, in their menstruating years
because it is a place of Worship. Kerala High Court43 held that the
exclusion of women entering in to the temple was Constitutional and just
as it was long standing custom prevailing since time immemorial. In
2006, the Indian young lawyer association44 challenged the Sabrimala
temple custom of excluding women and further filed a public interest
litigation petition before the Supreme-Court. The main argument made by
the petitioners was that as the custom violates the rights to equality and
freedom of religion of female worshippers under Art 14 & 25
respectively.

In 2018, a Constitution Bench45 allowed the entry of women

irrespective of age in to the Sabrimala temple on the grounds that the ban
violated the fundamental rights of freedom of religion as per Article 25 of
the Constitution. The provision restricting entry of women in the state
legislation was struck down and deemed unconstitutional.

The Sabrimala judgment is a bold and unabashed narrative. The

Supreme Court has adopted a reformist and interventionist approach by
upholding human dignity and equal entitlement to worship for all
individuals46

43
Seema v/s Ashwani Kumar AIR 2006 (2 SCC 578)
44
S. Mahendran v/s The Seceretary, Travancore 1991
45
Popularly known as sabrimala case ker-42
46
Five-Judge constitution bench, which included former chief justice Dipak Misra.

129
 Thus, it can be observed by the Researcher that legislation made
slow but reformative progress in personal law to achieve the goal of
Uniform Civil Code and this approach should be adopted in similar cases
apart from religion.

C. Uniform Civil Code neither necessary nor desirable -

Law Commission47

In its consultation paper on family law reforms, the Law

Commission has advocated 'Equality' within communities between men
and women, rather than equality between communities. Being in
condition that the Uniform Civil Code is neither necessary nor desirable
at this stage. The Law Commission of India has argued for reform of
family laws of every codification of certain aspects so as to make gender
just. In its Consultation paper on family law reforms, the law
Commission has taken a stand in favour of "Equality within communities
between men and women" rather than "Equality between communities."48

The consultation paper,49 states that the law commission has dealt
with discriminatory legislation instead of providing a Uniform Civil Code
which is neither necessary nor desirable at this stage. Most Countries are
now moving towards recognition of difference, and the mere existence of
difference is not discrimination, but a sign of a strong democracy. The
commission on to emphasise that celebration of the diversity of Indian
culture must not deprive specific groups and that women should be
guaranteed their freedom of faith without compromising on their right to
equality as it would be unfair to make women choose between one or the
other.

47
The Hindu, Delhi, February 2020 pp. 26
48
21st Law commission Report 2015
49
Raghavohri-" Article on uniform civil code & law commission Report 2015, pp. 21-22

130
 Triple Talaq and Child Marriage are examples of social evils under
the garb of religious custom. The commission has observed that these
practices are not in consonance with the fundamental of human rights and
are not essential to religion. The Consultation paper recommends a series
of reforms in both personal laws and secular law of all religions that put
women and children at disadvantage.50

One of the most significant recommendation regarding Hindu

personal law is the abolition of the Hindu Undivided family which has
been used only for the tax evasion. In this directions, the paper also states
that coparcenary should be abolished as it would mean that Hindu
undivided family would also inevitably collapse.51

Other reforms suggested in Hindu laws included doing away with

the provision of restitution of conjugal rights52 to compel wives cohabit,
to address the issue of legalization of children born out of live in
relationship and their right to succession.

The commission has suggested allowing adoption to a single

parents, irrespective of gender identity of the child as well as the parent.
The later also suggest that succession must be based on proximity to the
deceased rather than preference to male like hairs. The commission has
recommended that leprosy should be deleted as a ground for divorce. To
move towards a more inclusive society, the commission has also
recommended that appropriate amendment should be made so that person
with illness that can be cured or controlled are not barred from marrying.
Such diseases should also be excluded from being ground for divorce.

50
Reform on family laws by law commissions 21st report.
51
Wani, M. Afzal, "Maintenance of women & children in Muslim countries 45 : 3 & 4 JIL 409 (2003)
52
"The Hindu undivided family in independent India's corporate governance & tax regime" by
chirashree das gupta and mohit gupta, 2017. pp. 61-67

131
 With regards to the un-codified Muslim personal law, the
consultation paper called for a reform in inheritance law through which
codification of the Muslim personal law (Shariat) Application Act, 1937
would need to be abolished. It recommended Muslim code of inheritance
and succession applicable to both Sunnis and the Shias, so that succession
and inheritance were based on proximity to the deceased rather than
preference to male agnates heirs. Further, it holds that the Dissolution of
Muslim marriage53 requires an amendment to explicitly include adultery
as ground of divorce for both the spouses as at present it is recognised
only if it is committed with women of evil repute or leads an infamous
life.

Since polygamy, Nikahhalala, Adultery law are in the Supreme

Court, the law commission has discussed but not recommended reforms.
Although polygamy is permitted within Islam, it is a rare practice among
Indian Muslims, on the other hand it is frequently misused by persons of
other religions who convert as Muslims for the purpose of solemnising
another marriage. However it should make clear in Nikahanama54 that
polygamy is a criminal offence.

Some of the other significant recommendations of the commission

include compulsory marriage registration rectifying the inequality in age
of consent for marriage (18 for girls, 21 for boys) as it simply contributes
to the sterotype that wives must be younger than her husband, allowing
transgender persons to adopt, introduction of a new grounds for no fault
divorce, taking best interest of child as the basis for matters of custody
and defining the rights of persons with disabilities within marriage.

53
Sec. 9 of the Hindu marriage Act 1955
54
Dissolution of Muslim marriage Act. 1939

132
 The paper also suggests expansion of the juvenile law to make it
into a robust secular law that can be accessed by individuals of all
communities for adoption. In this consultation paper the special marriage
Act was described as a 'Secular Law' - as inter-faith marriages are
solemnised under it. Thus these are the recommending reforms suggested
by law commission

Thus it can be observed by the Researcher that implementation of

uniform civil code is the need of the hour. Even after years of achieving
independence, citizens are not enjoying real freedom yet. Unified
personal law cannot be viewed with religious emotion but it as the need
for the country. Non-implementation of the uniform civil code is a very
serious infirmity in the evolution of a secular community in India. It is
time for the intellectuals of India to undertake the important and urgent
task of educating the follow citizens showing them the rational virtue of
the proposed card. The Uniform Civil Code is important for national
integration and gender equality. However, the law has to be such that it
respects the diversity and secularising. A fine balancing has to be social
justice. The Uniform Civil Code should emerge as a thread to bind
different communities rather than as a threat to disintegrate society.

133
 CHAPTER -VII

SOCIO-LEGAL IMPACT OF THE UNIFORM

CIVIL CODE

The Framers of the Constitution always dreamt of building a

country in which secularism is the pillar on which it stands, equality for
all others and a socialist society. It would not be wrong to say that while
the dream of building a secular nation that was pluralistic in nature was
an ambitious one, and yet one of the most important and inevitable goals
as ensuring justice and equality for all religions should be a top priority.

On 26th November 1949, We, the people of India gave ourselves a

Constitution, making India into a Sovereign, Socialist, Secular,
Democratic and Republic1 which guarantees Justice, Liberty, Equality
and Fraternity. The Constitution of India is the grundnorm that provides
fundamental rights and the system to enforce them under part III of all its
citizen. Also, Directive Principles of State Policy under Part IV provides
for rights which are non-enforceable but the principles laid down are
nevertheless fundamental in the governance of the country and it is the
duty of the state to apply these principles in making laws.2 One such
Directive Principle is given under Article 44 which reads:

"The State shall endeavour to secure for the citizens uniform civil
code throughout the territory of India"

Uniform Civil Code is similar to the Uniform Criminal Code which

is applicable to all the communities irrespective of their religion, race,
caste, creed etc. Civil Code relates to various aspects of personal relations
such as Contracts, Property, Marriage and Inheritance such as the Indian

1
The Constitution of India, Preamble.
2
The Constitution of India, art 37.

134
Contract Act, Transfer of Property Act, Code of Civil Procedure which
are applicable Uniformly throughout the territory of India. But, apart
from these civil laws there remains a separate field of laws which are not
equally applicable. Laws relating to Marriages, Divorce, Succession,
Adoptions, Maintenance etc. which are different for different religions,
sometimes termed as 'Personal Law' that governs a person's family
usually regardless of where the person goes.3The Lex Loci Report of
October 1840 emphasized on the importance and necessity of uniformity
in codification of Indian law relating to crimes, evidence, contract etc.,
but it recommended that personal laws of Hindus and Muslims should be
kept outside the ambit of such codification.4 Some of these laws,
particularly Hindu laws, have now been codified while others continue to
apply to the religious communities as un-codified personal laws.

Article 44 of the Constitution of India creates a positive duty on

part of the State to enact a Uniform Civil Code which is applicable
uniformly throughout the territory of India irrespective of religion, race,
caste, creed etc.

A. Secularism v. Uniform Civil Code:-

The preamble of the constitution states that India is a Secular,

Democratic, Republic. It means there is no state religion. A secular state
will not discriminate against anyone on the basis of religion. A religion is
only concerned with relation of man with God. It means that religion
should not interfere in the worldly life of a person. The process of
secularization is closely linked with the goal of a Uniform Civil Code
such as cause and effect.

3
Henry Campbell Black's Law Dictionary' (6th edn, West Publishing Co., 1995).
4
Abul Bashar Mohammad Abu and Noman Saeed Ahsan Khalid 'Uniform Family Code: An Appraisal
of Viability in Pluralistic Bangladeshi Society' (2011) 16 the Chittagong University Journal of
Law.<http://www.culaw.ac.bd/files/journal-201 1/Vol. %20XVI, %20201 1%20(p.81-109).pdf>

135
 In S.R. Bommai v. Union of India,5 It was held that religion is
matter of personal faith and cannot be mixed with secular activities, it can
be regulated by the state by making laws.

In India, the concept of positive secularism exists, which is

different from the doctrine of secularism accepted by the United States of
America and some European States, i.e. a wall of separation between
religion and state. Positive secularism in India separates spirituality from
personal faith. This is because America and European countries have the
phase of Renaissance, Reformation and Enlightment. Thus they can enact
a law saying that state will not interfere in religion. On the contrary, India
has not passed through these phases. Thus, the onus is on the state to
intervene in the matters of religion to remove obstacles in the governance
of the state.

The term Secular is not precise and has different colours in

different contexts. It opposes religion in the sense that a secular state
cannot be a religious state. In this context, some believe that a secular
state is an anti-religious state. A state which has no religion of its own
does not mean an anti-religious state but it believes in respect to all
religions.

Although the word 'Secular' was added to the preamble in the 42nd
constitutional Amendment, the spirit of secularism pervaded in every
element of the constitution from its inception. This secular spirit laid the
foundation of the fundamental right to equality before the law6,
Prohibition of discrimination on grounds of religion, race, caste, sex,
place of birth or any of them,7 Prohibition of discrimination on above said

5
AIR 1994 SCC 1
6
Art 14 of the constitution.
7
Art. 15 of the constitution.

136
grounds or any other in respect of any employment or office under state 8
or suffrage,9and freedom of conscience and free profession, practice and
propagation of religion.10Article 27 is another consequence of secularism.
This makes clear that state is barred from patronizing or supporting any
religion.

Uniform Civil Code does not oppose secularism and will not
violate Article 25 and 26. Article 44 is based on the concept that there is
no essential relationship between religion and personal law in a civilized
society. Marriage, Succession and similar matters are of secular nature
and law can govern them. No religion allows deliberate distortion.11 The
Uniform Civil Code will only interfere in matters of inheritance, property
rights, maintenance and succession, there will be a common law.

Thus, it is necessary that law be separated from religion. With the

enactment of Uniform Civil Code secularism will be strengthened, In
present day much of the separation and division between the various
religious groups will disappear and India will emerge as a more united
and unified nation.

B. Judicial Impact:-

In 1985, for the first time in Indian history, the Supreme Court in
Mohammad Ahmed Khan v. Shah Bano Begum12 directed the Parliament
to enact a Uniform Civil Code. The court said that it is a matter of regret
that Article 44 of our Constitution has remained a dead letter. A common
civil code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. It was

8
Art. 16 of the constitution.
9
Art. 325 of the constitution.
10
Art. 25 of the constitution.
11
Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
12
Mohammad Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556.

137
repeated in Jordan Diengdeh v. S.S. Chopra where in the Court was of
the view that a legislative intervention was required to provide for a
Uniform Code of marriage and divorce.13 The court in Sarla Mudgal v.
Union of India14 insisted on the need for a Uniform Civil Code and no
community would be affected by it.15

After Sarla Mudgal's case there was a slight change in the judicial
trend. The court in Pannalal Bansilal v. State of Andhra Pradesh
emphasized that a uniform law is highly desirable, its implementation in
one go can be counter-productive to the unity and integrity of the
nation.16 In a democratic country like India which is governed by the rule
of law, laws should be made uniform slowly and gradually and not
abruptly. The Government should delegate the responsibility to the Law
Commission which can investigate the matter with Minorities
Commission and bring comprehensive law.17 The court also clarified that
the opinion of the court in Sarla Mudgal's case is not binding and is only
a suggestion. But, in the year 2003, Chief Justice V.N. Khare in John
Valamattom v. Union of India18again insisted that a Uniform Civil Code
will help the cause of national integration by removing the contradictions
based on ideologies.

In past few years, through judicial activism, the courts have made
efforts to get rid of gender discriminatory practices that are in disguise of
religious practices. More recently on 23rd September 2015, the Gujarat
High Court in Yunusbhai Usmanbhai Shaikh v. State of Gujarat19 ordered

13
Jorden Diengdeh v. S.S. Chopra (1985)3 SCC 62; Arunima Bhattacharjee v. Shyama Prosad
Bhattacharjee AIR 2004Cal161.
1416
Sarla Mudgal v. Union of India (1995) 3 SCC 635.
1517
Maharishi Avadesh v. Union of India (1994) 1 Supp SCC 713; Ahmedabad Women Action Group
v. Union of India AIR 1997 SC 3614; Reymond Rajamani v. Union of India AIR 1982 SC 1261.
16
PannalalBansilal v. State of Andhra Pradesh 1996 (2) SCC 498.
17
Lily Thomas v. Union of India (2000) 6 SCC 224.
18
John Valamattom v. Union of India (2003) 6 SCC 611.
19
Yunisbhai Usmanbhai Shaikh v. State of Gujarat (2015) 3GLR2512.

138
to stop Muslim Polygamy which it termed as "heinously patriarchal".20
After one month in October, the Supreme Court in Prakash v. Phulavati21
ordered an examination of practices like polygamy and triple talaq in
Muslim Personal law and declared them "injurious to public morals".22
The Supreme Court's latest reminder for implementation of Uniform Civil
Code came in 12th October 2015. The court observed that there is "total
confusion" due to personal laws governing different religious practices
and asked the Centre whether it was willing to implement Uniform Civil
Code in the country.23

C. Balancing Right to Equality and Freedom of Religion:-

Fundamental Rights in India are not absolute in nature and the

Right to Freedom of Religion as provided under Article 25(1) guarantees
freedom of religion, freedom of conscience, and freedom to profess,
practice and propagate religion to all persons in India. But at the same
time, it is "subjected to the other provisions of this Part" including Right
to Equality under Article 14 and 15. However, even though freedom of
religion includes the right to be governed by personal law, it does not
cover the right to denied of equality or personal liberty to a class of
people governed by such personal law24Therefore, the personal law is not
protected from the interference by the sovereign legislature.

20
Saeed Khan, 'Stop Muslim Polygamy, its 'heinously patriarchal' says Gujarat High Court, pitching for
a Uniform Civil Code' The Economic Times (Ahmedabad, 6 November
2015).<http://economictimes.indiatimes.com/news/politics-and-nation/stop-muslim-polygamy-its-
heinouslypatriachal-says-gujarat-hc-pitching-for-a-common-civil-code/articleshows/49683665.cms>
21
Prakash v. Phulavati 2015(11) SCALE 643.
22
BhadraSinha, 'SC to examine Muslim personal law, aim to end gender bias' The Hindustan Time
(New Delhi 28 October 2015) <http://www.hindustantimes.com/india/sc-to-examine-muslim-personal-
law-for-polygamy-tripletalaq/story-qpLYAcyFxuLkHyvv8zCRTL.html>
23
Utkarsh Anand, 'Uniform Civil Code: There's total confusion, why can't it be done, SC asks Govt'
The Indian Express (New Delhi, 13 October 2015)<http://indianexpress.com/article/indian/india-news-
india/uniform-civil-codesupreme-court-asks-govt-why-cant-it-be-done-tell-us-your-plan/>
24
S.P. Sathe, 'Uniform Civil Code: Implications of Supreme Court Intervention' (1995) 30 Economic
and Political Weekly 2165.

139
 The framers of the Constitution while drafting the said provision,
tried to differentiate between the essence of a religion and other secular
activities that may be associated with religious practice but do not form a
part of the core of the religion. They accepted the principle that a
religious practice covers a secular activity or falls within the field of
social reform.25 The law so enacted will not infringe the Fundamental
Right of the minorities to freedom of religion and with this objective they
inserted clause 2(a) as follows:

"Nothing in this article shall affect the operation of any existing

law or prevent the State from making any law regulating or restricting
any economic, financial, political or other secular activities which may
be associated with religious practices."

The distinction between essential religious practices and secular

practices has been explained in great detail in case of Nikhil Soni v. Union
of India. The court clarified that a practice may be a religious practice but
is not an essential and integral part of the religion.26 The Constitution
under Article 25(1) protects only those religious practices which form an
essential and integral part of religion. Practices other than those come
under the ambit of secular activities which are not protected and can be
regulated by the legislature. Thus, practices such as witchcraft,
superstition, sati, child marriage, prohibitions against widow remarriage,
caste discrimination, triple talaq and polygamy may be banned or
regulated.27

Therefore, once it is held that there are customs and practices that
are not part of the essence of religion but a secular activity connected

25
CA Deb 23 November 1948, vol 7, 547.
26
Nikhil Soni v. Union of India AIR (2006) Raj 7414.
27
B.G. Verghese, 'Who's afraid of a uniform civil code?' The Hindu' (13 August 2003)
<http://www.thehindu.com/thehindu/2003/08/13stories/2003081 300341 000. htm>

140
with religion, the Legislature would be competent to make a Uniform law
relating to such secular activities by implementing Article 44 of the
Constitution.28 Therefore, if a Uniform Civil Code is enacted, it would be
within the ambit of the Constitutional provisions and would not infringe
the Right to Freedom of religion.

D. Uniform Civil Code vs. Common Civil Code:-

Article 44 suggests a uniform civil code and not a common civil

code. The expressions 'uniform' and 'common' are often used
interchangeably but they have different meanings. The word 'common'
means shared among several29 while 'uniform' means conforming to one
rule, not different at different places, applicable to all places or divisions
of the country, applying alike to all within a class.30

According to S.P. Sathe, the word 'Uniform' in article 44 means

that all communities must be governed by uniform principles of social
and gender justice.31This indicates the modernisation and humanisation of
each personal law. A uniform law would not necessarily mean a common
law but different personal laws based on uniform principles of equality of
sexes and liberty of the individual.32 But, this interpretation of the word
'uniform' is not possible for the purpose of Article 44. By analysing the
Constituent Assembly debates and the arguments of the members
including Dr. B.R. Ambedkar, it is very clear that they intended a Civil
Code, uniform in its content and applicable to the whole of the Country. 33

According to the Black's Law Dictionary, a statute is uniform in its

operation when it operates equally upon all persons who are brought

28
CA Deb 23 November 1948, vol 7, 547.
29
Henry Campbell Black, 'Black's Law Dictionary' (6th edn, West Publishing Co., 1995)
30
Ibid.
31
Sathe (n 41).
32
Ibid.
33
Khalid (n 4).

141
within the relations and circumstances provided for; when all persons
under the same conditions and in the same circumstances are treated
alike, and classification is reasonable and naturally inherent in the
subject-matter.34 The word "uniform" as applied to laws have a meaning
contrary to special or discriminatory laws.35

The practice of providing unequal shares in coparcenary property

to a brother and sister under Mitakshara Hindu law, or the custom of
burning a Hindu widow to death on her husband's funeral pyre, or the
practice of giving unequal shares in property to male and female heirs
after a Parsi man dies intestate, or indiscriminate polygamy by a man, or
the practice of divorcing a lawfully wedded wife by triple talaq, or the
refusal to maintain a divorced wife after the period of iddat are all
practices derogatory to the dignity of woman. Therefore, if a member of a
religious community resorts to such practices or raises an objection to the
implementation of Article 44 he become guilty of violation of the
Preamble, and Article 51A and also of the guarantee of non-
discrimination on the ground of religion in Article 15(1) and 14 of the
Constitution.36

The principles of equality, justice and non-discrimination are far

more important than unequal, unjust and discriminatory personal laws
associated with particular religions. Therefore, if a Uniform Civil Code is
implemented it will be tested on the touchstone of Fundamental Right to
Equality and will work without any discrimination throughout the
Country.

34
Black (n 3)
35
Ibid.
36
Durga Das Basu, Commentary on the Constitution of India vol. 3 (8th edn, Lexis Nexis 2008) 4132.

142
E. Socio and Legal Attempt to implement Uniform Civil
Code:-

The Judiciary, through its judgments, has stressed upon bringing in

Uniform Civil Code for the welfare of the Country and all its citizens.
The Judicial organ have been advising the law-making body to take
necessary steps to draft a Common Code for marriage, divorce,
inheritance, adoption and maintenance.

Triple talaq, Polygamy, etc. are some of the evils in Muslim

community because the right of Muslim women is totally deprived by
these evils. The importance of Uniform Civil Code was first highlighted
in the landmark judgement "Mohammad Ahmed Khan v. Shah Bano
Begum,"37popularly known as Shah Bano's case, the Supreme Court held
that "it is also a matter of regret that Article 44 of our Constitution has
remained a dead letter."38 The decision of the Supreme Court was not
entertained by many members of Muslim community and the state
government by the compulsion of the Muslim minorities amended the
Muslim Women's (Protection of rights on Divorce) Act 1986 which
clearly denied Muslim women to claim maintenance under section 125 of
Criminal Procedure Code.

Kuldip Singh J in the case of Sarla Mudgal v. Union of India39

stated that, "When more that 80% of the citizens have already been
brought under the codified personal law there is no justification
whatsoever to keep in abeyance, any more, the introduction of uniform
civil code for all citizens in the territory of India." In a concurring
judgement, R.M. Shahi, J wrote, "But religious practices, violative of

37
(1985) 2 SCC 556 (India).
38
Uniform Civil code-a need for the hour, SHODGANGA,
http://shodganga.inflibnet.ac.in/bitstream/10603/54472/11/11_chapter%204.pdf.
39
AIR 1995 SC 1531

143
human rights and dignity and sacerdotal suffocation of essentially civil
and material freedoms are not autonomy but oppression".40

In Ahmadabad Women's Action Group (AWAG) v. Union of

India,41 a Public Interest Litigation was filed by challenging the
provisions which are gender discriminatory in Muslim, Hindu and
Christian law. The Supreme Court held that the matter of removal of
gender discrimination in personal laws "involves issues of State polices
with which the court will not ordinarily have any concern."

In Christian community, also there are gender discriminatory

provisions. For instance, a Christian man can get divorce from his wife on
the grounds of adultery but a Christian woman has to prove some
additional charges like desertion, cruelty to obtain a divorce. Judiciary
took progressive steps to eradicate the gender discriminatory provisions
in "Swapana Ghosh v. Sadananda Ghossh"42, the Calcutta High Court
said that section 10 and section 17 of the Indian Divorce Act, 1869,
should be declared unconstitutional. In 1995, the Kerela High Court in
Ammini E.J. v. Union of India43, and Bombay High Court in Pragati
Verghese v. Cyrill George Verghese44, struck down that section 10 of
Indian Divorce Act, 1869 are violative of gender equality.

C.J. Khare in the case of John Vallamattom v Union of India45 said

that, "Article 44 provides that the State shall endeavour to secure for all
citizens a uniform civil code throughout the territory of India. It is a
matter of great regret that Parliament is yet to take step to frame a
common civil code in the Country. A common civil code will help the

40
Ronjoy Sen, Articles of Faith-Religion, Secularism and The Indian Supreme Court 144 (1st Ed. 2010)
41
AIR 1997 SC 3614 (India).
42
AIR 1986 Cal. 1 (India).
43
AIR 1995 Ker 252 (India).
44
AIR 1997 Bom 349 (India).
45
2003 (6) SCC 611 (India).

144
cause of national integration by removing the contradictions based on
ideologies."

In landmark case, Seema v. Ashwani Kumar46, which brought about

registration of marriage compulsory, the Supreme Court stated that "it is
high time that we took a second look at the entire gamut of Central and
State laws on registration of marriages and divorces to assess whether
there is uniform level of marriage and divorce registration laws in the
country at the level of social development and if not, what necessary legal
reforms can be introduced to streamline and improve the current system."

Justice R.M. Sahai has stated that, "India is a Secular, democratic,

republic. Freedom of religion is the core of culture, even the slightest of
deviation shakes the social fibre. But religious practices, violations of
human rights and dignity and sacred suffocation of essential civil and
material freedoms are not autonomy but oppression. Therefore, a Unified
code is imperative both for protection of the oppressed and for promotion
of national unity and solidarity."

From the above mentioned landmark judgements, it is evident that

there are lot of religious practises that are gender discriminatory. Those
practises not only include the minority community but also in majority
community, it was reported that 90% of dowry death cases belongs to
Hindu community and the remaining 10% includes cases from minority
communities. Thus, Uniform Civil Code is not a code to implement the
practises of majority community onto the minorities.

The most debated topic Uniform Civil Code was opposed on the
ground that India is a secular country that has lot of cultural and religious

46
2006 (2) SCC 578 (India).

145
practises and hence the implementation of Uniform Civil Code would
destroy the cultural identity.

India is civilised and a developing nation, although culture and

religion are important aspects in a secular nation like India, those cultures
and religious practises should not violate the basic human rights given to
the citizens in the Constitution of India. In the present scenario, we have a
uniform criminal code to regulate the crimes and the irrespective of their
religion and sex. Hence, it gives importance to the rights of the individual
and not to the religious practises. Similarly, a Uniform Civil Code for all
religions doesn't mean that it will eradicate the cultural norms, it only
aims in eradicating the practises and provisions that violate the basic
human rights of the individuals and the statutory and non-statutory laws
that are gender discriminatory.

F. Misconception about Uniform Civil Code:-

The drafters of Indian Constitution had the vision of Common

Civil Law governing the people of India with prevalence of equality. But
those great minds would have never thought of Uniform civil code
struggling in the wrong hands. Nowadays, Uniform civil code is used by
politicians as a tool in their unfair play. Some politicians have created a
myth that the Uniform Civil Code will suppress the minorities and
impose upon them the personal laws of majority communities. The
politicians on selfish motive to gain vote from the religious folks have
created evil face for the Uniform Civil Code portraying it as against all
religious practices and faith of the people. Such a wrong ideology of
Uniform Civil Code is prevailing at present in the society. The reality is
not so, the Common law will bring about code of laws uniform to all
irrespective of their religion. Our Constitution is drafted in such an
impeccable manner that the laws are enacted by the Supreme Legislation
146
called the Parliament which directly or indirectly includes the people's
representatives. A bill to be passed demands the two-third support of its
members and finally the assent of the Executive Authority. Thus, a bill
has to go through various scrutinizes to become an Act, hence Uniform
Civil Code will be subject to several analyses before it come into force.
These analyses definitely would not ignore minorities. The Uniform Civil
Code is ideal legislation that will bring home secularism and uniformity
in personal or civil laws in the Indian legal system. The problem lies in
the misconception of those who are against the implementation of
Uniform Civil Code.

Thus, it is observed by the Researcher that the impact of Uniform

Civil Code will depend on two factors, namely the core content of a
Uniform Civil Code and the procedure adopted for the enforcement of
such code. In terms of Content, the objective of Uniform Civil Code
should be to ensure uniformity of rights in the light of principles of
equality and gender justice. In term of Process, how individual laws are
intrinsically linked to religious beliefs. The Uniform Civil Code should
be formulated in a transparent manner after extensive and comprehensive
consultation with all types of communities in the country. If the Uniform
Civil Code sticks to the above guiding principles, the Uniform Civil Code
go step further.

147
 CHAPTER - VIII

RIGHT TO RELIGION AND JUDICIAL TREND

A. Meaning of Religion:-

It is hardly a coincidence that democracies flourished in the broad

sense of religion in communities with a strong religious consciousness.
Such sense of religion embraces all kinds of faiths and their equality
before the spirit of the universe unaware of the difference in their
religious thoughts, they turn to each other for a cause that belongs to all
of them and not just a few who holds the same ideas.1

Thus, freedom of religion is an integral part of the structure of

liberty without which a democratic complex can never flourish. The
concept of secular state in essence means that the two powers growing the
life of individuals have separate fields in which they operate. It's first and
foremost feature is that a person enjoys his rights of citizenship
irrespective of religion.

The right to propagate one's religion means the right to transmit

one's faith to another person or to expose tenants of that religion, but does
not include the right to convert another person to a former religion.2Of
course, the latter person is free to adopt another religion in the free
exercise of his conscience, but no one has a fundamental right to convert
him to another religion where he does not do so of his own free will.

B. Definition of Religion:-

The constitution of India does not define religion, but it has been
established that religion is not necessarily theistic. The freedom of
1
Inaugral speech by president v.v. Giri at the third conference of common wealth chief-Justices, dated
Jan. 4, 1972.
2
Rev. Staini; Laws V. State of M.P. AIR 1977

148
religions conferred by Article 25 is not limited to citizens of India but
extends to all persons including aliens3 and individuals who exercise their
rights individually or through institutions. The constitution of India not
only protects freedom of religious opinion but also protects the acts done
in pursuance of religion. Thus religion is not a mere doctrine of belief but
also practices, rites, ceremonies, functions which are an integral part of
religion.4

The definition of 'Religion' becomes an important point of the

Article 25 and 26 of the Indian constitution dealing with the right to
freedom of religion. Certainly the Individual, the religious body or the
state would not be the proper authority to define it. Therefore, the
responsibility has been shouldered on the courts, which have also become
difficult to define the term 'religion'

It is really difficult to give a definition of 'Religion' which will

satisfy the adherents of all religions of the world. However the courts
have tried to define the term religion not only in India but in other
countries also, while interpreting the constitutional provisions.

In the Supreme court of United States of America.5 Justice Field observed

that-

"The term religion has reference to one's views of his relations to

his 'CREATOR' and the obligation they impose of reverence for his being
and character and of obedience to his will"

A religion undoubtedly has its basis in a system of beliefs or

doctrines that consider that religion to be conductive to one's spiritual
wellbeing but it would not be correct to say that religion is nothing but a

3
Ralilal V. State of Bombay, AIR 1954 SC 388
4
Sardar Sarup Singh V. State of Punjab AIR 1959, SC 860
5
Davis V. Benson 133 U.S. 333 (1890)

149
doctrine of belief. A religion may not only lay down moral rules for its
followers or it may prescribe rituals and observances ceremonies and
modes of worship to be accepted which are regarded as integral parts of
religion and these forms and observances might extend even to matters of
food and dress.

C. Basic Common Elements of Religion:-

It is very difficult to find any definition of 'religion' which is or can

be universally accepted. In view of this difficulty, there are some basic
elements of religion which may be considered as its distinguishing marks
and which taken together form the essence of religion. These basic
elements are found in all religions in various degrees and in some form or
the other whether these religions are primitive or developed and theistic
or atheists.

1. Belief in the super natural

The first distinguishing mark and the fundamental constituent of

religion is the religious persons may believe in many supernatural powers
i.e. powers outside of man and the present world. These powers are
considered to be supernatural in the sense that they are beyond nature and
are not subject to natural laws which govern the whole universe. The
important features of these powers are that they are super sensible and
cannot be perceived by our senses which are the basic sources of our
knowledge of the outside world. The existence of these super natural
powers are accepted merely on faith which is an essential features of
religion.

2. Belief in Sacrosanct

The belief of religious people in a supernatural power makes

certain places, objects, writings and persons sacred or holy because they
150
are specially considered to belong to this power. These sacred or holy
things are symbolic, but this belief based on faith. For example, Cow is
sacred for Hindus.

3. Worship and prayer:-

The belief in the super natural powers gives rise to another

essential features of religion i.e. worship and prayer. The literal meaning
of 'worship' is reverence or respect shown to a superior person. The
follower of religion worship the supernatural power either in the form of
a statute or in a formless manner.

4. Salvation and Deliverance:-

It is another component of religion. Man needs some method by

which he can attain Moksha or by which crime or bondage can be
removed by establishing harmony between man and God.

Every major religion has its own conception of salvation which is

variously known liberation, Moksha, Kaivalya, Nirvana, Nijat, etc. Every
religion also presents a specific way for achieving this salvation. Thus it
is the conception of man's salvation which makes religion a way of life
and which is considered to be the essence of religion.

D. Right to Freedom of Religion: A Constitutional

Provision:-

The term 'religion' is not defined in the Indian Constitution and

infact it is a term which is hardly susceptible to any rigid definition.
Religion is a matter of faith with individuals or communities and it is not
necessarily theistic. The basis of religion is a system of beliefs or
doctrines that are followed by people who consider that religion to be
conducive to their spiritual wellbeing. A religion may only prescribe a

151
code of ethical rules for its followers to accept. It might prescribe rituals
and observances, ceremonies and modes of worship which are regarded
as integral part of religion.6

Thus, religion is a matter of personal faith and belief. Every person

has right not only to entertain such religious belief and ideas as may be
approved by his judgement or conscience but also exhibit his belief and
ideas by such overt acts which are sanctioned by his religion.

Freedom of Religion in India:

 Article 25 (1) of the constitution guarantees to every person the

freedom of conscience and the right to profess, practise and
propagate religion:-

The right guaranteed under Article 25(1) is not absolute. This right is
subject to public-order, morality and health and to the other provision of
part III of the constitution.

Under Art 25 (i) a person has a two- fold freedom-

 Freedom of conscience

1. Freedom to profess, practise and propagate religion.

 The freedom of 'Conscience' is absolute inner freedom of the

citizen to mould his own relation with God in whatever manner he
likes. When out ward form it is to profess and practise religion.

 To 'Profess' a religion means to declare freely and openly one's

faith and belief. He has right to practise his belief by practical
expression in any manner he likes. To 'practise' religion means to
perform the prescribed religious duties, rites and rituals, and to
exhibit his religious beliefs and ideas by such acts as prescribed by
6
Commr. H.R.E. V. L.T. Swamiar, AIR 1954 SC 282 at page 290; S.P. Mittal V. Union of India, AIR
1983 SCI.

152
 religious order in which he believes. To 'propagate' means to
spread and publicize his religious view for the edification of others.
But the word "Propagation" only indicates persuasion and
exposition without any element of coercion. The right to propagate
one's religion does not give a right to convert any person to one's
own religion. Article 25 guarantees "Freedom of conscience" to
every citizen, and not merely to the followers of one particular
religion.7

2. Freedom to manage religious affairs:-

Article 26 of the Indian Constitution says that subject to public

order, Morality and health every religious denomination of any section of
it shall have the following right:-

a) To establish and maintain institution for religious and charitable

purposes
b) To manage its own affairs in matters of religion.
c) To own and acquire movable and immovable property
d) To administer such property in accordance with law.

'Religious denomination' means a collection of individuals having

common faith, common-organisation and designated by a district name. It
indicates a religious sect or body having a common faith and organisation
and designated by a distinct name. According to Webster's Dictionary,
the word 'Denomination' has been defined as a "collection of individuals,
classed together under the same name. "To form religious denomination,
three conditions must be fulfilled.8

i) It is a collection of individuals who have a system of beliefs

which they regard as conducive to their spiritual wellbeing.
7
Dr. J.N. Pandey, 'Constitutional law of India 53rd edition 2016. page no. 366
8
M.P. Jain, Indian Constitution Law, p. 639

153
 ii) They have a common organisation; and
iii) Collection of these individuals has a distinct name

Thus followers of Zorastrian religion9 Vallabha10 Ram Krishna

mission or Krishna math11 and AnandMargis12 constitute religious
denomination.

The right guaranteed by Article 26 to the religious denomination or

a section may be explained under the following heading:-

(a) To establish and maintain institution for religious and

charitable purpose:-

According to Article 26(a) every religious denomination and a

section shall have right to establish and maintain institution for religious
and charitable purposes. The words "establish and maintain" should be
read conjunctively and consequently, the right to maintain the institution
can be claimed only by the religious denomination which has established
or brought in to existence the institution.13

Thus, under Article 26 (a) the religious denomination of the

majority religious community has right to establish and maintain
educational institution but his right is subject to public order, morality
and health.14

(b) To manage its own affairs in matters of Religion:-

According to Article 26 (b) every religious denomination or any

section has the right to manage its own affairs in matters of religion and
the state cannot interfere in these affairs, unless it exercises its right so as

9
RatiLal V. State of Bombay. AIR 1954 SC 388
10
T.S. GovindlaljiMaharaj V. State of Rajasthan, AIR 1963, SC 1638
11
BrahmchariSidheswar V. State of W.B. AIR 1995 SC 2089
12
Jagdishwaranad V. Commissioner of Police AIR 1984, SC 53
13
Azeez V. Union of India, AIR 1968 SC 662
14
T.M.A. Pai Foundation V. State of Karnataka, AIR 2003 SC 355.

154
to interfere with public order, morality, or health. The religious
denomination's right to manage its own affairs is limited to the affairs in
matters of religion.15

A religious denomination has right to decide what rites and

ceremonies are essential according to its religion, However the court can
determine whether a particular rite or observance is regarded as essential
by particular religion.16

(c) To own and acquire movable and immovable property:-

Under Art 26 (c) a religious denomination has the right to acquire

and own property and to administer such property in accordance with
law. The state can regulate the administration of the property belonging to
the religious denomination.17

However it is to be noted that the state cannot take away the right
to administration altogether from the religious denomination and vest it in
any other secular body.18 Administration of property belonging to a
religious denomination must remain with the religious denomination,
although it may be regulated by law. For example, if an Act passed by the
legislature vests the administration of the property belonging to a Hindu
temple in a committee consisting of Hindus only, it will be valid as it
does not deprive the religious denomination, namely, the Hindus of its
right to administer the property of the temple.19

 Difference between Article 25 and 26 :-

Article 25 confers the particular right on all persons, while Article 26

guarantees certain rights only to religious denomination or a section.

15
B.K. Deb V. State of Orissa, AIR 1964 SC 1501
16
Dargah committee V. Hussain, AIR 1961 SC 1402
17
GovindlalJi V. State of Rajasthan, AIR 1963, SC 1638
18
Ratilal V. State of Bombay, 1954 SCR 1055
19
Ram Chandra V. State of Orissa, AIR 1959

155
Article 26 is subject to public order, morality and health while Article 25
is subject to Public order, morality, health and also subject to the other
provision relating to the fundamental rights.20

3. Freedom from taxes for promotion of any particular religion:-

Article 27 provides that no person shall be compelled to pay any

tax for the promotion or maintenance of any particular religion or
religious denomination. This Article emphasises the secular character of
the state. The public money collected by way of tax cannot be spent by
the state for promotion of any particular religion.

The reason underlying this provision is that India is a Secular state

and the freedom of religion guaranteed to both individuals and groups by
the Constitution is against the policy of individuals and groups. it is
against the policy of the constitution to pay out of public funds of any
money for the promotion or maintenance of the particular religion or
religious denomination.21

4. Prohibition of Religious instruction in state aided Institution

Article 28:-

According to Article 28 no religious instruction shall be imparted

in any educational institution wholly maintained out of state funds but
this clause shall not apply to an educational institution which is
administered by the state but has been established under any endowment
or trust which requires that religious instruction shall be imparted in such
institution. Article 28 mentions four types of educational institution:

 Institution wholly maintained by the state

 Institution recognised by the state

20
Narendra Prasad Ji V. State of Gujarat, AIR, 1974 SC 2094
21
Commr. H.R.E. V. L.T. Swamiar, AIR 1961 SC 282.

156
  Institution that are receiving aid out of the state fund
 Institution that are administered by the state but are established
under any trust or endowment.

E. Secularism and Religious Freedom:-

India is a Secular country. Secularism means neutrality of the state

in matter of Religion. It means that India has no official or sponsored
religion like Srilanka and Pakistan where Buddhism and Islam is the
official religion respectively. Such sponsorship of religion is not available
in India. The Constitution of India is the Supreme law of the land. It
determines the rights, duties, obligations, powers of individuals and
institutions. India is a secular country it means no credentials religion of
the government of India. Supreme Court had played an important role in
the maintenance of India as a Secular nation. The religious freedom
granted under Indian constitution is most sacred part under which
person's belief, faith and worship protected.

The concept of Secularism is enshrined in the Preamble of the

Constitution which declares the resolve of the People to Secular to all its
citizens "Liberty to thought, belief, faith and worship." The Constitution
(42nd Amendment) Act, 1976, has inserted the word 'Secular' in the
preamble. In India, a Secular state was never considered as an irreligious
or atheistic state. It only means that in matters of religion it is neutral. It is
the ancient doctrine in India that the state protects all religions but done
not interferes with any.22

Explaining the Secular character of the Constitution, the Supreme

Court said "There is no mysticism in the secular character of the state.
Secularism is neither anti-God nor pro-God, it treats alike the devout, the

22
Vasudev V. Vamanji, ILR 1881

157
antagonistic and the atheist. It eliminates God from the matters of the
State and ensures that no one shall be discriminated against on the ground
of religion.23

When Constitution of India was drafted the word 'Secular' was not
deliberately included under Indian constitution. The basic reason behind
such omission is that Constitution makers intentionally avoided inserting
word 'secular' under Indian Constitution to avoid implications the anti-
religious overtone associated with the doctrine of secularism. Due to this
word secular was not inserted under Indian Constitution.

The State can have no religion of its own. It should treat all
religions equally. The state must extend similar treatment to the Church,
the Mosque and the Temple. In a Secular state, the state is only concerned
with the relation between man and man. It is not concerned with the
relation of man with God. It is left to the individual's conscience. Every
man should be allowed to go to Heaven in his own way. Worshipping
God should be according to the dictates of one's own conscience. Man is
not answerable to the state for the variety of his religious views. The
Supreme Court has held that "Secularism is a basic feature of the
Constitution."24

The state treats equally all religions and religious denomination.

Religion is a matter of individual faith and cannot be mixed with Secular
activities. Secular activities can be regulated by the state by enacting a
law. Justice Ramaswami observed that secularism is not anti-God. The
concept of Secularism in its modern form was articulately expressed by
various thinkers as well as jurists.25

23
St. Xavier's college V. State of Gujarat, AIR 1974
24
S.R. Bommai V. Union of India AIR 1994 SC 1918
25
In eighteenth century J.S. mill and Bentham's "Principles of legislation' flowed the theories of
utilitarians. These principles later on enunciated by 'Holyouke' in his famous book. Principle of
secularism in 1859.

158
 The concise oxford dictionary shows that the adjective 'Secular'
means "Concerned with the affairs of this world worldly, not sacred, non-
monastic, not ecclesiastical, temporal, profane, lay."

Thus, it is observed by the Researcher that the concept of freedom

of religion and Secularism under Article 25 of Indian Constitution are
very dynamic concepts. The Supreme Court of India played very
significant role. The Supreme Court of India has become really supreme
in protection of freedom of religion guaranteed under Article 25 of the
Constitution. Freedom of religion is subject to the rights of others and
Supreme Court of India played sin qua non role.

F. Sabrimala Temple Issue- Custom v/s Constitution:-

Kerala's Sabrimala Temple issue is about the conflict between

women rights and tradition. According to age-old traditions and customs,
women from ten of fifty years of age were not permitted in to Sabrimala
Temple. However, the situation has changed when the constitutional
bench of the supreme-court on September 2018 declared that restricting
the entry to women of Menstruating age was Unconstitutional.

Thus the Supreme Court allowed women, irrespective of their age,

to enter Sabrimala temple, but the state government has been facing a
hard time enforcing the supreme-court's order because of huge protests.

(1) Background of Sabrimala Temple issue:-

i) The Sabrimala Temple restricts menstruating women (between the

ages of 10 to 50 years) from taking the pilgrimage to Sabrimala.
The reason of the restriction was that the Temple deity, swami
Ayyappa is a 'Naisthika Brahamchari'. Also.

159
 ii) The Kerala Hindu places of public worship (Authorization of
Entry) Rules, 1965, prohibits women from entering the Sabrimala
temple premises.

iii) Kerala High Court in 1991 ordered in favour of the restriction by

mentioning that the restriction was in place throughout the history
and not discriminatory to the Constitution.

iv) In 2006, Indian young lawyers Association challenged the ban in

Supreme-Court.

v) The Kerala government appealed to the Supreme Court that the

beliefs and customs of devotees cannot be altered by means of
judicial process and the priest's opinion is final.

vi) Thus the Supreme-Court referred the issue to a larger

Constitutional bench.

(2) Arguments against Women's entry in to the temple:-

i) Allowing menstruating women to enter the temple would affect the

deity's celibacy and austerity which is the unique nature of Swami
Ayyappa.

ii) Temple, managed by trusts are public places. The Sabrimala trust's
representatives claim that it has its own traditions and Customs that
have to be respected, just like other public places which have their
own rules.

iii) Article 25 (2) of the Constitution which provides access to public

Hindu religious institution for all classes and section of the society
can be applied only to the societal reforms, not religious matters
which are covered under Art 26 (b) of the Constitution. Article 26
(b) provides right to every religious group to manage their own
religious affairs.
160
 iv) The Guwahati High-Court in Ritu Prasad Sharma v/s State of
Assam (2015) ruled that religious customs which are protected
under Article 25 and 26 are immune from challenge under other
provisions of part IIIrd of the Constitution.

v) Rule 3(b) of the Kerala Hindu places of public worship

(Authorization of entry) Rules, 1965 prohibits Women from
entering the Sabrimala temple premises.

(3) Arguments in Favour of Women's Entry in to the temple:-

i) When all the people are equal in God's eyes as well as the
Constitution, there is no reason why Women are only barred from
entering certain temples.

ii) Indian Constitution under Article 25 provides an individual’s the

freedom to choose his/her religion. Hence praying in a temple or
mosque or church or at home must be the individual's choice.

iii) There are countless Ayyappa temples in India where such rules
don't apply and there are no restrictions in praying. The deity is
also being worshipped by women of this ages in their houses.
Then why only Sabrimala temple?

iv) The argument that menstruation would pollute the temple

premises is unacceptable since there is nothing "unclean" or
"impure" about menstruating women.

v) Discrimination based on the biological factor exclusive to the

female gender is unconstitutional as it violates fundamental rights
under Article 14 (equality before law), Article 15 (discrimination
abolition) and Article 17 (untouchability abolition).

vi) Barring women from entering the temple mainly due to their
womanhood and the biological features is derogatory to women
161
 that is also the directive principles of state policy under Article
51A (e) seeks to renounce.

vii) The Temple's trust gets its fund from the consolidated found. It is
a public place of worship and not a Private temple.

viii) Hinduism is not a religion but a way of life. Hence its practice
cannot be dictated only and narrowly by 'religious pundits' and
'tantric priests'

ix) Religious tradition must remain relevant to changing societal

structures and relationship. Hence it needs reforms from within.

(4) Supreme Court's Verdict:-

A 4:1 majority, the Supreme Court struck down provisions of the

Kerala Hindu places of public worship (Authorisation of Entry) Rules,
1965 and allowed women, irrespective of their age, to enter Sabrimala
temple and worship the deity.

 Rational behind the Verdict:

 Religious Rights:-

i) The Constitution protects religious freedom in two ways-

(A) Article 25 protects an individual's rights to profess, practice and

propagate a religion,

(B) Article 26- Ensures protection to every religious denomination to

manage its own affairs.

ii) The Sabrimala case represented a conflict between the individual

rights of women in the 10 to 50 age group to worship and the group
rights of the temple authorities in enforcing the presiding deity's strict
celibate status.

162
iii) The Travancore Devaswom Board (TDB) claimed that they form a
denomination and hence be permitted to make own rules. However,
the Court declared that Ayyappa devotees do not constitute a separate
religious denomination.

iv) The court ruled that prohibition on women is not an essential part of
Hindu religion.

v) The verdict establishes the principles that individual freedom prevails

over professed group rights, even in religious matters.

 Social notions:-

i) The Judgement relooks at the stigmatization of women devotees based

on a medieval perspective that the menstruation symbolizes impurity
and pollution

ii) It declares that the exclusion on the basis of impurity is a form of

untouchability.

iii) Further, the argument that women of menstruating age could not
observe the 41 day period of abstinence failed to make any sense.

iv) Therefore, the court declared that any rule that segregates women due
to their biological factor is Unconstitutional.

Thus it may be observed that the issue of Sabrimala Temple is an

excellent opportunity for the court to reassess and reform the age-old
traditions in the Country which discriminates against certain section of
the society. The Court should look beyond just denial of freedom of
religion to women but also of equal access to public space. It will put the
foundation stone for the radical re-reading of the Constitution and can
help the court to make a meaningful difference to people's civil rights
across caste, class, gender and religion.

163
G. Uniform Civil Code: Judicial Trend:-

In a democratic country, the Judiciary plays an important role as a

dispute Mechanism. It has very wide powers to expound the provisions of
the Constitution and to put in to practice the basic philosophy enshrined
in the provision. The Constitution of India guarantees to all person
equality, freedom of conscience and religion. The State is under
Constitutional obligation to make earnest effort towards the establishment
of one civil code for all persons. Although the courts have sought to bring
about uniformity in personal laws, but the wave of codification has been
strongly disturbed by parliament because of political considerations.
However, the courts have consistently emphasized the need of the
Uniform Civil Code. The Uniform Civil Code is required not only to
ensure uniformity of law between communities but uniformities of laws
within communities ensuring equality between rights of men and
women,26but diverse personal laws exist in India which is applicable to
all religious groups in the matters relating to their family relationship
such as marriage and divorce, maintenance custody of children,
guardianship of children, inheritance and succession, adoption, etc.

The Judiciary through its various Judgements has upheld gender

justice as always in matters relating to the Uniform Civil Code.

In the case of Mohammad Ahmed Khan V. Shah Bano Begum27

popularly known as Shah Bano case, the Supreme Court held that" It is
also matter of regret that Article 44 of our Constitution has remained a
dead letter". Though this decision was highly criticized by the Muslim
fundamentalists, yet it was considered as liberal interpretation of law as
required by gender justice. Later on, the central government. Passed the
26
F. Agnet, "Hindu men monogamy and UCC xxx (50). Economic and political weekly 32 (1995) B,
Karat, "Uniformity V. Equality" Frontline 17 Nov. 1995.
27
AIR 1985 2 SCC 556

164
Muslim women's (Protection of rights on Divorce) Act 1986, which
denied right of maintenance to Muslim women under section 125 of
Criminal Procedure Code. The activist rightly denounced that it was
doubtless a retrograde step. That also showed how women's rights have a
low priority even for the secular state of India.

The Apex court28 while delivering the judgement directed the

government to implement the direction of Article 44 and to file affidavit
indicating the steps taken in such matter and held that government have
been wholly remiss in their duty to implement the Constitutional Mandate
under Article 44. Therefore the Supreme-court requested the government
of India, through the Prime-minister of the country to have a fresh look at
Article 44 of the Constitution of India and endeavour to secure for its
citizen a Uniform Civil Code throughout the territory of India"

However in Ahmadabad women's Action group (AWAG) V.

Union of India29A PIL was field challenging gender discriminatory
provisions in Hindu, Muslim and Christian statutory and non-statutory
law. In this case the Supreme Court became a bit reserved and held that
personal laws involved issues of state policies in removing gender
discrimination that the court would not normally deal with. The decision
was criticized having virtually abandoned its role as a watchdog in
protecting the principles of equality of personal laws of different
communities in India with respect to gender issue.

The Apex court followed the same line in Lily Thomas etc V.
Union of India and others30 and held that the desirability of Uniform
Civil Code can hardly be doubted, but it can be concrete only when social
environment is properly built-up by the society, statesmen amongst

28
Sarla Mudgal and other V. Union of India AIR 1995 SC 1531
29
AIR 1997 SC 3614
30
AIR 2000 SC 1650

165
leaders who instead of gaining personal mileage rise up and awaken the
public to accept for the betterment of the nation at large.

The supreme court in the case of31recommended the government to

incorporate irretrievable break down of marriage as a ground for the grant
of divorce, and also recommend the Union of India to seriously consider
bringing an amendment in Hindu Marriage Act 1995. The wife wanted32
her husband leave his parents and live separately. The court held that the
demand of the wife was unreasonable and as wife living separately for 15
years and denying physical relationship, so divorce was granted on the
aforesaid grounds. The court observed that the differences that have
grown up between the parties, the distance which has widened for over a
decade cannot be brushed aside lightly. Thus, irretrievable break-down of
marriage is obvious hence divorce in such a case is the only method
available to the parties as well as the court.

Thus it is observed by the Researcher that Article 25 and 26 of the

Constitution guarantees freedom of Conscience, Freedom of profess,
practice and propagate religion of one's choice and also freedom to
manage religious affairs. The aim or motive behind Article 44 is not to
repeal the existing personal laws or to impose a Uniform Civil Code upon
citizen. It is required for the purpose of integrating the country and
achieving real secularism. The major threat to nation is plurality of laws
and therefore change is required. The purview of Uniform Civil Code is
not just limited to the matter of gender justice, but is also involves a
question as to how nation brings about equality by accommodating its
own diversity. In India, freedom of religion exists with other rights like
equality and non-discrimination. There needs to be a balance between the
diverse cultures of India to avoid discrimination and inequality.
31
Naveen Kohli V. Neetu Kohli 2006 (4) SCC 558
32
Ramesh Jangid V. Sunita 2008 (1) HLR 8 (RAJ)

166
 CHAPTER - IX

JURIMETRICS APPROACH TO THE PROBLEM

The Unification of Civil Code may create heat and resentment

among India's political elite, but the judiciary has made it clear that the
community as a whole must be prepared to accept it as a measure of
social reform. The Courts have always been of the opinion that Article 44
of the constitution is very important in reducing social tension and it has
been emphasizing on the implementation of Uniform Civil Code. The
Court is also of the opinion that institution of polygamy is not based on
any necessity. A visit of jurimetrics approach to this problem makes it
very clear that Uniform Civil Code should be made a reality of
constitutional frame work.

It is true that directives are not enforceable by the court of law, yet
they are fundamental in the governance of the country. In a democratic
country the judiciary plays an important role as dispute resolving
mechanism. It has very wide powers to interpret the provision of the
Constitution and to put in to practise the basic philosophy underlying the
provisions. The constitution of India guarantees to all person equality,
freedom of conscience and religion. The State is under Constitutional
obligation to make earnest effort towards the establishment of one civil
code for all persons. Although the court have sought to effect uniformity
in personal laws, but the wave to codify has been firmly upset by
parliament because of political consideration.

However, the courts have the consistently emphasized the need of

the Uniform Civil Code. The Uniform Civil Code is required not only to
ensure uniformity of law between communities but uniformities of law
within communities ensuring equality between rights to men and

167
women1but diverse personal law exist in India which is applicable to all
religious groups in the matter relating to their family relationship such as
marriage, divorce, maintenance, custody of children, guardianship of
children, inheritance and succession and adoption. In fact the absence of
uniformity in law governing these important personal relationships has
resulted in the denial of constitutionally mandated equality before the law
and equal protection of laws of all citizens.

A. Judicial Approach:-

The history of judicial practice reveals that at an early stage it

adopted a literal interpretation of the Constitutionality of personal laws as
well as implementation of the Uniform Civil Code. One of the earlier
case in which the question relating to personal law was involved was the
case of State of Bombay v/s NarasuAppa Mali2

1. Narasuppa Mali Case:-

The first case was state of Bombay v/s Narasuppa Mali where the
legislative provisions modifying the old Hindu law were challenged on
the ground of violation of Article 14, 15 and 25 of the Constitution. The
Bombay High Court held that the Bombay prevention of Hindu Bigamous
Marriage Act, 19463 was contrary to the Constitution. The Act had
imposed severe penalties on a Hindu for contracting a bigamous
marriage. The validity of this act was attacked on the ground that it
violated the freedom of religion guaranteed by Article 25 and permitted
classification on religious grounds only, forbidden by Article 144.

1
F. Agnel- "Hindu men monogamy and uniform civil code xxx (50) economic and political weekly 32
(1995); B karat, "uniformity v/s Equality" frontline 17 Nov. 1995.
2
AIR 1952 Bom 84
3
Act 25 of 1946
4
Art 14 laysdown- "The State shall not deny to any person Equality before law and equal protection of
law within territory of India.

168
 It was argued that among the Hindus, the institution of marriage is
a sacrament and marriage is a part of Hinduism that is governed by
scriptures. It was also argued that Hindu marriage not only for the sake of
bonding with their partner but also to maintain their family by the birth of
sons. It is only when a son is born to a Hindu male that he secures
spiritual benefit by having a son when he is dead and to the spirits of his
ancestors and that there is no heavenly realm for a sonless man. The
institution of polygamy was justified as a requirement for the Hindu to
obtain a son for religious influence, because son has a unique position in
Hindu society. M.C. Chagla Chief Justice while upholding the validity of
the Bombay Act, cited three reasons, firstly, what the state protected was
religious faith and belief, but not all religious practices. Secondly, he
claimed that polygamy is not an integral part of Hindu religion, finally, if
the state of Bombay compels Hindu to become monogamist, and if it is a
measure of social-reform then the state has right to make laws with
respect to social-reform under Article 25(2) (b), notwithstanding the fact
that it may interfere with the right of a citizen freely to profess, practice
and propagate his religion. Chief Justice Chagla relied heavily on Davis
v/s Beason.5In this case Constitutionality of an Idhao statute of 1882, was
challenged. It was argued that the disputed Act violated church and
violated the first Amendment of the United State6. In those days the
members of that church used to practice polygamy as a part of their
religion. The Supreme Court rejected the contention and observed:-

"However, free the exercise of religion may be subordinate to the

criminal laws of the country passed with reference to actions regarded by
general consent as properly the subjects of punitive legislation."

5
(1889) 133 us 637.
6
The first Amendment of the American constitution says: Congress Shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.

169
 With regard to the discrimination made by the Act on religious
grounds, it was argued that only the Hindu community was chosen for the
purpose of legislation while Muslims were allowed to practice polygamy.
Justice Gajendra Gadkar thought that the classification made between
Hindus and Muslims for the purpose of legislation was reasonable and
did not violate the equality provision of Constitution contained in Article
14.

Chagla Chief Justice also considered that Article 14 does not

contain any legislation that the state may enforce and should be
universally embraced. The State may rightly decide to bring about social
reform by stages, and the stages may be territorial or community wise,
and that the discrimination made by the Act between the Hindu and
Muslims does not offend the equality provision of the constitution.7

Chagla Chief Justice further observed that, "There is no doubt that

the Muslims have been excluded from the operation of the Act in
question. Even section 494, penal code exempt them"

The other point which emerges from his judgement is that religious
freedom guaranteed by Article 25 is the protection of religious faith and
belief, not all religious practices. It can be concluded from the judgement
that polygamy is not an integral part of Hindu religion.

However, these arguments raised two questions. First, are the

Judges qualified to determine what an integral part of a religion is? And
Second, does the Constitution only protects the essential of religion? The
answer to both these question is clearly not in affirmative.8

7
State of Bombay v/s Narasuppa Mali AIR 1952
8
SaleemAkthar and Ahmad Naseem, Personal laws and uniform civil code, p. 62 (1998)

170
 Further relying on the passage9the court held that religious belief is
protected by the Constitution and religious practice is subject to state
regulation observed by the High-Court. In the case10where it was held by
the court that the religious practice may be controlled by legislation if the
State thinks that in the interest of the social welfare and reform it, is
necessary to do"11

Thus, the Court held that in a democracy it is the legislature that

determines the policy of the state and determines what laws to put on the
statute-book for the advancement of the welfare of the state. Moreover,
the next interference that can be drawn is that the state can take the right
decision to bring about social-change by stages and these steps may be
territorial or community wise.

Again in Ram prasad v/s State of Uttar Pradesh12almost identical

issue was raised before the Allahabad High-court, upholding the validity
of the statutory provision prohibiting bigamy among Hindus.

2. The Shah Bano Case:-

The next important case relating to Muslim personal laws and

Uniform Civil Code is Mohd. Ahmad Khan v/s Shah Bano Begum13

In this case the appellant Mohd. Ahmad Khan who was an

advocate by profession was married to the respondent Shah Bano in the
year 1932. Three sons and two daughters were born at that marriage. In
1975, the appellant expelled his wife from the matrimonial home. In
April 1978, Shah Bano filed a petition against her husband under section
125 of the Code of Criminal Procedure in the court of Judicial Magistrate

9
Ryhold v/s U.S. (1870) 98 u.s. 145, 166, 167
10
D.K. Shrivastava, Religious freedom in India, p. 255 (1982) 13 Ibid
11
Ibid
12
AIR 1957 All 411,
13
AIR 1985 SC 945

171
Indore asking for maintenance at the rate of Rupees 500/- per month. On
November 6, 1978, appellant divorced the respondent by an irrevocable
Talaq. The defence of the appellant to the petition of the defendants for
maintenance was that she had ceased to be a wife by reason of the divorce
granted by him so he was not bound to provide maintenance that he had
already given to her of the rate of Rs. 200/- per month for about two years
and that he had deposited a sum of rupees 300/- in the court by way of
dower during the period of Iddat. In August 1979 the magistrate directed
to appellant to pay a sum of Rs. 25/- per month to the Respondent by way
of maintenance. The respondent had alleged that appellant earns a
professional income of about Rs. 60,000/- per year. In July, 1980 in
revisional application filed by the respondent, the High Court of Madhya
Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
Against the order of the High-court, the husband filed an appeal before
the supreme-court.

In this case the question before the Supreme Court was:-

"Does the Muslim personal laws impose no obligation upon the

husband to provide for the maintenance of his divorced wife and whether
the divorced Muslim wife is entitled to apply for maintenance under sec.
125 of criminal procedure code"

 Outcome of the Shah Bano Case:-

This case was heard by a full bench of the supreme-court

comprising V. Chandrachud C.J., D.A. Desai, O. Chinnapa Reddy, E.S.
Venkataramiah and R.N. Mishra.14

The Chief justice delivered the verdict on behalf of the unanimous

bench. In this case the Supreme Court analysed in detail the law relating

14
Five bench of the supreme-court

172
to maintenance under Muslim law and criminal procedure code. Apart
from the observation relating to the maintenance of Muslim divorcee the
Supreme Court held that:-

i) There is no conflict between provisions of section 125 of Criminal

Procedure Code and Muslim personal law in the matter of
maintenance of divorcee, however, in case of any conflict section
125 shall prevail over the personal law.

ii) That a Muslim divorcee has a right to maintenance under section

125 of the code till her remarriage or death and if she is unable to
maintain herself, it is duty of her former husband to maintain till
her remarriage or death.

iii) That if the husband, even being a Muslim, marries another women,
the wife has the right to refuse to live with him and yet obtain
maintenance from him.

iv) Moreover, The Supreme Court has strongly criticized the Indian
government for its reluctance to enact Uniform Civil Code
considering the sensitivity of the Muslim-community.

Regarding the implementation of Article 44 of the Constitution, the

court pointed out the apathy of the legislature that it has not been sincere
enough to bring the Uniform Civil Code in to practice.15The court further
observed that the government in action has rendered meaningless the
direction contained in Article 44 of the constitution of India and asked the
government to take steps to implement Uniform Civil Code without any
regard to the Muslim reaction. The court left that:-

Essentially, the role of the reformer has to be assumed by the court

as it is beyond the endurance of sensitive mind and allows injustice to be

15
Tahir Mahmood's Thesis for the "Uniform Civil Code" P.P (200-202) 1977.

173
suffered when it is palpable. But the courts piecemeal efforts to bridge the
gap between personal laws cannot take replace the common civil code.
Justice to all is far more satisfactory way of dispensing justice than justice
from case to case.

In the course of its judgement Chief-Justice Chandrachud also referred

and touched the issue relating to the Uniform Civil Code and observed:

"It is also a matter of regret that Article 44 of our constitution has

remained a dead letter. It provides that the state shall endeavour to
secure for the citizens a uniform civil code throughout the territory of
India."16

There is no evidence of any official activity for framing a common

civil code for the Country. It seems to have found ground that the Muslim
community will take the lead in reforming its personal laws. A Common
Civil Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. No
community is likely to bell the cat by making gratitutions concessions on
this issue. It is the state which is charged with the duty of securing a
Uniform Civil Code for the citizens of the country and, unquestionably it
has the legislative competence to do so.

The Shah Bano judgement attracted most controversy. The

progressive and secular section of the society welcomed the judgement
but radical sections of the Muslim community openly opposed the
judgement. The Judgement was interpreted as putting Islam in danger. It
was seen as an interference with Shariat law i.e. Personal law of the
Muslim community. It was alleged that the Judgement would help to
impose Uniform Civil Code over Muslim community.

16
Mohd. Ahmed Khan v. Shah Bano AIR 1985 SC 945

174
 The critics of the Judgement argued that maintenance of the
divorcee would lead to contract and proximity and adultery. The Muslim
law is immutable and marriage under it is Sacred contract and therefore
unchangeable. The entire concept of the Uniform Civil Code was once
again challenged and legislation was demanded to undo the effects of the
Judgement.17

Subsequent developments of Shah Bano show that initially the

government was in the favour of the decision but it changed its stand in
the face of strong opposition from huge Muslim processions and rallies.
To reduce the impact of the verdict the Central government enacted the
Muslim women's (Protection of right on divorce) Act.18 It was clear that
the move of the government was guided by political considerations.
The idea expressed by the Supreme Court at the end of the
judgement, regarding Uniform Civil Code were unnecessary as an
attempt to put a new glass on Qur'anic verses. The enthusiastic support
given by the court for Muslims was highly sensitive, and that too can be
interpreted as a decision directly related to Islamic personal law. This
obiter in the judgement could easily have been avoided without affecting
in the least its 'ratio decidendi.'19

Thus, the decision of Shah Bano was a limited given in terms of

section 125 of the Code of Criminal Procedure.

3. Jorden Diengdeh Case (1985):-

Ms. Jorden Diengdeh V. S.S. Chopra20 case is yet another

example that focused on the urgent and compulsive need for a uniform

17
V. Dhagamwar (1989) p. 24
18
Act. no. 25 of 1986.
19
Tahir Mehmood, uniform civil code: Fictions and facts. p. 21 (1995)
20
AIR 1985 (S.C. 935)

175
civil code. The fact of this case highlights the completely unsatisfactory
situation that arose due to the lack of Uniform Civil Code.

The facts of the case were noble and peculiar. The Wife, Petitioner,
belonged to the Khasi tribe of Meghalaya, born and brought up as a
Christian. The husband was a Sikh. They were married in the year 1975
under the Indian Christian Marriage Act, 1872. The petitioner filed a
petition for declaration of nullity of marriage or judicial separation in the
year 1980 under the Indian divorce Act, 1976.21 The prayer for the
declaration of nullity of marriage was rejected by the High-Court but a
decree for judicial separation was granted, on the ground of cruelty. The
wife filed a special leave petition against the judgement of High-court
and sought a declaration of nullity of marriage on the ground of
impotency of husband.

The Supreme Court found that marriage was irrevocably broken,

but there was no way out for the couple as neither mutual consent nor
irretrievable break down of marriage was a ground for divorce under the
Indian divorce Act, 1869. In this case the Supreme Court analysed the
provision of the said Act and compared it with other enactment and laws
which provide for decrees of nullity of marriage divorce, judicial
separation. The court emphasised the need to have a uniform civil code in
India. In the light of the fact of this case justice Chinnappa Ready said.

Thus, it is seen that the law relating to judicial separation, divorce

and nullity of marriage is far from uniform, surely the time has now come
for a complete reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion or caste and in all cases it
appears necessary to introduce irrevocable break down of marriage and
mutual consent as a ground for divorce.
21
Act no. 68 of 1976

176
 The Supreme Court directed that time has come for the
intervention of legislature in these matters to provide for a uniform code
of marriage and divorce and by law to provide a way out of the unhappy
situations in which couples like the present have found themselves. In this
case the Supreme Court also directed that a copy of the order might be
forwarded to the ministry of law and justice for appropriate action.

In 1986 the Supreme Court22 was again asked to clarify the

position that after the state's law Act, 1951, the members of the Indian
Christian community in matters of intestate succession would be
governed by either the Travancore Christian succession Act, or the Indian
succession Act 1925.

The issue decided by the Supreme Court in Shah Bano Begum

Case was again raised before the court.23The question that came-up for
consideration before the Supreme Court was whether a Muslim wife
whose husband has married worse than a Muslim wife whose husband
has taken a mistress to claim maintenance from her husband. The main
defence was that since the husband is permitted by Muslim law to have
more than one wife, his second marriage cannot provide a legal basis to
the wife to live separately and claim maintenance but the supreme court
reiterated the irrespective of the husband's right under his personal law to
take more than one wife, if he takes a second wife then his first wife
would be entitled to claim maintenance and separate residence.

The supreme court went a step-further in analysing the provision of

sub-section (3) of Section 125 and held that the explanation has to be
construed with reference to the two classes of injury caused the
matrimonial rights of the wife and not with reference to the husbands

22
Mary Roy V. State of Kerala, AIR 1986, S.C. 10
23
Begum Sabanu alias SairaBano V. A.M. Abdul Gafoor, AIR 1987 SC 1103

177
right to marry again. Thus the women chosen by the husband to replace
the wife is a legally married wife or a mistress is immaterial. Therefore
the respondent's contention that his taking another wife will not entitle the
appellant to claim separate residence and maintenance cannot be
sustained.

Thus the supreme court upheld the decision of Shah Bano Begum
and laid down solid foundation for the uniform civil code in spite of
Muslim women (protection of Rights on Divorce) Act. 1986.

4. Sarla Mudgal Case:-

The Sarla Mudgal case24created a big controversy in the History of

Uniform Civil Code. After the Shah Bano judgement this case is
important because for the first time the supreme-court dared to ask the
executive about the steps taken to implement Article 44 of the directive
principle of the state policy. The courts activism once again put the issue
of uniform civil code on the national agenda.

In this case four petitions were filed under Article 32 of the

Constitution. The leading petition was filed by Ms. Sarla Mudgal, the
president of a registered society working for the welfare of women. In all
the four petitions the facts were similar in nature and the question for
consideration before the Supreme Court was whether a Hindu husband,
married under Hindu law by embracing Islam, can solemnise a second
marriage? Whether such marriage without having the first marriage
dissolved under law, would be a valid marriage qua for the first wife who
continues to be a Hindu? Whether the apostate husband would be guilty
of the offence under section 494 of the Indian penal code?

24
AIR 1995 3 (SCC 635)

178
 Once again a very controversial decision was delivered by the
Supreme-court of India which once again raised the question of the
enactment of a Uniform Civil Code. The judgement became very
controversial due to its uncalled for 'obiter dicta'. The issue raised before
the court were as follows:-

i) Article 44 is based on the concept that there is no necessary

connection between religion and personal laws in a civilized
society.
ii) Article 25 guarantees religious freedom, whereas Article 44
separates religion from social relations and personal law. Marriage,
succession, and matters of secular character cannot be brought
within the guarantees enshrined under Article 25, 26 and 27 of the
Constitution.
iii) Article 44 is decisive step towards national integration.

Justice Kuldeep Singh observed that:

"The personal laws of the Hindus such as marriage, succession

have a sacred origin in all, in the same way Muslims or Christians have
renounced their feelings for the national unity and integration. Therefore
the Constitution mandates the establishment of a common civil code for
the whole of India."

In this case, the Supreme Court analysed the statutory provisions

relating to the Uniform Civil Code. The judgement was delivered by a
division Bench comprising Justice Kuldip Singh and Ram Sahai Justice
both the judges delivered separate but agreed opinions. The court held
that the second marriage of a Hindu husband after conversion to Islam
would be void without having his first marriage dissolved under law. The
second marriage would be void under the provisions of section 494 of

179
Indian penal code and the apostate husband shall be guilty of reference
under sec. 494 of Indian Penal Code.

The Supreme Court highlighted the problem of polygamy and its

misuse by non-Muslim males. In the light of this matter, the Supreme
Court once again quoted the judgement of Shah Bano and Jordan
Diengdeh with approval and emphasised the need for a Uniform Civil
Code. The court not only emphasised to have a Uniform Civil Code in
India but also went one step ahead and requested the government of India
through the prime-minister to take a fresh look at Article 44 of the
constitution and endeavour to secure Uniform Civil Code for citizen
throughout the territory to India. Showing the judicial activism the
Supreme Court further directed the government of India to file an
affidavit in the court indicating therein the step taken and efforts made by
the government of India, towards securing a Uniform Civil Code for the
citizens of India.

5. Ahmedabad Women Action Group Case:-

After the judgement in Sarla Mudgal's case another verdict in the

form of ratio decidendi came in 199725 and some important issues raised
by the petitioner about the Muslim personal law in this case. A petition
was filed as a public interest litigation to challenge different parts of
personal law. The petitioner raised the issue of Muslim law that permits
Muslim men to have four relationship, alongside the husband has the
authority to separate by the expression of the term 'Talaq' without judicial
methods and this may occur without the women's consent.

25
Ahmedabad women Action group V. union of India (1997) 3 SCC 573

180
The petitioner urged the court regarding Muslim personal law:-

A. Polygamy under Muslim personal law was challenged as it is

against Articles 14 and Article 15 of the Indian constitution.
B. Unilateral talaq from Muslim men was challenged against Article
13, 14, 15 of the Indian constitution.
C. Muslim husband takes more than one wife was challenge because it
is an act of 'cruelty' within the meaning of clause VIIIth (F) of
section (2) of the Dissolution of Muslim marriage Ac, 1939.
D. The Muslim women (protection of rights on Divorce) Act, 1986
was challenged against Article 14 and 15 of the constitution.
E. The Inheritance laws of Muslim personal law (both Shia and Sunni
laws) were challenged as discriminatory against female children.

The other two petition prayed for similar relief regarding section
2(2), 5(ii) and 6(ii) and explanation to section 30 of the Hindu succession
Act, 1956. Section 2 of the Hindu marriage Act. 1955, Section 3(2), 6 and
9 of Hindu Minority and Guardianship Act, 1956 read with section 6 of
the Guardians and Wards Act 1890, Section 10 and 34 of the Indian
Divorce Act, 1869, and section 43 to 46 of the Indian Succession Act.

The Supreme Court did not take comprehension and saw that the
issues brought up include issue of the state strategy with which the
judiciary does not have any concern. The cure lies with the legislature
and not the courts.

The Court supported its Judgement on the basis of its observation

in earlier decisions, where the court held that the remedy lies elsewhere
and not by knocking at the doors of the court. The court quoted a number

181
of several judgement where similar issues came up for adjudication. On
such earlier petition was Maharishi Avadesh v/s union of India26

In this case the supreme court of India dismissed a write petition

under Article 32 of the constitution. The relief prayed for in this case
were as follows:-

A. To issue a writ of Mandamus to respondent to consider the

question of enacting a Common Civil Code for all citizens of
India.
B. To declare the Muslim women (protection of right on Divorce)
Act, 1986, as void being arbitrary and discriminatory and in
violation of Article 14 and 15 and Article 44, 38, 39 and 39 A of
the Constitution of India; and
C. To direct the respondents not to enact shariat Act, 1937 in respect
of those adversely affecting the dignity and rights of Muslim
women and against their protection.

The court dismissed the petition saying that these are all matters of
state legislation, the court cannot legislate on these matters.

The Court against raised the issue in Reynold Rajmal v/s Union of
India27to add new grounds of divorce, like divorce by mutual consent for
those already specified in the Indian Divorce Act. It was emphasized that
the court can give the fullest dimension of meaning to the existing
provision. The court further emphasized the already established trends in
various cases clarified the fact that making law or amending law is a slow
process and the legislature tries to take measures where the need is felt
more. Such defect which is most acute can be removed by process of law

26
AIR (1994 Supp(ii)) SCC 713
27
AIR (1982) SCC 474

182
at stages.28 In this case validity of section 15, 16, 17, 29(5) and 144 of
Andhra Pradesh Charitable Hindu Religious and endowments Act, 1987
were challenged one of the question before the court was whether it is
necessary that the legislature should make law uniformly applicable to all
religious or charitable or public institution and endowments established
and maintained by people professing all religions.

The court held that a uniform law though highly desirable

enactment at once, may be prejudicial to unity and integrity of the nation,
making law or amendment to a law is a slow process and the legislative
attempts to remedy where the need is felt most acute. Therefore it would
be unfair and incorrect to think that all laws should be applied uniformly
to all people at once.

6. Danial Latifi Case:-

In the judgement of Deniel Latifi v. Union of India,29the right of

maintenance of a woman upheld for the life or till her remarriage.

In the field of Islamic law in India, this case plays a significant

role. In addition, it was necessary to advance women's rights address the
shortcoming of Muslim personal law, and remove the chaos created by
the Shah Bano verdict of 1985. In the historical case of Mohd. Ahmed
Khan v. Shah Bano,30 Shah Bano was represented by Danial Latifi who
filed a writ petition in the apex court challenging the constitutional
validity of the Act which overturned the verdict of the case.

The validity of the Muslim women (Protection on Divorce Act),

1986 was challenged by Daniel Latifi, who was Shah Bano's Lawyer. It
was argued that it was discriminatory against Muslim women and
violated the right to equality under Article 14 and 15 and right to life

28
Pannalal Bansilal Pitti V. State of A.P. (1996) SCC 498
29
AIR 2001 SCC 740
30
AIR 1985, SC 945

183
under Article 21 of the Indian constitution. The Act was passed to
appease certain sections of the society, who claimed that the proposed
decision in the Shah Bano case was contrary to Sharia Law.

The Muslim women (Protection on Divorce Act), 1986 was

considered valid by the court. The provisions of the same do not oppose
the ideals of the constitution. The balance between the Act of 1986 and
the code of criminal procedure was established by the court. It revived
that the principles of Shah Bano case that the husband's obligation to
maintain his wife does not end with the Iddat period. As long as the
husband fulfils his obligations under section 3 of the Muslim women
(Protection on Divorce Act), 1986, the women are also entitled to
maintenance under section 125 of the Code of Criminal Procedure. A
divorced Muslim women who has not remarried and is unable to maintain
herself after the period of Iddat, may be maintained by her relatives who
will inherit her on her death under section 431 of the Muslim women
(Protection of Divorce Act), 1986.

Thus it is observed by the Researcher that the Daniel latifi case was
successful in effectively integrating both personal laws and codified laws
in such a way that it is addressed all sections of society and minimised the
possibility of sectarian conflicts and political disputes. The judgement
showed that social response play an important role in the decision making
process of the judiciary.

7. Shabnam Hashmi Case 2014:-

The Petition was filed to ask the Supreme Court for optional
guidelines for the adoption of children irrespective of religion.32

31
Sec. 4 order for payment of maintenance
32
Shabnam Hashmi v. Union of India 2014, SCC 1

184
 A Muslim had filed a petition under Article 32 of the constitution.
He petitioned for recognition of her as the parents of his adopted
daughter. As per the adoption in Muslim personal law, the petitioner was
not recognized as the parent of his adopted daughter and was recognised
only as her guardian.

The Petitioner sought legalization of adoption under the guidelines

of CARA (Central Adoption Resource Agency),33 notified under juvenile
Justice (Care and Protection of Children) Rules, 2007 and Juvenile
Justice Act 2000. The Muslim personal law board raised objections on the
petition on the applicability of the Juvenile Justice Act on the Muslims.

The Supreme Court held that the Juvenile Justice Act is secular law
that applies to everyone, including Muslims and was created for the
welfare of the children, allowing any child to be adopted.

Thus it is observed that in India, a standard civil code is required

for adoption law. It does not violate the fundamental right to freedom of
religion. Furthermore, the fundamental principles of state policy require
that it promote uniformity in its laws. The passing of secular laws would
allow different Indian religions to legally adopt a child. This will also
help reduce the number of children without parents. The issue of Uniform
Civil Code on personal law matters like adoption is raised by the courts
as the need.

B. Summary:-

The Supreme Courts call for a Uniform Civil Code is a political in

character. It is different, fair and impartial,

Some court cases that have attracted the attention of affected

groups. In these cases either the constitutionality of personal laws have
33
It is a statutory body of ministry of women and child development, Govt. of India.

185
been challenged or courts have taken favoured the enactment of common
civil code.

The first such case was State of Bombay v/s NarasuAppa Mali34 in
which modifications in Hindu law were challenged on the grounds that
they violate Article 14, 15 and 25 of the Constitution. In this case, it was
argued that marriage among Hindus is a part of religion and that having
son is considered a spiritual benefit. Hence, Polygamy is justified but
these arguments were rejected by Justice Gajendra Gadkar. The court
ruled in favour of adopting a son instead of a second marriage. Chagla
Chief Justice also upheld the validity of Bombay Act relying on Davis v/s
Beason35courts of the United States have jurisdiction to hear charges
related to polygamy even though it be part of a religious belief. The court
set itself apart and left the issue of Uniform Civil Code to the legislature.

In the most controversial Shah Bano case, the learned judge made
certain observations for Muslim law and Uniform Civil Code. The Court
criticized government of India for its sheer inability to implement
uniform Civil Code. Later, the all India Muslim personal law board also
intervened arguing the interpretation of Sharia and Quran by the court is
unwarranted. The judgement provided ammunition to Muslim bashers
and communalised the atmosphere. Thus there is need for judicial self-
restraint on such matters.

Another case was related to Christian personal law. Justice O.

Chinappa Reddy delivered the judgement without considering Christian
personal law or the wishes of Christian community.36

34
AIR 1952 (Bom 84)
35
(1889) 133 US 637
36
Jorden Diengdeh Case.

186
 The Sarla Mudgal case37touched upon the personal laws of Hindus,
Muslims and Uniform Civil Code and the judgement supported the
enactment of Uniform Civil Code.

After the Sarla Mudgal case, another case through public interest
litigation (PIL) raised certain issues about the Muslim personal law;
issues covered were Polygamy, Unilateral Talaq, Muslim women
(Protection of Right on Divorce) Act 1986 and inheritance laws. This
Public Interest Litigation was filed by Ahmedabad Action group and
disposed of by Supreme Court along with two other petition filed by Lok-
Sevak Sangh and young women Christian Association. The court did not
dispose of any of the case left them for legislature. In this case, the Court
tried to restore original constitutional position of Uniform Civil Code.

Thus it is clear that whenever the constitutionality of any provision

of any personal law is challenged on the ground of violation of
fundamental rights, the court exercised self-restraint and left the matter
for the wisdom of the legislature saying that it is a matter of state policies,
to which the court is not usually concerned.

C. Triple Talaq and Indian Constitution:-

It is simply understood that Triple talaq is a form of divorce in

Muslim law where husband says the word "talaq" three times in oral,
written, or in electronic form. Triple talaq also known as talaq-e-biddat.
Instant divorce is a form of Islamic divorce which has been used by
Muslims in India, especially adherents of Hanafi Sunni Islamic schools of
jurisprudence.

37
AIR 1995 SC 1531

187
(1) Triple Talaq and its effects on Muslim Marriage:-

About 50,000 Muslim women and men have signed a petition

asking that the practice of talaq-e-biddat' under which the husband can
dissolve the marriage by pronouncing talaq three times in the presence of
at least two persons and not necessarily in the presence of wife must be
banned, along with polygamy these practices goes against the sanctity of
marriage. It was further supported by NISA (A women organization
seeking to declare sections in Muslim personal law unconstitutional by
the practice of triple talaq, polygamy, Nikah halala and inequality in
interstate succession (A person who has died without having made a
will).

It is true that triple-talaq has devastated the lives of many women

and children deprived of any opportunity to settle down. This mode of
divorce has been subject of criticism in many Muslim countries and has
brought about reform through codification. Countries like Turkey,
Tunisia, Syria, Egypt, Moroco, Iran, Irag, Malaysis, Indonesia, and
Pakistan have either completely reformed the law or taken stringent
legally enforceable preventive measures in this area. If Muslim countries
can bring about reform in family laws, India must follow complete reform
in such area. In the words of Justice Hidayatullah:-

"If the lead is coming from Muslim countries, it is hoped that in the
course of time the same measures will be applied in India also."

(2) Background:-

The issue has been breaking news since a Muslim organization,

Bhartiya Muslim Mahila Andolan (BMMA) launched a campaign to ban
triple talaq and "Nikah-halala"

188
  In 2015, Shayra Bano, a resident of Uttarakhand filed a petition
in the supreme court seeking a ban on the practice after her
husband ended 15 year marriage by sending a letter
pronouncing the word talaq thrice.38 Her petition seeks the
Supreme Court to declare triple talaq, polygamy and Nikah-
halala illegal and unconstitutional on the grounds that they
violate the rights guaranteed by the constitution under Article
14, 15, 21 and 25.
 In 2015, only the Supreme Court registered a suo-moto public
Interest letigation (PIL) petition titled 'In Re: Muslim women's
Quest for equality' to examine if arbitrary divorce, polygamy
and Nikahhalala violate women's dignity.

(3) Constitutional Provisions:-

 Article 25 of the Indian constitution guarantees religious

freedom, a freedom of practice and propagation of religion.
 Like all other fundamental rights, it is subject to restriction and
does not protect religious practice that can negatively affect the
welfare of citizens.
 Hence, Article 25 is overridden by Article 14, which guarantees
the right to equality as triple talaq denies a Muslim women's
equality before the law.
 Article 25 is also subject to Article 15(i) which states that the
State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, since triple talaq does not work in
the favour of women. It violates Article 15(1) of the
Constitution.

38
ShayaraBano v. Union of India AIR 2017 SCC 1

189
  However, section 2 of the Muslim personal law (Shariat)
Application Act of 1937 recognises triple talaq as a statutory
right, bringing it under the ambit of Article 13 of the
constitution Article 13 defines 'law' and says that all laws,
framed before or after the constitution shall not be violative of
the fundamental rights.

(4) Supreme Court verdict:-

On 22 August 2017, a five judge bench of the supreme-court in a

split verdict held that the practice of instant triple talaq in the Muslim
community is unconstitutional. The bench set aside the practice by a
majority of 3:2

 Key point of Supreme-Court ruling:-

(a) Majority Verdict:-

i) Three Judges of the bench said that triple talaq must be struck
down as it goes against the constitution and is unacceptable.
ii) They said the Muslim personal law (Shariat) Application Act of
1937 recognised and enforced triple talaq, therefore, it should not
be considered a personal law but a statutory law, Hence it comes
under the ambit of Article 13(i) of the Constitution.
iii) Article 13 mandates that any law, framed before or after the
constitution, should not be violative of the fundamental rights.
iv) Triple Talaq is manifestly arbitrary and was violative of Article 14
and did not enjoy the protection of Article 25(i) of the constitution.

(b) Minority Verdict:-

i) Two judges ruled that triple-talaq enjoys the status of fundamental

rights as it is a part of Muslim personal law.

190
 ii) They were in favour of putting the practice a side for a period of
six months allowing parliament to legislate on it.
iii) They asked political parties to set-aside their difference and
introduce new law on the practice, taking in to account concerns of
Muslim bodies and Sharia law.

The judgement was historic for women empowerment in the country

granting equality to Muslim women. The court has opened a golden
window for all communities to push for progressive reform in personal
laws that impact all women, men and children and other reforms like the
uniform civil code.

Thus it is observed by the Researcher that the survey of judicial

attitudes towards a Uniform Civil Code makes it clear that the court is
very interested in resolving social and economic tension in society so that
the state can create a social order in which political, economic, and social
justice is enjoyed by all. In fact the judgements of the many cases towards
making of Uniform Civil Code make it clear that they are very much
concerned that fragment age matrimonial laws should be invaded into
Uniform law. The Judicial response to enhance the constitutional
philosophy of Uniform Civil Code has always been highly commendable.
The Supportive and suggestive attitude of judiciary towards achieving the
goals of Uniform Civil Code to state must be followed by the state to
fulfil the dream of constitution makers contained under Article 44 of the
constitution.

191
 CHAPTER-X
CONCLUSION AND SUGGESTIONS

In the preceding chapters an attempt were made to consider over such a

civil code which may rope in all the citizens, irrespective of caste, creed,
or religion, in one string of nationality which one may call secularism, the
concept of which laws from the preamble of Indian constitution.

In the expression Uniform Civil Code, the word "Uniform" refers

to the form of a things although some people take "Uniform" for the
synonym of word "Common," but there is difference between "Common"
and "Uniform." While the former stands for one and the same in all the
prevailing circumstances, the latter refers to the same in similar
conditions.1

The word "Code" has its origin in the Latin word "Codex" meaning
a book originally consisting of wooden tablets covered with wax.2 A
Study on the history of law codes in Europe reveals that not only codes
were used in various ancient bodies of legal rules, but also frequently
applied to the bodies of laws known as Barbarian or Germanic laws and
also applied to the collection of maritime customs and usages widely
accepted throughout Europe.3

In India, the expression "Civil Code" is used in a very specific

sense. It means a code of law regulating civil matters including marriage,
divorce, inheritance and those other subject which are at present governed
by various personal laws and the term "Uniform Civil Code" refers to
enacting a uniform family law and other civil rights intended to replace

1
Encylopedia American vol. 6 (1960), 734
2
The shorter oxford English dictionary, vol- I (1973), 34
3
The oxford companion to law (1980) p. 236

192
the different personal laws governing Hindus, Muslims, Christians, Parsis
and Jews in matrimonial and other related matters.4

However, in India there has been controversy over the actual

content of the civil code. In the Constituent Assembly itself the opponents
of the uniform civil code contested that the expression civil code does not
cover personal law of citizens and that the personal law is integral part of
the religion. On the other hand supporters of the uniform civil code
successfully argued and clarified that the personal law is not part of
religion.5

The concept of a uniform civil code was for the first time discussed
at a national level political debate in 1940, when a demand for such a
code raised by the national planning committee appointed by the
Congress. In this debate, the purpose of the sub-committee for the role of
women in planned economy was specifically to study the role of women
in future independent India. It was pointed out that there was support for
the enactment of a Uniform Civil Code which may gradually replace the
various personal laws followed by different communities.6

The historical background of the uniform civil code is closely

linked with the history of personal laws. In ancient and medieval period
all branches of law namely civil, criminal and commercial were based on
religion and custom. This religion and custom oriented legal system
become complicated and unprogressively. The British rulers tried to
introduce progressive legal system in India. The British rulers gradually
codified and brought secular criminal and procedural legislation.
However, the British rulers had no intention of completely excluding civil

4
Legal Glossary- Mohit Puri, 2016- p. 441
5
Constituent Assembly debates, vol. VII, 540-547
6
Partha Chatterjee, "Development planning and the India State"- New Delhi; oxford university press- p.
21-22

193
affairs from their law reform plan as they were more interested in
maintaining their political authority rather than social reforms. 7 The
constitutional history of India reveals that a comprehensive codification
of personal laws were generally not supported by the British rulers as
they did not wish to influence the religious sentiments of Indian society.
They played the role of divide and rule. They left the personal law of the
Muslims untouched only because they wanted Muslims to keep alive their
separatist tendencies.

Thus no attempt was made in British India to prepare a secular

civil code and the legislative power was used to bring about piecemeal
reforms to meet the vocal demands of progressive sections of Indian
society.

First effort towards the development of Uniform Civil Code came

soon after Independence in 1948 with the introduction of the Hindu code
bill, a bill designed to codify the myriad of regional Hindus customs and
laws as a first step towards a Uniform Civil Code for all. Hindu code bill
seeks to codify diversity systems and property practices relating to
women and men. The Hindu code bill sought to change the order of
succession and new laws of maintenance, marriage, divorce, adoption,
guardianship and the minorities. Dr. Ambedkar's vision to the Uniform
Civil Code can also be seen in his demand for the Hindu code bill. The
Hindu code bill was intended to provide a civil code in place of the body
of Hindu personal law, which was amended to a limited extent by the
British authorities.

It was Constituent assembly where the issue of Uniform Civil Code

was legally raised. Initially an attempt was made to place it in the chapter

7
The times of India, New Delhi, Monday January 10, 2005, pp.14

194
of fundamental rights but the sub-committee on fundamental rights
unanimously decided to place it in the chapter on Directive principles.
Muslim member in the constituent opposed the idea of Uniform Civil
Code and several amendments were proposed by Dr. Ambedkar, however
he assured the Muslim members that the parliament could adopt a
Uniform Civil Code a completely voluntary basis to make a beginning in
the future.

After long hour's debate, it was incorporated under part IV of the

constitution of India.8 Hence it cannot be enforced by the direction of the
court. The founding fathers of the Constitution, were of the view that this
country needs a uniform civil code but that was not the time to enforce
Uniform Civil Code because the citizens of this country were not
mentally prepared for that. They were assured that on a point of time,
government would implement this constitutional mandate.9

There are several provisions in the Indian constitution which are

directly or indirectly related to the Uniform Civil Code. Broadly the
uniform civil code has been discussed with relation to fundamental rights,
the directive principles and the fundamental Duties.10 Article 44 of the
Indian constitution state that "The state shall endeavour to secure for its
citizens a Uniform Civil Code throughout the territory of India."

Article 44 of the Indian constitution of directive principle of state

policy has been included in the constitution with a view to achieving
uniformity of law, it secularization to make it just and non-
discriminatory. The preamble of the Indian constitution that constitutes a
secular, democratic, republic which means that there shall be no state
religion and no state shall discriminate on the basis of religion.
8
Part IVth of directive principle of state policy from Art. 36 to 51 of the Indian constitution.
9
Justice Tulzapurkar, "uniform civil code" A.I.R. (1987) 17
10
Part III, IVth and IV th A of the Indian Constitution Respectively

195
 The Uniform Civil Code must strike a balance between the
individual laws of each religion, the fundamental rights of different
communities, and the protection of religious principles, which include
different element and are based on different ideologies. The act of
secularism is informally linked to the goal of cause and effect factor such
as a Uniform Civil Code. In the case of S.R. Bommai v. Union of India11it
was held that religion is a matter of personal faith and cannot be mixed
with secular activities.

In India, spiritualism is distinguished by personal belief through

positive secularism. Positive secularism is a general principle of
secularism that is accepted by America and some European state, i.e.
there is wall of separation between religion and state. The reason behind
this acceptance is that America and European countries moved through
the stages of renaissance, reformation and enlightenment and thus they
can enact a law stating that the state will not interfere in religion.

The objective of Uniform Civil Code in India has been to achieve

national integrity through communal harmony. Every Citizen of India
must have a duty to promote harmony and spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and
sectional diversities.12

Uniform Civil Code is also a medium through which people of

different elements are united in one nation. It also advances the fraternity
and unity of the nation, which will also find a prominent place in the
preamble of the constitution. Article 51A(C) of the constitution stipulates
that it shall be duty of every citizen of India to maintain and protect the
sovereignty, unity and integrity of India. The Uniform Civil Code has

11
AIR 1994 2 SCR 644
12
Article 51-A(C) of the constitution.

196
been considered as a friend of women since it may abolish the ill effects
of personal law. One of the fundamental duties also says that it shall be
the duty of every citizen of India "to renounce practice derogatory to the
dignity of the women."13Hence, from this point also the fundamental
duties and the ideals of the Uniform Civil Code are the same. It is
submitted that fundamental duties also demand the enactment of the
Uniform Civil Code and such a law would be proper law under the
emerging principle of rationality of the India constitution.

The objective of Uniform Civil Code is necessary to promote

brotherhood, unity and national integration. It proceeds on the assumption
that there is no relation between religion and personal laws in a civilized
society. While the constitution guarantees freedom of conscience and
religion, it seeks to separate religion from personal law and social
relations and laws governing inheritance, succession and marriage, as has
been done in Muslim countries such as Turkey and Egypt etc.

Polygamy is totally prohibited in Tunisia and Turkey. In countries

like Indonesia, Iraq, Somalia, Syria, Pakistan and Bangladesh, it is
allowed only if it is authorized by the prescribed authority. Unilateral
divorce has been abolished in Egypt, Jordan, Sudan, Indonesia, Syria, and
Iraq etc. In Pakistan and Bangladesh, no form of extra-judicial divorce
will be valid unless ratified by an arbitration council. Shariat is controlled
by legislation in Pakistan and Bangladesh.

It is necessary to study the civil laws of the developed countries,

especially the common civil codes of America, France, China and Japan.
It is also necessary to incorporate the best practices of all religions and
communities. It is pertinent to mention that Goa has a Uniform Civil

13
Article 51A(E) of the constitution.

197
Code for a long time. Therefore a single code can be amended and
adopted as a Uniform Civil Code throughout the territory of India.

The right to equality guaranteed under Article 14, the right to non-
discrimination guaranteed under Article 15 and the right to life and
liberty guaranteed under Article 21 cannot be secured and enforced and
gender justice and gender equality cannot be achieved without
implementing the Uniform Civil Code in spirit of Article 44 read with
Article 14, 15, 21.

If the preamble is the key to understand the constitution of India,

then the directive principles are its basic ideals. The Constitution makers
poured their mind by setting forth humanitarian socialist secular
principles, which embodied the hopes and aspirations of the people and
declared the directive principles as the fundamental principles in the
governance of the country.

The objections and constraints relating to uniform civil code have

been raised by the minority community. So far objections are concerned,
the first objection relates with the religion. It is said that uniform civil
code is against the religious freedom because it's goal to replace the
religions personal laws. Such type of objection cannot be accepted
because social life does not necessarily relate to religious faith; Secondly;
Constitution permits state regulation to secular activities linked with
religion, Thirdly in European countries every citizen accepts the uniform
civil laws and such laws are not considered tyrannical or oppressive by
the minorities.14

The Muslim members opposed the idea of Uniform Civil Code,

saying it would infringe on their religious freedom. But it is not so

14
Asghar Ali Engineer, 'The right of women in Islam, 1992, pp. 167-169.

198
because equality, gender justice and unity of the nation can only be
achieved by means of Uniform Civil Code.

The objection against the uniform civil code in India is that

imposition of uniform civil laws on people would harm their culture and
at the same time forcible homogeneity would alienate the people from the
state. It has been said that law and legal system is closely inter-linked
with culture of society, that's why the protection of culture requires
protection of personal laws.15It is observed by the Researcher that culture
comprises the whole way of life and has a dynamic character and if one
component of culture is improved it will not be damaged. It is true that
discriminatory personal laws cannot be protected in the name of cultural
protection.

In order to bring Uniform Civil Code in India and to protect it from

unnecessary objections on cultural ground it is necessary that a proviso of
Article 29(1)16 may be added making it clear that nothing contained in
this clause shall enable the state from enacting any law to achieve social
welfare, social reform regulating any secular activity is associated with
culture.

Of course, the government who is committed to democratic

methods may not like to suppress the sentiments of any sections of the
electorate. But, that excuse cannot discharge to any government. It is
constitutional duty to win over all citizens and prepare them mentally,
emotionally and psychologically to gradually accept the social goals laid
down by the constitution.

There are two major reasons, for which the effective Muslim
community fears a Uniform Civil Code namely,
15
Narmada Khodie, Reading in uniform civil code, Tacker company ltd, Bombay, 1975, 8 at 9.
16
Right to conserve their culture and language (Minority Right Art 29-30)

199
 i) Interference with their personal law, which they believe as
divine in origin, and
ii) Loss of their cultural identity.

The objection against reforms in Muslim law are not only religious
or legal but also political. Rather if one goes deep in to the problem they
are much political. Uniformity of laws and procedures is a concept of
paramount importance in the modern world and solidarity of nation
depends on it. The lack of uniformity hinders the homogenous character
of the people. Different laws and different procedures for different
communities of people living in the same nation lead to an inherent
weakness and impoverishment in the political body.17

The immutability of personal laws is another objection against the

uniform civil code. The argument for immutability was put forward and
rejected in the constituent assembly. The immutability argument has
brought many ill effects in India, it has prevented progressive
interpretation, secularism, makes a community blind and orthodox and
finally it affects the natural growth of a community in a fast changing
world.18 It may be submitted that the argument of immutability of
personal laws should have no place in India, as it has potential to destroy
the constitutional goal of equality, justice, and secularism.

As far as the implementation of the uniform civil code is

concerned, it is clear that there is distrust among the religious minority
groups, according to them it will infringe their right to practice and
profess religion.

There can be a solution in implementation of uniform civil code, if

it is implemented as a 'Grund norm' in which instead of replacing all the
17
Uniform Civil Code by Dr. Pankaj Dwivedi, First edition 2016, P. 128.
18
Virendra Kumar, Towards a uniform civil code: Judicial vicissitudes, JILI 2000, 327.

200
customary laws creates a set of guidelines to address the laws that
degrades the status of women. As it will also preserve the diversity of
Indian culture and religion, which rarely seen in western world where the
uniform civil code is already in practice.19

The diversity of laws, procedures and jurisdiction of different

courts presents a worrying and sometimes shocking spectacle in India
today. It produces more injustice when added to this diversity in the
disparity of the economic development policies of the government of
India with regard to different states. Uniform Civil Code is the need of
the hour.20 The implementation of Uniform Civil Code will make it easier
for the judiciary to resolve disputes rather than looking at the individual
laws of each religion which takes time. This helps in speedy of trial of
cases involving civil clashes. The time is ripe and in fact alarming for the
implementation of Uniform Civil Code because people have started
giving due importance to the human dignity and human rights compared
to the religious beliefs. The society has now become civilised and is in a
thirst for wholesome upliftment. Thus, implementation of Uniform Civil
Code can ensure equality and can bind the citizens of India by making
them feel the same.21 If the Uniform Civil Code is implemented, it will
affect the socio-legal framework of various personal laws. One possible
impact of the introduction of a Uniform Civil Code would be that child
marriage will no longer remain without repercussions as a result of which
women can have a better choice to get an education, get marriage at an
age when they are physically and mentally fit for it and cannot be forced
in to marriage at an early age. With the implementation of the Uniform
Civil Code the practice of polygamy under Muslim law will end.

19
Agrawal, K.B- 'Advisability of legislating a uniform Indian marriage code, (1972), 442-443.
20
Narmada Khodie, Reading in Uniform Civil Code Talker company limited Bomaby, 1975- P. 8-9
21
Alarming need for Uniform Civil Code: A human rights prospective by deepika and manishas,
Saveetha University, Chennai.

201
 This will be corrective step towards bringing a positive change in
the society which is yet to come. This will improve the status of women
and their position in the society will be more safe and secure. Application
of Uniform Civil Code will ensure a great balance between divorce and
women's rights and there will be some legally accepted ways through
which Muslims can dissolve their marriage which would be common to
both men and women, as a result of which it will empower the women.22

The formation of uniform civil code will boost the national

integrity, even though nation has diverse cultural values, a unified
personal law irrespective of gender caste, creed etc. will boost the
national unity.23

As regard to the right to religion & judicial trend, it is true that

India being a land of rich cultural heritage has many beliefs and different
practices with different types of custom since time immemorial. Every
individual in India, right from their birth have an identity based on caste,
race, status and religion.24 Religious sentiments and religious practices
are highly sensitive subject matter as such issue often turned violent and
reached their during the pre-independence period. After Independence,
with the coming in to force of the Indian constitution, right to practice
any religion was guaranteed as a constitutional right under part IIIrd of the
Indian constitution.25

The state can interfere or regulate freedom of religion and the

practices. There are several legislations passed by the parliament to
regulate various religious practices. A religious practice is linked with
personal law, however the personal law operates under the authority of
22
Ahmed, s. 2006, Uniform Civil Code (Article 44 of the constitution) A dead letter. The Indian journal
of political science, 67 (3), PP. 545-552.
23
Tahir Mahmood- 'Family law and social change, (An Article) 1972 at P. 110
24
Ibid
25
Freedom of religion- Art 25 to 28 of the constitution.

202
the legislation.26 And not under religion and therefore the personal law
can always be supplemented by legislation.27 Article 25 of the
constitution allow the state to regulate secular activities connected to
religion28

In the case of state of Bombay V. NarasuAppa Mali29 it was held

that a sharp distinction should be drawn between religious faith and
belief. If the religious practices, run contrary to public order, morality, or
health upon which the state has initiated, then the religious practices must
give away before the good of people of the state. Any practice followed
because of religious belief is such that it does not cause any harm to the
society.

The Indian Judiciary has an important role to plugging the

loopholes in the law related to religion. It is very clear that the state can
regulate only secular acts whereas the constitution of India provides
protection from the interference of state in religious matters. Ultimately it
is the judiciary which alone has the right to interfere in the matters of
religion and religious practices.30

There may be uproar among political parties over the integration of

the civil code, but the judiciary has made it clear that the entire
community should be ready to accept it as a measure of social reforms.
Ever since the Indian constitution came in to force in 1950, the court has
always been of opinion that Article 44 of the constitution is important in
reducing social tension, and has been pushing for the introduction of
Uniform Civil Code.31 The court is also of the view that the institution of

26
Amar Singh V. Baldev, AIR 1960, Punj 1995 S.C. 1531
27
Sarla Mudgal V. union of India AIR 1995 S.C. 1531
28
Bhuri V. State of Jammu and Kashmir, AIR 1996 S.C. 1765
29
AIR 1952 Bom 84 (1951) 53
30
D.D. Basu, "uniform civil code for India," second edition, 1997, PP. 25-26
31
Uniform Civil Code - A mirage by Dr. M.P. Raju, P- 92-93

203
polygamy is not based on necessity. Thus the court is ready to do what
the government is unwilling to do. The judicial response to this problem
makes it very clear that a Uniform Civil Code should be made a reality of
constitutional framework. In many of its judgements, the Supreme Court
has held that every fundamental rights must be interpreted in the light of
the directive principles of state policy, which are not enforceable, yet
fundament in the governance of the country.32

It is true that under the Indian constitution, judiciary has played an

important role to achieve the goal of a civil code in India. The history of
judicial behaviour shows that it initially adopted a non-interference
approach with regard to constitutionality of personal laws.33

The judicial organ has been advising the law making organ to take
essential steps in drafting a common for marriage divorce, inheritance,
adoption and maintenance.

The importance of Uniform Civil Code was first highlighted in the

landmark judgement Mohammad Ahmed Khan v. Shah Bano
Begum,34popularly known as Shah Bano's case; the Supreme Court held
that it is also matter of regret that Article 44 of the constitution has
remained a dead letter. The decision of the Supreme Court was not
entertained by many members of Muslim community and the state
government, by the compulsion of the Muslim minorities amended the
Muslim women's Protection of right on divorce) Act 1986 which clearly
denied Muslim women to claim maintenance under section 125 of CRPC.

32
Minerva mills v. Union of India AIR 1980 SC (1789), Kesavananda Bharti, and other v. state of
kerala AIR 1973 SC(1461)
33
Sarla Mudgal V. Union of India. 1995 (3) SCC 651
34
AIR 1985 2 SCC 556.

204
 Kuldeep Singh J. in the case of Sarla Mudgal v. Union of
India35stated that when more than 80% of citizens have already been
brought under codified personal law there is no justification whatsoever
to keep in abeyance, anymore, the introduction of Uniform Civil Code for
all the citizens in the territory of India.

In a concurring judgement, R.M. Sahai, J. wrote, but, religious

practices, violative of human rights and dignity and sacerdotal suffocation
of essentially civil and material freedoms are not autonomy but
oppression.36Justice Kuldeep Singh observed that the Article 44 is based
on the concept that there is no necessary connection between religion and
society in civilised society.

The Jordan Diengdoh case37was another important case which

focused on the immediate need and compulsive need of a Uniform Civil
Code. In Ahmedabad women's action group (AWAG) v. Union of
India,38A PIL was field by challenging the provisions of personal laws
which are gender discriminatory. The Supreme Court held that the matter
of removal of gender discrimination in personal law involves issues of
state policies with which the court will not ordinarily have any concern.

In the case of John Vallamatton v. Union of India,39the Supreme

Court expressed over the delay in the enactment of Uniform Civil Code.
The Supreme Court also held that a common civil code will help the
cause of national integration by removing the contradiction based on
ideologies. By the landmark case, Seema v. Ashwani Kumar,40 the

35
AIR 1995 SC 1531
36
Ronojoysen, Articles of faith-Religion, secularism and the Indian-supreme court 144 (1st ed. 2010)
37
AIR 1985, SC 935.
38
AIR 1997 SC (3614)
39
AIR 2003 (6) SCC 611
40
AIR 2006 SCC 578

205
Supreme Court held that registration of marriage is first step towards the
enactment of Uniform Civil Code.

Thus jurimetrics approach with respect to uniform civil code has

been positive and particularly the supreme-court has come-out in favour
of it. In short, the judiciary has been instrumental in bringing about
change in the attitude of ruling class towards a uniform civil code and has
been successful in creating a strong public-opinion in favour of the
uniform civil code.

MAJOR OBSERVATION:-

At present, various personal laws in India are in vogue to regulate

personal issues such as marriage, divorce, maintenance, adoption,
guardianship, succession, inheritance, will, gift, etc. Under these personal
laws the criteria for deciding these rights vary from religion to religion,
community to community and place to place. Hence, there is no equality
of law for all citizens in terms of personal laws.

Polygamy is not permitted in any personal law except in Muslim

laws and some tribal communities. This is because polygamy violates the
right of the first wife under Muslim law as her husband's subsequent
marriage makes her situation worse. Usually, the husband's income is not
enough to run all the wives equally. In the case of consummation, it
affects the upbringing of children.

The Supreme-Court in Khurshid Ahmed Khan v. State of Uttar

Pradesh.41 It was held that polygamy is not a compulsory practice of
Islam. Under Hindu law, there is excessive stress regarding ceremonies of
Hindu marriage. The status of husband and wife can be granted only
through the rituals of the requisite rites, and if this is not performed then
41
AIR 2012 SLP (C) No. 5097

206
the marriage is null and void. These customs and ceremonies vary from
place to place and community to community. It is confusing and
complicated, many women are not aware of the ceremonies that apply to
them. She can happily change the garland, apply vermillion and declare
to her husband with God as witness, without realising that this is not valid
marriage under the law and these are only mock ceremonies. This undue
pressure on ceremonies has exempted many people accused of bigamy.

Neither Muslim nor Christian personal law recognise child-

adoption. In Mohammed Allahabad Khan v. Mohammed Ismail Khan42the
court clearly held that Muslim law does not recognise adoption as Hindu-
law. Thus, the right of inheritance is severely restricted under Muslim and
Christians. The same goes against the set of international standards
relating to adoption.

Under Hindu Law, another clearly unreasonable law is the

provision on the restitution of conjugal rights, which violates the
fundamental right to life, privacy and equality. When the petitioner asks
the unwilling respondent to cohabit, it tends to harm the relationship
rather than repair it.

Under Muslim law, male heirs receive twice the property compared
to female counter part since after getting married, female receive mehr,
and their husband are obliged to maintain them. But on the other hand,
the male members have to maintain their family, and the only source is
their ancestral property. Further, if the husband dies of illness before the
consummation of the marriage, his widow has no right over her husband's
ancestral property.

42
1886 ILR 8 All 234.

207
 Discrimination in property is still a problem under section 15 (1) of
the Hindu succession Act.43In the event of women's death, her husband
heirs get a preference above her own parents. But when a man dies, his
relatives get to inherit the property. This is clearly a violation of the
equality guaranteed under Article 15(1) of the Indian constitution.

In many states, laws that govern agricultural land holdings do not

grant the same rights to women in inheritance. The land goes to the sons
and leaves with daughters with practically nothing.

The right of inheritance to a child born out of an illegal relationship

under Muslim personal law are relatively limited. However, different
schools follow different practices related to the rights of inheritance. For
example, under the Hanafi School, a child born out of an illicit
relationship cannot inherit from their father, but they can inherit from
their mother. Under Shia-Law, an illegitimate child cannot claim any
right of inheritance over the property of both parents, as the former is
considered a son of 'Zina'.

Another area of disadvantage is the sharing of assets acquired after

and during marriage. Maintenance is not a charity but a right. Yet,
maintenance laws are conditional on norms of behaviour. The character
of wife is invariably brought in during maintenance cases, and the amount
is left to the discretion of judge.

Age of puberty is regarded as the age of marriage among Muslims.

But in present era, this cannot be accepted as age of marriage. Getting
married at the age of puberty has caused several socio-political problems
and ambiguities. Early marriages affect the human resources adversely.

43
The property of a female Hindu dying intestate shall devolve according to the rules.

208
All the citizens should be allowed to get married, only after attaining the
age of majority.

Another area that needs urgent attention is the criminalisation of

marital rape. The legal definition of rape does not include sex with a
minor girl above the age of 15 years, if she is with his wife. The laws
should protect married girls between the ages of 15 to 18 years from
forcible sexual acts by their spouses.

Mehr or dowry is an amount that becomes payable by the husband

to the wife on marriage, between the parties or by operation of law in
Muslim law. It is practically not possible for a wife to demand and
maintain cordial relations with her husband for a long time. Although
non-payment of mehr can be grounds for divorce, this law does not hold
marriage to a sacrosanct level as compared to other laws. Yet most of the
wives do not get mehar because of ignorance.

There are also systems of 'Pardah' in Muslim law where the

pardanashin women are not allowed to go outside the house and are
supposed to cover their full body including their face. The main prejudice
against women in the society is on the issue that a Muslim woman cannot
marry a non-Muslim whereas a Muslim man can.

As regards to the provision of gift under personal law there are

specific chapter incorporated under transfer of property Act. Sections 112
to 129 of transfer of property Act are very clear and are of nature which
can be applied to all the citizens.

However, section 129 of the said law should be repealed, as it is

again forms the limit of the lift given by a Muslim.44

44
Section 129 of TPA-saving of donations mortis cause and Mohammadan law.

209
 Many provisions of Indian succession Act also separates religion
from religion. Some of its provisions provide exceptions for some
religions. Such provision should be removed from Indian succession Act.
Equal and uniform provisions of Indian Succession Act should be applied
to all the citizens.

Basically lack of education is a major draw-back in the personal

laws. Introducing reforms uniformly in personal laws in India can be
ground-breaking for a Uniform Civil Code. There is a need to
differentiate between social matters and religious matters so that secular
reforms can be introduced.

SUGGESTION:-

In the light of concluding observation, the Researcher humbly tried

to suggest that:

1. For codification of personal laws it is necessary to reduce the gap

between the laws of separate communities as well as laws of sects
within community.

2. Uniform civil code is a sine-qua-non for national integration. For

implementing uniform civil code three conditional are essential.

a. Codification of personal laws of various communities.

b. For transition period uniform civil code may be optional but

after some time it must be made compulsory for all.

c. If there is conflict between uniform civil code and personal

laws of communities, then the uniform civil code must have
overriding authority.

210
3. It must be remembered that Indian constitution guarantees the
freedom of conscience and religion. The guarantee is of religion
and not of personal laws.

4. In India the constitutional provisions relating to freedom of culture

and religion are used against the concept of uniform civil code, in
order to remove such confusion it is suggested that a proviso may
be added in Articles 25(1) and 29(1) to the effect that nothing
contained in these Articles shall affect the operation of any law
made under Article 44 of the constitution.

5. The executive has not supplemented the judicial will to achieve

uniform civil code. It is humbly suggested that political
consideration should not be made an excuse for frustrating
reformative judicial march towards the uniform civil code.

6. The positive political interference is the need of the hour to meet

the demands of the communities suffering from the dictates of the
male dominated culture. If the unity, integrity and fraternity as goal
of Indian constitution is to be achieved then central government
must adopt such process irrespective of political ideologies. The
spirit of the constitution should be realised in positive way if
nation's building process is to be continued. The minorities in
country make it clear that they would not permit the political
leaders to treat them as mere floating votes.

7. In order to achieve uniform civil code, the first need is to have a

comprehensive draft Bill. This draft must be prepared by an expert
body in consultation with minorities-commission having regard to
modern day concept of human right.

211
8. The law commission must undertake a comparative study of the
different personal laws of different communities in India. A
scientist classification must be made of the similarities and
dissimilarities in the various personal laws.

In the first stage there should be uniform civil code on those

subjects which are having very little controversy; subject matter
having wide-controversy must seek help of the principles of natural
justice in framing the uniform civil code.

9. Inter-religion, Inter-caste, Inter-citizen marriages should be

encouraged and developed for the healthy growth of consensus on
the realisation of the constitutional mandate.

10.The religious sentiments should not be hurt, but national interest

and unity of nation must be safeguarded and in the name of
religion. No community should be permitted to interfere in the
legislative competence of the parliament.

11.The Supreme Court, as guardian of the constitution has the inherent

power to issue any direction to give the complete justice hence it
can direct the state to legislate the law to implement uniform civil
code for the welfare of nation.

12.The media including electronic and print media should be

persuaded to play its national role in the building of a healthy and
balance society and it must be reminded of its educative role to
mould the public-opinion especially of the minorities in favour of
the enactment of uniform civil code.

13.The brand Ambassador should be appointed to propagate the ideas,

commodities and though for the enactment of the uniform civil
code. The government must not hesitate to appoint the film stars or

212
 other important personalities to prevail upon the people to accept
the concept of uniform civil code for the betterment of their life.

14. The provisions of the criminal law, which are secular in nature
should be effectively enforced to arrest the dangerous anti-national
tendencies in minority demands.

15. Proper education like "We are Indian first, then the people
belonging to any particular caste or community" and "We, the
people of India" is essential for the uniform civil code. Therefore
all-out efforts should be made to facilitate the adoption of the
uniform civil code through education.

16.The progressive minded people amongst the various communities

will have to launch a campaign for making reforms in all the
personal laws. The reformative measures may ultimately yield to
the formation of the uniform civil code.

17.A helping hand should also be sought from non-governmental

organisations (NGOs) which are proving a boon for handling and
solving many social problems as compared to political bodies and
government machinery.

In the light of the above suggestion it is submitted that

enactment of uniform civil code is necessary to achieve the
constitutional objectives of justice, liberty, equality, fraternity and
above all unity and integrity of the country.

213
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215
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 Agarwal K.B., Advisability of Legislating: A Uniform Indian

Marriage Code, in Mohammad Imam, Ed., Minorities and the Law,
1972, at p. 440.
 Agarwala Rajkumari, Uniform Civil Code : A Formula not a
Solutions, in Tahir Mahmood, Ed., Family Law and Social Change,
1975, at p. 110.
 Baxi Upendra, Law Democracy and Human Right, Lokayama Bulletin
Vol. 1987, at pp. 75-91.
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25th March, 1973.
 Dalwai Hamid, Muslim Politics in Secular India, 1968, at p. 96-97.
 Derret J.D.M., The Indian Civil Code for Code of Family Law,
Practical Proposition, in Narmada Khodie Ed., Readings in Uniform
Civil Code, 1975, at p. 21.
 Desai C.C., Need for a Uniform Civil Code for India, Journal of
Constitutional and Parliamentary Studies, Vol. 3, 1969, at pp. 90-92.
 Dhagamwar V., Uniform Civil Code, Mainstream, 6th July, 1983.
 Daimond, Codification of Law of Contract, 31 Modern Law Review,
1961, at p. 361.
 Diwan Paras, The Uniform Civil Code : A Projection of Equality in
Mohmood Imam, Ed., Minorities and the Law, 1972, at p. 420.
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Mahmood, Islamic Law in Modern India, at pp. 154-55.
 Granl P.K., Personal Law of the Pars is in India, in Aderson J.N.D.
Ed., Family Law in Asia and Africa, 1968, at p. 299.
 Hyder Husein Chaudhri, A Unified Code for India, AIR [Jour.
Section], Vol. 68, 1949, at pp. 71-72.

216
 Iyer Krishna V.R., One Country, One Nationality and One Legal
System, Express Magazine, 29th June, 1986.
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Vicissitudes, by Sarla Mudgal [1995] to Lily Thomas [2000], Journal
of the Indian Law Institute Vol. 42, at pp. 314-334.
 Kumar Virendra, Uniform Civil Code Revisited : A Juridical Analysis
of John Vallamattm, Journal of the Indian Law Institute Vol. 45, at pp.
315-334.
 Latifi Danial, Change and the Muslim Law, in Tahir Mahmood Ed.,
Islamic Law in Modern India, N.M. Tripathi Pvt. Ltd., Bombay, 1972.
 Mahmood Tahir, On Securing a Uniform Civil Code, in Narmada
Khodia Ed., Readings in Uniform Civil Code, 1975, at 176.
 Mahmood Tahir, The Progress in Implementing Social Directive of
teh Constitution, Alice Jacob, Ed., Constitutional Development Since
Independence, 1973, at pp. 656-657.
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7-11.
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in India, Civil and Military Law Journal, Vol. 19, No. 2, April-June,
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 Sorabjee Soli, Should Secular Law be a Personal Choice? Express
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at pp. 17-24.
 Tyabji Kamila, Polygamy, Unilateral Divorce and Mahr, in Tahir
Mahmood, Ed., Islamic law in Modern India, 1972.

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 Tyabji Kamila, Quoted in Tahir Mahmood, Indian Civil Code of
Islamic Law, 1976, at p. 29.
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Soviet View, Vol. 15, I.C.L.Q., 1966, at p. 1091.

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India Ed. By N.R. Madhava, 1986, New Delhi, Bar Council of India
Publication.
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 Constituent Assembly Debates, Vol. VII, 1948-1949.

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 All India Reporter.

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218
 Outlook.
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219
 UNIFORM CIVIL CODE AND NEW CHALLENGES

(A Socio-legal study with reference to India)

ABSTRACT

India is unique country not only in terms of its geographical aspect but also
in terms of its social scenario. It is a land of various religions and different
cultures. Diversity in social life is important aspect of the India society.
The Indian culture emphasizes the spirit of unity in diversity but,
unfortunately, this spirit of cultural unity has not helped to bring political
unity in India. If we look back to the history we find that India as a state
was divided in smaller political entities which ultimately brought foreign
subjugation for a long period of time. In 1947, India achieved
independence but again at the cost of partition of the country. In the light
of the historical experience the goal of unity and integrity of the country
had become the primary consideration for framers of the Indian
constitution.

Religion-cultural pluralism is India's past, present and future, indeed

its heart and soul. No religion is foreign to India, nor is India foreign land
for any religion.1

Religion has been a dominating factor in Indian society. On one hand

religions have brought spiritual upliftment and peace of mind, on the other
hand the religious practices have perpetuated many social evils like
untouchability, sattee, Devadassi etc. The religion and custom based on the
personal laws of different communities have been a major cause for its
discrimination. In the name of religion several ill and illogical but legal
practices are going on in the society. It has not only caused inequalities and

1
Tahir mahmood, law of India on religion and religious affairs (Universal) law publishing co. New
Delhi, 2008)

1
indifferences among the people of different religions, but also has caused
inter-religion inequalities and indifferences because there is such type or
system that each religion different sects and sub sects too have different
rules for them. They all are carried out in the name of religions, custom
and usages.2

After independence 'Secularism' is the most misinterpreted and

twisted concept in this country. People has used and misused this word
rather concept, as per their needs and desires.3 Most of the developed
countries have modified and uniformed their personal law system. Many
of them are Muslim countries. Laws of any country should be changed as
per the changing culture and demand of the society. If it does not happen
so, it cause grave injustice to the different group of people of the society.
Developing law system is one of the basic tools for a positive social
transformation.4

The constitutional goal cannot be achieved unless there are reforms

regarding the laws. The codification of laws are regarded as an important
means of legal reform. In India, the codification in the field of criminal and
commercial laws were done by the British rulers. The British maintained a
policy of non-interference in religious-matters. They did not attempt to
codify personal laws in view of their declared policy of 'Divide & Rule'5

The demand for a uniform civil code was first put forward by women
activists in the beginning of the twentieth century, with the objectives of
women's rights, equality and secularism. Till independence in 1947, a few
law reforms were passed to improve the condition of women, especially

2
D.K. Shrivastava, Religious freedom in India, P. 255 (1982)
3
Tahir mahmood, uniform civil code : Fictions and facts, p. 21 (1995)
4
Ibid
5
Sorabjee soli, Should Secular law be a personal choice? Express magazine, 29th June 1986

2
Hindu-widows. In 1956, the Indian parliament passed Hindu code bill
amidst significant opposition.6

In this respect, the concept of uniform civil code takes it roots in

Article of uniform civil code takes it roots in Article 44 of the Indian
constitution which lays down as under-

"The state shall endeavour to secure for the citizen a uniform civil
code throughout the territory of India."

The expression 'Uniform civil code' consist of three terms- 'Uniform'

'Civil' and 'Code.' The word 'uniform' refers to the form of a thing. The
constitution of India in its Article 44 uses the expression 'uniform' instead
of 'common' but generally these two terms have been used as synonymous
in the discussion relating to said provisions.7

In India, the expression 'civil code' is used in a very specific-sense,

meaning there by a code of law regulating civil matters which includes
marriage, divorce, inheritance and those other subjects which are at present
governed by different personal laws and the expression 'uniform civil code'
has a reference to enact a uniform family law intended to replace the
different personal laws governing Hindus, Muslims, Christians, Parsis and
Jews in matrimonial and other related matters.

Thus the concept of uniform civil code is confined to having a

'uniform family code' for members of all communities living in the country,
not merely for the sake of uniformity but also for securing social justice for
weaker section in different communities in the sphere of marriage, divorce,
custody, adoption and inheritance.8

6
V. Dhagamwas-Towards uniform civil code, 1989, at p. 63.
7
Encyclopedia Americana, vol. 6 (1960) 734.
8
Choudhari Hyder Hussain- "A unified code for India" A.I.R. (journal) 68, 71-72

3
 A uniform civil code has become relevant in today's context for
achieving the following goals-

A. National consolidation and integration

B. Safeguard against political domination
C. Linkage of Justice and equality
D. Clarity, simplicity and intelligibility of the personal laws
E. Removal of gender -bias
F. Improvement in women's position.

The historical background of the uniform civil code is closely linked

with the history of personal laws. In ancient and medieval period all
branches of law namely civil, criminal and commercial were based on
religion and custom. This religion and custom oriented legal system was
complicated and unprogressively. The British rulers attempted to bring a
systematic and progressive legal-system in India. British rulers gradually
codified and brought secular, criminal and procedural legislation. As
regards to the personal law they refrained to enact a comprehensive and
secular civil code.9

Generally all countries have uniform civil code or for that matter
uniform law- civil or criminal. The European nations and United States
have a secular law that applies equally and uniformly to all citizens
irrespective of their religion. The Islamic countries have a uniform law
based on shariah which applies to all individuals irrespective of their
religion.10

Goa is the only state in India that has uniform civil code regardless
of religion, gender, caste. Goa has a common family law. Thus Goa is the
only Indian state that has a uniform civil code. In Goa all religions are

9
Iyer krishna, - One country, one nationality and one legal system, express magazine 29th june 1986
10
Khodie Narmada, Reading in uniform civil code, Tacker company limited Bombay, 1975

4
bound with the same law related to marriage divorce, succession. The
registration of marriage is made compulsory under the Goan code so that
the disputes which may arise can be resolved by the law. Consent or of men
and women is required before the marriage. The Goan code allows for a
prenuptial agreement which can alter the ratio of the distribution of
assets.11

There are several provision in the Indian constitution which are

directly or indirectly relating to the uniform civil code.

A. Uniform civil code and fundamental rights

B. Uniform civil code as a directive principal of state policy.
C. Fundamental duties and uniform civil code.

Part IVth, Article 44 of the constitution states that "The state shall
endeavour to secure the citizen a uniform civil code throughout the territory
of India"

Justice Chandrachud said - "The Indian constitution is founded on

bedrock of the balance between part III and IVth of the constitution. To give
absolute primary to one over the other is to disturb the harmony of the
constitution. This harmony and balance between fundamental rights and
Directive principles of state policy is an essential feature of the basic
structure of the Indian constitution.12

In this connection one of the most important question is that how to

implement the Article 44 without affecting the fundamental Rights of the
citizen. In this connection prof. Thair Mahmood is of the opinion that
legislative enactment of an all India uniform civil code straight way is no
envisaged by the constitution even at the central or state level. Article 44

11
https://the companion. in/goas-experiences of - uccshow-things-not-go-well
12
Minerva mills ltd v. union of India AIR 1980 SCC 591

5
of the constitution wants the government and the legislature to make
possible endeavours which may in the long-run secure uniformity in the
making and application of civil laws13

The debate over the uniform civil code in the constituent's assembly
was among the most heated.

In the constituent assembly, there was division on the issue of

putting the uniform civil code in the fundamental rights chapter. The matter
was settled by a vote. By a majority of 5:4, the fundamental right. Sub-
committee headed by Sardar Vallabhbhai Patel held that the provision was
outside the scope of fundamental rights and therefore the uniform civil
code was made less important than freedom of religion.14

The position in the assembly were divided into two camps.

On one side were members who wished to use the legal power and status
of the constitution to modify religious customs and advance secularisation
and legal uniformity among all religious groups. 'K.M Munshi' one of the
member, called for the restriction of religion to the private sphere and the
promotion of unity and societal integration based on civil national identity.

On the other end were those who believed that a constitution should
reflect the spirit of the nation as it currently was and should not impose
deep social and cultural changes.

Dr. B.R. Ambedkar although did not accept the amendments and
defended the right of the state to interfere in the personal-laws of different
communities. He defended the arguments of supported members of the
constituent Assembly. But the same time he also gave some assurances to

13
Chaudhari Hyder Hussein- "A unified code for India" AIR (Journal- P. 71-72)
14
Desai C.C. 'Need for a uniform civil code for India' Journal of constitutional and parliamentary
studies, vol. 3 1969

6
the apposed members of the uniform civil code and he explained that the
proposal was creating only a 'power' not an 'obligation'

Thus the uniform civil code doesn't mean that there should be a
Hindu code which is made uniform. The most liberal elements of a personal
laws, whether it is Hindu law, Muslim law, Christian law and so on, should
be taken together to provide a uniform civil code. That should apply to the
entire country and will be acceptable to all communities.

The objection, difficulties and constraints relating to the uniform

civil code are as old as the idea of the uniform civil code itself, since the
idea involves the codification of personal laws and such laws often mingle
with religion and culture. There are various objection relating to the
uniform civil code-

A. Uniform civil code is against the freedom of religion.

B. Uniform civil code is against the cultural right.
C. The religious laws are immutable
D. Enhancement in the power of the state
E. There should not be no hurry to enact a uniform civil code.

A part from these objections there are certain more practical problems for
enacting uniform civil law in India.

A. Lack of information
B. No Build-up of public-opinion
C. No Draft-Bill

Dr. B.R. Ambedkar wanted to introduce an uniform civil code in India,

during constitutional debates by getting inspired by the western- world
where such uniform civil code already in societies, with the object of

7
bringing uniformity and unity in society.15 But due to vast varities of
culture and religion of India, the idea of uniform civil code was strongly
opposed by the other members of the constituent Assembly, debating that
implementation of uniform civil code will infringe the manage religious
affair given under Art 25 and 26 of the constitution respectively. Thus the
uniform civil code was left to be implemented by govt. in the future and
was added under part IVth of the constitution as one of the directive
principle of state-policy.

It is clear that there is distrust among the religious minority groups

relating to implementation of uniform civil code, as according to them it
will infringe there right to practice religion as a uniform civil code might
became bias towards the laws of community having major population.16

There can be a solution in implementation of uniform civil code, if

it is enacted as a 'Grundnorm' in which instead of replacing all the
customary laws, a set of guidelines should be made to abolish or replace
only those laws or customary practices which degrades the status of women
and does not provide equality status in society as compare to man. This
type of uniform civil code will be acceptable by all as it will not replace all
the customary laws or the major part of it. As it will also preserve the
diversity of Indian culture and religion, which rarely seen in western world
where the uniform civil code is already in practice.

In 1985, for the first time in Indian history, the Supreme Court in
Mohammad Ahmed Khan V. Shah Bano Begum17 directed the parliament
to enact a uniform civil code. The court said that it is matter of regret that
Article 44 of constitution has remained a dead letter. A common civil code

15
R.C.S. Sarkar, Uniform Civil Code, journal of constitutional & parliamentary studies, 1969, vol. 3,
83 at p. 87
16
https://www.outlookindia.com/website/story//and-the-uniform-civil-code/221068
17
Modh Ahmed Khan V. Shah Bano Begum (1985) 2 SCC 556.

8
will help the cause of national integration by removing disparate loyalties
to laws which have conflicting ideologies.

In past few years the courts through judicial activism have made
efforts to get rid of gender discriminatory practice which are in disguise of
religious practices. More recently on 23rd September 2015, the Gujarat
High-Court in Yunus Bhai Usman Bhai Shaikh V. State of Gujarat18
ordered to stop Muslim polygamy which it termed as "heinously
patriarchal." After one month in October, the supreme-court in Prakash V.
phulavati19 ordered an examination of practices like polygamy and triple
talaq in Muslim personal law and declared them injurious to public morals.
The supreme-court's latest reminder for implementation of uniform civil
code came on 12th October 2015. The court observed that there is 'total
confusion' due to personal laws governing different religious-practices and
asked the centre whiter it was willing to implement uniform civil code in
the country.20

Once the uniform civil code is formulated across the nation, nation
will undergo another social reforms in this country. For instance, in Indian
context, Muslim women are denied with personal laws in relation to
marriage, divorce etc. On contrary, various Muslim nations like Pakistan,
Bangladesh, Turkey, morocco etc. women enjoyed codified personal laws.
So after the implementation of uniform civil code Indian women will also
enjoy a codified personal law. Therefore, there will be a stepping stone
towards another social reforms across the country. It will enhance the status
of women and so called lower castes as many personal laws are biased
against them.

18
AIR 2015 (3 GLR 2512)
19
AIR 2015 (II) SCALE 643
20
Utkarsh Anand,- 'Uniform civil code' - The Indian express (New Delhi, 13 October 2011)

9
 Article 25 to 28 of Indian constitution guarantee freedom of religion
and uniform civil code is not opposed to secularism. There are signs that
the nation is moving away from caste and religion considerations.

The constitution of India does not define religion, but it has been
established that religion is not necessarily theistic, and there are well
known religions in India like Buddhism and Jainism which do not believe
in God. The freedom of religions conferred by Article 25 is not confined
to citizens of India but extents to all persons including aliens.21

Art 25 (1) of the constitution guarantees to every person the freedom

of conscience and the right to profess, practice and propagate religion. The
right guaranteed under Article 25 (1) is not absolute. This right is subject
to public-order, morality and health and to the other provision of part III of
the constitution.

In a democratic country the judiciary plays an important role as

dispute mechanism. It has a very wide powers to expound the provisions
of the constitution and to bring in to practice the basic philosophy
underlying the provision. The constitution of India guarantees to all person
equality, freedom of conscience and religion. The state is under
constitutional obligation to make earnest effort towards the establishment
of one civil code for all persons. Although the courts have sought to effect
uniformity in personal laws, but the wave to codify has been firmly upset
by parliament because of political generation. However the courts
consistently emphasized the need of the uniform civil code. The uniform
civil code is required not only to ensure uniformities of laws within
communities ensuring equality between rights of men and women.22

21
Ratilal V. State of Bombay, AIR 1954 SC 358
22
F. Agnel. "Hindu men monogamy and UCC XXX(50). Economic and Political weekly 32 (1995) B.
Kurat, "Uniformity V. Equality" Frontline 17 Nov. 1995.

10
 The judiciary through its various judgements time and again has
always upheld gender in cases pertaining to the uniform civil code. In the
case of Mohammad Ahmed Khan V. Shah Bano Beguam23 popularly
known as shah bano case, the supreme-court held that 'it is also matter of
regret that Article 44 of constitution has remained a dead letter.'

In saral mudgal v. union of India24 the Supreme Court requested the

govt. of India to have a fresh look at Article 44 of the constitution of India
and endeavour to secure for its citizen a uniform civil code throughout the
territory of India.

The Apex court in Lily Thomas V. union of India25 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 the society,
statesmen amongst the leaders who instead of gaining personal mileage rise
above and awaken the masses to accept the change for the betterment of
nation at large. Subsequently in Pannalal Bansilal pitti v. state of Andhra
Pradesh26 the Supreme Court observed that a gradual process in this regard
can bring about that uniformity. The court observed that' A uniform law is
though desirable but its enactment in one go perhaps may be counter-
productive to unity and integrity of the nation'

A survey of the judicial approach towards unification of civil code

make it clear that the court is very much interested in resolving the social
and economic tension in the society so that the state may create a social
order in which political, economic and social justice shall inform all the
institution of natural life. In fact the judgements of the many cases towards
making of uniform civil code make it clear that they are very much

23
AIR 1985 2 SCC 556
24
AIR 1995 SC 1531
25
AIR 2000 SC 1560
26
AIR 1996 SC 1023

11
concerned that fragmentage matrimonial laws should be intended into
uniform law.

The unification of civil code may raise a heat and fear among
political elites of India, but the judiciary has made it clear that the
community as a whole must be prepared to accept it as a measure of social
reform. The courts have always been of the opinion that Article 44 of
Indian constitution is very important in mitigating social-tension and it has
been insisting upon the introduction of uniform civil code. The court is also
of the opinion that institution of polygamy is not based on any necessity.
Thus the court is ready to do what the govt. of the day is unwilling to do.
A visit of judicial response to this problem makes it very clear that uniform
civil code should be made a reality of our constitutional frame-work. In its
many judgements, the court has said that every fundamental right has to be
interpreted in the light of Directive principles of state policy, which are not
enforceable, nevertheless which are fundamental in the governance of the
country. The Indian judiciary has favoured the idea of uniform civil code
and has been doing a great deal to mould the different matrimonial laws in
to one in the light of post-constitutional developments. The supportive and
suggestive attitude of judiciary towards achieving the goals of uniform
civil code to state must be followed by the state of fulfil the dreams of the
constitution makers constrained under Article 44 of the Indian
constitution.27

The uniform civil code may be a strong tool in curbing the virus of
communalism in country. It has become relevant in today's context of
country for achieving the goals of national integration, improvement in
women's position, achievement of gender-based justice and achievement
of secularism.

27
Dr. S.S. Singh-'unification of divorce laws in India deep & deep publication, New Delhi 1993

12
 The uniform civil code should carve a balance between protection
of fundamental rights and religious dogmas of individuals. It should be a
code. Which is just and proper according to a man of ordinary prudence,
without any bias with regards to religious or political considerations.

Here is an overview of the essentials of the uniform civil code in the

reference of personal laws.

Marriage and Divorce:- The personal laws of each religion contain

different essentials of a valid marriage. The new code should have the basic
essentials of valid-marriage which shall include-

i) The new code should impose monogamy banning multiple

marriages under any religion. Polygamy discriminates against the
women and violates their basic human rights. Thus, monogamy
should be imposed, not because it is the Hindu law, but because it
adheres to Article 21 of the constitution of India and basic human
values.
ii) The minimum age limit for a male should be 21 years and for female
should be 18 years. This would help in curbing child-marriages.
Punishment should be minimum 05 years for any person violating
this provision. Also, punishment for other person, involved in such
an act, like the relatives, should be minimum 03 years which would
have a deterrent effect on the society.
iii) Registration of marriage should be made compulsory. A valid
marriage will be said to have solemnised when the man and the
women sign their declaration of eligibility before a registrar. This
will do away with all the confusion regarding the validity of the
marriage.
iv) The grounds and procedure for divorce should be specifically laid-
down. The grounds enumerated in the code should be reasonable and

13
 the procedure prescribed should be according to the principles of
natural-justice.

Succession and Inheritance:- This area throws-up even more intractable

problems. In Hindu law, there is a distraction between a joint family
property and self-acquired property which is not so under the Muslim law.
The Hindu undivided family, formed under the Hindu law, run businesses
and own agriculture lands. Under the uniform civil code, this institution of
Hindu undivided family, peculiar to the Hindus, has to be abolished. There
are also fetters imposed on the extent to which one can bequeath property
by will under the Muslim law considering all these, the uniform civil code
should include:-

i) Equal share to son and daughter from the property of the father,
whether self-acquired or joint family property. There should be no
discrimination based on sex in the matters of inheritance.
ii) Provisions for inheritance of the property of mother, which she has
self-acquired or acquired through her father or relatives.
iii) The provisions relating to will should be in consonance with the
principles of equity. There should be no limitations imposed on the
extent to which the property can be bequeathed, the persons to whom
such property can be bequeath and the donation of the property by
will for religious and charitable purpose.
iv) The essentials of valid will, the procedure for registration and
execution of the will should be provided for.
v) Provision of gifts should not contain any limitations, though
essentials of valid gift and gift deed should be specified.

Maintenance:- The maintenance laws for the Hindus and Muslims are
very different. Apart from personal laws, a non-Muslim women can claim
maintenance under section 125 of code of criminal procedure, 1973. A

14
Muslim women can claim maintenance under the Muslim women (Right
to protection on Divorce) Act, 1986. Apart from maintenance of wife, there
are also provisions of maintenance of mother, father, son and unmarried
daughter under Hindu law. The uniform civil code should contain the
following with regards to maintenance:-

i) A husband should maintain the wife during the marriage and also
after they have divorced till the wife remarriages.
ii) The amount of alimony should be decided on basis of the income of
the husband, the states and the lifestyle of the wife.
iii) The son and daughter should be equally responsible to maintain the
parents. The reason for this being that if she claims

Equal share of the property of her parents, she should share the duty to
maintain her parents equally.

There are certain suggestion by the researcher for the purpose of the
printability of the uniform civil code in India.

A. The media including electronic and print-media should be persuaded

to play its national-role in the building of a healthy and balance
society and it must be reminded of its educative role to mould the
public-opinion especially of the minorities in favour of the
enactment of uniform civil code.
B. Article 44 may lack enforceability but, Article 15 clause (3) is not
like it. It is mandatory. The parliament will be fully justified to make
a special provision for women in field of personal laws and that will
be a good beginning of the process of the implementation of uniform
civil code.

15
C. Inter-caste, inter-religious, inter-citizen marriages, should be
encouraged and developed for consensus of the realisation of the
constitutional mandate.
D. No attempt should be made to hurt the religious feelings of any
community in the name of introduction of uniform civil code. If
possible, certain amendments should be made in the provisions of
'right to freedom' to remove dichotomy between uniform civil code
and the 'freedom of religion.'
E. Proper education like "we are Indian first, then the people belonging
to any particular caste or community" and "we, the people of India"
is essential for the uniform civil code. All-out efforts should be made
to facilitate the adoption of the uniform civil code through education.
F. The progressive-minded people amongst the various communities
will have to launch a campaign for making reforms in all the
personal laws. The reformative measures may ultimately yield to the
formation of the uniform civil code.
G. For codification of personal laws it is necessary to reduce the
distance between the laws of separate communities as well as laws
of sects within community.
H. It is high time, that the law commission must undertake a
comparative study of the persona laws of different communities in
India. A scientific classification must be made of the similarities and
dissimilarities in the various personal laws. In the first stage there
should be a uniform civil code on those subjects on which there is
very little controversy.
I. The criminal law provisions, which are secular in nature, should be
effectively enforced to arrest the dangerous anti-national trends in
the minority demands.

16
 In the light of the above suggestions, it is submitted that, enactment of
uniform civil code is necessary to achieve the constitutional objectives of
justice, liberty, equality, fraternity and above all unity and integrity of the
Indian nation.

Mode Draft for Uniform Civil Code:- After analysing the different
personal laws and also some secular laws, it can be concluded that, there
are such provisions under different personal laws and some secular laws,
which are adequate to constitute a uniform civil code. Hence such
provisions are chosen from different statutes and also some provisions with
some modifications and object of uniform civil code. And the suggested
model draft for uniform civil code is made from the best existing provisions
under different statues. The researcher suggested following model draft
code for uniform civil code which can be applied to all the citizens of India,
irrespective of their religion, caste, sub-caste and creed.

17