UNIFORM CIVIL CODE: THE RED CARPET FOR INDIAN WOMEN

Author 1:- Author 2

Shailja Pareek Upasana Priya
Student Student
Mody University of Science &Technology Mody University of Science &Technology
Email id:- pareek.shailja@gmail.com Email-id :- priyaupasana97@gmail.com

Contents
Introduction.................................................................................................................................................2

Peeping into the Past...................................................................................................................................2

Examples of implementation of UCC..........................................................................................................3

The need for UCC.......................................................................................................................................3

Women and Uniform Civil Code.................................................................................................................4

The clash between Article 25 and Article 44...............................................................................................5

Mohd. Ahmed Khan v. Shah Bano Begum................................................................................................5

Daniel Latifi v. Union of India...................................................................................................................5

Jorden Diengdeh v. S.S. Chopra...............................................................................................................6

Obstacles in the way of UCC.......................................................................................................................6

Asaduddin Owaisi said that bringing the Uniform Civil Code (UCC) will "kill" the diversity and
plurality of India......................................................................................................................................6

 A move against secularism..........................................................................................................6

 Infringement of personal religious laws.......................................................................................7

Triple talaq-An alarm for the muslim women to welcome UCC.................................................................7

Guidelines and Recommendations...............................................................................................................8

Conclusion...................................................................................................................................................8

BIBLIOGRAPHY.......................................................................................................................................9

Introduction
“Religion is so deep rooted in India , that it has even defeated the Supreme law of Land.”
The war between the Constitution of India and the personal laws has still not settled. The fear of
bloodshed , hate speeches and communal riots is a obstacle in the implementation of Uniform
Civil Code. Article 44 provides that “The State shall Endeavour to secure for the citizens a
uniform civil code throughout the territory of India.” Article 44 of Part IV wants to
replace personal laws based on the scriptures and customs of each major religious community in
India with a common set of rules governing every citizen i.e. Uniform Civil Code. Its particular
goal is towards the achievement of gender justice.
Uniform Civil Code means same set of secular civil laws for all the citizens. It will supersede the
right to be governed by personal laws. These laws are distinguished from public law and cover
marriage, divorce, inheritance, adoption and maintenance. However, even after the completion of
Six decades , such a code has failed to be implemented.

Peeping into the Past

The contentious debate of Uniform Civil Code dates back to the Colonial Period. The East India
Company hit Indian Shores during 17 th Century with a profit gaining motive. The Colonial
masters played an instrumental role in shaping the legislative literature of our country. The Lex
Loci Law Report of October, 1840 emphasised on the necessity for the codification of Indian law
relating to crime, evidences, contract ,etc but it separated the personal laws of Hindus and
Muslims from such codification. Warren Hastings in the Administration of Justice
Regulation,1780 made a formal declaration of such policy pronouncing that the disputes of
marriage, divorce or inheritance would be governed by the personal laws of the people.
The British codified the Criminal Laws but left the Civil /Personal matters to be governed by the
personal laws of the citizens.
Later on, in the post-colonial period also, when the issue of the constitutional mandate of
Uniform Civil Code was discussed among our Constitution makers, they felt that the issue was
sensitive and in the backdrop of partition, where chaos and bloodshed became the order of the
day, the decision of imposing such proposal would not be wise enough .They opined that the
country requires a certain amount of modernization before a uniform civil code is imposed on
citizens belonging to different religions as it could be seen by the citizens as an invasion on their
culture and religion .But it seems that the country is still not modernized enough after a span of
60 years to accept such a constitutional goal

Examples of implementation of UCC

Goa is the only state in India to have a common Family Law. Portuguese Civil Code of 1867
continued in Goa after its liberation. It provides for equal division of income and property .
Other countries like the European nations and islamic countries also have uniform law for all the
citizens. Islamic countries have a uniform law based on Shariah which applies to all individuals.
Turkey is another example wherein the weakening of the army has been reinforced by the
September 2010 Constitutional Referendum. Turkey was ruled by the Ottoman Empire prior to
the 20th Century , however, following World War I ,the Ottoman Empire dissolved and
constitution was introduced in 1921. The constitution of Turkey perpetuated the power of
religious law.1The 2010 Constitutional Referendum abolished the protection given to the military
coup leaders. Moreover, even Italy has an Uniform civil Code for its citizens.

The need for UCC

The Human Rights of Women have always been linked with the personal laws governing the
social institutions of marriage and family.
India is home to a diverse and variable mélange of a population with ethnic,cultural,linguistic
and religious diversities, hence making it different from the homogenous western nations.
Women victimization and denial of justice to women are one of the serious outcomes of personal
laws. The oppression of patriarchy has lowered the status of women vehemently in the name of

1 Turkey, A Country Study.

personal laws, especially the Muslim women. Uniformity shall deem to be a solution to undo all
the repressive evils that have crept inside our existing personal laws. UCC has time and again
hailed to be the miraculous cure for the social problems faced by Indian women.
The major goals which can be achieved through UCC are:-
 The national integration of the country would be accelerated.
 The inconsistency between different provisions of law could be avoided.
 Litigation due to personal law would decrease.
 The sense of unity and national spirit would be roused.
 To achieve gender equality

Women and Uniform Civil Code

Different personal laws of different religions have their own traditions for women. The law
relating to marriage, divorce, maintenance, guardianship and succession governing the Hindus,
Muslims and Christians etc., is different and varies from one religion to other

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. A
uniform civil code will help the cause of national integration
The demand for a Uniform Civil Code was first put forward by women activists in the beginning
of the twentieth century, with the objective of women’s right , equality and secularism. Even
though the state has not yet made any efforts to introduce a uniform civil code in India, the
judiciary has recognized the necessity of uniformity in the application of civil laws to marriage,
succession, adoption, divorce, maintenance, etc. The current scenario might be slightly different
on paper but the harsh reality has not changed on ground zero. Be it the crime against women or
their rights, there has been very little or no progress at all. Implementation of UCC will end
patriarchal society and violence against women.
The Shani Shingnapur temple trust allowed women to enter the sanctum sanctorum, breaking the
tradition followed for several decades following the directive given by the Bombay high court in
2016.
In the Sarla Mudgal and ors. v. UOI 2 it was held that the second marriage would be invalid
inless and until the first marriage is dissolved by decree under the Hindu Marriage Act. In this
case the husband had converted himself to muslim religion from Hindu religion and observed
polygamy.
Hence such cases show the mark of a uniform code disregarding the biased religious practices.

2 1955,3 SCC 635.

The clash between Article 25 and Article 44

Article 25 guarantees Right to freedom of religion. It grants freedom to every citizen of India to
profess, practice and propagate his own religion. The constitution, in the preamble professes to
secure to all its citizen’s liberty of belief, faith and worship. However, Article 44 which embodies
the principle of one civil code for all citizens is considered to be a violation of Article 25.
Religious freedom, in the eyes of the Court, does not only mean being allowed to practice one’s
customs. It also has to mean that some of these customs must have legal significance. But why ?
Religious. freedom is the freedom to practice one’s beliefs.3 The Shah bano case and Shayra
Bano case are some examples wherein Article 44 was preferred over article 25 by the courts.
Uniform Civil Code essentially means unifying all the “personal laws” to have one set of secular
laws that will apply to all citizens of India irrespective of the community they belong to.It has to
be understood by the communal parties that the Right to freedom of religion will not get violated
by article 44 as both the articles seek to achieve secularism.

Mohd. Ahmed Khan v. Shah Bano Begum4

In this case the question was raised regarding the liability of Muslim husband to maintain his
divorced wife beyond the period of iddat, if the wife is not able to maintain herself. I was by
Supreme Court that:
1. Section 125 of the code is truly secular in character. It was enacted to provide quick and
summary remedy to the class of persons who are unable to maintain themselves.
2. Irrespective of the person being of any religion sec 125 is applicable because it is a part of
Criminal Procedure Court and not Civil Laws.
3. Neglect by a person of sufficient means to not give maintenance to any dependants leads to
invoking of 125.
4. The rights conferred by Section 125 can be exercised irrespective of Personal Law of the
Parties.
5. In this case Husband Liabilities to provide maintenance doesn’t get limited into the foundation
of time period of Iddat but as long as the wife is unable to maintain herself or remarried even
though Iddat period is over.

Daniel Latifi v. Union of India5

Shah Bano’s case was challenged in this case and it was a controversial maintenance lawsuit
in India, in which the Supreme court delivered a judgment favoring maintenance given to an
aggrieved divorced Muslim woman. the Supreme Court of India interpreted the act in a manner
reassuring the validity of the case and consequently upheld the Shah Bano judgement and The
Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified. Many Muslims

3 Available at : http://www.livelaw.in/triple-talaq-irrelevance-religious-freedom/(visited on Jun 4, 2018).

4 (1985)2SCC556 : 1985 SCC(Cri)245.

5 (2001)7 SCC 740: (2007) 3 SCC (CRI)266.
including All India Shia Personal Law Board supported the Supreme Court's order to make the
right to maintenance of a divorced Muslim wife absolute.

Jorden Diengdeh v. S.S. Chopra6

In this case a woman belonging to the Khasi Tribe, a Christian, married S.S Chopra under the
Christian Marriage Act, 1872 and later sought a decree of nullity under the Divorce Act, 1869.It
was held in this case the unsatisfactory state of affairs consequent on the lack of a uniform civil
code.

Obstacles in the way of UCC

Asaduddin Owaisi said that bringing the Uniform Civil Code (UCC) will "kill" the diversity and
plurality of India.7

 A move against secularism.

In India, a country with diverse languages and traditions, expecting people of diverse culture and
traditions to act on the same laws, based on a uniform system is somewhat preposterous.

The argument is based on the fact that India takes pride in its integrity within diversity. For
maintaining diversity, we need to respect every minority communities personal choices and laws.
That is what has led this nation to live in peace for such a long duration of time.

6 (1985) 3SCC62:AIR 1985 SC 935.

7 Available at http://indianexpress.com/article/india/india-news-india/congress (visited on June 4, 2018).
  Infringement of personal religious laws.

The Muslim community vehemently opposes the move by the government and they all say that
UCC would violate their personal laws gravely and would thus result in irreversible damage to
their religion and the laws therein.

 Fear of loss of identity of minorities

The minority communities often feel that the majority personal laws would be codified
uniformly which will somewhere hinder their recognisition and representation in the
country .

 Wide gap between statutory prescriptions and the practices of people

Triple talaq-An alarm for the muslim women to welcome UCC

Triple Talaq also known as talaq-e-biddat is a form of Islamic divorce which includes the
practice of a muslim man to legally divorce his wife by stating the word talaq three times
in oral,written or more recently,electronic form.This practice has been very controversial
as it violates the concept of gender justice.

After a long span of controversies ,the Supreme Court in the historic judgement of
Shayara Bano’s Case8 banned the practice of triple talaq and held this practice as
unconstitutional and against the teachings of Islam.

In this particular case,the 36 year old Shayara Bano approached the court as her husband
sent her a letter with talaq written thrice and left her. The petitions of 4 other women
Ishrat Jahan,Gulshan Parween,Aafreen Rehman ,Atiya Sabri were tagged with Bano’s
petition.The 6th petitioner was Bhartiya Muslim Mahila Andolan.

The Judiciary once again reminded the Parliament that there is an urgent need of
implementing UCC to do away with practices of triple talaq and halala which violates

8 Shayara Bano v. Mohd. Ahmed Khan(,1985 SCR (3) 844).

 the basic human rights and dignity of muslim women thus discriminating them from the
women belonging to other religions.

Guidelines and Recommendations

 The process of preparing and implementing the uniform civil code should be a
legislative function rather than judicial

 There must be parallel application of civil and religious laws.

 There must be a gradual implementation of UCC as a drastic change can not be

put into the civil life of the citizens overnight.

 There must be inter-community and individual mediation.

Conclusion
The Indian State has the necessary statutory bedrock for the implementation of the Uniform Civil
Code and it should be enforced. It will lead to true equality among the citizens as its existence
will strengthen gender justice, without which there can be no equality at all.
Women empowerment in core areas like social status, gender bias, health, security and
empowerment are of urgent necessity. Article 44 expects from the State to secure a Uniform
Civil Code for all citizens of India. There is no Uniform Civil Code in India but a Uniform
Criminal Code exists. The Criminal law is equally applicable to all citizens irrespective of their
religious affiliation. However in the case of civil law particularly in the matter of personal laws
there is no uniformity.

The law is relating to marriage, divorce, maintenance, guardianship and succession governing
the Hindus, Muslims and Christians etc., is different and varies from one religion to other. This is
the time to discuss all the personal law of every community with the various judgments of the
Supreme Court of India where the apex court has suggested to the Central Government for the
enactment of a Uniform Civil Code.
It is necessary to emphasise that the word "uniform" in the uniform civil code is not meant to
homogenise the lifestyles and identities of Indian citizens but to ensure that certain fundamental
rights to equality and liberty are protected for them by the Indian state.9

9 Available at: https://www.dailyo.in/politics/uniform-civil-code (visited on June 4, 2018).

BIBLIOGRAPHY

 BOOKS

1. K.C.JENA ;Uniform Civil Code (2007) Jain Book Depot

2. Hiram Chodosh,Shimon Shetreet ;Uniform Civil Code for India; 2015 Oxford
University Press
 WEBSITES
1. www.lawyersclubindia.com
2. www.livelaw.com
3. www.indianexpress.com
4. www.manupatrafast.com