Chapter - 1

Introduction :

Governance is a comprehensive term encompassing several functions ranging from

anticipating the response of stakeholders to devising strategies to ensure that the desired goal
is achieved. The present debate on uniform civil code (hereinafter referred to as UCC) has
attracted attention from every nook and corner of this nation. It is pertinent to note that in a
nation where diversity is its unique feature, uniformity in the laws, nay, personal laws,
becomes a herculean task for obvious reasons. The enactment of UCC can be seen as an end
which has certainly not been attained but it is necessary to deliberate whether we have
started our journey towards a UCC and if yes, how much ground has been covered? Another
issue that needs to be grappled with is the feasibility of having an end which is termed as
“Uniform Civil Code”.

Law is dynamic in nature and the legislature is expected to be well versed with the ever
changing nature of society and accordingly to devise an appropriate legal framework.
Judiciary through its ancillary function is also competent to create law in certain
circumstances. It is as clear as day light that the legislature and the judiciary have performed
their role effectively to a certain extent. With reference to uniformity in personal laws, several
legislations exist which are clear examples of uniformity irrespective of the religion of the
stakeholders.

The above mentioned phenomenon compels the authors to delve deep into the details of
governance with special reference to the existing legislations through which partial
uniformity in personal laws has been achieved. The researchers intend to deliberate over the
question whether public opinion through consultations was sought before introducing a
particular legislation, any criticism of the same and also the response of the then government
to it.

In the penultimate Section, the authors intend to examine if the goal of having a UCC can be
achieved through understanding how uniform laws dealing with personal laws have existed
thus far and also if the benefits of having a UCC can be accomplished without actually
enacting one.
Chapter - 2

Meaning of Uniform Civil Code :

Uniform civil code basically, precisely and in a lay man’s language means one country one
rule, legally the term civil code means to cover the entire body of laws governing rights
relating to property and otherwise in personal matters like marriage, divorce, maintenance,
adoption and inheritance.Uniform civil code essentially means unifying all these “personal
laws” to have one set of secular laws dealing with these aspects that will apply to all citizens
of India irrespective of the community they belong to,though an exact figure has not been
painted yet but Though the exact contours of such a uniform code have not been spelt out, it
should presumably incorporate the most modern and progressive aspects of all existing
personal laws while discarding those which are retrograde. Basically uniform civil code is a
try to give the whole picture a more regulated and systematic look.

In India, we have a criminal code that is equally applicable to all, irrespective of religion,
caste, gender and domicile. However, a similar code does not exist especially with respect to
divorce and succession and we are still governed by the personal laws. These personal laws
are varied in their sources, philosophy and application. Thus, a major constraint arises while
bringing people governed by different religions under one roof.

Article 44 of the Constitution of India declares that “The State shall endeavour to secure for
the citizens a Uniform Civil Code throughout the territory of India.”

A uniform civil code administers the same set of secular civil laws to govern all people
irrespective of their religion, caste and tribe. This supersedes the right of citizens to be
governed under different personal laws based on their religion or caste or tribe. Such codes
are in place in most modern nations.

Though Dr. B.R. Ambedkar was an extensive supporter of the Uniform Civil Code, he couldn’t
get it through more than a status of Directive Principle due to opposition from the members.
This directive principle is aimed to achieve, gradually, rather than at once, more far-reaching
equality for all citizens. The state has been entrusted with this voluminous task. However, no
significant steps have been taken by any government till now.

Chapter : 3

Uniform Civil Code before Independence:

The debate for a uniform civil code dates back to the colonial period in India. The Lex Loci
Report of October 1840 emphasised the importance and necessity of uniformity
in codification of Indian law, relating to crimes, evidences and contract but it recommended
that personal laws of Hindus and Muslims should be kept outside such codification. According
to their understanding of religious divisions in India, the British separated this sphere which
would be governed by religious scriptures and customs of the various communities (Hindus,
Muslims, Christians and later Parsis). These laws were applied by the local courts
or panchayats when dealing with regular cases involving civil disputes between people of the
same religion; the State would only intervene in exceptional cases. Thus, the British let the
Indian public have the benefit of self-government in their own domestic matters with the
Queen’s 1859 Proclamation promising absolute non-interference in religious matters. The
personal laws involved inheritance, succession, marriage and religious ceremonies. The public
sphere was governed by the British and Anglo-Indian law in terms of crime, land relations,
laws of contract and evidence—all this applied equally to every citizen irrespective of religion.

Throughout the country, there was a variation in preference for scriptural or customary laws
because in many Hindu and Muslim communities, these were sometimes at conflict;such
instances were present in communities like the Jats and the Dravidians. The Shudras, for
instance, allowed widow remarriage—completely contrary to the scriptural Hindu law.The
Hindu laws got preference because of their relative ease in implementation, preference for
such a Brahminical system by both British and Indian judges and their fear of opposition from
the high caste Hindus. The difficulty in investigating each specific practice of any community,
case-by-case, made customary laws harder to implement. Towards the end of the nineteenth
century, favoring local opinion, the recognition of individual customs and traditions
increased.

The Muslim Personal law or Sharia law, was not strictly enforced as compared to the Hindu
law. It had no uniformity in its application at lower courts and was severely restricted
because of bureaucratic procedures. This led to the customary law, which was often more
discriminatory against women, to be applied over it. Women, mainly in northern and western
India, often were restrained from property inheritance and dowry settlements, both of which
the Sharia provides. Due to pressure from the Muslim elite, the Shariat law of 1937 was
passed which stipulated that all Indian Muslims would be governed by Islamic laws on
marriage, divorce, maintenance, adoption, succession and inheritance.

Chapter : 4

It’s Scope and Practicability

i. Modern State and Uniform Civil Code:

Every State which has any claim to civilised jurisprudence has or aims to have
a uniform Civil Code to govern its citizens. Such a Code is the rage of the
times and the fashion of modern democracies. Be the type the American, the
European or the Asiatic, every enlightened Government seeks to
simplify and synthesise its laws of person and property into a pattern of
uniformity and harmony which can stand the test of time and satisfy the demands
of justice. Even countries like Egypt and Turkey whose inhabitants could till
recently be said to have been rather fanatically attached to the precepts of
Islam and the crude customs and conventions of their forbears, shook themselves
 free from the shackles of religious conservatism, and emulated the more
progressive nations of the West in changing and shaping their laws in conformity
with modern ideas and ideals. In the far East, Japan manifested a phenomenal
readiness to imbibe the western notions of
Statecraft and Government, and moulding and modelling its laws with reference to
progressive principles of the West, it is now in a position to boast of
a uniform Code of civil laws which has done away with
discriminations and differences having its justification on the fundamentals of
justice or the needs of the Nation as a whole. Viewed in this globular context it was
proper and fitting that the framers of the Indian Constitution have set down as one
of the directive principles the enactment of a uniform Civil Code for the whole of
India in Art. 44 of the Constitution as follows: “The State shall endeavour to secure
for the citizens a uniform Civil Code throughout the territory of India.”

ii. Advantages of a Uniform Civil Code :

The advantages that flow from having a uniform Civil Code for the whole Nation
are obvious and manifold. In a country like India which during a succession of
centuries had come to be the home of numerous communities of different races,
creeds and culture, the population now consists of heterogenous sections whose
personal laws, religion and sentiments are so very divergent that unless every
attempt is made strenuously and at once to discover and emphasise the points of
agreement between them, the gulf that divides each section from every other may
in the long run become so unbridgeable that the fond hope of many of the leaders
for establishing a coherent and consolidated nation will become a forlorn one. It
requires little reflection to concede that there cannot be a more potent influence in
this desirable direction of unifying the nation than the framing and enacting of
a uniform Civil Code. Such a measure will accustom the people to think in the terms
of one law for all of them and ere long induce them to forget their mutual
differences and diversities of custom and community. It will conduce considerably
to the reduction of litigations in the country, the enormous volume of which as it
obtains today is due mainly to divergent laws governing the various
communities and castes and the different interpretations of the same law in
different provinces. To contemplate various personal laws differing from place to
place and from the adherence of one religion and another with all their
 confusions and complexities, worse confounded by the conflicting cases that had
sought to interpret them in the past, is not what a true patriot can indulge in with
equanimity. Uniformity in Civil Codes have the further advantage of doing away
with the anomalies that would otherwise exist between
community and community, anomalies operating advantageously to one section of
citizens and detrimentally to another section of the citizens. More than all it will
develop in the long run a consciousness among the people that they are all one,
that they
belong to one nation and that when an emergency arises they should, in the words
of Daniel Webster in his address at Birkenhill “think of their country, their whole
country and nothing but their country.” It is therefore easy to see why every
modern State has placed in the forefront of its progressive programme the
enactment of a uniform Civil Code as one of its main and major objectives. Such
uniformity in the governing law conduces to the consolidation and coherence both
in the social and political aspects of citizenship so necessary for the
peace and prosperity of the nation. As every one knows, the history of India has
been the history of the people torn by internecine and inter-communal
strife and differences which has prepared the land as a hot-bed of helotry under
foreign dominations. If the subjects of India should rule out the possibility of
fresh and further enslavement under a foreign power, no better, no safer and no
more sensible method of achieving that aim can be conceived and contrived than
by the one, visualised in the Article of the Constitution of India above mentioned.

iii. Criticism based on religion :

It is a matter of common knowledge that whenever a reform was proposed in the
personal law of the people, however desirable the reform might have been, there
were not people wanting to raise the slogan of religion in danger and gather
support to their agitation by an appeal to the ignorance and prejudice of the
masses, But it is the verdict of history that on every one of those occasions sense
ultimately triumphed over sentiment and the opposition soon flagged and faded
away. It may be fairly expected that a proposal for a uniform Civil Code will
encounter initially some-Opposition and hostility but that the measure will finally
be accepted as a salutary fait accompli is beyond question. In the meantime,
however, there would be the usual purblind and pernicious propaganda inspired by
age long sentiments and goaded by religious fanaticism which may try the
patience and tax the resources of those in charge of the measure. The situation that
may develop out of such opposition will require very delicate,
careful and sympathetic handling. Very often the hostilities honest though ill-
informed can be easily stilled by sincere and sustained effort to educate the people
that the fear of interference with the religions has little justification to support it. It
is no doubt true, as Frederick the Great observed, that every man should have an
unfettered freedom to choose his own way of going to Heaven; but what has that to
do with what the law one may require on earth with reference to his temporal
matters here below, for the good of himself and the happiness of those amongst
whom he lives and moves and has his being? How can a law laying down the line of
succession different from the one hereto prevailing detract him from what he
conceives to be the straight path to Heaves which he has chosen for himself? How
does a uniform Civil Cede governing, for instance, both Hindus and Muhammadans
in matters of personal law, interfere with the religion of the one community or the
other or in any innocent or reasonable
way with the adherence of one's religion proposed to placate or propitiate one's
Gods or Goddesses. The separation of secular matters from matters
of religion should be complete and clear-cut. As was observed by Mr. Justice
Rutledge in Everson v. Board of Education (1) the realm of religious belief remains
the kingdom of individual man and his God and should not be confounded with
what the Legislature may legitimately take over into the public domain. In the
same case Mr. Justice Black points out the necessity for the existence of a wall of
separation between the secular affairs of the State and the religious affairs of the
citizens. In Davies v. Veason (2), Mr. Justice Field observes as follows:
“With man's relation to his maker and the obligations he may think they may
impose, and the manner in which an expression shall be made by him of his beliefs
in these subjects no interference can be permitted, provided always the laws of
society designed to secure its peace and prosperity and the morals of the people are
not interfered with; the proviso underlined which excepts the secular law from the
domain of religion is of great significance and shows how the cry of religion in
danger as against a salutary secular legislation is nothing but a cry of
ignorance and prejudice.”
These principles are embodied in Art. 25 of the Constitution of India, which runs as
follow:
“(1) Subject to public order, morality and health and the other provisions of this
Part all persons are equally entitled to freedom of conscience and the right to
freely profess, practise and propagate religion:

(2) Nothing in this Article shall affect the operation of any existing law or prevent
the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice;
(b) providing for social welfare and reform …………”

This Article merely postulates the freedom of religious belief which is no doubt
basic in the society of free men, but does not leave to individuals of the
communities an absolute right to make final decisions, unassailable by the State as
to every thing they will or will not do. Religious faith however honestly held, does
not free individuals from responsibility to conduct themselves obediently to laws
which are either necessary to protect society as a whole or conducive to its
welfare and happiness. Board of Education v. Barnette (3). In other words,
while religion is outside the sphere of political Government this does not mean that
all matters to which religious organisations may be connected in the least are
outside the sphere of governmental regulation and control. The validity of secular
laws cannot be sought to be measured by their conformity to this or that Code of
religious doctrine, and since the makers of our Constitution contemplated a secular
State and since ecclesiastical doctrine cannot measure legal right or wrong except
in a theocratic State which ours is not, the freedom of religion which is vouchsafed
to the subject under the above Article cannot be any protection or bar against the
State undertaking the legislation in secular matters, though in respect of such
matters a particular religion may contain rules or directions for
observance and adherence. It is hence clear that a uniform secular law to govern
the followers of different religions with reference to purely temporal matters is not
open to attack of interference with religion merely because in the scriptural books
of any particular religion the distinction between religious and secular incidents
are blurred, confused and combined as apparently identical or indivisible.
 iv. Scheme and scope of the Code :

The scheme that is to be adopted for framing a uniform Civil Code should as far as possible
conform to the basic principles of the existing personal laws so that the changes introduced in
those laws may not appear as violent inroads into them. Such a process will tend to dispel the
apprehensions of the conservatory sections of the people that the Legislature is out to
demolish and destroy their cultural and social background and introduce
strange and outlandish innovations which have no root in their age long institutions. When
the proverbial unchanging East is made to change, it must be by methods which do not cut
away altogether the old moorings but profess to preserve them to the extent possible. Besides,
the principles to be imported and grafted into the new code should be so drawn from the
divergent systems of existing personal laws that an impression that an undue weightage has
been given to one system as against another ought not to be created. Though the
usages and customs of India have not stood still and have been growing and changing owing
to the impact of outside influences and contacts, there is an instinctive reluctance to sudden
innovations, and it therefore behoves the framers of the Civil Code to respect this reluctance to
the extent possible and to so adapt the existing laws as to create the least disturbance in them.
If from this stand point one examines the main branches of the various personal laws that are
now extant in the land of Bharat one may not find it difficult to define and delimit the scope of
their applicability as follows:

Applicability:— The Civil Code shall apply to all persons domiciled in Bharat.

Marriage:— The only marriage that is recognised by the Civil Code is a marriage
registered before the Registrar of Marriages. The eligibility for marriage is governed by S. 2 of
the Civil Marriages Act, and the rules for the dissolution of marriage and divorce between the
spouses are the same as those under the Indian Divorce Act.

Adoption:— Every person, whether male or female, is entitled to adopt a boy provided the
adoptee has no male issue at the time of the adoption, and the person adopted shall have all
the rights of a son born to the adopter. If subsequent to the adoption, a son is born to the
adopter, the adoptee will take half the share which he would have taken had he been an
aurava son of the adopter. The adoptee will however not lose his right in his natural
family, and except for his right to inherit to his adoptive parent he will be considered for all
purposes as if he still remains the member of his natural family. The right to inherit to the
adoptive father extends to inheritance to such father's wife provided she was alive at the time
of the adoption and has consented to the same. The same rule applies to an adoption by a
woman and the boy adopted would inherit to her husband if he has consented to the adoption
either at the time of the adoption or before the adoption and that consent has not been
previously revoked.

Guardianship:— The existing Hindu law of guardianship applies to every citizen of India,
but the rules relating to the position and powers of a de facto guardian shall have no
operation. No person is entitled to be the legal guardian of a minor except his father and in his
absence his mother, except under an appointment by Court, and minority for all purposes
extends upto the completion of 18 years of age. The legal guardian is also the guardian for
giving the ward in marriage.

Maintenance:— Every person of means is legally bound to maintain his aged

parents and minor children who
are not able to help themselves, and a wife is entitled to be maintained by her husband
irrespective of his possession of means so long as he is not physically unfit and disabled to
earn a living. This right of the wife, the child or the parent to be maintained is not enforceable
if the person claiming the maintenance has the means to maintain herself or himself. The
other indigent relations have only a moral right to be maintained, which moral right will
ripen into a legal one as against the heirs taking the property of the person under the moral
obligation to maintain. Immorality and illegitimacy will have no recognition, and neither a
concubine nor an illegitimate son will have any status or right in law.

Law of the joint family:— Every person, whether male or female is the absolute owner of
the property acquired by him or her by inheritance or any other means and shall hold the
same without a right by birth or survivorship to any other relation. Where the property is held
at the time of the commencement of the Civil Code by the members of a Mitakshara
coparcenary, they shall continue to hold the property as tenants-in-common without the right
of survivorship amongst themselves or the right by birth of a future son or coparcener that
may subsequently be born into the family. So long as the members of the family continue to
hold the property as joint tenants, the relations that govern them inter se with reference to
such common property shall be the same as those that govern the co-heirs taking the property
of a deceased Mahomedan under the Islamic law of inheritance, and an alienation by one of
them alone will be binding only on his share except when the alienation has been made by one
who is in charge and management of the common property and is for a purpose binding on
the entire estate on the ground of necessity as distinguished from the ground of benefit.

Succession:— The rules of succession both testamentary and intestate shall be the same
as those prescribed by the Indian Succession Act, and the rules of succession and inheritance
now obtaining amongst the Hindus and Mahomedans under their personal laws shall no
longer operate.

v. Effect of the above rules on existing personal laws :

There can be no gainsaying that a uniform civil code on the lines above suggested would
effect vital and far-reaching changes in the existing personal laws of the people. But having
regard to the obvious advantages of such a code, the price is certainly worth paying. At the
same time it can be demonstrated without difficulty that the introduction of the changes
envisaged in such a Code results in the least interference with the religious sentiments of the
people and allows them free scope to satisfy their religious conscience and scruples by sticking
to the sacramental features of their pet institutions like marriage and adoption. For instance,
though the marriage under the Civil Code is reduced to the status of a civil contract without
the trappings of orthodoxceremonials and the paraphernalia of a Hindu, there is nothing to
prevent a Hindu conservatively inclined to indulge to his heart's content in the
forms and rituals laid down in the scriptures of his religion, and the requirement that the
marriage should be registered in the register of marriages is not going to interfere with his
ceremonial indulgence. The same thing can be said with reference to the rites and practices of
an orthodox adoption. The Civil Code only aims to give a secular turn to these
institutions and removes some of the sastraic prohibitions. No Hindu is put under any
restraint to ignore, for instance, the bar against sagotra marriage, or against the adoption of
a sastraically prohibited boy. There is no penalty imposed under the Civil Code for observing
those prohibitions; only what the Code says is that the contravention of the prohibition will
not invalidate the act in law.

If one should sum up the gains of the Hindus from the enactment of a uniform Civil Code on
the lines adumbrated above it cannot be said
that the advantage derived is inconsiderable. The joint family system with its incidents of
survivorship and pious obligation has been found to be ill-suited to modern conditions and is
deservedly thrown into oblivion. The confusing principles of inheritance with baffling
anomalies of bandhu and stridhana succession give place to a well-tried body of rules
embodied in the Indian Succession Act based upon fundamentals of natural
affection and justice. And there is the invaluable incident of divorce engrafted into the
marriage law, an incident so much clamoured for by the advanced section of Hindu
women. And last but not least, the daughters get equal rights with sons, a change much in
excess of the favoured position accorded to women in the Islamic law. The doing away with
the much criticised woman's estate around which has clustered a large body of confounded
case-law and costly litigation is a relief for which the Hindu population cannot be sufficiently
thankful. Coming to the next big section of the Indian people, namely the Mahomedans, the
reckoning of the advantages gained by them is equally gratifying. Their ill-conceived
marriage laws with their indefensible rules for divorce and temporary alliances give place to
just and simple rules of marital relations approved and adopted by practically all the civilised
nations of the world. And they also gain the institution of adoption which will be welcomed as
a desirable displacement of the quaint and not altogether simple institution of
acknowledgment of legitimacy. As regards the succession what has been already said with
reference thereto in relation to the Hindus applies with greater force and appropriateness to
the Mahomedans. It is a matter of common experience with most students how much their
mathematical brains must have been exercised over the baffling fractions of the respective
shares to be calculated especially when a crowd of remote relations claiming through
different collateral branches gather to tear the deceased's estate to shreds. On the whole
therefore it is permissible to postulate that even from the point of view of profit to the
Mahomedans, the uniform Civil Code on the lines above given must be a welcome
measure. And so far as the Christians are concerned it requires little reflection to conclude
that they cannot possibly have any grievance, for practically their entire law of
testamentary and intestate succession and their laws of marriage and divorce have been
adopted into the Civil Code. Hence if in the face of these obvious advantages to all parties
concerned by the enactment of a uniform Civil Code on the above lines, there is still some
opposition in some quarter, it must be attributed to chronic ignorance and unenlightened
sentiment and prejudice which has resolved to shut its eyes to the obvious and has decided not
to be convinced.

vi. Practicability of a uniform Civil Code :

From what has been already stated it is clear that there can be little difficulty either in
framing a uniform Civil Code which will be acceptable to all the sections of the Indian people
or in enforcing its provisions as against them. That such a thing is proper and practicable has
been accepted by the entire nation assembled through their accredited representatives in the
Constituent Assembly which framed the Constitution of India, as otherwise Art. 44 of the
Constitution which says “The State shall endeavour to secure for the citizens
a uniform Civil Code throughout the territory of India” will not be there. The foregoing
discussion discloses how such a Code is both desirable and necessary at this turning point in
our country's history, and that there can possibly be no practical difficulties in inducing the
people to accept such a Code as conducive to their own happiness and the consolidation of the
Nation as a whole.

Chapter : 5

Uniform Civil Code : Panacea or a Problem

i. Interplay Between Article 25, Article 14 And Article 44 Of The Constitution Of India :

The most debated and discussed provisions in the Constitution of India relate to the
freedom of conscience of all persons and the provision guaranteeing the right to Equality
along with the DPSP which imposes a duty
on the State to endeavour to enact a Uniform Civil Code. These provisions are often quoted as
intellectual thorn. The Harmonious construction of these provisions is indeed a complex issue
which has been deliberated and cerebrated for years. Establishing a practically feasible nexus
has been a complex issue which has been deliberated and cerebrated for years.
Each religion in the name of right to conscience and to culture has been given the right to
govern their personal matters (marriage, divorce, succession, etc.) in accordance with their
own religious personal laws. The Constitution also guarantees the right to equality which
includes equality before the law as well as equal protection of the laws within the territory of
India.1 The right guarantees not only formal equality but also substantive equality. 2 The
Constitution thus implies that the State is obliged to treat unequals unequally and equals
equally and to enact provisions to help underprivileged groups progress.3 There has been a
constant tussle between these two rights and no concrete solution to this quandary has been
found yet. It has been argued by many that the enactment of a Uniform Civil Code (which is a
Directive Principle of State Policy4) would result in attaining justice and equality for women.
Others argue that enactment of a UCC would be violative of their right to practice
their religion. Thus far, a Uniform Civil Code has remained a distant dream.
 The root of this apparent conflict between the fundamental right to equality and the
right to practice one's religion is the question: what happens when religious practices
themselves discriminate and violate certain people's rights? Which of the two rights is to
be given precedence?

The courts have in certain decisions held that the word “law” in Article 13 of the Indian
Constitution does not include personal laws and hence personal laws cannot be challenged on
the ground of violation of fundamental rights.5 However, these were cases where traditional
personal laws were in question. In Narasu Appa Mali case, the applicability of the Bombay
Prevention of Hindu Bigamous Marriages Act to only Hindus was challenged while in the
Ahmedabad Women Action Group case the court had to decide if Muslim personal law which
allows for polygamy and unilateral
divorce through talaq is violative of Articles 14 and 15 of the Indian Constitution. In other
decisions, the courts have considered challenges against personal laws on the ground that
they are violative of fundamental rights and either struck down the provisions or read them
down. For example in Mary Sonia Zachariah v. Union of India6, Section 10 of the Divorce Act
was challenged on the ground that it was violative of Articles 14, 15 and 21 of the Indian
Constitution. The Kerala High Court dismissed the argument that personal laws do not come
within the ambit of Article 13 and hence cannot be declared ultra vires by drawing a
distinction between cases that are directly concerned with a particular provision in an
enactment passed by the legislature and traditional personal laws. It held that “so long as the
infringed provisions are part of an Act, it must pass the test of constitutionality even if the
provision is based upon religious principles.” The Court considered the challenge to Section 9
of the Hindu Marriage Act in Saroj Rani v. Sudarshan Kumar Chadha7 on the ground that it
violated Articles 14 and 21 of the Constitution of India. It eventually held that the provision
providing for restitution of conjugal rights did not violate any fundamental right. In John
Vallamattom v. Union of India8, the Supreme Court dealt with a challenge against Section 118
of the Indian Succession Act, 1925. The particular Section put an embargo on bequeathing
property to religious or charitable uses. One of the grounds of challenge was that the said
provision applied only to Christians and hence violated Article 14. The court held that “there
cannot be any unusual burden on Christian testators alone when all other testators making
similar bequests for similar charities and similar religious purposes are not subjected to such
procedure” and struck down the provision.
It can be deduced from the judgments discussed in the preceding paragraph that statutes
defining personal laws are required to be tested on the touchstone of fundamental
rights and they do fall within the ambit of “laws” under Article 13 of the Indian Constitution
but traditional personal laws may not fall within the same category 9.

Article 44 of the Constitution of India becomes important here because if a UCC is

enacted and if it assures that the right to equality is not violated and if it is accepted by all, it
would provide a solution to the contradiction between Articles 14 and 25. It falls under the
Chapter on Directive Principle of State Policy. It states that the State shall endeavour to
secure for citizens a uniform civil code throughout the territory of India.
A Uniform Civil Code is a Code which would be applicable to all persons irrespective of
their religion and would thus do away with discrepancies between different
personal laws. It has been a sensitive issue as some people argue that
a Uniform Civil Code would violate the principles of secularism. It has also become a major
political issue.

The Constituent Assembly debates are testimony to the fact that the Uniform Civil Code was a
contentious issue even at that time. Raj Kumari Amrit Kaur, Hansa Mehta and M.R. Masani
were in favour of making the provision of Uniform Civil Code a Fundamental Right instead of
a Directive Principle of State Policy as the existence of various personal laws was one of the
main reasons for keeping India divided.10 Mohamed Ismail Saheb and B. Pocker Sahib took the
other extreme view. They wanted to retain the provision as a Directive Principle of State
Policy and also desired to insert a proviso after the main article to ensure that any group,
section or community of people would not be coerced into giving up its own personal law to
protect the right to religious practice11. Consequently, they opposed the very introduction of
a Uniform Civil Code. A middle position was taken by people like K.M. Munshi and B.R.
Ambedkar who believed that a Uniform Civil Code ought to come into existence but only with
the consent of the communities.12

Ultimately, the onus was put on the State to bring in a UCC whenever it felt right in its
wisdom. Laws can be imposed from the top but a UCC stands on a different footing because it
has the potential of overhauling personal laws and thus, taking away the right of people to
practice their religious practices. Striking down a provision from a personal law for being
against the right to equality is not the same as altering entire personal laws. And thus, a UCC
can only be achieved if it is arrived at between different communities of people by
consensus.13 And until such a consensus is not reached, any endeavour to realise the goal
of uniform civil code will not only remain unsuccessful but will also be inconsistent with the
Constitution.14

A cumulative reading and analysis of the concerned articles of the Constitution demonstrates
that the statutes codifying personal laws are subject to fundamental rights and State's
obligation to enact a Uniform Civil Code would depend on its acceptability. Until then, as
illustrated in the following sections, uniform personal laws help in dealing with the problems
of having multiple personal laws.

ii. Uniform personal laws: imposition, internalisation or a mix ?

The issue of UCC is certainly delicate and it is almost impossible to enact it in the near
future. At the same time, it cannot be denied that certain personal law provisions are
unfair and violative of the right to equality15. Either these provisions can be challenged in the
courts and struck down (or read down16) or the legislature can enact laws that override them.
Fortunately, regressive laws which are violative of the Constitution are being amended, new
liberal laws are being enacted and these changes are being accepted by the society. Most of
the new laws enacted are secular in nature, i.e. they are applicable to people of all
communities and override the personal laws. Dowry Prohibition Act 1961, Prohibition of Child
Marriage Act 2006, Juvenile Justice Act 2000, Section 125 of the Criminal
Procedure Code 1973, Medical Termination of Pregnancy Act, 1971, Special Marriage Act
1954 and Indian Succession Act 1925 are examples of laws that are applicable to all people
irrespective of their religions. Some of them are mandatorily applicable17 while some of them
give the freedom to the parties to choose if they wish to be governed by them 18.

These secular provisions and laws fall in the realm of personal laws and hence can be referred
to as “uniform personal laws”. These do not form a Code and are not comprehensive but they
effectively deal with one aspect at a given point of time.19 Some of these Acts would be
discussed in this part.

Marriages under the Hindu Marriage Act are valid though punishable 20 and marriages under
Muslim Law are valid if contracted after the parties to it have attained the age of puberty or if
they have been given in marriage by their guardians. Under both laws, marriage can be
dissolved if the option of puberty is exercised by the girl 21 but there is no option of annulment
of marriage. However, with the enactment of the Prohibition of Child Marriage Act, 2006, all
child marriages are voidable if the petition is filed before the child completes two years of
attaining majority22. Thus, a secular law overrides personal laws.23
Similarly, now all persons including Muslims are free to adopt children under the Juvenile
Justice Act, 2000 even though their personal laws might not permit adoption. 24 The Juvenile
Justice Act affects Hindu law dealing with adoption also. The Hindu
Adoption and Maintenance Act, 1956 forbids adoption of a son if a Hindu son, son's son or
son's son's son (whether by legitimate blood relationship or by adoption) is living at the time
of adoption and the adoption of a daughter if a Hindu daughter or son's daughter (whether by
legitimate blood relationship or by adoption) is living at the time of adoption 25. However, a
Hindu is free to adopt any number of sons or daughters under the 2000 Act if the child is
orphaned, abandoned or surrendered26.

It is pertinent to mention here that an Adoption Bill was introduced in the Parliament in
1972 and the introduction rekindled the debate on UCC. It could not be passed because of
opposition by Muslims. Muslims claimed that adoption was against the tenets of
Islam and even if the Act was voluntary it would enable Muslims to act against the Quran 27.
This resistance from the Muslims (the scheduled tribes also resisted but for different reasons)
was based on the fear that Hindu law was being forcefully imposed on them.

It is hard to ignore the irony here. While the Adoption Bill received stiff opposition, the
Juvenile Justice Act did not. It can be argued that the latter was enacted primarily due to the
mounting pressure on the Indian
government to submit a Country Report to the Committee on the Rights of the Child
highlighting concrete accomplishments. The Act was to protect the interests of children in
conflict with law and not to enable adoption per se. Hence, it was not seen as a legislation
touching upon personal laws even though it actually did so.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 puts a legal obligation
on children or relatives to maintain senior citizens. This is a secular act entitling all senior
citizens to claim maintenance to help them lead a normal life. Personal laws consider it a
moral obligation to maintain elderly parents. Under Hindu law, children are under a statutory
obligation to maintain aged parents if they are unable to maintain themselves28. Step parents
except childless step mothers are not entitled to any maintenance under Hindu Law29. Muslim
law entitles parents unable to maintain themselves to obtain maintenance from their
children. This obligation is based on the fact that parents come under prohibited degrees of
relationship. However, the secular 2007 Act entitles senior citizens to claim maintenance from
not only their children (biological, adopted or step children) but also other relatives, if s/he is
childless. It thus, broadens the rights of the elderly and does not force them to take recourse of
their personal laws.

The Medical Termination of Pregnancy Act, 1971 has made abortion under certain
circumstances legal. This, too, is a secular law applicable to all women irrespective of
their religion. The legislation was opposed during the Lok Sabha debates by Muslims on the
ground that it undermined the moral fibre necessary for nation building.30 The reason behind
the successful passing of 1971 Act was that it was not the result of any mass movement or the
brain child of any political party. It was a more of a government measure to control
population.31 Therefore, there was no popular debate on the Act and even though the Act was
passed with ease (because the Congress was in majority), the attitude towards the Act was
rather pessimistic.32

The Dowry Prohibition Act, 1961 is another example of a uniform law that affects personal
law. The Act was enacted to get rid of the social malice of dowry. It explicitly excluded dower
or mahr from definition of dowry33, thus, insulating itself from any opposition from Muslims.
The
effect of this exclusion is debatable. It has been argued that it has resulted in demand of heavy
dowry amongst Muslims leading to Muslim fathers being coerced into giving multiple
daughters to the same man.34

The legislations discussed above have been enacted for the welfare of children,
women and elderly persons. The religion of the persons is inconsequential and even though
marriage, adoption, maintenance, dowry and abortion are matters of personal laws, they are
now dealt with by secular laws.

iii. Judiciary as an instrument of social engineering vis-a-vis uniform personal

laws :

Legislation is only one mode of creating uniform personal laws for all. The judiciary plays
an important part too. The interpretation given to Section 125 of Criminal
Procedure Code and Section 3 of the Muslim Women (Protection of Rights on Divorce) Act,
1986 is an ideal example to demonstrate the judiciary's role. The Court has always applied
Section 125 to Muslim women35 and there was no major opposition to this application.
However, post Shah Bano case36, there were a lot of protests against the interpretation of the
Court. The Muslims opposed the Court's interpretation of Quran and demanded religious
autonomy in the matter. To appease the Muslims, the Rajiv Gandhi government enacted the
Muslim Women (Protection of Rights on Divorce) Act, 1986 which stated that the husband is
obligated to provide reasonable and fair provision and maintenance to his divorced wife
within the iddat period. In Danial Latifi v. Union of India37, the Supreme Court gave a
beneficial interpretation to this Section and held that the husband is obligated to maintain
the wife until they die or remarry. The provision was held to merely mean that this obligation
is to be fulfilled within three months of the divorce. The court thus, upheld the
constitutionality of the 1986 Act by ruling that it actually provided more protection than
Section 125 of CrPC and consequently did not violate the right to equality of Muslim women.
The Supreme Court has now gone a step further by holding that a divorced wife can claim
maintenance under Section 125 of CrPC even after the expiry of the iddat period. 38 Not
surprisingly, the secular provision of maintenance is applied even when a special law
applicable only to Muslims is in place.

The Special Marriage Act, 1954 can be put in a slightly different class of secular laws since it is
not necessarily a beneficial legislation for any particular class of persons but allows inter-
religion marriages, thus, blurring the lines between the various personal laws. With reference
to conflict between Islamic Law of Succession and Special Marriage Act, public opinion was
not sought which is in sharp contrast to the questionnaire framed and put in public domain
for UCC39. Persons who choose to be married under the Special Marriage Act are governed by
the Indian Succession Act instead of their respective personal laws. It gives an option to the
parties to have a court marriage instead of a marriage in accordance with religious
ceremonies. A man and woman belonging to the same religion are also free to marry under
this secular law.40

These developments are leading to the enactment of what can referred be to as

“uniform personal laws”. While the passing of Uniform Civil Code still seems a herculean
task and the obstacles in its path remain the same, we have come a long way in ensuring that
all people are subject to the same laws. There might come a time when
a Uniform Civil Code would not be a new law but a compilation of several
scattered uniform personal laws. This might be comparatively an easier feat to achieve
because people would have already accepted these laws.

Chapter – 6
Conclusion :

Whatever be the hysterics of argument that misguided zealots against every change may
indulge, it is the argument of history that when any country in its onward march to progress
reaches a stage when its leaders feel that a change in the law of the
land is necessary (or the consolidation and stability of the nation, that change shall be
effected and enforced however sustained and stubborn the opposition to it may be. It is that
stage that India has reached to-day, and its enlightened leaders whose
patriotism and integrity had been tried through the sacrifices and sufferings in their fight
against the foreign domination feel that a uniform personal law for the whole of India is both
desirable and imperative in the interests of the nation. The foregoing paragraphs have shown
how they are right in this feeling and how sense and sanity on the part of the citizens of India
should welcome and support such a move and measure. After all, changes in the personal laws
were not unknown even to the orthodox Hindus and Mahomedans. The very fact that there
are various schools in each jurisprudence, some, more recent and reformatory than others are
proof positive that Indians are not constitutionally averse to desirable changes. Why then
should there be any apprehension that a uniform personal law will not be welcomed by the
people? Besides, the makers of our Constitution have embodied therein certain Articles which
prohibit discrimination on the ground of religion, sex, etc., and posit equality before the law. If
anything, this is a cogent argument for a uniform Civil Code applicable to all citizens alike,
whether they be Mahomedans, Hindus, Parsis or Christians, an argument
accepted and adopted by the people of India for bringing about this salutary and desirable
measure of national solidarity and consolidation.