INDIAN SECULARISM AND FEASIBLITY OF UNIFORM CIVIL

CODE

SUBMITTED BY
HARSHIT SINGH
DIVISION A BALLB
PRN 1801023057

UNDER THE GUIDANCE

OF
MR. AHMAR AFAQ

IN THE MONTH

OF

MARCH 2020

1
RESEARCH QBJECTIVE

 To determine the relation between the Uniform Civil Code and personal laws and Indian
Constitution.
 To determine whether Uniform Civil Code is feasible in our Country.
 To determine whether Uniform Civil Code uphold the ethos of Indian Secularism.
 To determine the reforms that is required before implementing Uniform Civil Code in
India.

RESEACH QUESTIONS

 What is Uniform Civil Code?

 What is Indian Secularism?
 What are personal laws?
 What is the judicial position of Uniform Civil Code?
 What are the components of Uniform Civil Code?

2
 INTRODUCTION

“India has been a land of a cluster of religions. To name a few the religions that are followed in
the country are Hinduism, Islam, Buddhism, Jainism, Christianity, Sikhism, etc. after the 42 nd
Amendment in the Indian Constitution, India is declared as a secular country. The word
“Secular” was inserted in the Preamble and it said that India will not follow any particular
religion and also the people will not be discriminated on the basis of any religion. Article 25 and
26 of the Indian Constitution gives the right to every individual of follow any religion of his/her
choice and this is a fundamental right. There have been many major conflicts because of religion
and it is also used by the political institutions as a weapon. The partition between India and
Pakistan and the conflict in Israel both took place because of religion.”

“India along with being a land of various religions, it also protects the interest of the people
belonging to different religions. There are personal laws that govern the religions. People who
are Hindus, Sikhs, Jains and Buddhist are governed by the Hindu Marriage Act, 1956 for laws
relating to divorce, marriage, maintenance, etc. in the similar ways Christian and Muslims are
governed by The Hindu Law and Muslim Law, respectively. This also brings in the problem
from the fact that there are differences and discrepancies that are existing within the personal
laws. There are certain provisions in some personal laws that deny the rights of the woman
and there is no uniformity found in the personal laws. This brought Uniform Civil Code
into existence which means one uniform personal law for everyone in the country. 1 The
Uniform Civil Code brought in all the people under one banner without distinguishing them on
the basis of the religion. Article 44 was instituted by the makers of the constitution in this respect
but on the other hand there was opposition to it as it was violative of Article 25.”

“From very beginning or we can say from the time of inception of Constitutionalism in
India the makers of the constitution had the intention to have Uniform Civil Code for the
people of India and the same is given in Article 44 of the Indian Constitution says that the
state shall work towards administering the same set of civil laws to govern people belonging
to different region and religions. 2This paper is about rigorous study of the much discussed and
contentious topic of Uniform Civil Code and its scope and nature for all the people of the
country in spite of their religion, race or ethnicity in compliance with mandate which is given
under Article 44 of the Indian Constitution. The paper starts with an introduction to the Uniform
Civil Code where the concept related to the topic has been defined has been defined including
the origin of the topic. The paper further discusses about the scope and practicality regarding the
topic. Last but not the least, this paper concludes with certain sets of recommendations and
conclusions. There are number of judgments in the Apex court which clearly shows an
inclination towards the establishment of Uniform Civil Code although no concrete steps have
1
7 M. S. Ratnaparkhi, Uniform Civil Code: An Ignored Constitutional Imperative 1, (Atlantic Publishers and
Distributors, New Delhi,1997.)p. 53-54
2
Partha S. Ghosh, The Politics ofPersonalLaw in South Asia 9, (Routledge, New Delhi,2007) p.98

3
been taken with this regard in part due to the unresolved debate regarding the freedom of religion
granted by Article 25 and 26 of the Indian Constitution. However the Supreme Court in its latest
observation clearly mentioned that Uniform Civil Code there is no effect, especially a negative
one, on the right to religion. This paper also includes about the Judgments and the say of Indian
Judiciary on the topic. At last through this paper a clear idea of the topic is mooted keeping in
mind the history of the state, composite culture in relation to the personal laws also the current
political and social scenario.”

4
 UCC: WHAT?
“The main essence of Uniform Civil Code is to have same set of laws that are civil in nature for
each and every citizen living in the state and following different religions. The policy of Uniform
Civil Code is clearly above the fact that the citizens of different ethnicity or religion is governed
by the different personal laws that is based on the religion and the ethnicity of that person.
Article 44 of the Indian Constitution says that “Uniform civil code for the citizens The State
shall endeavor to secure for the citizens a uniform civil code throughout the territory of
India” It is basically having same set of law that belongs to civil nature to govern the people
living in the state that belongs to different religion. The framers of the constitution also wanted a
similar kind of thing that is they wanted common set rules for each and every individual in
matters for divorce, adoption, marriage, inheritance and other matters related to personal laws.
The Controversy of Uniform Civil Code is due to the three way tension that arises. The first
being the tensions due to different political parties that want to use this topic for their benefit.
The Second being the modernist view that says that one law should be implemented all over the
country and every one should be benefitted from it. The last being the imperative view which
says that having a mindset of being politically imperative through which every possible
constituencies is pleased. After so many years of independence still this topic is under the
ambit of Directive Principle of State Policies. The society in which we live is a democratic
one as it is governed by the people who are elected by the people also it comprises of
politician and highly qualified bureaucrats that act as a helping hand of these politicians in
the democratic setup, the last pillar of this framework is an independent judiciary that is
also an important one. 3But still this Uniform Civil Code is embedded in the Constitution in
spite of seeing its applicability and on the ground situations. In our Country religious topics
touches the sentiments of the large number of populations so any decisions with respect to
religion has to be taken with extra care. After the inculcation of communal overtones the merit of
this topic is somehow over shadowed. At last this is one of the Directive Principle of State
Policies that has not been implemented in spite the requirement of the land, of course with some
changes.”

UNIFORM CIVIL CODE AND PERSONAL LAW

“When we talk about the personal laws, the one drawback was that there were no equal rights for
women. If we talk about Hindu Law in the years 1955 and 1996, women were not given equal
rights on any matter. Women were considered to be inferior on any and all matters relating to
decisions like matrimonial, Uniform Civil Code succession, adoption or inheritance. Woman had
no share in the property until and unless it was Stridhan. Among the Hindus, polygamy was
prevalent under Hindu Law. The female had a limited share of estate, on her death the estate was
passed to the legal full last heirs which were called revisionary. She had no right to take

3
ibid

5
decisions on her own relating to desertion of property, mortgaging of property or selling the
property.”

“Women also had no right to adopt a child and during the life of her husband, she could not be a
natural guardian of her own children. This shows how patriarchal society existed in India and
women were deprived of their rights. Even after the Hindu Law was codified we cannot truly say
that now woman have equal rights as men. In matters of coparcenary, Hindu woman is not
considered as a coparcener and has no share in the coparcenary, except in the state like Andhra
Pradesh, Maharashtra, Karnataka and Tamil Nadu. This makes it clear that though Hindu Law is
been codified, it has not eradicated gender inequality, completely from the country.”

“In the Pre Islamic period, woman enjoyed a secondary status to men. The Holy Quran that is
worshipped by the Muslims, it gives woman a respectable position and gives both men and
women equal rights. Even though the Holy Quran does not discriminate there are certain aspects
where woman are insecure and inferior. Muslim men are allowed to marry four times, on the
other hand Muslim women are deprived of this and if they do so questions are raised on their
character. They are labeled as unchaste or impure. In the case of divorce, women do not have the
right to divorce their husbands though it is said in the Holy Quran. The practice of Triple Talaq
was highly discriminative. Although this law was declared as unlawful and void 4. This was
given in the judgment passed by the Allahabad High Court”.

“The Muslim men get twice the share as compared to Muslim women when it comes to
inheriting property of the deceased. Iddat period is the maintenance period for the women and
beyond this period women are not needed to be maintained. There is a controversy regarding
whether the Muslim men are following the law under the Criminal Procedure Code which makes
it mandatory for a man to main his wife or a divorced wife until and unless she maintains herself
under secular law.”

“In the landmark judgment of Mohd. Ahmed Khan V Shah Bano Begum5 the Hon’ble Supreme
Court that spoke through the then Chief Justice Y. V. Chnadrachud held that Section 1256
under the Criminal Procedure Code said that the Muslim men has to maintain his wife beyond
the Iddat period as the Law is applicable to Muslim men also. On the contrary, Muslim Women
(Protection of Rights on Divorce) Act, 1986 was passed which overruled the judgment of Shah
Bano Case and said that it is not mandatory for a Muslim man to maintain his wife unless and
until both of them submit to the Court that they want to be governed under the Criminal

4
Shayara Bano v Union of India and Ors., W.P. ( c ) No. 118 of 2016
5
1985 SCR (3) 844
6
S. 125. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or
refuses to maintain- (a) his wife, unable to maintain herself, or Explanation.- For the purposes of this Chapter,- (a)
"minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to
have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.

6
Procedure Code. This was unjust for the Muslim women because just for the protection of the
Personal Law, women were deprived of their rights.”

UCC: WHY?
“Article 44 of the Indian Constitution says that it is the duty of the state to provide Uniform Civil
Code to the entire citizen. In fact even after so many years of independence we have fail to
established Uniform Civil Code. The fear of breaking down the unity of the nation was looming
around the framers of the constitution after the independence by the introduction of Uniform
Civil Code. Till date the there are several enactments which are against the minorities and
oppose the principle of Justice and equality read under Article 14 and Article 21 of the Indian
Constitution. Without a Uniform Civil Code we will not be able to justify our tag of the world’s
greatest democracy7. Matters like marriage, divorce, adoption, guardianship and inheritance etc.
all falls under the concurrent list of the Indian Constitution. Hence the bringing together or we
can say unification of family law is possible under the Constitution.”

“In Gurdayal Kaur v Mangal8 the High Court of Punjab held that Article 44 can't be enforced
under the guise of fundamental right. Another case of State of Bombay v Narasuappa Mali 9
Justice Gajendragadkar said that it is recognized by Article 44 the existence of different codes
that are for Hindu and Muslims in relation of personal laws and the above article also allows
there continuance by unless the States Uniform Civil Code succeeds in its endeavor to secure for
all citizens a uniform Civil Code.”

“Through the word Uniform Civil Code the nation either starts wailing or bursts into hysterical
situations so we can say that a lot of emotions are attached with this word. We can also say that
there are three aspects of this issue that is political, social and religious. According to political
aspects the country is majorly divided into two parties that is BJP, RSS and the Congress, where
on the one hand the BJP and the RSS are in the favor of this and on the other hand the Congress
which was in power for so many years was not able to establish it and is somewhat against it.
Socially, the common masses that fluctuate from one point to another, unsure of the
benefits of a system in a diverse polity that is India 10. Religiously, the divide between the
majority Hindus and the minorities dominated by the Muslims. But this being a Constitutional
Governance research paper, I will look solely into the legal implications of the Uniform Civil
Code, which nevertheless has a bearing in all the three areas. When we co relate a Uniform Civil
Code and a personal laws it does not mean that there is an extension if Hindu laws to other sect
of the society or extension if laws of other communities to the Hindu law. According to Prof
7
'Now again there are Muslims and there are Hindus, there are Catholics, there are Christians, and there are Jews, in
different European countries. I should like to know whether different personal laws are perpetuated in France, in
Germany, in Italy and in all the continental countries of Europe.' [Alladi Krishnaswami Ayyar in Constituent
Assembly Debates Vol. VII, pgs.549-50.]
8
AIR 1968 Punj 396
9
AIR 1952 Bomb. 85.
10
DECODING UNIFORM CIVIL CODE BY RENU KUMAR SHARMA AND AMIT KUMAR KASHYAP.

7
G.C.V Subbarao11 a Uniform Civil Code is basically the replacement of personal laws with
a rational system and to remove injustice especially to children and women in the name of
personal laws and to promote equality. In the landmark case of Md. Ahmed v Shah Bano12
where the Hon’ble Supreme Court held that Section 125 of the Criminal Procedure Code apply
to all the citizens and it is above the personal law and the two contradicts.”
The lack of a common code has affected many things in India ad especially the positions of
women and this thing can be understood by the following examples:
The practice of triple talaq (banned now after the “The Muslim Women (Protection of Rights on
Marriage) Bill, 2019) where a man can give divorce to his previous wife and he is under no
obligation to pay maintenance to his ex-wife.

 “In Hindus the inheritance only sons and not daughter can inherit the property till
recently.to mention the wife has fewer rights on her husband’s property as compared to
her in-laws, on a contrast the husband has more right on his wife’s property as compared
to his in-laws.”
 “As per the Christian law a husband can get divorce on the grounds of adultery on the
other hand the wife has to prove the prove adultery and cruelty.”
 “Again as per Christian law, Christians are not allowed from willing property for
charitable and religious purposes.”
 “In Islamic religion the practice of polygamy is permissible but not in other religion.”
 “A common practice in Punjab is that, to avoid the dividing of property all brothers can
marry one woman so that their property is not divided.”
 “Currently Hindus have Hindu personal laws in almost every state of India.”
 “Sikh community is carrying a kripan whereas if a person from any other community he
will be arrested by the police.”
 “There is clear cut demarcation in the tax system of Hindus divided family and Hindu
undivided family.”

Another thing that can be said in the favor of Uniform Civil Code is that it will favor equality. It
h been observed that Muslims generally are sensitive in terms of their personal laws, but
according to Tahir Mohammed who is a scholar on Muslim Jurisprudence says that Uniform
Civil Code does not violate personal laws and quotes “A Muslim can remain Muslim even if he
opts out of Shariat13 and subscribes to a uniform Code.” and in order to bring equality and
integrity the Law Commission of India14 proposed that there must be a consolidation Indian
Divorce Act and Indian Christian Marriage Act.

11
G. C. V. Subbarao, Uniform Civil Code: Reality or a Tantalizing Illusion (1987)11 M. L. J, p, 1.
12
(1985) 2 SCC156
13
Muslims in India are governed by "The Muslim Personal Law (Shariat) Application Act, 1937." It directs the
application of Muslim Personal Law to Muslims in marriage, mahr (dower), divorce, maintenance, gifts, waqf, wills
and inheritance. The courts generally apply the Hanafi Sunni law, with exceptions made only for those areas where
Shia law differs substantially from Sunni practice
14
XV Report (1966) and XXII Report (1961).

8
 UCC HOW?
When we speak about Article 44 and that it calls for a Uniform Civil Code. Dr. Babasaheb
Ambedkar observed:

“It is 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 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.”15

It can be said that Uniform Civil Code is a component of Rule of Law and the arguments for this
proposal can be:

1. “The code creates equality: the Muslim Law is an area which is not reformed; on the
other hand all the personal laws have undergone reforms. Hindu Nationalist made a
contention that it makes a bit of sense where the Muslim Law is not reformed. For
example: Muslims have the privilege of marring more than once, on the other hand
Hindus and Christians are prosecuted if they did the same. Uniform Civil Code was
demanded for all religions.”
2. Gender- equality: Several liberals and women have said that rights will be given to
women.

WHAT ARE BENEFITS OF UNIFORM CIVIL CODE? WILL IT HELP IN NATIONAL

INTEGRATION OR FURTHER ALIENATE THE MINORITY INTERESTS?

“After the implementation of Uniform Civil Code, above mentioned are the two of the
other various doubts that were raised. There exists no law which is said to be bad in itself.
There are also such laws that are good in nature that protect and promote equality
and secularism. 16No matter what still there is a gap between the rich and the poor. There
is a need for efficient implementation of Uniform Civil Code in the country and its
implementation will be far too beneficial, so it cannot be ignored.”

“There are arguments where it is said that a favorable atmosphere is need in the country
even before implementing Uniform Civil Code in the country. If we see the previous
scenarios, there were peopling protesting when codification of Hindu Law took place in
the country as it brought the Hindus, Sikhs, Jains, Buddhists and all the other
denominations of the Hindus under one law. The protests went on till the time people did
15
M. S. Ratnaparkhi, Uniform Civil Code: An Ignored ConstitutionalImperative 1, (Atlantic Publishers and
Distributors, New Delhi,1997.) P.76-80
16
Partha S. Ghosh, The Politics ofPersonalLaw in South Asia 9, (Routledge, New Delhi,2007) P.98

9
 not realize that the codification was for their benefit and it is going to be beneficial for
them in the long run”.”
Dr. Ambedkar who was the then Law Minister himself said that a codified law was
needed for India’s unity.
“Uniform Civil Code can be implemented by following the same pattern. All the
religions are it major or minor will be practiced in India or whoever comes to India
will have to abide by the same law. Besides this the Constitution framers believed
that a suitable atmosphere would be created within the time period of 5 to 10 years
of the commencement of the Constitution.17”

These components should be considered in the implementations

MARRIAGE AND DIVORCE:

“The basis of the civilized society is a marriage. Once there is a relation formed between the two
parties then the law steps in and puts various obligations and liabilities, which are binding on the
parties. The people have keen interest in maintaining the marriage. It is said to be the
foundation of a family and there cannot exist any civilization without it.18”

1. “Every religion has a personal law under which they are governed and each law has
different essentials that are required to form a valid marriage. Now we shall codify law
relating to marriage and divorce.19 The new code shall consist of the basic elements of a
valid marriage, which shall include,”
“The essential relating to age is that the boy should be of 21 years and the girl should have
completed the age of 18 years. This essential is very vital especially in a country like India where
child marriage is very prominent. This will protect women and children.”

“The girls who are put to marriage before they attain 18 years of age and not biologically fit for a
sexual relation and do not have a required developed body to bear a child. In order to make sure
that there is deterrent effect to this, the government should implement strict and severe
punishments to such people.”

2. “Monogamy should be made mandatory amongst all religions to ensure equality for
women. The practice of bigamy and polygamy should be brought to an end. The

17
'One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws
based on religion which keep the nation divided into watertight compartments in many aspects of life. We are of the
view that a Uniform Civil Code should be guaranteed to the Indian people within a period of five or 10 years.' [Note
of M R Masani, Hansa Mehta and Rajkumari Amrit Kaur, cited in SHIVA RAO, B., MENON, V. K. N.,
KASHYAP, S. C., & IYENGAR, N. K. N. (1966). The Framing Of India's Constitution. New Delhi, Indian Institute
of Public Administration; [distributors: N. M. Tripathi, Bombay. Vol II, pg. 177.]
18
mynation.wordpress.com/.../sc-judgement-on-2nd-marriage-and-conversion/ - as visited on 25 jul 2009
19
'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…We suggest the time has come for the intervention of the legislature in
these matters to provide for a uniform code of marriage and divorce.' [Justice O Chinappa Reddy in Ms Jorden
Diengedh v S S Chopra AIR 1985 SC 934, 940.]

10
 allowance of having 4 wives which is given to men should be removed. Women do not
get equal rights which are violative of Articles 14 and 15 and their right to life and liberty
under Article 21 of the India Constitution is also hindered.”
3. “Marriages should be registered compulsory without any delay. A marriage is said to be
valid when both the man and woman sign on the declaration of eligibility in front of the
registrar. This is essential as it will leave room for confusion and both the sides of the
parties will be clear about the eligibility of the marriage. This will also help the family
courts to give judgments more efficiently and conclusively on the matters that will come
before it.”
4. “When we talk about divorce, firstly both the husband and wife should have equal rights
to divorce belonging to any religion. If we see the Muslim divorce concept the most
criticized is the practice of Triple Talaq. It is and can be misused in various ways. In
instance where the husband is drunk has an argument with his wife and in the rage of
anger, he utters Talaq for three times and they are bound to divorce in such cases the
parties do not even wish to get separated but just because they are bond of the religious
laws they cannot repeal it. They are compelled by AIMPLB20 and other organization of
similar nature.”
5. “There should be specification of the grounds and procedure that is laid down for
divorce. There should be reasonable grounds and the procedure should be based on
natural justice. Mutual consent provision should be made”

UNIFORM CIVIL CODE and SUCCESSION AND INHERITENCE:

“When we talk about the institution of a family, the Hindu Law differentiates between the
property of a joint family and the property that is acquired by a person on its own. 21In
contrary to this, there is no such distinction of property in the Muslim Law, which imposes
limitations of the property that can be bequeathed by a will. Considering all these, the Uniform
Civil Code should incorporate:”

1. “In accordance with inheritance, there should not be any discrimination based on sex.
The property should be divided equally amongst the sons and daughters in the family.
The daughters get an equal share in the property as a coparcener equal as a son. This is
given in the provision of Hindu Succession (Maharashtra Amendment) Act, 199422
2. It can be understood that the essentials of the will should be in accordance with principles
of equity. The property which can be transmitted should have no limitations on it.
20
All India Muslim Personal Law Board constituted to adopt suitable strategies for the protection and continued
applicability of Muslim Personal Law in India. The AIMPLB was launched as a direct result of the 1978 Shah Bano
case. The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim
Personal Law, and protested loudly at the judgment.
21
Archana Parashar and Amita Dhanda, Redefining Family Law in India XV, (Routledge, New Delhi, 2008) P.02
22
Discussed in paragraph 18 in the case of Radhabai Balasaheb Shirke (since deceased, through her heirs and L.Rs
Sau. Kanchan Pralhad Shinde and Ors.) v. Keshav Ramchandra Jadhav MANU/MH/0087/2007 (as no equivalent
citation was available): “This Act, without any reservation, confers equal coparcenary right on the daughter as the
son or any other male member has in a joint Hindu family governed by Mitakshara law.”

11
 Furthering the judgment that was passed in the case of John Vallamattom, the property
should be permitted to transmit for religious purposes and also for charity.
3. The provisions relating to equal share of inheritance property that is obtained by mother
in case of divorce or on the death of the husband.
4. During the registration the requirements for a valid will and the proper authority should
be provided.
5. Looking at its financial implications, the provision brings up an uncompromising and
controversial problem. In order to curb the inequalities between men and women, the
Uniform Civil Code will have to end the Hindu Undivided Family which is a legal
institution to Hindus.
“The idea of ending gender inequality which indirectly directs to abolish the Hindu Undivided
Family will undoubtedly give rise to agitations among the Hindus. There are millions of
businesses that are run and HUF itself owns that land which is used for agricultural purposes.
Under the Income Tax law. The HUF is considered as a separate entity, in order to decrease the
liabilities of the individual members of the family.”

MAINTANCE:

There are evident differences in the laws of maintenance of Hindus and that of Muslims. A
women who is not a Muslim has right to claim maintenance and is protected and governed by
section 125 of Code of Criminal Procedure. 23 The Muslim Women (Right to Protection on
Divorce) Act, 1986. Under this Act the Muslim women can claim maintenance.

The following are the regards relating to maintenance in Uniform Civil Code:

1. The maintenance shall be decided on the grounds of the husband’s income, status and
lifestyle of wife.
2. The husband is supposed to maintain his wife during their married life and if divorced he
has to maintain her till she remarries.
3. Both the son and daughter share equal responsibility to maintain their parents. If the
daughter asks for an equal share in the property then she is supposed to equally share the
responsibility of her parents and maintain them.
4. The parents shall maintain their children, if a son then till he starts earing on his own and
if a daughter then till she gets married.

23
As a consequence of the judgment in the Sarla Mudgal case

12
 INDIAN SECULARISM AND UCC

“The main problem that lies here in India is that if the constitution makers had the agenda of
enforcing Uniform Civil Code to the whole of India then it should not have been under Article
44 of the Indian constitution as Directive Principle of State Policy as these directive principle
just some suggestions for the states to follow some directions and these directions are not
mandatorily followed by the state and the court has no power to force it on the state to follow it.
Basically these are some positive directions that the state can follow for better governance.”

“The Preamble of the India clearly mentions that India is a secular, Democratic, Republic. This
means that as such there will be no particular religion of the state and the state shall not
differentiate anyone on the basis of religion. In a simple layman’s term if we define religion it
will be a relationship of a man with a god so we can also that the religion should not come in
between anyone daily chorus of life. Hence this process of secularism is simply connected with
the goal of Uniform Civil Code with cause and effect. In the case of S.R Bommai v Union of
India24 Justice Jeevan Reddy said that religion and secular activities cannot be mixed as these
two are very different things and religion is the matter of one’s faith. To mention a concept of
positive secularism is there in India which is completely different from what is followed in
Unites states of America and in the European States.”

“Hence in India secularism makes a line that distinguishes individual and spiritual faith. In
USA and other European countries it was made a law that there shall be no interference of
the state in the religious matter because of which they underwent the process of
renaissance, reformation and enlightenment. But India never went through the processes
that were mentioned above thus it was the duty of the state to barge into the religious
matter that were prevalent in the state to remove any hindrance that is there in the
functioning of the particular state. Since the chances of conflicts can increase, hence a
country like India was not able to go through the process of renaissance. 25To say a
particular practice may be accepted by the personal laws of one sect of people but the same
practice may not be acceptable by the personal laws of another people. So when there will a shift
and these traditions will come into practice we will be able to witness a transformation of
conflicts from general differences to hardcore enmity. It is very clear that in our country it is very
difficult to accept changes related to religion, as in India religion defines the way of life, here
people don’t understand that human beings made religion and the reverse is not true. Article 25
and 26 of the Indian constitution gives freedom of religion and freedom to manage religious
affairs but at the same time Article 44 which is not executable in a court of law tells that the state
shall try to achieve a Uniform Civil Code In India by which it will govern the people by a
uniform method such that there is no discrimination. Whenever there is an evolution of new
24
1994 AIR 1918
25
Archana Parashar and Amita Dhanda, Redefining Family Law in India XV, (Routledge, New Delhi, 2008)

13
principle, criticism comes along with it. Like as here the major question that evolved are as what
will be the components of Uniform Civil Code, how will the resentment be solved since separate
provision lies in each religion which may also result in increase in enmity among different sect
of people. Hence the Uniform Civil Code will need to keep a balance between certain principle
related to religion and how to protect the fundamental rights. Issues related to marriage, divorce,
maintenance etc. are the matters which are secular in nature and it can come under the purview
of Uniform Civil Code.”

JUDICIAL POSITION
14
“The Indian Judiciary has always directed the parliament to display urgency in the
implementation of the Common civil Code, whenever needed. In the landmark case where for
the first time observations were made with regard to the Muslim personal law relating to the right
of women was of Mohammad Ahmed Khan V. Shah Bano Begum 26 which is also known as the
Shah Bano Case. To give a brief explanation of the case, the matter was of Shah Bano who was
a penurious Muslim women and she was divorced by her husband through the method of Triple
Talaq. She came before the court under section 125 of Code of Criminal Procedure and pleaded
for maintenance from her husband. This was against the Muslim personal law as it is said that the
husband is required to maintain his divorced wife only till the Iddat period and not after that. But
the Supreme Court held that even the Muslim women come under the purview of section 125 of
Code of Criminal Procedure and have the right to maintenance beyond the Iddat period.

Article 4427 was said to be a ‘dead letter’ by the Supreme Court of his matter. Y. V.
Chandrachud who was the then Chief Justice of India said that,

“A common civil code will help the cause of national integration by removing disparate loyalties
to law which have conflicting ideologies”

“This decision led to a huge spread of political agitations and strikes and meetings among
the people. It looked like the decision delivered was more advance than it’s time. The then
Prime Minister of India Rajiv Gandhi appealed to the minority Muslims political
appeasement and did not laud the Supreme Court for its forward outlook. 28His party
overruled the judgment given by enacting the Muslim Women (Right to Protection on Divorce)
Act, 1986, that reduced the decree of Muslim women’s right for maintenance under section 125
of Code of Criminal Procedure. It was said that the reasoning that was given by the Apex court
was merely a passing comment and was an obiter dictum as nonbinding on anyone. The people
were the decision makers when the law is related to the personal laws. No personal law was to be
manipulated until and unless the people governed by that personal law makes an appeal for it.
The Shah Bano case was a huge opportunity for the government to bring a big change in the
society by removing the inequality faced by Muslim women because of the personal laws. All
the bravery and courage that was showed by Shah Bano went in vain.””

26
AIR 1985 SC 945
27
"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
28
Dinanath Raina, Uniform Civil CodeAnd Gender Justice 90 (Reliance Publishing House, New Delhi, 1996)P.103-
121

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“In the case Sarla Mudgal V. Union of India 29, the Supreme Court based on Article 44 directed
the Government. In the above mentioned case, the husband was married according to the Hindu
Law and later on he converted to Islam. After conversion he got married for the second time.
According to the Muslim Law second marriage is allowed but it is unlawful under the Hindu
Law. Now the question before the court was whether the man after the conversion has the right
to second marriage. In order to circumvent section 494 of IPC. Referring to the Hindu Marriage
Act, 1955 the court held that a marriage solemnized under this Act can only be dissolved only on
the grounds specified under the Hindu Marriage Act, 1955. Under this act, the Hindu marriage
will not be dissolved on its own on conversion. The second marriage will be an offence under
section 494 of Indian Penal Code. On this Justice Kuldip Singh also gave his opinion regarding
Article 44, he was of the opinion that it was the time to retrieve Article 44 from the cold storage
lying there since the year 1949. The Hon’ble Justice with reference to the words Pandit
Jawaharlal Nehru who defended the decision of introducing the Hindu Code Bill in place of
Uniform Civil Code in 1954 in the Parliament, said “I do not think that at the present moment the
time is ripe in India for me to push it through”.

The sheer that was done in the codification of Hindu Law:

“Where more than 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 the
‘uniform civil code’ for all the citizens in the territory of India”.

“The case of John Vallamattom v. Union of India30 is the recent case where the government was
put to work for the undue delay in bringing the Uniform Civil Code into practice. The case was
of a Christian Priest who questioned the constitutional validity of section 11831 of Indian
Succession Act before the court of law. The 1997 writ petition said that the section 118 was
discriminatory on the Christians. The section led to prevention of imparting property for
religious and other charitable purposes which was only for the Christians and did not apply to
others even the Parsis were excluded from this.”

“There was a three judge bench which concluded through the then Chief Justice of India V. N.
Khare. They concluded that there existed no justifying reason as to why did this discrimination
existed. It could not be said whether the classification was on the basis of intelligible differentia
nor was there any nexus in relation to the objective that was sought to be achieved. The bench

29
AIR 1995 SC 153
30
AIR 2003 SC 2902
31
"No man having a nephew or a niece or any nearer relative shall have power to bequeath any property to religious
or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six
months from its execution in some place provided by law for the sake of custody of the Will of living persons."

16
held that section 118 of the India Succession Act has to be struck down as it was discriminating,
unnatural and also violated Articles 14, 15, 25 and 26 of the Indian Constitution.”

With regard to Article 44, Chief Justice Khare said that,

“We would like to state that Article 44 provides that the State shall endeavor to secure for all
citizens a Uniform Civil Code throughout the territory of India. It is the matter of great regrets
that Article 44 of the constitution has not been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will help the cause of national
integration by removing the contradictions based on ideologies.”

Thus, from the above mentioned instances, it can be inferred that there was urgency for the
government to realize the directive principles that are enshrined in the Indian Constitution. The
Supreme Court has on several occasions directed the government on this matter.

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 ANALYSIS
“The researcher analysis that a Uniform Civil Code, as has been reiterated time and again in this
paper, is vital for this vast country. We need to homogenize the personal laws relating to
marriage and succession, inheritance and maintenance. This not only promotes national
integration, but also prohibits the evils of discrimination against the minorities. A uniform
law to all its citizens is a dream cherished by reputed legal scholars, members of the
Constituent Assembly and judges alike. These people like other educated Indians realize
the urgency of common laws to ensure the steady progress of the entire nation without
exception of any particular factions of the society. 32 Also to conclude one needs to understand
the basic jurisprudence behind the Uniform Civil Code that whether it is the integration at the
national level or the giving of equality of women that will lead to eradication based on genders.
According to the researcher the concept of Uniform Civil Code will be completely fit for the
county like India with so much diversity including region and religious diversity. Also the
concept that exists here is that each and every one is equal before the law and every one should
be treated with equality. So, why there should be any kind of differences based on religion or
gender based. The researcher suggests that with proper implication if this concept is applied, the
country will be benefitted. With proper implication the researcher means that to bring at some of
the possible laws under the ambit of Uniform Civil Code. With this the Uniform Civil Code will
uphold the ethos of the Indian Secularism and also that everyone is equal before the law. At the
end Uniform Civil Code can only be implemented in India through a revolutionary and one of
the major concerns is that it may not usher in the expected equality in terms of gender. Also, the
current institution needs to undergo a lot of reforms to be ready on this. At last efforts should be
made by the government to focus on harmony in plurality than the blanket uniformity.”

REFORMS

“As the researcher after seeing the different aspects of Uniform Civil Code the reforms that I
would suggest is that, in a country where religion is the way of life, the implementation of this
Concept of Uniform Civil Code needs to be done after lot of careful planning and excellent
execution is also required so that it does not hurts the religious sentiments of the people
and that there should be no agitation among the public on the basis of religion. The
government before bringing it must make the draft public and should ask various scholars
take suggestions from the experts of constitution and then present the final thing after a
good and healthy debate in the parliament and the government should consider the views
of the opposition also33. One more reform that the researcher suggests that the government
32
Resourcehttp://www.unafei.or.jp/english/pdf/RS_No53/No53_21PA_Sharma.pdf “ ASPECTS OF UCC” Date of
Visit- 10st March 2020
33
ibid

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should not decide this thing in a hurry and should just implement it to show its dominance or for
the sake of implementation. The government should also take initiatives before the
implementation that government should able to explain the mass as to each and every steps that
they are going to do in easy language to avoid confusion and agitation that has been seen a lot in
recent days due to some of the reforms of the government. The last reform that as the researcher
I would suggest is that government should be sensitive and completely un biased at each stage
because the implementation of such a code in true spirit must be brought by borrowing freely
from different personal laws and making gradual changes plus issuing judicial pronouncements.
Hence the government is required to sensitive and unbiased.”

BIBLIOGRAPHY

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BOOK REFERED

 D. D Basu, Shorter Constitution of India, (Wadhwa & Company Law Publishers, Nagpur,
13th edn., 2006) pp. 456, 457
 Arvind P Datar, Commentary on the Constitution of India, Volume 1, second edition
(Wadhwa & Wadhwa, Nagpur, 2007) p. 594.
 Satyajeet A. Desai, Mulla Hindu Law (Butterworths, New Delhi, 18th edn., vol.1, 2001)
 Law House, New Delhi, 15th edn., 1996) p.87-107

WEBSITES

 blogs.oneindia.in/uniform+civil+code/1/showtags.html
 debatemysoul.rediffiland.com/blogs/.../Uniform-Civil.html
 lawcommissionofindia.nic.in/reports/report212.pdf
 http://www.solutionexchange-un.net.in/gender/cr/res04100702.pdf

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