Declarations

I, hereby declare that Dissertation titled ‘UNIFORM CIVIL CODE - DIRECTIVE

PRINCIPLE YET TO BE ENFORCED," is submitted by me (Miss. Gargee

Naresh, student of LL.M final year 3rd semester ) as requisite sectional

accomplishment for the award of Master Of Laws degree & is based on my

original research wwork. This work has been done under the supervision and

guidance of Dr. Monika Garg, Principal of the Saraswati Institute of Law, Palwal.

Counter Sign by : Signature of Candidate:

Dr. Monika Garg Miss. Gargee Naresh

Principal Roll No.

SIL Palwal Regd No.

( LL.M. final year)

1
CERTIFICATE

2
 ACKNOWLEDGEMENTS

One of the most pleasing aspects of penning down a report is expressing gratitude to

those who have given their might to it. I cannot let this opportunity pass without

recording my warm gratitude to my respected supervisor, Dr. Monika Garg, Principal,

Saraswati Institute of Law, Palwal, Haryana whose guidance, valuable approach all

through the entire course of study enabled me to accomplish this dissertation titled

‘UNIFORM CIVIL CODE - DIRECTIVE PRINCIPLE YET TO BE ENFORCED’, It

has been my proud entitlement to work under her guidance. This is because of her

constant encouragement that I have been able to finalize this research work on time.

I am also thankful to all other teachers of our college for their encouragement in the

completion of this research work, I also acknowledge the help extended to me by the

library staff of the faculty of law , for their kind co-operation.

Date : Gargee Naresh

LL.M final Year

3
 TABLE OF CONTENTS

Declaration………………………………………………………………………..I

Certificate ………………………………………………………………………..II

Acknowledgements ……………………………………………………………..III

Table of Contents………………………………………………………………IV

Table of Case Laws………………………………………………………….…VI

Table of Abbreviations…………………………………………………………IX

Preface ………………………………………………………………………….X

Chapter 1:- Introduction ………………………………………………………..14

1.1 Uniform Civil Code ……………………………………………………………14

1.2 Meaning of uniform civil code ………………………………………………….19

1.3 The Uniform Civil Code’s relevance and justification ……………………… ..21

1.4 Historical Background of Uniform Civil code…………………………. ………22

1.5 Need of uniform civil code……………………………………………….. …….24

1.6 Countries follow Uniform Civil Code…………………………………………...27

1.7 Statement Problem ……………………………………………………………....31

1.8 Research objective ………………………………………………………………32

1.9 Hypothesis ………………………………………………………………………32

1.10 Methodology of study …………………………………………………………33

4
 1.11 Scope and Limitation …………………………………………………………33

Chapter 2:-Uniform Civil Code and the Constitutional provision…………34

2.1 UCC and fundamental rights ……………………………………………..34

2.1.a. Nexus between personal law & Constitution of India

2.1.b. Right to Freedom of Religion : A Constitutional Provision

2.1.c. Secularism and religious freedom

2.2 UCC and directive principle ………………………………………………40

2.3 UCC and fundamental duty ………………………………………………..43

2.4 Socio and Legal Attempt to implement Uniform Civil Code ……………...44

2.5 Misconception about Uniform Civil Code………………………………….46

2.6 Constituent Assembly debate and UCC…………………………………….47

Chapter 3 : Implementation and objection on enactment of Uniform Civil Code

………………………………….52

3.1 Pre- independence……………………………………………………………53

3.2 Post - independence ………………………………………………………….56

3.3 Uniform civil code as per the Law Commission report ………………………64

5
3.4 objections related to ucc ………………………………………………………66

3.4 a. The Uniform Code iss violates religion’s freedom

3.4.b. Uniform Code is violates the right of culture

3.4.c. Immutable Religious Laws of religion

3.5 Constraints on Enactment of Uniform Civil Code……………………………….70

3.6 Practical Approach ………………………………………………………………75

Chapter 4 - Judicial Approach too the Uniform Civil Code ………………………..77

Chapter 5 - Conclusions and suggestions …………………………………………..84

Bibliography…………………………………………………………………………91

6
 List of Cases

Ahmedabad Women Action Group V. Union of India,(1997)3 SCC 573……..84

C.

1. Commr. H.R.E V. L.T. Swamiar,AIR 1961 SC 282 ………………………36

2. Commr. H.R.E V. L.T. Swamiar, AIR 1954 SC 282………………………34

D.

Danie l Latifi & Anr v. Union Of India,(2001)7 SCC 740 ……………………….23

J.

1.John Vallamattom & Anr. V. Union Of India, WP(civil) 242 of 1997………28

2. Jorden Deengdeh V. S. sS. Chopra, AIR 1985 SC 935 …………………..83

M.

1. Mohd. Ahmad Khan V. Shahh Bano Begum, AIR 1985 SC 954 …………22

1. Mohd. Hanif Qureshi V. Bi har, AIR 1958 SC 739 ……………………….40

2. Minerva Mills Ltd. V. Union Of India, AIR 1980 SC 1789………………. 40

N.

Nanak Chandra V. Chandra Kishore Aggarwal, (1969)3 SCC 802 ………..62

7
P.

Pranav Kr. Mishra V. Govt. Of NCT Delhi, AIR 2009 WP(C) 748 of 2009……56

S.

1. St. Xavier’s College Society V. State of Gujrat, AIR 1974 SC 1389……..14

2. Sarla Mudgal V. Union Of India, AIR 1995 SC 1540……………………….20

3. S.P. M ittal V. uUnion Of India,AIR 1983 SC 1 ……………………………...34

4. S.R.Bommai V. Union Of India, AIR 1994 SC 1918 ……………………….38

5. Surya Narayam V. Union of India, AIR 1982 SC 17 ……………………….42

6. Seem a V. Ashwani Kumar, 2006(2) SCC 578 …………………………….49

7. State Of Bombay V. Narasu Appa mali, AIR 1952 BOM 84 ……………….80

8. Shabnam Hashmi Case V. Union of India, AIR 2014 SCC 1 ………………86

8
 LIST OF ABBREVIATIONS

1. AIR All India Reporter

1. All LR Allahabad Law Reporter

2. All. Allahabad

3. AP Andhra Pradesh

4. Art. Article

5. Bom. Bombay

6. Cal Calcutta

7. CJ Chief Justice

8. Commr. Commissioner

9. Del. Delhi

10. Dy. Deputy

11. ed. Edition

12. FB Full Bench

13. HC High Court

14. IPC Indian Penal Code

15. J. Justice

16. SC Supreme Court

17. UOI Union of India

9
 PREFACE

India is a distinctive nation in terms of both its social and geographical

characteristics. It is a nation with many diverse cultures and beliefs. An essential

component of Indian society is diversification in socialization. Although Indian

culture places a strong emphasis on the idea of unity in variety, political unification

in India has not benefited from this cultural homogeneity.

India's history, today, and coming years, its soul and heart are rooted in religious

doctrine plurality. India isn't a foreign nation to any faith, and no faith finds India

strange.

In Indian society, faith has always dominated. While faiths have helped people find

spiritual fulfillment and mental tranquility, they have also contributed to various societal

ills like untouchability, sati pratha, Devadassi, etc. Its prejudice has been mostly

attributed to the various groups' differing religions and customs based on their

respective personal laws.1

Numerous evil and irrational but legal actions are being carried out in society under the

guise of religion. Due to a sort of system where each religion's various sects and sub-

sects both have separate regulations for them, it has not just created inequality and

variation among adherents of various religions, but it has also caused inequality and

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

10
 variation between faiths. They did it all under the guise of tradition, usage, and faith. 2

To curb all these inequalities, evils, and ill practices A UCC is the need of the hour.

This is the time when the directive principle given under Article 444 needs to be

enforced in its literal sense .We have uniform laws for both the civil and criminal

justice systems, but when it comes to individual laws, all communities have their own

personal laws and governed by the same, which creates inequalities .

The basic idea of unified civil code has limited aspect , that is establishing a

"consolidated family code" for the whole nation and its citizens , not just for the purpose

of homogeneity but also to ensure social fairness for underprivileged groups in various

groups with regard to weddings, breakups, custody, adoption, and succession3.

In the modern world, a consistent civil code is necessary to achieve the following

objectives:

A. Consolidation and integration of the nation

B. Safeguard against political domination

C. Linkage of justice and equality

D. Accuracy, simplicity, and intelligibility of the personal laws

E. Removal of gender -bias

F. Improvement in the women's position.

2 D .K. Shrivastava, Religious freedom in India, P. 255 (1982)

3 Choudhari Hyder Hussain- "A unified code for India" A.I.R. (journal) 68, 71-72

11
 The exclusive state of India, Goa, does have a civil code which in reality has same

ambit for everyone , irrespective of faith, caste, or sexuality . In Goa common law of

families exists .As a result Goa becomes only Indian sate which has Unified Civil Code.

In Goa, the laws which govern inheritance, marriage, and separation are uniform for all

faiths. According to the Goan code, wedding certification is required in order for any

potential legal conflicts to be settled. Before being married, both men and women must

give their permission. The Goan code permits prenuptial agreements, which can change

how assets are distributed. 4

Numerous clauses in the Indian constitution have anything to do with the unified civil

code, either indirectly or directly.

A. Basic liberties and a unified civil code.

B. The common civil code as a guiding concept of governmental action.

C. The Unified Civil Code and basic obligations.

Therefore, having a UCC doesn't really imply that there will also be a unified Hindu

code. To create a single civil code, the most liberal aspects of one’s individual laws,

including Christian law,Hindu laws,Muslim law & so on, must be combined. All regions

will regard that as being applicable to the entire nation.

4 https://the companion . in/goas - experiences of- uccshow- things -not go- well

12
 There have long been concerns, challenges, and limitations with the concept of a

universal civil code because it entails the formulation of personal laws, which frequently

intersect with religious and cultural norms. There are many issues with the unified civil

code, including:

A. Religious liberty is incompatible with a UCC.

B. The traditional right is violated by the unified civil code.

C. Religious laws are unchangeable.

D. Increasing the government's authority

E. The adoption of a unified civil code shouldn't be rushed.

The courts have consistently affirmed genders in cases involving the universal civil code

in their numerous rulings. It is source of sadness that Article 44 of Constitution has

continued to be dead issue, as the Apex Court stated in the Mohammad Ahmed Khan vs

Shah Bano Begum issue, often referred to as the "Shah Bano scenario." 5

5 AIR 1985 2 SCC 556

13
 CHAPTER - I

INTRODUCTION

Forget the old saying, "I'm a Hindu, you're a Muslim." Consider the following: "I" and

"my" share an Indian identity.

"I don't anticipate my country of my visions towards grow only faith, that is to be

completely Christian or fully Muslim, although I do desire it to be fully fair, including

its religious functioning side-by-side with another," the author said.

…………………..Mahatma Gandhi

We can achieve better fraternity and closeness if we work together to create a shared

civil code that is more modern.

…………………Krishna Iyer, Justice

14
India is a distinctive nation both in terms of its geographical makeup and its social

system. It is a nation with many diverse beliefs and cultures. An essential component of

Indian society is societal mobility. The Indian culture places a strong emphasis on the

idea of oneness in variety, but sadly, this idea of cultural harmony has not been capable

of bringing about political harmony in India. If we go back through time, we can see that

India, a nation was split up into smaller political units, which led to long-term foreign

enslavement. India gained its freedom in 1947, but once again at the expense of dividing

the nation.

The objective of maintaining the nation's integrity and unity has evolved into the

principal concern for those who drafted the Indian constitution in the context of historical

experiences.6

India has upheld the idea of the fairness of all faiths and their adherents throughout its

past. When a monarch exercised hereditary power and professed a specific religion—

Hindu, Christian, Parsi, or Muslim—they did not force their religion on anyone else and

permitted adherents of various faiths to freely declare and practise their different beliefs.

Although there have been a few isolated anomalies, in general, this practice has held

strong 7.

6 Dr. Ranjan Kumar- 'Need for a uniform civil code - 2017 at p. 16-17
7 Ibid

15
 India has the second-highest population on the entire planet. The inhabitants of this huge

area practice different faiths and speak various tongues. The golden rule of fundamental,

natural togetherness flows through the structure of the nation, despite the wide range of

languages and religions. 8.

On November 26, 1949, the Indian people formally decided to provide "fairness,"

"freedom," "equal opportunity," and "brotherhood" to all of its residents through our

state legislature. The idea of basic rights and basic tenets of governmental policy were

incorporated into chapters 3rd and 4th of the constitution of the India for

accomplishment these objectives. Ideal that initially looked complex in achieving were

placed in Chapter IV and declared directive principles of state policy as the future

purpose for the Indian State. Chapter III of the charter was given urgent relevance, for

which one might address the court. 9.

Religious sects in Indian Society has always been dominating factor. The customs and

religions based on the individual law of various communities was main root cause of

this biased . Gender inequality has also happened in other personal law domains as a

result of various legal codes. The important points in which such unfairness can be

8 St. Xavior's college society v. State of Gujarat AIR 1974 SC 1389.

c

9 M.P. Jain- Constitution of India, 2006, at-112-113

16
 shown clearly include ownership rights, divorce reasons, adoption problems,

maintenance, etc10.

The fundamental source of this issue is that individuals are not precisely regulated by

the legislation, but rather by some self-centered and egotistical individuals who do not

wish their folks to be beyond their control 11. Updating the Indian private law system is

now necessary and inevitable given the sweeping changes taking place in society today,

including rapid shifts in social ideas and phases. Since the constitution's inception,

society has desperately required it, and the nation's leaders have sought to create it.

However, for a variety of reasons, they have resisted or have been persuaded to delay

doing so. This nation's response to the problem has been unreasonable and unjustified

on a personal basis.

The unique federal structure with a powerful center was selected by the Founding

Fathers. Once more, the founding fathers viewed a common civil code as a crucial tool

for achieving national unification. The Unified Civil Code has been viewed as a key tool

for achieving secularism, liberal, and non-discriminatory existing law in India by both

the liberal and feminist rights12.

10 D.K. Shrivastava, Religious freedom in India, P. 225 (1982)

11 Ibid
12 Ar. parashar :- family law Reform in India pp. 17-19 year 1992

17
 The purposes of the constitution's prologue are non-discriminatory in religious matters,

and it has played a major role in the eradication and elimination of the societal issues

that have long characterized our community. Our country's goal now is to treat every

person as a citizen, regardless of their faith, and Art. 444 of Indian Constitution supports

this goal. According to Article 44th of constitution of India , positive function to

liberate several facets of our lives from the influence of religious dogmas and their

harmful customs given to state . This obligation can be upheld while preserving the right

to morality and faith.

Modifications to the law are required to achieve the constitutional goal. One significant

method of legal change is the codification of laws. The British colonial administrators in

India codified criminal and business laws. The British upheld a non-interference attitude

in questions of religion. Given their stated objective of "Divide and Conquer," they did

not try to codify domestic laws.13.

Women campaigners first required a single civil code at the inception of twentieth

century, includes advancing people's right, secularism and fairness . Until India gained

her freedom in 1947, a few legal changes were made for women, especially Hindu

widows. The Hindu Code bill passed in the parliament during 1956 in spite of fierce

13 Sorabjee soli, sho uld law must be a personal choice? Express Magazine, 29th of june, 1986

18
 opposition. Prime Minister of India Jawahar lal Nehru, his all followers, and all women

campaigners did call for the standard civil code.14

In numeral occurrence, the Apex Court has articulated Art. idea of unified civil code

and Article 44, mostly to draw attention to executive’s and lawmaker's haphazard

approach to execution . By Art. 44 Indian constitution the state is required to do work

to establish unified civil code across whole India. In Section IV of the State policy

Directive Principle's Constitution, which are outpourings to the government to pay

attention to as it administers the nation. Although Article 44 is outlined in Part IV of

Indian Constitution, it also plays a notable role in Part III, which is the Basic Right,

which aims to provide for the people of India.

1.2 Meaning of UCC

In terms of family law, legislation is legal formulation of traditions that have attained

widespread acceptability and come to be accepted as the standard. The presence of

legislative authorities that strive to enact rules hastens the acceptance process. Law

formulation includes state legislatures, administration, and conflict resolution. 15.

Three words make up phrase UCC : "Uniform," "Civil," and "Code." The term

"uniform" describes how something looks. In Article 44th of constitution of the india ,

14 Ibid
15 http//www.knowledgerush.com/kr/encyclopedia/dispute Resolution/accessed on
20.06.2007

19
 word "uniform" opted instead of "common," however these two words have

traditionally been used interchangeably.16 .

The Latin term "civil," meaning "a citizen," is the source of the English term "civil."

When added as a prefix to the word "law," it referred that it is connected with the

citizen's personal remedies and right as opposed to criminal, governmental, etc.

liberties.17.

The word civil law derived from latin word jus civil, relates with government's local

ordinances. Public or global law are not mentioned, only the corpus of private law.

Additionally, it is employed in violation of the law. In addition to referring to family-

related law, the phrase “Civil law" additionally mentions to other various elements such

as agreements, reimbursement, etc.

Latin term "Codex," which means a book, from there the word "code" originates. It

refers to collection and consolidation of all basic regulations that mayy be included in a

"code" under a subject conveying the purpose to enact a code, in a rational and succinct

format. 18

To be more specific, the word " Civil Code" refers to legislation that governs civil

proceedings. A "Civil Code", a branch of law intended to codify civil laws entirely

16 En. American , Vol. 1960), 735

e

17 shorter oxford e nglish dictionary, Vol.one(1973), 35

18word & Phareses, permanent edition, vol. 7A, 89

20
 rather than only in part. When the word "Uniform" is used with the word " ccivil code,"

it denotes a set of laws which are applicable to all persons equally, regardless of

person’s race, gender, class, or creed.

1.3 Uniform Civil Code’s relevance and justification :-

The UCC is still directly important & has developed into necessity in the country’s

racially sensitive environment. It can be a vital strategy for containing the communalism

epidemic plaguing into our society and country . Fundamentalist have distinct views and

opposed the plan of establishing a code for the entire nation because they believed that

fundamentalism was the primary source of intergroup strife. Nevertheless, it is still true,

as Mr. Justice Tulzapurkar has often emphasised, that

"In the framework of combating the toxin of collectivism, the significance of truths will

offer a juristic answer to the community problem by addressing its underlying source,

and this will encourage secular principles so crucial towards achieving identical identity

and social equality ." 19

India isn’t recognize two citizenship, unlike the USA . According to notion of only

citizenship, which is guaranteed by the Indian constitution, all residents must be subject

to the same set of civil rules. As a result, given nation's current sociopolitical

environment, Article 44 of the Constitution assumes a significant and important role. A

19 Justice Tulzapurkar, "Uniform civil code" A.I. (1) 1987, 17

21
 common civil code for all of India's citizens has been sought by the Apex Court of that

nation. 20.

1.4 Historical Background of UCC

A unified civil code has been discussed since India was a colony.

1.4.a.Pre -Independence (imperial era) 

The October 1840 Lex Loci Review: In relation to offenses, proof, and agreements, it

emphasized the gist and need for consistency in the formulation of Indian law. However,

it also advocated for individual laws of Muslims & Hindus to remain uncodified.

The 1859 Queen's Declaration assured whole non involvement in religious matters .

That’s why , individual laws remained to controlled through unique codes for different

localities, but cr. laws were systematize & made uniform for the entire nation.

1.4.b Era after colonisation (1947-1985)

Leading eminents like JL & Dr. Ambedkar emphasised for standard civil code in the

time of the formulation of nation’s constitution.

However, they included UCC in the DPSP ( Art. 44) specifically because of pressure

from religious fundamentalists and a insufficient awareness between the public that

time.

20 Sarla Mudgal vs UOI A.I.R. 1995, S.C. 1540

22
Hindu law Code was created by Dr. Bhim Rao Ambedkar to change Hindu law that

prohibited polygamy, legalisation of divorce, and granted daughters the right to inherit

property. A watered-down variant of the code was adopted through four separate

statutes despite vehement resistance.

Hindu Succession Act—At first, the 1956, HSA did not grant daughters any rights of

inheritance in inherited property. They were only able to request adequate food from a

single Hindu family. But then, on September 9, 2005, the Act was amended to eliminate

this difference.

The hindu marriage act,

The minority and guardianship act,

The adoptions and maintenance act,

& the special marriage act were all passed in the 1954 and allowed for the civil unions

devoid of personal law related to religion .

23
Intervention of Judiciary:

Shah bano case 1985 :-

Shah bano, a seventy three year-old lady, was refused to support after spouse divorced

her and used triple talaq method, which means declaring "I divorce you" three times.

District Judge as well as the HC found in her favour after she filed a legal claim. Her

spouse then appealed to Apex Court on the grounds that he had completed all of his

Islamic law-related duties.

The SC directed on her side in 1985 under the “maintenance of children,wives, and

parents” provision (Section 125) of the All India Criminal Code, which applied to all

citizens unlike other personal laws. Further, SC advised that unified civil code should

be set up .
21

Case of daniel latifi :-

The muslim women act was contested basis it violate both Article 21's freedom of life

& Art. 14 and 15's equality rights. SC upheld law's constitutionality, reconciled with s.

1295 of crpc, and ruled money a woman receives during the iddat term must be

sufficient to support her both now and in the future. Muslim woman who has divorced

21 Md. Ah. Khan vs. Shah Bano Begum, AIR1985 SC 954

m

24
 therefore has right to financial aid for life, or till the woman marries again, under the

laws of the country.22

Case of Sarla Mudgal :-

In case, issue was whether husband is Hindu who been wed by hindu law could

formally enter into a remarriage by converting to Islam. According to the tribunal, a

Hindu wedding that has been sanctified in line with law of hindus must be terminated

for any of reasons mentioned in hindu marriage act of 1955. Remarriage arranged

afterwards the conversion into islam constitutes offense u/s 494 of IPC, but it wouldn't

by itself terminate the Hindu wedding. 23.

Case of john valamattom :-

In case, The john valamattom, priest belongs to kerala, challenged constitutionality of

the Indian succession act’s section 118, is affects those who are not Hindus in

India .vallamatton said s. 118 of the Act discriminated to christians through placing

excessive limitations on their capacity to leave property to charity and for religious

purposes. The court declared in its ruling the clause unlawful and invalidated it.24

So, in very few instances, recommendations of the UCC were given.

22 D. Latifi & Anr. v. UOI (2001)7 SCC 740

23 Sarla Mudgal v. Union of India AIR 1995, SC 1540
24 John Vallamattom v. UOI, petition civil 241 of 1997
n

25
 1.5 Need of Uniform Civil Code -

A. It Promotes Secularism - A UCC means identical laws whether they are Hindus or

sikhs or Christians or muslims. A ucc does not mean that person's capacity to perform

their faith will be confined . The real secularism simply implies, everyone will be

represented fairly. 25

B. All the Indian citizens must be treated equally - Every religion has its own

personal law, which states that while a Muslim can get marry four times into India,

hindu will be prosecuted for doing same. This openly violates right to equality, which is

mentioned in the Indian Constitution.26

C. It will give women more rights - Our first head of state, Pandit Jawaharlal Nehru,

once said, "You can judge the state of a nation by examining the state of women." The

situations of women will actually be improved by the enforcement of unified civil code.

A consistent civil code is mark of a contemporary, progressive country; it indicates

that the country has moved far away from class & religion issues.

D. Every contemporary nation has one- A unified cc will more forward society and

propel India closer to its objective of being a developed country.27

25 T., on securing a uoi, in Narmada khodie Ed; Reading uniform civil code, p. 176, in
1975
26 4Art 14 to 18, part IIIrd of the constitution
27 Iyer Krishn, "One conutry, one nationality & one legal system" express magazine,
published on 29th 1986.

26
E. Women's status enactment - The UCC has served as a rallying cry for women's

rights since before Independence Day. Women's fight for equal rights is fundamentally

secular, & it is tenet of the battle which has barriers to promoting equally are not

implemented in the course of faith class, custom, and any other category.

F. The UCC as a way of achieving integrity and unity- All Indian citizens are equal

under law, which implies that all civil laws, with the exception of legal codes, apply to

everyone equally, including criminal statutes. So, in order to encourage national unity, a

uniform civil code is required.

G. As a defence against political control: The Unified Civil Code serves as a defense

against political control through the use of minority fundamentalists and as a method of

avoiding the promotion of collectivism to further political objectives.

1.6 Countries follow uniform civil code

The concept of codification first appeared during the period of illumination, when it was

thought that all aspects of life might be resolved in a comprehensive manner using

human reason.

It might be said that many foreign nations have taken varied stances on personal law

issues. Muslim-majority nations like Turkey and Albania have indeed been effective in

27
 substituting other personal laws and Muslim personal laws with the Unified Civil Code.

Senegal, Indonesia, Mali, Chad, and Nigeria are some examples of secular nations that

have not made any significant changes to their conventional or Islamic laws.

Additionally, many nations in West Asia and North Africa have had success

modernizing their laws governing personal reputation and inheritance.28

A. German Civil Code,

Corpus of regulated private law known as the German Civil Code, which became

effective on January 1 , 1900, was regarded as a significant and ground-breaking

undertaking. The quest for a national legislation to supersede the frequently

incompatible traditions and regulations of the several German provinces gave rise to the

code.

German Burgerliches Gesetzbuch, aalso known as the Civil Code of German, is a

corpus of regulated private international law that was adopted by the German Empire in

1900. It still applies even after being changed. The code developed out of the need for a

genuinely national legislation to supersede the frequently incompatible traditions and

laws of the various German provinces.29

28 http://www.encyclopedia.thefreedictionary.com
29 https://www.britannia.com/topic/German -civil-code

28
 B. Civil code for china

After numerous unsuccessful efforts, Communist Party of China finally decided in

October 2014 that a unified civil code would be implemented by 2020.General

clauses of the civil code were approved in March 2017, and starting in August 2018, six

draught components were examined in various sessions of the NDPSC. The civil code

was subsequently submitted to and approved by the NPC at its annual meeting on May

28, 2020, capping the nation's six-decade path toward implementing a thorough and

contemporary civil code.30

C. Civil Code of Europe :-

Eventual intent off code of Europe, like a local code, is to include all aspects of the PIL

. The coverage of pil in a code frequently including law of family, succession ,law of

property, and laws of Duties. Phrase "European Civil Code" is frequently used to allude

to the harmonisation of commercial contracts across the European Union.31

30https:// diplomat.com/2017/03a-civil-code-for-china-a-great-leap-forward-for-the-
d

rule-of law/
31 Official Journal of the European Communities, 1989, N.C 158/400.

29
 D.Japanese Civil Code -

Japanese Civil Code, corpus of private international law enacted in 1896 that, with post-

World War II revisions, is still in force in Japan today. After the Meiji Restoration of

1868, different modernizing efforts resulted in the creation of the code. The code was

based on the first copy of German Civil Code, which was heavily influenced by Roman

organization and content. 32

E. Napoleonic Civil Code:-

Code of Napoleonic Napoleon (formerly known as the Code civil des Francais) is the

French civil code enacted during Napoleon I's reign. He claims that "My true honor is

not in having won 40 wars; Waterloo will obliterate all of these successes. " "My civil

code is something that nothing can erase, something that will live forever." 33

F. Common Civil Code in Gulf Countries:-

In Saudi Arabia, the basic law of 1992 established that the Holy Quran and Hadith are

the exclusive sources of legal authority and that all regulations and laws must adhere to

Sharia, the nation's common law. As a result, no foreign judgments or contractual

32 https://www.britannica.com/topic/Japnese-Civil-Code
33 Code civil des francais: edition originaleetseuleofficielle. Paris: L'lmpremerie de la
Republique. XII. 1804.

30
 stipulations that are contradictory to Islamic values may be implemented in Saudi

Arabia.34

G. Common Civil Code in Bangladesh:-

The absence of a unified personal law in Bangladesh affects equality under the law.

Weddings, separation, compensation, and land succession are all governed by colonial-

era laws. According to Human Rights Watch, a Muslim female wife in Bangladesh has

fewer opportunities to acquire marital assets than a male husband. A Hindu female wife

has no rights to divorce, while a Christian female spouse has restricted divorce rights.

Despite becoming a different religion, Buddhist marriages in Bangladesh are governed

by Hindu family rules. Religious regulations limit spouses' ability to terminate abusive

relationships, forcing others into despair. During the succession procedure, prejudice

and bribery are common. Notwithstanding reform calls, the government has been unable

to enact enough laws to eliminate current inequities in domestic laws.

1.7 Statement of Problem -

In India, there is no uniform personal laws. The UCC is a step towards the

implementation and framing of uniform personal laws. It undertakes to present unity

and integrity by way of uniform personal laws.

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

31
Another reason is that a consistent civil code is necessary for achieving cultural identity

and integrating individuals from various religious communities into one community of

shared citizenship. It was thought that after freedom, this move would've been made to

usher in a secular country.

1.8 Research Objective

The objective of this study is to investigate the application of the Uniform Civil Code in

India and examine how the UCC attempts to apply the very same collection of

democratic civil laws to all persons, including those from other faiths and areas, in a just

manner. It renounces citizens' rights to be controlled by various personal rules based on

their faith or race.

1.9 Hypothesis of study

The following are the hypotheses for the Common Civil Code studies:

(a) If Unified CC is legal, it ought to be implemented rather than merely debated.

(b) If the private laws have resulted in crimes against women, the implementation of the

unified civil code must put a stop to this.

(c) If the Unified Civil Code is implemented in the nation, the likelihood of a favourable

conclusion should increase.

32
1.10 Study Methodology :-

For the aim of conducting this research, findings of the materials from the primary and

secondary sources are all e-library based so the methodology that I adopted can be

termed as a ‘Doctrinal Method’.

1.11 Scope and Limitation of Study

The broad area of research is -

● Overall view of uU CC in country.

● The role of personal laws affecting UCC.

● UCC all over the world.

● The approach in India.

● Judicial approach

33
 Chapter - II

The UCC & The Constitutional Provisions

The Indian Constitution contains various sections that are clearly relevant to the

Unified Civil Code of India. The Unified Civil Code can be considered under the

following key readings:

(a) The Basic Freedoms

(b) The Governmental Policy Directive Principles; and

(c) The Basic Duties.

2.1 UCC and fundamental rights

The link between both the Constitution and numerous religiously relevant provisions

has been utmost difficult aspects of establishing the UCC.The main hurdle here is to

control the tension among the State's ability to create common civil code and basic

right of individuals so they enjoy one’s to freedom of religion, which include right to

also ruled by one’s personal laws of religion In this respect, rules of India's constitution

are vague, and the state's approach to reforming personal religious laws has indeed been

uneven.

It may be questioned in the Indian Constitution if the basic right to faith can take

priority over the basic equality right. In this regard, it should be noted that, since all

34
religious laws include discriminatory practices in some form or another, the state

sometimes jeopardizes women's rights whenever it decides to protect religious domestic

laws. In light of this, it attempts to explain why the state is obligated to start the

procedure of enacting UCC . Breaking the link between religious & personal and family

law is the most suitable means to obtain the Constitution's promise of fairness.

2.1.a. Nexus between personal law & Constitution of India

Indian Constitution gives the necessary guarantee of fairness and prevents the

government from discriminating against citizens based on religion, gender, or other

factors. Nevertheless, existing religious traditional rules have had the benefit of giving

men and women from various communities special rights in areas such as marriage,

divorce, and succession. Furthermore, men and women within the same society have

distinct rights in so many specific areas, with women generally having fewer freedoms.

The continuation of religious domestic laws despite the beginning of the Indian

Constitution has many jurists questioning if these rules are indeed regulated by the

constitution.

However, the main concern of Universal Civil Code arises as the right of religion are

guarantees as a fundamental right.

35
 2.1. b. Right to Freedom of Religion: A Constitutional Provision:

word "Religion" not described in Indian constitution, and it is word that is difficult to

define precisely. Spirituality is a profession of belief for individuals or groups, and it

does not always have to be theistic. Spirituality is an issue of individual belief and faith.

Each individual has the right not just to enthrall religious beliefs and ideas that are

accepted along with his judgment or conscbutnce, as well as to express those beliefs

and ideas through overt acts authorized by his faith.35

Articles 25th–288 of constitution of India guarantee religious freedom.

Liberty of privilege & conscience to declare, practice, and promote religion are

guaranteed to all citizens under Article 25 (1) of the Indian Constitution:

Article 25(1) guarantees a non-absolute right. This freedom is limited by civil safety,

morals, and safety, as well as the other articles of Part III of the Indian Constitution.

freedom to profess, practice, & propagate religion.

Civilian's ultimate inner freedom to shape his personal connection to God in whatever

way he sees fit is referred to as conscience liberty. It is to persons professing faith on the

surface. To "profess" a faith is to openly and freely announce one's beliefs. He does

have the ability to put his faith into action in whatever way he sees fit. To "practise"

35 Commr. H.R.E. V. L.T. Swamiar AIR 1954 SC 282 ; S.P. Mittal V. Union of India, AIR
1983 SC I.

36
 faith entails performing the necessary religious tasks, rituals, and rites, as well as

demonstrating his religious views and thoughts through the actions prescribed by the

religious organization to which he belongs. 36

To 'promote' implies to share and publicize one's religious beliefs for the benefit of

others. However, the term "propagation" merely refers to persuasion and explanation,

with no component of force. The freedom to spread oone's faith does not imply the

ability to convert others to a particular faith. Article 25 protects freedom of conscience

to all citizens, not only those who practise a specific faith.37

● Liberty to handle religious affairs: According to Article 26th of Indian

Constitution, each religious affiliation of one segment of it has the below

mentioned rights:

● a) Maintain and create organisations for charitable and religious reasons.

● b) Handle its very own relations in matters relating to religion.

● c) obtain immovable as well as movable possessions.

● d) To administrate of that kind estate in according to the law.

● Liberty from taxation for religious development: According to Art. 27th, no one

must obligated to pay taxes for advancement or support of any specific religion or

36 Dr. .N. Pandey, 'Constitutional law of India 53rd edition 2016. page no. 366
p

37 ibid

37
 any sect. This essay highlights the government's secular nature. The government

cannot use public funds acquired through taxes to promote any specific faith.

● The rationale for this clause is that India is a secular country, as well as the

religious liberty provided by the Constitution to both people and groups is

contrary to both group and individual policy.

It is a violation of the constitution's policy to use public funds to promote or maintain a

specific religion or religious group.38

● Article 28 prohibits religious instruction state-aided organisations:

● Acc. to article 28th, none of the religious instruction will given in one’s academic

institution which is entirely supported by state funds; however, this provision

doesn’t apply academic institutions administered through the government but

formed entirely through an trust or endowment that needs religious instruction in

such an organization. Article 28 refers to four different types of academic

institutions:

● Institutions entirely supported by the governmental Institutions acknowledged by

the governmental Institutions getting the state's funds fund Organizations

governed by the government but founded under any trusts or endowment

38 Commr..R.E. V. L.T. Swamiar, AIR 1961 SC 282.

c

38
2.1. c Secularism and Religious Freedom

India is a secular country. Secularism means neutrality of state in matters o f religion. It

means that India has no official or sponsored religion like Sri Lanka and Pakistan,

where Buddhism and Islam are the official religions, respectively.

This matter of secularism is established in Preface to Constitution, shows the people's

will to be secularism to all of residents: "freedom to think, religion, belief, and devotion.

"secular" added to preamble of Constitutional Amendments (42nd Amen.) Act of 1976.

A secular nation was never deemed irreligious or atheistic in India. It essentially means

that this is agnostic on religious topics. this old doctrine in India establishes state’s duty

to protects all the religions but does not interfere in any.39

The state cannot establish its own faith. It needs to be fair to all faiths. The government

must regard the cathedral, mosques, and temples in the same way. The government is

only focused on the relationship between men and men in a secular nation. It is

unconcerned with man's connection to God. It is up to the person's morality to decide.

Every guy ought to be able to enter paradise in his own unique way. Worshiping God

must be done in accordance with one's beliefs. A man has no accountability towards the

state because of diversity of one’s religious beliefs. According to the Apex Court,

"secularism is fundamental characteristic of indian constitution." 40

All faiths &

39 Vasudev V. Vamanji, ILR 1881

40 S.R. Bommai V. Union of India AIR 1994 SC 1918

39
 religious denominations are treated equally by the government. Religious ideology is an

issue of individual belief and should not be intermingled with secular activity. The

government can restrict secular activity by establishing legislation. Secularism,

according to Justice Ramaswami, is not anti-God. Various scholars and jurists

eloquently presented the notion of secular values in its modern incarnation.41

Article 25th of constitution of India establishes notions of religion’s freedom and

humanism. The Apex Court of India had a significant impact. The Apex Court of India

has risen to the top in preservation of religious aspects granted by Art.25 of Indian

Constitution. Religious freedom is limited by rights of others, & the supreme court of

India played an important role in this regard.

2.2 UCC as Directive principles of States policy

As it is known, Part IV (Articles 36 - 51) includes specific principles that have described

as the state’s active obligation .Constitution's directive principles for policy of state

include two aspects. To begin with, it is not actionable in any tribunal, so if the

government does not follow or execute a directive, its adherence or execution cannot be

41 In eighteenth century J.S. mill and Bentham's "Principles of legislation' flowed the theories of
utilitarians. These principles later on enunciated by 'Holyouke' in his famous book. Principle of secularism
in 1859.

40
enforced through the law courts. (ii) Second, these are essential for the government of

nation, & it is responsibility of state to implement ideas in establishing law.

Article 44th, which expresses , "Government must strive towards obtaining a uniform

in whole of the territory of India for the nation’s citizens ," is one of the major guiding

principles directly related to the UCC. Because Article 44 is the only clause of

Constitution that allows for the harmonization of inheritance rights, As a result, there's

been substantial debate over the actual purpose, intent, and extent of the uCode. Article

44th of constitution doesn't really call for all legislative bodies to straight away create a

UCC. It only stipulates that state will attempt to obtain a UCC for people across India's

jurisdiction.

It should also be noted that Article 44 cannot be read in isolation; rather, it must be

considered in context of remaining provisions of the Constitution. As a result, demands

of Article 44, as well as the modes of execution, must be considered in context of

provisions of Indian Constitution(part-III). So far, there have been various

interpretations of the connection linking the guiding principle of state policy &

fundamental right in question. This issue was brought before the Indian courts at the

outset of Indian Constitution.

41
 The Apex Court ruled that directive principle cannot take precedence over fundamental

human rights. However, this view was later softened, and the Apex Court found

coherence between both the fundamental human right and the directing principle.42

Finally, in MM. Ltd. v. Union of India, India 43

"Harmony and harmony among

fundamental human rights as well as directive principles is a specific mention or basic

construction of the constitution," according to the court. Following this strategy, the

tribunal has attempted to achieve balance & coherence between the fundamental human

right & directive principle.

According to Justice Chandrachud, " The Constitution of India is established on the

foundation of equilibrium among Part III & Part IV of Indian Constitution; giving

unlimited supremacy to one over the other would disrupt the Constitution's equilibrium.

This congruence and balancing between fundamental human rights" 44

Among the most pressing issues in this regard is how to apply Article 44 without

jeopardizing citizens' fundamental human rights. In this regard, Prof. Tahir Mahood

believes that the constitution does not foresee immediate parliamentary adoption of

UCC , either at federal or state levels. Article 44 calls on the federal government as

42 Mohd. Hanif Qureshi V. State of Bihar, AIR 1958 SC (739)

43 AIR 1980 SC 1789
44 Minerva Ltd V. uoi AIR 1980 SCC 591

42
 well as the parliament to make endeavour this will, eventually , ensure consistency in

the formation and application of the civil law. 45

2.3 Fundamental duty and Uniform civil code

The wonderful notion of fundamental obligation was introduced into the Indian

Constitution with the 42nd Amendment in 1976. It may be argued that some of the

important responsibilities have already been implemented by legal rules, but others

seem to be completely unenforceable since they are ambiguous and imprecise.46

In accordance with the statutory position of basic obligations, these aren't susceptible of

legal sanction; this might be viewed as a 'directory.' Furthermore, private individuals'

obligations cannot be implemented through Mandamus because they do not undertake

public tasks. However, the preceding reasoning does not imply that all these basic duties

are without legal significance. It should be noted that there is a strong link between the

principles of basic obligations and a unified civil code, and that several of the

fundamental duties emphasize importance of having UCC in India.

In India, goal of Article 44 is to establish national integrity and unity through communal

peace. The basic purpose of the basic obligations is also based on the opinion that every

45 ChudhariHyder Hussein- "Uniform co de for India" AIR (Journal-P. 71-72)

46 M.P. Jain, India constitutional law 1987 P. 750

43
 Indian citizen has an obligation to promote unity and a sense of common fraternity

among all Indians, regardless of religious, linguistic, or sectional differences. 47

The Uniform Civil Code is also a means by which individuals from disparate

backgrounds can be brought together to create a nation. which are also prominently

mentioned in the Constitution's preamble. Art. 51 A (c) states that it is the obligation of

every Indian citizen to safeguard and maintain India's independence, unity, and dignity.

2.4. Socio and legal strive to implement Uniform Civil Code

Through their decisions, the courts have emphasized the importance of enacting a UCC

for the benefit of nation and all of its residents. The judicial organ has advised the

legislative body to take the required procedures to draft a similar code for marriages,

separations, succession, adoption, and support. Triple talaq, polygamy, and other evils

exist in the Muslim community because they completely deny Muslim women their

rights. The importance of the UCC was firstly recognized in the significant decision

"Mohammad Ahmed khan vs Shah bano begum," also known as the Shah bano case, in

which the Hon’ble SC stated "it also a source of sadness that Art 44 of Indian

Constitution has been become dead issue ." 48

47 ART 51-A (C) of the constitution

48 UCC - need for hour, shodganga,
https://shodganga.inflibnet.ac.in/bitstream/10603/5447/11/11_chapter%204.pdf

44
Many representatives of Muslim community did not accept the Apex Court decision,

and the state legislature, under pressure from Muslim minorities, modified muslim

women (Protection Of Their rights on divorce) act 19866, obviously rejected muslim

women’s right for maintenance under sec 125th of CrPC.

In landmark decision Seema v. Ashwani Kr., which made ceremonies of the marriage a

compulsion , the SC stated "its probably exact moment that we have to took another

look at whole full spectrum of the federal and the state laws on mandatory registration

of marriages and divorces to evaluate if there is a unified level of the wedding or

divorce registration requirements of the nation at level of social advancement, but if not,

what appropriate legal initiatives can be tried to introduce."

According to J. R. Sahai, India is secular, republic, representative democratic . The

‘freedom of the religion’ is the center of society, and slightest change trembles social

fiber. However, religious practices, infractions of dignity and human rights & the sacred

asphyxiation of largely civil as well as content freedoms are not independent of the

government but persecution. As a result, a uniform code is absolutely essential for

safeguard of downtrodden & advancement of nation’s solidarity & unity.

Although culture and religion are vital features in a democratic society like India, those

traditions and religious practices must not infringe on basic human rights granted to

individuals in Indian Constitution. In current environment, we have a unified criminal

45
 law to govern offenses regardless of faith or gender. As a result, it prioritizes individual

rights rather than religious practices. Likewise, a UCC for all faiths does not imply the

abolition of societal beliefs; rather, it strives to eliminate behaviors and regulations that

violate people' basic human rights, as well as legal and non-legal rules that are sexually

discriminating.

2.5 Misconceptions about UCC

The framers of Indian Constitution envisioned Common Civil Law regulating citizens of

India with fairness as the norm. But those brilliant thinkers would never have imagined

the Uniform Civil Code falling into the wrong hands. Politicians today utilize the UCC as

a weapon in their deception tool. Some legislators have spread the myth that Unified

Civil Code will oppress minorities and impose dominant population laws on them.

Politicians seeking votes from religious voters have given the Unified Civil Code a bad

face, presenting it as opposed to all religious traditions and the people's beliefs.

Constitution of India is written in such a way that legislation is created by the Supreme

Legislature, known as Parliament, which comprises the folk's delegates whether directly

or indirectly. A law must be approved with the backing of two-thirds of its membership

and then with the approval of the Executive Authority. As a bill must be scrutinised

46
before it becomes an Act, UCC would be subject to multiple assessments before it

becomes law. Minorities would not be ignored in these studies. The Unified Civil Code is

perfect legislation for bringing secularism and consistency to private and civil rules in the

Indian legal system. The issue stems from individuals who are opposed to the UCC's

adoption.

The effect of Unified Civil Code will be influenced by two elements: the fundamental

text of the code and the mechanism used to implement the law. In the terms of content,

the goal of UCC ought to be to ensure consistency of entitlements in view of fairness and

gender equity ideals. In terms of the process, consider how specific laws are inextricably

related to religious ideas.

After wide and thorough engagement with all kinds of groups in the country, the UCC

must be drafted in a transparent way.

2.6 Constituent Assembly Debate and Ucc

The constituent assembly was drawn to personal laws, which fueled arguments in

support of UCC . A. 35 dealt with idea of a UCC. Muslim people were deeply opposed,

47
 but the majority of Hindu people backed it. B.R. Ambedkar advocated for external

interference in legislation. 49

There has many of debate on individual law from every perspective. Before the

constitution of India was written, the constituent assembly discussed the every

perspective of personal laws. In Article 35, our assembly constituted considered the idea

of ucc. Mohammad Ismail of Madras proposed adding the following provision to Article

33, which said that "no organization, segment, or group of individuals will be bound to

cease their very own personal law if they possesses such a law." said that one of basic

right was right to practice one's individual regulations. He stated that traditional rules

were indeed a way of people lived.50

Personal laws, in his view, were an integral element of society and religion. Any

tampering with statutory provisions would have amounted to interfering with entire way

of life of individuals who have followed such regulations for generations. Mohd. Ismail

went on to say that India was becoming a secular country and that nothing should be

done to undermine the people's religious and cultural character. Any tampering with

personal laws would've been equivalent to interfering with rules of individuals who had

been following such regulations from generation to generation. Mohd. Ismail went on to

49 constituent assembly debates, 1948, Vol. 6, P. 548

50 debates, (1948), P. 560

48
 say that India was becoming a secular country and that it should refrain from doing

anything that undermines religious & cultural essence of the country.

To bolster his case, he cited comparable safeguards in other European

constitutions dealing with minorities. Nevertheless, such provisions were limited in

scope because they dealt with any class, sector, or group of individuals and weren't

limited to minorities alone; the suggested revisions attempted to protect the rights of

people under current personal laws. Mohd. Ismail said that supporting the Uniform Civil

Code would've been detrimental, resulting in dissatisfaction and loyalty.

Organizations, Hindu as well as Muslim, challenged Assembly's authority to intervene

into the religious legislation. Art 35 was hostile to the religious liberty. Hussain imam, a

speaker of Constituent Assembly, shared similar sentiments, pointing out that India is

too broad a nation with a diverse community to imprint with one type of something.

We've had tremendous heat in the north, and Assam has had more rainfall than any other

place on the planet. We have no rainfall in the Rajputana deserts. Is it feasible to also

have civil law homogeneity in such a diverse nation? 51

Whereas individuals of the Hindu community expressed opposition to Muslim

sentiments. K.M. Munshi had the underlying opinions:

51 Constituent Assembly Debates, (1948) Vo VIIth, P. 550

49
(A) Despite elimination of Provision 35, the legislature might pass a UCC because the

section protects religious freedom and gives government the authority to regulate

civilian religious activities.

(B) In other Islamic countries, such as Egypt and Turkey, minorities based on religion '

relevant provisions not even recognized.

(C) Specific muslim communities, such as the melons and khojas, hadn’t wish to adhere

to shariat instead were forced to do by the shariat act of 1937.

(D) Even minorities were subject to uniform legislation in European countries.

(E) Religion and personal law must be separated. The clauses of the Hindu Code Bill

did not adhere to Manu and Yajnvalkya's principles.

(F) Personal regulations discriminate against people because of their gender, which was

prohibited by the Indian constitution.

(G) People must evolve out of the British-imposed nationalism that personal law was a

part of religion.

Iyer, Constituent Assembly speaker, backed Munshi ji & campaigned for the parliament

to pass the item on UCC.

Members are willing to accept the provision, dismissing the Muslim delegate's motion

to preclude individual laws from the scope of the UCC.

50
 Dr. Ambedkar refused to acknowledge revisions and described government's power

intervene in legal codes of other groups. He supported several communities' laws. He

supported the reasons of the Constituent Assembly's supporters, while also offering

some reassurance to the Assembly's opponents, explaining that the plan created just

"power," not "responsibility," and closing the discussion with these remarkable phrases:

"Sovereignty has always been restricted, even when it is asserted to be limitless, since

sovereign rights in use of authority must accommodate themselves with the sensibilities

of different neighborhoods; no state can use its authority in a manner that provokes the

Muslim community to rebel. If the government implemented this, I believe it'd be

insane. However, this is a problem of authority practice rather than power essence."

Furthermore, Dr. Ambedkar's remark above encouraged Muslim delegates " not going

into depths Article 44." He stated that regardless of whether the ucc was adopted, it

could only apply to individuals who agreed to be ruled by it. 52

52 B.R. Ambedkar, constitution of constitutionalism

51
 CHAPTER-III

Implementation of Uniform Civil Code

During constitutional council discussions, Dr. Ambedkar was inspired by the western

world and desired to create UCC in India to bring about consistency & harmony in the

community. Since India's different cultural groups, the concept of Ucc has been

vehemently aversed by the other representatives of the regional parliament, who argued

that implementing a Uniform Civil Code would indeed infringe on rights to religious

liberty and right to handle religious affairs guaranteed by Articles 225 & 26 of

Constitution. As a result, the UCC remained to be implemented by the government at a

later date and was included as a directive policy of state principle in Part 4th of the

Indian constitution.

"I personally do not understand why religious doctrine must given such, expanding

authority to encompass the entirety of life and also to prevent the Senate from intruding

on such a ground; we the people who have this freedom in order to improve our socialist

structure, which is so replete with disparities and unequal treatment, as well as other

stuff that disputes fundamental human rights," said Dr. B.R. Ambedkar, a fervent

advocate. "The Declaration exemplifies Dr. B.R. Ambedkar's commitment to

52
 establishing a UCC , which has the capacity to bring about such a profound

transformation in India's people's ability to identify." 53

The Uniform Civil Code represents a progressive country. It suggests that the country

has surpassed class and creed. India has had significant economic expansion, yet

culturally, we are neither contemporary nor conservative. The charter would help

eliminate confusion and unify the country. 54

This is undoubtedly the most hotly disputed issue in recent years, and it is also fraught

with controversy. While a large majority of people support it, an equal number of

individuals are generally opposed to idea of UCC.

This chapter is split into two sections. First covers the pre-independence period, while

the second covers the post-constitutional era.

3.1 Progress made prior to Independence

According to background of individual laws in India, the practice of standardization

started in the Britishers reign , which was an ideal time to change individual laws.

Personal laws shouldn't be defined, according to the different law commissions

established by the British government on a regular basis. Nevertheless, some progress

53 Constituent assembly debates, (1948), Vol. VII P. 544

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

53
 has been made through the passage of remedial and ameliorative laws. The British had

little difficulty adapting to changes in Hindu family law due to their adaptability and

inherent capacity to grow. The sluggish introduction of UCC started during in British-

era, when Lord William Bentic attempted to abolish unfair religious practices such as

the sati-pratha custom. 55

The Charter of 1813 was primarily responsible for social improvements.

Among the key provisions passed by the British government that promote civil law

consistency, religious peace, and women's rights -

1. The 1872 Special Marriage Act

2. The Married women's property Act of 1874;

3. Indian minority act of 1875;

4. Guardianship and wards act of 1890; and

5. Restraint on Child Marriage Act of 1929.

However, this was more of an exception than a norm; their strategy was to regulate in

the domain of family court at the request of the affected population. This did not imply

that the entire society had to demand change. Few individuals in society advocated for

change. Consequently, the 1829 state intervention would not have been enacted.

55 Derrett, 'The code of family law-1975- at P. 21

54
 Nevertheless, the British were compelled to adopt a more proactive policy in order to

avoid a few of the negative consequences of personal laws. As a result, the British

enacted a few secularism legislation, like as the State Regulation Act 1829, 1850 caste

Disability removal act, hindu remarriage of 1856, Muslim Marriage Dissolution Act of

1939, 1869 Indian Divorce Act, Indian succession legislation of 1925.

Immediately after independence, Chaudhari Hyder Husein, a notable lawyer, stated,

"For more than two centuries under British rule, we had also come to accept that it is

only hindus which will be controlled hindu law & muslims to ruled by muslim law ,

but this is purely mediaeval plan that does not has its existence in today's time ."

As a result, there is a significant demand for a single program to be known as the Indian

Civil Code. This is legal remedy to community issue. It is seen to be vitally essential

for the sake of the country's unification with a single piece of legislation again for

formation of one nationality in the nation.56

Given that they were aware of the difficulties faced that would be encountered, our

framers of the Constitution purposefully used the words 'Endeavour' and 'Secure' in

article 44. The above secularism laws were established by the British in response to

56 ChaudhriHyderHusein- "A code india" AIR 1949 (Journal-Vol. 68) PP -72

55
demands from a few prominent and intelligent reformers. Instead, the British established

a strategy of enacting family legislation on account of the affected population. It should

be emphasized that British citizens were less concerned with concept of a uUCC, but the

secularisation of personal laws started by government

3.2 Progress made after Independence

Article 444th of Constitution of India has a clause for UCC under the guiding concept

of government policy, which is not a legitimate clause of the  Constitution of India.

Since its adoption following independence, the UCC has served as a gathering place for

humanist and liberal social groups. It was one of the first calls for introduction of a

UCC for succeeding monarchs. They thought that both the legislative and the

administration would educate society in order for it to adopt and carry out a UCC at the

conclusion of an evolutionary period.

The central government made many attempts, whether directly or indirectly, to

secularize personal law and implement a ucc throughout India.

1. The 1954 Special Marriage Act: act of 1954 (which succeeded Act of 1872 with

same name) introduced a secular law of wedding, separation, and succession for the

56
 very first period. Indian Succession Act 1925 controlled the spouses in terms of

inheritance. 57

The Act allowed any two Indians, regardless of faith, to marry. The Act of 1954

improved on the former Act of 1872 because the old law required spouses to abandon

their faith, but the Act of 1954 allows couples to married without renunciating their

faith. The Act of 1954 was voluntary, and it wasn't enforced as a mandatory regulation

on Indian citizens. 58

As the Honourable High Court of Delhi stated in Pranav v. NCT, Delhi, "the

outstanding marriage act was passed to allow for a distinctive type of marriage for any

Indian who professes different beliefs or desires an unified type of regulations of the

marriage."outrageous revelation of wedding arrangements by two adults has capacity to

solemnize it may, under specific circumstances, jeopardise actual wedding . Because of

parental interference, it may potentially risk either group's life or an appendage in some

cases. In such circumstances, if such a procedure is being used by experts, it is

completely rare and lacks legal validity."

57 ISA, 1925 was applied varying exceptions to Hindu, Muslim, Jew, Christans and Parsis
58 Modern Hindu law- Dr. Paras Diwan, Allahabad law Agency 2011, PP 86-87

57
 2. The 1955-56 Hindu Code: Prior to independence, there were gradual reforms in

Hindu statutory provisions. This is why, immediately after the Indian Constitution was

adopted, the Indian parliament began to codify and revise Hindu legal system. 59

Critics of the bill expressed concerns in Congress about the administration's willingness

to implement the UCC once it was passed. The truth is that many of the critics'

suspicions are now facts. The succeeding governments have been unable to globalize

other groups' existing laws. 60

Acc. to Imminent jurist Smt Leila Seth, all these changes will develop feeling of

hesitation towards dowry. When a men grow-up knowing that men cannot have

extraordinary privileges in relation property right, there need to change of mentality for

better. concurrent list has family law, various states have already heading towards in

eliminating various discriminatory clauses. amendment reiterates the fundamental

constitutional principle of the equality before the law.61

Prior to 1956, Hindus were regulated by estate rules that differed from area to area and,

in certain circumstances, from class to class within a single territory.

Many adjustments were made to give women more rights, yet they were nevertheless

given the crucial coparcenary authority.

59 A. Parashar- "Goal uniforming and sex equality (1992)

60 . Parashar- "The goal of unfirming and sex equal of "chapter V" - Hindu Law Reform-
(1992) PP 77-143
61 The times of India, New Delhi, 20, 2004, pp-20

58
 3. The Hindu Succession Act of 1956(amended in 2005), passed in Rajya Sabha,

grants women equal rights in the succession of ancestral riches, which was formerly

held only for male offspring. As it stands currently, woman is entitled to an equal part of

her family's property as her male brothers, however she has no entitlement to ancestral

property.

As a fighter for female issues, the Hindu Code bill was introduced. This bill sought to

formalize Hindu rituals while also modernizing them through the adoption of women-

centric regulations. Furthermore, Hindu Succession (Modification) Act, 2005, was

enacted with the intention of fulfilling the legal goal of equality of the sexes, as this

modification granted women the same rights in law of succession as their sons.

4.The dowry prohibition act of 1961:-

The Act of 1961 62 forbids all people, regardless of their faith, from engaging in financial

or other dealings at weddings. However, the Act expressly excludes from its use the

concept of "mehr" (dower) under Muslim law.

It is worth noting that the Dowry Act of 1961 was among the first of its type to be

implemented on religious grounds. However, experts have demonstrated its limitations in

combating the vice of Dowry. This sin has reached grave proportions not just among

Hindus but also within other groups. 63

62 (Act No. 28 of 1961)

63 D.D. Basu, ucc for India, 1997, P. 38
b

59
 5. Bill of Indian adoption1976:-

This bill was created in way to secularize individual adoption rules. This measure was

regarded by the administration as the initial step toward establishing a UCC in India.

The bill aimed to make it possible for all Indians, regardless of their religion, to adopt a

baby.

Except for two communities, namely Muslims and people of the Schedule caste, the

adoption bill was widely supported. ST concerns were founded on some practical issues,

and they urged that law come to an agreement by making some compromises to the

people. With a few outliers, the majority of the Muslim leaders voted against the bill,

claiming that this really violated Muslim personal law by allowing a Muslim to ignore

the Quranic prohibition against adopting.64

Since the collapse of the Lok-sabha in March 1977, the adopting measure has been

unable to become law. In December 1980, a fresh adoption bill was presented to the Lok

Sabha.

The new bill drew criticism from unexpected quarters. Despite the fact that no joint

committee was appointed this time, the fresh bill lapsed due to the dissolution of the

LokSabha in 1984. The Muslim community objected once more because it violated

64 V. Dragmwas: "Towards the UCC, 1989. PP-8-18

60
 democratic principles. As a result, in India, a child protection law cannot be challenged

to on religious grounds. Religion has had a negative role by preventing the spread of

liberal legislation and perpetuating societal problems.

6. Provision of the section 125 Under the CrPC:-

In India, significant efforts were made to incorporate the essence of the Uniform Civil

Legislation into crpc . S.125 of crpc allows for quick, efficient, and very cheap penalties

against anyone who disregards or refuses to help their dependant parents, kids, and

wives. Despite the fact that the subject of these articles is civil in character, the

fundamental reason for their presence in the law is that the solution offered is quick and

inexpensive.

The range of section 125 is accessible to individuals of all faiths who have no

connection to the parties' personal law.65

The court ruled in the well-known case that Muslim women are likewise eligible to

maintenance under Sec. 125 of Crpc. Even then Chairman of the Supreme Court, Y.V.

Chandarchud, stated in that case unified code will promote nation’s integration by

eliminating disparate legal affiliations with opposing ideologies. Section 125 reflects the

concept of the UCC.

65 Nanak Chandra v. Chandra Kishore Aggarwal, (1969) 3SCC 802

61
 7. protection of women from domestic violence act of 2005:

A Revolutionary law: Following independence, while no codified bye-laws were

enacted in the scope of individual law for all citizens, laws relating to some civil issues

were implemented piecemeal, including the Protection of Women from Domestic

Violence Act. 66
same law intends to provide to women all kinds of relief which are

necessary for domestic relations, whether concerning right to live in a mutual

household, for residence or for monetary relief or for the protection , or the custody of

children or for compensation,etc.67This legislation is for 'women' and not for any

particular group of women of a particular religion. And it is a proven fact that women

from all religions and groups are approaching courts to get protection under this law 68

and such law leads to one step towards implementation of the Uniform Civil Code.

8. Prohibition of child marriage act of 2006:-

Child marriage means "a wedding wherein one of the parties to the contract is child."

69
child is referred as "person who, he is man, not completed age of 21; she is woman,

has not complete the age of 18." 70

Decision of the wedding , being a cultural and not an
66 Mamta Rao- 'Law relating to women and children'- 2004. at P.P. 21-22
67 Sec. 17 of Act 2005
68 Sec. 3 of Act 2005
69 Times of India, Mumbai, 2016, pp. 07
70 Sec. 2(b) of the prohibition of child marriage Act. 2006.

62
personal decision, is important for everyone. Various factors, such as deteriorated

position of women and the use of endogamy in marriages, resulted in child marriage.

Due to insufficient clauses of child marriage restraint Act 1929, society supported the

growing need for legislation on child marriage with strict punishments to eliminate or

effectively control the evil practice of child marriage.

central government after consulting state government on recommendations of the

National Commission of W omen, and National Human Right Commission decided to

repeal & re-enacting the child marriage Restrain Act 1929, As a result, on January 10,

2007, the Child Marriage Act 2006 went into effect.

Child marriage is a threat that must be addressed with the help of community. There is a

call to render child marriage void ab initio there under Child Marriage Prohibition Act,

but Indian society is intricate, and declaring child marriage worthless would only

jeopardise the rights of women who have been victims of childhood weddings. The law

alone will not suffice unless it is supported by society. To some degree, UCC also aids

in the prevention of early marriage.

63
 9. Registration of Marriage:- Registration of Marriage71 is one step towards

implementation of the UCC . Registration of Marriage is necessary reform and in its

absence, women in particular can become victims of fraud.

In 2006, Apex Court ruled that weddings of all Indian citizens of all faiths must be

recorded coercively in the regions where the wedding is solemnized. Therefore,

marriage registration is necessary to change personal law, whereas in its exclusion,

women could become victims of feuds. It denied women social and legal status.

Marriage certification will guarantee that the prerequisites for a legitimate wedding have

indeed been met.

3.3 Uniform Civil Code as per Law Commission Report

The "UCC," according to Law commission, is not necessary none desirable. In its

consultation paper on family law reforms, the Law Commission has advocated 'Equality'

within communities between men and women, rather than equality between

communities. Being in a situation where UCC is neither required nor desired at this

point. In order to promote gender justice, the Indian Law Commission has advocated for

revision of family laws in every formulation of some parts. The Law Commission has

71 The rules suggests marriage of the individuals belonging to particular community

should be solemnized within the community only.

64
 advocated for "fairness within groups between men and women" instead of "fairness

between groups" in its consultation document on family law reforms."72

Rather than developing a UCC, that is neither essential nor desired at this time, the law

commission has handled with discriminatory laws. The majority of nations are now

heading towards acceptance of diversity, as well as the simple existence of distinction,

which is not prejudice, but rather a signal of a vibrant democracy. The committee adds

that celebrating the richness of Indian culture should not restrict particular groups, and

also that women's liberty of religion must be preserved without sacrificing their rights to

equality, since it would be unfair to compel women to select between the two.

The Hon'ble SC dismissed a petition concerning the enforcement of the Uniform Civil

Code on September 30, 2022. The Bench noted orally that Law Commission of India

report, which claimed that the Uniform Civil Code was undesirable, was based on a

decision that had twice been called into question by Supreme Court of India and hence

had a “shaky” foundation. 73

Despite the fact that the commission is still working on draft of uniform civil code, its

implementation is critical.

Also, after decades of independence, people do not have absolute autonomy. Uniform

private law cannot be viewed religiously, but rather as a necessity for the nation. Non-

72 21st Law commission Report 2015

73 www.livelaw.com

65
 implementation of the universal legal code is a fundamental flaw in India's development

of a faith-based world. It is essential for India's academics to embark on the vital and

important mission of teaching the people listed below and demonstrating the logical

virtues of the suggested card.

The UCC is important for national integration and gender equality. However, the law

has to be such that it respects diversity and secularizing. A fine balance has to be social

justice. The UCC should emerge as thread to bind different communities rather than as

a threat to disintegrate society.

3.4 objection related to Uniform Civil code

Opponents and limits for UCC are just as archaic as concept of UCC itself, because it

includes the standardization of legal codes, which frequently blend with culture and

religion, and therefore it has been attacked.

The concept of a ucc is divisive & has been met with numerous objections since its

inception.

3.4.a. The UCC is Against freedom of Religion

During British rule, India began to codify its laws. Throughout this time, most criminal

and civil laws were defined, but personal laws also weren't submitted to change as often

66
 as criminal and civil laws which are not personal . Strategy was implemented because

the british did not wish to enrage religious culture of India , which regards existing law

as a vital part of their faith.74

A unified civil code, according to the Muslim Representatives, would infringe their

freedom of religion . On contrary, promoters of the uniform civil code considered it as

way to achieve national fairness, equity of gender, or togetherness. They contended that

traditional rules are not fundamental component of the freedom and if they were, the

government would have authority to control liberty.

Also, after, India got its independence, the legal issue between religious freedom & the

demand for a UCC has yet to be solved. The country appears to remain as divided as it

was prior to August 15, 1947. Opposition to the UCC continues to seek refuge in

religious liberty.

3.4.b. UCC is Against Cultural Right

Another prominent criticism to UCC in India is that imposing it on individuals will

harm their cultural heritage and detach them from the government by imposing

conformity. In this regard, it is attempted to argue that Art. 29 guarantees every segment

of Indian citizens the right to preserve their language, story line, or heritage, and that the

7474 Asghar Ali , ' rights of women in islam' 1992, pp. 167-16
4a
a

67
 UCC violates legal protection because it could begin imposing various types of values

and traditions on residents. It is worth noting that minorities, particularly the Muslim

community, have raised concerns about the UCC in India based on their cultural

values.75

The argument that a UCC in India would enforce conformity without taking into

account the cultural customs of diverse religious sects and hence alienate such people

from the government is false. Such fears are unfounded because the Constitution

guarantees the required security in religious beliefs & liberties of culture , and free

court is construed constitutional amendments which offer the greatest possible security

to religious and cultural minorities.

3.4.c. The Religious Laws are Immutable

Another argument against UCC in India would be that religious communities cannot

embrace it since their personal rules are an intrinsic element of their faith that cannot be

changed. In another terms, religious personal laws are holy and unassailable since God

ordered them. The background of personal laws shows that, with exception of the

Muslim community, most religious communities have weakened their positions over

75 Paras Diwan, 'UCC; A projection of equality, (Minority and the law) 419 at 425

68
 time. Due to dilution, standardization of laws of Hindus was accomplished by

disregarding the protests of a few hardline Hindus. 76

In terms of Muslim Community's position, they stand firm. The Muslim society's s

instance is as required as concept of Uniform code in India. Most Muslim

representatives in Constituent assembly rejected Uniform Civil Code by proposing

arguments on the irreversibility of individual laws. On contrary, Munshi ji, Shri Aiyer,

and Dr. Ambedkar made a compelling case for the Uniform Civil Code. Sh. Munshi

contended that sophisticated countries have muslim dominance such as Egypt and

Turkey, minority’s personal laws communities were never regarded as sacred enough to

preclude the adoption of a civil code.

There are multiple instances in the background of private laws in India of when Muslim

law was altered to bring about democratic change within Islam groups. For instance, by

implementing the Termination of muslim marriages act in 1939, muslim women gained

several reasons for the divorce that they did not have under conventional Muslim

personal law.

Minority religious people's regulations are granted special status under the Indian

constitution, but this should not constitute an impediment tto the adoption of a UCC .

The notion of the irreversibility of legal codes must be avoided in this context, as this

76 Baxi U. - UCC & crisis of common sense family law & social change (1975.)
u

69
has the potential to jeopardize the fundamental goals of equality, fairness, brotherhood,

and secularism.

3.5. Constraints on the Enactment of UCC -

The above grievance usually present great difficulty for the legislature. There are also

some practical problems with the implementation of the UCC in our country. The main

practical problem would discussed under below mentioned head:

1. No draft bill

2. No Build up of Public Opinion

3. Lack of information

1. lack of information - The significance of 'Information' for the evolvement of society

has been realised at all phases. There is popular saying "knowledge is the power".

There is not be a controversy about the philosophy bbeyond this proverb but in age of

information in 21st century, said saying must be interchange by new one

"Information the real power".

The past of the codification of one’s individual laws of different communities is

concerned, massive efforts had made by the lawmakers of the country . As far as

process of codifying of the laws of Hindu is concerned, it was found there were discrete

hardships . Initial difficulty was related to the collection and consolidation of the

70
 provisions of distinct schools of said law. The plan of codification made it a difficult

task for Muslim personal law due to lack unavailability of particulars about the

different schools prevailing in Muslim law.77

As the execution of the Uniform code is comes, there is a significant need to aggregate

information relating to all the one’s individual laws prevailing into country . For

humongous task, advised there must be group of experts who must be assigned same

task. Though different commissions of law in India have put efforts to collect such

information, but still the same is unfinished. After some time the Commission of law

has been overburdened, that’s why distinct body can do justice to above mentioned task.

2. No built up of opinion of public

History of legal reform shows how difficult reform is. There are two methods of legal

reform.

In former method, lawmakers can impose reforms, whereas in the later method, society

must be willing to accept the reform. 78

Public's response to formulation of UCC was not very responsive. Large population in

India are illiterate, and they unable to get the impact of UCC. People are, especially

Islams, who follow the views of orthodox Muslim leaders. negative reply on the part of

77 Alice Jacod - ' Constitution evolution since independence" 1973 at pp. 656-657
c

78 Sharma, S.D. uniform civil code: Dispensation of justice within the gamut of personal
law, 2009 (1) AIHC 26 (Journal Section)

71
 Muslims makes it very hard to have uniform code. Institute for Development Studies

located at Aligarh has carried out survey, 79

and result reveals that the larger of the

Muslim population has ignored the questionnaire & those who have taken interest have

not favored UCC. survey carried out by the above institute has showed that merely 8.65

% of the Muslim replied to a questionnaire reflected the wish of enactment of the ucc.

On other side, at a time, 74% of the Hindu desired a UCC.

On review of the substantial situation as regards codification of one’s individual laws as

the initial stage for the UCC, it could be summed up as follows:

(i) Individual laws of, Christians, Hindu, muslims, or parsis have been codified. Laws

of Hindu , which, the recently , by or large, meet foregoing four tests, but not in the of

succession.

(ii) Christian laws are biased, for men and women for Christians and who are not

Christians. Still the Christians desire to change their laws in way of a Uniform law &

actively heading towards the same . Parsis are also sailing in the same boat and same

can be referred to them too. Both the communities have practical level difficulties .

There are no religious difficulties.

(iii) Islamic laws has codified in such manner that, excluding dissolution of muslim

marriages act, which creates difficulty to implement of UCC.

79 Anil, Is a UCC needed? , Delhi, January, 1996 p.10

a

72
 (iv) Laws of schedule tribes, Jews, Buddhists, have not codified, but there is strong

belief they they will adopt the UCC.

3. Non existence of particular draft bill :-

law - making requisites to various things, which includes the making of an early draft

of law. The formation of draft needs the consolidation of information study of

requirements of people, & a study for needs of people, & comparative study, etc.

However, the State of Uttarakhand constituted a committee to draw up a draft proposal

to implement the UCC & Government is ensuring from time to time that the UCC will

issue uniformity (in law ) to all religious communities and preserve the culture of

devbhoomi.

3.6 Practical Approach

According to Justice Sahai's observations in the Sarla Mudgal case82, when developing

a uniform civil code for all citizens, a very balanced and careful approach should be

taken, with gender the justice & human rights jurisprudence one side & pragmatic

societal imperatives on the other side

Pondicherry Experience: A uniform code has been the desire of vats political thinkers

at the world level . Honestly an absolute identical code which has applicability to all is

73
 next to impossible. That could be done only when the country has a small size with

identical population. Most commonly used technique is to have a same code that

applies to all the citizens of country and with conditions to exceptions and options

mentioned in the code. This method was used in hindu marriage act when the Hindu

law in that case was sought to be codified . The similar method was widely used in

French-speaking African countries after they got independence. They have unified their

family laws with the French code as ideal but they took care to include all that was

important in the local usages and they took care of options taking into consideration the

differences of religion.80

Another option for achieving, at least on the surface, uniformity to create a consensual

one code that open for all but enforced on none..

It shouldn't be the consequence of a rushed approach designed solely to appease the

advocates of the unified civil code. This fourth option must be avoided whenever

possible, as it would rule out anticipation of one identical law for many decades.The

uniform code must drafted considering caution & foresight. Fundamental requirements

for this achievement include it be encircled by halo of status derived from its inherent

worth. The code ought to be straightforward and simple, with a lot of material but not

too much detail.

80 Keith Hodkinson, Muslim family law 230 (1984)

74
Considering this, it is important to remember the reasons why the Civil Code of French

is regarded as a sole only greatest form of legislation of the current period & pattern for

different nations. The main reason they succeeded was that they had a large number of

designs that had been developed over a century.

Secondly, the French Civil Code was capable of reaching deeply into Pondicherry

because of the attitude of the court, which was willing to use all the interstitial spaces

with willingness and caution.

The third possibility for the civil code's effectiveness in Pondicherry is that related

judicial and administrative apparatuses were easily accessible to the public.

3.6 Female - Centric Approach

The confrontationist model is founded on women. This approach advocates numerous

approaches to dealing with the problems related to women belonging to minorities.

First, the government must pass a general law that applies to women from all groups. A

statute of this type will ensure women some minimal economic privileges within

marriage, such as the right to dwell in the married house and share assets. Second, a

"Female-Centric '' approach advocates that the state enacts alternate llawss, such as the

Special Marriage Act of 1954, so that women of any faith can opt to be controlled by

either of these gradualist systems. It is hoped that it will not just propagate the

75
combustible subject, but will also offer women with tangible comfort and lay the

framework for greater gender parity in the structure of the family and marriage.

CHAPTER - IV

Judicial Approach to the UCC

76
 The Unification of the Civil Code may create heat and resentment among India's

political elite, but the judiciary has made it clear that community as a whole must be

prepared to accept it as a measure of social reform. The Courts have always been of the

opinion that art. 44 of const. is very important in reducing social tension and it has been

emphasizing on the enactment of the UCC.

UCC is essential for the consistency of legislation among groups, within societies to

support equality of rights for women and men. 81

diverse personal law exists in India

which is significant to all religious groups in matters relating to their kinship such as

divorce, marriage, maintenance, custody and guardianship of children, adoption,

succession and inheritance . As matter of fact, absence of uniformity in the law

governing these important individual relationships has resulted in the denial of

constitutionally mandated equality before the law and equal protection of laws of all

citizens.

The history of judicial practice shows that embraced a literal interpretation of the

constitutionality of individual laws as well as the execution of the UCC at an early

stage. The case of State v. Narasuappa Mali85 was one of earlier cases in which the

issue of personal law was raised.

1 Case of Narasu Appa Mali -

81 F. Agnel- " Hindus monogamy & ucc (1995); "uniformity vs Equality" . 1995.
h

77
 The very first case State v. Narasu Appa Mali where the provisions of legislation

transforming the ancient Hindu law were contested on the issue of infringement with

Art. 25, 14, 15 & of Constitution. The High Court of Bombay stated that the Bombay

prevention of Hindu bigamous marriage act, 1963 contradictory to Indian Constitution.

The said act imposed strict penalties on Hindu if he contracting marriage which is

bigamous . The validation of said act was argued on the ground that it infringed the

freedom of religion guaranteed under Art. 25 of Constitution and permitted

classification only on religious grounds , forbidden by Art. 14 of Constitution 82

The Hon’ble court held that belief of religion is protected by Constitution and

performance of religion subject to state’s regulation, as observed by the HC.

In case83 where it was held by the court that practices of religions must be regulated by

legislation State works in the social welfare,

it is significant to do same and reform it."

As a result, Judge determined that in a republic, it is parliament that defines

governmental policy & also what legislation to enact for benefit of the state's prosperity.

Furthermore, the government can make the proper choice to introduce social

transformation in phases, and these stages can be territorial or community-based.

2. Shah Bano's Case:

82 Art 14 lay down- state shall not deny to any person Equality before law and equal protection of the
1

law within the India.

83 D. Shrivastava, Religious freedom in India, p. 255 (1982) 13 Ibid

78
 Mohd. Ahmad Khan v/s Shah Bano Begum is the following significant case involving

Islam personal legislation & the UCC.84

In above case, it was considered by a full bench of SC, including V. chandrachud C.J.

Venkataramiah and R.N. Mishra.85

Chief Justice given verdict in this case and , SC consider the law connected to

maintenance given under Islam law & crpc. Apart from the observation pertaining the

maintenance of the muslim divorces, the SC delivered :

i) There is no contradiction between of sec. 125 of crpc and personal law of muslim in

the context of maintenance of divorcee, but in case there is any contradiction section

125 of CrPC must prevail over the muslim personal law.

ii) That Muslim divorcee has right to maintenance under section 125 of the code till

her remarriage or death & if she is unable to preserve herself, it is duty of her former

husband to maintain till death or again marriage .

iii) That if the husband, being muslim, marries with another woman, wife has the

right to deny to live with husband and still can get maintenance.

iv) SC has criticized government of India for the reluctance to enact a UCC

considering sensitivities of the muslim community. Regarding the commencement of

Art. 444th of Constitution, the court specified out the apathy of legislature it has not

84 AIR 1985 SC 945

85 Five bench of the SC

79
 been serious to bring UCC into practical level. 86The court also observed government

inaction has given meaningless direction has in Art. 44th of the Indian constitution

and said to the government to take effective measures to implement the UCC without

any regard to the Muslim reaction.

In this course of judgment, CJ Chandrachud stated to & touched on the matter

concerning the UCC and analysed :

"It is point of regret that Art. 444th of Indian Const. has become a dead issue . It stated

that state must endeavour to secure for citizens ucc in the whole of country ”

3. Jorden Diengdeh Case (1985):-

Another case focusing on urgent & compulsive need for ucc is Ms. Jorden vs S.S.

Chopra. facts of case highlight the completely unsatisfactory situation that appear due to

the lack of ucc

4..Sarla Mudgal Case:-

The Sarla Mudgal case87created a big controversy in History of the UCC. After Shah

Bano’s judgement said case is significant because for first time, SC dared to ask the

executive related steps taken to implement Art. 44 of the dpsp . The courts activism

once again taken out the matter of a ucc on country agenda.

86 Tahir Mds Thesis for the "UCC" P.P (200-202) 1977

t

87 AIR 1995 3 (SCC 635)

80
 In case, SC analyzed the statutory provisions relating to code. judgment was given by

double bench including Justice singh & Justice Ram , judges delivered different still

agreed opinion.court held that 2nd marriage of husband who is hindu after conversion to

the islam would be void without having his initial marriage dissolved acc to the laws.

The 2nd marriage would be declared null and void under the provisions of sec. 494th of

1860 ,IPC and husband must be guilty in sec. 494 of the IPC.

5. Ahmedabad women group case:-

Eventually of judgment in sarla mudgal case one new judgement in the form of the

ratio decidendi arrived in 199788 & various important matters were raised by petitioner

about the islam personal law in same. A petition was filed as PIL to challenge different

parts of personal law.

6. Danial Latifi Case:-

woman’s right for maintenance was upheld in the 1992 judgment of Daniel Latifi v.

Union of India for her life or until her remarriage. In domain of islamic law in india, the

same plays a vital role. In addition, it was important to advance women right address

shortcoming of muslim individual law, & remove difficulties created by the shah bano

88 women Action group vs. uoi (1997) 3 SCC 573

a

81
 verdict of 1985. historical case md. Ah khan vs. shah bano,89 Shah bano was represented

by daniel latifi, filed writ petition in court arguing the constitutional validation of same

which reversed the judgment .

Daniel latifi’s case was successful in effectively merging both individual laws and

consolidated laws in such way that it is addressed whole sections of the society and

minimised possibility of sectarian conflicts & political disputes. Judgment reflects that

responsibility plays an vital role in the decision making of the judiciary.

8. Shabnam Hashmi Case 2014:-

The Petition was filed to ask the Hon’ble SC for optional guidelines for the adoption

of children irrespective of religion.90

A Muslim had filed petition under Article . 32 of the constitution. He petitioned for

recognition of her as the parent of his adopted daughter. As per acquiring in Muslim

personal law, the petitioner was not recognized as parent of his adopted daughter & was

recognised only as her guardian.

SS held that JJ Act is secular law that applies to everyone, including Muslims, and was

created for the welfare of the children, allowing any child to be adopted. Thus it is

observed that in India, a standard civil code is required for adoption law. It does not

89 AIR 1985 SC 945

90 shabnam hashmi vs. UOI 2014, SCC 1

82
violate fundamental right to religion’s freedom . Furthermore, the fundamental principles

of the state policy require that it promote uniformity in its laws. The passing of secular

laws would allow different Indian religions to legally adopt a child. This will also help

reduce the number of children without parents. The iissue of a ucc on personal law

matters like adoption is raised by courts as per need.

To summarize -

The Supreme Court's call for UCC is political in character. It is different, fair, and

impartial,

Whenever sanctioned of all provisions of individual law is challenged on basis of a

violation of the fundamental right, and court exercises restraint and defers to mind of

legislature, stating it is issue of policy of state , which judiciary not usually related

with.

Chapter V

Conclusions And Suggestions

In this expression UCC , the "uniform" means to the form of things although some

persons believe " word uniform" as the interchangeable of the word common, there is a

thin line between " word common" and "word uniform." While the former one has

83
 meaning for the same in every circumstances, the later one has meaning for the the

same in conditions which are similar in nature .91

In India, expression civil code has its particular mean. It means law related to code

regulating matters which has civil nature , including divorce, marriage, inheritance, &

those same subjects that are at present regulated by various individuals laws, and word

"UCC" means to enabling a uniform law relating to family and other civil rights

knowingly to change distinct individuals laws regulating Muslim ,Hindus,

Parsis ,Christians, and Jews in marriage and other connected matters.92

According to India's constitutional history, comprehensive consolidation of individual

laws was initially opposed by Britishers so they did not desire to influence religious

feelings in the society. Britishers played this role of divide and rule. Britishers did not

touch individuals law of Muslims only so they had in their minds and desired muslims

to don’t destroy their separatist tendency. That’s why , no attempt was made in British

India to restore a profane code, & power was used to bring reforms towards the meet

the vocal needs of progressive groups of society.

At Constituent Assembly that issue of Uniform code was raised. At the outset , an

attempt was made to place it in the chapter on fundamental rights, but the subcommittee

91 Encylopedia American vol. 6 (1960), 734

92 Legal Glossary- Mohit Puri, 2016- p. 441

84
 on FR’s unanimously decided to place it in the chapter on directive principles. After a

long hour of debate, it was incorporated under part IV of constitution of India. 93

There is specific provision in Indian Constitution that exactly and inexactly connected

to Uniform Civil Code. Basically ,code has discussed in connection to fundamental

right, directive principle, & fundamental duties. 94

Art 444th constitution of India

stated that " state must endeavor make for its citizen code throughout whole country ."

Dpsp has been defined under Article 44 of Indian Constitution in achieving legal

uniformity and secularization in order to make it just and non-discriminatory. The

Indian Constitution's preamble calls for democratic republic, which is secular too which

refers to that there will be no religion of state and no religious biased.

Main objective of this code in our country is to get national integrity by way of

communal harmony. All Citizen of India has a responsibility to promote harmony & the

spirit same fraternity amongst every person of India, transcending linguistic, religious,

and groups differences 95.

Code has been contemplated friend of woman since it can abolish harmful

consequences of individual‘s law. Fundamental duties also state that must be the

responsibility each citizen of country ` renounce activities which are derogating in

93 Part IVth of directive principles of state policy from Art. 36 to 51th of Indian constitution.
d

94 Part III, IVth and IV th Indian constitution Respectively

95 Art 51-A(C) constitution.

85
nature towards the dignity of women." Hence, from this too, the fundamental duties and

ideals of the uniform code are same.

Code has mission to encourage brotherhood , togetherness, & national unity. Which is

based upon notion that in a civilized country, there's no relationship between religious &

relevant provisions. Whereas constitution provides of belief & faith’s freedom , which

strives to taken away the religion out of possession of private laws & socially ties, as

well as laws regulating succession, inheritance, and wedding, as in Muslim countries

like Turkey and Egypt, among others.

This Jurimetrics method to a single civil code has indeed been good, with the

Apex Court especially supportive. In summary, the court has been responsible for

shifting the governing class's stance forward towards a ucc and in developing a strong

public support of the universal civil code.

SUGGESTION:- In light of the concluding observation, the Researcher humbly

tried to suggest that:

1. It is required to close the disparity between both the laws of independent groups and

the rules of sects inside the group in sequence to codify existing law.

2. National implementation requires a uniform civil code. Three conditions must be met

in sequence to create a uniform civil code.

86
 a. Codifying of different nations' legal codes

b. UCC could be voluntary during the transitional period, but it needs to be made

mandatory for all after a specific length of time.

c. If there is a dispute between both the ucc & community relevant provisions, the

uniform civil code must take precedence.

3. It is important to note that the Indian constitution provides religious and moral liberty.

The assurance is provided by faith, not by personal legislation.

4. In India, provisions of the constitution regarding the freedom of religion and culture

are used to oppose notion of a ucc ; therefore, it is proposed that a provision be decided

to add to Articles 2255(1) & 29(1) stating that nothing within these Articles will impact

the operation of any legislative enactment under Article 444th of India’s constitution.

5. So as attain a consistent code, the government has not reinforced the judiciary will. It

is respectfully advised that political concerns shouldn't be used to justify a tedious

reparative judicial process.

6. Meaningful political intervention is required to satisfy the needs of numerous adverse

effects from the mandates of male-dominated society. If the Indian constitution's

purpose of unification, honesty, and brotherhood is to be realised, the national

government must follow this procedure regardless of political views. If the nation's

construction process is to proceed, the essence of the law must be positively fulfilled.

87
Minorities in the nation have made it very clear that they will not be treated as simple

drifting votes by the country's elected figures.

7. With consideration to the contemporary concept of human rights, this draught must

be drafted by an independent authority in conjunction with the Minorities-Commission.

In order to achieve a ucc, the first need is to have a comprehensive draft Bill.

8.The Commission of Law should perform a comparative examination of the multiple

personal legislation of India's diverse regions. The differences and similarities in the

numerous constitutional provisions must be classified by a scientist.

In the initial phase, there should be uniform civil code on topics with minimal

disagreement; subjects with a significant amount of disagreement must seek the support

of fundamental justice concepts in creating the uniform civil code.

9. Inter-religious, inter-caste, and inter-citizen weddings must be promoted and fostered

to foster a steady growth of agreement on the constitutional mandate's implementation.

10. Religious sensibilities shouldn't be wounded, but national security interests and

unity must be protected inn nname of faith. No group must be allowed to interfere with

the legislative authority of the legislature.

11. Because Apex Court, as the protector of the constitution, has the intrinsic authority

to issue any instruction in order to provide comprehensive justice, it can require the state

88
to implement the legislation in order to adopt an unified civil code for the benefit of the

nation.

12. The media including electronic and print media should be persuaded to play its

national role in the building of a healthy and balanced society and it must be reminded

of its educative role to mold the public-opinion, especially the minorities in favour of

the enactment of ucc.

13. The brand Ambassador should be appointed to propagate the ideas, commodities,

and though for the enactment of ucc. The government must not hesitate to appoint film

stars or other important personalities to prevail upon the people to accept concept of a

ucc for the betterment of their life.

14. Criminal law laws that are secular in origin must be successfully implemented to

halt the hazardous anti-national inclinations in minority requests.

15. Proper education like "We are Indian first, then the people belonging to any

particular caste or community" and "We, the people of India" is essential for the

uniform civil code. Therefore all-out efforts should be made to facilitate adoption the

uniform code through education.

16. Progressive-minded people in the various communities will have to launch a

campaign for making reforms in all the personal laws. The reformative measures may

ultimately yield the formation of a uniform civil code.

89
17. A helping hand should also be sought from non-governmental organizations (NGOs)

which are proving a boon for handling and solving many social problems as compared

to political bodies and government machinery.

In view of the foregoing, it is proposed that aadoption of an universal civil code is

required to accomplish the constitutional goals of fairness, freedom, equality,

brotherhood, and, most importantly, the nation's integrity and dignity.

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93
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94
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95
Newspapers/Magazines

1.India Today.

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News Channels

1. BBC

96
 2.CNN

3. NBC-TV

4. ND-TV

5. ZEE NEWS

6.UNI

Internet/Web.

1.http://www.uccindia.com

2.http://www.findarticles.com/cf

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4.http://www.jcpa.org

5.http://www.mlaindia.org

6.http://www.hinducivil.com

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8. http://www.google.com

97