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CRITTICAL ANALYSIS ON UNIFORM CIVIL CODE SUBMITTED BY ARPIT MITTAL BBA LLB- A ROLL NO.

32 Symbiosis Law School, NOIDA Symbiosis International University, PUNE on 21, NOVEMBER,2011 Under the guidance of Ashmita Bisarya Assistant Professor Symbiosis Law School, Noida Symbiosis International University Pune

CERTIFICATE The project titled CRITICAL ANALYSIS ON UNIFORM CIVIL CODE submitted to the Symb iosis Law School, NOIDA for CONSTITUTIONAL LAW-I as part of Internal assessment is based on my original work carried out under the guidance of Ashmita Bisarya . The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the project has been d uly Acknowledged. I understand that I myself would be held responsible and accou ntable for Plagiarism.

Signature of the candidate (Arpit Mittal BBA.LLb.(A)) Date:

ACKNOWLEDGEMENTS It is a great pleasure for me to put on records our appreciation and gratitude t owards Ashmita Bisarya for his immense support and encouragement all through the preparation of this report. I would like to thank the college for providing us with a well-equipped library. Last but not the least, I would like to thank all the friends and others who di

rectly or indirectly helped us in completing our project report.

Date-

21/11/2011

Place- NOIDA

CONTENTS SNo. TOPIC 1……………..………………………………………………..…………….INTRODUCTION 2………….……………………………………………NEED FOR UNIFORM CIVIL CODE 3………………………………UNIFORM CIVIL CODE AND SECULARISM A DEBATE 4 ……….…..REASON FOR ESTABLISHMENT OF UNIFORM CIVIL CODE IN INDIA 5 …………………………………………………….………..POSITION OF LEGISLATURE 6…………………….………………….……………….SUCCESSION AND INHERITANCE 7…………….HOW DIFFERENT ARE THE LAWS FOR DIFFERENT COMMUNITIES 8………………………..………………….……………………………….…..MAINTAINENCE 9…………………………………………………………………..MARRIAGE AND DIVORCE 10…………………UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICAIRY 11…………………...………..…UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY 12……………………..……………………….WHT DO WE NEED UNIFORM CIVIL CODE 13……………………………………………………..IMPLEMNTATION AT STATE LEVEL 14…………………………………………………………………….……………CONCLUSION 15………………………………………………………………..……………..BIBLIOGRAPHY

INTRODUCTION “The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacramental origin, in the same manner as in the case of the Musl ims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have for saken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment o f a "Uniform civil Code" for the whole of India”. The personal laws of the major religious communities had traditionally governed marital and family relations, with the Government maintaining a policy of non-in terference in such laws in the absence of a demand for change from individual re ligious communities. India is a land of diverse religions Hindus, Buddhists, Ja

ins, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in diversity is the core feature of the Indian nation. Each community has its own laws gover ning marriage and divorce, infants and minors, adoption, wills, and succession. These personal laws go with an individual across the states of India where they are part of the law of the land, and the individual is entitled to have that ind ividual's own personal law applied and not the law which would be applied in the local territory. Personal laws are statutory and customary laws applicable to p articular religious or cultural groups within a national jurisdiction. They gov ern family relations in such matters as marriage and divorce, maintenance and su ccession. India is a secular country where every community is allowed its own pe rsonal laws. Christians have the Indian Christian Marriage Act, 1872 and the Ind ian Divorce Act 1869, Hindus have the Hindu Succession Act, 1925[hereinafter HSA , 1956] and the Hindu Marriage Act, 1955[hereinafter HMA, 1955] and so on. Musli m personal law, based on the Sharia, is not codified. Since Muslims are governed by the Sharia, an Indian male Muslim is entitled to have four wives at any time . It is interesting to note that after independence, Pakistan modernised its per sonal law and made it quite difficult for a man to marry a second time. Tunisia and Turkey have actually abolished polygamy. In India, only Muslim men may prac tice polygamy, and Hindu sons inherit greater shares of their parents' estates than their sisters do. While one's religion determines which law will appl y to him or her regarding marriage, divorce, maintenance, guardianship, a doption, inheritance, and succession. Uniform civil code [hereinafter UCC] of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people, even thos e belonging to different religions and regions. This supersedes the right of cit izens to be governed under different personal laws based on their religion or e thnicity. Such codes are in place in most modern nations. There is no doubt that the idea of UCC is by and large, a child of independent India. The British Ind ian Government merely enacted a few laws which governed family relationships irr espective of the religions of the partners for e.g. Special Marriage Act, 1872; Married Women’s Property Act, 1874; Indian Succession Act, 1925 and the Child Marr iage Restraint Act, 1929.The British did not show any pursuit to encourage the e nvironment of uniformity of Laws in India. To quote Choudhary Hyder Hussain, a p rominent Muslim lawyer, “Living under the British rule for about two centuries we have come to consider it only natural for Hindus to be governed by Hindu Law and Muslim to be governed by Muslim Law; but it is wholly a medieval idea and has n o place in the modern world...I would therefore strongly urge the necessity of h aving one single code to be named as Indian Civil Code applicable to every body living within the territory of Indian Union irrespective of caste, c reed or religion persuasions. This is the juristic solution to the communal prob lem .It appears to be absolutely essential in the Interest of the unification of the country for building up one single nation with one single set of laws in th e country.” Article 44 of the Indian Constitution requires the State to secure for its citiz ens a Uniform Civil Code throughout the territory of India. The term ‘civil code’ is used to cover the entire body of laws governing rights relating to property and personal matters such as marriage, divorce, maintenance, adoption and inheritan ce. The object of this code is to enhance national integration by eliminating co ntradictions based on ideologies. It aims to bring all communities on a common p latform on matters which are currently governed by diverse personal laws. Howeve r, even after 60 years of independence, our law makers are yet to give effect to this provision. This article focuses on: • the status of the implementation of a Uniform Civil Code and, • the steps taken and directed to be taken by the Legislature and Judiciary in thi s regard. NEED FOR UNIFORM CIVIL CODE Ours is a country with several different religions and belief systems. The accep ted principle of law is that personal belief systems and laws must be in conform ity with the Constitution and not the other way round. Article 25 of the Constit

ution guarantees to every person the freedom of conscience and the right to prof ess, practice and propagate religion. Article 26 of the Constitution guarantees to every religious denomination the right to manage its own affairs in the matte rs of religion. No set of laws can violate these Articles, which essentially pro tect the religious freedom of different person or communities. We are thus prese nted with a situation that seems somewhat contradictory; how can there be a unif orm set of laws which protects religious freedom at the same time? The implement ation of a uniform set of laws calls for discarding certain personal laws which go against society’s general outlook as a whole, and this may amount to violation of the above mentioned Articles of the Constitution. With multiple belief systems, come multiple ideological conflicts. To live toget her in concurrence with such diversity, we need to have uniformity at some level so as to avoid such conflicts. What we need is a Uniform Civil Code in the form of a sophisticated, harmonized system of legal regulation that maintains and sk illfully uses the input of personal laws and yet achieves a measure of legal uni formity. As long as the code does not go against the essence i.e. the core or fu ndamental belief of any particular religion, it will not go against the religiou s freedom guaranteed by the Constitution. The UCC has been permanently associated in the Indian mind with opposition by th e Muslims. It was rightly pointed out in the Constituently assembly that all Hin dus were in favor of UCC .They felt that the personal law of inheritance, succes sion, etc. is really a part of their religion. If that were so, Indian women can never be given equality with a man which is enshrined in art. 14 of the Constit ution. Art. 15(1) provides that the state shall not discriminate against any cit izen on grounds only of religion, race, caste, sex, and place of birth or any of them. Look at Hindu law, we will find discrimination against women everywhere. If personal law of Hindus is a part of Hindu religion, equality can never b e attained among men and women. Religion must be restricted to religion only and the secular activities attached to the religion must be regulated, unif ied and modified for a strong and consolidated nation. The present Muslim law c an never provide equality to Muslim women- if personal law is considered as a pa rt of their religion. To elevate the position of Indian women and provide them e quality, India is badly needed of a UCC for all Indians. Uniform Civil Code and Secularism a Debate The Government, the press, the politicians, the academics and even the minority organisations- none of them have taken any sort of active interest in the UCC. Thus we could easily infer from the attitude of people prevailing these days tha t this concept has been ignored and at worst they have spread false information and impression about it. But, if we see today’s scenario then India is more commun alise then it was in 1947, so we should realise that the concept of UCC had bec ome very important and need immediate concern. People, who were the founding fat hers of constitution as well as non-Muslims thought that a uniform civil code wa s necessary for our national unity and secularism. But along with them there are also few people who disagree about this concept like Prof. Paras Diwan says “The uniform civil code has nothing to do with Indianisation or national integration or interfering with the religion of one community or the other. REASONS FOR THE ESTABLISHMENT OF UNIFORM CIVIL CODE IN INDIA There are several reasons which could support the view for establishment of UCC. These reasons range from Constitutional and philosophical ideologies to practical views. PREVENTING COMMUNALISM AND PROMOTING THE SPIRIT OF CONSTITUTION • To achieve the spirit of our constitution i.e. secularism which is featured in o ur preamble. • Uniform civil code is a safe guard against the political domination by means of minority fundamentalism. Thus it is a means of preventing encouragement to the communalis m spread by political parties in order to achieve their political ends.

SIMPLICITY IN LAW Uniform civil code provides clarity which arises out of simplicity. Different re ligions had made the legal system a maze by creating rights for individuals in some ways and taki ng them in another way depending upon the religion they follow. Thus to create clarity for the rights available to all individual uniformly, there is a requirement of uniform civil c ode. Position of the Legislature: The question of implementation of a common Civil Code has been raised mainly wit h regard to matters where, the personal laws of a religious community have been challenged in the court of law as being violative of the Constitution or against general public interest. Our law makers have generally shied away from legislating on such points of pers onal law as are considered to be of controversial or sensitive nature, for fear such legislation being labeled as an intrusion on the above rights thereby resul ting in strong backlash. This became evident from the reaction to the judgment o f the Supreme Court in the Shah Bano case which gave a divorced Muslim woman the right to claim maintenance even after the period of iddat. If the amount known as meher, paid to her on divorce was not sufficient for her livelihood, she coul d claim maintenance under S.125 of the Criminal Procedure Code (Cr.P.C). There w as great agitation against this decision, led by Mullas and Maulvis and other fu ndamentalist sections, as being against the tenets of Islam. Succumbing to the p ressure of vote-bank politics and in order to appease the Muslim fundamentalists , the Rajiv Gandhi government enacted The Muslim Women (Protection of Rights in Divorce) Act to undo this decision. This Act exempted Muslims from the general l aw regulations of the Cr.P.C, including S.125. It tried to restrict the divorced Muslim woman’s right to maintenance up to the iddat period only and provided that under section 3(1)(a) a divorced women is entitled to reasonable and fair provi sion and maintenance within the iddat period. Similarly in case of the Adoption of Children Bill 1972, the Muslim community op posed a uniform law regarding adoption applicable to all communities since Islam does not recognize adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980 with an express clause of non-applicability to Muslims. This was again opposed, this time by the Bombay Zoroastrian Jashan Comm ittee, which formed a special committee to exempt Parsis from the bill. The Adop tion of Children Bill, 1995, was passed by both Houses of the Maharashtra legisl ative assembly, but is still awaiting presidential assent. What needs to be unde rstood is that ‘the religion of an individual or denomination has nothing to do in the matter of socio-economic laws of the State.’ The freedom of religion conferre d by the Constitution is not absolute and by no means does it allow religion to contravene the secular rights of the citizens and the power of the State to regu late the socio-economic relations. Basically, a Common Civil Code will override only those personal laws which do not form the essence of any religion. The key word here is ‘essence.’ Personal laws which form the fundamental basis or the core o f any belief system are ideally, excluded from the purview of the Common Civil C ode. Like the concept of secularism, justice , liberty, equality and fraternity all are essential and inseparable part of Indian Constitution and along with c larity and security are also considered as essential part of the constitution an d as stated earlier prevalence of different personal laws ruins the clarity of l aws and creates apprehensions in the mind of different religions so the very pu rpose of the Constitution is not fulfilled and there is a necessity for the form ation of Uniform Civil Code. Providing justice without equality to the individu al will not fulfill the very basic purpose of the Constitution. It will create s uch a situation in which a person have the power to go to courts for infringemen t of his rights but the basis of this infringement is equality itself which is n ot provided to individual. Along with the above reasons the Fundamental Rights w hich are considered to be the basic structure of the Constitution will also not

be provided to the individual under the garb of different personal laws. Their w ill be infringement of Articles like 14, 15, 16, 17 and 18. As all of them talks about equality like Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex or any of them. Article 16 talks about equality in ma tters of public employment. Thus the very purpose of these Articles will not b e fulfilled if the different personal will keep on prevailing as they provide different treatment to individuals with in accordance with the religio n they follow. SUCCESSION AND INHERITANCE This area throws up even more intractable problems. In Hindu law, there is a dis tinction between a joint family property and self acquired property which is not so under the Muslim law. The Hindu Undivided Family (HUF), formed under the Hin du law, run businesses and own agricultural lands. Under the UCC, this instituti on of HUF, peculiar to the Hindus, has to be abolished. There are also fetters i mposed on the extent to which one can bequeath property by will under the Muslim law. Considering all these, the UCC should be included. The law which is applic able on Parsi and Christian with regard to the succession i.e. The Indian Succes sion Act, 1925 should be consider while framing UCC for Succession laws in India . Thus due to all above reasons it is felt that the formation of Uniform Civil o de is the prime necessity in today’s time for our nation. Lastly, a very real fear has begun to make itself felt, which is that if we do n ot make efforts now to move towards the UCC, and as the majority loses patience, we shall lose the littlie ground that we have gained. How different are the laws for different communities? India has completely different laws for hindu, muslims, christians etc. While it is true that there are different laws but to what extent and for what category? It is difficult to say what % of laws are common to everybody. The heated debat e on Common Civil Code that one comes across today makes it appear that the grea test problem faced by India is nothing but the lack of a Common Civil Code. Poli tical propaganda has obscured the fact that the rest 99 % of the laws in the cou ntry is ‘common’ for all and it hasn’t made any difference. So if 99% of the law is common then what is different that needs a UCC? The cont roversy is about ‘codification of personal laws’. Personal laws imply laws relating to family like marriage, divorce, inheritance, adoption etc. The discussions tha t I have had with many people often goes in the direction as if it is something to do only with the muslims and they somehow have a special privilege compared t o others. This is not true. Every religion has its own laws that they want to pr eserve. Each and every religion does not want to lose its right to practice religious la ws. Here are a few quick facts for you to understand the problem: • In Muslim personal law, they are allowed to have four wives, can give divorce by saying talaq three times, and after divorce the ex-husband is not responsible f or ex-wife’s maintanace. • In Hindu inheritance rights, sons, and not daughters, can inherit the property. Or that a wife has fewer rights than her in-laws over her husband’s property, but a husband has more rights than his in-laws over his wife’s property. • In Christian law; a husband can get a divorce on grounds of adultery, while a wi fe has to prove adultery and cruelty. • Christians are not allowed from willing property for charitable and religious pu rposes (Section 118 of the Indian Succession Act). • In Islam, polygamy is permissible but not in other religions. According to the g overnment statistics, only 5.2% Muslim men are polygamous while 5.8% Hindus, 9% Scheduled Caste, and 14% tribals have more than one wife. • In Punjab it is a common practice that all brothers marry one woman so that thei r property is not divided, and it is permissible by the Indian constitution. • Currently, Hindus, themselves, have different Hindu Personal Laws in every state of India. It will be a good start if Hindus have a Hindu Personal Law that is u niform for all Hindus in every state across the country.

• A Sikh is allowed to carry a dagger (Kripan); if others carry it, they will be a rrested by the police. • There is separate tax system for Hindu undivided families not for non-Hindu undi vided families (Hindu Undivided Family code). Most of the controversies related to UCC involve muslims and that is because the ir personal is the most visible in our society. I for one support the implementa tion of the UCC. There are many who support UCC as a reactionary step but I will dwelve into my reasons to support in a bit. MAINTENANCE The maintenance laws for the Hindus and Muslims are very different. Apart from p ersonal laws, a non-Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure. A Muslim woman can claim maintenance under the Muslim Wo men (Right to Protection on Divorce) Act, 1986. Apart from maintenance of wife, there are also provisions for maintenance of mother, father, son and unmarried d aughter under the Hindu law. The UCC should contain the following with regards t o maintenance. • A husband should maintain the wife during the marriage and also after they have divorced till the wife remarries. • The amount of alimony should be decided on basis of the income of the husband, t he status and the lifestyle of the wife. • The son and daughter should be equally responsible to maintain the parents. The reason for this being that if she claims equal share of the property of her pare nts, she should share the duty to maintain her parents equally. • The parents should maintain their children son till he is capable of earning on his own and daughter, till she gets married. Thus based on these fundamental pri nciples, an unbiased and fair UCC can be framed which will be in consonance with the Constitution.

MARRIAGE AND DIVORCE The personal laws of each religion contain different essentials of a valid marri age. The new UCC should have the basic essentials of valid marriage which shall include: • The new code should impose monogamy banning multiple marriages under any religio n. Polygamy discriminates against the women and violates their basic human right s. Thus, monogamy should be imposed, not because it is the Hindu law, but becaus e it adheres to Article 21 of the Constitution and basic human values. • The minimum age limit for a male should be 21 years and for a female should be 1 8 years. This would help in curbing child marriages. Punishment should be prescr ibed for any person violating this provision. Also, punishment for other persons involved in such an act, like the relatives, should be prescribed which would h ave a deterrent effect on the society. • Registration of marriage should be made compulsory. A valid marriage will be sai d to have solemnised when the man and the woman sign their declaration of eligib ility before a registrar. This will do away with all the confusion regarding the validity of the marriage. • The grounds and procedure for divorce should be specifically laid down. The grou nds enumerated in the code should be reasonable and the procedure prescribed sho uld be according to the principles of natural justice. Also, there should be a p rovision for divorce by mutual consent. This would help the abolition of the dis crimination exist in various personal laws with women especially in Muslim law i n India with regard to the divorce.

UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICIARY Even after more than six decades from the framing of the constitution, the ideal of UCC under article 44 is yet to be achieved. However, efforts in this discret ion continued as reflected in various pronouncements of the supreme court from t ime to time The Supreme Court seems to have a divided opinion on the introduction of a Unifo rm Civil Code. On one hand, it has rejected attempts to do so through public int erest litigation but on the other, it has recommended early legislation for its implementation. In Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano’s cas e, the Supreme Court held that “It is also a matter of regret that Article 44 of o ur Constitution has remained a dead letter.” Despite section 127 of Cr.P.C. 1973 ( which provides that if a woman has received an amount under personal law, she w ould not be entitled to maintenance under section 125 of Cr.P.C. 1973 after divo rce) Muslim women would be entitled to maintenance if amount received by her as “d ower” under personal law is not sufficient for her sustenance. Though the decisio n was highly criticized by Muslim Fundamentalists, yet it was considered a liber al interpretation of law as required by gender justice. Later, on under pressure from Muslim fundamentalists, the central government passed the Muslim women’s (P rotection of Rights on Divorce) Act, 1986, which denied right of maintenance to Muslim women under section 125 of Cr. P.C. The activists rightly denounced that it “was doubtless a retrograde step. That also showed hoe women’s rights have a low priority even for the secular state of India. Autonomy of a religious establish ment was thus made to prevail over women’s rights.” In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and othe rs Prime Minister of the Country to have a fresh look at Art. 44 of the Constit ution of India and endeavour to secure for its citizens a UCC throughout the ter ritory of India.” He also suggested the appointment of a committee to enact a Conv ersion of religion Act. R.M. Shahai, J., while agreeing with Kuldip Singh, J ., too agreed that “Ours is a Secular Democratic Republic. Freedom of rel igion is the core of our culture. But religious practices, violative of human ri ghts and dignity and sacerdotal suffocation of essentiality civil and mat erial freedoms, are not autonomy but oppression.” In Lily Thomas etc. v. Union of India and others the Court held that: “The desirability of UCC can hardly be doubted. But it can concretize only when so cial climate is properly built up by elite of the society, statement amongst lea ders who instead of gaining personal mileage rise above and awaken the masses to accept the change.” The court further added while it was desirable to have a UCC, the time was yet n ot ripe and the issue should (be) entrusted to the Law Commission which may exam ine the same in consultation with minorities Commission. That is why when the co urt drew up the final order signed by both the learned judges it said, “the writ p etition are allowed in terms of the answer to the questions posed in the opinion of kuldip Singh, J. These questions we have extracted earlier and the decision was confined to conclusions reached thereon whereas the observations on the desirability of enacting the UCC were incidentally made.” In Danial Latifi and another v. Union of India the court upheld the validity of Sections 3 and 4 of the Muslim Women (Protection of rights on Divorce) Act, 198 6, as not being violative of articles 14, 15 and 21 of the Constitution of Ind ia. Under section 3 of the Muslim Women (Protection of rights on Divorce) Act, 1 986, a Muslim husband is liable to make reasonable and fair provision for future of divorced wife which includes maintenance also, so she is not entitled to cla im maintenance under section 125 of Cr.P.C. Under section 4 of the Act, divorce d Muslim woman unable to maintain herself after iddat period can proceed against her relatives or wakf Board for maintenance. Rajendra Babu, J., on behalf of a five judges bench consisting of Patnaik,Mohapatra, Doraiswamy, Patil, JJ.. And himself observed that :- “ In interpreting the provisions where matrimonial re

lationship is involved we have to consider the social conditions prevalent in ou r society. It is a small solace to say that such a woman should be compensated i n terms of money towards her livelihood and such a relief which paratakes basic human rights to secure gender and social justice is universally recognized by pe rsons belonging to all religions.” In John Vallamattom v. Union of India the Supreme Court in a PIL by a Christian priest, John and other citizens of Christian community, challenging the validit y of the section 118 of the Indian Succession Act, 1925, while striking down the said section as being violative of article 14 of the Constitution, and also con cerned over the contradictions in marriage laws of various religions, in a hist oric judgments , emphasized the need for a legislation by Parliament on common civil code. Stressing that there was no “necessary connection” between religious an d personal laws in a civilized society, a three judge bench held that it was matter of regret that article 44 of the Constitution, which provided for the st ate to ‘endeavour” to secure a UCC for its citizens throughout India, had not been affected. The Court further observed that “Parliament is still to step in for fram ing a UCC in the country. A UCC will help the cause of the national integration by removing the contradiction based on ideologies.” It can be said that after ment ioning the apex court view regarding the implementation of UCC that Art. 44 need s to be interpreted to sustain the plurastic character of the Indian community. It should be on the gender justice rather than on uniformity. Although the Supre me Court has not yet interpreted Art. 44. On all his decisions the Court enjoin ed upon the parliament to enact a UCC without specifying what a UCC would mean. However, the word “uniform” should not mean the same law for all but it should mean similar laws for all and similarly should be regarding equality and gender jus tice. In Pannalal Bansilal v. State of Andhra Pradesh , it held that a uniform law tho ugh highly desirable, the enactment thereof in one go may be counter-productive to the unity and integrity of the nation. Gradual progressive change should be b rought about. Similarly, in Maharishi Avadhesh v. Union of India , the Supreme C ourt dismissed a writ petition to introduce a common Civil Code on the ground th at it was a matter for the legislature and in Ahmedabad Women Action Group v. Un ion of India , the Supreme Court showed reluctance to interfere in matters of pe rsonal law.

UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY The government has an intention to for a voluntary or optional UCC. It has been urged by the public that a voluntary code would be a welcome stepping stone towa rds a compulsory code and would also allay the misgivings of the Muslims that th e code would impose Hindu personal law upon them. The convention of the Bar Coun cil of India on the UCC came out strongly in favour of a compulsory code. The pr oblem in optional code is that it cannot be a uniform. It can only be one more addition to the existing family laws, thus compounding rather than reducing t he confusion that exists. The two facets with regard to the concept o f optionality should be considered .Either one has to opt for the entire code or one may opt for selected areas. One feels that opting for the UCC should be a one-way process. There should be no withdrawing. Once a person opts he/she wil l have opted for their future generations as well. There will be no opting out. If one spouse opts for the code, the other will also have to do so as otherwise the option will be ineffective. A voluntary code will create its own uncertainti

es, confusion and misinformation. For all the reasons, the UCC will have to be a n improvement on the existing laws in all respects and it will have to be very c lear in its expression. Why do we need a Uniform Civil Code? What does our Constitution say about Uniform Civil Code? In article 44, our cons titution clearly specifies this "The State shall endeavor to secure the citizen a uniform civil code through out the territory of India". The objective of this article is to effect an integration of India by bringing all communities into a common platform which is at present governed by personal laws which do not form the essence of any religion. The constitution is very cle ar that unless a uniform civil code is followed, integration cannot be imbibed. However, the so called secularists and saviors of secularism in India think othe rwise. Their argument is that this code will affect the religious freedom of min orities. One fails to understand how abiding the law of land can go against reli gious principles! They claim that the sentiments of the minorities are not consi dered while implementing acommon law! This code does not insist people from one religion to start practicing rituals of other religions. All itsays is, with cha nging living styles along with the time, there should be a uniform civil code ir respective of allreligions as far as social ethics are concerned Till 1935, the Muslims in India followed different rules according to their prac tice. Khoja Muslims and Kutchi Memons are examples for this. The Kutchi Memons w orshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had th e inheritance laws as per Hindus and also the marriage laws as per Hindus. When a common Mulsim Personal law was formed, there were many minority creeds of Musl ims who had to accept these laws though they differed from their practices. Ther e was no need of respecting the sentiments of the minorities (among Muslims) the n. If this can be done for minority creeds of Muslims, why can’t the minority Musl ims adapt the laws for the nation? Much was debated on this issue at the Indian Parliament in 1948 by Ambedkar, Ana ntasayam Iyengar, KMMunshiji, Alladi Krishnaswamy Iyer favoring UCC and members from other religions opposing it. On 23rdNov’1948, in Parliament, a Muslim member gave an open challenge that India will never be the same if it tried to bring in Uniform Civil code and interfere with Muslim personal law. It’s a shame that we c ould not do anything on this till date! I even doubt whether we had any subseque nt debates in this regard at Parliament. The Hindu laws that were different in different parts of the country had undergo ne a turbulent change, courtesy, geographically united India. The appreciable fa ctor is, Hindus accepted these changes of laws with grace. Child marriages were banned, Sati was banned, widow re-marriage was encouraged, divorce was introduce d, in heritance laws were amended and Hindus accepted all these changes. They ne ver complained of hurting their religious sentiments. Those who oppose this law claim that this law is poking nose into their religious practices. “Narabali”(human sacrifice), that was considered a religious practice of Hindus is banned today. Hindus never protested this stating that their religious practices are tampered with. There are Muslim countries that follow Islamic laws. Still, the laws differ from one country to another. This emphasizes that along with the personal laws, ther e has to be laws that should be written considering the changing phenomenon and the living style of the nation. Once again it is reiterated that this code is no t biased towards are religion but to bring in a level playing platform among the citizens of India. Muslims in other countries accept uniform civil laws where they do not consider this as a defeat whereas in India it is. This is the result of the selective sec ularism adapted by the political parties, media and the so-called learned men of India. It is a pity that in a democratic & secular state, people have different laws based on their religion. Is it secular to have different laws for differen t religion or it is secular to have a uniform law? The approach of selective secularism had perpetuated the vertical divide among t he people of India in the name of religion. This resulted in people having preju dice over this law itself. By bringing this code, neither the majority public wi

ns over the minorities nor are the minorities in danger. Unless this prejudice i s erased, bringing this law is difficult. The leaders of this country owe respon sibility to explain this to public & an elaborate debate has to be held on this topic (which will never happen as this is against secularism?). To make this debate on UCC healthy, Hindus should not treat this as a weapon aga inst minorities. Meanwhile, the minorities should not feel that they lose by bri nging this law. Implementation at State-Level: Analysis Even though a nation-wide Civil Code is not yet in place, a positive s tep in this direction has already been taken. The state of Goa has enacted a set of ‘Family Laws’, which is applicable to all communities; Hindus, Christians, Musli ms and others. There is no discrimination on the basis of religion, caste or gen der. The Goa civil code is largely based on the Portuguese civil code of 1867, w ith some modifications based on the Portuguese Decrees on Marriage and Divorce o f 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the Portugues e Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and d ivorce, succession, guardianship, property, domicile, possession, etc. Muslim fu ndamentalists opposed its enactment in the early 1980s but their attempts to int roduce Sharia law in Goa were ultimately met with defeat by liberal Muslims who insisted on the continuance of the unified civil code. Former Chief Justice Y.V. Chandrachud expressed hope that the Goan Civil Code would one day “awaken the res t of bigoted India and inspire it to emulate Goa.” There are two important aspects of this code which assume great significance in the context of codification of Indian laws: • Civil registration of marriage is mandatory. Around 98 percent of Goan marriages take place under Community Property law by virtue of which, each spouse automat ically acquires joint ownership of all assets already in their possession as wel l as those due to them by inheritance. These assets may not be disposed of or en cumbered in any way by one spouse without the express consent of the other. • The registration of births and deaths is also mandatory. The children of decea sed parents fall in the category of mandatory heirs. They cannot be disinherite d whether male or female, except under extraordinary circumstances. If the decea sed parent leaves no will, all mandatory heirs are entitled to an equal share of the estate of the deceased. If the deceased has made a will, he may only dispos e of 50 percent of the estate. This is called the quota disponivel. The remaini ng 50 percent must be divided equally among all mandatory heirs. Such a provisi on ensures the just distribution of assets among all children, whether male or f emale.

CONCLUSION: In order to promote the spirit of uniformity of laws and accomplish the objectiv e enshrined in Article 44 of the Constitution, the following suggestions deserve immediate consideration: • The Government must prepare a good environment for Uniform Civil Code by explain ing the contents and significance of Article 44. It should take steps and find o ut means to find out the obscurantist’s who oppose to move of Uniform Civil Code. • The press, radio, television and various other means of communication may be of great help in this regard. The conservative sections of the citizens must be mad e to understand the utility of uniformity of laws so that they do not stand in t he way of implementation of Article 44 of the constitution. • The State should take initiative to explain the Uniform Civil Code to the ordinary citizens. Special ways must be devised and also special care must be taken to prevent inflaming of the ordinary man’s passions by mischievous, rabbl

e-rousing methods. • The State should bring social reform by stages and the stages may be territorial or they may be community wise. • The attempt should be made to enact a Uniform Civil Code embodying what is best in all personal laws. It must be the synthesis of the good in our diverse person al laws. It should represent one, drawn up by the constitution between the diffe rent communities in India on the principle of give and take. • It is the duty of academicians to generate good environment for the adoption of the Uniform Civil Code in India. It is their moral duty to promote the feelings of secularism and explain the contents of Uniform Civil Code to the community at large so that they are made to understand the beneficial effect of the Uniform Civil Code. • In order to assist the Parliament to Implement the Uniform Civil Code, a Committ ee of eminent jurists belonging to different religions should be constituted to make the task of uniformity of laws possible. The rules of personal laws as in f orce in India dealing with marriage, talaq, inheritance, adoption, maintenance, succession etc. must be modified to a large extent on the lines of suggestions t o be made by the Committee of eminent jurists. • There is a need to conduct a study of the personal laws of all the communities w ith a view to find out in which areas of personal laws uniformity of laws alrea dy exists and which are the areas where differences still persist and in that manner they can be resolved. We must pick and choose the areas which ar e ripe. Such areas can be those relating to adoption, maintenance, guardianship, marriage and divorce. No doubt in the beginning it will be the nucleus of a pro perly termed family code but ultimately that would pave the path of Uniform Civ il Code. Price- meal legislation, which is compressed and telescoped within a fe w years, would achieve the objective aimed at and only a sincere effort without any sentimental approach would be of great value in finding out what has been d eluding by now just as a mirage. It can be conclude by saying that the UCC amounts to equal laws for all sections of society. All the people of India must be governed by one set of laws. For na tional unity and for secularism, UCC is necessary. The plurality of laws in pers onal law matters is a blow and direct threat to national integrity and solidarit y. It is worth mentioning the name of a few countries where a UCC has been func tioning successfully viz. Germany, France, Spain Canada, Japan, Turkey and Portu gals. The government of India should take initiatives for enacting a UCC, which should contain the best elements of different civil laws of the various religio n communities of the country and thus fulfill its positive obligations imposed u pon it by article 44 of the Constitution Of India. Between the Supreme Court’s mix ed response and the legislature’s wariness, the implementation of a national commo n Civil Code seems to be a distant dream. It is only enlightened public opinion that will help fulfill it. Communal divides, vote-bank politics, staunch fundame ntalism are currently barriers to its realization but with time and tolerance th ey can be overcome. What must be perceived as a matter of defining an individual’s rights deteriorates instead, into a “majority versus minority” issue. The welfare o f the community as a whole must be considered instead of a particular class or s ect. No doubt, the realization of a common Civil Code is a tough job, given the vast ideological diversity. But a uniform civil law is necessary in order to be truly secular. It is our collective duty as a modern society to rise above cultu ral and religious differences and give effect to this constitutional mandate whi ch is 60 years overdue.

BIBLIOGRAPHY Web sites:

http://www.manupatra.com/ http://airwebworld.com http://articles.timesofindia.indiatimes.com www.cse.iitk.ac.in http://en.wikipedia.org http://mutiny.wordpress.com http://www.outlookindia.com http://upscportal.com http://uselectionatlas.org http://indiankanoon.org http://airwebworld.com Books: M.P. JAIN, INDIAN CONSTITUTIONAL LAW 904 (5th ed., Wadhwa and Company Nagpur New Delhi 2008) (1962) Constitutent Assembly Debates vol. VII 547- 48. VASUDHA DHAGAMWAR, TOWARDS THE UNIFORM CIVIL CODE 53 (The Indian law Institution ,New Delhi 1989) (1989) NARENDAR KUMAR, CONSTITUTIONAL LAW OF INDIA 166 (6th ed., Allahabad law Agency D elhi 2007) ( 1997) Constitutent Assembly Debates vol. VII 547- 48. Virendar Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily Thomas (2000)] 42 Journal of Indian Law Institute 315 (200 0).

Cases: 1. Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and o thers, AIR 1995 SC 1531 2. Mohammad Ahmed Khan v. Shah Bano Begum1985) 2 SCC 556. 3. Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others AIR 1995 SC 1531 4. Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650 at 1668 5. Danial Latifi and another v. Union of India(2001) 7 SCC 740. 6. John Vallamattom v. Union of India2003 (5) SCALE 384 7. Pannalal Bansilal v. State of Andhra Pradesh 1996 AIR 1023, 1996 SCC 8. Maharishi Avadhesh v. Union of India1994 SCC Supl. (1) 713 9. Ahmedabad Women Action Group v. Union of India AIR 1997, 3 SCC 573