Uniform Civil Code – A Reflection

The term civil code is used to cover the entire

body of laws governing rights relating to property
and otherwise in personal matters like marriage,
divorce, maintenance, adoption and inheritance.
As things stand, there are different laws
governing these aspects for different
communities in India, among Hindus would be
different from those pertaining to Muslims or
Christians or so on.
• The demand of a uniform civil code
essentially means unifying all these
‘personal laws’ which will apply to all
citizens of India irrespective of the
community they belong to.
 Uniform civil code 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 those
belonging to different religions and regions. This
supersedes the right of citizens to be governed
under different personal laws based on their religion
or ethnicity. Such codes are in place in most modern
nations.
• The common areas covered by a civil code include:
• Personal Status
• Rights related to acquisition and administration of
property
• Marriage, divorce and adoption
• The topic has become much more
communalized today than it was in 1947,
as the speeches over the years against
the Uniform Civil Code go to show. Why
then has this subject become important
and of immediate concern now? Is that in
itself a mistake?
• This debate dates back to the colonial
period.During British colonial rule, the British were
not interested in a direct confrontation with the
Muslim community over personal laws. The
women's movement later challenged some of
these personal laws under the Shariat Act,
specifically those laws dealing with marriage,
divorce, and maintenance.
• During the colonial period, Jamiat al-Ulama
encouraged the British to extend a uniform law
throughout India. This process began with
Hastings in 1772 and ended with the enactment of
the Shariat act. However, this system of uniform
laws began to crumble with the enactment of the
so-called 'secular' laws regulating Muslim divorce
and child marriage. In 1929, the Jumiat al-Ulama
called for Muslims to participate in civil
disobedience against the Child Marriage
Restraint Act. The largest protest, however, was
over the fact that non-Muslim judges were
allowed to dissolve Muslim marriages under the
Dissolution of Muslim Marriages Act.
• A number of acts from the colonial period
specifically exempted Muslims in an effort
to avoid resistance from that community.
The Indian Succession Act of 1925,
which dealt with inheritance and
succession, specifically exempted
Muslims. Muslims had a complicated
inheritance system based on the Quran.
• The Special Marriage Act of 1872, which
was essentially a secular civil marriage
law, also exempted Muslims. Ulama's
opposition to civil marriage had been
strong.
• The Evidence Act of 1872 included section
112, which concerned the legitimacy of
children. This section was later found to
apply to Muslims, despite its inconsistency
with Muslim law. This dual legal system,
whereby some laws applied to Muslims
but others specifically did not, served as a
basis for later personal laws which were
passed under the Indian government that
exempted Muslims from their scope.
• The question arose as to whether the
government of India had the right to dismantle
personal laws. Courts looked to previous
legislation in the colonial period to discern
whether previous acts had allowed tampering
with a system that had originally been
envisioned by Hastings to protect Muslim laws.
The Shariat Act of 1937 had not made any
reference to the government's power to interfere
with the system, although one might assume
that since the government passed the act, the
government could therefore amend it.
• Under the Preamble to the Constitution of India the people of
India have solemnly resolved also to secure all its citizens,
besides, social, economic and political Justice equality of
status and opportunity, assuring the dignity of the, individual
and the unity and integrity of the nation.
• Article 44 which states "The State shall endeavor to secure for
citizens a uniform civil code throughout the territory of India."
• However, in response to this, there exists Fundamental Rights
which guarantees
(a) equality before law...prohibition of discrimination
against any citizen on grounds only of religion, race,
caste, sex or place of birth..
 (b) religious and cultural freedom...All laws in force in
India at the time of the commencement of the
constitution, if repugnant to these primary fundamental
rights, have to cease to apply in any manner
whatsoever."
Article 25 reiterates this protection in provisioning that "all
persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate
religion."
Article 372 at the same time requires that "all the laws in
force in the territory of India immediately before the
commencement of this constitution shall continue in
force therein until altered or repealed or amended by a
competent legislature or other competent authority."
 
• Article 44 of the Directive Principles of State Policy provides
that the State shall endeavour or secure for the citizens a
uniform civil code throughout the territory of India. 
• In view of the above provisions the questions arise as to
whether a Mohemmedan woman married/divorced who is a
citizen of India gets equality of status and dignity, treated
equally before the laws and not discriminated only on the
ground of sex, under the Muslim Personal Law (Shariat)
Application Act, 1937 and whether the same is not
inconsistent with the fundamental rights guaranteed under
the Constitution and not void under Article 13 of the
Constitution?
• If so, how long should the country wait to enact an uniform
civil code to secure and protect all that and protect all that
and the unity and the integrity of the nation?
There is a basic contradiction here.
On the one hand, the constitution
recognizes the continued existence of
Personal Law, which is why Article 44
expects that India at some later date will
have a uniform civil code.
On the other hand, there exist several
articles, such as 13,(Article 14) which
guarantee equal rights.
• Since personal laws for various groups are
inherently unequal, since a divorcee in Muslim law is
entitled to different things than in Hindu law,
therefore Article 13 (14) would seem to make
personal law unconstitutional.
• Furthermore, Article 13 also requires non-
discrimination based on "sex", whereas Muslim
Personal Law favors the man in many cases,
especially in the issue of divorce and in the issue of
polygamy. Equality before the law would essentially
mean that Muslim women could take up to four
husbands. These issues remained unresolved in the
constitution.
• It is simply a question of equal facility of
laws to all sections of our people …. in all
matters ….. except ….. the matter coming
under protective discrimination should be
governed by one set of laws. [Paras Diwan
“The Uniform Civil Code: A Projection of
Equality” in Mohammad Imam supra note
69 at 420]
The need for Uniform CIvil Code is
being felt for more than a century.
• Several reasons are advanced for
enacting Uniform Civil Code. One reason
was that a Uniform Civil Code will cut
away the grant in which prejudices breed.
• The Supreme Court has underlined the need for
Parliament to enact a Uniform Civil Code to
govern personal laws of all religions. A three-
judge bench comprising Chief Justice V.N.
Khare, Justice S.B. Sinha and Justice A.R.
Lakshmanan made the observation while striking
down a provision (Section 118) of the Indian
Succession Act, 1925, which discriminated
against Christians by putting restrictions on their
right to bequeath property for religious or
charitable use.
• The judgment was in response to a writ petition
filed by John Vallamattom, a priest.
The court made a clear distinction between two
provisions of the Constitution: one that guaranteed
religious freedom (Article 25) and the other that
stressed the necessity of a uniform code (Article
44).
• It said laws governing marriage and succession
could not be brought within the ambit of the
constitutional provision that guaranteed the right to
profess and propagate religions freely.
• The Preamble to the Constitution of India have
solemnly resolved also to secure all its citizens,
besides, social, economic and political Justice equality
of status and opportunity, assuring the dignity of the,
individual and the unity and integrity of the nation. 
• Article 14 (as a fundamental right) guarantees equality
before the laws and equal protection of laws. 
• Under the Article 15 it is guaranteed that the State
shall not discriminate against any citizen on grounds of
religion, caste, sex etc. 
• Article 13 provides that all laws in force in the territory
of India immediately before the commencement of the
constitution, in so far as they are inconsistent with the
provisions of this part, shall, to the extent of such
inconsistency be void. 
• And Article 44 of the Directive Principles of State Policy
provides that the State shall endeavour or secure for the
citizens a uniform civil code throughout the territory of India.
• In view of the above provisions the questions arise as to
whether a Mohemmedan woman married/divorced who is a
citizen of India gets equality of status and dignity, treated
equally before the laws and not discriminated only on the
ground of sex, under the Muslim Personal Law (Shariat)
Application Act, 1937? And whether the same is not
inconsistent with the fundamental rights guaranteed under
the Constitution and not void under Article 13 of the
Constitution? If so, how long should the country wait to
enact an uniform civil code to secure and protect all that and
protect all that and the unity and the integrity of the nation.
• The case of Mohd.  Ahmed Khan v.  Saha Banu
Begum (A.I.R.  1985 S.C.  945) arose out of an
application under section 125, Cr.  P.C.  for
maintenance.  The appellant an advocate was married
to respondent Saha Banu Begum in 1932. 
• In 1975 she was driven out of the matrimonial house. 
• In April 1978 the wife moved the court under section
125, Cr.P.C.  for maintenance. 
• In November 1978 Ahmed Khan divorced her by
irrevocable Talaq. As her demand for maintenance was
refused on the ground that she was paid maintenance
during the iddad period and under Muslim Personal
Law the husband is not obliged to maintain her. 
• She took shelter under the law court.  Ultimately, the
Supreme Court held that Mahar payable at the time of
marriage or on dissolution of marriage cannot be
justified to say to be a payment on divorce, the
husband is obliged to maintain a divorced wife under
section 125 Cr.P.C.  and the Muslim Personal Law
cannot stand as a bar.  The Court suggested that it is
for the Muslim community to take a lead in the matter
of reforms of their personal Law.  Common Civil Code
will help the cause of national integration by removing
disparity.  Decision in Saha Banu's case created
controversy.
• Some Muslim fundamentalist organisations taking
shelter under Muslim personal law (Shariat)
Application Act, 1937 strongly protested.  Late Rajiv
Gandhi's Government yielded to the pressure and
brought into force the Muslim Women (Protection of
Rights on Divorce) Act,1986 to provide for some
sort of maintenance to Muslim divorcee and
neutralised the effect of the Supreme Court
judgement and made it an option, subject to
consent of both the parties, the application under
section 125 Cr PC.  Thus the Muslim husband's
right not to maintain a divorced wife was protected.
• In Jorden Diengdish vs V.S.Chopra (A.I.R.  1985
S.C. 935) a Christian wife belonging to the
Indian Foreign Service and the husband a Sikh
were married according to the Indian Christian
Marriage Act,  1872.  A petition for a declaration
of nullity of marriage was filed in 1980 on
grounds of cruelty.  A decree for judicial
separation was obtained under the Divorce Act,
1869.  And the prayer for divorce was rejected. 
The wife moved to the Supreme Court on the
ground of impotency of the husband. 
• The court examining the provisions of law as applicable
to Hindu-Christian-Mohammedans relating to judicial
separation, divorce and nullity of marriage. The Court
observed that reforms should be brought in personal
laws.
• Therefore, directed to send a copy of the judgement to
the Minister of law and justice for such action as they
deem fit to take. 
• The court felt immediate and compulsive need for an
uniform civil code.  Legislative competence is one thing
and political courage to use it is another thing, the court
said. 
• Yet another case was decided by the Supreme
Court (AIR 1987 SC 1103) where one Saira
Banu a Mohammedan wife with a child moved
the court against her husband under section
125, Cr.  P.C.  for maintenance for herself and
the child, on the ground of flip husband first
neglecting and then taking another wife,
Referring to the case of Shah Banu Begum, the
court ordered for maintenance, in the matter of
child and the wife and rejected the offer of the
husband to take her back.
• In view of the apprehensions of the
Muslims, right from the beginning, three
stages were envisaged in order to arrive at
a compulsory Uniform Civil Code.
1) Separate codification of every personal
law.
2) Optional Uniform Civil Code, and
3) Compulsory Uniform Civil Code.
• At the time when the Adoption Bill was
being debated, the Muslim leaders once
again said that they must be allowed to
codify their own laws, and the demands
must come from the community itself.
• In the matters of adoption, wills and
legacies, the Shariat Act applies only to
those Muslims who opted for the Shariat in
preference to their customary laws. The
Dissolution of the Muslim Marriage Act
(DMMA) did give the Muslim women the
right to seek remedy for divorce before the
court. But the Muslim men’s right for
divorce was not touched.
• The first objective of codification of personal
laws is fraught with difficulties. Given that there
is a large number of local traditions, not to
mention the sect – specific interpretation of law
and religion in existence, one can hardly say that
such codification can be done without damage to
the varieties of laws followed in a community.
This can only be justified in the larger interest of
the community, an argument that will also hold
for the Uniform Civil Code.
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