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By - Pranshutosh Kumar
Article 44 of the Indian constitution states that’’ The state shall endeavor to secure the citizen a uniform civil code throughout the territory of India’’ 1
Article 44 of the Indian Constitution comes under the Directive principle of state policy [DPSP].
Directive principle of state policy simply provides the guidance for the state. The idea of DPSP is brought by our constitutional maker from Irish constitution. It is based on the principle of Gandhism and related to the economic welfare, social justice, foreign policy and legal and administration matters.
Directive principle of state policy is under part four of Indian constitution which is from article
36 to 51. DPSP main aims is to bring social and economic democracy through a welfare state. It helps in developing a country by establishing good and balanced social and economic condition that helps the citizen to lead a good life. DPSP are non-justiciable in nature, the court cannot here it. It simply means it is not enforceable by law.
Uniform Civil code says that all the segment of the society ignoring their personal religion shall be serve equally in states of national civil code. Uniform Civil Code includes scope like
marriage, divorce, maintenance, adoption and succession of the property and inheritance. It also states that there is no relation between the law and the religion in the modern culture.
UCC have the big history, the origin of UCC at the British time in India in which the British
government in 1835 tried to bring uniformity in the codification of native law [India] corresponding to contracts, crimes, evidence etc. At that time the main two religions were Hindu and Muslim. So they had mindset that the Hindu and Muslim personal laws to be kept away and bring uniformity in the codification of Indian law.
To deal with the matters of personal laws British government influenced the government to
construct the BN Rao committee that main aims to codify the Hindu law in 1941. After adapting the constitution of India B.R Ambedkar was appointed the chairman of B.N Rao committee. In 1956 there was an adoption of Hindu succession Act. This act helped the women to give property right in their father’s estate.
If we talk about the personal laws than personal law is that law which is applicable to the certain croup or section of the people or a particular person. It is based on the culture, faith and the religious text. Both Hindu and Muslim personal laws are based on the ancient past religious texts.
Our Indian constitution itself credit that UCC should be execute in some manner,It does not
make UCC carry out mandatory.
About 90% of the Indian population does know about the UCC and why they are supporting and opposing UCC. Simply uniformity in law means all the person or religion have common law.
According to Article 14 of the Indian constitution ‘’ The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” 2 It means that unequal are not treated alike, equals are to be treated alike.
In our country 90% civil matters have different civil code like Indian contract act,1872, Sales of goods act 1930, Transfer of property act 1882, code of civil procedure 1908. All these laws and acts are applicable to all the groups and section in India. In India there is a special marriage act which we can consider as a type of UCC, it is made by the help of Indian Constitution. If we look than 95% population of Hindu does not follow special marriage act, 1954, they follow their own personal laws that is Hindu Marriage Act. They do marriage according to the Hindu Marriage Act 1955.Hindu people reform their personal laws in 1955 but the Muslim people have not get reform in their personal laws, still they are following Hindu Uniform laws.
‘’Article 25 in The Constitution Of India 1949. Freedom of conscience and free profession, practice and propagation of religion.
Article 26 in The Constitution Of India 1949 Freedom to manage religious affairs Subject to
public order, morality and health, every religious denomination or any section thereof shall have the right.
Article 27 in The Constitution Of India 1949 Freedom as to payment of taxes for promotion of
any particular religion No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination 3
Article 28 in The Constitution Of India 1949 Freedom as to attendance at religious instruction or religious worship in certain educational institutions.’’[Reference]
Shah Bano case-
In 1985 UCC came into highlight where Supreme court here the case of MohdAhmad Khan vs Shah Bano &; ors. This case was the landmark case for the protection of right of
the Muslim woman. In this case Mohd Ahmad Khan and Shah Bano Begum were husband and wife. After some dispute between them they decided to took divorced after 40 years of marriage by giving triple Talaq and Mohd Ahmad Khan refused to give regular maintenance by saying that the Muslim personal laws in India requisite the husband to only provide maintenance of ‘Iddat’ [ Iddat is a period during which a woman is prohibited from marrying again after the dissolution of her earlier marriage by divorce or death of the husband. The restriction is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage]
Shah Bano goes to District and High Court which both courts give judgment in favour of Shah Bano buther husband appeal to Supreme court by saying that he had filled all the obligation under Islamic laws. Supreme court ruled in Shah Bano favour under the ‘’maintenance of wives, parents and children of the All India Criminal Code. Further it came to highlight to setup a Uniform Civil Code. According to section 125 of ‘’ No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding’’ 4
Sarla Mudgal Case:- In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code (IPC).
According to the law commission of India UCC is not essential and non-profitable at this time.
Commission says that it directly impact badly on diversity and Pluralism of India. In 1954 when special marriage act was passed then Hindu community get more preference. In 1963 when there
was an amendment than also Hindu community get more advantage by ignoring Muslim and
Christian people. Like if two Hindu people got married according to section 16 of special
marriage act which says that’’ Procedure for registration.—Upon receipt of an application signed
by both the parties to the marriage for the registration of their marriage under this Chapter the
Marriage Officer shall give public notice thereof in such manner as may be prescribed and after
allowing a period of thirty days for objections and after hearing any objection received within
that period, shall, if satisfied that all the conditions mentioned in section 15 are fulfilled, enter a
certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth
Schedule, and such certificate shall be signed by the parties to the marriage and by three
witnesses.’’ 5 And get registered.
So this simply means that if we are not able to make uniformity in special marriage act which
was optional then how UCC can be uniform. This is totally illogical to think.
In Article 44 of Indian Constitution we are talking about UCC no what common civil code.
There is a word endeavor and we look Article 12 of Indian Constitution than there is state
government. Article 12 says that’’ Definition In this part, unless the context otherwise requires,
the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India’’ 6
So it is right to say that state government have the right to make any laws for a country? Answer is NO.
The main purpose of Article 44 is that state in civil laws can try to implement uniformity. Code
does not mean one law, if we look Hindu Code bill then there is not one law there are laws like
marriage act, succession act, adoption act. In 1991 Hindu code bill committee was constituted but it took 14 years to pass in the legislation, so it is not easy to implement UCC suddenly.
NAGA Community also oppose UCC by saying that the Nagaland Bar Association has apprises that implementation of UCC would bring about clear trouble for the culture and dignity of the Naga people. It can cause so much hardship to the Naga because personal and social life of the Nagaland people are very well defined from the rest of people in the country.
Goa has its own ‘civil code’. It is because Goa became a part of India in 1961. Portuguese civil
code of 1869 was running in Portuguese colony which further decided to continue their own
code for all communities in the state of Goa. In spite of the fact that Portuguese rule ended the code was not replaced by Hindu Marriage Act 1955 and Hindu Succession Act 1956 or Indian succession act 1925 or Shariat [Application] Act 1937 and dissolution of the Muslim Act 1939 etc, In Goa is an example of legal pluralism[ A situation in which two or more legal system coexit in the same social field].
Cons of Uniform Civil Code – Implementation of UCC is practically difficult because of diversity in India. There is an interference of state in the personal matters and this is very sensitive and tough task. Perception of UCC as encroachment on religion freedom and this is not the suitable time for this reform.
If there is a problem in child marriage, nikah, halala, Triple talaq than my opinion is that we
should treat these things as a partnership like parties sit together and decide what- what rights they needed, like who wants to go out of the marriage than what are the condition for its, which rights and liabilities are required to solve this problems.
If we bring reforms slowly like marriage registration, reforms on domestic violence act like we
recently ended Triple talaq. So by bringing reform in these matters slowly than the chance of
acceptability is more people will understand this. We can not change and end someone personal laws suddenly. Like our majority community will never want that Hindu Joint Family which there is a tax benefit suddenly end, majority people never want that culture of Kanyadaan’’giving away of the bribe’ Satpati will end.
1 Constitution of India, s 44
2 Constitution of India, s 14
3 Constitution of India, s 27
4 The code of criminal procedure 1973, s 125
5 Special marriage act 1954, s 16
6 Constitution of India, s 12
Reference--
https://blog.ipleaders.in/right-to-freedom-of-religion-articles-25-28/
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