HIDAYATULLAH NATIONAL LAW UNIVERSITY

A A R RE ES SE EA AR RC CH H P PR RO OP PO OS SA AL L F FO OR R D DO OC CT TR RI IN NA AL L R RE ES SE EA AR RC CH H: :
U UN NI IF FO OR RM M C CI IV VI IL L C CO OD DE E A AN ND D S SE EC CU UL LA AR RI IS SM M: : A A C CR RI IT TI IC CA AL L
A AN NA AL LY YS SI IS S

R RE ES SE EA AR RC CH H M ME ET TH HO OD D A AN ND D L LE EG GA AL L W WR RI IT TI IN NG G

S SU UB BM MI IT TT TE ED D B BY Y: :
D DE EV VE ES SH H M MI IS SH HR RA A
R RO OL LL L N NO O. .- -1 15 5
L LL L. .M M- - I I T TR RI IM ME ES ST TE ER R ( (2 20 01 14 4- -1 15 5) )


S SU UB BM MI IT TT TE ED D T TO O: :
D DR R. . K KA AU UM MU UD DH HI I C CH HA AL LL LA A
ASSITANT PROFESSOR



D DA AT TE E O OF F S SU UB BM MI IS SS SI IO ON N: : 3 30 0
T TH H
S SE EP PT TE EM MB BE ER R, , 2 20 01 13 3



CERTIFICATE
This is to certify that the project entitled Uniform Civil Code and secularism:
A Critical Analysis submitted by Devesh Mishra is a record of the candidates
own work carried out by him under my supervision. The matter embodied in
this project is original and has not been submitted for the award of any other
degree.







DATE: (Dr. Kaumudhi Challa)
Assistant Professor














DECLARATION

I, Devesh Mishra, student of LL.M. 1st Trimester of Hidayatullah National Law
University, Raipur hereby declare that the project work entitled Uniform civil
code and secularism: A critical analysis submitted to the Hidayatullah
National Law University, Raipur is a record of an original work done by me
under the guidance of Dr. Kaumudhi Challa, Assistant Professor, Hidayatullah
National Law University, Raipur.












Date: Devesh Mishra

Roll No. 15










ACKNOWLEDGEMENT


Apart from the efforts of me, the success of this project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express
my gratitude to the people who have been instrumental in the successful
completion of the project.

I would specially like to thank my teacher, mentor Dr. Kaumudhi Challa
without whose constant support and guidance this project would have been a
distant reality. Her help and support gave me the strength to complete this
project with complete understanding.

This work is an outcome of an unparallel infrastructural support that I have
received from Hidayatullah National Law University, Raipur. That is just an
umbrella under which shadow it would have been possibile to complete this
project.

It would never have been possible to complete this study without an untiring
support from my family, specially my parents.

I would like to thank my friends and well-wishers.








TABLE OF CASES





















ABBREVIATIONS

AIR - All India Reporter
Del - Delhi
Edn. - Edition
i.e. - That is
No. - Number
Ors. - Others
p. - Page
s. - Section
S.C.R - Supreme Court Reporter
SC - Supreme Court
SCC - Supreme Court Cases
US - United States
UK - United Kingdom
V - Versus
Vol. - Volume
UCC - Uniform civil code
Govt. - Government
Eg - Example









TABLE OF CONTENTS
Declaration ................................................................................................................................
Certificate..................................................................................................................................
Acknowledgement...................
List of abbreviations ................................................................................................................
Introduction..
Legal research..
Research methodology
The project on Uniform civil code and secularism: A critical analysis....
Problem ...
Rationale..
Objective..
Review of literature.
Hypothesis ...
Concept
Research design
Types of data
Chapterization..
Major findings.
Contribution of the study.
Limitation.....
Bibliography.....








UNIFORM CIVIL CODE AND SECULARISM: A CRITICAL
ANALYSIS
INTRODUCTION:
The research project deals with the research about the problems arising
on unavailability of a uniform civil code. It discusses about the problems country and the
citizens facing nowadays. India is a country of multi-religions and multi languages. Number
of people is governed by their personal laws. There are different codes for different
communities like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and
Maintenance Act, Hindu Guardianship Act. Muslims and Christians are governed by their
personal laws. There are also many different sects and they are ruled by their customs,
traditions etc. These codes are based on different personal laws of different religious
communities, but this classification based on religion faces many difficulties, whenever the
question arises on matter of succession, marriage, divorce, inheritance, adoption,
maintenance, guardianship, custody of children etc.
Uniform Civil Code is not opposed to secularism and will not violate Article 25 and 26.
Article 44 is based on the concept that there is no necessary connection between religion and
personal law in a civilized society. Marriage, succession and like matters are of secular nature
and, therefore, law can regulate them. No religion permits deliberate distortion.
1
The UCC
will interfere only in matters of inheritance, right to property, maintenance and succession,
there will be a common law.

Uniform Civil Code:
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. Thus, the laws governing inheritance or divorce among Hindus would be different
from those pertaining to Muslims or Christians and so on.

1
Sarla Mudgal v. Union of India, AIR 1995 SC 1531



A uniform civil code essentially means unifying all these "personal laws" to have one set of
secular laws dealing with these aspects that will apply to all citizens of India irrespective of
the community they belong to. Though the exact contours of such a uniform code have not
been spelt out, it should presumably incorporate the most modern and progressive aspects of
all existing personal laws while discarding those which are retrograde.
Uniform civil code and Indian constitution:
Article 44, which is one of the "directive principles" laid down in the Constitution says: "The
State shall Endeavour to secure for the citizens a uniform civil code throughout the territory
of India." As Article 37 of the Constitution itself makes clear, the directive principles "shall
not be enforceable by any court". Nevertheless, they are "fundamental in the governance of
the country".This shows that although our constitution itself believes that a Uniform Civil
Code should be implemented in some manner, it does not make this implementation
mandatory. Hence, the debate on having a uniform civil code for India still continues.
Like the concept of secularism, justice , liberty, equality and fraternity all are essential and
inseparable part of Indian Constitution and along with clarity and security are also considered
as essential part of the constitution and as stated earlier prevalence of different personal laws
ruins the clarity of laws and creates apprehensions in the mind of different religions so the
very purpose of the Constitution is not fulfilled and there is a necessity for the formation of
Uniform Civil Code. Providing justice without equality to the individual will not fulfill the
very basic purpose of the Constitution. It will create such a situation in which a person have
the power to go to courts for infringement of his rights but the basis of this infringement is
equality itself which is not provided to individual.
Secularism:
The Preamble of the Constitution states that India is a Secular Democratic Republic. This
means that there is no State religion. A secular State shall not discriminate against anyone on
the ground of religion. A religion is only concerned with relation of man with God. It means
that religion should be not interfering with the mundane life of an individual. The process of
secularization is intimately connected with the goal of uniform civil code like a cause and
effect. In S.R. Bommai v. Union of I ndia
2
, as per Justice Jeevan Reddy, it was held that

2
(1994) 3 SCC 1



religion is the matter of individual faith and cannot be mixed with secular activities can be
regulated by the State by enacting a law.
In India, there exists a concept of positive secularismas distinguished from doctrine of
secularism accepted by America and some European States i.e., there is a wall of separation
between religion and State. In India, positive secularism separates spiritualism with
individual faith. The reason is that America and the European countries went through the
stages of renaissance, reformation and enlightenment and thus, they can enact a law stating
that State shall not interfere with religion. On the contrary, India has not gone through these
stages and thus, the responsibility lies on the State to interfere in the matters of religion so as
to remove the impediments in the governance of the State.
The word secular is not precise and has different shades in different contexts. It is opposed to
religion in the sense that the secular State cannot be a religious State. In this context, some
feel that a secular State is an anti-religious State. The State, which has no religion of its own,
does not necessarily mean an anti-religious State. It may be a State respecting all religions.
Though the term secular was added to the preamble by way of 42nd Constitutional
Amendment, secular spirit permeated every fiber of the Constitution from its very inception.
This very secular spirit formed the foundation of fundamental right to equality before law
3
.
Personal laws:
The personal law of the Hindus, such as relating to marriage, succession and the like have all a
sacramental origin, in the same manner as in the case of the Muslims or the Christians. The
Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the
national unity and integration, some other communities would not, though the Constitution
enjoins the establishment of a "Uniform civil Code" for the whole of India.
4


The personal laws of the major religious communities had traditionally governed marital and
family relations, with the Government maintaining a policy of non interference in such laws in
the absence of a demand for change from individual religious communities
5
.India is a land of
diverse religions Hindus, Buddhists, Jains, Christians, Muslims, Parsees, and Sikhs form the

3
art 14 of the Indian constitution: right to equalty before law.
4
Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others, AIR 1995 SC 1531
5
United Nations, report of the Committee on the Elimination of Discrimination Against Women, Supp. No.
38,A/55/38,22nd Session 17 Jan -4 Feb 2000 and 23rd Session 12-30 June 2000,General Assembly Official
Records, New York,2000 at 8.Also see, Jyoti Rattan, Uniform Civil Code in India:A Binding Obligation Under
International and Domestic Law, 46 Journal of the Indian Law Institute 577, 577 (2004)




nation. Unity in diversity is the core feature of the Indian nation. Each community has its own
laws governing 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 individual'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 particular religious or cultural
groups within a national jurisdiction. They govern family relations in such matters as marriage
and divorce, maintenance and succession. India is a secular country where every community is
allowed its own personal laws. Christians have the Indian Christian Marriage Act, 1872 and the
Indian 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. Muslim 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 personal 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 practice polygamy, and Hindu sons inherit greater shares of their parents'
estates than their sisters do. While one's religion determines which law will apply to him or her
regarding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession.
6


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 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. There is
no doubt that the idea of UCC is by and large, a child of independent India
7
.
Research Methodology:
The research methodology refers to a way to systematically solve the research problem. It
may be understood as a science of studying how research is done scientifically. It involves a

6
See id. at 104.
7
KIRAN DESTHA, UNIFORM CIVIL CODE IN RETROSPECT AND PROSPECT 2 (Deep & Deep Publication New Delhi
2002) (1995) .



study of various steps and methods that a researcher needs generally to adopt in his
investigation of a research problem along with the logic behind them. It is a study of not only
of methods but also of explanation and justification for using certain research methods and of
the methods themselves. It includes in it the philosophy and practice of the whole research
process. In other words, research methodology is a set of rules of procedures about the way of
conducting research. It includes in it not just a compilation of various research methods but
also the rules for their application (in a given situation) and validity (for the research problem
at hand).
Definition:
Method is the way of doing something. Methodology is the science or study of a particular
subject. The concept of the research methodology is much wider. The method a researcher
followed in pursuing a research is called research methodology.
Research : Meaning and definition:
Research, in simple terms, can be defined as systematic investigation towards
increasing the sum of human knowledge and as a process of identifying and investigating a
fact or a problem with a view to acquiring an insight into it or finding an apt solution
therefore. An approach becomes systematic when a researcher follows certain scientific
methods. Research means scientific and systematic re-examination of existing facts or
knowledge to ascertain whether the existing conclusion can be varied or not.
Research is original and fundamental contribution to the knowledge on any subject
on discipline leading for its advancement. It is a voyage towards truth. Investigation of every
kind which have been based on original sources of knowledge may be styled as research and
it may be said that without research no authoritative work have been written, no scientific
invention or discoveries are made, no theories of any value propounded.
According to Lundberg, research is the method sufficiently objective and
systematic to make possible classification, generalization and verification of the data
observed
8
.Every research has its own specific purpose, however, the purpose or objectives
of research may broadly be classified as follows:

8
Dr. S. R. Myneni, Legal Research Methodology, 2
nd
Ed., 2003



To familiarize with a phenomenon or to acquire new insights into an existing fact;
To determine the frequency with which something occurs or with which it is
associated with something else;
To portray accurately the characteristics of a particular object, situation or group;
To test a hypothesis of a causal relationship between two objects; &
To separate fact from speculation and wish.


Importance of Research:
All progress is born of inquiry. Doubt is often better than overconfidence, for it leads
to inquiry, and inquiry leads to invention is a famous Hudson Maxim in context of which the
significance of research can well be understood. Increased amounts of research make
progress possible
9
. Following are the importance of research:
.
Research provides the basis for nearly all government policies in our economic
system. For instance, governments budgets rest in part on an analysis of the needs
and desires of the people and on the availability of revenues to meet these needs. The
cost of needs has to be equated to probable revenues and this is a field where research
is most needed. Through research we can devise alternative policies and can as well
examine the consequences of each of these alternatives.

Research has its special significance in solving various operational and planning
problems of business and industry. Operations research and market research, along
with motivational research, are considered crucial and their results assist, in more than
one way, in taking business decisions. Market research is the investigation of the
structure and development of a market for the purpose of formulating efficient
policies for purchasing, production and sales. Operations research refers to the
application of mathematical, logical and analytical techniques to the solution of
business problems of cost minimization or of profit maximization or what can be
termed as optimization problems. Motivational research of determining why people
behave as they do is mainly concerned with market characteristics. In other words, it


9
C.R.Kothari, Research Methodology,Second Revised Ed., 2004




is concerned with the determination of motivations underlying the consumer (market)
behavior.
Research is equally important for social scientists in studying social relationships and
in seeking answers to various social problems. It provides the intellectual satisfaction
of knowing a few things just for the sake of knowledge and also has practical utility
for the social scientist to know for the sake of being able to do something better or in
a more efficient manner. Research in social sciences is concerned both with
knowledge for its own sake and with knowledge for what it can contribute to practical
concerns.
Thus, research is the fountain of knowledge for the sake of knowledge and an
important source of providing guidelines for solving different business, governmental
and social problems. It is a sort of formal training which enables one to understand the
new developments in ones field in a better way.

Legal Research:
Legal research means research in that branch of knowledge which deals with principles of
law and legal institutions. It is not essentially different from other types of research. This too
is search for authority to verify some hypothesis and is a continuum. Under the broad name
of enquiry about law, an analysis is made of the rules, concepts and institutions of the legal
systems itself.
10

Legal research is one of the aspects of study of human behaviour, their interactions, attitudes
pertaining to any law under the research studies. The legal research is the study of
relationship between the world of the law and the world that the law purports to govern. The
law and the real world are in close relation. The law is a more or less systematic statement or
the appropriate behaviour of the society. But the legal statement is built on the verbal
statements, and in the process the real world becomes more and more remote.
11

The systematic investigation of problems and of matters concerned with law such as Codes,
Acts, Constitutions, etc is legal research. Judges, lawyers, Law Commissions and researchers
constantly do research in law. They do make systematic research into the social, political and
other fact conditions which give rise to the individual rule. For example, in the case of Mc

10
S.K Verma & M. Afzal Wani, Research Methodology, Indian Law Institute Publication, 2010, 10
th
Edn., New
Delhi, p. 139
11
Supra 2, p. 16



Dowell and Co. Ltd. v. Commercial Tax Officer
12
, Justice Chinnapa Reddy presented his
investigation and analysis of cases of tax avoidance in his separate judgment. It is a research
report of tax avoidance in terms of legal methodology. Research area in law is related to pure
law or law in relation to society.
13

According to J Myron Jacobstein and Roy M Mersky, Legal Research is the process of
identifying and retrieving information necessary to support legal decision making. In its
broadest sense, legal research includes each step of a course of action that begins with an
analysis of the facts of a problem and concludes with the application and communication of
the results of the investigation.
14

Therefore, legal research can be said to be a research in the field of law and legal institutions.
Legal Research is helpful to understand the problems in society and the changes required.
Importance of Legal Research:
Legal Research has the following importance
Only due to legal research one gets to know about the problems in society and the
need for law to tackle them
It also helps to identify the drawbacks in law and the modifications required.
It helps the Government to formulate plans and policies to take care of the needs of
the people.
The Legislature, through legal research can take steps to make laws to take care of the
needs of the society. This is in terms of amending, modifying or making an entirely
new law.
It helps the Executive/Administrative Authority to judge the laws that will be
implemented.
It helps the students of law to enhance and develop their knowledge.
It is helpful and useful for Academicians and also it increases knowledge of law.

Socio-Legal Research :

12
(1985) ITR Vol. 154 p. 148-172
13
Supra 2, p. 17
14
J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed. (Foundation Press, 2002)
p. 1.



Law is an important variable in any social investigation. Researchers cannot do
anything in sociological research if they do not know at least the basics of law, legal system
and institutions. Similarly, a legal researcher cannot do justice to the legal inquiry if he does
not know about the mechanics of social research methods.
Law is not for law sake. Law is an instrument for social control. It originates and
functions in a society and for society. The need for a new law, a change in existing law and
the difficulty that surround its implementation cannot be studied in a better manner without
the sociological enquiry.

Research Problem:
A research problem is the first step and the most important requirement in the research
process.
The term problem comes from the Greek word proballein which means anything through
forward; a question proposed for solution; a matter stated for examination.
15

There are some of the definitions of the term problem given by many authors traced below:
R. S. Woodworth defines problem as A situation for which we have a ready and successful
response by instinct or by previously acquired habit. We must find out what to do.
16

According to Cohen and Nagal A problem in simple words is some difficulty experienced
in theoretical and practical situation. The truth is to be found by studying the facts and it
guides our research and the facts which are being studied by the researcher would help to
remove the difficulty.
17

John Dewey states, The need of clearing up confusion, of straightening out an ambiguity, of
overcoming obstacles, of covering the gap between the things as they are and as they may be
when transformed, is, in germ, a problem.
18

Importance of Problem in research:


15
Supra 2, p. 90
16
Supra 2, p. 90
17
Ibid
18
Ibid



It gives the proper guidance to the researcher.
It helps the researcher to complete his research within the time.
It helps to motivate the researcher.
It helps the researcher to reach a conclusion
The current research project has such problem:
The problems which are there in proposed research project are as following:
conflict between personal laws and the interest of the community at large.
Article 44 of the Directive Principles in India sets its implementation as duty of the State. It
talks about interest of community at large. And on other hand Apart from being an important
issue regarding secularism in India, it became one of the most controversial topics in
contemporary politics during the Shah Bano case in 1985. The debate then focused on
the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed
since 1937, permitting unilateral divorce and polygamy in the country.

There is difficulty in distribution of justice; hence decisive steps were taken towards national
consolidation in form of idea of uniform civil code which was for the first time mooted
seriously in the Constituent Assembly in 1947 but the problem still remains same. There is
no uniformity of laws applicable to marital relation though as far as uniform legislation is
concerned, we have almost covered every aspect of law except matrimonial laws. As per the
term secular used in the preamble of Indian constitution it becomes necessary to form a
uniform civil code because many laws are there but the women are dominated not by secular
laws, not by uniform civil laws, but by religious laws.

The womens rights are not being equally protected. Research project deals with in absence
of uniform civil code unilateral divorce and polygamy is permitted in Muslim personal
laws.

Rationale:
Rationale is a reasoned exposition especially one defining the fundamental reasons for a
course of action or belief etc. it may also be called as the statement of reasons or principles.



The rationale of a study explains why the study is required to be done. It provides for the
need and importance of research. A rationale is required before beginning any sort of
research project.
Rationale of the current research project:
The researcher doing research on Uniform civil code and Secularism: a critical analysis.
The main motive of doing this research is regarding unifying all the religions in a code i.e.
Uniform civil code in place of various acts and personal laws which are there related to ones
own religion. Being a multi-religious country India has many of the problems to face every
time as in the courts of India there are so many cases can be seen which are pending and
coming continuously related to marriage, divorce, adoption and maintenance etc. The same
happens with each religion. Therefore such kind of research to take the legislature in a well
set mind becomes rationale or very important to deal with the problem which are there in
India regarding personal laws.
Objectives of the research:
Meaning:
Objectives are the goals one sets to ascertain or to attain in the study. Since these
objectives inform a reader of what has been stated in the research work or what the researcher
wants to achieve through the study, it is extremely important to word them clearly and
specifically.
Objectives can be general or specific. The general objective of the study states what
the researcher expects to achieve in general terms. Specific objectives break down the
general objective into smaller, logically connected parts that systematically address the
various aspects of the problem. The specific objectives should specify exactly what the
researcher will do in each phase of his study, how, where, when and for what purpose. It is a
specific result that a person or system aims to achieve within a time framework.
Importance of Objectives:-
The objectives should be expressed in such a way that the wording clearly, completely and
specifically communicates to the readers their intention. There is no place for ambiguity, non-
specificity or incompleteness, either in the wordings of the objectives or in the ideas they
communicate.



Objectives of the current research project:
The main objectives of this research project are:-
To find out whether there are sufficient laws giving equal protection to womens rights.
To study the personal laws of India.
As per the term secular used in the preamble of Indian constitution it becomes
necessary to form a uniform civil code because many laws are there but the women
are dominated not by secular laws, not by uniform civil laws, but by religious laws.
To know whether we ensure equality, unity and integrity of the nation.
To find whether there is justice provided to both men and women.

Review of literature:
Meaning:
Once the research problem is formulated, the researcher needs to undertake an extensive
survey of literature connected with, related to, and/or having bearing on, his research
problem. This is the process whereby the researcher locates and selects the references that are
relevant for his inquiry.
According to Fink, A literature review is a systematic, explicit and reproducible method for
identifying, evaluating and synthesizing the existing body of completed and recorded work
produced by researchers, scholars and practitioners.
19

Importance of Review of Literature:-
Literature review enables the researcher to know what kind of data has been used, what
methods have been used to obtain the data, and what difficulties the earlier researchers in
collecting and analyzing the data have faced.
Review of literature regarding the current project:
The researcher while doing research got help from the following books and literatures:

19
Ibid



Myneni S.R., Legal Research Methodology, Allahabad Law Agency second Edn.
Reprint 2003; In this book the author has tried to explain the meaning of research,
what is a research problem, the objectives of research, what is a research problem
infact what is a legal research.
Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.
Reprint 2003; In this book the author has tried to explain the modes of legal research,
the process of research, sources of data and the rationale of research and other topics
as to what is the importance of legal research.
Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013; In
this book the author has defined the research design and how to carry a research
project and what all steps are required for doing a research project.
J.N.Pandey, M.P.Jain The constitutional Law of India In this book, the author
has explained uniform civil code through case laws as well the provisions of equality,
religious freedom etc.
J. Myron Jacob stein and Roy M. Mersky, Fundamentals of Legal Research, 8th
ed. (Foundation Press, 2002) helped me to understand what is legal research in easy
way.

Hypothesis:

It is an idea formed before the researcher.When the researcher doing research can
come to an idea that this can be a conclusion of this research.
Hypothesis is derived from two words: hypo means under, and thesis means an
idea or thought. Hence, hypothesis means idea underlying a statement or proposition
Idea which is beforehand or prior to the research is known as hypothesis.
Hence hypothesis can be defined as any supposition or mere assumption which we
make in order to endeavour to deduce conclusions in order to deduce conclusions in
accordance with the facts which are known to be real under the idea that if the conclusions to
which the hypothesis leads are known truths, the hypothesis itself either must be or likely to
be true.
20

The hypothesis for a research has been defined by various authors in the following ways:-

20
Ibid



The Websters International Dictionary gives the meaning of the term hypothesis
as a proposition, condition or principle which is assumed perhaps without belief, in
order to draw
out its logical consequences and by this method to test its accord with facts which are known
or may be defined.
21

As per Goode and Hatt, Hypothesis is a proposition which can be put to a test to
determine its validity.
22

According to Coffey, A hypothesis is an attempt at explanation, a provisional
supposition made in order to explain scientifically some facts or phenomenon.
23

Cohen and Nagel say, We cannot take a single step forward in any inquiry unless
we begin with a suggested explanation or solution of the difficulty which originated it.
Such tentative explanations are suggested to us by something in the subject matter and
by our previous knowledge. When they are formulated as propositions, they are called
hypothesis.
24

Hypothesis to the current research project:
India is a republic of secular state but it has positive secularism unlike U.S.A. and other
European countries that is why the problems arising because there is no separate wall
between state and religion like America. So whenever state starts codifying uniform civil
code it has to interfere in the matter of citizens religion which can not be as per the concept
of secular state relies in the preamble of Indian constitution.
Actually after reviewing all the literature, judicial cases, debates and the personal laws
available to the researcher related to the proposed research project, the hypothesis is: Our
society is not up to that standard which can utilize the Uniform civil code and thus still
UCC is awaited to be done. What is the reason behind it as the researcher observed India is a
multi religion country. Allot of cultures are there and such culture, tendency and the
behaviour of the citizens is full of diversity. Though we say India offers unity in diversity but
not in all respect otherwise uniform civil code could have been enacted long back.
Constitution makers added this clause of uniform civil code as DPSP but have not made the

21
Supra 28, p. 74
22
Supra 33, p. 156
23
Ibid
24
Supra 2, p. 96



same enforceable because they knew the time has not come. Society has ignorance regarding
this. But its need of the society now.
Concepts and variables:
Concepts are mental images or perceptions and therefore their meanings vary markedly from
individual to individual.
A variable is a property that takes on different values. A concept that can be measured on any
one of the four types of measurement scale, which have varying degrees of precision in
measurement, is called a variable.
Webster defines concept as generalized term for a class of objects, an abstraction from
reality that allows us to refer to reality.

Importance of the concepts and variables:
Concepts are the symbols that researcher works with; they help to deduce the meaning of
ideas used in the research as an idea may connote many meanings. Meaning may vary from
one meaning to another meaning and concepts helps in clarifying the ideas used in the
concerned research.
Concepts and variables referred to current research project:
There are some debates and different opinions of the experts have been taken into
consideration regarding uniform civil code and personal laws:-
The term uniform civil code and its meaning itself came under intense scrutiny during
the Constituent Assembly debates. Muslim members were very vocal against this
provision in Article 44. Mr. B. Pocker Sahib Bahadur wanted to know what did the
term uniform civil code stand for and which particular law of which particular
community were the framers of the provision going to take as the standard.
25
The
muslim members opined that the word civil code did not cover strictly personal law
of a citizen. Allowing the fears of the members who questioned the connotation of the
word uniform civil code and the object of having such a provision in the Constitution,

25
Constituent Assembly Debates, Vol. VII, (1949), p. 543



Shri K.M. Munshi said that the whole object of this Article is that as and when the
Parliament thinks proper or rather when the majority in Parliament thinks proper an
attempt may be made to unify the personal law of the country. The Chairman of the
Drafting Committee, Mr. B.R. Ambedkar while replying to the questions on the
provision of the uniform civil code in the Constituent by the minority community it
was intended to have a code which provided for uniformity of law in matters of
marriages, divorce, succession etc. irrespective of religion, community etc.Mr. M.C.
Chagla, a former Minister while making a vehement plea for uniform civil code
wrote, Article 44 is a mandatory provision binding the government and it is
incumbent upon it to give effect to its provision. The Constitution was enacted for the
whole country, and every section and community must accept its provision and its
directives.
26


The UCC has been permanently associated in the Indian mind with opposition by the
Muslims. It was rightly pointed out in the constituently assembly that mot all Hindus
were in favour of UCC .They felt that the personal law of inheritance, succession, etc.
is really a part of their religion. If that were so, Indian women can never be given
equality with a man who is enshrined in art. 14 of the Constitution. Art. 15(1)
provides that the state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them
27


Secularism: the concept in india:
The Republic of India is a Secular State
The constitution of India stands for a secular state. The state has no official religion.
Secularism pervades its provisions, which give full opportunity to all persons to
profess, practice and propagate the religion of their choice.
Components of Secularism
Equality as incorporated in Article 14.
Prohibition against discrimination on the grounds of religion, caste etc; as
incorporated under Article 15 and 16.

26
(M.C. Chagla, Plea for Uniform Civil Code, Weekly Round Table, March 25, 1973, p. 7.)
27
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 904 (5th ed., Wadhwa and Company Nagpur New Delhi 2008)
(196



Freedom of speech and expression and all other important freedoms of all the
citizens are conferred under Articles 19 and 21.
Right to practice religion is conferred under Articles 25 to 28.
Fundamental duty of the state to enact uniform civil code treating all the
citizens as equal is imposed by Article 44.
Basic concept of the research project:
As per the provision of art 44 which is enumerated in directive principals of state policy: The
state shall endeavour to secure for the citizens a uniform civil code throughout the territory
of india the state is required to secure for the citizens a uniform civil code.
Under the Preamble to the Constitution of India the people of India have solemnly
resolved 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 before the
commencement of the constitution, 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 the country. In view
of the above provisions the questions arise as to whether a Mohammedan woman
married or 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 (Sha3riat) 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 a Uniform Civil Code to secure and protect all that and the unity and the
integrity of the nation?

Research Design:

Meaning:



After the identification of a research problem the preparation of a research design follows
subsequently. It is basically prepared by the researcher after defining and formulating the
research problem, reviewing the literature and developing the working hypothesis. It is an
outline or a conceptual structure and within its limits the research work is supposed to be
carried out. The research design is prepared with an object of collecting relevant data with the
minimum efforts and with minimum expenditure, just to control wasteful expenditure.

Research design is a plan, structure and strategy of investigation conceived so as to obtain
answers to research questions and control variance.

According to Pauline V. Young, A research design is a plan of action, a plan for collecting
and analysing the data in an economic, efficient and relevant manner.

NATURE AND KIND OF RESEARCH
The legal research can mainly be divided into two types namely Doctrinal and Non-Doctrinal.
a) Doctrinal Research- This type of research involves analysis of case laws, ordering
and systematizing legal propositions and study of legal institutions, but it also creates
law and its major tool through legal reasoning or rational deductions. This kind of
research is carried on by all the Judges, lawyers and law teachers.
The essential characteristics of doctrinal research are:
28
- (1) the scholar organizes his
study around legal propositions; and (2) appellate court reports and other conventional
legal materials readily accessible in a law library are the principal, if not the sole sources
of data from which the scholars conclusions are drawn. The bulk of legal research is a
product of this approach.
b) Non-Doctrinal Research- As opposed to doctrinal research, this type of research is
carried on by collecting or gathering information by first hand study of the subject. It
relies on observation or experience without due regard to any theory or system and
hence is also called experimental type of research. In this type of research, the
researcher attempts to investigate the effect or impact by actual examination or
observation of the functioning of law and legal institutions in the society.

28
Supra 10, p. 33




The current research topic deals with doctrinal research.
Sources of data:
Data:
Meaning:
Any research is based upon various types of information. It is not possible to conduct and
complete a research without collecting and considering different kinds of information.
Different types of researches require different types of information. Once the researcher has
decided the research and sampling designs, his next work is of collecting data.
Definition:
Collection of data is regarded as fascinating phase of research. Though the collection and
handling of information, the researcher begins to feel the actual excitement of the research.A
datum is what is observed or is manifest.
And the sources of data collection is of two type
(i) primary source
(ii) secondary source
For Doctrinal Research, there are the following sources of data:-
a) Primary Data- The Primary Sources of Law are those authoritative records of law
which are made by law-making bodies. These records include
29
: statutes, case laws,
precedent, judgments, codifications.

b) Secondary sources- It is also called Documentary Source of Data Collection. Such
data can be obtained from Libraries or from the Internet. These include the Text
Books of law as well as the Websites, Articles, Specialised Law Reports, Academic
Law Journals, Law Libraries, etc. referred for collecting data.

29
Supra 2, p. 141



These may be: reports, government publications, journals, publication of professional
research organizations, newspapers, books, Magazines etc.
For Non-Doctrinal Research,
a) Primary Sources of data is the data collected from the field. The method for collecting
primary data is:- Interview Method, Questionnaire Method, Observation Method.
b) Secondary Sources of data collected include:- Books, Journals, Acts passed by
Parliament, Published or unpublished materials (such as Census Reports, Reports of
Governmental and/or Non-Governmental Agencies, etc.)
The current doctrinal research involves the Primary as well as Secondary Sources of
Data: wherein:
Primary sources:
Constitution of india,1950
Hindu succession act,1956
Hindu marriage act,1955
Special marriage act,1954
Muslim Women's (Protection of Rights on Divorce),1986
Criminal procedure code, 1973
Judicial decisions:
Begum Shah Bano alias Saira Bano v. A.M. Abdul Gafoor
30

Mangila Biwi v. Noor Hussain
31

Sarla mudugal v. union of India
32

Secondary sources:
Myneni S.R., Legal Research Methodology, Allahabad Law Agency second Edn.
Reprint 2003
Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.
Reprint 2003
Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013;

30
AIR 1987 SC 1103
31
(AIR 1992 Cal 92)
32
(1995) 3 SCC 635



J.N.Pandey, The constitutional Law of India
M.P.Jain, The constitutional Law of India
The All India Women's Conference (AIWC)
Hindu Code Bill
Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil
Code
Muslim law; prof. R.K.Sinha
Hindu law; Dr. Paras diwan
Chapterization:
The proposed research work has the following chapters namely:
Chapter 1: I ntroduction- The researcher has introduced the topic UNIFORM CIVIL
CODE AND SECULARISM: A CRITICAL ANALYSIS with its historical background.
Research Methodology- Researcher has given the Research Methodology (doctrinal
method of research) followed in the research.
Chapter 2: Uniform civil code: Three stage mechanism
Chapter 3: legislative reforms-
Efforts made on the part of the government.
Chapter 4: A critical review on available laws.
Chapter 5: J udicial interpretation with respect to Uniform civil code.

Contribution of study:
The study contributes in a manner to make the people in the society aware about the problem
arising on not having a uniform civil code and its adverse impact on the right to equality of
men and women both and also provides solutions in terms of enactment of the uniform code,
etc.
Limitation:
The research is done in prospect of India only.
UNIFORM CIVIL CODE: THREE STAGE MACHANISM



Renaissance
Reformation
Enlightenment

In India, there exist a concept of positive secularism as distinguished from doctrine of
secularism accepted by America and some European States i.e., there is a wall of separation
between religion and State. In India, positive secularism separates spiritualism with
individual faith. The reason is that America and the European countries went through the
stages of renaissance, reformation and enlightenment and thus, they can enact a law
stating that State shall not interfere with religion. On the contrary, India has not gone through
these stages and thus, the responsibility lies on the State to interfere in the matters of religion
so as to remove the impediments in the governance of the State. The word secular is not
precise and has different shades in different contexts. It is opposed to religion in the sense
that the secular State cannot be a religious State. In this context, some feel that a secular State
is an anti-religious State. The State, which has no religion of its own, does not necessarily
mean an anti-religious State. It may be a State respecting all religions.
33


Eg : a) GOA AN INSPIRATION FOR UNIFORM CIVIL CODE
A UCC exists in the small state of Goa accepted by all communities. The Goa Civil
Code collectively called Family Laws, was framed and enforced by the Portuguese colonial
rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in
1961, the Indian State scrapped all the colonial laws and extended the central laws to the
territory but made the exception of retaining the Family Laws because all the communities in
Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed
regarding the disposal of immovable and movable property in the event of divorce or death.
During matrimony, both parents have a common right over the estate, but on dissolution, the
property has to be divided equally; son and daughters have the equal right on the property. As
the procedure involves compulsory registration of marriage, this effectively checks child and
bigamous marriage. The philosophy behind the Portuguese Civil Code was to strengthen the
family as the backbone of society by inculcating a spirit of tolerance between husband and wife
and providing for inbuilt safeguard against injustice by one spouse against the other.
Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief

33
http://centreright.in/2011/10/need-for-uniform-civil-code-in-india-a-human-rights-perspective/#.Uk-
X59LbSYw



Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken the
rest of bigoted India."
34

c) Even Italy has one, as do the rest of the developed world

A CRITICAL REVIEW ON AVAILABLE LAWS
A futile attempt was made in the direction of uniform civil code by the judiciary
through the Shah Bano verdict. But the Government of India went ahead in passing
the Muslim Women (Protection of Rights on Divorce) Act, 1986 making sections
125-127, Criminal Procedure Code optional to divorce, Muslim Women muted law
cant be far ahead of the society which would lack social legitimacy. And for this, the
mandate of Article 44 is that The State shall endeavor to secure which recognizes the
fact that the different personal laws do exist in the country which needs to be uniform
in its applicability. The Constitution of India in Article 44 enjoins, The State shall
endeavor to secure for the citizens a uniform civil code throughout the territory of
India. It is 60 years or more, yet we have not able to attain that level of sophistication
to accept and adopt the Constitutional mandate.
The last fifty years have been a sad waste of time. There has been no collection of
relevant information about the numberless semi-visible groups and communities, no
exposure of the masses to the idea of the UCC. There has been no draft bill of it .The
words UCC have not been considered properly. Do we want a Uniform Civil Code or
a Common Code? Are these two same? Do we want to put together a Common Code
which borrows all that is best from existing personal laws in India. We have not put
our minds to these questions.
There is no clarity in the provisions of the constitution itself as preamble makes India
a secular state as the term secularism added by the 42 nd amendment in the
constitution and on other hand for its governance state has to interfere in the personal
laws of the citizens as being a secular state it should not do this. And further more Our
Constitution guarantees freedom of conscience and free profession, practice and
propagation of religion and freedom to manage religious affairs by Articles 25 and
26. Article 44 also has been very cleverly worded in as much as it does not say that

34
Mohammad Ahmed Khan v. Shah Bano Begum ,AIR 1985 SC 945.



all personal laws should be abrogated and that the proposed uniform civil code
imposed on all citizens.
There are so many controversial debate and opinions as the researcher found
regarding Uniform civil code.
The Indian society is not up to that mark which can utilize UCC.

LEGISLATIVE REFORMS:
EFFORTS MADE ON THE PART OF GOVT.

The efforts of govt by way of legislative reforms can be seen in following way:
During British period: Indian Succession Act 1865, which was also one of the first
laws to ensure women's economic security, attempted to shift the personal laws to the
realm of civil. The Indian Marriage Act 1864 had procedures and reforms solely for
Christian marriages. There were law reforms passed which were beneficial to women
like the Hindu Widow Remarriage Act of 1856, Married Women's Property Act of
1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928,

The All India Women's Conference (AIWC) expressed its disappointment with the
male-dominated legislature and Lakshmi Menon said in an AIWC conference in
1933,
[9]
"If we are to seek divorce in court, we are to state that we are not Hindus,
and are not guided by Hindu law. The members in the Legislative assembly who are
men will not help us in bringing any drastic changes which will be of benefit to us."
The women's organizations demanded a uniform civil code to replace the existing
personal laws, basing it on the Karachi Congress resolution which guaranteed
gender-equality.

The Special Marriage Act, which gave the Indian citizens an option of a civil
marriage, was enacted first in 1872. It had a limited application because it required
those involved to renounce their religion and was applicable only to Hindus. The
later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs
and Jains to marry either under their personal law or under the act without
renouncing their religion as well as retaining their succession rights.




After British period:
Hindu code bill: The first Prime Minister of the Indian republic, Jawaharlal Nehru,
his supporters and women members wanted a uniform civil code to be implemented
by this bill. The Hindu bill itself received much criticism and the main provisions
opposed were those concerning monogamy, divorce, abolition of
coparcenaries (women inheriting a shared title) and inheritance to daughters.
The Hindu code bill failed to control the prevalent gender discrimination. The laws
on divorce were framed giving both partners equal voice but majority of its
implementation involved those initiated by men. Since the Act applied only to
Hindus, women from the other communities remained subordinated. For
instance, Muslim women, under Sharia law, could not inherit agricultural
land.
[14]
Nehru accepted that the bill was not complete and perfect, but was cautious
about implementing drastic changes which could stir up specific communities. He
agreed that it lacked any substantial reforms but felt it was an "outstanding
achievement" of his time.
Thus, his vision of family law uniformity was not applied and was added to the
Directive principles of the Constitution.

The Special Marriage Act, 1954, provides a form of civil marriage to any citizen
irrespective of religion, thus permitting any Indian to have their marriage outside the
realm of any specific religious personal law. The law applied to all of India, except
Jammu and Kashmir. In many respects, the act was almost identical to the Hindu
Marriage Act of 1955.
The Special Marriage Act allowed Muslims to marry under it and thereby retain the
protections, generally beneficial to Muslim women that could not be found in the
personal law. Under this act polygamy was illegal, and inheritance and succession
would be governed by the Indian Succession Act, rather than the respective Muslim
Personal Law.

After the passing of the Hindu Code bill, the personal laws in India had two major
areas of application: the common Indian citizens and the Muslim community, whose
laws were kept away from any reforms. The frequent conflict between secular and
religious authorities over the issue of uniform civil code eventually decreased, until



the 1985 Shah Bano case. Bano was a 73 year old woman who sought maintenance
from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of
marriage by triple Talaaq (saying "I divorce thee" three times) and denied her regular
maintenance; this sort of unilateral divorce was permitted under the Muslim Personal
Law. She was initially granted maintenance by the verdict of a local court in 1980.
Khan, a lawyer himself, challenged this decision, taking it to the Supreme court,
saying that he had fulfilled all his obligations under Islamic law. The Supreme court
absolved her in 1985 under the "maintenance of wives, children and parents"
provision (Section 125) of the Criminal procedure code, which applied to all citizens
irrespective of religion. It further recommended that a uniform civil code be set up.
Besides her case, two other Muslim women had previously received maintenance
under the Criminal code in 1979 and 1980.

An independent Muslim parliament member proposed a bill to protect their personal
law in the parliament. The Muslim Women's (Protection of Rights on
Divorce) was passed in 1986, which made Section 125 of the Criminal Procedure
Code inapplicable to Muslim women.

JUDICIAL INTERPRETATION WITH RESPECT TO UNIFORM
CIVIL CODE AND SECULARISM:

Even after more the five decades from the faming of the Constitution, the ideal of UCC under
Article 44 is yet to be achieved. However, efforts in this discretion continued as reflected in
various pronouncements of the Supreme Court from time to time.

In Mohammad Ahmed Khan v. Shah Bano Begum,
35
popularly known as the Shah
Banos case, the Supreme Court held that It is also a matter of regret that Article 44 of
our 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 would not be
entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women
would be entitled to maintenance if amount received by her as dower under personal

35
(1985) 2 SCC 556.



law is not sufficient for her sustenance. Though the decision was highly criticized by
Muslim Fundamentalists, yet it was considered a liberal interpretation of law as required
by gender justice. Later, on under pressure from Muslim fundamentalists, the central
government passed the Muslim womens (Protection 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
how womens rights have a low priority even for the secular state of India. Autonomy of
a religious establishment was thus made to prevail over womens rights.
36


In Sarla Mudgal (Smt.), and others v. Union of I ndia and others
37
, Kuldip Singh, J.,
while delivering the judgment directed the government to implement the directive of
article 44 and to file affidavit indicating the steps taken in the matter and held that
Successive governments have been wholly remiss in their duty of implementing the
Constitutional mandate under Art. 44. Therefore, the Supreme Court requested the
Government of India, through the Prime Minister of the Country to have a fresh look at
Art. 44 of the Constitution of India and endeavour to secure for its citizens a UCC
throughout the territory of India. He also suggested the appointment of a committee to
enact a Conversion of religion Act. R.M. Shahai, J., while agreeing Nwith Kuldip Singh,
J., too agreed that Ours is a Secular Democratic Republic. Freedom of religion is the
core of our culture. But religious practices, violative of human rights and dignity and
sacerdotal suffocation of essentiality civil and material freedoms, are not autonomy but
oppression.

In Lily Thomas etc. v. Union of India and others
38
the Court held that:- The
desirability of UCC can hardly be doubted. But it can concretize only when social
climate is properly built up by elite of the society, statement amongst leaders 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 not ripe
and the issue should (be) entrusted to the Law Commission which may examine the same
in consultation with minorities Commission. That is why when the court drew up the

36
Virendar Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily
Thomas(2000)] 42 Journal of Indian Law Institute 315 (2000).
37
AIR 1995 SC 1531
38
AIR 2000 SC 1650 at 1668.



final order signed by both the learned judges it said, the writ petition 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 I ndia
39
, the court upheld the validity of
Sections 3 and 4 of the Muslim Women (Protection of rights on Divorce) Act, 1986, as
not being violative of articles 14, 15 and 21 of the Constitution of India. Under section 3
of the Muslim Women (Protection of rights on Divorce) Act, 1986, 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 claim maintenance under section 125 of
Cr.P.C. Under section 4 of the Act, divorced 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 relationship is involved we have to consider the social conditions
prevalent in our society. It is a small solace to say that such a woman should be
compensated in 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
persons belonging to all religions.

In J ohn Vallamattom v. Union of I ndia
40
the Supreme Court in a PIL by a Christian
priest, John and other citizens of Christian community, challenging the validity 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 concerned over the
contradictions in marriage laws of various religions, in a historic judgments , emphasized
the need for a legislation by Parliament on common civil code. Stressing that there was
no necessary connection between religious and 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 state 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

39
(2001) 7 SCC 740
40
2003 (5) SCALE 384.



in for framing 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
mentioning the apex court view regarding the implementation of UCC that Art. 44 needs
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 Supreme Court has not yet
interpreted Art. 44. On all his decisions the Court enjoined 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 justice.

In brief: Very recently, while hearing a case pertaining to whether a Christian has the
right to bequeath property to a charity, the court regretted the fact that the state had not
yet implemented a uniform civil code. This is not the first time that the apex court has
expressed itself in favour of a uniform civil code or taken a dim view of the government's
and legislature's inability to bring it into being. There have been other occasions like
during the Shah Bano case and later in the Sarla Mudgal case where too the apex
court has come out strongly in favour of the enactment of a uniform civil code. However,
none of these comments are binding on the executive or the legislature and do not
amount to orders. At best, they exert some moral pressure on the Indian state to move
towards formulating a uniform civil code.

MAJOR FINDINGS:

It is high time that India had a uniform law dealing with marriage, divorce,
succession, inheritance and maintenance. But, it must be realized that the scenario in
India is extremely complex. India has a long history of personal laws and it cannot be
given up easily. Unless a broad consensus is drawn among different communities, the
Uniform Civil Code cant do much good to the country. The reality in India is much
more complex than Western societies which have been totally secularized. The need
is to work on the existing laws in such a way that they dont go against any particular
faith or religion.
The need for uniform civil code has been felt for more than a century. The country
has already suffered a lot in the absence of a uniform code for all. It is rather a pity



that the longest and most elaborately written constitution in the history of mankind,
the Indian constitution is responsible for creation of erosion in society. The society
has been fragmented in the name of religions, sects and sex. Even at present, in India,
there are different laws governing rights related to personal matters or laws like
marriage, divorce, maintenance, adoption and inheritance for different communities.
The laws governing inheritance or divorce among Hindus are thus, very different
from those pertaining to Muslims or Christians and so on. In India, most family law is
determined by the religion of the parties concerned Hindus, Sikhs, Jains and
Buddhists come under Hindu law, whereas Muslims and Christians have their own
laws. Muslim law is based on the Shariat; in all other communities, laws are codified
by an Act of the Indian parliament. There are other sets of laws to deal with criminal
and civil cases, such as the Criminal Procedure Code (Cr.P.C) and the Indian penal
code. The multifarious castes and creeds and their sets of beliefs or practices are
bewilderingly confusing and nowhere is a scenario like in India, of various personal
laws jostling together, allowed.
India as a nation will not be truly secular unless uniformity is established in the form
of rational non-religious codified laws.
In India, secularism has come to mean non-intervening in the matter of religion.
This needs to be relooked and debated as there cannot be any discrimination in the
guise of secularism.
It is necessary that law be divorced from religion. With the enactment of a uniform
code, secularism will be strengthened; much of the present day separation and
divisiveness between various religious groups in the country will disappear, and India
will emerge as a much more cohesive and integrated nation











CONCLUSION:

The researcher after considering and reviewing all the facts, laws, debates and opinions or
efforts to enact UCC whatever have been made till now arrives to some conclusions as given
below:
Some provisions of constitution itself make it complicated as Art 44 of the constitution talks
about uniform civil code for the citizens and on other hand art 37 of the same says the
provisions of this part 4 shall not be enforceable to any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and it shall be the duty
of the state to apply these principles in making laws. Therefore I can say if we look more
upon art 37, the state must make uniform civil code for its citizens because its became
fundamental in the governance of the country.
If we see at the preamble of the constitution there is a term secular and the citizens are
granted freedom of religion and being a secular state , state should not interfere in matter of
individuals religion but it does in the interest of state. So inspite of doing all this things it
should ,make UCC enforceable.
As the researcher observed, there is lot of controversy, many debates are there, most of in
favour of UCC and most of them are not. Actually the law makers were very well known
about the fact that it is very difficult for India to have a uniform code thats why they put it as
one of the directive principle of state policy.
Our society is not up to that standard which can utilize the Uniform civil code and thus still
UCC is awaited to be done. What is the reason behind it as the researcher observed India is a
multi religion country. Allot of cultures are there and such culture, tendency and the
behaviour of the citizens is full of diversity. Though we say India offers unity in diversity
but not in all respect otherwise uniform civil code could have been enacted long back.
Constitution makers added this clause of uniform civil code as DPSP but have not made the
same enforceable because they knew the time has not come. Society has ignorance regarding
this.
It can be concluded 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 national unity and for secularism,
UCC is necessary. The plurality of laws in personal law matters is a blow and direct threat to
national integrity and solidarity. It is worth mentioning the name of a few countries where a
UCC has been functioning successfully viz. Germany, France, Spain Canada, Japan, Turkey and



Portugal. The government of India should take initiatives for enacting a UCC, which should
contain the best elements of different civil laws of the various religion communities of the
country and thus fulfil its positive obligations imposed upon it by article 44 of the Constitution
of India.

SUGGESTION:

In order to promote the spirit of uniformity of laws and accomplish the objective enshrined in
Article 44 of the Constitution, the following suggestions deserve immediate consideration:
Firstly, the constraints on the enactment of UCC which are there, should be removed by
its root. As following:
1) Lack of Information among the Public with regard to the UCC in India.
2) Prejudice which arises out of ignorance.
3) No build up of Public opinion.
4) No draft Bill.
5) No Basic thinking about the structure of the UCC

Religious fundamentalism must go, social and economic justice must be made
available to the Muslim women and other women and their dignity and quality be
ensured, basic human rights guaranteed and there should be an end to exploitation of
Muslim women and other women as well.
A strong step should be taken in furtherance of enactment of uniform civil code.
Three stage machanism (renaissance, reformation and enlightenment) should be
followed in India like U.S.A. and other European countries.
The Government must prepare a good environment for Uniform Civil Code by
explaining the contents and significance of Article 44. It should take steps and find out
means to find out the obscurantists 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 made to understand
the utility of uniformity of laws so that they do not stand in the 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 mans passions by mischievous, rabble-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 personal laws. It should
represent one, drawn up by the constitution between the different 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.




















BIBLIOGRAPHY
Books:
1. Myneni S.R., Legal Research Methodology, Allahabad Law Agency second Edn.
Reprint 2003
2. Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.
Reprint 2003
3. Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013;
4. J. N. Pandey, The constitutional Law of India
5. M. P. Jain, The constitutional Law of India
6. The All India Women's Conference (AIWC)
7. Hindu Code Bill
8. Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code
9. Muslim law; prof. R.K.Sinha
10. Hindu law; Dr. Paras diwan
Websites
1. http://www.webster.com
2. http://www.docstoc.com.
3. http://www.legalserviceindia.com
4. http://www.indiankanoon.com
5. http://www.lexisnexis.com.
6. http://www.jurisonline.in
7. http://www.ssrc.in
8. http://www.legalserviceindia.com