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STAKEHOLDERS MEET ON

UNIFORM CIVIL CODE


BACKGROUND GUIDE

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With its heritage of pluralism, India is the birthplace of many world
religions and in terms of diversity, it is second to none. India has been,
and continues to remain home to diverse faiths, linguistic groups, and
tribes, each of which possesses its own set of beliefs, customs and rituals.
Throughout most parts of history, these communities have coexisted
harmoniously practising their respective conventions without much
interference, either by the 'others' or the ruling classes. However, the idea
of a modern Indian nation is based upon equality of all citizens
irrespective of their caste, creed, language, religion and place of birth.
The primary concern of the founding forefathers of the Constitution of
India, therefore was to ensure the integrity and fraternity of the country
on one hand while recognising the right of every religious group to freely
profess, practice and propagate its beliefs. The task at hand now is to
search for the best possible means to achieve this end. One would be to
allow every religious community to continue following its own personal
laws; while the other is to formulate a Uniform Civil Code that governs
the personal affairs of all citizens irrespective of their religious
affiliations. In other words, should plural societies adopt uniform civil
laws in deference to the equality of all citizens before law or should the
integration of the diverse religious and cultural groups be addressed
through a pluralist model of law in deference to the concept that a
democracy must respect the rights of minorities? Both these options
come with their own set of pros and cons which need to be thoroughly
discussed and analysed before a logical conclusion is reached at.

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Secularism the Indian notion
Since independent India was to be a democracy, secularism was a virtue that the
state sought to endorse - "it is essential for the proper functioning of democracy
that communalism should be eliminated from Indian life" (Constitutional
Assembly Debates, Volume VIII, Page 316 ). But the question remained as to the
kind of secularism to be established by Indians faced with the problem of
"creating a secular state in a religious society". (Jawaharlal Nehru, cited in T N
Madan, Modern Myths, Locked Minds, OUP, Delhi, 1997,p 245.) Was a state secular
only when it stayed strictly away from religion, and could such a secular state
survive only if society was slowly secularised as well? Or did a state that equally
respected all religions best capture the meaning of secularism in the Indian
context? These questions gave rise to three possible forms of secularism that
India could adapt. The argument of religion being an individual's private affair
was debated upon extensively and got extended during the main sessions of the
Constituent Assembly to include the more radical claim that religion must be
relegated to the private sphere.

Tajamul Husain, a member of the Constituent Assemble from Bihar not only
wanted to define the right to religion as a right to 'practise religion privately', but
also insisted that religious instruction was to be given only at home by one's
parents and not in any educational institutions. This implied an understanding of
secularism in which religion is a private affair between man and his god. It has no
concern with anyone else in the world. Secularism on this view meant the gradual
weakening of the bonds of religion and their replacement with nationalism. It
meant that the state must not recognise religion as a public institution. It was not
just a question of religious liberty but of the establishment of, the paramountcy of
the state.

The second position on secularism, exactly opposite to the first, was that no links
between the state and religion should be permitted, not because this would
weaken the state, but because it would demean religion.

Like the first, the third position - which we call the equal - respect theory of
secularism - also began with the principle of religious liberty, but held that in a
society like India where religion was such an important part of most people's
lives, this principle entailed not that the state stay away from all religions equally,
but that it respect all religions alike.

It is this conception of secularism which led certain members to define the right
to religion as a right to the practise of religion as opposed to the more narrow
right to religious worship.

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Many things were part of religion, the least of them being the wearing of kirpans
by Sikhs. Since the Constitution could not specify all the essential elements of the
different Indian religions, at least it could phrase the right to religion broadly as
the right to the practice of religion and not narrowly as the the right to religious
worship. If the Constituent Assembly was serious about religious freedom then
there was no point in granting a freedom to a religion denuded of all content.
Those on the other side of the divide pointed to the dangers of interpreting
religion widely. Any such broad reading of religion would include within it the
anti-social customs of "pardah, child marriage, polygamy, unequal laws of
inheritance, prevention of intercaste marriage,(and) dedication of girls to
temples," practised in the name of religion. Rajkumari Amrit Kaur further
pointed out that if the right to religion was stated in terms of the right to the
practice of religion, it "may even contradict or conflict with the provision
abolishing the practice of untouchability". Alternatively, if the right given were
the right to religious worship, the state could better protect all the rights of
individuals by preventing through social legislation the exploitation of lower caste
man by an upper caste individual, or of a woman by a man.

UCC Constitutional Assembly Debates


Fundamental Right?

Uniform Civil Code is one of the first articles taken up with reference to
citizenship in any secular state. The draft articles on justiciable rights by both Mr.
K.M. Munshi and Dr. B.R. Ambedkar contained clauses referring indirectly to a
uniform civil code, Munshi's proposal stated that: "No civil or criminal court shall,
in adjudicating any matter or executing any order recognise any custom or usage
imposing any civil disability on any person on the ground of his caste, status,
religion, race or language". Ambedkar wrote that the subjects of the Indian state
shall have the right "to claim full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by other subjects regardless of
any usage or custom based on religion and be subject to like punishment, pains
and penalties and to none other". By March 30, however, the Fundamental Rights
Sub-Committee had decided to make the uniform civil code a directive principle of
state policy.

In her letter of March 31, Rajkumari Amrit Kaur emphasised the importance of
the uniform civil code and called it "very vital to social progress". In a much more
strongly worded note of April 14, Amrit Kaur, along with Hansa Mehta and M. R.
Masani, wrote that "(o)ne of the factors that has kept India back from advancing
to nation-hood has been the existence of personal laws based on religion which
keep the nation divided into watertight compartments in many aspects of life",
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and demanded that the provision regarding the uniform civil code be transferred
from the chapter on directive principles to that on fundamental rights.

In Opposition Protection of religious laws and customs

This position was opposed by other members of the Constituent Assembly, such
as Mohamed Ismail Saheb, supported by B Pocker Sahib, who wanted to include a
right to one's personal law in the fun-damental right to religion. Failing that, they
insisted that at least the directive principle enjoining the state to provide a
uniform civil code, should contain the following provison: "Provided any group,
section or community of people shall not be obliged to give up its own personal
law in case it has such a law". This must be done if the right to religious practice
was to have any reality because the "right to follow personal law is part of the
way of life of those people who are following such laws; it is part of their religion
and part of their culture". Mahboob Ali Baig Bahadur said, "People seem to think
that under a secular state, there must be a common law observed by its citizens in
all matters including matters of their daily life, their language, their culture, their
personal laws. This is not the correct way to look at the secular state. In a secular
state, citizens belonging to different communities must have the freedom to
practise their own religion, observe their own life and their personal laws should
be applied to them". These members were opposed to the setting up of a uniform
civil code.

An Ignored Constitutional Imperative

Part IV of the Constitution of India lays down the Directive Principles of State
Policy. Though the Constitution does say that directive principles are not
enforceable by any court, it also makes it clear that the directive principles are
"fundamental in the governance of the country and it shall be the duty of the state
to apply these principles in making laws." Article 44 says, The State shall
endeavour to secure for the citizens a Uniform Civil Code throughout the territory
of India. The Constitution came into force in 1950. Since then, Article 44 has
been gathering dust with no government at the centre ever having any guts and
wisdom to touch it. This tragic situation does injustice with the spirit of the
Constitution.

A peculiar apathy has been shown by most parliamentarians towards initiation of


a debate on the UCC, let alone formulation and implementation. Pt. Jawaharlal
Nehru, while defending the introduction of the Hindu Code Bill instead of a UCC in
parliament in 1954, said "I don't think at the present moments the time is ripe in
India for me to try to push this through. It is imperative to ponder upon the
question if the time is still not 'ripe' or are there are too many political
considerations that preclude its introduction!

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The broad approach of the Judiciary can be well appreciated at this juncture in
the development and discussion in the domain of UCC. A Constitution bench
speaking through Justice Y.V. Chandrachud in Mohd. Ahmed Khan v. Shah Bano
Begum observed:

"It is a matter of regret that article 44 of our constitution has remained a dead
letter... It provides that the state shall endeavor to secure a uniform civil code for
the citizens throughout the territory of India. There is no evidence of any official
activity for framing a uniform civil code for the country. A belief seems to have
gained ground that it is for the Muslim community to take a lead in the matter of
reforms of their personal law. A common Civil Code will help the cause of national
integration by removing disparate loyalties to laws, which have conflicting
ideologies. No community is likely to bell the cat by making gratuitous
concessions on this issue."

The Supreme Court reiterated the same in the famous Sarla Mudgal Case of 1995.
After this, on July 23, 2003, the Hon'ble Supreme Court suggested that
parliament has to frame a common civil code for the country as that would help
the cause of national integration. A three judge bench comprising the Chief
Justice V.N. Khare, Justice S.B. Sinha and Justice. A.R. Lakshmanan, made this
suggestion while declaring as unconstitutional section 118 of the Indian
Succession Act, 1925 (ISA) on the ground that it was arbitrary, irrational and
violated Article 14 of the constitution, which says that the state shall not deny to
any person equality before law or the equal protection of the laws within the
territory of India.

Uniform Civil Code Contemporary Debates


"Injustice anywhere is a threat to justice everywhere."
- Martin Luther King

The following arguments provide a strong case for introduction of a common code:

1. The Common Civil Code will bring all the personal laws governing matters
like marriage, divorce, adoption, inheritance, succession to property etc.
under a single roof and create a space for the practices of all communities
in a just manner.

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2. The one common argument given by all the political parties highlighting
their reluctance to implement the Uniform Civil Code is that implementing
Article 44 violates the rights of Indians provided under Article 25 i.e.,
"Freedom of conscience and free profession, practice and propagation of
religion." The counter argument that can be cited is present in the same
Article 25 itself under Clause 2, where it is clearly indicated that this article
shall not affect the operation of any existing law or prevent the State from
making any new law -

(a) regulating or restricting any economic, financial, political or other


secular activity which may be assiciated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.

3. With the non-implementation of Article 44 of the constitution, article 14 to


18 are being violated which provide for Right to Equality before Law and
prohibition of discrimination on the grounds of sex and religion. Many
personal laws relating to marriage, inheritance, guardianship, divorce,
adoption and property relations in all communities are unjust, especially to
women.

4. Ambiguity is created due to the presence of different laws governing a


social institution such as marriage, particularly in the case of polygamy and
divorce; both within a religion as well as amongst different religions.

5. Much misapprehension prevails about polygamy in Islam. Ironically, Islamic


cuntries like Syria, Tunisia, Morocco, Pakistan, Iran et cetera have codified
the personal law where in the practice of polygamy has been either totally
prohibited or severely curtailed to check the misuse and abuse of this
obnoxious practice.

6. One of the advantages of a uniform civil code will be a proper notice period
and registration of the marriage. The ceremonies will become optional -
parties can have ceremonies of their choice as a ritual, (i.e., Hindu
Saptapadi; MuslimNikah; ChristianChurch blessing, etc.) But the proof
of the marriage will be the registration and compliance with what is
required of notice, etc., as set out in the uniform civil code. Monogamy will
be mandatory and the laws of divorce will be the same for men and women

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and this will lead to cohesion and non-fragmentation of society. Men and
women must be entitled to equal property rights which can be enforced by
law. This will be real empowerment for the woman.

"Law by itself could only be a pointer and a guide."


- M.K. Gandhi

While, the following arguments show that the imposition of a common code can
pose a seious threat to the secular social fabric of the country in general and the
minority communities in particular:

1. The minority community fears the imposition of the religious customs and
rituals of the majority community under the garb of a common civil code.

2. A common civil code is seen as an infringement on the Fundamental Rights


enshrined in the Constitution of India which guarantee the right to freedom
of conscience and free profession, practice and propagation of religion
(Article 25) and freedom to manage religious affairs (Article 26).

3. Most religious scholars consider their scriptures and personal laws to be of


Divine origin and hence show strong resentment towards any sort of
interference with same.

4. Most religious practices have been carried out in conformity with these
personal laws since times immemorial and any attempt to alter them can
hurt religious sentiments and sow the seeds of mistrust among
communities.

5. Most discriminatory practices have found their bases in distorted codified


personal laws which do not conform to the authentic sources. The fault
therefore lies not in religious principles but in the flawed process of
codification.

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Hindu Men, Monogamy and UCC
The Supreme Court in the Sarla Mudgal case of 1995 took on the government for
not having initiated any steps in the direction of introduction of a Uniform Civil
Code. Justice Kuldip Singh and Justice R.M. Sahai in their judgement observed,
The utmost that has been done is to codify the Hindu law in the form of the
Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority
and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956
which have replaced the traditional Hindu law based on different schools of
thought and scriptural laws into one unified code. When more than 80% of the
citizens have already been brought under the codified personal law there is no
justification whatsoever to keep in abeyance, any more, the introduction of
"uniform civil code" for all citizens in the territory of India. The main issue in the
case was bigamy by Hindu men. However the issue got sidetracked amidst
strengthening of the Hindutva forces. Uniform civil code became their main
political plank in the elections that followed. Hence the various presumptions
made by the judgment have remained unaddressed, some of which are listed
below:

1. Hindu marriages are monogamous in nature;


2. The judiciary has consistently and systematically upheld the principle of
monogamy among Hindus by penalising the errant husbands;
3. The only breach of monogamy among Hindus is by conversion to Islam. To
quote from the judgment, "....there is an open inducement to a Hindu
husband, who wants to enter into a second marriage to become a Muslim..."
4. A uniform civil code will plug this loophole and amelioriate the sufferings of
Hindu women:
5. All the four petitions which the judgment dealt with were filed by women
whose hushands had converted to Islam and remarried: and
6. Both the judges who heard the matter advocated enforcement of a uniform
civil code on a priority baisis as the only remedy to conversion and bigamy
by Hindu men. Until 1955, Hindu marriages were polygamous and hence
Hindu men did not attract the penal provision of Section 494 of the Indian
Penal Code. The Hindu Marriage Act of 1955 for the first time laid down the
principle of monogamy. To what extent has this principle been acccpted by
the Hindu society?

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In the Bhaurao Lokhande case, the Supreme Court laid down the two essential
ceremonies of a valid Hindu marriage: (i) invocaition before the sacred. i e,
'vivaha homa' and (ii) seven steps round the fire by the groom and the bride, i e,
'saptapadi'. The Supreme Court ground down the customs and rituals of a
pluralistic society into an absurd notion of uniformity by enforcing upon them
rituals which were traditionally confined only to higher castes of specific regions.
If a community observed a custom which is contrary to the shastric ritual, the
custom had to be privileged enough to attract the attention of a legal scholar, who
would then have the good sense to mention it in a law text and further, it should
have remained static down the ages. This drawback has been put to grave misuse
by Hindu men.

A Hindu husband can live in a polygamous marriage with impunity so long as he


does not perform either one of the ceremonies of homa or saptapadi. Since most
communities do not even consider these formalities as essential, non
performance of these ceremonies does not pose any obstacle on the path of a
Hindu husband desirous of committing bigamy. If in the case of a second
marriage, both spouses have an earlier valid marriage subsisting, then in any
case the second marriage will be void and will not attract the provisions of
Section 494 Indian Penal Code (Marrying again during lifetime of husband or
wife),

While the Hindu male is granted a clear advantage, the disadvantage is suffered by
two sets of women. The first wife stands the risk of invalidating her own marriage
in a prosecution for bigamy. If she cannot prove the valid ceremonies of her
marriage, the court will validate the second marriage and thus she will not only
lose out in the bigamy proceedings but will lose her economic rights in
matrimonial proceedings. A notion still prevails amongst Hindus that a bigamous
marriage can be contracted if the first wife consents to it. Since only a first wife
can initiate the complaint the belief is not without any legal base. With the
consent of the first wife the husband need not fear conviction for bigamy. But
since the consent of the wife will not validate the second marriage, the husband
will be redeemed of all economic liabilities of the second marriage. The
disadvantages suffered by the second wife have not received any attention by the
advocates of monogamy. When a woman approaches the court for maintenance,
a routine ploy adopted by husbands is to question the validity of her marriage, by
stating that he either has an earlier marriage subsisting or that the woman is a
concubine or in popular parlance a mistress or keep. Then it is left to her to prove
the validity of her marriage both in terms of ceremonies as well as its
monogamous character. If the husband can prove that he has an earlier marriage
subsisting the second wife will have no legal recourse left.

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Most of these men choose the route of conversion into Islam before entering into
the second marriage since Muslim Personal laws in India allow polygamy (with
an upper limit of four marriages). Ironically, the courts have upheld the ancient
brahminical rituals of homa, saptapadi and kanyadan which are derogative to
women, against more egalitarian and secular forms.

The Way Out

The government should consider the feasibility of appointing a committee to


enact a Conversion of Religion Act, immediately, to check the abuse of religion by
any person. The law may provide that every citizen who changes his religion
cannot marry another wife unless he divorces his first wife. The provision
shiould be made applicable to every person whether Hindu, Muslim, Christian,
Sikh, Jain or Buddhist. Such an act could effectively deal with the problem of
conversion and bigamy which the judgments seek to arrest.

Muslim Personal Laws


As far as the Muslim perspective is concerned, they seem not to be opposed to
the idea of a common code as such since they can very well accept any law,
provided it does not prohibit them from doing what is fard (compulsory) or
forces them to do what is haram (prohibited) in the religion. Now it should be
realised that though Islam gives permission for polygamy it does not hold it to be
fard. So even if a Muslim is made to live under a law that established monogamy,
he could abide by the law as polygamy is not fard. However, when given an option
they would certainly prefer Shariyat Law over other laws.

As per Shariyat law, legal adoption is prohibited in Islam as is explicitly stated in


the Quran (33:4), ...neither has He made your adopted sons as your own sons.

In relation to marriage, Muslims are allowed to marry more than one wife but
there is an upper limit of four as promulgated by the Quran (4:3), Marry a
woman of your choice in two, three or four but if you can't do justice, marry only
one.

The consent of both the spouses in the marriage contract is essential for the
validation of a marriage under Muslim personal laws.

Divorce is another aspect of personal laws and the Prophet conceded that of all
the things, divorce is most tasteful to God, however it was allowed with certain
restrictions, The Quran says in Chapter 4, verse 35, If you fear a breach among
them, then appoint two arbitrators, one from his family and one from hers. If
they seek to set things alright, Allah will call their reconciliation.
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This conception of divorce however does not seem consistent with the triple
divorce that is being practised by the Muslims with immunity in this part of the
subcontinent.

Regarding guardianship, there are specific rules, both in Hindu law as well as in
Muslim law. The details may differ but the substantive principle that the interests
of the child should be a supreme consideration has been accepted by all systems.

A brief reference to the problem of maintenance is necessary. Under the Muslim


law, it is a duty of the faithful husband to maintain his wife with the same
standard of living which he has. The Quran ordains the same in the following
verses, chapter 2, verses 240 and 241, Those of who you die and leave widows
should bequeath for their widows a year's maintenance without expulsion. For
divorced women also, there shall be provision to what is fair. It was on ground of
these verses that Mr. Daniel Latif argued in the Supreme Court in the Shah Bano's
case.

The Shah Bano Case

Shah Bano, an old Muslim lady of about 60 years of age, was married to Md.
Ahmed Khan, a senior advocate of Indore some time in 1932. During the wedlock,
three sons and two daughters were born to this couple. In 1975, the appellant Md.
Ahmed Khan drove Shah Bano out of the matrimonial home. She waited for
about three years and ultimately in April 1978 she filed a petition against the
appellant under Section 125 of the Code of Criminal Procedure in the court of
Judicial Magistrate Class I, Indore asking for a maintenance of Rs. 500 per month.
On 6th November, 1978 the appellant divorced Shah Bano. His defence before the
court was that the petitioner seized to be his wife due to dicorce, and he was,
therefore, under no obligation to provide her with any maintenance. He had
already paid her the maintenance at the rate of Rs. 200 per month for about two
years and in addition a sum of Rs. 3000 by way of dower. The case was heard by
the Magistrate who directed the husband to pay a paltry sum of Rs. 25 per month
to Shah Bano by way of maintenance. It was alleged that the appellant was
earning more than Rs. 60,000 a year and had the lucrative practise at the bar.
Inspite of that, the maintenance granted by the Court was Rs. 25 per month.
Shah Bano went in revision against that order and the Madhya Pradesh High
Court enhanced the maintenance to Rs. 179.20 per month. This order came to be
challenged before the Supreme Court. A five member bench of the Supreme
Court headed by Justice Y.V. Chandrachud in their unanimous judgement held that
Section 125 of the Code of Criminal Procedure cuts across the religions, castes
and creeds because the ultimate objective of this provision is the prevention of
vagrancy and destitution. Regarding the point that Section 125(3)(b) [which
excluded the application of this provision to Muslim divorced women] was a bar

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to grant maintenance, it was held that it was not. The court held that the dower
or mehr was not a sum payable to the wife on divorce and therefore the case was
not covered by that provision.

Additionally, the Supreme Court concluded that "there is no conflict between the
provisions of section 125 and those of the Muslim Personal Law on the question
of the Muslim husband's obligation to provide maintenance for a divorced wife
who is unable to maintain herself." After referring to Holy Quran, holding it to the
greatest authority on the subject, it held that there was no doubt that the Quran
imposes an obligation on the Muslim husband to make provision for or to
provide maintenance to the divorced wife.

Christians Personal Laws


The Christians in India have expressed varied opinions with regard to different
aspects of the personal laws. A part of the Christian community believes that
Section 10 of the Divorce Act is discriminatory against women, since much is
expected by way of proof from them as against men. Most Christians (both
Catholics and Protestants) support the introduction of a uniform civil code though
with some reservations. For example, the Catholics prefer annulment of marriage
over divorce.

On the point of adoption, the Christians want full adoption to be legalised. Now
there is a prohibition in Christian law; they cannot adopt and hence Christians
are sent abroad for adoption. All of them are of the uniform view that all aspects
of Christian personal law are negotiable. On the point of succession, they believe
that though the Indian Succession Act is quite satisfactory, in case of intestacy,
the Christian customary laws, that are discriminatory must go. According to
them, the widow must get full rights in a husband's property to be divided
between the children, as and when she likes.

In the John Vallamattom And Anr vs Union Of India case 2003, the Supreme Court
declared Section 118 of the Indian Succession Act to be void as it found the
provision to be discriminatory and violative of articles 14, 15, 25 and 26 of
Constitution. The Section stated that No man having a nephew or niece or any
nearer relative shall have power to bequeath any property to religious or
charitable uses, except by a Will executed not less than twelve months before his
death, and deposited within six months from its execution in some place provided
by law for the safe custody of the Wills of living persons. The Christians found
this to be an infringement upon their religious right to practise charities to attain
spiritual salvation.

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Parsis and the UCC
Parsis do not believe in conversion as conversion to Zoroatrianism is prohibited
by religion. In case of adoption, Parsis do not like to adopt a non-Parsi child
because it is only a Parsi who is entitled to visit the fire temple and to get the
benefits from the private Parsi trust. They would want full adoption but in that
case the adopted child must necessarily be a Parsi, and adoption must be by Parsi
parents. Parsis are supportive of a uniform civil code on the condition that their
rituals in marriage are preserved.

Polygamy was and is non-existent in Parsis, in fact, it is a ground for divorce


under the Parsi law.

The Sikh, Jain and Buddhist communities in India are governed by the same civil
laws as those for the Hindus.

Special Marriage Act and Indian Succession


Act
It can be argued that a uniform civil code is not a necessity since we already have
the Special Marriage Act, 1954.. But the first Special Marriage Act was enacted
not in 1954 but in 1872. It required the parties marrying under it to renounce
their religions. It is only when the Special Marriage Act was re-enacted in 1954
that it permitted inter-religious marriages without the couple having to renounce
their religion. Parties marrying under this Act were governed by the Indian
Sucession Act, 1926 for purposes of inheritance. Subsequently in 1976, Hindu
couples marrying under the Special Marriage Act of 1954 were taken out of its
ambit, and could inherit under the Hindu Succession Act, 1956. This was a
retrograde step, because for a Hindu wife her inheritance was depleted due to the
coparcenary system.

The Goa Civil Code

Goa is the only state in India which continues to be governed by Portuguese Laws
with respect to Family Laws relating to marriage and Succession Laws. The
corresponding laws of India are not extended to the state of Goa. Portuguese law
is however applicable only to a Goan. A Goan citizenship under Article 18 of the
Portuguese Civil Code, is acquired by
i) birth in Goa, or whose father is born in Goa or whose grandfather is born
in Goa, or
ii) a woman by virtue of marraige, or
iii) by naturalisation

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By default every Goan marries under a system called Communion of Assets,
whereby, from the time of his marriage, his spouse acquires half undivided right
in the assets of the other, unless a contract called the Ante Nuptial Contract is
executed to avoid such system of law.

In the matter of gratuitous disposition of properties i.e by will or gift, there is a


prohibition by which no disposition can exceed half right of a person. This is
called disposable quota and the remaining part is called non disposable quota.

The Intermediate Position on UCC Gradual and/or


Optional

Many jurists have expressed their anxiety regarding the upheavals that might
follow the introduction of a uniform civil code. They have promulgated an
intermediate position, that is, the establishment of the uniform civil code must be
done slowly, with the consent of all communities. In the Constituent Assembly, K.
M. Munsh wanted to narrow the definition of religious practice. He pointed out
that the personal law of Hindus was discriminatory against women and
contravened an Indian citizen's right to equality. Therefore, "religion must be
restricted to spheres which legitimately appertain to religion, and the rest of life
must be regulated, unified and modified in such a manner that we may evolve, as
early as possible, a strong and consolidated nation."

Ambedkar can also be put in this group since he supported the inclusion of the
uniform civil code in the directive principles but said that the code would only
apply to those who wanted it to apply to them.

Syed Shahbuddin, former President of the All India Muslim Majlis-e-Mushawarat


believes that the project to implement UCC should logically pass through three
stages:

1. The codification of personal laws of various communities so that over a


period of time there is adequate basis in terms of comparative
jurisprudence to serve as a foundation to evolve common principles for a
uniform civil code,
2. There is also to be a transitional phase of optionality, and
3. If the uniform civil code comes into conflict with Shariat, the Muslim
community should be granted exemption when the UCC becomes
obligatory.

However, such a piecemeal approach may give rise to new inconsistencies in


personal laws across religions and hence defeat the very objective of a UCC.
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Feminist politics and UCC

From the outset the problem with the uniform civil code debate was its gratuitous
emphasis on uniformity. Both judicial pronouncements and public debate
justified it as essential for national integrity. For a long time it was rarely
articulated in the public consciousness as a feminist issue. It became a debate
about uniformity versus minority rights, secularism versus religious laws and
modernisation versus tradition in the context of the new nation state. As Tahir
Mahmood, an expert in personal law, points out, the ultimate object of Article 44
(which enjoins the state to move forward towards a uniform civil code) is
secularity in family law: the call for uniformity is merely the means.

Over the years, consensus has emerged among the feminists that all religious
personal laws are discriminatory and must therefore change. There are, however,
disagreements over the means to achieve this objective, whether through a state-
sponsored civil code or internal reform. Aware that legal change cannot be
isolated from wider political conflicts and majoritarian politics, womens groups
made an attempt to distance feminist positions from the Hindu rights demand for
a uniform civil code. The womens movement has since moved to a more nuanced
position which combines the options of reform from within personal laws, with
the formulation of gender-just laws deriving from the concept of a common civil
code.

The All India Democratic Women's Association, which has a leftist leaning
supports a two-pronged strategy to achieve reconciliation between gender-just
laws as well as reforms from within. It has actively engaged in mobilising Muslim
women and encouraging community initiatives for legal reform, codification of
personal laws, and at the same time demanding legislation with regard to
matrimonial property and the custody of children, among other issues.

In the context of the controversies surrounding uniform civil code, an important


development over the past few years has been the emergence of Muslim womens
activism seeking to promote womens rights rather than focusing all energies on
changing personal laws. Muslim women in India face considerable challenges as
citizens and as members of the largest minority. They suffer from many
disadvantages in areas such as education, employment and access to welfare
programmes. The status of Muslim women broadly indicates the shortage of
three essentials: knowledge (measured by literacy and average years of
schooling), economic power (captured through participation in paid work and
income), and autonomy (measured by decision making and physical mobility) as
the defining features of womens low status.

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However the preoccupation with the either-or debate has meant glossing over
the economic, political and social problems that define the everyday experiences
of Muslim women.

A recent high-level committee on the status of the Muslim community, known as


the Sachar Committee, has shown that they are impoverished, marginalised and
underrepresented in public institutions. They do, however, have the right to have
their own personal laws and to continue to practise these under state protection.
From the point of view of Muslim women this has meant that the articulation of
gender interests has been tightly controlled and articulated within the terms of an
identity discourse. Political negotiations over personal laws have invariably
favoured conservative voices among Muslims to the detriment of womens voices
and womens rights. Those who argue for reform from within of Muslim personal
laws as the best strategy for enhancing the scope of Muslim womens rights
ignore the fact that such an approach tends to freeze identities within religious
boundaries. Very little attention has been paid to the multiple crosscutting
identities of Muslim women based on class, language and region, among others.
Implicit in this approach is the assumption of a homogeneous Muslim identity,
which fails to hear the different voices within the community.

Replacing the system of personal laws with a uniform civil code right after
independence could have nipped the bud; the problem, however, was that, in the
immediate aftermath of Partition it would have given a signal of inferior status to
the Muslim community, which was already reeling under a sense of insecurity.
Now, more than six decades past independence, it will be difficult to accomplish
the goal of reforming these personal laws even with the best intentions and will,
and even with the considerable involvement of Muslim women.

QUESTIONS TO CONSIDER:

1. Necessity and feasibility of a Uniform Civil Code


2. Components of the proposed Uniform Civil Code Marriage, Adoption and
Guardianship, Divorce, Maintenance, Succession among others
3. How should the UCC be brought into force piecemeal or full, optional or
compulsory?
4. Should the proposed UCC be a balanced mix of best practices from all
religions or should it be drafted from scratch?
5. Ways to tackle gender discrimination intrinsic in personal laws.

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NOTE

Some Academic Articles will be emailed to you, personally. Kindly use them as
Links for Further Research. Incase you havent received the mail or have any
doubts regarding the Committee, you can write to the Chairperson of the
Committee at mrrahuladwani@gmail.com

Rahul Adwani Md. Ziyad Ansari


Chairperson Vice Chairperson

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