Uniform civil code is the ongoing point of debate within India mandate to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles sets its implementation as duty of the State. Apart from being an important issue regarding secularism in India & fundamental right to practice religion contained in Article 25, 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, polygamy in the country and putting it among the nations legally applying the Sharia law. The Bano case made it a politicised public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity.
The debate for a uniform civil code dates back to the colonial period in India. Prior to the British Raj, under the East India Company (1757-1858), they tried to reform local social and religious customs. Lord William Bentinck, the Governor-General of India, tried to suppress sati, the prescribed death of a widow on her husband’s funeral pyre and passed the Bengal Sati Regulation, 1829. This was later extended outside Bengal to all English territories in India.
The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence, and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. The British let the Indian public have the benefit of self-government in their own domestic matters with the Queen’s 1859 Proclamation promising absolute non-interference in religious matters.The personal laws involved inheritance, succession, marriage and religious ceremonies. The public sphere was governed by the British and Anglo-Indian law in terms of crime, land relations, laws of contract and evidence—all this applied equally to every citizen irrespective of religion.
Throughout the country, there was a variation in preference for scriptural or customary laws because, in many Hindu and Muslim communities, these were sometimes at conflict; such instances were present in communities like the Jats and the Dravidians. The Shudras, for instance, allowed widow remarriage—completely contrary to the scriptural Hindu law.The Hindu laws got preference because of their relative ease in implementation, preference for such a Brahminical System by both British and Indian judges and their fear of opposition from the high caste Hindus.The difficulty in investigating each specific practice of any community, case-by-case, made customary laws harder to implement. Towards the end of the nineteenth century, favoring local opinion, the recognition of individual customs and traditions increased.
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, which is a significant move, permitted a Hindu woman’s right to property.
The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was first enacted 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.
Uniform Civil Code-Landmark Cases
Mohammad Ahmad Khan v Shah Bano Begum
Citation-AIR 1985 SCR (3) 844
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14 years, Khan took a younger woman as the second wife and after years of living with both wives, he threw Shah Bano, who was then aged 62 years, and her five children out. In April 1978, when Khan stopped giving her the ₹200 per month he had apparently promised, claiming that she had no means to support herself and her children, she filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her children. On November 1978 her husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total Rs 5,400.In August 1979, the local court directed Khan to pay a sum of Rs 25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law.
Opinion of Supreme Court:
On 3 February 1981, the two-judge bench composed of Justice Murtaza Fazal Ali and A. Varadarajan who first heard the matter, in light of the earlier decisions of the court which had held that section 125 of the Code applies to Muslims also, referred Khan’s appeal to a larger Bench. Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as an intervenor. The matter was then heard by a five-judge bench composed of Chief Justice Chandrachud, Jangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S. Venkataramiah. On 23 April 1985, Supreme Court in a unanimous decision dismissed the appeal and confirmed the judgment of the High Court.
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.”
Sarla Mudgal and Others V/s Union of India
Citation-AIR 1935 SC 1531
There were two main petitioners. The first was Kalyani, an NGO that works with needy and distressed women, which is headed by Sarla Mudgal. The next petitioner was Meena Mathur, married to Jitender Mathur, in 1988, Meena finds that Jitender converted to Islam and solemnized second marriage with Sunita Narula, also known as Fathima. Meena Mathur complains that her husband converted to Islam only for the purposes of getting married again and circumvented the provisions of Section 494 of IPC.
In Writ Petition 424 of 1992, Geeta Rani, married to Pradeep Kumar alleged physical and mental violence by her husband. She later found out that her husband, Pradeep, eloped and married another woman after converting to Islam, in 1991. Sushmita Ghosh, petitioner in Civil Writ Petition 509 of 1992 married G. C. Ghosh according to Hindu rituals in 1984. The husband told her that she wanted a divorce and the petitioner argued that she was the legally wedded wife. The husband embraced Islam and wanted to get married to Vinita Gupta. The petitioner has prayed to not let her husband enter a marriage with Vinita Gupta.
The Court held that the first marriage would have to be dissolved under the Hindu Marriage Act, 1955. The man’s first marriage would, therefore, still be valid and under Hindu law, his second marriage, solemnized after his conversion, would be illegal under Section 494 of the Indian Penal Code, 1860.
The Sarla Mudgal judgment has issued no directions for implementation of Uniform Civil Code, though Justice Kuldeep Singh has requested the government to look at the Article 44 of the Constitution.
Who is pushing for a Uniform Civil Code?
There is vocal support for the idea from people with different motivations. Some feel that only the Hindu community has had its practices codified by Parliament so far and want minority practices to be similarly disciplined.
Some feel that secularism means taking out all traces of religion from family law and submitting to a single civil code that applies to all Indians in the same way. Some feel that all religious laws discriminate against women and that the state owes its citizens a single, gender-equal set of laws.
Who is against the Uniform Civil Code right now?
Many voices in the women’s movement, people from minority communities, and others of a multicultural secular bent resist the Uniform Civil Code, saying that the state should push for uniform rights rather than a single code. They call for rooting out gender bias within existing personal laws, rather than flattening religious difference under a code that they fear may be created in the mold of the Hindu majority.
I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only affronted to the nation’s unity but also makes one wonder whether we are sovereign secular republic or loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops, and pundits. I strongly support the crusade for the implementation of the UCC and homogenizing the personal laws. I support it, not because of any bias, but because it is the need of the hour. It is the high time that India had a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance.