November 27, 2020

Uniform Civil Code

ABSTRACT

India is a land of diversity, intermingling of different religions, creed, provinces and languages. In spite of 70 years of Independence, the diversity of the country is not bound by a unifying force. Somewhere in the heart of people and the functioning of the government there is a lack of emotional and national integration. People living in one Nation are supposed to have one law for the functioning which should be based on the concept of one Nation. India is not a tribal polity. To unify the country into one healthy Nation we have a Constitution that gives equal rights to all the Indians.

Then why should Uniform Civil Law not be brought into the effect? Uniform Civil is indispensable for emotional and national integration. In our country the oldest part of the legal system of India is the personal laws which are being followed. Especially they are governing the communities like Hindus and Muslims who has their personal laws which are other than that of the laws followed throughout the Nation.

Along with this, In India we have criminal code that is equally applicable to all the citizens of India. However, a similar code do not exist for some provisions like marriage divorce and other several things which are must to be governed by the personal laws. These personal laws are varied in their personal skills, there sources of origin, their nature, their philosophies which are totally different from each other and their applicability. Let us discuss Uniform Civil Code.

KEYWORDS

Uniform Civil Court, The Supreme Court, Constitution of India, Acts, Laws, protection, development, citizens, rights, safeguard, and women.

UNIFORM CIVIL CODE

The Constitution of India states in its Article 44 that ‘The state shall endeavor to secure for the citizens a Uniform Civil Code which should be followed throughout the territory of India.

Dr. Br. Ambedkar was the most extensive supporter of Uniform Civil Code. Due to opposition by members in a huge amount, he was unable to bring Uniform Civil Code more than a status of Directive Principles. These Directive Principles were made with an aim and objective to attain equality of all the citizens residing in the territory of India regardless their gender, caste, creed and others.

If Law is really to serve its purpose, it must be progressive. The lack of clarity in the law has affected many women.

Uniform Civil Code contains several personal laws which are necessary for governing each community as per their nature, origin, principles and perspectives. Some of those personal laws can be

1. The Hindu law– The Hindu Law was the personal law made to govern all the people who belong to the Hindu community. The Hindu law contains several Acts which are used for governing different form of aspects and the principles. Some of them can be classified as below :

· The Hindu Marriage Act, 1955 – The Act describes the Marriage of two persons of opposite genders who belong to the same community that is Hindu. The legislation of the Act is applicable only to the Hindus. The registration for marriage is made under this particular Act for Hindus. The Act also deals with the divorce of the two persons who got married and belong to Hindus only.

· Hindu Succession Act, 1956 – The Act is being made to govern the succession among Hindus. The Act also tells us several concepts for the Succession among the families which can be classified as the family from father side that is the Paternal Family and the family from the mother side that is the Maternal Family. The Act describes the way and the proportion in which succession will be done for any person belonging to Hindu family.

· Hindu Minority and Guardianship Act, 1956 And Hindu Adoption and Maintenance Act, 1956 – These Acts particularly talks about the guardianship of any child who is minor (below 18 years). The Act provides different grounds on which the Guardianship will be given to any person who belong to Hindu community for any Hindu minor child. Along with this, the Act talks about the adoption of any child and the maintenance which will be given to him or her after adoption. The Act defines the person who is capable for taking adoption and the child who can be taken in for adoption. Along with this the Act talks about the kind of maintenance which should be given to a child if he or she is unable to maintain her or himself.

2. The Muslim Law – As Muslims are having their different principles for living, The Muslim Law is the legislation which is made to govern all the people who belong to Muslim community. Muslim marriage is a contract which needs to be performed and there are several conditions which need to be fulfilled. Some of them can be classified as:

· Muslim Shariat Act, 1937- The Act is the legislation for governing the Muslims for their whole living. The Act talks about the marriage, the divorce, the dower and many more things included in it. The Shariat Act is the path for living for any person who is a Muslim.

· Dissolution of Muslim Marriage Act, 1939 – The Act tells us about the Dissolution of Muslim Marriage. Whenever any marriage is to be dissolved the is the process for making that marriage dissolve, what will be the amount that is given to the wife, what is the property, who will give the amount of maintenance and several other aspects will be dealt under the Act.

· Protection of women from domestic violence under Muslim marriage Act, 2019- The Act recently amendment tells us the legislation to be govern all over the territory that the system of triple talak which means getting divorce Only after repeating Talak thrice in continuous basis. The Act now got amended and no one is now allowed to give divorce in such a manner. Everyone is now must need to follow the process described by the Court.

Same as Hindus and Muslims, there are personal laws for Christians, Parsis and Jews. They all have their Marriage Acts, Divorce Acts and several other acts which only the person who belong to these communities are needed to perform.

The Parliament of India also enacted Special Marriage Act, 1954. The Act was brought in legislation to provide special firm of marriage in certain cases when the people who belong to two different communities are getting married. The Act is for the registration of those marriages and for the divorce of these marriages. Under the Act, this enactment of Solemnizing the marriages by the registration is restored by Hindus, Non – Hindus and people who are Foreigners marrying in India. The person who has opted for being getting married need to be get registered themselves under the act compulsorily.

Also the Parliament of India found that when Hindu comes to the registration of Marriages, they found a major drawback of child marriages. Registration of child marriages is then nullified as these marriages do not fulfill the minimum age that is required for any person to get married. The Supreme Court stated in the case of Seema v. Ashwani Kumar[1] that in India all the States shall enact the rule for compulsory registration of marriage. This gives to abolish the child marriage and to prevent the marriages which are done without the free consent of the parties. Court also ordered to stop bigamy and to perform polygamy. The consequences of non- registration of marriage created a large number of spouses in India. This order from The Supreme Court brings development in field of culture.

When we talk about Muslim Law. It is additional Court that creates problem. In the case of Vishwa Lochan Madan v. Union Of India and Others [2] in which it issued notice to Central government and the State government. The notice was regarding All India Muslim Personal Law Board that the Islamic Seminary is in the matter of existence of Parallel and Islamic Shariat Courts in India. A direction from Court was also brought to restrain those organizations from interfering with the marital status of Indian Muslim Union or passing any judgement or remarks.

The same conditions arise in Hindus in the Khap Panchayat as they are not elected bodies and their orders are not enforceable by the Law. The Unions crime committed by The Khap Panchayat are noted exactly same as the crime of honor killing was noted.

Apart from this, Muslim Law provides Mahr, an amount which is fixed at the time of marriage and that is given to Muslim women as a consideration for the performance of the marriage. As we know that Muslim Marriage is a contract and condition for registration is written in ‘Nikah Nama’. However, the law doesn’t provide maintenance for wife.

On one hand they recognizes the continuance of personal rights but at the same time on other hand there exist several articles which guarantee fundamental rights mentioned in between Article 14 to Article 19.

Upon this station many judicial reviews were given by The Supreme Court of India. One of which the leading case law was Shah Bano Case, 1985 [3]in which The Supreme Court held that a divorced Muslim woman was entitled to maintenance from her husband under section 125 of the Criminal Procedure Code. But protection of Right on Divorce Act, 1986 was enacted in the order to appease the Muslim fundamentalist.

Also in the case of Sarla Mudgal v. Union of India[4]the husband and wife got married under Hindu Marriage Act. After some time husband got converted into Islamic religion and got married there. The Supreme Court of India gave the judgement that second marriage after conversion does not dissolve the first marriage. If anyone found doing this then he or she will be punishable for the offence under section 494 of Indian Penal Code, 1860.

Also there exists a law with is being challenged by The Supreme Court about the constitutionality validity of section 118 which is applicable for Non – Hindus residing in India which imposes unreasonable restrictions on their donation of property for religious purpose or for the charitable purposes within the territory of India irrespective of the caste, creed, gender and the place they belong to.

Similarly, in the case of Lily Thomas v. Union of India[5]a two judge bench of The Supreme Court ruled that the members of The Parliament, The Legislative Council and The Legislative Assembly convicted of crimes where they have been awarded a minimum sentence for the punishment of two years imprisonment and would cease to be the members of the house to which they were elected from the date of sentencing. It further struck down the provisions, which allows convicted members a three month time period for appeal against the conviction and sentencing and held that those convicted would suffer immediate disqualification.

GOA MODEL

There is a separate perspective in which Uniform Civil Code is being treated in Goa which turned to be named as Goa Model for Uniform Civil Code.

Goa is the only place in the territory of India which has enforced the Uniform Civil Code (UCC) for all the citizens residing in the territory of India. Early of this, Portuguese Civil Code was enacted in the 19th Century in Goa. UCC in Goa allowed equal division of income and property regardless of the gender between husband and wife and also among the children. Every Birth, Marriage, and the Deaths are being mandatory to be registered. There are several provisions for the Divorce of Marriages. For the Muslims who were residing in Goa was not allowed to perform bigamy and they were not allowed to take divorce by saying pronouncing talak three times (even before the Amendment Act of 2019).

In the Goa Model during the time of marriage all the property which is being acquired by any of the spouse is then being held commonly by both of them. Also, in the case of divorce, each spouse is entitled half of the share of the property. If death of any of the spouse occurred then the ownership over the remaining half of the property is retained by the other. According to Uniform Civil Code, even if children have got married and left the house, the other half has been divided equally among the remaining.

CONCLUSION

The section of the Nation against the implementation of UCC deals with safeguarding the citizen’s rights. UCC promote equality and justice by incorporating similar Law for all the citizens residing in India. Another basic and major advantage of UCC is that it will simplify the matters which are governed by personal laws and will promote gender equality and justice by removing the inbuilt gender injustice of personal laws.

In the absence of Uniform Civil Code, judges interpret various provisions like maintenance that need to be given to Muslim women according to their prejudices and the opinions. The enactment of Uniform Civil Code will prevent such interference and promote Uniform Provisions for the welfare and development of the section of the society which belongs to the women.

Apart from this, Uniform Civil Code (UCC) also promotes justice to all the citizens residing in India, Gender equality and National integration and it will simplify the cumbersome legal matters governed by personal laws. The objective for promoting integration to Indians enshrined in the Preamble could be achieved only when Article 44 is transformed into enforceable Uniform Civil Code and it promotes monogamy and try to stop the performance of bigamy among all the citizen of India including Muslim and it will lead to a betterment in the position of women residing in India irrespective of caste.

Moreover, the problem of opposition of UCC can be resolved by resolving the doubt relating to the problems of the minority group like insecurity, complete loss of identity and marginalization within the society of India. The benefits and advantages of UCC outweigh its limitations and it’s high time that India should incorporate Uniform Civil Code for all its citizens. Every citizen must be clear about the National objective instead of parochial interest. NO MAN IS ABOVE THE LAWS OF THE LAND. All must realize that one law will definitely help the cause of national integration, humane, progressive and rational society. Through many protests and acts govern by UCC we were able to remove the age – old evil of society that is Untouchability. Through the help of UCC we have almost succeeded.

Bibliography

https://www.lawfarm.in/blogs/the-uniform-civil-code-in-india-analysis-of-the-pros-and-cons www.legalserviceindia.com https://indiankanoon.org

https://www.clearias.com

Endnotes:

[1] Seema vs. Ashwani Kumar on 1 May, 2019 TP© 291/2005
[2] Vishwa Lochan Madan v. UOI and Others reference under section 213
[3] Mohd. Ahmed Khan v. Shah Bano Begum[1985(1) SCALE 767 = 1985(3) SCR 844 = 1985(2) SCC 556 = AIR 1985 SC 945]
[4] Sarla Mudgal v. UOI : AIR 1995 SC 1531
[5] Lily Thomas Case : 2000 (2) ALD Cri 686, 2000 (1) 363, 2001 (1) BLJR 499, 2000 CriLJ 2433, II (2000) DMC 1 SC, JT 2000 (5) SC 617, 2000 (4) SCALE 176, (2000) 6 SCC 224, 2000 (2) UJ 1113 SC

Author Details: Yashvi Kushwah (Banasthali Vidyapith)

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