Thursday, 16 March 2017

Pallavi Gupta

Uniform Civil Code

lawji-uniform-civil-code

Introduction
Uniform Civil Code is the proposal to replace the personal laws based on the scruptures and customs of each major religious community in India with a common set governing each citizen.
Personal laws are different from public law and cover marriage, divorce, adoption, maintenance, inheritance.
Goa is the only state in India having uniform civil code because it has a common family law.

Article 44 of The Indian Constitution of India

Under article 44 of The Indian Constitution of India: "The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

However, No attempt has been made by the India Government to draft a Uniform Civil Code since the Constitution came into force.

It is believed that the Uniform Civil Code has been made mainly to curb the personal laws, especially only of Muslims which is not true.

Contrarily, It was desired by the framers to ensure that the fundamental rights of the citizens irrespective of their religious and other identities are protected within a larger human rights framework.

The issue related to Uniform Civil Code

It is necessary to emphasise that the word "uniform" in the uniform civil code is not meant to unite the lifestyles and identities of Indian citizens but to ensure that certain fundamental rights to equality and liberty are protected for them by the Indian state.

The issue of UCC has emerged into India's political discourse recently because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. Therefore, more than ever before a realisation is gaining ground that a UCC will protect the constitutional rights of Indian citizens.


The debate

The Lex Loci Report of October, 1840 emphasised the importance of uniformity in codification of Indian law relating to crimes, contracts, etc but it recommended that the personal laws should not be included in such codification.

Uniform civil code is a necessity for the whole country but cannot be enforced upon any community.




Reason for ineffectiveness

  • Reason of insecurities among the minorities.
  • Communal riots.
  • Personal laws.
  • Customs and traditions.

Case Law
Shah Bano, a 73 year old woman was divorced by her husband by Triple Talaq and then was denied maintenance. She approached the courts.

Then, The District court and the High Court gave the judgement in her favour which led her lawyer husband to The Supreme Court.

Facts of the case

  • Under the Muslim personal law, Maintenance was to be paid only till the period of Iddat(approximately 90 days).
  • Section 125 of The Criminal Procedure Code which applied to all the citizens, provided for maintenance of the wife.
A five judge constitutional bench of The Supreme Court harmoniously ruled in her favour and also passed some adverse remarks about the Muslim Personal Laws and failure of Parliament to legislate the Uniform Civil Code.

Note that the judgement of the case came not very long after 1984 anti Sikh riots. The Muslims felt annoyed and The All India Muslim personal board and conservatives earnestly defended the application of their own personal laws.
The government was accused of imposing the Hindu culture on minorities.
It was seen as a menace to Muslim personal law which they considered their identity. Also, the fact that none of the 5 judges who advocated for UCC was Muslim did not help the matter but was evidence of the imposition of Hindu values over the Muslims.

Rajiv Gandhi government buckled under extreme pressure and passed The Muslim Women's(Protection of Rights on Divorce) Act in 1986 which made section 125 of  the CrPc inapplicable to the Muslim women.
This law was exactly opposite to its name as any sane person can see that it was passed to neutralize the Supreme Court judgement in the Shah Bano's case.

Conclusion
India is a secular country and the personal laws should not encroach upon invoilable collective values of nation. Muslim Personal laws are often in disfavour because there is no safeguard against arbitrary divorce and second marriage by her husband during the currency of  the first marriage, resulting in the denial of dignity and security to her. The laws dealing with marriage are not part of any religion. Hence, the laws have to be changed with time.