Today, citizens of India are governed by different personal laws, based on their religion, caste, community, etc. A uniform civil code would ensure that all citizens of India are governed by the same set of secular civil laws in matters of marriage, divorce, maintenance, adoption, inheritance, etc. Under the present set of laws, Hindus are bound by law to practice monogamy, whereas Muslims are not. Similarly, whereas Hindus have a comprehensive enactment on adoption, this concept is not recognised by the personal laws of Christians and Parsees. If a uniform civil code is enacted, all citizens of India would be governed by the same law in all such matters.
The objective underlying a uniform civil code is to enhance national integration by elimination contradictions based on religious ideologies. All communities in India would then stand on a common platform on civil matters like marriage and divorce, which are currently governed by diverse personal laws. The pertinent question that poses itself is: If the same law of contract or torts applies to a Hindu and a Muslim, why not the same law of marriage?
As once observed by the Supreme Court, the implementation of a uniform civil code is imperative for both, the protection of the oppressed and the promotion of national integrity and unity. It is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, divorce, adoption, succession and the like are matters of a secular nature, and can therefore be regulated by a law applicable to all persons in a country.
Time and again, the judiciary has given a clear call for the implementation of a uniform civil code in India. In 1985, the Supreme Court reminded the Parliament in very strong terms to frame a uniform civil code in Mhd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), popularly known as Shah Bano’s case. In that case, a poverty- struck Muslim woman claimed maintenance from her husband under S. 125 of the Code of Criminal Procedure, after she was given a triple divorce by her Muslim husband.
The Supreme Court held that she did have such a right and observed that even the Koran imposes an obligation on a Muslim husband to make a provision for his divorced wife. Lamenting that Art. 44 of the Constitution had remained a dead letter, the then Chief Justice of India, Justice Chandrachud, observed as under:
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.”
The response to this judgment was prompt, strong and reactionary. Protestors took to the streets, disturbances erupted all over the country and Muslim leaders vowed that they were prepared for any sacrifice to protect their personal law.
The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme Court in Shah Bano’s case.
The second case when the Supreme Court once again gave a strong reminder to the government in the matter was Sarla Mudgal v. Union of India (AIR 1995 SC 153), when the apex court reviewed four cases where the facts were similar. The question before the court was whether, after contracting a Hindu marriage, the husband could convert to Islam and marry a second wife, without divorcing the first.
The Bench, headed by Justice Kuldip Singh held that an errant Hindu husband could not do so to circumvent the provisions of Hindu law and would be punishable for bigamy under the Indian Penal Code. In a rather lengthy judgment, the Judge touched upon the importance of a uniform civil code at least twenty times, and lamented as under:
“Successive governments have, till date, been wholly remiss in their duty of implementing the constitutional mandate under Article 44.”
In the above case, the court directed the then Prime Minister, PV. Narasimha Rao, to take a fresh look at Art. 44, observing that since the enactment of the Constitution, a number of governments have come and gone but have failed to make any effort towards this constitutional mandate.
Again, in 2003, when a Christian priest from Kerala, Father John Vallamatton, knocked at the doors of the Supreme Court, the apex court declared S. 118 of the Indian Succession Act to be unconstitutional, as it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests (John Vallamatton v. Union of India, AIR 2003 SC 2902). The Bench, headed by the then Chief Justice Khare, observed as under:
“It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a uniform civil code in the country.”
However, when a writ petition was filed calling for a direction to mandate the government to introduce a uniform civil code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary. (Maharishi Avadhesh v. Union of India, 1994 SCC Suppl (1) 713)
Likewise, in Pannalal Bansilal v. State of AP, (AIR 1996 SC 1023), it was held that although a uniform civil code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation.
Even the strong outbursts of Justice Kuldip Singh (referred to above) were later watered down with an observation that they were only in the nature of obiter dicta and not legally binding on the government.
The stand taken by the Supreme Court is interesting. On the one hand, it has, time and again, recommended early legislation for ushering in a uniform civil code. On the other hand, it has rejected all attempts to do so through public interest litigation.
In the latest landmark judgment (delivered on February 9, 2011), the Supreme Court looked at the issue from a slightly different angle, and lamented that ever since independence, the attempts of the government to reform personal laws have not gone beyond Hindus, who have shown more tolerance in this respect. In the words of the apex court, “The Hindu community has been tolerant of these statutory interventions. But there appears a lack of secular commitment, as it has not happened for other religions.”
Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, it is clear that the implementation of a uniform civil code in India will remain a distant dream for a long time to come. In 1954, when Prime Minister Jawaharlal Nehru was asked why Art. 44 had not yet been implemented, he declared: “I do not think that at the present moment, the time is ripe in India for me to try to push it through.” In other words, he did not feel that the country was ripe enough for such an enactment at that time, which was more than fifty- five years ago. Sadly, it appears that even today, the country is not ready for it.
Some writers are of the view that the reason why Parliament has been unable to pass a suitable legislation in this respect, even after six long decades of independence, is that there is no sufficient support for the move within the Parliament itself.
However, since this involves radical changes in existing personal laws, the move for reform would take a better shape if there is sufficient pressure from within the various communities that co-exist in India, rather than by one broad sweep of legislation. Moreover, for historical and other reasons, the demand for a uniform civil code has now acquired communal and political overtones, which have effectively overshadowed the innate merits of such a law.
Some other writers have taken solace in the fact that several other ‘guiding stars’ of the Constitution of India have also not been implemented till date, and that Art. 44 is not an isolated instance of a directive principle of state policy that still remains unfulfilled. Where, they ask, is the all-India law that prohibits consumption of intoxicating drinks? And which law has been implemented to guarantee equal pay for equal work to both men and women?
There is yet another angle from which this issue needs to be examined carefully. There can be no doubt at all that personal laws must necessarily be in conformity with the Constitution of India – and not the other way round. Now. Art. 25 of the Constitution, which deals with fundamental rights, and guarantees the freedom of conscience and the right to profess, practise and propagate religion.
It thus follows that no set of laws can violate Art. 25, which is a fundamental right, as contrasted with Art. 44 which is a directive principle. Clearly, Art. 25 were enacted to protect the religious freedom of various communities in the country. This leads to a unique dilemma: Can the country really have a uniform set of laws for all citizens, which necessarily discards some personal laws, and yet is in consonance with the freedom of religion guaranteed by Art.25 of the Constitution?
The concept of an optional uniform civil code has often been mooted. Ideally, a uniform civil code ought to focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. If it is made optional, it can provide free choice, and facilitate harmonisation of social relationships across the country in keeping with the changing contours of emerging societal realities.
It is rightly opined that a uniform civil code should not be drafted, as sometimes suggested, by putting together the best elements from various existing personal codes, as this could invite controversies. It would be far better that such a code is framed de novo by an independent body like the Law Commission, in consultation with experts and relevant interests, as a citizens’ charter governing family relations.
The Uniform Civil Code in Goa:
Whilst the entire nation swings in uncertainty over the implementation of a uniform civil code, the tiny state of Goa has shown the right path to the rest of the country. Whilst a nation-wide civil code is still being debated, a positive step in this direction has already been taken by this state, which has enacted a set of ‘Family Laws’, which apply to all communities in Goa.
There is no discrimination in this Code between Hindus or Muslims or Christians or any other community. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc. and embraces the concept of gender equality.
Under this Code, which enacts a very progressive law, every birth, death and marriage is compulsorily registrable, and it provides for an equal division of property between husband and wife (irrespective of gender) and also between children. It enacts the rule of monogamy, and Muslims whose marriages are registered in Goa can neither take a second wife nor divorce the existing one by a pronouncement of a triple talak.
Strict provisions have also been made about the distribution of property at the time of divorce. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of whether they are male or female, or whether they are unmarried or have got married and left the house.
This provision has disabled parents from totally disinheriting their children because the children of deceased parents fall in the category of what is known as “mandatory heirs”. They cannot be disinherited save under extraordinary circumstances (listed in the Code).
It is therefore not a matter of surprise that the former Chief Justice of India, Mr. Y. V. Chandrachud once expressed his hope that the Goan Civil Code would one day “awaken the rest of bigoted India and inspire it to emulate Goa”. He further remarked: “It is heartening to find that the dream of a uniform civil code in the country finds its realisation in the Union Territory of Goa.”