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Article by Sandip Paul
Student of SOA National Institute of Law (SNIL), Bhubaneswar
ABSTRACT
The Indian constitution objected, under article 44 to implement the Uniform Civil Code for purpose of social development. Article 44 provides that “state shall endeavor to secure for the citizens a uniform civil code throughout the territory on India”. In contrastingly no government took the endeavor to implement the same. This research paper has focused on the loopholes and discriminatory nature of personal laws in India. Certain laws and customs under personal laws which prejudicially affect the interests and fundamental rights of women are also discussed. The paper focused on the needs of implementing a uniform civil code and the social reformation that the country will witness on implementing the same.
INTRODUCTION
“Goa has what the constitution framers envisaged for India – Uniform Civil Code. Intellectuals should see how the Uniform Civil Code works in Goa”, this is the recent statement made by Chief Justice of India, Sharad Arvind Bobde, while speaking at the inauguration ceremony of the new High Court building at Goa. The concept of the Uniform Civil Code is provided under Article 44 of our Indian Constitution. It says “The state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India[1].” The objective of UCC is the administration of uniform secular civil laws for all citizens irrespective of religions, regions, community. It includes the purview of rights relating to property and personal matters like marriage, divorce, maintenance, adoption, and inheritance.
After a long stretch of years after independence, yet the UCC as provided under article 44 of the Indian constitution is still left under the Directive Principle of State Policy ( DPSP). The nature of DPSP is that it need not be mandatorily followed and is also not enforceable by a court of law. It is a directory in nature and puts obligations upon the state for purpose of good governance as well wholesome development of a country. Still, the importance of UCC remained as a direction, which is yet to be implemented.
The demand for implementation of UCC was first made by women activists at beginning of the 20th century, for purpose of women's equality, secularism. The Uniform Civil Code has been an apple of discord for several years. It has also been made as a political tool for purpose of election campaigns, but the paradox is that no government has taken the endeavor to implement it. Pondering over the issue, the debate regarding UCC has always been made over the political and religious line. The main intention of UCC is Gender Equality, empowerment of women, social development of all classes of people, which have never been talked about. Previously, when the personal laws were made, as per the need of the hour and those laws have remained stagnant since their inception. As society is changing, the socio-economic condition is changing, we should amend the laws as per the advancement of the country, and the idea of implementation of UCC will be a great example.
This article will show the benefits of UCC, especially protecting the interest and rights of women by analyzing the loopholes in personal law.
STATUS OF WOMEN UNDER PERSONAL LAWS IN INDIA
The debate over the implementation of UCC has taken a communal angle, which has camouflaged the merits and utility of the same. Religious faith is important in every religion, but making such religious faith a dogmatic belief is against the interest of society. Implementation of Uniform Civil Code will not cause any prejudice to the customs and religious belief but will favor for making common personal law, to make India a modern progressive nation, devoid of all kind of discriminations based on religion, race, caste, sex, place of birth.
Since time immemorial women were being dominated over men. Even today women in certain aspects are being discriminated against in religious matters. In various religious matters, women are usually suppressed and dominated.
Women generally enjoy a secondary status in all respect when compared to men. The Holy Quran though says about equal rights to men and women and bestows women in a respectable position, but certain aspects of Muslim personal law make women an inferior being.
Allowing polygamy under Muslim personal law is one of the examples. A Muslim man is allowed by law to marry four wives at a time. The practice of Muta Marriage (a temporary form of marriage for a fixed agreed period of time), is prevalent among Shia Muslims. In the case of Seema vs Ashwani Kumar[2], Supreme Court has directed all states in India to enact rules for compulsory registration of marriages irrespective of religion. This is objected to check bigamy/polygamy, child marriages, avoiding human trafficking under the likeliness of marriage.
Even in the matter of divorce under Muslim personal law, the status of women is highly discriminatory. The custom of Triple Talaq or Talaq-e-bidder, which does not provide the husband to cite any reasonable cause for divorcing his wife and is unilateral, irrevocable, also allowed by the Holy Quran is unreasonable and against the basic interest of women. In the case of Shamim Ara vs the State of UP[3], Supreme Court held that “ the correct law of divorce as ordered by Holy Quran is that Talaq, must be for a reasonable cause “. Again in the case of Mashroor Ahmed vs State (NCT of Delhi)[4], the court observed that “reconciliation before the procedure of divorce is of utmost importance and is in concurrence with the Holy Quran. It is of utmost necessity to follow the procedure of divorce as written in Quran and proper reasoning to be given before the commencement of divorce.” Though recently the legislation of Muslim Women (Protection of Rights on marriage), Act, 2019 having a retrospective application, criminalized the practice of Triple Talaq as a form of divorce among Muslim men.
In the case of succession also a Muslim woman is discriminated against. The legal position is that, when both men and women of the same degree inherit the property of the deceased, the Muslim men will get double of the share of the women. Like, a brother and sister inherit the property of their deceased father, the brother will get the double of share what the sister gets.
Under the Muslim personal law, there is no obligation of providing maintenance to divorced Muslim wife, beyond the period of ‘Iddat’. Section 125 of the Criminal Procedure Code, imposes an obligation to the husband to maintain his wife, including divorced wife, which is a secular law and is applicable to all. But the issue arises that, whether section 125 of CRPC will be applicable to Muslim husbands to provide maintenance to their divorced wives even after the Iddat period. In the case of Danial Latiffi vs Union of India[5], the court held that a Muslim husband is also liable to pay maintenance to his divorced wife beyond the Iddat period, as it will cause harmony between the Muslim law regarding maintenance and Section 125 of CRPC.
Again in the landmark case of Mohammad Ahmed Khan vs Shah Bano Begum (1985), also known as the Shah Bano case, Muslim women, Shah Bano Begum after divorced by her husband, claimed maintenance from her husband under section 125 of CRPC. On the issue that whether Muslim women have the right to claim maintenance under CRPC, Supreme Court held that Muslim women had a right to get maintenance from their husband under section 125 CRPC being secular in nature. Post the period of this judgment caused political turmoil all over the nation, government to bypass the judgment of the Apex court enacted Muslim Women ( Right to Protection on Divorce ) Act, 1986, which abstained Muslim women to claim maintenance under section 125 CRPC. Thus the golden opportunity for reformation in the personal law and a step towards the attainment of UCC failed.
The practice of custom of ‘Halala’ in which is a procedure for remarrying a divorced wife is also against the interest of the wife. As per Muslim personal law, for remarrying a divorced wife, she needs to marry another man, consummate the marriage and subsequently get a divorce, only after that she can remarry her first husband. This process is irrelevant and the practical need of such custom is questionable.
In the case of Hindu personal law, the rule for the inheritance of women’s property died intestate will devolve on husband’s heir. If they are not alive, then upon father’s heir and lastly to her mother’s heir. This method shows injustice to women. Secondly, regarding the Hindu law of adoption, a married woman is allowed for adoption only with the consent of the husband, though the wife and husband are separated.
Thus this shows the discriminatory nature of the personal laws against women, which have somehow prejudiced the interest of women and paved the need for UCC to be implemented.
UNIFORM CIVIL CODE AND RIGHT TO EQUALITY
Promotion of Gender equality under the Indian constitution has been provided under Article 14[6]. Article 15 also says that “the state shall not discriminate against any citizen on the ground of religion, race, caste, sex, place of birth or any of them.” And any laws inconsistent with these fundamental rights will be void. However, the religious personal laws of India do not uphold equality for women in the true sense. Judiciary also has never directly addressed this issue but has tried to make progress through different landmark judgments. So what is the benefit of having such a provision regarding equality, where the discrimination against women in personal laws is palpable? Thus the only remedy that can be provided is the effective implementation of UCC.
FREEDOM OF RELIGION AND UNIFORM CIVIL CODE
Fundamental rights under the Indian constitution are not absolute in nature, such as the Right to Freedom of religion under Article 25(1), not an exemption. It provides for an opportunity to practice a profess religion but “subjected to other provisions of this part”.[7] Thus it must also be in consonance with articles 14 and 15. The freedom of religion should not cause any discrimination or inequality among the citizens.
The personal laws of India, which is having a discriminatory approach against women, this is also inconsistent with the fundamental right of freedom of religion. Allowing UCC will not interfere in the Right of freedom of religion rather will bring some change for the development of society.
OTHER REFORMATIONS WHICH CAN BE SECURED UNDER UNIFORM CIVIL CODE
Firstly, implementing UCC will make a feeling of national integration. The sense of equality throughout the nation irrespective of religion, the place will bind the people together.
Secondly, there will be uniformity in all the religious aspects like marriage, succession, divorce, etc. which will make it truly secular in a practical sense. And secular India will promote the Freedom of religion by harmonizing national unity and interest.
Thirdly, it will pave the way for gender equality and will uphold the basic interests and rights of women in the country.
Fourthly, the Muslim personal law which we can say is grossly anti-women, like allowing polygamy, Muta marriage, the custom of Halala, which has not been reformed since 1937, will be checked upon
Fifthly, UCC will abolish all orthodox practice and dogmatic beliefs in name of religion.
Lastly, it will lessen the burden on the judiciary. Different personal laws of different communities impose an unnecessary burden on legal administration. Thus a uniform law will cause less confusion and expeditious disposal of cases related to personal matters.
CONCLUSION
It is high time to execute, what the Indian constitution has foreseen since its inception that is a commitment towards gender equality. Most of the developed countries have already favored UCC, so India being a secular country in the true sense must opt for it, and the example of Goa, which is the only state in India to follow UCC is commendable.
As discussed above, the age-old religious customs and personal laws of the country which generally favored the men, especially Muslim men need a strong reformation. The UCC will be the way to improve the conditions of women in the country. The customs and traditions which have no relevance in today’s modern society need to be wiped out, and women should be given equal rights. Uniform civil code will not only be a boon for women in India for improving their condition but will also strengthen the unity of the nation and will uphold secularism in a true sense.
[1] Article 44 of the Constitution of India [2] 1985(2) SCC 556 [3] AIR 2002 SC 619 [4] 2008(103) DRJ 137 [5] (2001) 7 SCC (3) 740 [6] Article 14 of the Indian constitution, “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” [7] Part III of Indian Constitution, as “Fundamental right”