Law and order are the medicine of the body politic and when the body politic gets sick medicine must be administrated.

It is well known that uniform civil code is most necessary to be followed in India, if Uniform civil code is there then there would be a single law and all people would be treated equal. This paper contains its merits and that is the reason why it should be passed in our country.

It states What changes occurred while applying the uniform civil code, what effect it shows in whole country and what difficulty India faced while dealing with it . As our society is ever changing, so we should also amend our laws as per the advancement and betterment of our country. Previously the laws were made according to need of that hour but those laws have remain stagnant ever since.

For the purpose of equality and equal justice we need Uniform Civil Code. Without uniform civil code some people also try to misuse their personal laws. As we can see the child philosophy some are still governed by their personal laws which is like a playing game with their future. In personal laws women did not get their rights after divorce or at the time of death of husband but with the implementation of Uniform Civil Code they will get their rights, children can have their future bright and even it will also help our country to grow and to develop. Through this Paper, I would like to explore the idea of Uniform Civil Code as the tool of equal justice in India.

What is uniform civil code?

As in school students are given same uniform so that they could be treated equally irrespective of their caste, colour, religion etc. In the same manner our country needs uniform civil code so that every individual could be treated equally.

Uniform civil code is an attempt to wave personal laws and to bring a common law for all, one law should be there which is applicable to all, which would be different from public law and would deal with marriage, divorce, maintenance and adoption.

Article-44[1] of the constitution of India states that the state shall endeavour to secure for all the citizens a uniform civil code through the territory of India. The object of the endeavour is to address the discrimination against the culture & vulnerable groups. The need of this code is to secure justice and equality for all the citizens of India. As this code is applicable to the citizen of India irrespective of caste, religion and gender means all citizen of India are treated equally but in case of marriage, divorce and maintenance and adoption the effect has not been bought. The personal laws in India vary widely in their sources and traditions which makes the difficulty and resist in bringing people up together for unifying them in the nation where laws of different religion govern them.

However article-37 of the Constitution itself makes clear that DPSP are not enforceable by any Court. As they are fundamental governance of the nation which indicates that UCC should be implemented in some manner, but this doesn’t make this implementation mandatory.

Merits of Uniform Civil Code

• Over lapping provision of law will get avoided
• All people will get equal status and there would be no discrimination.
• The nation would speak together.
• The country would emerge with new force and power.
• Simplify Indian legal system.
• Burden on judiciary would decrease.
• Speedy justice.

An extra burden is put on the judiciary when different communities are governed by different laws which is the main cause of delay in justice. Having a Uniform Civil Code will help to solve the case quickly and provide justice and also help simplify a lot of techniques that make confusions which are attached to present scenario. Thus, addressing the loopholes in pre-existing personal laws and giving it a new way to deal with the advanced crimes.

Countries having Uniform Civil Code

The developed countries like USA, Canada, Australia, UK, Russia etc. have adopted the Uniform Civil Code as a developing law for the betterment of their society, culture, religion and to remove discrimination amongst the communities. Uniform Civil Code is the only reason for these countries to achieve their higher goals.

USA
USA have a secular law that applied equally and uniformly upon all the citizens of their state. The USA have English common law, which makes every person equal and remove the discrimination between the majority and minorities. Even people from other countries also have to follow common law of their country. Because of uniform civil code USA has achieved its goals and is successful in developing in economically, socially and religiously.

In the same way many country have developed so far and achieved their name and fame by following implementing UCC.

History of Uniform Civil Code

According to the LEXLOCI[2] report of 1840 the importance of uniformity in the Indian laws relating to Crimes, Evidence and Contract but it was decided that Hindu and Muslims should be governed by their own personal laws except matters related to crimes, contract and evidence. By their understanding the division is made between Hindu, Muslim, Christian and Parsis and their personal law is applied to all courts and panchayats while dealing with common cases of marriage and divorce.

Later on in 19th century Muslim law or Sharia law was not strictly enforced as compared to Hindu law. In Muslim law there is no uniformity as it discriminate on basis of gender. In India most of the Muslim women get restrained from their right to property, dowry settlement and divorce.

Uniform Civil Code in Goa
Goa is the only state in India having Uniform Civil Code as special marriage act 1954 is applicable all over the Goa. This was introduced by Portuguese in 1870 as goa family law but after the liberation of Goa this law was retained and became special marriage act in 1954. This marriage acts provides a civil marriage of two person of different sex irrespective of their religion. This law prevail in Indian to have their marriage outside the customs of their personal law.

This law is still followed in Goa as it punishes polygamy which means having more than one spouse at a time. Hence no person can have more than one marriage at a time. Also this act states that at the time of divorce both husband and wife will be treated equally with regards to property and will not be discriminated. However, this act discriminates on a ground that a Hindu male can have more than one spouse living if the earlier wife fails to deliver a boy till she attain the age of 30 years, this shows that even this civil act is discriminatory.

In The Hindu Code Bill

This bill was drafted by Dr.BR.Ambedkar known as father of the Constitution of India, in which he legalised the divorce in Hindu marriage but forbidden the polygamy. Hence attempt was made for protecting the rights of every married Hindu.

In Hindu Succession act 1956 came but in this act the daughters are not given equal rights as son in their ancestor property.

So the Hindu law was divided into four acts as specified under:

• The Hindu Marriage Act, 1955
• Minority and Guardianship Act,1956
• Adoption and Maintenance Act,1956

In all these acts any of the person approaches to the court.

In Muslim Law

This law is not codified also Muslim law allows polygamy and is a patriarchal law allowing a man to give divorce to his wife by allowing Triple Talak which has been abolished. However Muslim women have been given no right to file for divorce without the permission of their husbands as given in Quran and hadiths.

Critical Analysis
Articles of the Constitution of India which contradict the article-44 Uniform Civil Code
Article 25- Freedom of conscience and free profession, practice and propagation of religion, which means religion is separated from secular laws that remove some regressive religious practices. It clearly says that religion does not limit the state from making laws for welfare and development. But Uniform Civil Code cannot be imposed on people as it is violation of article 25 of the Constitution of India. Therefore, Uniform Civil Code and personal laws should be co-relate, as Uniform Civil Code is nothing but incorporation of progressive aspects for all existing personal law.

Article 26- Freedom to manage religious affairs.

Clause (b) says that to manage its own affairs in matters of religion which means that religious matter should be solved in religious manner. As this article is the contradiction of Uniform Civil Code, it does not allow judiciary or parliament to interfere in their religious matter.

If the government want to enforce Uniform Civil Code then they should amend article 26 of the Constitution of India because we cannot have two contradictory law in constitution.
These article of Indian Constitution violates the Uniform Civil Code.

Shah Bano Case

In case of Mohammad Ahmed Khan v. Shah Bano Begum[3] (1975) Supreme Court gave the scintillating judgement, for the first time Supreme Court directed parliament to pass the Uniform Civil Code bill in 1985.

• In this case, Mohammad Ahmed gave Triple Talak to his wife Shah Bano and denied to give maintenance to her. When the matter went to district court and the court gave her right to alimony and after that in high court, shah bano appeal to high court for the maintenance and high court gave the decision in her favour.
• After this Ahmed appealed in Supreme Court and said that he fulfilled all her wishes according to Muslim law but Supreme Court gave the scintillating judgement and decided the case in Shah Bana favour that under Criminal Procedure code section 125 the husband is liable for maintenance of his wife, children and parents.
• But this decision was in conflict with rules of Quran. So in 1986 parliament enact Muslim Women (Right to Protection on Divorce) in 1986 to protect rights of Muslim women at the time of divorce from their husbands.
• This act was came to invalidate the decision of Supreme Court. This act says husbabd is liable to pay maintenance till iddat period and when child born then to give maintenance till period of 2 years. Through this act women is also authorised to obtain mehr and dower.

Danial Latifi v. Union of India

In the case of Danial Latifi v. Union of India[4] the constitutional validity of Muslim Women (Right to Protection on Divorce) Act 1986 was challenged by the advocate of Shah Bano.

• In this bench of five judges said that the purpose of this Act is to retain freedom of Muslim husband for avoiding the payment of maintenance to his wife after the divorce and the period of iddat.
• Muslim Women (Right to Protection on Divorce) Act 1986 was challenged on grounds that law was discriminatory and violation of equality under article 14 of the Constitution of India as it deprived Muslim women maintenance benefit equivalents to those provided to other women under section 125 of Criminal Procedure Code.
• Further, it was argued that it also violates the right to life guaranteed under article 21 of the Constitution of India.
• Supreme Court on its creative interpretation, upheld constitutionality of Muslim Women (Right to Protection on Divorce) Act 1986 and said Muslim husband is required to fulfil all the future needs of her wife in advance.

This is a leading case because, it established for the first time that Muslim husband is also liable to provide maintenance to his divorced wife beyond the iddat period and this interpretation balances between the Muslim law and section 125 of Criminal Procedure Code.

Sarla Mudgal v. Union of India[5] (1995)

In this case court held that the second marriage would be invalid until or unless first marriage dissolves by decree under the Hindu marriage act.

Facts are: The husband converted himself into Muslim religion from Hindu religion and practiced polygamy. There is no punishment for this act but court in interpretation of section 494 of Indian Penal Code interpreted that such marriages are invalid.

• Court says a Hindu marriage continues to subsist even after one of the spouse converts into Islam. There was no automatic dissolution of marriage
• Under Hindu marriage act the marriage gets dissolve by decree of divorce under section 13 of Hindu marriage act.
• Modern Hindu law strictly enforces monogamy. A marriage can’t be dissolved except under section 13 of Hindu Marriage Act.
• Court says second marriage of Hindu husband after converting into Islam is violation of justice, equity and good conscience and court held such marriages would be void under section 494 of India Penal Code.

The Supreme Court of India in Seema v. Ashwani Kumar[6] has directed all states in India to enact rules for compulsory registration of marriages irrespective of religion, in a given time period. This reform has struck a progressive blow to check child marriages, prevent marriages without the consent of parties, check bigamy/polygamy, enable women's rights of maintenance, inheritance, and residence, deterred men from deserting women, and for avoiding human trafficking under the likeness of marriage.

The consequences of non-registration of marriages have created a large number of abandoned spouses in India deserted by non-resident Indians who habitually reside abroad. However, implementation of the same is still undermined.

In the case of Shayra Bano[7]a young girl got married with a person name Rizwan in Allahabad. She was forced to undergo with many abortions because of her husband as he didn’t get tubectomy, because he believed these were haram means forbidden by Allah.

After that, Rizwan asked her father to come and take her along with him. Rizwan sent Triple Talak to Shayra Bano through letter. Then Shayra Bano move to Supreme Court along with four ladies who were also the victims of Triple Talak. They are not challenging the Quran but the heinous Triple Talak.

Then the bench of judges in Supreme Court set aside the practice of Triple Talak in august 2017. The bench of judges with five different religious, was hearing five petition filled for setting aside of Triple Talak. The Supreme Court held Triple Talak, Nikah Halala and polygamy illegal in Muslim personal law by 3:2 majority and held that it is the violation of fundamentals rights under article 14, 15 and 21 of the Constitution of India.

Reason why India need uniform civil code

• It promotes secularism
• It gives more rights to women.
• All will be treated equally.
• No discrimination would be there.
• Personal laws have loop hole.
• Destroy the vote bank on the name of religious.
• Burden on judiciary would decrease.
• It will unite India

Secularism

In a country like ours, Uniform Civil Code needs a separation of law and religion. For this purpose we ought to understand one of the basic principles of Indian Constitution, i.e. Secularism. Secularism in its basic sense means to remove judiciary and government from interfering in religion. The best meaning of secularism according to uniform civil code is the law should be same for all which makes everyone equal and no one’s right will be violate as everyone will have to follow it.

All will be treated equally and no discrimination

If there is one law for everyone so there will be no discrimination everyone will be treated equally. In Muslim a man can have more than one marriage because of this people are changing their religion which shows that their injustice is done to women and their fundamental rights are violated. If there is one law for marriage, property, divorce then there will be proper equality amongst everyone. If there will be one law for all then everyone will be equal and if all are equal then there will be no discrimination.

Personal law as loop hole

All the country like America, China, U.K, don’t have personal laws because they know personal laws will never let them develop as personal laws violate humans rights which are governed by following religious practices without any logic.

For example- In Muslim law Triple Talak which violates rights of Muslim women which shows injustice to Muslim women.
In Hindus Sati Pratha which says if husband died then her wife should burn herself with her husband’s body which shows injustice and violation of human rights.

Vote bank on name of religion

At the time of elections the elections the candidates seek votes on basis of religion. Everyone wants votes so they do false promises to common people. After winning they show their true colours by discriminating them and creation situations of communal, tension between different communities. If there would be one law then politicians will not be able to get their vote bank supported by giving fake promises.

Less burden on Judiciary

According to report of ecourts[8] there are 4.64million cases are pending in high courts and 31.78 cases are pending in district courts which lead delay in justice. If there would be one law for all then there will be less confusion, less burden on judiciary and can solve cases quickly without any delay. Justice will serve equally to everyone and will also reduce litigation in personal laws.

Conclusion: The way forward

• Some communities think that Uniform Civil Code is ban for them as it is against their religion. Nevertheless it is modernization of their religious law which will boost up their equality and will make them rich traditionally and socially
• Our country has diverse culture, tradition, religion to make them more progressive then, we need to remove discrimination on basis of religion, caste, sex. Uniform Civil Code is the modern way to treat everyone equal in every aspect.
• This code will help in speedy justice to everyone and courts will have less burden so justice will not be delayed.
• People only need to understand that the Uniform Civil Code is sign to abolish discrimination amongst everyone and this code will not harmed by any religion and no one should get harm by their own religion.
• UCC involves secularism. UCC is both glorified as well as criticised but in today’s scenario implementation of UCC is must to stop the internal war of the country and to make the nation growing traditionally as well as economically.
• According to Article 14 of the Indian constitution, every single citizen is equal in the eyes of law and court. But in India, we have personal laws based on the particular religion. For example, a Muslim can marry multiple times and he will not be prosecuted but if there is any Hindu, Christian or Sikh then he will be prosecuted by the court which is against the saying of Article 14 of Indian constitution. This is not equality in real means. If we want equality then there should be the same laws related to marriage, adoption, divorce, inheritance, family, land etc. Then the exact definition of equality will be defined. In some aspects personal laws are violation of article 14 of the constitution of India.
• As Supreme Court judge-Justice Y.V. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests.
  Suggestion How to apply UCC
• To maintain the uniformity of laws the government must adopt the piecemeal ways.
• The word uniformity means all communities must be governed by uniform principles
• This will modernization and humanize all personal laws. Government should take steps towards increasing the awareness camp among public and tell them benefits of this code so, no other person can manipulate them.
• This code must keep balance between religions, fundamental rights and not hurt sentiments of any religion.
• This code should be without biasness and in uniformity which is equal for every community.

References:

1. Ziya US Salman, Till talak do us apart, ISBN9780143442509
2. https://main.sci.gov.in/jonew/judis/27482.pdf
3. M.P Jain, Indian Constitutional Law,7th edition
4. (2001) 7 SCC 740
5. 1995 SCC (3)635
6. 1985(2)SCC 556

End-Notes:

1. The constitution of India act, 2019
3. 1985(2)SCC 556
4. (2001) 7 SCC 740
5. 1995 SCC (3)635
6. https://main.sci.gov.in/jonew/judis/27482.pdf
7. Ziya US Salman, Till talak do us apart, ISBN9780143442509

Written By: Saket Mangla