Uniform Civil Code
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Uniform Civil Code...
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Project on “UNIFORM CIVIL CODE”
Submitted for the !rti!" fu"fi"ment of the re#uirement for the $rd %eme%ter of &'(LL(&( cour%e of Utt!r!)h!nd *echnic!" Uni+er%it,
SU&MI**ED SU&MI* *ED *O-
SU&MI**ED SU&MI* *ED &.-
Mr%( Nidhi R!m!n
%!r+e%h m!ni !nde,
F!cu"t, of F!mi", L!/
&('(LL(&( 0$RD SEM1
&'*C2- 3455657 SIDD2'R*2' L'8 L'8 COLLE9E:DE2R'DUN COLLE9E:DE 2R'DUN
0
*!b"e *! b"e of Content% 'c)no/"ed;ement
3
Intr Introd oduc ucti tion on $ Scen! Scen!ri rio o of unif unifor orm m ci+i" ci+i" code code in in Indi! Indi! ti"" ti"" d!te d!te '%ect% of UCC
=
8omen ri;ht%
=
<
Secu Secu"! "!ri ri%m %m = Codific!tion>>>>>>>>>(>>>>>>>>>>>>>>>>>>>>>>((((? 'n!",%i% of UCC>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>(@ Conc"u%ion>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>55 &ib"io;r!h,>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>(53
1
Acknowledgement I wish to express my sincere gratitude to prof. R.H.Gorane, principal and Mrs. Nidhi Raman, faculty of family law of iddhartha !aw "ollege for pro#iding me an opportunity to do my pro$ect wor% on &'niform "i#il "ode(. "od e(. )his pro$ect *ears on imprint of many people. !ast *ut *u t not least I wish to a#ail myself of this opportunity, express a sense of gratitude and lo#e to my friends and my *elo#ed parents for their manua l support, strength, help and for e#erything. ar#esh mani pandey +..!!.+. -R /M/)/R
Introduction
'niform ci#il code, $ust three words and a drastic change in the legal system of India. s we %now that India is a di#ersified country and its population constitutes people from so many religions, caste and tri*es. o it is not pragmatic to ma%e different laws for e#ery religion, tri*e. Moreo#er, it will create chaos in the society as there will *e no uniformity in the laws. econdly, uniform uniform ci#il code will *ring uniformity uniformity in the laws. Imagine two citiens citiens of same country are go#erned with different laws $ust *ecause they practice different religion or $ust *ecause they *elong to different caste. In addition to all this, !aw cannot afford to *e selecti#e in application. It has to *e general and uniform unless the area of operation of a particular particular law or the people it deals with are distinguish distinguisha*le a*le from others and such distinction distinction has reasona*le reasona*le connection with the purpose of the law in 2uestion. It is crucial time that India had uniform laws regarding marriage, di#orce, maintenance, inheritance and succession. )he issue of introduction of the 'niform "i#il "ode in India has *een de*ated upon since the time India attained independence with the Indian 3arliament de*ating on it in as early as 1456. It witnes witnessed sed some some strong strong opposit opposition ion from from the Muslim Muslim fundam fundament entali alists sts li%e li%e 3o%er 3o%er ahe* ahe* and mem*er mem*erss from from other other religi religions ons.. )hough )hough it did get suppor supportt from from the "hairm "hairman an of the raft "ommit "ommittee tee and father father of our "onst "onstitu itutio tion n r. r. +.R. +.R. m*ed% m*ed%ar ar along along with with some some promin prominent ent $ournalists li%e G.. Iyengar, 7.M. Munshi$i and lladi 7rishnaswamy Iyer amongst others to name a few. )hough the "ongress had promised it would allow Muslims to practice Islamic laws, there was a fear, among Muslims, of a possi*le interference with the Muslim personal laws and they contended that India would not *e the same again if '"" was to *e introduced. s a compromise, the architects of the "onstitution included the 'niform "i#il "ode under the head of irecti#e 3rinciples of tate 3olicy in rticle 55. ome distinguished mem*ers did show their dissent stating that the path towards nationhood was *eing hampered *y the #ery existence of religion8*ased personal laws. /arlier it was fa#oured to guarantee the 'niform "i#il "ode to the Indians within fi#e to ten years. ixty8three years ha#e passed and we9re still pondering o#er such a possi*ility. possi*ility. !aws relating relating to crime and punishment punishment are uniform for all citiens. citiens. o are the laws relating to commer commerce, ce, contra contracts cts and other other economi economicc affair affairs. s. 3rocedura 3rocedurall laws laws includ including ing laws laws relati relating ng e#idence e#idence etc are also uniform for e#eryone. e#eryone. !aws of taxation taxation are same for all except that it -
recognises certain religious customs pre#alent in the society, li%e Hindu 'ndi#ided :amily ;H':. )he "ourt also held that rticle 55 of the "onstitution has remained a
dead dead lett etter. er. )he then hen
"hie "hieff ?us ?ustice tice of Indi ndia @.A. "han "handr drac achu hud d
o*s o*ser#e er#ed d
that that,,
B common ci#il code will help the cause of national integration *y remo#ing disparate loyalties to
law
which
ha#e
5
conflicting
ideologiesB
fter this decision, nationwide discussions, meetings, and agitation were held. )he then Ra$i# Gandhi led Go#ernment o#erturned the hah +ano Aallamatton filed a writ petition in the year 144C stating that ection 116 of the said ct was discriminatory against the "hristians as it impose unreasona*le restrictions on their donation of property for religious or charita*le purpose *y will. )he *ench comprising of "hief ?ustice of India A.N. 7hare, ?ustice .+. inha and ?ustice .R. !a%shamanan struc% down the ection declaring it to *e unconstitutional. "hief ?ustice
7hare
stated
that,
BDe would li%e to tate that rticle 55 pro#ides that the tate shall endea#our to secure for all citiens a uniform ci#il code throughout the territory of India It is a matter of great regrets that rticle 55 of the "onstitution has not *een gi#en effect to. 3arliament is still to step in for framing a common ci#il code in the country. cou ntry. common ci#il code will help the cause of o f national integration
*y
remo#ing
the
contradictions
*ased
on
ideologies.B
)hus, as seen a*o#e, the apex court has on se#eral instances directed the go#ernment to realise the directi#e principle enshrined in our "onstitution and the urgency to do so can *e inferred from the same case decision *y way of Muslim Domen ;Right to 3rotection on i#orce< ct, 146E which curtailed the right of a Muslim woman for maintenance under ection 1> of the "ode of "riminal 3rocedure. )he explanation gi#en for implementing this ct was that the upreme "ourt had merely made an o*ser#ation for enacting the '"", not *inding on the go#ernment or the 3arliament and that there should *e no interference with the personal laws unless the demand comes from within. )he second instance in which the upreme "ourt again directed the go#ernment of rticle 55 was in the case of arla Mudgal #. 'nion of India. In this case, the 2uestion was whether a Hindu hus*and, married under the Hindu law, *y em*racing Islam, can solemnise second marriage )he "ourt held that a Hindu marriage solemnised under the Hindu law can only *e dissol#ed on any of the grounds specified under the Hindu Marriage ct, 14>>. "on#ersion to Islam and Marrying again would not, *y itself, dissol#e the Hindu marriage under the ct. nd, thus, a second marriage solemnised after con#erting to Islam would *e an offence under ection 545 of the Indian
3enal
>
"ode.
?ustice 7uldip ingh also opined that rticle 55 has to *e retrie#ed from the cold storage where it is lying since 1454. )he Hon9*le ?ustice referred to the codification of the Hindu personal law and
held,
BDhere more than 60 percent of the citiens ha#e already *een *rought under the codified personal law there is no $ustification whatsoe#er to %eep in a*eyance, any more, the introduction of
the
Funiform
ci#il
code9
for
all
the
citiens
in
the
territory
of
India.B
)he upreme "ourt9s latest reminder to the go#ernment of its "onstitutional o*ligations to enact a '"" came in ?uly 00- when a "hristian priest %noc%ed the doors of the "ourt challenging the "onstitutional #alidity of ection 116 of the Indian uccession ct. )he priest from 7erala, ?ohn Aallamatton filed a writ petition in the year 144C stating that ection 116 of the said ct was discriminatory against the "hristians as it impose unreasona*le restrictions on their donation of property for religious or charita*le purpose *y will. )he *ench comprising of "hief ?ustice of India A.N. 7hare, ?ustice .+. inha and ?ustice .R. !a%shamanan struc% down the ection declaring
it
to
*e
unconstitutional.
"hief
?ustice
7hare
stated
that,
BDe would li%e to tate that rticle 55 pro#ides that the tate shall endea#our to secure for all citiens a uniform ci#il code throughout the territory of India It is a matter of great regrets that rticle 55 of the "onstitution has not *een gi#en effect to. 3arliament is still to step in for framing a common ci#il code in the country. cou ntry. common ci#il code will help the cause of o f national integration *y remo#ing the contradictions *ased on ideologies.B Note Note-- Goa is the only state in India that regardless of religion has an active and enforced
Uniform Civil Code (UCC) for all citizens even though India has different civil laws for different reli religio gious us commun communiti ities. es. The Portug Portugues uesee Civil Civil Code Code that that remai remains ns in force force even even today today was introduced
in
the
1th
century
in
Goa
and
wasn!t
re"laced ced
after
li#eration.
The Uniform civil code in Goa is a "rogressive law that allows e$ual division of income and "ro"erty regardless regardless of gender #etween hus#and and wife and also #etween children. %very #irth& death
and
marriage
has
to
E
#e
com"ulsorily
registered.
'or divorce there are severe "rovisions. uslims "rovisions. uslims that that have their marriages registered in Goa cannot tae more than one wife or divorce #y "ronouncing *tala* thrice. +uring the course of marriage all the "ro"erty and wealth owned or ac$uired #y each s"ouse is commonly held #y the cou"le. %ach s"ouse in case of divorce is entitled to a half share of the "ro"erty and if one dies& the
ownershi"
over
half
of
the
"ro"erty
is
retained
#y
the
other.
,ccording to the Uniform Civil Code even if the children (#oth male and female) have got married and left the house& the other half has to #e divided e$ually among them. Thus the "arents cannot disinherit the children totally as they can dis"ose only half of the "ro"erty in a will will and and the the rest has has to #e com" com"ul ulso sori rily ly and and e$ua e$uall llyy shar shared ed amon amongs gstt the the chil childr dren en..
)hus, as seen a*o#e, the apex court has on se#eral instances directed the go#ernment to realise the directi#e principle enshrined in our "onstitution and the urgency to do so can *e inferred from the same.
'%ect% of ucc8omen ri;ht%- one of the most discussed topic these days is women rights and e2uality. •
:or far too long women ha#e *een #ictimied and $ustice has *een denied to them under the pretence of personal law. 3ersonal laws of all religions discriminate discriminate against women on matters of marriage, di#orce, inheritance and so on. )here is an urgent need to cull out the $ust and e2uita*le e2uita*le laws of all religions religions and form a *lueprint *lueprint for a uniform uniform ci#il code *ased on gender $ustice. )he Hindu code cannot *e applied uniformly to all religions. n the other hand, triple tala2 would ha#e to go, as would polygamy and all the ad#antages ad#antages that accrue to Hindu undi#ided und i#ided families in matters of property and inheritance. >6 years is a long time for women to wait for gender $ustice. De need a de*ate on a uniform ci#il code not *ecause it is a magic wand with which all ills that *esiege women will disappear, not *ecause it will lead to integration as the sangh pari#ar claims it will unity need not imply a dra* sameness *ut *ecause it will *e an important step in •
freeing women from the shac%les of a patriarchal society. Secu"!ri%m- )he spine of contro#ersy re#ol#ing around '"" has *een secularism and the freedom of religion enumerated in the "onstitution of India. )he pream*le of the "onstitution states that India is a Bsecular democratic repu*licB )his means that there is C
no tate religion. secular tate shall not discriminate against anyone on the ground of religion. tate is only concerned with the relation *etween man and man. It is not concerned with the relation of man with God. It does not mean allowing all religions to *e practiced. It means that religion should not interfere with the mundane life of an indi#idual.
In .R. +ommai #. 'nion of India6J, as per ?ustice ?ee#an Reddy, it was held that religion is the matter of indi#idual faith and cannot *e mixed with secular acti#ities. ecular acti#ities can *e regulated *y the tate *y enacting a law. rticles >4J and E10J guarantee guarantee right to freedom freedom of religion. religion. rticle rticle > guarantees guarantees to e#ery person the freedom of conscience and the right to profess, practice and propagate religion. +ut this right is su*$ect to pu*lic order, morality and health and to the other pro#isions of 3art III of the "onstitution. '"" is not opposed to secularism or will not #iolate rticle > and E. rticle 55 is *ased on the concept that there is no necessary connection *etween religion and personal law in a ci#ilied society. Marriage, succession and li%e matters are of secular nature and, therefore, law can regulate them. No religion permits deli*erate distortion1J. )he '"" will not and shall not result in interference interference of one9s one9s religious religious *eliefs relating, mainly to maintenance, succession and inheritance. )his means that under the '"" a Hindu will not *e compelled to perform a ni%ah or a Muslim *e forced to carry out saptapadi. +ut in matters of inheritance, right to property, maintenance and succession, there will *e a common law. )he whole de*ate can *e summed up *y the $udgement gi#en *y ?ustice R.M.
ahai.
He
said,
Burs is a secular democratic repu*lic. :reedom of religion is the core of our culture. /#en the slightest of de#iation sha%es the social fi*re. +ut religious practices, #iolati#e of human rights and dignity and sacerdotal suffocation of essentially ci#il and material freedoms are not autonomy *ut oppression. )herefore, a unified code is imperati#e, *oth, for protection of the oppressed and for promotion pro motion of national unity and solidarity.B •
Codific!tion- )he *iggest o*stacle in implementing the '"", apart from o*taining a
consensus, is the drafting. hould '"" *e a *lend of all the personal laws or should it *e a new law adhering to the constitutional mandate= )here is a lot of literature churned out 6
on '"" *ut there is no model law drafted. Many thin% that under the guise of '"", the Hindu law will *e imposed on all. )he possi*ility of '"" *eing only a repac%aged Hindu law was ruled out *y 3rime Minister tal +ihari Aa$payee when he said that there will *e a new code *ased on gender e2uality and comprising the *est elements in all the personal laws. )he '"" should car#e a *alance *etween protection of fundamental rights and religious dogmas of indi#iduals. It should *e a code, which is $ust and proper according to a man of ordinary prudence, without any *ias with regards to religious or political considerations.
'n!",%i% of UCC-
Many points ha#e *een discussed in this paper regarding ucc, so let9s now analye is ucc really important== If yes, then why and if no, then why not== /nough of the case laws, citations, commentaries so far, now what I present here*y are general discussion and my personal #iews regarding ucc. o first of all, why the laws ha#e *een enacted= nd ha#e they *een impro#ing or deteriorating= Dhat I *elie#e is laws were made to maintain peace in society and to control human *eha#ior *ut the 2uestion is, Fis law really ser#ing its purpose9= I guess we all %now the answer. ur legal systems ha#e *een growing more and more complicated and we claim that we are de#eloping and society is changing e#eryday *ut still we are following laws of 14 th century. )his is the ridiculous reality of our legal system. "oming *ac% to the ucc, what is ucc= 'niform ci#il code is not a*out imposing the customs of ma$ority on minorityK it9s not against articles > of constitution. 'niform "i#il "ode tal%s a*out e2uality. s I stated earlier, imagine two citiens of same country are go#erned with different laws $ust *ecause they follow different religion or they *elong to different caste. De say that law is not selecti#e in nature *ut according to present scenario, in the eyes of law, a Muslim ha#ing four wi#es is fine *ut Hindu ha#ing four wi#es is culprit. Now the point arises if we implement ucc, there will *e pro*lems in
4
society and people will not accept it as their customs will *e affected *ut I would li%e to remind that at some point of time, e#en sati and child marriage were customs too. I %now India is a country where religion, customs and culture mean a lot to the people *ut we $ust can9t sit and watch the society deteriorating as the laws go#erning them are still of centuries ago and they are not in accordance with the present society and so it is demand of time to *ring a change in legal system and to implement the ucc *ecause it is function of tate to pro#ide $ustice to its citiens. )he implementation of ucc is not as easy as it sounds. )he interesting points to note are firstly, Hindu law is applica*le to people of many religions and it is wor%ing fine all o#er the country. econdly, ucc has already *een implemented in Goa and there are no %nown disputes or pro*lems regarding the implementation of ucc in Goa. o all these points leads us to the conclusion that ucc must *e applied to India. In addition to this, the present laws are highly against the women rights and e2uality. Imagine a guy spea%s Ftala29 to her wife - times and the di#orce is granted, e#en without the consent of wife. In this age of 1st century where women ha#e reached the moon and are competing head to head with men, they are treated li%e useless creatures *y our personal laws. Dhy can9t we ha#e a proper di#orce system when we ha#e amended so many laws $ust to ma%e them right in accordance with society. Imagine a guy who con#erts from Hindu to Muslim can now practice *igamy. It was prohi*ited for hi earlier and now it is fine $ust *ecause same person was practicing different religion *efore. ur legal system is lying so far *ehind if compared to other legal systems of the world. )a%ing a recent example of case of Haryana9s ex deputy "M "handramohan a.%.a. "hand and nuradha +ali a.%.a. fia. lready married guy "handramohan changed his religion to Islam and married second time with nuradha with his first wife ali#e and this marriage lead to nothing good *ut the death of nuradha.
10
Conc"u%ion
)he section of the nation against the implementation of '"" contends that in ideal times, in an ideal tate, a '"" would *e an ideal safeguard of citiens9 rights. +ut India has mo#ed much further from ideal than when the "onstitution was written >0 years ago. +ut to conclude, I would li%e to say that citiens *elonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nation9s unity, *ut also ma%es one wonder whether we are a so#ereign secular repu*lic or a loose confederation of feudal states, where people li#e at the whims and fancies of mullahs, *ishops and pundits. pu ndits.
11
Bibliography
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