Human Rts Law

8/18/2019 Human Rts Law

1/15

DECLARATION

I, Vishaka Pundeer, Enrolment No 13LLB027, pursuing LLB (H from I!" #NI"ON

#NIVER"IT$ confirms that this work submitted for assessment is my own and is expressed in

my own words. Any uses made within it of the works of any other author or authors in any form

are properly acknowledged at the point of their use. A full list of the reference employed has

been included.

DATE !ishaka "undeer

#$%%&'()

1 | P a g e


2/15

AC%NO&EL'!ENT

It is my pri*ilege to carry on this research under the guidance of !s "na)i R* Chaudhar*

(Assis+an+ ,r-essr. I con*ey my deep sense of gratitude indebtedness for her continuous

support, encouragement and guidance during the course of this study and in the preparation of

the manuscript of this assignment. I am thankful for her insightful suggestions and continuous

guidance.

!ishaka "undeer #$%%&'()

2 | P a g e


3/15

CONTENT

INTROD#CTION

NEED /OR #NI/OR! CIVIL CODE

#NI/OR! CIVIL CODE AND "EC#LARI"! A DEBATE "I!PLICIT$ IN LA&

PO"ITION O/ LE'I"LAT#RE

"#CCE""ION AND INHERITANCE AND !AINTAINENCE

#NI/OR! CIVIL CODE A CALL /RO! THE INDIAN #DICAIR$

I!PLE!NTATION AT "TATE LEVEL

CONCL#"ION

BIBLIO'RAPH$

INTROD#CTION

3 | P a g e


4/15

+The personal law of the indus, relating to marriage, succession and the like has all a sacramen-

tal origin, in the same manner as in the case of the uslims or the /hristians. The indus along

with 0ikhs, &uddhists and 1ains ha*e forsaken their sentiments in the cause of the national unity

and integration, some other communities would not, though the /onstitution en2oins the

establishment of a 34niform ci*il /ode3 for the whole of India5. The personal laws of the ma2or

religious communities had traditionally go*erned marital and family relations, with the 6o*ern-

ment maintaining a policy of non-interference in such laws in the absence of a demand for

change from indi*idual religious communities. India is a land of di*erse religions in-

dus, &uddhists, 1ains, /hristians, uslims, "arsees, and 0ikhs form the nation. 4nity in di*ersity

is the core feature of the Indian nation. Each community has its own laws go*erning marriage

and di*orce, infants and minors, adoption, wills, and succession. These personal laws go with an

indi*idual across the states of India where they are part of the law of the land, and the indi*idual

is entitled to ha*e that indi*idual7s own personal law applied and not the law which would be ap-

plied in the local territory. "ersonal laws are statutory and customary laws applicable to particu-

lar groups within a local 2urisdiction. They go*ern family relations in such matters as marriage

and di*orce, maintenance and succession. India is a secular country where e*ery community is

allowed its own personal laws. /hristians ha*e the Indian /hristian arriage Act, #8)( and the

Indian Di*orce Act #89:; indus ha*e the indu 0uccession Act, #:(< and the indu arriage

Act, #:uote /haudhary yder usain, a prominent uslim law-

4 | P a g e


5/15

yer, +%i*ing under the &ritish rule for about two centuries we@*e come to consider it only natural

for indus to be go*erned by indu %aw and uslim to be go*erned by uslim %aw; but it is

wholly a medie*al idea and has no place in the modern world...I would therefore strongly urge

the necessity of ha*ing one single code to be named as Indian /i*il /ode applicable to e*ery-

body li*ing within the territory of India irrespecti*e of caste, creed or religion persuasion. This is

the 2uristic solution to communal problem. It appears to be absolutely essential in the Interest

of the unification of the country for building up one single nation with one single set of laws in

the country.5Article of the Indian /onstitution re>uires the 0tate to secure for its citi=ens a

4niform /i*il /ode throughout the territory of India. The term ci*il code issued to co*er the en-

tire body of laws go*erning rights relating to property and personal matters such as marriage, di-

*orce, maintenance, adoption and inheritance. The ob2ect of this code is to enhance national

integration by eliminating contradictions based on ideologies. It aims to bring all communities on

a common platform on matters which are currently go*erned by di*erse personal laws. owe*er,

e*en after 9' years of independence, our law makers are yet to gi*e effect to this pro*ision. This

article focuses on

• The status of the implementation of a 4niform /i*il /ode and,

• The steps taken and directed to be taken by the %egislature and 1udiciary in this regard

NEED /OR #NI/OR! CIVIL CODE

Curs is a country with se*eral different religions and belief systems. The accepted principle

of law is that personal belief systems and laws must be in conformity with the /onstitution and

5 | P a g e


6/15

not the other way round. Article (< of the /onstitution guarantees to e*ery person the freedom

of conscience and the right to profess practice and propagate religion. Article (9 of the /onstitu-

tion guarantees to e*ery religious denomination the right to manage its own affairs in the matters

of religion. No set of laws can *iolate these Articles, which essentially protect the religious free-

dom of different person or communities. ?e are thus presented with a situation that seems some-

what contradictory; how can there be a uniform set of laws which protects religious freedom at

the same time The implementation of a uniform set of laws calls for discarding certain personal

laws which go against society@s general outlook as a whole, and this may amount to *iolation

of the abo*e mentioned Articles of the /onstitution. ?ith multiple belief systems, come multiple

ideological conflicts. To li*e together in concurrence with such di*ersity, we need to ha*e unifor-

mity at some le*el so as to a*oid such conflicts. ?hat we need is a 4niform /i*il /ode in the

form of a sophisticated, harmoni=ed system of legal regulation that maintains and skillfully uses

the input of personal laws and yet achie*es a measure of legal uniformity. As long as the code

does not go against the essence i.e. the core or fundamental belief of any particular religion, it

will not go against the religious freedom guaranteed by the constitution. The 4// has been

permanently associated in Indian mind with opposition to uslim. It was rightly pointed out in

the constituent assembly that all indus were in fa*or of 4//. They felt that the personal law of

inheritance, succession, etc. is really a part of their religion. If that were so, Indian women can

ne*er be gi*en e>uality with a man who is enshrined in art. # of the /onstitution. Art. #uality can

ne*er be attained among men and women. Beligion must be restricted to religion only and the

secular acti*ities attached to the religion must be regulated, unified, modified for strong and

consolidated nation. The present uslim law women if personal law is considered as a part of

their religion. To ele*ate the position of Indian women and pro*ide them e>uality, India is badly

needed of a 4// for all Indians.

#NI/OR! CIVIL CODE AND "EC#LARI"! A DEBATEThe 6o*ernment, the press, the politicians, the academics and e*en the minority organi=ations-

none of them has taken any sort of acti*e interest in the 4//. Thus we could easily infer from

the attitude of people pre*ailing these days that this concept has been ignored and at worst they

ha*e spread false information and impression about it. &ut, if we see today@s scenario then India

6 | P a g e


7/15

is more communali=e then it was in #:), so we should reali=e that the concept of 4//

had become *ery important and need immediate concern. "eople, who were the founding fathers

of constitution as well as non-uslims thought that a uniform ci*il code was necessary for

our national unity and secularism. &ut along with them there are also few people who disagree

about this concept like "rof. "aras Diwan says The uniform ci*il code has nothing to do with

national integration or interfering with the religion of one community or the other.

"I!PLICIT$ IN LA&4niform ci*il code pro*ides clarity which arises out of simplicity. Different religions had made

the legal system a ma=e by creating rights for indi*iduals in some ways and taking them in

another way depending upon the religion they follow. Thus to create clarity forth rights a*ailable

to all indi*idual uniformly, there is a re>uirement of uniform ci*il code.

PO"ITION O/ LE'I"LAT#REThe >uestion of implementation of a common /i*il /ode has been raised mainly with regard to

matters where, the personal laws of a religious community ha*e been challenged in the court

of law as being *olatile of the /onstitution or against general public interest. Cur law makers

ha*e generally shied away from legislating on such points of personal law as are considered to be

of contro*ersial or sensiti*e nature, for fear such legislation being labeled as an intrusion on the

abo*e rights thereby resulting in strong backlash. This became e*ident from the reaction to

the 2udgment of the 0upreme /ourt in the "hah Ban ase which ga*e a di*orced uslim wo-

man the right to claim maintenance e*en after the period of iddat. If the amount known as meher,

paid to her on di*orce was not sufficient for her li*elihood, she could claim maintenance under

0.#(


8/15

uniform law regarding adoption applicable to all communities since Islam does not recogni=e

adoption. Due to this opposition, the bill was subse>uently dropped and reintroduced in

#:8'with an express clause of non-applicability to uslims. This was again opposed, this time

by the &ombay Goroastrian 1ashan /ommittee, which formed a special committee to exempt "ar-

sis from the bill. The Adoption of /hildren &ill, #::uality to the indi*idual will not fulfill the *ery ba-

sic purpose of the /onstitution. It will create such a situation in which a person ha*e the power

to go to courts for infringement of his rights but the basis of this infringement is e>uality itself

which is not pro*ided to indi*idual. Along with the abo*e reasons the undamental Bights

which are considered to be the basic structure of the /onstitution will also not be pro*ided to the

indi*idual under the garb of different personal laws. There will be infringement of Articles like

#, #uality like Article #< prohibits discrimination

on the grounds only of religion, race, caste, sex or any of them. Article #9 talks about e>uality in

matters of public employment. Thus the *ery purpose of these Articles will not be fulfilled if the

different personal will keep on pre*ailing as they pro*ide different treatment to indi*iduals

within accordance with the religion they follow.

"#CCE""ION AND INHERITANCE

8 | P a g e


9/15

This area throws up e*en more intractable problems. In indu law, there is a distinction between

a 2oint family property and self ac>uired property which is not so under the uslim law. The

indu 4ndi*ided amily 4F, formed under the indu law, run businesses and own agricul-

tural lands. 4nder the 4//, this institution of 4, peculiar to the indus, has to be abolished.

There are also fetters imposed on the extent to which one can be>ueath property by will under

the uslim law. /onsidering all these, the 4// should be included. The law which is applicable

on "arsi and /hristian with regard to the succession i.e. The Indian 0uccession Act, #:(< should

be considering while framing 4// for 0uccession laws in India. Thus due to all abo*e reasons it

is felt that the formation of 4niform /i*il code is the prime necessity in today@s time for our na-

tion. %astly, a *ery real fear has begun to make itself felt, which is that if we do not make efforts

now to mo*e towards the 4//, and as the ma2ority loses patience, we shall lose the littlie ground

that we ha*e gained.

Ardin + +he Hindu Ad,+ins and !ain+enane455

"e61 !ain+enane - 8i-e6

#F 0ub2ect to the pro*isions of this section, a indu wife, whether married before or after the

commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(F A indu wife shall be entitled to li*e separately from her husband without forfeiting

her claim to maintenance,-aF if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and

without her consent or against her wish, or of willfully neglecting her;

bF If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that

it will be harmful or in2urious to li*e with her husband;

cF If he is suffering from a *irulent form of leprosy;

dF If he has any other wife li*ing;eF If he keeps a concubine in the same house in which his wife is li*ing or habitually resides

with a concubine elsewhere;

fF If he has ceased to be a indu by con*ersion to another religion;gF If there is any other cause 2ustifying her li*ing separately

$F A indu wife shall not be entitled to separate residence and maintenance from her husband

if she is unchaste or ceases to be a indu by con*ersion to another religion

According to indu marriage act-

0ec- ( aintenance "endent late and expenses proceedings.?here in any proceeding under this Act it appears to the court that either the wife or

the husband, as the case may be, has no independent respondent, it may seem to the court to be

reasonable ?here it appears to /ourt that the wife or the husband, as the case may be, has no

9 | P a g e


10/15

independent income sufficient for her support and the necessary expenses of the proceedings, it

may grant interim maintenance to the wife.F

"e 29 Per:anen+ a)i:n* and :ain+enane

#FAny court exercising 2urisdiction under thisAct may, at the time of passing any decree or at an

y time subse>uent thereto, on application made to it for the purpose by either the wife or the hus-

band, as the case may be, order thatthe respondent shall pay to the applicant for her or his mainte

nance and support such grosssum or such monthly or periodical sum for a term not exceeding the

life of the applicant as,ha*ing regard to the respondent7s own income and other property, if any, t

he income andother property of the applicant, the conduct of the parties and other circumstances

of the case it may seem to the court to be 2ust, and any such payment may be secured,

if necessary, by a charge on the immo*able property of the respondent.

(F If the court is satisfied that there is a change in the circumstances of either party at anytime after it has made an order under sub-section #F, it may at the instance of either party, *ary, modify

or rescind any such order in such manner as the court may deem 2ust.

$F If the court is satisfied that the party in whose fa*or an order has been made under this sec-

tion has re-married or, if such party is the wife, that she has not remained chaste, or if such party

is the husband, that he had sexual intercourse with any women outside wedlock, it may at the in-

stance of the other party *ary, modify or rescind any such order in such a manner as the court

may deem 2ust.

10 | P a g e


11/15

#NI/OR! CIVIL CODE A CALL /RO! INDIAN #DICIAR$

E*en after more than six decades from the framing of the constitution, the ideal of 4// un-

der article is yet to be achie*ed. owe*er, efforts in this discretion continued as reflected in

*arious pronouncements of the supreme court from time to time The 0upreme /ourt seems to

ha*e a di*ided opinion on the introduction of a 4niform /i*il /ode. Cn one hand, it has re2ected

attempts to do so through public interest litigation but on the other, it has recommended early

legislation for its implementation.

• In !ha::ad Ah:ed %han ;5 "hah Ban Beu:,

"opularly known as the 0hah &ano case, the 0upreme /ourt

held that +It is also a matter of regret that Article of our /onstitution has remained a dead let-

ter.5 Despite section #() of /r."./. #:)$which pro*ides that if a woman has recei*ed an amount

under personal law, she would not be entitled to maintenance under section #(< of /r."./ #:)$F.

uslim women will be entitled to maintenance if the dower recei*ed under her personal law is

not sufficient for her sustenance. %ater on under pressure of uslim fundamentalist

go*ernment passed the uslim women@s "rotection of Bights on Di*orceF Act, #:89, which

denied right of maintenance to uslim women under section #(< of /r. "./. The acti*ists rightly

denounced that it was doubtless a retrograde step. That also showed hoe women@s rights ha*e a

low priority e*en for the secular state of India. Autonomy of a religious establishment was thus

made to pre*ail o*er women@s rights.

In "ar)a !uda) (":+5. Presiden+. %a)*ani and +hers ;5 #nin - India and +hers

"rime inister of the /ountry to ha*e a fresh look at

Art. of the /onstitution of India and endea*or to secure for its citi=ens a 4// throughout

the territory of India. e also suggested the appointment of a committee to enact a /on*er-

sion of religion Act. B.. 0hahai, 1., while agreeing with Juldip 0ingh, 1., too agreed that

Curs is a 0ecular, Democratic, Bepublic. reedom of religion is a core of our culture. &ut

religious practices, *iolati*e of human rights and dignity and sacerdotal suffocation of

essentiality ci*il and material freedoms, are not autonomy but oppression.

11 | P a g e


12/15

In Dania) La+i-i and an+her ;5 #nin - India

The court upheld the *alidity of 0ections $ and of the

uslim?omen "rotection of rights on Di*orceF Act, #:89, as not being *iolati*e of articles #,

#< and (# of the /onstitution of India. 4nder section $ of the uslim ?omen "rotection

of rights on Di*orceF Act, #:89, a uslim husband is liable to make reasonable and fair pro*i-

sion for future of di*orced wife which includes maintenance also, so she is not entitled to claim

maintenance under section #(< of /r."./. 4nder section of the Act, di*orced uslim woman

unable to maintain herself after iddat period can precede against her relati*es or wakf &oard for

maintenance.

• In Panna)a) Bansi)a) ;5"+a+e - Andhra Pradesh.

It was held that a uniform law though highly desirable, the

enactment thereof in one go may be counter-producti*e to the unity and integrity of the nation.

6radual progressi*e change should be brought about. 0imilarly,

• In !aharishi A;adhesh ;5 #nin - India,

The 0upreme /ourt dismissed a writ petition to introduce

a common /i*il /ode on the ground that it was a matter for the legislature and in Ahmadabad

?omen Action 6roup *. 4nion of India , the 0upreme /ourt showed reluctance to interfere in

matters of personal law.

I!PLE!ENTATION B$ "TATE%e*el Analysis E*en though a nation-wide /i*il /ode is not yet in place, a positi*e step in this

direction has already been taken. The state of 6oa has enacted a setoff Hamily %aws@,

12 | P a g e


13/15

?hich is applicable to all communities; indus, /hristians, uslims and others There is no

discrimination on the basis of religion, caste or gender. The 6oa ci*il code is largely based on the

"ortuguese ci*il code of #89), with some modifications based on the "ortuguese Decrees on

arriage and Di*orce of #:#', the "ortuguese Decrees on /anonical arriages of #:9, and the

"ortuguese 6entle indu 4sages Decrees of #88'. It includes laws go*erning marriage and di-

*orce, succession, guardianship, property, domicile, possession, etc. uslim fundamentalist sup-

posed its enactment in the early #:8's but their attempts to introduce 0haria law in 6oa were

ultimately met with defeat by liberal uslims who insisted on the continuance of the unified

ci*il code. ormer /hief 1ustice K.!./handrachud expressed hope that the 6oa /i*il /ode would

one day +awaken the rest of bigoted India and inspire it to emulate 6oa.5 There are two

important aspects of this code which assume great significance in the context of codification

of Indian lawsL /i*il registration of marriage is mandatory. Around :8 percent of 6oa marriages take place un-

der /ommunity "roperty law by *irtue of which, each spouse automatically ac>uires 2oint

ownership of all assets already in their possession as well as those due to them by inheritance.

These assets may not be disposed of or encumbered in any way by one spouse without the ex-

press consent of the other.

LThe registration of births and deaths is also mandatory. The children of deceased parents fall in

the category of mandatory heirs. They cannot be disinherited whether male or female, except un-

der extraordinary circumstances. If the deceased parent lea*es no will, all mandatory heirs are

entitled to an e>ual share of the estate of the deceased. If the deceased has made a will, he

mayonly dispose of ually among all mandatory heirs. 0uch a pro*ision ensures the 2ust

distribution of assets among all children, whether male or female.

CONCL#"IONIt can be conclude by saying that the 4// amounts to e>ual laws for all sections of society. All

the people of India must be go*erned by one set of laws. or national unity and for secularism,

4// is necessary. The plurality of laws in personal law matters is a blow and direct-

threat to national integrity and solidarity. It is worth mentioning the name of a few countries

where a 4// has been functioning successfully *i=. 6ermany, rance, 0pain /anada, 1apan,

13 | P a g e


14/15

Turkey and "ortugal@s. The go*ernment of India should take initiati*es for enacting a 4//,

which should contain the best elements of different ci*il laws of the *arious religion communi-

ties of the country and thus fulfill its positi*e obligations imposed upon it by article of the

/onstitution of India. &etween the 0upreme /ourts mixed response and the legisla-

ture@s wariness, the implementation of a national common /i*il /ode seems to be a distant

dream. It is only enlightened public opinion that will help fulfill it. /ommunal di*ides, *ote-bank

politics fundamentalism are currently barriers to its reali=ation but with time and tolerance they

can be o*ercome. ?hat must be percei*ed as a matter of defining an indi*idual rights deteri-

orates instead, into a +ma2ority *ersus minority5 issue. The welfare of the community as a whole

must be considered instead of a particular class or sect. No doubt, the reali=ation of a common

/i*il /ode is a tough 2ob, gi*en the *ast ideological di*ersity. &ut a uniform ci*il law is neces-

sary in order to be truly secular. It is our collecti*e duty as a modern society to rise abo*e cul-

tural and religious differences and gi*e effect to this constitutional mandate which is 9' years

o*erdue.

Bi


15/15

J4AB,/CN0TIT4TICNA% %A? C INDIA

15 | P a g e

Human Rts Law

Documents

Transcript of Human Rts Law