NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI

UNIFORM CIVIL CODE - Is it a must? Is it a constitutional goal?

KENNEH JOE CLEETUS | ANUJA JACOB

INTRODUCTION: THE INDIAN BACKGROUND

The Constitution of India enacted on the 26th day of November 1949 resolved to

constitute India as a Union of States and a sovereign, socialist, secular,

democratic republic. Today, a population of over one billion Indians live in twenty

eight states and seven union territories within India. In addition, about twenty

five million Indians called non-resident Indians, reside in foreign jurisdictions.

Within the territory of India, spread over an area of 3.28 million sq.kms., the

large Indian population comprised of multicultural societies professing and

practicing different religion and speaking different local languages coexist in

harmony in one of the largest democracies in the world.

The Indian Parliament, at the helm of affairs, legislates on central subjects in the

Union and concurrent lists and state legislatures enact laws pertaining to state

subjects as per the state and concurrent lists with regard to the subjects

enumerated in the Constitution of India. Likewise, pertaining to the Judiciary,

under article 214 of the Indian Constitution there shall be a High Court for each

State and under Article 124 there shall be a Supreme Court of India. Under

Article 141 of the Constitution, the law declared by the Supreme Court shall be

binding on all Courts within the territory of India. However, the Supreme Court

may not be bound by its own earlier views and can render new decisions.

Part III of the Constitution of India secures to its citizens “fundamental rights”

which can be enforced directly in the respective high courts of the states or

directly in the Supreme Court of India by issue of prerogative writs under Articles

226 and 32 respectively of the Constitution of India. Under the constitutional

scheme, amongst others, freedom of religion and the right to freely profess,

practice and propagate religion is sacrosanct and is thus enforceable by a writ.

Simultaneously, Part IV of the Indian Constitution lays down “directive principles

of state policy” which are not enforceable by any court but are nevertheless

fundamental in the governance of the country and it shall be the duty of the

state to apply these principles while making laws. Under Article 44 of the

Constitution in this part, the state shall endeavour to secure for the citizens a

uniform civil code throughout the territory of India. However, realistically

speaking, to date, a uniform civil code remains an aspiration which India has yet

to achieve and enact.

Uniform Civil Code - Is it a must for India?

India has had a long history of personal laws. Till 1935, the Muslims in India

followed different rules according to their practice. Khoja Muslims and Kutchi

Memons are examples of this. The Kutchi Memons worshipped Hindu Gods and

Ali is their tenth avatar instead of Kalki. They had the inheritance laws as per

Hindus and also the marriage laws as per Hindus. When a common Muslim

Personal law was formed, there were many minority creeds of Muslims who had

to accept these laws though they differed from their practices. The Hindu laws,

too were different in different parts of the country. However, they have

undergone a turbulent change, courtesy, geographically united India. Child

marriages were banned, Sati was banned, widow re-marriage was encouraged,

divorce was introduced, and inheritance laws were amended. “Narabali” or

human sacrifice, which was considered a religious practice of Hindus, was also

banned.

When India attained independence and the issue of Uniform Civil Code (UCC)

arose, much was debated at the Indian Parliament in 1948. While the founding

father of our constitution and Chairman of the Constitution Draft Committee, Dr.

B.R. Ambedkar, supported by eminent nationalists like Gopal Swamy Iyenger,

Anantasayam Iyengar, KM Munshiji, Alladi Krishnaswamy Iyer and others

favoured the implementation of the Uniform Civil Code; it was strongly opposed

by Muslim fundamentalists like Poker Saheb and members from other religions.

On 23rd November 1948 a Muslim member, in Parliament, gave an open

challenge that India would never be the same again if it tried to bring in Uniform

Civil code and interfere with Muslim personal law. Earlier, the Congress had

given an assurance that it would allow Muslims to practice Islamic personal Law

and the architects of the Constitution, therefore, found a compromise by

including the enactment of a Uniform Civil Code under the Directive Principles of

State Policy in Article - 44. Distinguished members like Shri Minoo Masani, Smt.

Hansa Mehta and Rajkumari Amrit Kaur put in a note of dissent saying that one

of the factors that has kept India back from advancing to nationhood has been

existence of personal laws, based on religion, which keep the Nation divided into

watertight compartments in many aspects of life. They were strongly in favour of

the view that Uniform Civil Code should be guaranteed to the Indian people

within a period of five to ten years. But even after sixty-one years, because of

perverse secularism and perverted communalism, Uniform Civil Code has not

come into being.

Need for a Uniform Civil Code:

The need for uniform civil code has been felt for more than a century. The

country has already suffered a lot in the absence of a uniform code for all. It is

rather a pity that the longest and most elaborately written constitution in the

history of mankind, the Indian constitution is responsible for creation of erosion

in society. The society has been fragmented in the name of religions, sects and

sex. Even at present, in India, there are different laws governing rights related to

personal matters or laws like marriage, divorce, maintenance, adoption and

inheritance for different communities. The laws governing inheritance or divorce

among Hindus are thus, very different from those pertaining to Muslims or

Christians and so on. In India, most family law is determined by the religion of

the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law,

whereas Muslims and Christians have their own laws. Muslim law is based on the

Shariat; in all other communities, laws are codified by an Act of the Indian

parliament. There are other sets of laws to deal with criminal and civil cases,

such as the Criminal Procedure Code (CrPC) and the Indian penal code. The

multifarious castes and creeds and their sets of beliefs or practices are

bewilderingly confusing and nowhere is a scenario like in India, of various

personal laws jostling together, allowed.

Does India need the Uniform Civil Code? Of course, it does. Even Italy has one, as

do the rest of the developed world. It is high time that India had a uniform law

dealing with marriage, divorce, succession, inheritance and maintenance. But, it

must be realized that the scenario in India is extremely complex. India has a long

history of personal laws and it cannot be given up easily. Unless a broad

consensus is drawn among different communities, the Uniform Civil Code can’t

do much good to the country. The reality in India is much more complex than

Western societies which have been totally secularised. The need is to work on

the existing laws in such a way that they don’t go against any particular faith or

religion.

A Uniform Civil Code administers the same set of secular civil laws to govern

different people belonging to different religions and regions. This supersedes the

right of citizens to be governed under different personal laws based on their

religion or ethnicity. The common areas covered by a civil code include:

Personal Status

Rights related to acquisition and administration of property

Marriage, divorce and adoption

Uniform Civil Code will in the long run ensure Equality. While other personal laws

have undergone reform, the Muslim law has not. It perhaps makes little sense to

allow Muslims, for example, to marry more than once, but prosecute Hindus or

Christians for doing the same. Therefore, there is the demand for a uniform civil

code for all religions.

Also, UCC will help to promote Gender equality. Several liberals and women’s

groups have argued that the uniform civil code gives women more rights.

However, the opponents of UCC argue that this law is poking into their religious

practices. They feel that this code will affect the religious freedom of minorities.

One fails to understand how abiding the law of land can go against religious

principles! The claim that the sentiments of the minorities are not considered

while implementing a common law is thus beyond comprehension. UCC does not

insist people from one religion to start practicing rituals of other religions. All it

says is, with changing living styles along with the time, there should be a

Uniform Civil code irrespective of all religions as far s social ethics are

concerned.

The crusade for the implementation of the Uniform Civil Code and homogenizing

the personal laws is justified and should receive the support of all progressive

thinking Indians, not because of any bias, but because it is the need of the hour.

But it needs to come on the heels of a political consensus and that is what needs

to be evolved. It is rightly believed that the Uniform Civil Code is necessary to

effect an integration of India by bringing all communities into a common platform

which at present is governed by personal laws which do not form the essence of

any religion. India as a nation will not be truly secular unless uniformity is

established in the form of rational non-religious codified laws.

Politics apart, the case for a Uniform Civil Code - which will cover the entire

gamut of laws governing rights relating to property, marriage, divorce,

maintenance, adoption and inheritance - has been most argued on behalf of

women. There is universal agreement that personal laws, regardless of the

community, are skewed against women. In the long sittings of the Constituent

Assembly, it seems none had a notion about the injustice that was being done to

women in the name of religion as also to the majority community by retaining

certain customs among the minority communities and by giving them certain

privileges. A uniform code provides equal rights to men and women. The

absence of a uniform code is thus responsible for one calamitous vicissitude in

the nation — the subjugation of women in almost all the faiths.

One reason why personalized laws based on religion is not favoured is because

religious laws tend to be highly gender biased. Most major religions developed,

over time, a bias towards women - treating them as somewhat inferior. In

Christianity, Eve was meant to be the root cause of all evil. In Hinduism, Sati was

practiced in some communities for ages till the British formally put a stop to it.

The practice of dowry and the ill treatment of widows continue till today in many

regions. In Islam, the staunchest Muslims don’t let women travel alone, wear

something revealing or go to work. These are just a few examples of the deep

underlying biases that lie within faiths. Such practices are justified via religious

texts or customs that simply “must not be broken”. It has taken generations of

rebellion to inculcate any change within these religions. Also, religious laws

cannot be viewed objectively. They are created from sentiments regarding what

is correct according to conceptions of God. Thus to alter such a law one also has

to change perceptions regarding core religious fundamentals. As a result, true

progress in terms of equality can be hindered by many years.

Let us take a look into the case of Imrana – a 28 years old woman, and the

mother of five children. On June 6, 2005, Imrana, was raped by her 69 year-old

father in-law Ali Mohammad. Soon after she was raped, a local Muslim panchayat

(council of elders) asked her to treat her husband Nur Ilahi as her son and

declared their marriage null and void! Can any law of the land justify this?

The fact that such a verdict could take place in India in the year 2005 is insulting

to our legal system. Had she been a Hindu or Christian, such a verdict would not

have occurred, further highlighting the inequality of the situation. In India,

secularism has come to mean “non-intervening in the matter of religion.” This

needs to be relooked and debated as there cannot be any discrimination in the

guise of secularism.

The freedom to adopt any religion is enshrined in the Constitution. It seems quite

an innocent and logical right. But from it springs the natural corollary of

preaching and propagating a religion. In an educated society, it has no serious

bearings but, in an illiterate and uneducated society, it has very grave

consequences, especially when the whole game is politicized. The politicization

results in appeasing the minority by giving them certain rights ultimately to

catch their votes or to gain their sympathy. Secular India has upheld the freedom

of religion at the cost of national unity. The interpretation of laws, in the absence

of a uniform code for all religious communities debars other religious

communities from becoming a party to the case in the court in which an appeal

is made to restrain the religious heads from harassing the members of that

community. A friend, an organization, even a brother is not accepted a party

against injustice if he/she/it does not belong to that faith. The absence of a

common code has thus, deprived the people of having a common cause and is

responsible for the subjugation of reformers in the name of religion in the biggest

so-called secular nation.

Furthermore, the perception that a uniform civil code would change only Muslim

personal law is wrong, and probably came about because the Rashtriya

Swayamsevak Sangh (RSS) is the only political party that actively supports it.

Orthodox practices in Hindu personal law or Christian personal law will also have

to undergo changes. For instance, the law pertaining to succession among

Hindus is unequal in the way it treats men and women. The concept of the

“Hindu undivided family”, with respect to succession, would be changed under a

Uniform Civil Code. Christian personal law does not allow the succession of

wealth to charitable organizations. Under a Uniform Civil Code, this law may very

well be altered. This also explains why historically changes in personal law have

been resisted not just by one community, but by the ruling orthodoxy in all of

them.

Moreover, many Islamic countries have codified and reformed Muslim personal

Law to check its misuse. Muslim countries like Egypt, Turkey and even Pakistan

have reformed their laws. Terence Farias, in his chapter The Development of

Islamic Law points out that the 1961 Muslim Family Law Ordinance of Pakistan

"makes it obligatory for a man who desires to take a second wife to obtain a

written permission from a government appointed Arbitration Council." The

interesting point regarding Pakistan is that until 1947 both India and Pakistan

had governed Muslims under the Shariat Act of 1937. However, by 1961

Pakistan, a Muslim country had actually reformed its Muslim Law more than India

had and this remains true today. There is no reason why India should continue

with vastly discriminatory personal laws. In fact, the reforms meted out in Tunisia

and Turkey helped abolish Polygamy. Polygamy has also been either banned or

severely restricted in Syria, Egypt, Turkey, Morocco, Iran and even in Pakistan.

Besides Muslims who live in U.S.A., Australia, U.K. and other parts of Europe

readily accepted the civil laws applicable uniformly to all citizens in the

respective countries but do not feel insecure on that account. So, then, why, in

India should there be such a feeling? Iran, South Yemen, and Singapore all

reformed their Muslim laws in the 1970s, although Iran appears to have backslid

in this respect. In the end the argument is quite clear.

Uniform Civil Code and the Indian Constitution

No one in our country, our political leaders or individuals, have ever

concentrated their efforts towards defining the Uniform Civil Code. All we know is

that some common law covering issues relating to marriage, succession and

property is called Uniform Civil Code. Now, what does our Constitution say about

Uniform Civil Code? In article 44, our constitution clearly specifies the UCC: "The

State shall endeavour to secure the citizen a Uniform Civil Code throughout the

territory of India". The constitution is thus, very clear that unless a uniform civil

code is followed, integration cannot be imbibed. However, the fact is that it is

only a “directives principle” laid down in the constitution and as Article 37 of the

Constitution itself makes clear, the directive principles “shall not be enforceable

by any court”. Nevertheless, they are “fundamental in the governance of the

country”. This shows that although our constitution itself believes that a Uniform

Civil Code should be implemented in some manner, it does not make this

implementation mandatory. Hence, the debate on having a uniform civil code for

India still continues. The demand for a uniform civil code essentially means

having one set of laws that will apply to all citizens of India irrespective of their

religion. Though the exact contours of such a uniform code have not been spelt

out, it should presumably incorporate the most modern and progressive aspects

of all existing personal laws while discarding those which are retrograde.

UNIFORM CIVIL CODE: AN ASPIRATION OR AN ILLUSION

Article 44 of the Constitution of India requires the state to secure for the citizens

of India a Uniform Civil Code throughout the territory of India. As has been

noticed above, India is a unique blend and merger of codified personal laws of

Hindus, Christians, Parsis and to some extent of laws of Muslims. However, there

exists no uniform family related law in a single statutory book for all Indians

which is universally acceptable to all religious communities who co-exist in India.

Indian Case Law: Directions to enact a Code.

The Supreme Court of India for the first time directed the Indian Parliament to

frame a Uniform Civil Code in 1985 in the case of Mohammad Ahmed Khan

Vs. Shah Bano Begum reported as All India Reporter 1985 SC 945. In this

case a penurious Muslim woman claimed maintenance from her husband under

Section 125 of the Code of Criminal Procedure after her husband pronounced

triple Talaq (divorce by announcing the word “Talaq” thrice). The Apex Court

held that the Muslim woman had a right to get maintenance under Section 125

of the Code and also held that Article 44 of the Constitution had remained a dead

letter. To undo the above decision, the Muslim Women (Right to Protection on

Divorce) Act, 1986 which curtailed the right of a Muslim Woman for maintenance

under Section 125 of the Court was enacted by the Indian Parliament.

Shah Bano Case: Case Study - In the late 1980’s, an old and penurious

woman, Shah Bano had knocked on the courts for justice after she felt she was

wronged in the way her husband divorced her. She demanded alimony from her

husband, who had abandoned her for another woman. According to Muslim law,

Shah Bano was entitled to three months' maintenance after over 40 years of

marriage. Years later the Supreme Court heard the matter and upheld her right

to maintenance. While doing so, the court also referred to the need to enact a

uniform civil code. An open and shut case, it should seem, but for the Bench's

reference to the need for enacting a Uniform Civil Code since after all it was part

of the Directive Principles enshrined in the Constitution which the nation was

duty-bound to implement -- in due course. This seemingly innocuous event was a

crucial moment in the nation's history. It sparked off a huge protest among

Muslim leaders who accused the judiciary of interfering in their personal laws.

Thereafter, in the case of Sarla Mudgal Vs. Union of India reported as All

India Reporter 1995 SC 1531, the question which was raised was whether a

Hindu husband married under Hindu law can, by embracing Islamic religion,

solemnize a second marriage. The Supreme Court held that a Hindu marriage

solemnized under Hindu Law can only be dissolved under The Hindu Marriage Act

and conversion to Islam and marrying again would not by itself dissolve the

Hindu marriage. Further, it was held that a second marriage solemnized after

converting to Islam would be an offence of bigamy under Section 494 of the

Indian Penal Code. In this context, the views of Mr. Justice Kuldip Singh are

pertinent:

“Where more than 80 percent of the citizens have already been brought

under the codified personal law there is no justification whatsoever to

keep in abeyance, any more, the introduction of the ‘Uniform Civil Code’

for all the citizens in the territory of India.”

Thus, the Supreme Court reiterated the need for Parliament to frame a common

civil Code which will help the cause of national integration by removing

contradictions based on ideologies. The Directive Principle of enacting a uniform

civil Code has been urged by the Apex Court repeatedly in a number of decisions

as a matter of urgency. Unfortunately, in a subsequent decision reported as Lily

Thomas Vs Union of India, 2000(6)Supreme Court Cases 224, the Apex

Court, dealing with the validity of a second marriage contracted by a Hindu

husband after his conversion to Islam, clarified that the court had not issued any

directions for the codification of a common civil code and that the judges

constituting the different benches had only expressed their views in the facts

and the circumstances of those cases. Even the lack of will to do so by the Indian

government can be deciphered from the recent stand stated in the Indian press.

It has been reported in the Asian Age dated August 5, 2006, by the Press Trust of

India (the Official Government News Agency) that the Indian government does

not intend to bring legislation to ensure a uniform civil code because it does not

want to initiate changes in the personal laws of minority communities. However,

this ought not to deter the efforts of the Supreme Court of India in issuing

mandatory directions to the central government to bring a common civil Code

applicable to all communities irrespective of their religion and practices in a

Secular India.

Hopefully, the Apex Court may review its findings in some other case and issue

mandatory directions to the central government to bring a Common civil code

applicable to all communities irrespective of their religion.

Secularism and The Uniform Civil Code:

The Preamble of the Indian Constitution resolves to constitute a “Secular”

Democratic Republic. This means that there is no State religion and that the

state shall not discriminate on the ground of religion. Articles 25 and 26 of the

Constitution of India as enforceable fundamental rights guarantee freedom of

religion and freedom to manage religious affairs. At the same time Article 44

which is not enforceable in a Court of Law states that the state shall endeavour

to secure a uniform civil code in India. How are they to be reconciled. What will

be the ingredients of a uniform civil code. Since the personal laws of each

religion contain separate ingredients, the uniform civil code will need to strike a

balance between protection of fundamental rights and religious principles of

different communities. Marriage, divorce, Succession, inheritance and

maintenance can be matters of a secular nature and law can regulate them.

India needs a codified law which will cover all religions in relation to the personal

laws of different communities.

Critics of the uniform civil code think that the true principles of Muslim law

remain eclipsed by its extensive alleged misreading over the years. It is

suggested by Tahir Mahmood, an eminent scholar in his article in The Hindu

dated July 30, 2006 titled, “Muslim Personal Law : Clearing The Cobwebs” that

“an Indian Code of Muslim Law based on an eclectic selection of principles from

the various schools of Shariat is the ideal solution to all the contemporary

problems of Muslim Law”. In another report dated May 11, 2006 in The Hindu, it

has been reported that the Supreme Court of India dismissed a public interest

litigation petition challenging the legality of the customs of polygamy, talaq and

divorce practiced by Muslims under personal laws. The plea for a direction to the

Central Government to make Uniform Marriage Laws for all communities was

rejected on the ground that it is for Parliament to change or amend the law.

Thus, the debate is endless and the issue remains unresolved.

To sum up, it can be concluded that for citizens belonging to different religions

and denominations, it is imperative that for promotion of national unity and

solidarity a unified code is an absolute necessity on which there can be no

compromise. Different streams of religion have to merge to a common

destination and some unified principles must emerge in the true spirit of

Secularism. India needs a unified code of family laws under an umbrella of all its

constituent religions. Whether it is the endeavour of the State, the mandate of

the court or the Will of the people is an issue which only time will decide.

Judicial Activism in Family Laws: A Turning Point.

A series of decisions by the Supreme Court of India in the areas of family laws in

the recent past has gone to show that the Apex Court is motivating a lot of

positive and well meaning reforms which have become necessary over a period

of time. Three recent decisions of the Apex Court can be cited in support of this

proposition:

In, In Re: Enforcement and Implementation of Dowry Prohibition

Act,1961, reported as Judgments Today 2005(5) SC 71, the Apex Court

directed the Indian central and state governments to implement all the interim

directions issued by the Supreme Court earlier and take effective steps for

framing rules and enforcing the provisions of the Dowry Prohibition Act, 1961 by

devising measures to create honest, efficient and committed machinery for the

purposes of the implementation of this Act.

In Sushil Kumar Sharma Vs Union of India and others, reported as

Judgements Today 2005(6) SC 266, the Apex Court, upholding the

constitutional validity of Section 498A of the Indian Penal Code, held that the

object of Section 498A is prevention of dowry menace and to check cruelty and

harassment of women. Therefore, the court concluded the provision does not

offend the Constitution of India.

In St. Theresa’s Tender loving Care Home Vs State of Andhra Pradesh

reported as Judgments Today 2005(9) SC11, the court held that the workings

of the homes run by state governments for abandoned and destitute children

and the process of offering them for adoption need to be seriously improved and

the central and state governments would do well to look at these problems with

the humanitarian approach and concern they deserve.

However, the Supreme Court has also tested various aspects of personal laws on

the touchstone of fundamental rights. In Gita Hariharan Vs Reserve Bank of

India reported as 1999(2) Supreme Court Cases 228, the Supreme Court

interpreted Section 6 of The Hindu Minority and Guardianship Act, 1956 to mean

that the mother is also a natural guardian and irrespective of whether the father

was unfit or not, the mother should also be given equal rights as a natural

guardian. In John Vallamattom vs. Union of India, All India Reporter 2003

SC 2902, Section 118 of the Indian Succession Act was struck down as

unconstitutional, as it was held to be discriminatory against Christians in

imposing unreasonable restrictions on the donation of their property for religious

or charitable purposes by Will. In Danial Latifi Vs Union of India reported as

2001(7) Supreme Court Cases 740, a Constitutional Bench of the Supreme

Court gave a categorical finding that in view of their interpretation of the Muslim

Women (Protection of Rights on Divorce) Act, 1986, the provisions of the Act

were not in violation of Articles 14 and 21 of the Constitution, which fundamental

rights guarantee equality of law and right to life and personal liberty.

The views of the Indian Apex Court on the issue of registration of marriages, inter

caste marriages, child marriages, Dowry Prohibition Act, irretrievable breakdown

of marriage, uniform civil code and a secular approach have already been

referred to earlier. A legislative setup which is slow to respond to societal

changes and a proactive judiciary which is keen to motivate reforms in law is

therefore clearly visible on the Indian horizon. Even in matters affecting

environment, pollution and health of people, the role of the judiciary in India has

been very constructive. The vibrant, dynamic and open jurisprudential system in

India is amenable and flexible to changing needs of people. We could therefore

well have reform in family law with the views of the court even if there is

opposition from religious communities in respect of personal laws. If a uniform

civil Code does not come as a result of legislation, decisions of courts will always

suggest reforms to improve the plight of children and women who are affected

the most. The Indian judiciary indeed deserves to be hailed in this regard for its

yeoman efforts in this regard, or the welfare of Indians

The Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) is a unique

international convention in that it was based on the need for special formulation

that would assert, protect and promote women’s human rights. The Convention

expressly states that discrimination against women is socially and culturally

constructed and encompasses public and private spheres, thereby bringing

within its fold the domain of the family. An important feature of the CEDAW has

been to fix responsibility upon the state for actions of private actors, particularly

when such actions constitute a systematic pattern of violations within the

community. This is because gender-discrimination has socio-cultural

underpinnings and is practiced by private actors. The State’s reluctance to

intervene in such patterns of discrimination would amount to a condonation of

the violations. The CEDAW has contributed significantly in setting new normative

standards for human rights law and practice but it is regrettable that CEDAW has

the distinction of being the most reserved human rights convention today, i.e.

state parties have modified or waived obligations in relation to certain parts of

the treaty by means of reservation clauses.

India too has ratified CEDAW with a declaration to limit its obligations relating to

changing the discriminatory cultural practices within the community and the

family. Hence, with regard to articles 5(a)1 and 16(1)2 of the Convention, the

1 Article 5(a) reads: States Parties shall take all appropriate measures: To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;2 Article 16(1) reads: States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

India declares that “it shall abide by and ensure these provisions in conformity

with its policy of non-interference in the personal affairs of any Community

without its initiative and consent”. India’s reservation is an unqualified

exemption from state interference into customary practices and it also fails to

specify a time frame. This reservation can only be construed as being

inconsistent with the objectives and purpose of the Convention and an indication

of the utter lack of political will on part of the Indian state, even in face of

international duties and obligations, to bring about an egalitarian, uniform civil

law in the country.

Position of UCC under Indian Constitution: a critical review.

Under the Preamble to the Constitution of India the people of India have

solemnly resolved to secure all its citizens, besides, social, economic and

political justice; equality of status and opportunity, assuring the dignity of the

individual and the unity and integrity of the nation. Article 14 (as a fundamental

right) guarantees equality before the laws and equal protection of laws. Under

the Article 15 it is guaranteed that the State shall not discriminate against any

citizen on grounds of religion, caste, sex etc. Article 13 provides that all laws in

force in the territory of India before the commencement of the constitution, so

far as they are inconsistent with the provisions of this part, shall, to the extent of

such inconsistency be void. And Article 44 of the Directive Principles of State

Policy provides that the State shall endeavour or secure for the citizens a

Uniform Civil Code throughout the territory of the country. In view of the above

provisions the questions arise as to whether a Mohammedan woman married or

divorced who is a citizen of India gets equality of status and dignity, treated

equally before the laws and not discriminated only on the ground of sex, under

the Muslim Personal Law (Shariat) Application Act, 1937 and whether the same is

not inconsistent with the fundamental rights guaranteed under the Constitution

and not void under Article 13 of the Constitution? If so, how long should the

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

country wait to enact a Uniform Civil Code to secure and protect all that and the

unity and the integrity of the nation?

CONCLUSION:

A net analysis of the various propositions and viewpoints discussed above drives

home the ideal solution that for Indians there is needed one indigenous Indian

law applicable to all its communities which coexist democratically. Analytically

speaking, the answers to the social issues discussed above are within the

system. Codification of a unified civil code may be the ultimate solution. Other

measures will only tide over time. Judicial verdicts will keep the momentum

going. Accommodating personal laws of all religions under such a code is an

uphill task. It may take time. The legislature will ultimately have to perform this

onerous duty of drafting the Code.

Religion will have to keep pace with law. Unity in India exists in its diversity.

Times have moved ahead, but personal laws have not kept pace. The courts in

India perform a Herculean task in carving out solutions on a case to case basis.

The executive and the legislature arms of the government in India however now

need to contribute to provide the much needed solutions. In the e-age today, the

path to progress must be chartered with harmony at home. As the largest

democracy in the world, India has an opportunity to be a role model in various

aspects of family laws. Maybe, with further changes and amendments in some

aspects, a better role model to emulate may emerge in the Indian sub continent.