Personal Laws vis-a-vis Uniform Civil Code

Dr. Manoj Kumar Tripathi1

Ms. Shalini Shukla2

Introduction

India is a country of glorious heritage and rich custom, which embraces a variety of

cultures and traditions and languages. Intrinsic unity arising out of plurality of this country is real

strength. This extrinsic plurality and diversity is an outcome of numerous dividing forces like

region, religion, caste, creed language, habitat, living conditioned. Our constitution gives utmost

importance to protecting this intrinsic unity in diversity of our nation. After independence

Indians endured the most fateful incident resulting in drastic changes in their lives – the partition

of the country on the basis of the religion. It was the biggest task of the nascent India to protect

its unity which was really difficult in such adverse country. Although during the framing of our

constitution the word secular was not inserted in its preamble however secularism was

omnipresent. The fundamental rights of Indian citizen are enshrined in part III of the

constitution, which largely revolve around the idea of secularism. The word secular was inserted

in the preamble by 42nd

amendments the major constituting objective of this nation but it is an

undeniable reality that secularism is not just an integral part of the basic structure of our

constitution; rather it is driven by natural instinct.

The term secular was added in order to put additional emphasis on the secular status of

Indian for the omission of any possible confusion among people, against the rising undercurrent

of communalism, which gradually emerged after the bitter occurrences during the indo-Pak

separation. However, India unlike Pakistan and several other countries of the world never opted

for an official religion for the state .Secularism pervades the constitution provisions, which give

full opportunity to all persons to profess, practice and propagate the religion of their choice.

The constitution not only guarantees a person‘s freedom of religion and conscience, but

also restraints the state from making any discrimination on the ground of religion .one nation

,one constitution, one citizenship, one national language ,one national anthem are some of the

features of our constitution. Whenever the issues of secularism and national integrity comes up

for discussion, the debate on UCC always springs up.‘ Freedom of religion ‗is a fundamental

right. UCC in legal parlance means ―administration of same set of civil laws to govern all people

1 Dr.Manoj Kumar Tripathi, ,Associate Professor in Political Science, Faculty of Law, Swami Vivekanad Subharti

University, Meerut, U.P. Email Id ; manojbprd@gmail.com

2 Ms. Shalini Shukla, Assistant Professor , Faculty of Law, Swami Vivekanad Subharti University, Meerut, U.P.

Email Id ; shukla.shalini2190@gmail.com;

without any discrimination of religion‖ wherein all personal law will be governed by their own

religious personal laws. In facts, such code is accepted and adopted in most nations. The

common areas covered by UCC include-marriage, divorce and adoption, personal status Right

now save and except Muslim community which is still governed by uncodified and scattered

principle of Shariah, all other religious communities have codified laws, enacted by Indian

parliament. Lack of common code adversely affects the Muslim women.

CONSTITUENT ASSEMBLY DEBATES AND UNIFORM CIVIL CODE

Personal laws attracted the attention of the Constituent Assembly and heated debates in

favor of Uniform Civil Code and against it took place. The Uniform Civil Code was debated

under Article 35. Muslim members strongly opposed it whereas most of the Hindu members

supported it. B.R. Ambedkar opined in favor of interference in personal laws3.

Soon after independence the question of the position of personal laws got entangled into

the whirlpool of national politics. On the floor of the Constituent Assembly, for about two years,

the issue suffered convulsions caused by the utterances of progressive legislators, dissenting

voices of their so called conservative brethren, apprehensions echoed by the spokesmen of the

minorities, and bricks and buckets thrown from outside by laymen and law-men4

. The

Constituent Assembly Debates in the constitution making process revealed that the constitution

makers debated the concept, relevance and utility of the Uniform Civil Code. The Muslim

members of the Constituent Assembly opposed the move with all possible intensity at their

command. In this background, the arguments for and a quest for the objective evaluation of the

Uniform Civil Code, will not be out of place in India which is known for its religious, cultural

and lingual diversities. The Constituent Assembly had its first meeting in December 1946.

However just after the freedom of India from the grip of British imperialist, the place and shape

of personal laws in the future legal order in the country got much entangled into the whirlpool of

national politics. Framers of the constitution envisage establishing a Sovereign, Democratic,

Republic - ideas based on the ideas of justice, liberty, equality and fraternity. Later on, in 1976,

words 'secularism' and 'socialism' were added to the Preamble. Fundamental rights especially

regarding the right of freedom to religion was designed in our Constitution before its

commencement in 1950. Since then, in the Constituent Assembly as well as on every platform, a

great deal of discussion on personal laws has taken place repeatedly. Even prior to the

commencement of the Constitution much was debated in the Constituent Assembly for and

against the personal laws5.

3 Tahir Mahmood, Personal Laws in Crisis, p. 3(1986). 4 Zafar Ahmad, Personal Laws and Constitution of India : A Study in Contemporary Perspective with Special

Reference to Dr. B.R. Ambedkar, p. 30 (unpublished, 1992). 5 Mohd. Shabbir, "Muslim Personal Law, Uniform Civil Code, Judicial Activism : A Critique", XII Alig. L.J. 1997,p.

47.

(i) The attitude of the antagonists

The Constituent Assembly debated the Uniform Civil Code under Article 35. Mohammad

Ismail from Madras moved the following proviso for addition to Article 33 which provided that

'any group, section or community of people shall not be obliged to give up its own personal law

in case it has such a law'. He advocated that the right to adhere to ones own personal laws was

one of the fundamental rights. He asserted that personal laws were a part of the way of life of the

people. In his evaluation, personal laws were the part and parcel of religion and culture. Any

interference with the personal laws, in his view would tantamount to interference with the very

way of life of those who had been observing such laws from generation to generation. He

elucidated that India was emerging as a secular state and it must not do anything which hinder

the religious and cultural ethos of the people.

Mahboob Ali Beg emphasized that the civil code spoken of in Article 35 did not include

family law and inheritance but since some people have doubts about it should be made clear by a

proviso to assure that the civil code would cover transfer of property, contract, etc., but not

matters regulated by personal laws. He also claimed that secularism did not negative diversity in

Personal laws.6

He further pointed out that the very concept of Uniform Civil Code clashed with the

religious and cultural freedom guaranteed to every citizen. He was also apprehensive that under

Article 35 the state may violate the religious freedom of the citizens. Surveying the legal

developments in the Indian subcontinent, he pinpointed certain provisions of the Civil Procedure

Code, 1908 which had already interfered with the Muslim Personal Law. However, the British

administration, as he pointed out, during its 175 years rule, did not interfere with the institution

of marriage, dower, divorce, maintenance, guardianship, paternity and acknowledgement,

administration of estate, wills, gifts, waqf and inheritence. Whatever laws were enacted in the

area of Muslim Personal Law during the British administration of justice were mostly on the

initiative of Muslim community He put a note of caution in these words:

"What the British in 175 years failed to do or was afraid to do. What the Muslims in the

course of 500 years refrained from doing, we should not give power to the state to do at all

once... I submit Sir, that we should proceed not in haste but with caution, with experience, with

statesmanship and with sympathy”

(ii) The attitude of protagonists

Many members of the Hindu community expressed their opinions contrary to the views

of Muslim members. K.M. Munshi expressed the following views.

6 7. See M.A. Beg Sahib Bahadur's Speech in the Constituent Assembly, Constituent Assembly Debates, Vol. Vll

(1949), p. 543.

Even in the absence of Article 35 it would be lawful for Parliament to enact a uniform

civil code, since the article guaranteeing religious freedom gave to the state power to

regulate secular activities associated with religion

In some Muslims countries, for example, Turkey and Egypt personal laws of religious

minorities were not protected;

Certain communities amongst Muslims, for example, Khojas and Memons did not want

to follow the Shariat, but they were made to so under the Shariat Act, 1937;

European countries had uniform laws applied even tominorities;

Religion should be divorced from personal law; The Hindu Code Bill did not conform in

its provisions to the precepts of Manu and Yajnavalkya;

Personal laws discriminated between person and person on the basis of sex which was not

permitted by the Constitution;

People should outgrow the notion given by the British that personal law was part of

religion." Conclusively, he beseeched to divorce religion from personal laws7.

He advised Muslim brethren in these words.

"I want my Muslim friends to realize this that the sooner we forget this isolationist

outlook on life, it will be better for the country. Religion must be restricted to spheres which

legitimately appertain to region, and the rest of life must be regulated, unified and modified in

such a manner that we may evolve, as early as possible into a strong and consolidated nation."

Besides, the above observation Dr. Ambedkar persuaded the Muslim members "Not to

read too much into Article 44". He affirmed even if the Uniform Civil Code was implemented it

would be applicable to those who would consent to be governed by it.'8

In post-independent India the status of personal laws got politicized. For two years, the

Constituent Assembly witnessed heated debates in favor of and against Uniform Civil Code. In

fact the Uniform Civil Code divided the house on communal lines. Muslim members opposed it

while Hindu members strongly supported the move.

The debates were carried on under Article 35 Mohammad Ismail of Madras moved an

amendment exempting any group or community from being covered by such legislation. He cited

precedents of Serbs, Croat etc. where Muslims were assured to have their own personal laws.

Some members like H.C. Majumdar contested the amendments on the ground that it negates

Article35. Objections were sustained and Mohd. Ismail's amendments were over-ruled. Some

other members also moved for amendments but they failed despite strong pleas aand arguments.

Some of the Hindu members opined just opposite to Muslim members. K.M. Munshi, A.K. Iyer

and even Dr. B.R. Ambedkar were most vocal in this regard. Dr. Ambedkar coldly suggested to

7 Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code, p. 39 (1998).

Muslim members, "not to read too much into Article 44" and declared that Uniform Civil Code

will be applicable only with their consent. No doubt Constitution of India empowers Parliament

to enact Uniform Civil Code. After enactment of Hindu Code the demand for reforms in Muslim

Personal Laws and Uniform Civil Code gained momentum. Constitutionally all laws including

personal laws can be changed or amended. In reality personal laws are placed within the purview

of Parliament and legislature.

So far as the question of recognition of personal laws is concerned, the Constitution does

acknowledge the existence and continuation of such laws under Entry 5 List III of Seventh

Schedule, together with Article 372.

UNIFORM CIVIL CODE: JUDICIAL APPROACH

The Directive Principles of State Policy detailed in Articles 37 to 51 of the Constitution

possesses to characteristics. Firstly, they are not enforceable in any court and therefore if a

directive is infringed, no remedy is available to the aggrieved party by judicial proceedings.

Secondly, they are fundamental in the governance of the country and it shall be the duty of the

state to apply these principles in making laws. In this chapter, an endeavor has been made to

discuss the constitutional obligation of the state to secure for citizens a Uniform Civil Code -

throughout the territory of India and Judicial craftsmanship of the High Courts and Supreme

Court. The cases discussed in this chapter are those in which either the constitutionality of some

personal-law was challenged or the court, suo-moto, discussed the desirability of the enactment

of a Uniform Civil Court. Since the time of its incorporation in the Constitution this has been a

controversial topic and it continues to be so. Article 44, of the Indian Constitution runs as

follows: "The state shall endeavor to secure for citizens a Uniform Civil Code throughout the

territory of India".

No single Article of 'Directive Principles of State Policy' has attracted such high pitched

controversy as 'Uniform Civil Code' under Article 44, which reads as, "The state shall Endeavour

to secure for citizens a Uniform Civil Code throughout the territory of India".

Some court cases have been discussed in this regard which attracted attention of affected groups.

In these cases either the constitutionality of personal laws has been challenged or the courts have

taken suo-moto action in favour of enactment of Common Civil Code.

The first such case was State of Bombay vs Narasuoppa Mali9 in which modifications

in Hindu law were challenged on the grounds that they violate Articles 14, 15 and 25 of the

Constitution. Arguments were put forward that marriage among Hindus is a part of religion and

having a son is regarded as spiritual benefit. Hence, polygamy was justified but these arguments

were rejected by Gajendra Gadkar J. The court opined in favour of adoption of a son rather than

for a second marriage. Chagla C.J. also upheld the validity of Bombay Act relying on Davis vs.

9 AIR 1952 Bom 84

Beason10

case. The court kept itself aloof and left the issue of Uniform Civil Code for

Legislature.

Like Bombay Act, the Madras Hindu (Bigamy and Divorce) Act of 1949 was also

challenged on the same grounds. The court observed that while religious beliefs were protected

by the Constitution, the religious practices can be regulated by state. In the case of Ram Prasad

vs. State of U.P11

. The Allahabad High Court also upheld the statutory provisions prohibiting

bigamy among Hindus.

Much controversial Shah Bano case 12

was filed under section 125 CrPC in 1978 at

Indore. The case went up to the Supreme Court. Chief Justice Chandrachud delivered the

judgement on behalf of five judges Bench. The learned judge made certain observations for

Muslim Personal Law and Uniform Civil Code.

The court strongly criticized Government of India for its sheer inability in enacting

Uniform Civil Code. Later All India Muslim Personal Law Board also intervened arguing that

interpretation of Shariah and Our'an by the Court is unwarranted. The judgments provided

ammunition to Muslim bashers and communalized the atmosphere. Thus judicial self restraint is

needed on such matters. Another case for discussion is related to Christian Personal Law. Justice

O. Chinappa Reddy delivered the judgment without considering Christian Personal Law or the

wishes of Christian community.

In Sarla Mudgal case13

the personal laws of Hindus, Muslims and Uniform Civil Code

were touched and the judgment favored the enactment of Uniform Civil Code.

After the Sarla Mudgal case, another case, through Public Interest Litigation (PIL) raised some

issues about the Muslim Personal Law. Issues covered were polygamy, unilateral talaq, Muslim

Women (Protection of Rights on Divorce) Act 1986 and inheritance laws. This PIL was filed by

Ahmedabad Action Group and disposed off by Supreme Court alongwith two other petitions

filed by Lok Sevak Sang and young Women Christian Association. The court did not dispose off

any of the case left them for legislature. In this case, the court tried to restore original

constitutional position of Uniform Civil Code.

Thus it is clear from the discussions in this chapter, that whenever the constitutionality of

any provisions of any personal law was challenged on the ground of being violative of

fundamental rights, the court exercised self-restraint and left the matter for the wisdom of the

legislature saying that it is a matter of state policies, with which the court is not ordinarily,

concerned.

However, it is equally true that on many occasions the court unnecessarily stepped into

the shoes of an activist, emphasizing the desirability of the enactment of a 'Uniform Civil Code'.

This happened mostly when the issues involved in the cases did not at all require such incidental

10 133 U.S. 333 (10 S.Ct. 299, 33 L.Ed. 637). 11 AIR 1957 All. 41 1 12 Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844 13

1995 AIR 1531

observations. Sometimes, even sidestepping the issues involved in the case, the court made un-

called for remarks about ‗Uniform Civil Code'.

LEGISLATIVE REFORM IN PERSONAL LAW

Legislative reforms in Hindu and Christian laws and the increasing juridification of the

Muslim law have created a greater degree of uniformity among different personal laws.

Secondly, there is more debate and dissent within communities and a concerted attempt to

reform family law from within. Thirdly, new evidence suggests that gender inequality within the

family bears a greater correlation to socio-economic conditions than the form of religious law.

But perhaps, most importantly, the new areas of emphasis on family law reform address

questions such as domestic violence which cut across community identities and concerns.

Under colonial rule, affairs concerning marriage and inheritance of individuals were

governed by their personal laws determined by the faith they belonged to. However, unlike the

Mughal rulers, whose precedent the British claimed to follow, these personal laws were

administered by a secular judiciary rather than by members of the religious group themselves.

Thus, the application of Hindu and Islamic laws was transformed through processes of

translation, interpretation and adjudication by British judges and came to be described as Anglo-

Hindu and Anglo-Mohammadan laws.

In 1950, the Constitution of India under Article 44 laid down that the state should

endeavor to establish a UCC for its citizens. There were two sources of support for a UCC,

liberal nationalists such as Minoo Masani who argued that community-based personal laws were

a danger to national consolidation and women leaders such as Hansa Mehta and Amrit Kaur who

saw personal laws as greatly disadvantaging women. However, demands for a UCC were

opposed not just by the minorities but by a significant number of conservative Hindus, who

viewed this as excessive interference by the state. Debates over the Hindu law reform, rather

than intervention in Muslim law, were the focus of political battles, and it was only the electoral

victory of 1952 that gave Jawaharlal Nehru the legitimacy to enact the Codes. It is often

forgotten that before the Hindu Code, Hindu law was much behind Muslim personal law in terms

of rights given to women: Muslim women could hold and inherit property, their consent was

required for marriage, and they could act as guardians of minor children and, after the reforms of

1938, also initiate divorce.

Along with the Hindu Code, the state introduced a voluntary UCC, that is, the Special

Marriage Act of 1954. Initially enacted to provide for inter-religious marriages, its mechanism of

a civil marriage before the designated official can also be utilised by members of the same faith.

Persons married under the Act have their divorce, maintenance and succession governed by the

rules under the Indian Succession Act, 1925, and the Special Marriage Act, which provides far

greater equality between men and women within marriages than either Hindu or Muslim law.

What began as a debate between all forms of community identity and the state came to be framed

as a question of Muslim law during the Shah Bano case (1985). The Supreme Court of India had

ruled that Shah Bano Begum, a 60-year-old divorced Muslim woman, was eligible to claim

maintenance from her former husband under Section 125 of the Code of Criminal Procedure

(CrPC). The judgment was following a precedent; however, its timing and the observations on

Muslim law by the judges led to a widespread outcry by organisations such as the All India

Muslim Personal Law Board (AIMPLB).

Rajiv Gandhi‘s government sought to contain conservative opinion by enacting the

Muslim Women (Protection of Rights on Divorce) Act, 1986, which effectively nullified the

Shah Bano judgment and legislated the position in Muslim law that required the husband to only

make a ―fair and reasonable provision‖ for maintenance within the iddat period of three months

after the divorce. The MWPRDA enraged Hindu nationalists, who saw this as appeasement of

Muslim men, and angered liberals, who saw this as discriminatory towards Muslim women who

were denied the right to maintenance that other Indian women enjoyed.

However, unnoticed by most commentators over the last two decades, resolute Muslim

women and sympathetic judges have interpreted the MWPRDA to hold that the ―reasonable and

fair‖ provision during the iddat period had to be sufficient to maintain the divorced woman for

the rest of her life. Destitute Muslim women now got sums ranging from thousands of rupees to a

few lakhs as opposed to the Rs.500 that women from other communities could hope for under

the Cr.P.C.

The Supreme Court, in a case brought by Danial Latifi, Shah Bano‘s lawyer, held in 2001

that the MWPRDA had to be read in conjunction with the rights to equality and to life with

dignity in the Constitution and confirmed that the lump sum granted to a divorced Muslim

woman had to be sufficient to maintain her for life. For a brief period, until the upper limits in

the Cr.PC were revised, Muslim women had better claims to maintenance than other women.

What this episode demonstrates is that the public reaction to Shah Bano was an

aberration, a product of political circumstances and intemperate judicial language. However,

since the 1980s, courts have continued to rule on questions of Islamic law and pick

interpretations that have favoured women, with little opposition from Muslim leaders.

In Shamim Ara‘s case (2002), the court held that the husband did not have a unilateral

right to triple talaq—which simply consists of the husband saying ―I divorce you‖ three times to

his wife—but had to provide good reasons for the divorce and had to first go through attempts at

reconciliation.

NEW VOICES IN PERSONAL LAW DEBATES

The Danial Latifi and Shamim Ara decisions evoked little protest, in part because of the

broad divergences in views of Indian Muslims over the last decade. Muslim personal law has

moved from being an issue around which Muslim identity is expressed to being a site where

different Muslim voices have come to assert their individual identities. Since its foundation in

1973, the AIMPLB has emerged as the main spokesperson on the question of Muslim personal

law, impleading itself into court cases and being consulted by governments.

Over the last decade, the AIMPLB has been criticised because of its domination by

Hanafi Sunni ulama from the Darul Uloom Deoband. As Professor Justin Jones, a historian of

Indian Shiaism points out, it was this perceived domination that led to the creation of the All

India Shia Personal Law Board and the All India Muslim Women‘s Personal Law Board and the

resignation of several leading Barelvi scholars from the AIMPLB.

These bodies have challenged the authority of the AIMPLB to speak for Indian Muslims

and offered alternative visions of Muslim personal law. The political scientist Narendra

Subramaniam notes that it was this divergence of opinion over the question of unilateral triple

talaq that prevented the AIMPLB from becoming a party in the Shamim Ara case before the

Supreme Court14

.

The establishment of the All India Muslim Women‘s Personal Law Board and the growth

of Muslim women‘s non-governmental organisations (NGOs) such as the Awaaz-e-Niswan in

Mumbai have led to the advocacy of women‘s rights and the spread of legal awareness, not

through languages of secularism but through Islamic scriptures and reinterpretations of the

Sharia. With the spread of literacy and new forms of media, religious authority is being

fragmented and new groups are questioning older orthodoxies. The women‘s groups are

particularly influential because, apart from advocating and creating legal literacy, they assist

women with their daily interactions with law, be it in ensuring maintenance payments, helping

secure custody rights or guarding women against domestic violence.

From August, the Bharatiya Muslim Mahila Andolan would have set up women‘s Sharia

courts staffed by female Islamic scholars in Maharasthra, Odisha, West Bengal and Tamil Nadu.

These courts do not pose a choice for Muslim women between enjoying their right to equality as

women and enjoying their right to their religion as Muslims but allow them to claim justice as

Muslim women.

WOMAN IN POSITION OF EQUALITY AND LAW

The far-reaching changes in Muslim law have also been accompanied by sweeping

legislative reform in Hindu, Christian and Parsi laws. Contrary to popular belief, the Hindu Code

14 May 26, 2017 1:44:20 PM ; http://www.frontline.in/cover-story/personal-laws-a-reality check/article5037670.ece

reforms of 1955-56 did not place Hindu men and women in positions of equality. It was only

after the 2005 amendments to the Hindu Succession Act that daughters could claim a share of

Hindu joint family property and ask for its partition to become its manager. Most significantly, it

was only in 2005 that agricultural land came under the purview of the Hindu Succession Act. For

the first 50 years, the reforms to Hindu law that had given women a right to inherit property did

not apply to the most prevalent and valuable form of property in India, that is, agricultural land.

Tribal women, who were excluded from the benefits of the Hindu law reforms, have

begun to move courts to challenge the exemptions. In May 2013, a group of tribal women from

Kinnaur district in Himachal Pradesh challenged the constitutionality of a colonial law that

recognised customary practices that prevent women from inheriting ancestral property. Women

from the Oran and Ho communities of Jharkhand had previously challenged the constitutionality

of the Chotanagpur Land Tenancy Act, which limited the right to cultivate jungle land to male

descendants. Tribal leaders and government officials expressed concern that allowing female

inheritance would lead to the alienation of tribal lands to non-tribal people. The Supreme Court,

mirroring its manoeuvres in the Danial Latifi case, upheld the constitutionality of the Act but

argued that it had to be interpreted keeping in mind the constitutional right to life and livelihood.

While upholding male rights to succession, it held that female heirs of the last male tenant could

hold and use the land as long as they were dependent on it for their livelihood. Thus, the court

provided an economic solution to tribal women without striking down tribal laws.

Judicial pronouncements also harmonized several aspects of Christian personal law. In

Mary Roy‘s case, the Supreme Court held in 1986 that provisions of the Travancore Syrian

Christian Act, 1916, and the Cochin Succession Act, 1921, which limited the right of Syrian

Christian women to their paternal property, were unconstitutional. However, it was only in 2010

that the decree in Mary Roy‘s case was executed and she could claim her share of her father‘s

house back from her brother.

More strikingly, in 2003, the Supreme Court agreed with Father John Vallamattom and

held the provisions of the Indian Succession Act, which limited the right of Christians to

bequeath their property to charity, as unconstitutional. Section 118 of the Indian Succession Act

drew upon old English law and laid down that no Indian Christian who had living relatives could

leave their property for religious and charitable purposes unless provided for by a will a year

before their death. The clause was enacted to prevent deathbed bequests that were often made

under the influence of a priest who was usually in attendance. The Supreme Court held that this

violated Article 14 of the Constitution by discriminating between Christians and non-Christians,

and further Christians who had near relatives (and were bound by the Act) and those who did not

have. The court, however, rejected Father Vallamattom‘s claim that the right to make religious

bequests was protected under the right to practise one‘s religion, holding that there was nothing

to show that the disposition of property for religious purposes was integral to Christianity.

Both Mary Roy‘s and Father Vallamattom‘s cases also highlight the great deal of

diversity in religious practices and customs governing marriage and property challenging the

homogenous identity of Indian Christians.

It was only in the last decade that the very inequitous laws of divorce for Indian

Christians were overhauled. Before the amendments of 2001, the law required that Christian

women had to claim two grounds of fault to initiate divorce while men needed to claim only one.

The law treated women as property by allowing the husband to claim monetary damages in case

of adultery. The court was empowered to settle the property of an adulterous woman on her

children upon her divorce, but an adulterous man would incur no such penalty. Finally, until

2001, a Christian woman could not claim more than one-fifth of her husband‘s income as

alimony. The reforms in 2001 were carried out by the National Democratic Alliance government,

with little opposition from Churches or Christian groups. This is partly because the groups

concerned were extensively consulted through the process. Thus, there is much greater

congruence within different personal laws today than a decade ago despite the lack of a UCC.

CONTRASTING HINDU AND MUSLIM WOMEN

The emotive force behind a UCC is the assumption that the difference in legal rights has

a significant impact on the everyday experiences of Muslim women. However, a path-breaking

survey of women by Zoya Hassan and Ritu Menon in 2004 indicated that while Muslim women

as a group were weaker, when compared with Hindu women of a similar socio-economic

background and regional location, differences in patterns of marriage, autonomy, mobility and

domestic violence were insignificant. There was no apparent community-wise variation in

women‘s decision-making, mobility and access to public spaces. Zoya Hassan argued that the

survey findings showed that religion did not influence per se Muslim women‘s status

significantly, but poverty did. Poor socio-economic condition is not a feature exclusive to

Muslim women, but it is aggravated by their marginal status in the overall context of social

disadvantage.

Recent focused studies by anthropologists have shown that while Muslim men have

significantly greater rights than women, these are infrequently asserted. Sylvia Vatuk in her

study of Madras (Chennai) shows that contrary to stereotypes, the right to unilateral divorce is

rarely used at whim. To avoid meeting any legal obligation, many men, like their Hindu and

Christian counterparts, simply abandon their wives without going through the formality of

divorce. The pronouncement of triple talaq also attracts social opprobrium and makes it more

difficult for the man to get remarried. Similarly, Sreemati Basu, in her study of middle-class

Hindu women in Delhi, finds that despite the availability of legal rights to inheritance, Hindu

women rarely claim or receive property from their natal family.

It is a well-recorded but little-publicised fact that bigamy in India is far more prevalent

among Hindus than among Muslims. The last comprehensive survey in 1971 found that as many

as one crore Hindu men had more than one wife as compared to 12 lakh Muslim men. The most

recent National Family Health Survey in 2011 indicates that 1.7 per cent of Hindu men and 2.1

per cent of Christian men had more than one wife as against 2.5 per cent of Muslim men. The

legal recognition of polygamy among Muslims meant that the second wife and children from the

second marriage enjoyed full legal rights. However, among Hindus and Christians, the second

wife and her children have few enforceable legal rights.

The emerging picture suggests that legal reform has little impact on the lives of women in

the absence of legal awareness and networks of support that can help them access these rights. It

also reveals that legal reform without a corresponding change in social values can have adverse

effects, such as the ban on Hindu polygamy which leaves the second wife completely

unprotected. Her position has become particularly vulnerable after the Supreme Court, in 2010,

ignoring precedent in D. Veluswamy‘s case, denied a woman in a ―marriage like relationship‖

the right to claim maintenance.

NEW FRONTIERS OF LAW REFORM

Personal laws govern only certain questions of marriage and inheritance. Increasingly,

new family law interventions aimed at improving the situation of women have moved away from

inequitous religious laws and focussed on other common experiences shared by women within

the family. The most notable intervention has been the Domestic Violence Act of 2005, which

seeks to protect women from abuse in their families. The Act extends protection to all women

within a household, including an unmarried female partner. It broadens the definition of violence

to include verbal, economic, and emotional violence. It guarantees secure housing to the woman

by giving her the right to reside in her matrimonial home irrespective of whether she has rights

or title to it and empowers courts to pass protection orders and restrain the abuser from

contacting the victims.

There is a greater recognition that women contribute to a marriage and family in ways

that cannot be easily quantified economically. Studies show that women suffer significant

economic loss upon divorce or widowhood. Maintenance orders are difficult to secure, with

husbands often disposing of property, leaving jobs and hiding assets in order to appear unable to

maintain their wives. Moreover, maintenance is not a ―property right‖ in that it stops if she

remarries, is gainfully employed, or dies. The non-financial contributions a woman makes to

marriage that often enables her husband to accumulate his property is not recognised. Studies

show that the chief hurdle women across communities face on divorce is the loss of shelter as the

title to their homes is often with the husband or their in-laws.

In recognition, legislatures are moving towards creating a separate property regime for

married couples. The civil code in Goa has recognised the right to matrimonial property since the

19th century, but other States are catching up. Maharashtra is considering a Bill that will give

married women the right to half of their husband‘s property. The central Marriage Laws

(Amendment) Bill, 2010, which has been approved by the Union Cabinet, seeks to amend the

Hindu Marriage Act and the Special Marriage Act to entitle the divorced wife to half the share of

her husband‘s residential property. The chief opposition to these laws comes not from minority

groups but from the new and vocal ―men‘s rights‖ groups who argue (despite evidence) that

Indian laws unduly favour women. Groups such as ―Save the Indian Family Foundation‖ consist

of very vocal upper-class, urban men who seek to defend ―men‘s interests‖, cutting across the

divisions of caste and religion. Meanwhile, courts are attempting to define in numerical terms the

contribution of women as homemakers. In the Lata Wadhwa case (2001), the Supreme Court laid

down Rs.3,500 as a notional monthly income for a homemaker in a small town in India. The

High Courts have followed suit, trying to quantify women‘s work.

The UCC debate can no longer be played out by placing minority rights and women‘s

rights in opposition to each other or on the fault lines of Hindutva and secularism. As the legal

scholar S.P. Sathe had presciently written, uniform does not imply common, and the experiences

of the last decade have shown that it is possible to secure reasonable uniform rights and duties

through different regimes of law. This has been possible because of the fragmentation of

religious authority, greater debate and dissent within communities, and growing literacy and

awareness of women rather than a process of centralised codification.

CONCLUSION

From the aforementioned discussion the goal behind Article 44 and the Supreme court‘s

discussion have revealed the different aspect of UCC. India is definitely a secular country and

its preamble declares ―liberty of thought, expression, belief, faith and worship‖ and for this

purpose Article 25 is being incorporated which provides ―freedom of conscience and free

profession, practice and propagation of religion‖. But it is also important to note that national

interest is superior to religious interest. When the whole population of our country is enjoying

the right of single citizenship then why not UCC? When the whole world is going to become a

global village and uniformity will prevail, then, is the existence of different communities logical?

We are all Indians, we are all human beings, we have almost similar rights but we are governed

by personal laws, particularly when we are trying to empower women and large number of

women belonging to a particular community is still living in petty conditions with a very little

rights .While woman belonging to other communities are enjoying many rights and are becoming

more and more powerful, sadly this prevailing double standard is not good for women

community on the whole. It is demand of the time that the whole of the Indian community should

be governed by the civil laws. Introducing UCC is not only the need of the hour, but the state

should also attempt to reform draconian laws which leads to discrimination amongst women on

the basis of their religion15

.

The intention behind introducing Article 44 was to achieve the greater objective of

―National Integration‖. The Supreme Court made observation from time to time that Article 44

of our constitution had remained a dead letter. A common civil code will help the cause of

national integration by removing desperate loyalties to laws, which have conflicting ideologies.

It is the duty of the state to secure a UCC for the citizens of the country and unquestionably it has

the legislative competence to do so. Justice to of all is a far more satisfactory way of dispensing

justice than from justice from case to case .The Supreme court made the observation while

considering the plight of Muslim woman at large .

The Indian masses should be mature enough to accept a UCC which will govern them in

their personal Affairs like marriage ,Succession ,Divorce etc ,and It is a process which takes time

.To protest only for the sake of protesting is not good especially without knowing the ground

realities .Muslim communities should think about it sincerely that if they are not going to

change in the time then they will be compelled to live as a backward community .The Muslim

should not say that it is against the Shariah because most of the Muslim countries like Pakistan

and Iran have also amended Muslim personal laws. If they feel threatened that they are going to

adopt Hindu civil code, then these fears are baseless.

A Uniform civil code is the need of present wherein good provisions of the existing

personal laws should be incorporated, for example ,the concept of Mahr, proposal and

acceptance of marriage from Muslim law and monogamy ,right to property of women from

Hindu law, Etc.

Finally , It may be conducted by saying that the introduction of UCC in India lies in the

hands of Indian masses and its religious masses and its religious leaders .It can be achieved only

by entire Indian community at large is mature enough to accept a UCC ,which will govern their

personal issues .It is a time consuming process ,which can be achieved only by way of gradual

progress of the civilization and one should be optimistic that the concept of UCC works in

realistic terms in the Indian continent superseding fundamentalism and religious fanaticism .If

we adopt a UCC then the concept of religious superiority and religious differentiation would

minimize .Single Personal law would govern all of them as they are governed by single

citizenship .To recognize the religious norms is more problematic for secular state concept

,because it never allows us to think of anything beyond the religious limits .So a UCC can unite

us as a nation more strongly as it will remind us that firstly we Indians and then a Hindu, a

Muslim or else .

Reference

15

Journal of constitutional and parliamentary studies ,Vol 44 nos.3-4,July-December 2010

1. Tahir Mahmood, Personal Laws in Crisis, p. 3(1986).

2. Zafar Ahmad, Personal Laws and Constitution of India: A Study in Contemporary Perspective with Special

Reference to Dr. B.R. Ambedkar, p. 30 (unpublished, 1992).

3. Mohd. Shabbir, "Muslim Personal Law, Uniform Civil Code, Judicial Activism: A Critique", XII Alig. L.J.

1997,p. 47.

4. See M.A. Beg Sahib Bahadur's Speech in the Constituent Assembly, Constituent Assembly Debates, Vol. Vll (1949), p. 543.

5. Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform Civil Code, p. 39 (1998).

6. AIR 1952 Bom 84

7.133 U.S. 333 (10 S.Ct. 299, 33 L.Ed. 637).

8. AIR 1957 All. 41 1

9. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844

10.1995 AIR 1531

11. May 26, 2017 1:44:20 PM; http://www.frontline.in/cover-story/personal-laws-a-reality check/article5037670.ece

12. Journal of constitutional and parliamentary studies, Vol 44, Nos.3-4, July-December 2010