Uniform Civil Code project

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A project on Uniform civil code in India

Transcript of Uniform Civil Code project

PROJECT ON Uniform Civil Code For India

Name:Abhishek chatterjee Submitted To : Mr Sushil GoswamiReg No:11A006 Batch :2011-16

IndexIntroduction Pg 2Need for uniform civil code Pg 3Position of the legislature Pg 4Uniform civil code: a call for the judiciary Pg 6Uniform civil code optional or compulsory Pg 8Uniform civil code and secularism Pg 10Succession and inheritance Pg 12Conclusion Pg 15

INTRODUCTION The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Janis have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "Uniform civil Code" for the whole of India. The personal laws of the major religious communities had traditionally governed marital and family relations, with the Government maintaining a policy of non-interference in such laws in the absence of a demand for change from individual religious communities.India isa landof diversereligions Hindus,Buddhists, Janis, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in diversity is the core feature of the Indian nation. Each community has its own laws governing marriage and divorce, infants and minors, adoption, wills, and succession. These personal laws go with an individual across the states of India where they are part of the law of the land, and the individual is entitled to have that individual's own personal law applied and not the law which would be applied in the local territory. Personal laws are statutory and customary laws applicable to particular religiousor culturalgroups withina nationaljurisdiction.They govern family relations in such matters as marriage and divorce, maintenance and succession. India is a secular country where every community is allowed its own personal laws. Christians have the Indian Christian Marriage Act, 1872 and the Indian Divorce Act 1869, Hindus have the Hindu Succession Act, 1925[hereinafter HSA, 1956] and the Hindu Marriage Act, 1955[hereinafter HMA, 1955] and so on. Muslim personal law, based on the Sharia, is not codified. Since Muslims are governed by the Sharia, an Indian male Muslim is entitled to have four wives at any time. It is interesting to note that after independence, Pakistan modernized its personal law and made it quite difficult for a man to marry a second time. Tunisia and Turkeyhave actuallyabolished polygamy. InIndia, onlyMuslim menmay practice polygamy,and Hindusons inheritgreater sharesof theirparents' estatesthantheirsistersdo.Whileone'sreligiondetermineswhichlawwillapplytohimorherregardingmarriage,divorce,maintenance,guardianship,adoption, inheritance, and succession. Uniform civil code [hereinafter UCC] of India is a term referring totheconceptofanoverarchingCivilLawCodeinIndia.Auniformcivilcodeadministersthesamesetofsecularcivillawstogovernallpeople,eventhose belonging to different religions and regions. This supersedes the right of citizens tobe governedunder differentpersonal laws basedon theirreligion orethnicity. Such codes are in place in most modern nations. There is no doubt that the ideaof UCCis byand large,a child ofindependent India.The BritishIndian Government merely enacted a few laws which governed family relationships irrespective of the religions of the partners for e.g. Special Marriage Act, 1872; Married Womens Property Act, 1874; Indian Succession Act, 1925 and the Child Marriage Restraint Act, 1929.The British did not show any pursuit to encourage the environment of uniformity of Laws in India. To quote Choudhary Hyder Husain, a prominent Muslim lawyer, Living under the British rule for about two centuries weve come to consider it only natural for Hindus to be governed by Hindu Law and Muslim to be governed by Muslim Law; but it is wholly a medieval idea and has no place in the modern world...I would therefore strongly urge the necessity of havingonesinglecodetobenamedasIndianCivilCodeapplicabletoeverybodylivingwithintheterritoryofIndianUnionirrespectiveofcaste,creed or religion persuasions. This is the juristic solution to the 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.Article 44 of the Indian Constitution requires the State to secure for its citizens a Uniform Civil Code throughout the territory of India. The term civil code issued to cover the entire body of laws governing rights relating to property and personal matters such as marriage, divorce, maintenance, adoption and inheritance. The object 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 governed by diverse personal laws. However, even after 60 years of independence, our law makers are yet to give effect to this provision. 2. NEED FOR UNIFORM CIVIL CODEOurs is a country with several different religions and belief systems. The accepted principle of law is that personal belief systems and laws must be in conformity with the Constitution and not the other way round. Article 25 of the Constitution guarantees to every person the freedom of conscience and the right to profess practice and propagate religion. Article 26 of the Constitution guarantees to every religious denomination the right to manage its own affairs in the matters of religion. No set of laws can violate these Articles, which essentially protect the religious freedom of different person or communities. We are thus presented with a situation that seems somewhat 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 societys general outlook as a whole, and this may amount to violation of the above mentioned Articles of the Constitution. With multiple belief systems, come multiple ideological conflicts. To live together in concurrence with such diversity, we need to have uniformity at some level so as to avoid such conflicts. What we need is a Uniform Civil Code in the form of a sophisticated, harmonized system of legal regulation that maintains and skillfully uses the input of personal laws and yet achieves 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 UCC has been permanently associated in the Indian mind with opposition by the Muslims. It was rightly pointed out in the Constituently assembly that all Hindus were in favor of UCC .They felt that the personal law of inheritance, succession, etc. is really a part of their religion. If that were so, Indian women can never be given equality with a man who is enshrined in art. 14 of the Constitution. Art. 15(1) provides that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.Look atHindu law,we willfind discriminationagainst womeneverywhere.IfpersonallawofHindusisapartofHindureligion,equalitycanneverbeattainedamongmenandwomen.Religionmustberestrictedtoreligiononly and the secular activities attached to the religion must be regulated, unified andmodified fora strongand consolidated nation.The presentMuslim lawcan never provide equality to Muslim women- if personal law is considered as a part of their religion. To elevate the position of Indian women and provide them equality, India is badly needed of a UCC for all Indians.3. Position of the Legislature:The question of implementation of a common Civil Code has been raised mainly with regard to matters where, the personal laws of a religious community have been challenged in the court of law as being volatile of the Constitution or against general public interest. Our law makers have generally shied away from legislating on such points of personal law as are considered to be of controversial or sensitive nature, for fear such legislation being labeled as an intrusion on the above rights thereby resulting in strong backlash. This became evident from the reaction to the judgment of the Supreme Court in the Shah Bano case which gave a divorced Muslim woman the right to claim maintenance even after the period of iddat. If the amount known as meher, paid to her on divorce was not sufficient for her livelihood, she could claim maintenance under S.125 of the Criminal Procedure Code (Cr.P.C). There was great agitation against this decision, led by Mulla