The main aim of preparing this research paper is to differentiate the real facts and misconception created about the uniform civil code in our society and why people are so very against to enforce it.
MEANING AND CONCEPT:
The concept of the uniform civil code is to make the common civil code for every citizen throughout the territory of India by states. Uniform civil code includes civil laws related to marriage, divorce, adoption, and inheritance of property.
The main aim of the uniform civil code is to make unity among different people from different religion and to promote justice, equality, and national integrity.
The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. According to their understanding of religious divisions in India, the British separated this sphere which would be governed by religious scriptures and customs of the various communities (Hindus, Muslims, Christians and later Parsis). These laws were applied by the local courts or panchayats when dealing with regular cases involving civil disputes between people of the same religion; the State would only intervene in exceptional cases.
Each specific practice of any community, case-by-case, made customary laws harder to implement. Towards the end of the nineteenth century, favoring local opinion, the recognition of individual customs and traditions increased.
The Muslim Personal law or Sharia law was not strictly enforced as compared to the Hindu law. It had no uniformity in its application at lower courts and was severely restricted because of bureaucratic procedures. This led to the customary law, which was often more discriminatory against women, to be applied over it. Women, mainly in northern and western India, often were restrained from property inheritance and dowry settlements, both of which the Sharia provides. Due to pressure from the Muslim elite, the Sharia law of 1937 was passed which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession, and inheritance.
WHY UNIFORM CIVIL CODE SHOULD’NT BE FORM:
Though Article 25 of the constitution of India gives power to the state to interfere in matters of religion. The state can enact provisions for the welfare of religious entities. In India, secular laws like Special Marriage Act 1954, already exists. This law governs members of all the religions whether Hindu, Muslim, Parsis, Christian, etc. it is acceptable to all the citizens of India. This shows that there is no reason that why a uniform secular law cannot be extended and enacted for whole India.
The word ‘secular’ was added to the constitution so as to allow citizens to practice any kind of religion that they might want to. Also, the Constitution very explicitly has made certain provisions for its citizens in matters related to religion and practice. The articles are-
Article 25- the Right to profess, practice and propagate religion;
Article 26- Right to manage its own affairs in matter of religion; and
Article 29- gives absolute and unqualified rights to minorities to conserve their culture etc.
It is also to be noted that Article 37 states directive principles are not enforceable by any court, although they are fundamental in the governance of the country.
Most importantly the question is that, though Art. 25 of the Constitution gives State the right to interfere in religious matters but how far and upto what extent would it be justified for the State to do that. Each individual would like to follow and profess his religion in his own way and not in a manner in which a code tells him/her to do.
Uniform civil code if implemented in India in this current situation, it will cause huge chaos and riots. If the Uniform Civil Code is implemented, it will be a huge contradiction to the Muslim personal laws and it will not be accepted by the minority community.
WHY DO WE NEED TO ADOPT UNIFORM CIVIL CODE
Personal religious laws have been found to act as a big obstacle in the path of achieving this goal. One of the biggest drawbacks of personal religious laws is that it fuels gender inequalities. Women victimization and denial of justice to women has been going on for a very long time under the personal law. What makes the situation worse is the functioning of caste panchayats. These panchayats give such verdicts that are derogatory to the laws prescribed by our Constitution. "An ex-Attorney General in this regard stated that the personal laws are completely submitted to the Constitutional obligations and enjoy no immunity especially in cases where fundamental duties towards women are concerned as they are guaranteed under Article 15 which provides that any practice that is derogatory to the dignity of women’ shall be renounced completely."
Further, in the absence of UCC judges interpret various provisions like maintenance in case of Muslim women according to their prejudices and opinion. The introduction of UCC will prevent such interference and promote Uniform provisions for the welfare of all women. It will remove prejudices against women regarding personal laws on divorce and maintenance. The introduction of UCC will also promote monogamy among all the citizens of India including Muslims and it will lead to betterment in the position of women.
In India, laws governing Hindu women are progressive and less discriminatory as compared to laws governing Muslim women. There is no reason that why one portion of women should be excluded from the benefits of such rights. The introduction of UCC will ensure uniform rights for the women all over India.
Even the introduction of Uniform Hindu Code was initially opposed by the general masses at the time of its inception but later on, it was well accepted. In fact, it becomes successful in improving the position of Hindu women. UCC will ensure such kind of reforms in Muslim law also which will benefit women.
Thus it is in this context that we understand the need to adopt UCC as it ensures Gender inequality and welfare of the women.
GOA CIVIL CODE:
The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that govern the residents of the Indian state of Goa. It is largely based on the Portuguese Civil Code which was introduced in Goa in 1870.
Some ways in which the Goa Civil Code is different from other Indian laws include:
A married couple jointly holds ownership of all the assets owned (before the marriage) or acquired (after the marriage) by each spouse.
In case of a divorce, each spouse is entitled to a half share of the assets. However, the law also allows antenuptial (occurring before marriage) agreements, which may state a different division of assets in case of a divorce.
These agreements also allow the spouses to hold the assets acquired before marriage separately. Such agreements cannot be changed or revoked. A married person cannot sell the property without the consent of his/her spouse.
The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children compulsorily. This inherited property must be shared equally among the children.
Muslim men, who have their marriages registered in Goa, cannot practice polygamy. Also, there is no provision for a verbal divorce.
Shah Bano was a 73-year-old woman who sought maintenance from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of marriage by triple Talaaq and denied her regular maintenance; this sort of unilateral divorce was permitted under the Muslim Personal Law. She was initially granted maintenance by the verdict of a local court in 1980. Khan, a lawyer himself, challenged this decision, taking it to the Supreme Court, saying that he had fulfilled all his obligations under Islamic law. The Supreme Court ruled in her favor in 1985 under the " maintenance of wives, children and parents\" provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. It further recommended that a uniform civil code be set up. Besides her case, two other Muslim women had previously received maintenance under the Criminal code in 1979 and 1980.
Sarla Mudgal case…Meena Mathur, married to Jitender Mathur, in 1988, Meena finds that Jitender converted to Islam and solemnized second marriage with Sunita Narula, also known as Fatima. Meena Mathur complains that her husband converted to Islam only for the purposes of getting married again and circumvented the provisions of Section 494 of IPC. In Writ Petition 424 of 1992, Geeta Rani, married to Pradeep Kumar alleged physical and mental violence by her husband. She later found out that her husband, Pradeep, eloped and married another woman after converting to Islam, in 1991. Sushmita Ghosh, petitioner in Civil Writ Petition 509 of 1992 married G. C. Ghosh according to Hindu rituals in 1984. The husband told her that she wanted a divorce and the petitioner argued that she was the legally wedded wife. The husband embraced Islam and wanted to get married to Vinita Gupta. The petitioner has prayed to not let her husband to enter a marriage with Vinita Gupta. This case has issued no directions for implementations of Uniform Civil Code, though Justice Kuldeep Singh has requested the government to look at the Article 44 of the Constitution.
It is not to be understood that uniform civil code is equal to Hindu code bill. The reason why people think the uniform civil code is made in accordance with Hindu code bill because the majority community belongs to Hinduism. But since it was already codified, there was no need to reform.
People need to know there were some drawbacks in Hindu laws too, such as sati system, dowry system, child marriage and many more. But it was developed later and new laws such as Hindu marriage act 1955, Hindu succession act 1956, the Hindu minority and guardianship act 1956, etc. were enacted.
Hence, the uniform civil code is nothing about religion but of women safety. And so I conclude that yes there is the desirability of uniform civil code.
COLLECTION OF DATA:
CONSTITUTION OF INDIA by M. P Jain
Wikipedia (Goa civil code, Sarla Mudgal, and Shah Bano)