PROJECT ON Uniform Civil Code: A Secularization of Family Law Submitted by Gowrang BBA-LLB (B) Of Symbiosis Law School, NOIDA

Symbiosis International University, PUNE On November 25, 2011 49

Under the guidance of VIKRAM SINGH & ASHOKE WADJE Assistant Professors

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Uniform Civil Code: A Secularization of Family Laws In India

CERTIFICATE

The project entitled Uniform Civil Code: A Secularization of Family Law submitted to the Symbiosis Law School, NOIDA for Special Contracts as part of internal assessment is based on my original work carried out under the guidance of Prof. Vikram singh and Ashoke wadje from 15 September to 21 November. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate: Date: 25 November 2011

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Uniform Civil Code: A Secularization of Family Laws In India

ACKNOWLEDGEMENT

I, Gowrang express my sincere gratitude to, Prof. Vikram singh and Ashoke wadje my Special Contract-II teacher for giving us the opportunity to work under his guidance on the project Uniform Civil Code: A Secularization of Family Law Several people have been instrumental in allowing this project to be completed. Any attempt at any level cannot be satisfactorily completed without the support and guidance of learned people. I also acknowledge & convey thanks to the library staff and Mr. Neelesh (COMPUTER INCHARGE) for their kind and valuable support. I have endeavoured my best to make this project and would be grateful for any suggestions for improvement.

Thanking you

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Uniform Civil Code: A Secularization of Family Laws In India

Index

S.NO
1. Introduction

TOPIC

Pg.No
5

2.

Is There Any Codified Law In India?

3.

Article 44: Uniform Civil Code

11

4.

Position of the Court

12

5.

Conclusion

16

6.

Bibliography

18

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Uniform Civil Code: A Secularization of Family Laws In India

Introduction:
In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law. The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice. The term codification denotes the creation of codes, which are compilations of written statutes, rules, and regulations that inform the public of acceptable and unacceptable behavior. Codification rearranges and displaces prior statutes and case decisions. Codification of an area of law generally constitutes the whole source that is relied upon for a legal question in that area. Thus, when a state codifies its criminal laws, the statutes contained within the new code supersede the laws that had been in place prior to the codification. There are exceptions to this general rule, however. For example, the Michigan Supreme Court ruled in 1994 that Dr. Jack Kevorkian could be prosecuted under Michigan common law for assisting patient with suicide, despite the absence in Michigan's criminal code of a statute that prohibits such action law1. The civil law system and the common law system were driven by diverging philosophies. Proponents of comprehensive codification and the civil law system saw the benefits of public notice. By using simple language to inform the citizenry, the state could allow people more freedom to conduct their affairs without fear of the unexpected. Codifiers contended that it was more democratic to live by rules that had been enacted by elected legislators, rather than judges, and that the common law system was too vast and obtuse for the lay public.

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714

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Uniform Civil Code: A Secularization of Family Laws In India

What is code of law?

A code is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in common law and civil law systems, their usage is different. In a civil law country, a Code typically exhaustively covers the complete system of law. By contrast, in a common law country a Code is a less common form of legislation, which differs from usual legislation that, when enacted, modify the existing common law only to the extent of its express or implicit provision, but otherwise leaves the common law intact. By contrast, a code entirely replaces the common law in a particular area, leaving the common law inoperative unless and until the code is repealed.

Is codification desirable?
Votaries of codification of customary laws have little idea about the consequences of any such codification. Custom and tradition of a tribal formation is always evolving and at times old customs are phased out due to the impact of modernity and change in lifestyle. Codification of customs, customary rights, and customary law can therefore be never exhaustive and it would also amount to stopping growth of customs and customary rights of future generations. In addition to these courts may also arrive at different interpretations of the customary rights, once they are codified, by following strict rules of construction or functional interpretation. Votaries of codification should also remember that law and justice are often not on talking terms. Further, the attempt to codify the customary rights will only aggravate the problem as many of the customs may fail to graduate to customary laws as they may be against the public policy or judiciary may not recognize them due to contrary orders passed by the Apex Court in similar situations.

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Uniform Civil Code: A Secularization of Family Laws In India

Is There Any Codified Law In India?

Under the British rule, the legislature rarely legislated in the sphere of personal law. To remove some obnoxious customs legislation was occasionally undertaken, e.g., Abolition of sati (Reg. XVII of 1829); Hindu Widows Remarriage Act (XV of 1856). After independence, legislative interference in the field of Hindu personal law is more pronounced. Comprehensive codification has been effected in relation to the Hindu Law of Succession, Marriage, Guardianship, Maintenance and Adoption. Central Acts have covered these fields. In regard to Hindu Religious institutions these are various State Legislative enactments. Mahomedan Wakfs (Public Trusts) are governed by the Mussalman Wakfs Act, 1923. This Act was passed for making provision for the better management of wakf property and for ensuring the keeping and publication of proper accounts. This Act was repealed by Wakf Act, 1954 and this Act also was repealed by Wakf Act, 1995 (Act 43 of 1995). A comprehensive legislation applicable to all public trusts, whether Hindu or Mahomedan is proposed to be introduced by the Indian Parliament. The question of Uniform Civil Code, i.e., a territorial law in the field of Marriage, Succession, Guardianship and Maintenance is raised in the Parliament from time to time. Such a Civil Code continues to be the goal of Government policy for which there is a Directive Principle of State Policy to the following effect in the Constitution of India. As India is a secular state, out of all the religious laws followed in India, the Hindu law is the only codified law.

Hindu law:
A comprehensive Hindu code was drafted by the Rau Committee. It was introduced in the Legislative Assembly in1947. It was discussed in the provisional Parliament but could not be passed before its dissolution and consequently the Bill lapsed.

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Uniform Civil Code: A Secularization of Family Laws In India

The code was then split into separate parts for facilitating discussion and passage in Parliament. 1. The first of these dealt with Hindu Marriage and became law as the Hindu Marriage Act of 1955 (with effect from 18 may 1995). This did not deal with civil marriage as that subject was dealt within the Special Marriage Act (43 of 1954) which came into force on 9 October 1954. The Hindu Marriage Act, 1955 has been extensively amended by Act 63 of 1976, which received the assent of the President on 17 may 1976. 2. The Hindu Succession Act, 1956 (w.e.f. 17 June 1956) was the next installment of the Code to be passed. It treats sons and daughters as equals in the matter of succession. 3. The Hindu Minority and Guardianship Act, 1956 (w.e.f. 25 January 1956) was the third installment of the Hindu code. This Act is supplemental to the Guardians and Wards Act, 1890. Besides the guardians appointed under the Act of 1890, the Hindu Majority and Guardianship Act, 1956 also deals with natural guardians and testamentary guardians under Hindu law. It has abolished de facto guardianship. 4. The fourth installment of the Code deals with Adoptions and Maintenance. The law of adoption could be simplified considerably because of equality between could be simplified considerably because of equality between daughters and sons introduced by the Hindu Succession Act. The Hindu Adoptions and Maintenance Act, 1956 (w.e.f. 21 December 1956) provides for the adoption of boys as well as of girls. A husband can no longer forbid his wife from making any adoption after his death. A Hindu widows adoption will hereafter be not only to her deceased husband but also in her own individual right. Adoption will not hereafter divert anyone of property which had vested in him prior to the adoption. The rule of divestment, which was the cause of much ruinous litigation under the Shashtric Hindu law, has now been abandoned. The latter part of

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this Act deals with the subject of maintenance. It is based on the existing law as codified in the Bills of the Rau Committee.

Other Personal Laws:

The British colonial government administered India largely through a policy of noninterference, allowing civil matters to be dealt with through respective religious communities. Matters that fell under the jurisdiction of these communities were called personal laws. The British began the intensive process of codifying Hindu personal law in the early 1940s in an attempt to notate and therefore organize the Indian political system. Dr. Ambedkar drafted a Hindu Code Bill; however most of its progressive provisions could not be adopted by the parliament due to orthodox thoughts to its opposition. As first law minister of India Dr. Ambedkar gave his resignation from the parliament as he could not implement this Hindu code bill in parliament. However, they did not complete codification before granting India its independence in 1947, and this process was adopted and later completed by the postcolonial government under Jawaharlal Nehru. Whenever there is a talk of formulating a Uniform Civil Code in the country, some minority fundamentalist organizations come together protesting that it poses a threat to their religious identity. The politics of vote bank takes precedence over Indias integrity and unity. The Uniform Civil Code does not mean a Hindu Code. It means an attempt to inculcate the best from all the communities and religions, both minorities as well as majority. The Code shall not endanger the freedom of religious minorities in any way. It will rather reflect the sanctity of ones religious beliefs and practices in a more matured form. Other than Hindu Personal Laws, no other Personal Laws is codified in India due to some or the other problems raised during the discussion of the codification. The Muslim community opposed a uniform law regarding adoption applicable to all communities since Islam does not recognize adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980 with an express clause of non-applicability to Muslims. This was again
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Uniform Civil Code: A Secularization of Family Laws In India

opposed, this time by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The Adoption of Children Bill, 1995, was passed by both Houses of the Maharashtra legislative assembly, but is still awaiting presidential assent. In the Shah Bano case2 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.1253. There was great agitation against this decision, led by Mullas and Maulvis and other fundamentalist sections, as being against the tenets of Islam. Succumbing to the pressure of votebank politics and in order to appease the Muslim fundamentalists, the Rajiv Gandhi government enacted The Muslim Women (Protection of Rights in Divorce) Act to undo this decision. This Act exempted Muslims from the general law regulations of the Cr.P.C, including S.125. It tried to restrict the divorced Muslim womans right to maintenance up to the iddat period only and provided that under section 3(1)(a)4 a divorced women is entitled to reasonable and fair provision and maintenance within the iddat period. The activists rightly denounced that it was doubtless a retrograde step. That also showed hoe womens rights have a low priority even for the secular state of India. Autonomy of a religious establishment was thus made to prevail over womens rights. The main problem in codification of all the personal laws (mohamaden law, Parsi law, Christian law; etc.) and in implication of Uniform Civil Code is that the customs practices of different religions are different from each other. Some personal laws allows some customary laws while does not allow them as they are against their religious traditions. On the other hand, at the time of independence, Hindu religion was at the majority in India and many other religious communities believes that the codification of personal laws will give the Hindu law an upper hand and the other personal laws will be under the Hindu law.
2 3 4

MOHD. AHMED KHAN v. SHAH BANO BEGUM AND ORS; 1985 AIR 945 The Criminal Procedure Code (Cr.P.C) The Muslim Women (Protection of Rights in Divorce) Act; 1986

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Article 44: Uniform Civil Code

Article 44 of the Constitution pledges for a uniform civil code. It states that- The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. 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 is used 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. This article focuses on: The status of the implementation of a Uniform Civil Code and, The steps taken and directed to be taken by the Legislature and Judiciary in this regard.

Need for a Uniform Civil Code:

Ours 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. 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
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Uniform Civil Code: A Secularization of Family Laws In India

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 basic reason for asking a separate nation at the time of independence was that the Muslim League argued that the Muslims do have a separate Personal Law which can be effectively incorporated & implemented in an altogether different nation only. This resulted into deplorable partition of India. Thus, separate personal law was underlying reason behind offering a separate nation. That in turn implies that in the concept of different personal law lies the bug of theory of two nations. The framers of the Constitution had seen this all and had in their minds an urge to not let this happen again. Hence in the Constituent assembly, it was made clear that in a secular nation, personal laws relating to such matters as marriage, succession and inheritance could not depend upon religion, but must rest on the law of the land. A uniform civil code was accordingly necessary for achieving the unity & solidarity of the nation, which was envisaged by the very Preamble to the Constitution.

Position of the Court:

Whether Art. 44 imply one thing or the other, it is not a thing of interpretation for any scholars of any religion or political dignitaries. It is the Judiciary that has been vested with the sole & final power of interpreting the provisions of the Constitution. The Supreme Court seems to have a divided opinion on the introduction of a Uniform Civil Code. On one hand, it has rejected attempts to do so through public interest litigation but on the other, it has recommended early legislation for its implementation. So it would be noteworthy to see the stand of the Judiciary on this issue.

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Uniform Civil Code: A Secularization of Family Laws In India

In Pannalal Bansilal v. State of Andhra Pradesh 5 , it held that a uniform law though highly desirable, the enactment thereof in one go may be counter-productive to the unity and integrity of the nation. Gradual progressive change should be brought about. Similarly, in Maharishi Avadhesh v. Union of India6, the Supreme Court dismissed a writ petition to introduce a common Civil Code on the ground that it was a matter for the legislature and in Ahmadabad Women Action Group v. Union of India, the Supreme Court showed reluctance to interfere in matters of personal law. But in the case of Sarla Mudgal v. Union of India7, which is one of the most recent cases, amongst many others, in this context, the observations of the Honorable Apex Court would prove to be eye-openers to the general public as well as the Government. The Supreme Court directed the then Prime Minister P.V. Narsimha Rao to take a fresh look at Article 44, which the Court held to be imperative for both protection of the oppressed and promotion of national integrity and unity. It instructed the Union Government through the Secretary to Ministry of Law and Justice to file an affidavit, enumerating the steps taken and efforts made by the Government towards achieving a common civil code for the citizens of India. The Division Bench of Kuldip Singh and R.M. Sahai said that since 1950 a number of Governments have come and gone but have failed to make any efforts towards implementing the constitutional mandate under Article 44. It is based on the concept that there is no necessary connection between religion and personal law in a civilized society. No religion permits deliberate distortion. Marriage, succession and the like are matters of a secular nature and therefore can be regulated by law. Unfortunately, it was later clarified in an appeal that the direction issued by the Court was only an obiter dicta and not legally binding on the Government.

5 6 7

AIR 1996 SC 1023 paragraph 12: (1996) 2 SCC 498 1994 Supp (1) SCC 713 AIR 1995 SC 153

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In John Vallamattom v. Union of India8, the Supreme Court in a PIL by a Christian priest, John and other citizens of Christian community, hallenging the validity of the section 118 of the Indian Succession Act 9 , 1925, while striking down the said section as being violative of article 14 of the Constitution, and also concerned over the contradictions in marriage laws of various religions, in a historic judgments , emphasized the need for a legislation by Parliament on common civil code. Stressing that there was no necessary connection between religious and personal laws in a civilized society, a three judge bench held that it was matter of regret for the state to that article 44 of the Constitution, which provided

Endeavour to secure a UNIFORM CIVIL CODE for its citizens throughout India, had not been affected. The Court further observed that Parliament is still to step in for framing a UNIFORM CIVIL CODE in the country. A UNIFORM CIVIL CODE will help the cause of the national integration by removing the contradiction based on ideologies. It can be said that after mentioning the apex court view regarding the implementation of UNIFORM CIVIL CODE that Art. 44 needs to be interpreted to sustain the plurastic character of the Indian community. It should be on the gender justice rather than on uniformity. Although the Supreme Court has not yet interpreted Art. 44. On all his decisions the Court enjoined upon the parliament to enact a UNIFORM CIVIL CODE without specifying what a UNIFORM CIVIL CODE would mean. However, the word uniform should not mean the same law for all but it should mean similar laws for all and similarly should be regarding equality and gender justice.

8 9

AIR 2003 SC 2902

Bequest to religious or charitable uses.-No man having a nephew or niece or any nearer

relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons:["Provided that nothing in this section shall apply to a Parsi."]

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In Danial Latifi v. Union of India 10 , a very controversial question of political significance (in the background of a secular constitution and the concept of welfare state) was revisited i.e. whether or not a divorced Muslim woman after divorce post iddat period is entitled to maintenance by her husband. Here, the Supreme Court adopted a middle path and held that reasonable and fair provisions include provision for the future of the divorced wife (including maintenance) and it does not confine itself to the iddat period only. In the case, Reynold Rajamani v. Union of India11, the court rejected a prayer to remove the discrimination between men and women under section 1012 (applicable to Christians). The Court based its approach on the limits of the courts jurisdiction. It held that when a legislative provision enumerates the grounds of divorce, those grounds limit the courts jurisdiction and the court cannot re-write the law, so as to add grounds of divorce not permissible under the section.

In Lily Thomas etc. v. Union of India and others13 the Court held that:The desirability of UNIFORM CIVIL CODE can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statement amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.The court further added while it was desirable to have a UNIFORM CIVIL CODE, the time was yet not ripe and the issue should (be) entrusted to the Law Commission which may examine the same in consultation with minorities Commission. That is why when the court drew up the final order signed by both the learned judges it said, the writ petition are allowed in terms of the answer to the questions posed in the opinion of kuldip Singh, J. These questions we have extracted earlier and the decision was confined to

10 11 12 13

2001 7 SCC 740 AIR 1982 SC 1261 The Indian Divorce Act, 1869 AIR 2000 SC 1650 at 1668.

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conclusions reached thereon whereas the observations on the desirability of enacting the UNIFORM CIVIL CODE were incidentally made.

Conclusion:
The issue under Art. 44 today is not whether the provision under Art. 44 are undesirable but only whether its implementation should be started now. The quotation of Hassan Imam, a member of Constituent Assembly, would be a befitting climax to this long discussion Talk of making India strong; it is all right and a very desirable thing to have a uniform law. It is a must thing because otherwise we would be guilty of making a nation within a nation, a community within a community. The section of the nation against the implementation of Uniform Civil Code contends that in ideal times, in an ideal State, a UCC would be an ideal safeguard of citizens rights. But India has moved much further from ideal than when the Constitution was written 50 years ago. In view of these conflicts of various personal laws, all equally recognized in India, it will be in the fitness of things that all inter-religious marriages [except those within the Hindu, Buddhist, Sikh and Jain communities] be required to be held only under the Special Marriage Act 1954. Even if such a marriage has been solemnized under any other law, for the purposes of matrimonial causes and remedies the Special Marriage Act can be made applicable to them. Such a move will bring all inter-religious marriages in the country under uniform law. This will be in accordance with the underlying principle of Article 44 of the Constitution of India relating to uniform civil code.14 But to conclude, I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nations unity, but also makes one
14

LAW COMMISSION OF INDIA; report no. 212; 2008

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wonder

whether

we

are

sovereign

secular

republic

or

loose

confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits.

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Uniform Civil Code: A Secularization of Family Laws In India

Bibliography:
Websites referred

http://lawcommissionofindia.nic.in/reports/report212.pdf
http://jurisonline.in/2010/03/uniform-civil-code-an-unfulfilled-vision/

http://www.goforthelaw.com/articles/fromlawstu/article14.htm Cases Referred

Danial Latifi and another v. Union of India (2001) 7 SCC 740 John Vallamattom v. Union of India 2003 (5) SCALE 384 Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650 at 1668. Mohammad Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556.

Maharishi Avadhesh v. Union of India; 1994 Supp (1) SCC 713

People v. Kevorkian, 447 Mich. 436, 527 N.W.2d 714

Pannalal Bansilal v. State of Andhra Prades;

paragraph 12: (1996) 2 SCC 498

AIR 1996 SC 1023

Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others, AIR 1995 SC 1531

Reynold Rajamani v. Union of India; AIR 1982 SC 1261

Acts

The Criminal Procedure Code (Cr.P.C); 1973 The Muslim Women (Protection of Rights in Divorce) Act; 1986 The Indian Divorce Act, 1869

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Uniform Civil Code: A Secularization of Family Laws In India