DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

Academic Session: 2016-17

FINAL DRAFT
UNIFORM CIVIL CODE:
A SPECIAL REFERENCE TO SHAH BANO CASE

UNDER THE GUIDANCE OF:

SUBMITTED BY:

DR. SHASHANK SHEKHAR

AHKAM KHAN

FACULTY OF LAW

ROLL NO: 12

DR. RAM MANOHAR LOHIYA

SECTION A

NATIONAL LAW UNIVERSITY

B.A. LLB (Hons.), SEMESTER I

SIGNATURE OF PROFESSOR

SIGNATURE OF STUDENT

Page 1

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

ACKNOWLEDGEMENT

First of all, I would like to thank Dr. Shashank Shekhar for giving me this opportunity to make
the project on such an interesting topic and all the support and guidance that I have received
from him, without which this project could not have turned into a reality.
I would also like to thank all my colleagues and seniors for providing me support and material
facts and figures related to this topic.
Last but not the least; I would like to thank my parents for providing me appropriate guidance
and support to prepare the project.
All the above mentioned people have very whole heartedly helped me to make this project in the
present shape.

Page 2

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

TABLE OF CONTENTS

ACKNOWLEDGEMENT...............................................................................................................2
TABLE OF CONTENTS.................................................................................................................3
INTRODUCTION...........................................................................................................................4
ARTICLE 44....................................................................................................................................6
PERSONAL LAWS.........................................................................................................................8
THE SHAH BANO CASE: CASE BRIEF AND CONSEQUENCES OF THE DECISION.......10
THE CONSEQUENCES OF THE DECISION.........................................................................12
MUSLIM WOMEN ACT, 1986: DANIAL LATIFI CASE...........................................................15
GRADUAL REFORMS................................................................................................................16
CONCLUDING REMARKS.........................................................................................................17
BIBLIOGRAPHY..........................................................................................................................18

Page 3

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

INTRODUCTION

Uniform Civil Code(hereby referred as UCC) or Common Civil Code is a topic that causes much
furor in a pluralist diverse democracy like India and is a topic which has been the hot bed of
discussion from its inception into the Indian Constitution. With time it has gained the center
stage of the convoluted politics in India, which is driven more by sentiments than logic. It is also
a topic which veritably shows how the lack of initiative on the side of legislature would nullify
the effect of good counsel by the esteemed judiciary. In short, it is a very controversial topic
which irradiates a reader about the hindrance and obstacles in the way of democratic reform in a
country like ours.

The term civil code is used to cover the entire body of laws governing rights relating to property
and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
As things stand, there are different laws governing these aspects for different communities in
India. Thus, the laws governing inheritance or divorce among Hindus would be different from
those pertaining to Muslims or Christians and so on.

The demand for a uniform civil code essentially means unifying all these personal laws to have
one set of secular laws dealing with these aspects that will apply to all citizens of India
irrespective of the community they belong to. 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.

Having a common civil code would mean that the variances and the special provisions that create
so much confusion and anger would be uniform. There would not be any difference in the
implementation of laws since they will be the same for all and finally all the citizens of the
country could be on equal footing. The problem of arbitrary nature of some of the laws would be
Page 4

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

easily dealt with since then these laws could be challenged easily and removed without facing
the angst of the public. These would be easily amendable and would not be anachronistic in their
nature.

Apart from being an important issue regarding secularism in India, it became one of the most
controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then
focused on the Muslim Personal Law, which is partially based on the Sharia law and remains
unreformed since 1937, permitting unilateral divorce and polygamy in the country. The Bano
case made it a politicized public issue focused on identity politicsby means of attacking
specific religious minorities versus protecting its cultural identity.

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
The British feared opposition from community leaders and refrained from further interfering
within this domestic sphere. The demand for a uniform civil code was first put forward by
women activists in the beginning of the twentieth century, with the objective of women's rights,
equality and secularism. Till Independence in 1947, a few law reforms were passed to improve
the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu
Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by
Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept
the compromise of it being added to the Directive Principles because of heavy opposition.

Page 5

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

ARTICLE 44

Article 44 of the constitution of India lists Uniform Civil Code as one of the Directive Principles
of state policy. Which comprise the Part IV of the Constitution of India, are guidelines for the
State and Central Governments to help them in framing laws and policies. However these
Directive Principles shall not be enforced by any court, but the principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be duty of the state to
apply these principles in making laws, according to Article 37 of the Constitution which talks
about the application of principles contained in Part IV. 1

This Article requires the State to take necessary actions to propagate the idea and to take steps to
bring Common Civil Code in India. When this article was discussed by the constituent assembly
as Article 35, Mohd. Ismail Sahib wanted the proviso 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 to be inserted.2 He gave the examples of Yugoslavia wherein there were different laws for
Muslim population in matters of family law and personal status. Two arguments were put
forward by the opposing side, firstly, it would infringe the freedom of religion guaranteed by
Article 25 and secondly that it would be a tyranny to the minority who has to give up their
practices for the favor of those followed by the majority.3 The first objection is misconceived,
since Clause (2) of the Article 25 specifically saves secular activities of state associated with
religious practices from the guarantee of religious freedom contained in Clause (1) of the Article
25.4

1 Khanjan Rawani, What is Uniform Civil Code that has been promised in BJPs manifesto
DNA(Mumbai, 7 April 2014).
2 Constituent Assembly of India Debates, Vol VII, 23 November 1948.
3 VN Shukla, The Constitution of India(10 edn 2001, Eastern Book Company) 308.
Page 6

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

As for the second objection, Shri K.M. Munshi gave the examples of countries like Egypt and
Turkey with predominantly Muslim populations which have no special rights for the minorities.
He also gave example of the Khojas and Cutchi Memons, who dissatisfied with the enactment of
the Shariat Act since they had since old followed certain Hindu customs. He even gave examples
of European countries, most of them having a Common Civil Code and that everyone in that
country, be it an immigrant or a resident has to follow them. 5 However, Article 44 is in the Part
four of the constitution, i.e. it is not enforceable. Article 37 lays down the basic framework
wherein the part IV can apply. Part IV contains Articles 37 to 51; it contains what may be
described as merely obligations of the state. The directive Principles of State Policy possess
mainly two characteristics, first, they cannot be enforced in any court of the country, and second,
if state does not follow the guidelines given in DPSPs, its obedience or implementation cannot be
secured through judicial proceedings.6

Part IV of the constitution is designed to bring out the social and the economic revolution
promised at the time of independence; these principles which aim at making the Indian masses
free in positive sense ordains that the state shall strive to promote the welfare of the whole
people.7

4 VN Shukla, The Constitution of India(10 edn 2001, Eastern Book Company) 308.
5 VN Shukla, The Constitution of India(10 edn 2001, Eastern Book Company) 354.
6 VN Shukla, The Constitution of India(10 edn 2001, Eastern Book Company) 342.
7 Shailja Chander, Justice VR Krishna Iyer on Fundamental Rights and Directive Principles (2003,
Deep & Deep Publications) 242.
Page 7

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

PERSONAL LAWS

Merriam Webster dictionary defines personal laws as law that applies to a particular person or
class of persons only wherever situated- distinguished from territorial law. Personal Laws are
that body of laws whose content differs from person to person based on his ethnicity or religion.
These laws are separate from the territorial laws, given the universality of the previous one.
These generally apply on the matters relating to family law, inheritance, adoption, marriage,
divorce, property, etc. It was thought that in order to guarantee the principle of secularism, the
state ought to remove the variances in the personal law and replace it with a common civil code
since the concept of a secular state presupposes uniform civil code.8

These are more or less based upon the observed customs and rituals being carried on since time
immemorial and legislations which codify them. They are somewhat hereditary in nature; in that
laws relating to religion and customs will be assessed based on the standing practices.

The first exercise of separate laws for separate subjects, which is modern days contentious topic,
was from the time of Sir Warren Hastings. He imposed the Muslim law on Muslims and the
Hindu law on Hindus on certain matters of litigation. He believed that it would be a great evil to
impose on Indian people a foreign legal system. Britons followed the example of Romans who
allowed their foreign subjects the right to practice their own religion and laws.

In course of time, Hastings policy of preserving the indigenous Indian laws came to be
appreciated and eulogized; it came to be recognized that to ensure the stability of British
government in India, it was of fundamental importance the affections of Indians be conciliated.9

8 Rajeev Bhargava(ed), Secularism and its critics (6 edn 2007, Oxford India Publishers) 245,246.
Page 8

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

He, due to the ignorance of local laws and lack of codification, even made available the native
law officers i.e. Kazis and Pandits, who would assist the judges in deciding. Soon however, this
system gave way to faults and loose points. There was an inherent lack of trust between the judge
and native law officers. This in turn led to the ascertainment of Hindu and Muslim laws.10

9 MP Jain, Outlines of Indian Legal and Constitutional History (6 edn 2008, LexisNexis Butterworths)
530.
10 MP Jain, Outlines of Indian Legal and Constitutional History (6 edn 2008, LexisNexis Butterworths)
530.
Page 9

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

THE SHAH BANO CASE: CASE BRIEF AND CONSEQUENCES OF THE DECISION

Case Name- Mohd. Ahmed Khan v Shah Bano Begum and Others.
Citation- AIR 1985 SC 945; [1985] 2 SCC 556; 1985 Cri L.J.
Coram- Y.V. Chandrachud, CJ.;D.A Desai, Chinnapa reddy , E.S Venkataramiah & Ranganath
Mishra JJ

Case history- The appellant who was married to the respondent in 1932, drove her away in 1975
after having three sons and two daughters. The respondent in 1978 filled an appeal I the klocal
district court of Indore under Section 125 of Cr. P.C for maintenance provision of rupees 500 a
month. The appellant, in November 1978 divorced the respondent by an irrevocable talaq. He
argued that the respondent had ceased to be his wife and he was no longer oblignated to maintain
her, and that he had deposited a sum of rupees 200 per month for about two years and that he
already deposited a sum of rupees 3000 in the court by the way of dower during the period of
Iddat. The District court increased it further to Rupees 179.20 per month. The appellant then
filled a special leave petition in the Supreme Court under Article 136.

Note- Despite having two case laws applicable namely Bai tahira v. Ali Hussain Fidalli Chothia 11
and Fazlunbi v. K.Khader Vali12, the division bench comprised of Murtaza Fazal ali and A.
Varadrajan decided that were not properly decide and referred this matter to a larger bench.

Question before the court11AIR 1979 SC 362

12 AIR 1980 SC 1730
Page 10

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

Does Sec. 125 of Cr. P.C applies to Muslims?

Does the Muslim law provide no obligation on the husband to provide for the

maintenance of the divorced wife?

Whether the provisions of sec 125 are in contravention or overriding the Muslim Personal

Law Shariat application act 1937

Whether the liability of husband to maintain his wife is limited to the period of Iddat?
Whether Mahr is alimony, dower or an amount in consideration of marriage payable at
the end of divorce?

Appellants Arguments

Under Muslim Personal law, the liability of the husband to maintain a divorced wife is

limited to the period of Iddat?

Sec. 127(3)(b) provides for a valid defense that if a woman has been paid the settlement
money under any personal law, she cannot lay claim under Sec. 125 and that Mahr is an

amount payable on divorce.

The discussions of Rajya Sabha when passing the Code of 1973 which clearly show that
if any change has to come, it has to come from within the Muslim community.

The Judgment

Section 125(1)(b) provides that wife includes a woman who has been divorced by, or
has obtained a divorce from her husband and has not remarried. The statutory right
available to her under that section is unaffected by the provisions of the personal law

applicable to her.
Section 125 overrides the personal law, if there is a contravention between the two.
The appellants arguments are insufficient to prove that a Muslim husband is not

obligated to provide maintenance to his divorced wife, who is unable to maintain herself.
Muslim personal law does not take into account the situation when a divorced wife is not
able to maintain herself, therefore the argument that the liability of a Muslim husband to
pay maintenance is limited to the period of Iddat.

Page 11

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

The Quran has an undisputed authority over the Muslim personal law, and its Ayat
number 241 and 242 say that- For divorced women maintenance(should be provided) on
a reasonable scale, this is the duty of the righteous; Thus doth God make clear his signs to
you in order that you may understand(NOTE- Appellant contended that Mata does not
mean maintenance but provision but the court held that it is a distinction without
difference and All India Muslim Personal Board said that Mutta Queena means more
pious and does not apply for general run). Thus, the aiyats of the Quran impose an

obligation to make provision for the maintenance of a divorced wife.

The fact that Mahr or dower is paid at the dissolution of marriage does not prove that it is
payable at the time. Mahr is an amount paid for the consideration of marriage but it is not
paid in consideration of Divorce ergo it does not come under the purview of Section

127(3)(b).
A Muslim wife is entitled for maintenance under Section 125 and Mahr is not a sum

payable on divorce and thus does not come under Section 127.
The government should strive by its constitutional promise of realizing its obligation
under Article 44 and should forward itself towards a Common Civil Code.

The OrderThe SC dismissed the appeal and confirmed the judgment of the HC, the appellant will pay the
cost of the appeal which is ten thousand rupees.

THE CONSEQUENCES OF THE DECISION

The view pronounced in Shah Bano was that if a divorced woman cannot maintain herself, it
would appear to be rational, reasonable and sociologically relevant to grant her the right to
maintenance.13 This view was favoured by the liberals, however it was met with strict opposition
from the traditionalists. It was seen as if this act would curtail every Muslims right to carry on

13 MP Jain, Outlines of Indian Legal and Constitutional History(6 edn, 2008, LexisNexis Butterworths)
569.
Page 12

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

his religion, it was seen as though the state would necessarily violate the principle of secularism
and would affect an erosion of Muslim personal laws.

Widespread anger charged amid the masses. The other political interest also sought to use this
occasion to secure their own interests. This anger intensified and it was difficult to control. The
knowledge about this act in the minds of the outraging public was scant and this lead to origin or
a lot of rumors and misconceptions regarding the decision. The only argument that the
traditionalists could come up with while encountering the decision was that it was violative of
the Muslim traditional law.

The state had previously codified and reformed the Hindu personal law in 1950s, however this
time the situation was rather different. Even though the laws of Hindus themselves were rather
varied, they occupied the majority throughout the history of the country. In the cases of reforms
in Muslim laws, however, there was a problem that they were in the minority. Since the time of
constitutional assembly debates on Article 35(Now Article 44) to the current scenario, any
attempt to make reforms or changes in the Muslim laws is met with fierce and often ill-informed
resistance. There is an inherent lack of knowledge amongst most of the people about the actual
content and implications of the Muslim laws. This ignorance gives way to problems of ignorance
which breeds the issue of misinformed choices and resistances. Each step to change and alter
laws to make them more in tune with modern scenario is met with distrust due to many caprices.

This situation was no different. The tension led to Shah Bano herself withdrawing her claim of
maintenance.14 The rigid approach of Muslim leadership provided further fuel to Hindu right
wing forced in their anti-Muslim propaganda. This placed the secular groups in awkward
position, and in order to separate themselves from the right wing Hindu forces, they withdrew
the resistance.

14 Flavia Agnes, Women and Law in India (2006, Rashtriya Printers) 103.
Page 13

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

The Congress faced defeat in several state assembly elections in 1985-86, as the Muslim vote
tipped the favour to the opposition parties. Against this backdrop of dwindling support, the
government decided to enact the Muslim Women Protection from Divorce Act, 1986. This act
was an effort to pacify the Muslim sentiments which were ruffled due to the Government
reopening the locks of the disputed shrine in Ayodhya.15

15 Flavia Agnes, Women and Law in India (2006, Rashtriya Printers) 103.
Page 14

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

MUSLIM WOMEN ACT, 1986: DANIAL LATIFI CASE

The Supreme Courts decision in Shah Bano was subject to a prolonged agitation by the Muslim
fundamentalists, resulting in the passing of Muslim Women(Protection of the Rights on Divorce
Act) 1986 (hereafter referred as MWP). It was claimed, within it, that this act would give
Muslim women more than the Section 125 of the Cr.P.C. and that this act should be welcomed as
a first step towards codification.16 The act lays down that a divorced woman can claim reasonable
and fair provisions and maintenance from her former husband and the former husband must do
so within the period of Iddat, and his obligation is not confined to the period of Iddat only.
Where a Muslim divorced woman is unable to maintain herself after the period of Iddat, the
Magistrate is empowered to make an order for the payment of maintenance by her relatives who
would be entitled to inherit her property on her death according to Muslim law in proportions in
which they would inherit her property. If any of such relatives is unable to pay his or her share on
grounds that of his or her not having the means to pay, the Magistrate would direct the other
relatives who have sufficient means to pay for such relatives share also. But where, a divorced
woman has no relatives or such relatives or any one of them has not enough means to pay the
maintenance or the other relatives who have been asked to pay the share of the defaulting
relatives also do not have the means to pay the shares of the defaulting relatives, the Magistrate
would order the State Waqf Board to pay the maintenance ordered by him or the shares of the
relatives who are unable to pay.17 Another significant point to be noted is that Section 5 of this
act gives the option to the parties when they first appear before the Magistrate on the application
of the wife under Section 3, to be governed by this act or by Section 125 of the Cr.P.C. 1973,
which indicates that there is no inconsistency between the two provisions.18

16 Paras Diwan, Law of Marriage and Divorce (5 edn 2008, Universal Law Publishing) 686.
17 Danial Latifi v Union of India, [2001] 7 SCC 740.
18 Paras Diwan, Law of Marriage and Divorce (5 edn 2008, Universal Law Publishing) 694.
Page 15

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

The validity of MWP was challenged before the SC by way of writ petition in the case of Danial
Latifi19 where the five judge bench of the Supreme Court upheld the Constitutional validity of the
Act. 20

GRADUAL REFORMS

In free India, the Governments made only few attempts to secularize the personal laws or to
enact them in such direction. However there are still some laws which prove that the legislature
is slowly but steadily trying to secularize the personal laws. The special marriage Act 1954 is one
such example. This act for the first time brought a code of a secular code of marriage, divorce
and inheritance, the marriage was monogamous and the divorce

was permitted on the

progressive ground as mutual consent also it enabled Indians to marry irrespective of their
religion and without renouncing their religion21However it was optional and was not imposed
compulsorily on the whole citizenry of the country.

Other acts like the Hindu Code of 1955-56 were seen in dubious light. While some hailed this act
as being the first step towards UCC, others thought that it would be better that the Government
directly implements UCC.22 This act brought reforms in the Hindu Personal Law which was
rather varied. The step to provide a uniform law governing adoptions was also opposed by the
muslim and the scheduled caste community when the Indian Adoption Bill 1976 was enacted
giving Indians all over the power to adopt a child of any religion. 23Even the section 125 which
19 Danial Latifi v Union of India, [2001] 7 SCC 740.
20 Kusum, Family Law Lectures: Family Law I (2 edn 2008, LexisNexis Butterworths) 263.
21 Ajai Kumar, Uniform Civil Code: Challenges and Constraints (2012, Satyam law International) 98.
22 Ajai Kumar, Uniform Civil Code: Challenges and Constraints (2012, Satyam law International)
99,100.
23 Ajai Kumar, Uniform Civil Code: Challenges and Constraints (2012, Satyam law International)101.
Page 16

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

replaced the old Codes section 488 was secular in that it warranted that any wife unable to
maintain herself can claim compensation from her husband and also included within its purview
the wives who were divorced and had not remarried.24Another significant step is the compulsory
registration of marriage under the compulsory registration of marriages Act 2006, Which will
strive to curb the problems of child marriages, polygamy and womans legal insecurity regarding
marital status.25

24 Ajai Kumar, Uniform Civil Code: Challenges and Constraints (2012, Satyam law International)103.
25 Ajai Kumar, Uniform Civil Code: Challenges and Constraints (2012, Satyam law International)106.
Page 17

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

CONCLUDING REMARKS

Uniform Civil Code is a rather controversial idea in the modern times, even though the
awareness in on the rise in the public yet many myths and misconceptions still prevail in the
public. These misconceptions are the root-cause why the government especially the legislature
deters from making and implementing UCC provisions. Further even the reforms in the personal
laws are viewed with suspicion and hostility as efforts to obliterate and rupture the religion and
religious practices. Added to the problems is the short temper and high ignorance of public and
over-protectiveness of the state. This breeds the divisionary politics and the vote-bank politics
which is harmful for the country.
No doubt that there have been steps taken towards the realization of UCC and secularism and
equality however they have been slow. The Supreme Court has often emerged as a protector of
civil liberties and has stated on numerous occasions the urgent need for UCC, alongwith its total
lack of jurisdiction in the formulation of UCC provisions. In conclusion till the time there is a
conscious effort on the part of public or a responsible and foresighted legislature, the dream of
the fathers of our constitution will remain a dream and India will not be able to function as a
democracy in true emphatic sense.

Page 18

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY BOCL PROJECT

BIBLIOGRAPHY

V.N. Shukla, The Constitution of India (10 edn 2001, Eastern Book Company)
V.N. Shukla, The Constitution of India (11 edn 2001, Eastern Book Company)
Shailja Chander , Justice V.R Krishna Iyer on Fundamental Rights and Directive

Principles (2003, Deep&Deep Publications)

Rajeev Bhargava(ed), Secularism and its Critics ( 6 edn 2007, Oxford India publishers)
M.P Jain, Outlines of Indian legal and Constitutional History(6 edn, 2008, Lexis Nexis

Butterworth)
Flavia Agnes, Women and Law in India (2006, Rashtriya Printers)
Paras Diwan, Law of Marriage and Divorce (5 edn, 2008, Universal Law Publishing)
Kusum, Family law lectures Family law 1 ( 2edn 2008, LexisNexis Butterworths)
Ajai Kumar, Uniform Civil Code: Challenges and Constraints ( 2012, Satyam law

International)
SCC Online
A.I.R
www.mmscagoa.com

Page 19