Uniform Civil Code
“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” States article 44 of the Indian constitution under the directive principles of the state policy. This means bringing uniformity of civil law across the nation and making it secular in a modern way that is accepted by the society as a whole regardless of the ancient religious practices. Contrary to articles 25-28 of the Indian constitution which allows all religions to maintain and deal with their own matter.
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According to the lex loci report of 1840, the British felt a necessity of codifying uniform laws in criminal, evidence, and contract but the personal laws were avoided and not discussed due to the huge diversity in India and to avoid interference and disputes with the Muslim and the Hindu leaders. And decided to only handle exceptional cases and let the panchayat deal with the regular civil cases.
Except for Goa as during that time Goa was ruled by the Portuguese, so the personal law was not in effect there but the goa civil code, and to date, goa is the only state in India that still follows the uniform civil code.
Image Source: hinduexistence.org
Formation of uniform civil code
As India is a secular country that has many religions and making one country one law would not only hurt the religious sentiments but also arise disputes among the community and the government. On the other hand, adopting the modern and practical ways of living is necessary, voicing up against religious malpractice is important.
The uniform civil code was first enforced in 1985 when the Mohammad Ahmed Khan v. Shah Bano Begum case came up to the supreme court when her husband had divorced her after 40 years of marriage by triple talaq and denied paying her for maintenance. The court announced its verdict in the favour of shah begum and wanted to frame a uniform civil code. But later the Rajiv Gandhi government overlooked the uniform civil code and implemented the protection on the right of divorce in 1986 considering the Muslim women.
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Later similar cases came up questioning the integrity of the decision made by the government by not enforcing the civil code. Such as the Sarla Mudgal vs Union of India regarding the second marriage of a Hindu man. John Vallamattom regarding the Indian succession act. The enforcement of the uniform civil code would bring out the true meaning of equality before the court of law irrespective of caste, color, religion, gender, and class.
It would just not promote gender equality but also bring up the women who do not to date have access to freedom of speech, clothes, travel, work and marry by their own choice which is the basic necessity of any human being for which women are still struggling.
Allowing a particular gender to have multiple spouses and restraining other gender or religion from doing the same thing is not equality. Implying uniform civil code is not ruling a country by the laws of a particular religion but following the basic humanity and giving each individual freedom and discontinuing the practices that go up against it.
Irrespective of the diversity India has it is difficult for the government to consider each religion’s best interest but spreading awareness and making people understand the law would bring a massive difference to the society as many still feel the uniform civil code is endorsing Hindu family law and making other religions follow the same. The uniform civil code might be slightly reducing the freedom of religious practices in a certain way but for the betterment of the society.
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Steps were taken to unify personal law
The prime minister Jawaharlal Nehru in the 1950s took a step towards unifying the nation after the incomplete codification of the personal law. It led to a feeling of unjust in the Hindu politicians and leaders of that community when their laws were only to be reformed.
To bring that equality back Nehru passed out four bills which were the Hindu marriage act, the Hindu succession act, the Hindu minority and guardianship act, and the Hindu adoption and maintenance act.
Agreed upon the necessity of uniform civil code after the failed attempt towards uniformity and equality when the majority of the divorce cases initiated by men were put forward and women faced a hard time with it. While the Hindu marriage act promised to give equal voice to men and women failed to prevent gender discrimination.
The personal Hindu law kept other community women under privilege. Later the special marriage act 1954 was issued which could be said as the improved version of the Hindu marriage act. As it did not have a specific religion and involved all communities.
The special marriage act gave rights to Muslim women against polygamy which was practiced and legal under the personal law were now considered illegal. The inheritance of agricultural property to women and divorce along with alimony and maintenance would follow the civil law. The special marriage act 1954 is applicable in all the states of India except Jammu and Kashmir.
The criminal law in India is uniform but the civil laws are applicable by faith which shows a lean age towards benefits acquired from any law in the form of reservation as a minority to the subsidies of Indian law criminal punishments according to the Indian law but marriages according to their own religious law.
Personal law which consists of marriage, adoption, child custody, divorce, and succession are the primary norms of the society that does not have to do anything with any religion. It does not infringe on any right of practicing a particular religion.
After article 370 the agenda of the government looks quite clear as it is working on the uniform civil code. It should successfully be there on the statute book under the theme of one nation one rule. India being a diversity needs equal law. If we can have a uniform criminal code then why can’t we have a uniform civil code?
–Written by Tanvi Joshi
(Writer, The Legal State)
– Edited by Harshit Khandelwal
(Editor, The Legal State)