Are you demanding impossible?

 INTRODUCTION

The demand for Uniform Civil Codeis engaging the attention of all sections of the society. There is a considerable misunderstanding in the minds of Muslim community regarding the actual scope and nature of reforms sought to be introduced through UCC. It is generally argued by the Muslim thinkers that Shariat law is divine law and interference with it is not permitted. They are indirectly suggesting that people demanding reforms through UCC want to meddle with the divine law, which may amount to an attempt to revolutionize the Muslim law and to re-write the holy Quran.

So far as administration of Mahomedan Law in India is concerned, Mahomedan Law is applied by the courts in India to Mahomedans in some important matters only. Mahomedan laws are not applied in all cases. The rules of Mahomedan Law are applicable in three ways in India. Firstly, those rules which have been expressly directed by the Legislature to be applied to Mahomedans, such as rules of succession and inheritance; Secondly, those rules which are applied to Mahomedans as a matter of justice, equity and good conscience, such as rules of Mahomedan law of pre-emption; Thirdly, those rules which are not applied at all, such as Mahomedan Criminal Law and Mahomedan Law of Evidence.  Section 2 of The Shariat Act, 1937, says that where the parties are Muslims, then Muslim personal law will be applicable in important matters only. 

The Muslim personal law was applied to Muslims in British India as a matter of policy and not as a matter of religion. The rules of Muslim law were applied only in certain important cases according to section 2 of Shariat Act, 1937. But Muslim wives are subjected to lot of sufferings at the hands of their husbands. Hence at least a fresh look is required in the matters of marriage, divorce and polygamy.

UCC- a national and international Obligation

A UCC is a binding obligation under domestic laws and international conventions. India has already ratified the International Covenant on Civil and Political rights, which was drafted and agreed in 1966, and International Convention on the Elimination of all forms of Discrimination Against women, which was drafted and agreed in 1979. India is, therefore, bound to enforce the relevant provisions of the said treaties to ensure gender equality under domestic laws. Although, women in India, under Muslim, Christian and Hindu laws continue to suffer discrimination and inequalities in the matters of marriage, divorce and succession. Hence, thinking towards a gender just code reforming the personal laws of various communities is the need of the hour. This will be in compliance of Indian Constitution and provisions of International Laws.

The demand for UCC is not new. Recently the chief Minister of Uttarakhund announced enactment of UCC immediately after taking oath on 23-3-2022. Article 44 of Constitution of India says that state shall make every endeavour to secure for the citizens UCC throughout India. This is one of the very important directive principles given in our Constitution. Although these principles are not justiciable/enforceable through court of law but they are guiding force for the governance of our country. The ideal set by the founding fathers of our Constitution before the state was that state should strive for achieving UCC for citizens of our country. State of Goa and Pondicherry are following Portuguese and French civil laws as uniform code.

The Indian Contract Act, 1872 and all the criminal laws are uniform for all the castes and communities. The principles of formation of contract are same for everyone. The criminal laws never distinguish between the perpetrator of a crime on the basis of sex, caste, creed, religion or faith. Similarly, the Special Marriage Act, 1954 is an Act passed by the legislature with provision for civil marriage for people of India and all Indian nations living in foreign countries, irrespective of religion or faith followed by either party. If someone solemnises his/her marriage under special marriage Act, 1954, succession to his or her property will be decided by Indian Succession Act, 1925. In 1954, it was commented as a step towards UCC. But this step was optional. Now the demand appears to be for a binding legislation. These are few piecemeal examples, which may be termed as a step towards UCC.

The landmark decision of Supreme Court in Mohd. Ahmed Khan v. Shah Bano allowing maintenance to a divorced Muslim women under section 125 Cr.P.C., was also a stepping stone towards UCC. The apex Court said that state should take initiative in making UCC. However, in Shayara Bano v. U.I.O., the Supreme Court declared that triple talaq is constitutionally invalid, but the dissenting opinions of minority judges, Hon’ble the Chief justice Kehar and Justice Abdul Nazeer held that practice of talaq-ul-biddat is a part of personal law and it has equal status to other fundamental rights. Their Lordships opined that “the practice of triple talaq cannot be set aside on the ground of constitutional morality.” This dissenting opinion was a negative step so far as development of UCC is concerned.

In Panna Lal Bansi Lal Patil v. State of Andhra Pradesh, it was observed by the Supreme Court that uniform law for all persons may be desirable, but its enactment in one go may be counterproductive to the unity of nation.

In Sarla Mudgal v. Union of India, it was held by Supreme Court that UCC was necessary for protection of the downtrodden and oppressed people and for promotion of unity and integrity of the nation. Article 44 is based upon the notion that there is no connectivity between religion and personal law in a civilised society. The court also observed that matters like succession, marriage,  are matters of secular nature and they can be regulated by law.

The compulsory UCC cannot escape the criticism on the ground of violation of fundamental rights and even the basic features of our Constitution. Law Commission of India, which was chaired by Hon’ble Mr. Justice B. S. Chauhan also noted that the UCC is “neither necessary nor desirable at this stage” in our country. It was also pointed out that “culture cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to territorial integrity of the nation.”

A UCC if enacted and enforced attracts so many complexities of great magnitude. It will affect the entire populace. The common diversities are for instance, Hindu Law regards marriage as a sacrament whereas Muslim Law regards it as a contract. Different ways of life and religious rites exist amongst Hindus and Muslims. The methods and grounds of divorce are different amongst Hindus and Muslims. Muslims practice travel marriages also where the term of marriage ends with the time of travel. This is known as muta marriage. Muslims are allowed polygamy; they can have four wives at a time. Adoption of child is not at all recognised in Muslim Law as opposed to Hindu Law. In Muslim Law mother of a child is not recognised as a guardian after the death of her husband, whereas in Hindu Law she is legal guardian of her children after death of her husband. Tribal groups have different personal law system. Christians have their own system of marriage. Should all this be uniform?

It will be difficult to fabricate uniformity out of various diversities prevailing in our country. Besides that framing UCC is likely to be a work of many hands, minds and hearts. Let us see how far Government is serious in enacting UCC and how far will it be feasible?  Otherwise we will have to adopt the wisdom of Yashoda mata, where “once upon a time, child Lord Krishna asked his mother to give him moon as a toy. Mother Yashoda handed him with a mirror with reflection of the moon.” (Author is former District and sessions Judge, U.P., presently Professor of law at JEMTEC School of law, Greater Noida)

By Professor Dr. N. K. Bahl