In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal, writes about the need for Uniform Civil Code, its relation with the Constitution of India and judicial opinion on it. 

The Constitution of India recognizes Fundamental right to equality as one of the basic rights of an individual. Despite that, the inequality between men and women continues to exist in personal laws. Even after the adoption of secularism, the parliament of this country has been unable to resolve this problem, as personal religious laws are the main law which still have gender discrimination, but these religious laws are considered by the constitution and its makers as the one that is immune to state control.

 There is an urgent need to address the women empowerment in the core areas of health, security, etc. The Constitution of India provides for a code for all the citizens of India, called Uniform Civil Code[1]. However, the uniformity exists only in the criminal law, as criminal law is applicable equally to all the citizens of the country irrespective of the religion. In the case of civil law, there is no uniformity especially in the matter of Personal laws. The laws that govern marriage, divorce, inheritance, etc. vary depending on religion.

In India, there are different laws, ex- Hindu Marriage Act, Shariat Law, Indian Christian Marriage Act, etc. Thus, it is clear that there is no uniformity in all personal laws as they confer unequal rights depending on the religion and the gender.

Personal Laws And Discrimination Against Women

In The Holy Quran women has been given equal rights as men and it places women in respectable positions. However, there are certain areas where the women had been granted status lower to men. Quran provides for the concept of ‘Hiba’. This concept provides that the men are the guardians of women since they are the bread earner of the family. It is, therefore, his duty to feed his woman.

Quran gives permission to men to have 4 wives. However, such right has not been given to women. In the case of divorce, women have been helpless. Quran provides the manner of divorce which requires men to pronounce ‘talaq’ thrice, and he is granted with a divorce. This method is highly discriminatory against the women. In the matter of succession, women are given not more than half of the share as compared to the proportion that is given to men. For example, if brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share.

Iddat period is the period after the divorce or the death of the husband in which a Muslim woman has to remain unmarried. During this period she is not allowed to remarry. In the matter of divorce, she is not entitled to any maintenance beyond the iddat period.

The Indian law provides that it is mandatory for every husband to provide his wife with the maintenance until she is able to maintain herself.[2] But whether such a law is applicable to Muslim Law or not, has been a matter of debate. It was held by the Supreme Court in a case that even Muslim women are entitled to the maintenance for the period beyond iddat.

In the case of Danial Latif v. Union of India, [3] it has been held that

“when the act of 1986[4] is challenged, a Muslim husband always has the duty to maintain his wife after the divorce and has to make a fair and reasonable provision for the future of his wife.[5]”
Similarly, among the Christians and Parsi Women, there is disparity in the rights of the women as compared to the men.

The constitution of India and Uniform Civil Code:

Article 44 of the Constitution of India, directs the State to provide a Uniform Civil Code throughout the territory of India. But, because the concept of Uniform Civil code comes under the DPSP it does not put any obligation on the part of the government to enforce it. During the incorporation of the UCC there has been a great opposition by the Muslim members of the parliament.

Naziruddin Ahamed, Mohd. Ismile Sahib, Pocker Sahib Bahadur and Hussain Sahib etc., made a scathing attack on the idea of having a Uniform Civil Code in India. They claimed that it is the right of the people to follow their personal religious laws, that their personal laws are the part of the culture that they follow and their religion. They claimed that the introduction of UCC would lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country and that in a country so diverse it is not possible to have uniformity of civil law. Many members of the parliament like K.M Munshi felt that if the personal law of inheritance, succession etc is considered as a part of the religion, the equality of women can never be achieved.

Dr. BR Ambedkar, who was the chairman of the drafting committee, gave many examples of Transfer of Property Act, Uniform Civil Law, etc. that are applicable uniformly to all in the territory of India. Succession and Marriage are the only areas where this uniformity has not been made applicable.
The foregoing discussion clearly establishes that the framers of the constitution were aware of the gender injustice and sexual inequality of women, and they incorporated Article 44 in the constitution hoping that it would be introduced in future at the appropriate time.

Judicial Opinion and Uniform Civil Code

There have been cases in the Indian courts when the judiciary has realized the injustice done to women in the name of personal laws and have upheld the usage of uniform laws above the personal laws.

Supreme Court in Mohd. Ahamed Khan vs. Shah Bano Begum [6] held that even though it has not been given in the Muslim Law, but it is the duty husband to maintain his wife beyond the Iddat period. Therefore, S. 125 Cr. P. C which makes it mandatory for the husbands to maintain their wives is secular in nature.

Chinappa Reddy, J. in the case of Ms. Jordan Deigndeh vs. S.S. Chopra, stressed for the immediate need of a Uniform Civil Code. He focused on the unsatisfactory state of affairs that is the result of the absence of a uniform civil code.

Again in the case of Sarala Mudgal vs. Union of India[7], the Supreme Court strongly felt the need of introducing Uniform Civil Code in India. The judges, in this case, declared that those marriages that had been done by the Hindu male upon conversion to Islam with the intention of conducting polygamy are void[8]. In case, a Hindu male converts himself to Islam, while his first marriage is still subsisting, in such a case there has been an injustice to his first wife therefore, his second marriage would be considered to be void.

The bench, in this case, said that the personal laws of the minorities should be rationalized to develop religious and cultural amity preferably by entrusting the responsibility to the Law Commission and Minorities Commission.

Conclusion

Thus, it is clear that the  Article 44 talks about the uniform civil code throughout the territory of India and is made to promote unity and integrity in the territory  of India. Such an intention is provided in the preamble of the Constitution.

There has been a drastic change in the Hindu laws, in the first decade of the commencement of the constitution, but there has been a constant opposition from the Muslim community in this respect. The present scenario in which there is discrimination between men and women is unjust and inhuman. Justice Kuldeep Singh has rightly said that personal laws and religion are not connected. Marriage, succession are the matters that are secular in nature and that, these cannot be brought within the framework of Right to Religion.[9]

The inhuman practice of polygamy has been said to be against the morals of public in many countries like the USA. There have been various Islamic countries that have abolished polygamy.  Therefore, there is a need to make Uniform Civil Code, applicable to all throughout the India.

There is a need for a Uniform Civil Code that is made up of some of the best laws in each religion, with the objective of removing gender bias. Until and unless the women have been granted equal rights as men, under personal laws, the right to equality that is ensured by the constitution of India cannot be said to be fully implemented. However, while ensuring equality, adequate care should be taken to see that only the rights are made uniform and not the rituals which are an inherent part of the culture and religion as otherwise it would violate the basic structure of the constitution viz. secularism.

[1] Article 44.of the Constitution of India.

[2] S. 125 of the CrPC.

[3] of Danial Latif Vs. Union of India, (2001) 7 SCC 740

[4] the Muslim Women (Protection of Rights on Divorce) Act, 1986

[5] 3(1) (a) of the Act

[6] Mohd. Ahamed Khan vs. Shah Bano Begum AIR 1985 SC 945

[7] Sarala Mudgal vs Union of India AIR, 1995 1531,

[8] S. 494 IPC.

[9] Article 25-28 of the Constitution of India.