This article is written by Divya Uttam Thorat.

Introduction

The Indian Constitution^[1] envisages Fundamental Rights as the cardinal principle of our democracy. It promulgates one of its rights i.e. the Right to Equality^[2] as a strengthening pillar to all those who are addressed as “Indian Nationals”. Article 44^[3] represented under the Directive Principles of State Policy in the Constitution remarks the Indian state to follow a single law throughout the country by implementing the Uniform Civil Code. A single discrete law in the form of unification of personal religious laws would bring fair and non – discriminatory features in its execution. In India, we have the Hindu laws^[4], the Shariat law^[5], the Shia laws, the Indian Christian Marriage Act^[6] and the Parsi Marriage and Divorce Act^[7] which govern a particular paradigm of its own for the Muslims, Christians and Parsis respectively. These laws that govern the women rights on property and divorce have inadequately been ignored. Thus, Uniform Civil Code stresses on the modern development and the linkage between uniformity and religion.

Violation of the objectives of the Constitution

So far, the Indian state is retrospectively lacking behind in implementing the Right to Equality in personal laws which link men and women in the social sphere. It has been noticed by the implementation of these personal laws, that the rights of women are also not sufficiently protected. We have Constitutional Remedies^[8] for our Fundamental Rights. But why do we not have remedies and solutions for the infringement and discrimination under personal laws? Why has that not been broadcasted by the law makers? Although having acquired secularism^[9] as a basic feature, the differences of both men and women on one part and the religious personal laws, on the other hand, have been unsolved.  The UDHR^[10], in its preamble also mentions equal status, rights, opportunities and status to women in comparison to men. But the huge gaps and differences followed in our country’s personal laws, has itself led to a drastic and a gross violation of human rights under various International Conventions which India is a part of!

Following the Criminal Code of India

Nevertheless, the uniformity of following a single law only survives in the country’s official Criminal Code regarded as the ‘Indian Penal Code, 1860’ irrespective of an individual’s personal religion and faith. Thus, it is explicit that only the criminal justice system follows a discrete law for all whereas there is no uniformity in civil laws as personal beliefs and faiths come into subsistence for their implementation.

 Since the initial years of historic progression, there have been instances where our country has been discriminating on the rationale of personal laws. Such laws modulate and govern an individual’s rights on marriage, divorce, guardianship, succession etc. as they have been contrived from the past societal norms. These norms have been formulated from rules, customs and beliefs in the social institution of a family setup. Such laws specifically highlight a patriarchal form of culture wherein it is extremely unreasonable and unjustifiable for a woman as these laws prove to be very discriminatory in its essence.

Comparisons of various Personal laws

Let us collate the Hindu, Muslim, Christian and Parsi Personal Laws to understand any present distinctions in their personal laws. Following are the instances where such differences could be explicitly seen:

• Indian Muslim Laws

1. The act of ‘polygamy’^[11] followed by the Mohammedans is not followed by the Hindus, where a man can have more than one wife but a woman on her part has no such rights.
2. Before the landmark judgement of the Honorable Supreme Court in Shah Bano Begum case^[12], divorced Muslim women were not entitled to enjoy a single rupee in contrast to the Hindu divorced women.
3. Under the Muslim law, if there is no free consent by the bride then the marriage is considered to be void and illegal but the same provision is not applicable to a Hindu bride.
4. Under the Muslim laws, the volume of property inherited by a women hair is half the quantum of property inherited to a male hair.

• Indian Hindu laws

1. The Hindu Minority & Guardianship Act, 1956 Act gives ‘mothers’ a secondary status and a subordinate position in the context of guardianship.
2. In India, even after being a stringent follower of Equality, we are yet to introduce the concept of ‘Matrimonial Property’ where the interests of women are safeguarded and protected.

• Parsi laws

1. Under the Parsi laws, it has been stated that the children of a Parsi Zoroastrian man married out of the community are accepted in the Parsi community and are called as ‘Parsis’ but the same is not the case of a woman. In case, a Parsi Zoroastrian woman marries outside her community, her children are not accepted as ‘Parsis’ and such children are also denied entry to the Fire Temple.
2. Further, if a Parsi woman marries a non – Parsi man, she is not accepted as a Parsi anymore and she is banned from following all the religious practices as a Parsi.
3. Children who have navjote, but belong to the Parsi mother and a non – Parsi father are denied and prohibited to enter the Agiary as well as they are not consigned to enter the Tower of Silence.
4. Also, when a Parsi woman dies, her son and daughter have an equal share in the property but on the other hand, the daughter gets an unequal share when she has to acquire her Father’s property.

Historic developments in Personal Laws

But, the recent years of healthy development and interpretation of statutes by the Supreme Court of India in various controversial matters has struck a balance between community, religion and the Indian Constitution. Below mentioned are the cases where the Judiciary has expanded its views, in considering personal laws and providing an opportunity to women to excel in various facets of life be it succession or the guardianship.

• Cases governing the Muslim laws

1. The Honorable Supreme Court in Shah Bano Begum case^[13] had invoked section 125 of the Criminal Procedure Code^[14] and declared that the section should be applied to all irrespective of their religion, caste and creed. Hence, all the Muslim women are entitled to maintenance after their divorce. This also case proved to be a milestone for initiating the dead letter of ‘Uniform Civil Code’^[15] in the country.
2. In the Daniel Latifi case^[16], the Supreme Court ruled that a Muslim divorced women is entitled to the provision of maintenance until she is remarried.
3. In the case of Shayra Bano^[17], the issue of Triple Talaq was raised and it was held by the Supreme Court that the declaration of instant triple talaq by the husband is to be declared void.

• Cases governing the Indian Christian laws

1. The Supreme Court in Mary Roy v. State of Kerala^[18] stated that a Syrian Christian women, a hand and a share in her ancestral property.

• Cases governing the Hindu Laws

1. In the case of Vineeta Sharma v. Rakesh Sharma^[19], the Supreme Court has widened the scope of Hindu women to have an equal share and rights in the Undivided Hindu Family property.
2. The Hindu Succession Act, 2005 gives the daughter the coparcenary rights as that of a son. But the Act may not serve its true purpose because in this patriarchal type of society, only sons are considered to be entitled to a major share in the property.
3. The infamous ‘Sabarimala Judgement’ has overruled the age-old custom of prohibiting menstruating Hindu women to enter the temple as the celibacy of the deity might get affected. The judgement overlooked the fact as an infringement to our Constitutional objectives and now grants women the right to faithfully enter the Temple.

• General cases that led to great evolution of personal laws

1. The Supreme Court in the case of Joseph Shine v. Union of India propounded and declared section 497 of IPC to be void and unconstitutional as it only prosecutes and convicts a man who has committed adultery unlike a woman.
2. Under the personal laws Amendment Act, 2010 a married woman can adopt a child during the subsistence of her marriage which was earlier not granted to women and only married men were allowed. 
3. During the initial years of the criminal trial in India, the Parsis would follow the ancient Jury Trial system which would eventually lead to more prejudices in the entire Criminal Justice system. But the practice of the Jury trial eventually seemed to be abolished after the renowned K.M. Nanavati case^[20].

Benefits and Detriments of UCC

• With the implementation of healthy and robust personal laws and by equality embracing both men and women, there will be no gender biases in our sovereign democratic republican country thus promoting gender parity.
• There will be no place for special privileges or politicization of issues on the grounds of religion /community.
• Young generation and students would be quite motivated and inspired to observe that their homeland has weighed humanity, equality and modesty on the same scale.
• Also, through the introduction of UCC, we might enlighten the stereotypes behind every culture and faith.
• Everybody would be able to enjoy the same rights as mentioned under one discrete law. Thus, this will lead to an increase in the fulfilment of the Constitutional objectives like Unity, Integrity and Fraternity.^[21]
• But on the other hand, such an independent and discrete law for all the citizens might lead to a feeling of encroachment on personal freedom of the Indian citizens.
• UCC might also sensitise and question certain age-old and downtrodden issues which might lead to unnatural consequences and risks in the state.
• Such an act by the legislature might also prove to be violative of Article 25 of the Indian Constitution and may also lead to internal aggression, rebellions and communal wars.
• Moreover, the scope of religious freedom will be reduced and the administration of the country will not remain focused on its implemented objectives.

Thus, from the aforesaid points, we can conclude that there is no fixed inference drawn in regards to the pros and cons of the introduction of UCC in the country.

Conclusion

A woman’s liberty, authorization and upliftment has always triggered a huge discussion and debate in the Indian society but hardly any major or revolutionary development has been recorded so far. There has been an enormous lapse in the Hindu laws but the Muslim, Christian and Parsi laws still continue to be very stringent in their practice. This is the sole reason that has kept a woman at the grace of the other gender throughout their life.

Thus, UCC is undoubtedly the need of the society in today’s contemporary times but such a drastic revolution will not take place in just one day, it will take years and years for UCC to come into effect. The measure of UCC has to be an evolution and not a revolution. Hence, Uniform Civil Code is now halfway on their complete implementation to abolish injustice in the patriarchal society. It might seem that UCC is a bane for society but over a period of time, by maturation and amendment of certain personal laws it will definitely prove to be a great boon for women as well as the country.

Thus, the Indian nationals cannot exhaustively rely on the Parliamentarians to pass a bill and implement a law. Instead, it is the primary liability of the Judiciary as well as the Honourable Supreme Court to widen the outlook and bring about gradual and progressive evolution of various personal laws through their interpretation of provisions and statutes. Such amendments before getting into force need to be firstly, analysed and secondly, accepted by the society as a measure of healthy development for the public at large. Thus, at a future date we as a country might reach this stage where the personal laws that are in conflict with the Fundamental objectives of the Constitution are eradicated through step-by-step amendments and that would be a day when we would address India as a fully developed country.

References

[1] The Constitution of India, 1950.

[2] Articles 14 to Article 18, The Constitution of India.

[3] State shall endeavor the citizens to provide Uniform Civil Code.

[4] Hindu Laws: Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Guardianship and Minority Act, 1956; The Hindu Adoption and Maintenance Act, 1956; The Hindu Disposition of Property Act, 1956.

[5] The Muslim Personal Law (Shariat Act), 1937.

[6] The Indian Christian Marriage Act, 1872.

[7] The Parsi Marriage and Divorce Act, 1936.

[8] Article 32 and Article 226 of the Constitution of India, 1950.

[9] Article 25 – Article 28, The Constitution of India, 1950.

[10] Universal Declaration of Human Rights, 1948.

[11] Section 2 of the Shariat Act, 1937.

[12] Mohd. Ahmed Khan vs. Shah Bano Begum [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945].

[13] Mohd. Ahmed Khan vs. Shah Bano Begum [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945].

[14] Order for maintenance of wives, children and parents.

[15] Article 44, The Constitution of India, 1950.

[16] Danial Latifi & Anr vs. Union of India.

[17] Shayara Bano vs. Union of India.

[18] Mrs. Mary Roy Etc. Etc vs. State Of Kerala, AIR 1986 1011, 1986 SCR (1) 371.

[19] Vineeta Sharma vs. Rakesh Sharma.

[20] K.M. Nanavati vs. The State Of Bombay AIR 1960 112, 1961 SCR (1) 497.

[21] Objectives of the Preamble, The Constitution of India, 1950.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: