Uniform Civil Code

Uniform Civil Code

Anomalies in Personal Law

Tracing the History

of

Uniform Civil Code

• The judgement of Shah Bano Case, 1985

• The judgment in Danial Latifi case, 2001

• AIMPLB wants Sharia courts to be first option for litigants

• Personal law immutable:

- Dr. Ambedkar (Marumakkathayam Law)

• There was a good opportunity for the law makers to bring in a Uniform civil code in the initial years instead of Hindu Code Bill.

• Hindu Code Bill was opposed by many leaders of congress itself including Sardar patel and even Dr Rajendra Prasad.

• Nehru had said- " I should like a civil code which applies to everybody but wisdom hinders...I dont think that the present time is ripe"

• J.B. Kripalani- “I charge you with communalism because you are bringing forward a law about monogamy only for Hindu community. Take it from me that the Muslim community is prepared to have it but you are not brave enough to do it.”

There are many discrepancies in different personal law, some of them are enlisted:

Inheritance

Polygamy

A

Inheritance under the Muslim Law opens on the death of a person

(Spes Succesionis)

(Father)

X

(Gift)

Z

(Third Person)

B

C

Y

(Son)

Hindu Law- a right in the Joint Family Property as soon as he/she is conceived

D

• Under the Sharia Law, the practice of polygamy is permitted in India whereas the practice of bigamy is illegal in Hindu/Christian/Parsi Law and is punishable under 494 of IPC.

• Turkey & Iraq have imposed restriction on Polygamy.

• Recently the Supreme Court on 9th February 2015 stated:-

- That a Muslim’s fundamental rights to profess Islam did not include practising polygamy.

- Polygamy was not an integral part of religion and monogamy was a reform within the power of the state under Art 25.

• In Javed & Others v. State of Haryana & Ors 2003 the Supreme Court stated that, "what is permitted or not prohibited by a religion does not become a religious practise or a positive tenet of a religion.

• Ram Prasad Seth case 1957 - "the legislature of the country is the best judge of what is necessary for the welfare or reform of a particular community at any particular stage"

• Sarla Mudgal Case 1995 & Lily Thomas Case 2000 - Misuse of law

Succession

Divorce

• Sec 10 (A) 1 of Divorce Act, 1869 has a judicial separation of 2 years whilst Section 13-B of Hindu Marriage Act has one year of judicial separation.

• On 20th April 2015, a petition was filed in the Supreme Court to declare Section 10(A) 1 of the Divorce Act, 1869 to be unconstitutional.

• The Hindu Succession 1956 Act has defined mother, widow and children as equal beneficiaries to a Hindu male’s estate.

• In Case of Muslims, many cannot freely bequeath more than 1/3rd of their estate.

Child Marriage

• Marriageable Age for Hindus, Christians & Parsis' is 21 & 18, but in Muslim Law it is puberty or 15 years.

• Yusuf Ibrahim v. State of Gujarat, 2014

• Mohammedan Law by Aqil Ahmed:

-Muslim who is of sound mind and has attained puberty can enter

into a contract of marriage.

-In Muslim Law, puberty and majority are same.

Triple Talaq

or

Talaq-I-Biddat

Adoption

• There is no law of adoption available to Muslims, Christians, Parsis & Jews.

• They have to resort to The Guardians & Wards Act, 1890 for the purpose of adoption, but the child adopted under the above act is a foster child and inheritance is not available.

• Introduction of Adoption Bill in Parliament, 1972, applicable for all communities but it had to be withdrawn due to Muslim opposition.

• Shabnam Hashmi Case, 2014 : Juvenile Justice Act, 2000 applicable uniformly.

• Origin: Second caliph Hazart Umar permitted the unilateral pronouncement of talaq because of special cirmcumstance.

• The practice is banned in several Islamic Countries including Pakistan, Bangladesh, Malaysia and Indonesia.

• In Shamin Ara v. State of UP, 2002, the SC stated that the correct law is when triple talaq is:

- for a reasonable cause

- it must be preceded by attempts for conciliation.

• Re-marriage requires prior consummation (Concept of Halala)

Introduction

Current Situation

Views of Constitutional

Framers

Shri Alladi Krishnaswami Ayyar states:

- Impact between two civilizations or between two cultures, each culture must be influenced and influence the other culture.

• Muslim members of the assembly protested on the negation of their suggested provisos to Art 35, they said the Art will infringe their FRs in Art 19

• Shri K.M. Munshi in response:

- Nowhere in the advanced Muslim countries the personal law of each minority is so sacrosanct as to prevent the enactment of a civil code. Eg Turket, Egypt.

- When Shariat Law was first passed certain muslims opposed its enactment. (Khojas' & Kutchi Memons')

• There were different Hindu laws that were prevelent it was said that there shouldn't be a piecemeal legislation in the country.

• Hindus were against UCC but it guarantees equality of women

• Dr. B R Ambedkar stated that, “the only province the civil law has not been able to invade so far is Marriage and Succession.

• When the Shariat Law was applied to territories outside the North-West Frontier Province, the law made it voluntary for other muslims.

• The voluntary applicability was opposed by Shri Minoo Masani, Raj Kumari Amrit Kaur and Smt Hansa Mehta, stating that the UCC should be guaranteed within 5-10 years like right to free and compulsory education.

• Justice Leila Seth stated, "If in 1955-56 we had enacted voluntary code, how many Hindu men would have opted for it?"

Need for Uniform Civil Code

Directive Principles of State Policy

Secularism

National

Integrity

• The legislature has so far initiated steps to reform the laws of majority community alone and not of minority community. Eg. Implementation of Hindu Code Bill.

• ABC v The State (NCT of Delhi)- 6 July 2015 court said “India is a secular nation and is a cardinal necessity that religion be distanced from law."

• In 1955-56, Acharya JB Kriplani stated, "Secular state function neither by scriptures nor by customs. It must work on sociological political grounds...Laws must be made not for one community alone”

• In Saumya Ann Thomas v. UOI the Kerala High Court, 2010 observed that, "State cannot be secular until the polity also becomes secular."

• (Shah Bano Case, 1985 & John Vallamattom Case, 1997)

"UCC will promote national integrity by removal of contradictions

based on ideologies."

• Superiority of nation

• "No one should be above to nation and no one should be above to law"

Fundamental Rigts

• Dr. B R Ambedkar called the DPSP an ‘Instrument of Instructions’.

• At present, the FRs enjoy supremacy over the DPSPs but this does not mean that DP cannot be implemented at all.

• The State is implementing other DPSPs like free legal aid, but why not Art 44.

• State of Gujarat v Mirzapur Moti Qureshi,1998 - "restriction on FR's to secure DPSP's reasonable."

• In 2002, the National Commission on the working of the Constitution made a recommendation that the heading of Part IV of the Constitution should be amended to read as ‘Directive Principle of State Policy & Action” to ensure that the DPSP are implemented.

Promoting

Gender Equality

• Existence of multiple laws which are discriminatory in one aspect or the other.

• The Constitution holds men and women as equal, there are provisions under Fundamental Rights which give right to equality and right to life equally to both men & women.

• Women are a class of society who are in a disadvantaged position because of several social barriers and customs and are hence victims of tyranny.

• Many Personal Laws are patriarchal in nature which promote imbalance of powers between the genders.

• Need of UCC to reform age-old traditions, which are of no concern in today's modern world. We must do away with religious fundamentalism and women must be given Basic HR.

• The need of the hour is to depoliticize of Uniform Civil Code, which actually means to do away with discrimination, to empower women and give them their dignity and esteem.

• Kerala high court has said that even though there is existence of Art 14, 21 & 13 but the legislation needs to address the issue.

• 3 examples of dispracancies in different personal laws and how the judiciary serves justice despite the failure of implementing a UCC by the Legislature.

The Constitution of India 1949:

Article 44: Uniform civil code for the citizens states:

“The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India”

• In Sarla Mudgal Case 1995:

- The Uniform Civil code neither opposes secularism nor violates Art 25 & 26. Art 44 is based on the concept that there is no connection between religion and personal laws in a civilzed society

- Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined Article 25,26 & 27.

• UCC doesn’t mean the state will not ask Hindus not to perform saptapadi or muslims to not perform nikah

• India is on its way to be a developed country but certain abhorrent laws which are still prevalent in India are making the country regressive rather than progressive

• Ban of Triple Talaq in Islamic Countries such as Egypt, Iran, Jordan, Morocco, Yemen and Sudan, so have our neighbouring countires Pakistan and Bangladesh.

• Under Art 25 (1) says that the freedom of religion is subject to public order morality and health.

• Art 25 (2)(a) states that nothing can prevent the state from making any law regulating or restricting any secular activity.

- Essential part of religion - beliefs upon which a religion is founded.

- Essential practise means - those practise that are fundamental to

follow a religious belief.

• Commissioner of Police v Acharya Jagdishwara Nanda 2004, the Supreme court has stated that, " Practice becomes part of religion only if such practice is found to be essential and integral part. It is only those practices which are integral part of religion that are protected."

Common Code in

Developed Nations

• UCC will be the answer to the existing appeasement politics in our country.

• "To ensure protection of FRs there has to be divorce of politics from personal laws." Shri K. M. Munshi in Constitutional Debate

• Amendment of Sec 127 Crpc by Indira Gandhi under pressure from Muslim MP's and community leaders

• Reversing of the Shah Bano Case judgement by the legislature.

• Somnath Chatterjee on introduction of Muslim Women (protection of rights on divorce) Act 1986 in parliament said, "Minister is trying to introduce a lawless law and perpetrating injustice on the people of India what he is trying to do is a rape of the Constitution"

Appeasement

Politics

Kinds of Laws

Hindu Laws

(governs Hindus,Sikhs, Jains and Buddhists)

Muslim Laws

Different Types of Personal

Laws in India

Parsi Laws

Christian Laws

CIVIL LAWS

CRIMINAL LAWS

PERSONAL LAWS

Eg. FAMILY LAW

Eg. IPC, CrPC

Eg. CPC

Constituents of Personal Law

Divorce

Adoption

Marriage

Inheritance

Succession

etc.

UNIFORM

NON - UNIFORM

Codified/Uncodified

Requirement of UCC for Gender Equality

Shah Bano Case

1985

• Petitioner: Muslim Women
• Issue: Maintenance u/s 125 Crpc

• Court held:

"Art 44 has remained a dead letter"

GOA CIVIL CODE

• Residents of goa are governed by a common set of civil laws which applies to all residents irrespective of their religion.

• The religious communities living in Goa are not governed by their personal laws like the rest of India but by the Goa Civil Code.

• Portuguese Civil Code introduced in the 19th century wasn’t replaced after liberation.

• Christians are a minority in Goa with 29.86% population and muslims constituting of 5.25% of the population.

• Each spouse gets the joint ownership of the property already in their possession as well as those due to them by inheritance.

• Muslims whose marriage is registered in Goa cannot practice polygamy neither there is any provision for triple talaq.

Sarla Mudgal Case

1995

• Petitioner: Hindu Woman
• Issue: Bigamy

• Court held:

"A unified code is imperative for

protection of the oppresse.".

Problems in Enforcing

Uniform Civil Code

ABC v The State

2015

• Petitioner: Christian Woman
• Issue: Guardianship

• UCC is not synonymous with Majoritarianism (Hindu Code Bill)

• Shah Bano Case, 1985 the Supreme Court held, "it is the state which incharged with the duty of securing a UCC for the citizens of the country..."

• Maharishi Avadhesh v UOI, 1994

• In Ahmedabad Women Action Group vs UOI, 1997 the SC said that the writ petition involves issues of state policies with which the court will have no concern.The court held that the remedy lies somewhere else and not by knocking at the court’s door

• Court Held: "UCC remains an unaddressed contitutional expectation"