The problem of personal law is not only in Muslims but it is in all societies. The High Court case mentioned is of Meena Samaj, which is a tribe, but separates itself on the question of divorce under the Hindu Marriage Act. India is a pluralistic country. There are different social sanctions and social taboos in Hindu society, which are also contradictory at some places. In such a situation it will not be easy to prepare a universally accepted draft of the UCC i.e. Uniform Civil Code.
The debate on Uniform Civil Code has started again, but what will be the format of Uniform Civil Code and how to find the points of equality between different types of religions, sects, castes, varnas, and regions in a pluralistic country. No form of government has come yet. Our Constitution not only talks of Uniform Civil Code on this issue, but also maintains the possibility of implementing it in Article 44 of the Chapter of Directive Principles. Article 44 of Part IV of the Constitution, which deals with the Directive Principles of State Policy, states that-
"The State shall endeavor to enforce a uniform civil code for the citizens throughout the territory of India."
Uniform civil code means that,
“There should be a common law for every citizen living in India, irrespective of religion or caste. The laws related to marriage, divorce, succession, adoption in the Uniform Civil Code will apply equally to all religions.
However, the country currently has different laws for such matters, according to different religions. Like, Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act etc. In addition, the Muslim Personal Law or Mohammedan Law for Muslims is based on their religious texts, the Qur'an and traditions, i.e. Hadith.
Many other countries like France, United Kingdom (UK), United States (US), Australia, Germany etc already have laws like Uniform Civil Code (UCC) which are based on the principle of one country, one law. In India, people often talk about making and implementing a Uniform Civil Code, and the BJP has included this point in its resolution, so it has a commitment to draft this law and get it passed and implemented. But what type of law this Uniform Civil Code will be, its demanders and its supporters are not able to tell yet. When the draft of the law comes out, it should be debated and discussed. For now, this is a vague demand.
The sudden discussion of Uniform Civil Code (UCC) has started during the hearing of a case filed in the Delhi High Court. Hearing a talaq suit, the Delhi High Court has observed that,
“Indian youth need not be compelled to contend with issues arising out of mutual conflicts in various personal laws regarding marriage and divorce. Modern Indian society is gradually becoming homogeneous. The traditional barriers of religion, community and caste are gradually being dismantled and thus the UCC should not remain a mere provision of the Directive Principles of Policy.”
Justice Pratibha M Singh, in an order dated 7 July, observed that,
“Youth of different communities, tribes, castes or religions in India, who enter into marriage, etc., are subject to various personal laws, especially marriage and divorce. with regard to, should not be compelled to grapple with, the issues arising out of the conflict."
This means that a simple and uniform law should be made and applied in respect of such cases. Right now there are different laws for different societies, so they are made on the basis of their customs and traditions.
The above observation of the Delhi High Court was made while examining a legal point presented in terms of Section 2(2) of The Hindu Marriage Act, 1955. The details of the case are as follows. On June 24, 2012, a couple from Meena community of Rajasthan got married and later there was some difference between husband and wife. The man (husband) filed a suit on 2 December 2015 in the lower court for divorce under Section 13-1 (IA) of the Hindu Marriage Act 1955. The woman (wife) argued in the court for dismissal of the divorce petition that,
“The provisions of HMA, 1955 are not applicable to the parties concerned as they are members of a notified Scheduled Tribe (Meena) in Rajasthan. Therefore, in view of section 2(2) of the HMA, 1955, the said parties will not be applicable."
The application was heard by the Family Court and the application for divorce was dismissed by the Family Court, holding that
"the provisions of the HMA, 1955 do not extend to the Meena community, which is a notified Scheduled Tribe."
That is, the Meena tribal society has its own social rules, laws and regulations of marriage and divorce which do not cover them under the Hindu Marriage Act 1955."
The person challenged this legal point explained by the Family Court in the High Court on 28 November 2020. Thus the Meena community, being a Hindu, is excluded from this law under section 2(2) of the Hindu Marriage Act (HMA) 1955 due to its social specificity.
The Delhi High Court allowed the appeal challenging the order of the Family Court and setting aside the orders of the lower court and observed that,
“The appeal is permissible. The decision of the Family Court is not sustainable on the basis of law and hence it is set aside accordingly. The Trial (Family) Court was directed to dispose of the petition under 13-1 (a) of HMA, 1955, to hear the case on the merits of the case and to decide accordingly within six months."
The court, referring to several judgments of the Supreme Court on the need for a Uniform Civil Code, in the context of the historic Shah Bano case of 1985, observed,
"The policy provision expressed in Article 44 of the Constitution, that 'the State shall be equal to its citizens as citizens'. Will ensure the Code, 'should not only remain a policy article, but should also be implemented by making it a law in practice."
In the Shah Bano case, the apex court had also observed that
"a Uniform Civil Code would help in the cause of national integration by removing unequal allegiance to laws with conflicting ideologies".
It was also observed that
" the state also has a constitutional obligation to implement UCC for the citizens of the country.”
The court's contention is that the need for UCC and the state's constitutional commitment to it has been repeatedly pointed out by the Supreme Court from time to time, however,
"it is not clear what will be the draft of the Uniform Civil Code and How will the government be able to legally fulfill the intention of Article 44."
Shah Bano's case was a well-known case in which a divorced woman Shah Bano was denied maintenance by her husband under Section 125 CrPC. Shah Bano was a 62-year-old Muslim woman and mother of five children who was divorced by her husband in 1978. According to Muslim personal law, the husband can do this against the will of the wife. With no means of livelihood for herself and her children, Shah Bano reached the court to take care from her husband. Seven years had passed since the case reached the Supreme Court. The court took the decision under Section 125 of the Criminal Code which is applicable to everyone irrespective of religion, caste or sect. The court directed that Shah Bano should be given a living equal to the cost of living.
According to some orthodox Muslims, this decision was an unauthorized interference on their culture and laws. He strongly opposed it. Then their leaders and spokespersons were M.J. Akbar and Syed Shahabuddin, these people formed an organization named All India Personal Law Board and threatened agitation in all major cities. Their demands were accepted by the then Prime Minister Rajiv Gandhi and on this basis, in 1986, the government passed a law that overturned the Supreme Court's decision in the Shah Bano case. According to this law,
“Every application by a divorced woman under section 125 of the CrPC, 1973 under section 125 of the CrPC, which is pending in any court at the time of the commencement of this law, shall now be disposed of under this law irrespective of what is set out in the said law. "
This law is called the Muslim Women (Protection of Divorce Rights) Act 1996. This move of the government was regressive and on the basis of this, communal politics also started in the country.
In December 2017, Justice Balbir Singh Chauhan, chairman of the Law Commission, had said that
“UCC is not possible and not an option either. Private laws can never be abolished as they have constitutional protection. The Constitution itself has given various constitutional protections and exemptions in different ways to many people like tribals etc. Certain exemptions and exceptions are also given in the Code of Civil Procedure and the Code of Criminal Procedure. UCC is not a solution and as such cannot be a comprehensive act. You cannot forget the Constitution nor remove the Sixth Schedule."
In October 2016, former Law Minister Veerappa Moily also said that
"UCC would be difficult to implement in a country like India where different communities and groups are governed by individual laws. It is extremely difficult to implement a Uniform Civil Code in a country like this."
It is not that the Uniform Civil Code is being debated today itself. Rather, even while drafting the Constitution on Uniform Civil Code, there have been tremendous debates and exchange of views among the members in the Constituent Assembly. Some interesting anecdotes from the debates on this subject in the Constituent Assembly should also be discussed. Inaugurating the High Court building in Goa, Chief Justice of India SA Bobde said,
"I would request all those intellectuals to come here and see the administration of justice what it is."
further said
“Goa has what the constitutional framers envisaged for India – a Uniform Civil Code, and I am privileged to do justice under that code. Uniform Civil Code is not a new topic of debate as it has been in existence ever since the framers of the Constitution deliberated on it. Ambedkar, often referred to as the 'Father of the Constitution', as the chairman of the Draft Committee, spoke in favor of a Uniform Civil Code in the debates of the Constituent Assembly. According to Article 44 of the Constitution of India, 1950,
" The State shall endeavor to provide for its citizens a Uniform Civil Code (UCC) throughout the territory of India.' A Uniform Civil Code aims to replace personal laws based on scriptures and customs of different religious communities with a common set of rules governing every citizen of the country."
Till date, there have been mixed reactions to the idea. Along with many political stalwarts, Dr BR Ambedkar was a supporter of Uniform Civil Code in the Constituent Assembly. While many members including Naziruddin Ahmed did not agree with the idea of Uniform Civil Code. He said that,
“religious laws of different communities should not be changed or influenced by a law such as a Uniform Civil Code, without their consent.”
It is not that the UCC was opposed by only a few Muslim leaders, rather, the views of orthodox Hindus on this point were not different from the orthodox Muslim society. Conservative Hindus also argued and felt that,
"UCC will affect their personal laws, which, according to them, are governed by the scriptures and smritis."
Ambedkar was of the view that "certain laws based on religion were grossly discriminatory where women were given little or no rights."
During the Constituent Assembly debates, KM Munshi, Alladi Krishnaswamy and Ambedkar defended the UCC, while Muslim leaders argued that it would lead to disharmony.
KM Munshi while supporting the UCC also said that,
" it is important to maintain the social credibility of the nation".
Supporting Alladi Krishnaswamy's views during the Constituent Assembly debates, Dr. Ambedkar had said,
“There is nothing new about the Uniform Civil Code. There is already a Uniform Civil Code in the country except in the private sectors like marriage, divorce, inheritance etc., which is the main basis for Uniform Civil Code in the draft of the Constitution."
However, Ambedkar also felt that UCC should be optional. Dr BR Ambedkar made an important argument that
"the absence of the UCC would hinder the government's efforts on social reforms".
In Clause 7 of the Debate of the Constituent Assembly, (CAD 7.65.178), he stated that,
“I personally do not understand why religion should be given such a vast, expansive jurisdiction so as to cover the whole of life and the legislature. to prevent them from encroaching upon that area. Why are we getting this freedom after all? We are getting this freedom to reform our social system, which is full of inequalities. It is full of inequalities, discriminations and other things, which constantly conflict with our fundamental rights. Therefore, it is absolutely impossible for anyone to imagine that personal law would be kept out of the purview of the state."
Uniform Civil Code was also discussed at the time of The Hindu Code Bill. Ambedkar's approach to the UCC can also be seen in his demand for the Hindu Code Bill. The Hindu Code Bill was intended to provide a uniform civil code in place of the body of Hindu Personal Law, which was amended, to a limited extent, by the British rulers during the British period. Even on this code bill, many Hindu leaders, mostly from the upper class, strongly opposed the bill. The protest grew so much that, Parliament had postponed several draft provisions of the bill demanding equality in marriage, inheritance etc. As a result of which Dr Ambedkar resigned from the cabinet in 1951. Thus, Dr. Ambedkar was always vocal in support of UCC. In the Constituent Assembly, Dr. Ambedkar, despite strong resistance from all upper-class Hindus.
Just as the demand for change in triple talaq was termed as interference in Islam by the radical faction, similarly the changes in Hindu orthodoxy after independence were called by extremists as an attack on Hinduism. The Hindu Code Bill was introduced by Dr. Bhimrao Ambedkar on April 11, 1947. The bill proposed to codify laws regarding the distribution of property of Hindu men and women who died without a will. This bill gave equal rights to the widow, daughter and son of the deceased in his property. In addition, daughters would receive half of their father's property from their brothers. It recognized two types of marriages, sacramental and civil. It also prohibited Hindu men from marrying more than one woman and had provisions relating to secession. This bill was doing away with all such evils from Hinduism which some fundamentalists wanted to keep alive in the name of tradition. There was strong opposition to this. All the arguments of Dr. Ambedkar and support of Nehru proved ineffective and this bill was sent to the Select Committee on 9 April 1948.
Later in 1951, Dr. Ambedkar re-introduced the Hindu Code Bill in Parliament. From Sanatani Dharmavalambi to Arya Samaji, they became opponents of Ambedkar. The debate went on for three days in Parliament. In the Parliament, where the Hindu section of the Congress including the Jana Sangh was opposing it, there was a big demonstration outside the Parliament under the leadership of Hariharanand Saraswati alias Karpatri Ji Maharaj. Karpatri, who founded the Akhil Bharatiya Ram Rajya Parishad, said that this bill is an interference in Hinduism. This bill is against Hindu customs, traditions and scriptures and smritis. The Rashtriya Swayamsevak Sangh, Hindu Mahasabha and other Hindu organizations were opposing the Hindu Code Bill along with Karpatri Maharaj.
After the country's first Lok Sabha elections, Nehru broke the Hindu Code Bill into several parts. After which the Hindu Marriage Act was enacted in 1955, under which the legal status of divorce, the right of men and women of different castes to marry each other and more than one marriage at a time were declared illegal. Apart from this, the Hindu Succession Act, the Hindu Adoption and Maintenance Act and the Hindu Minority and Guardianship Act came into force in 1956 itself. All these laws were brought to give equal status to women in the society. Under this, women were given the right in property for the first time. Emphasis was placed on the adoption of girls.
The problem of personal law is not only in Muslims but it is in all societies. The High Court case mentioned is of Meena Samaj, which is a tribe but separates itself on the question of divorce under the Hindu Marriage Act. India is a pluralistic country. There are different social sanctions and social taboos in Hindu society, which are also contradictory at some places. In such a situation it will not be easy to prepare a universally accepted draft of the UCC i.e. Uniform Civil Code. The government has not yet given the responsibility of preparing the draft to the Law Commission. When the draft comes out, then only some comments can be made on it.
The framers of the Constitution, understood the complexity of this Code and that is why they included the Uniform Civil Code (UCC) earlier in Article 35, but it was placed in Article 44 of the Constitution later. Dr. Ambedkar believed that,
"the wide jurisdiction given to religion would prevent the legislature from bringing about social justice."
Dr. Ambedkar was not only familiar with this regressive nature of religion but was also a victim of this dark side of religion. Because of this, due to the lack of a Uniform Civil Code, it was placed under the Directive Principles of Policy. The members of the Constituent Assembly, on the UCC, were neither unanimous nor agreed with the majority. It was then thought that this point would be considered in the future when beliefs and ideas would change over time.
Today, when the discussion has started on this point, the question also arises that, is it the right time for us to debate and discuss the alternatives of UCC? At such times, in a pluralistic country like India, a society bound by bigotry and orthodox elements and the supremacism of its own social traditions, beliefs and customs, will it take the risk of accepting a liberal and uniform civil code?
© Vijay Shanker Singh
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