आत्मौपम्येन सर्वत्र समं पश्यति योऽर्जुन |
सुखं वा यदि वा दु:खं स योगी परमो मत: ||
I regard them to be perfect yogis who see the true equality of all living beings and respond to the joys and sorrows of others as if they were their own.
Bhagwat Geeta 6.32
Introduction to the Uniform Civil Code
In 2018, the Law Commission of India delivered a discussion paper on India’s personal laws, in which it believed that the Uniform Civil Code is neither necessary nor desirable at this stage. Yet, as of now the present 22nd Law Commission of India headed by Justice Ritu Raj Awasthi has chosen to request perspectives and thoughts of public and religious organizations about the Uniform Civil Code.
In this article, we delve into the multifaceted discourse surrounding the Uniform Civil Code in India and endeavor to navigate the complexities of the Code’s debate by presenting an unbiased examination of varied viewpoints.
What is Uniform Civil Code?
India is a diverse country with a secular Constitution that allows different religious communities to follow their laws in matters of family and personal affairs. Currently, the different religious community follows their own set of personal laws relating to marriage, succession, divorce et cetera.
Uniform Civil Code refers to the proposal to replace personal laws based on customs and traditions with a common set of laws governing marriage, divorce, inheritance, and adoption for all citizens irrespective of religion, caste, or sex. The prospective code aims to protect vulnerable sections of society including women by gender equality in India and religious minorities while promoting nationalistic fervour through unity.
Article 44 of the Indian Constitution states – The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. This article is a Directive Principles of State Policy which though not enforceable in a court of law are the positive obligations of the state. Directive Principles of State Policy (DPSP under Part IV of the Constitution) is the duty of the State to follow these principles in matters of administration and legislation for a Welfare State. The Apex Court of our country in the context of the welfare state in the case of Lala Ram V. Union of India 2015 held that a welfare state is where there is the greatest good of the greatest number and benefit for all and happiness for all.
History of Indian Family Laws
Religion has been recognized as an indirect source of law. In Ancient times religion extended great influence on primitive societies and contributed largely to the growth of the Indian legal system. Hindu and Muslim law in India owes their origin to, customs, traditions, and holy treaties inspired divinely.
Hindu law mostly emanated from Shrutis (that which was heard) and smriti (that which was recollected) like Manusmriti, Yajnavalkya smriti, and others. Later, commentaries were written on these smritis which included Mitakshara, Yajnavalkya, Dayabhaga, and others. These formed a major part of Modern Hindu Law today including Hindu Marriage, Adoption maintenance, and other laws, for an instance, Dattak Mimansa written by Nanda Pandit largely inspired The Hindu Adoptions And Maintenance Act, 1956.
Warren Hasting summoned 11 renowned Pandits and directed them to compile a Code of Gentoo (natives of India) law, which became an authoritative treaty on the personal law of Hindus.
Muslims mainly owe the source of Muslim Law to the Quran, Hadith or Sunna ( Heard from the Prophet), Ijma ( Opinion of the Scholars), and Qiyas ( legal deductions).
Challenges and Concerns Surrounding Unform Civil Code
The issue of the Uniform Civil Code is a complex and contentious one, and various groups and individuals have expressed opposition to it. The opposing groups largely include Muslims with few opposing Hindus ( including Sikhs, Jains, and other forms and developments of Hinduism) and other minority groups.
All India Muslim Personal Law Board had submitted a response to the said Law Commission that the idea of the Code is apprehended by Muslims of India as an object to put Muslim Law in peril.
Muslims argue that their laws are based on Islamic principles and are an integral part of their religious identity and cultural heritage and believe that the code may infringe on their right to follow their religion and dilute their distinct identity.
All India Muslim Personal Law Board also contended that the most crucial document of our country the Constitution is itself not uniform in nature giving special status to different sections and communities of society to keep our country united accordingly, different religions have been given different accommodations.
The Main contention is that Article 25 and 26 of the Indian Constitution provides for the freedom of conscience, free profession, and practice and propagation of religion, and thus the Uniform Civil Code Infringes the said Fundamental rights.
Muslims oppose the code on the grounds of marriage that marriages in Hindus are sacramental but in Muslims, it is a contract where wife and husband are free to stipulate and mutually agree to any terms and conditions that are not opposed to Islamic laws.
Age of Majority- The age of majority is different in different religious laws where all others are settled at 18 years of a girl’s Child and 21 years for a boy, under Muslim Law the age of majority is when a child hits puberty. In Yunus Khan V. State of Haryana 2014 it was held in any confusion regarding the age of puberty the age should be fixed at 15 years for a girl child to be major.
In response to gender Equality the All India Personal Law Board has contended that even after a Uniform Civil Code in Goa there is provision for a second wife in Article 3 of the Decree of Gentile Hindu usage and customs of Goa 1880 that when a wife fails to deliver a child at the of age 25 or a male child till the age of 30, the husband can remarry.
Some Hindus and other communities oppose it on the ground that there are many different communities and that their marriage have different traditions and customs, the Code will have to settle on some form and nature of marriage which would imply waiving others and that may injure various communities identity. Justice P . Wilson stated that the code will destroy the diversity of the Nation. He added that marriage in Christianity is a sacrament and an important facet of religion, if the code provides for the registration of marriages it denigrates a holy sacrament. Justice P. Wilson also contended that those who want to be joined in the civil union without religious flavor are already free to do so under the Special Marriage Act 1954 where atheists and inter-faith can have recourse.
Advantages of implementing a Uniform Civil Code
The need for Uniform Civil Code has been felt for more than a century. Our Country has already suffered a lot in the absence of the said code. In modern Indian society which is gradually becoming homogenous and castes are slowly dissipating, the need for a Uniform Civil Code has increased much more than ever before. In the case of Ashwini Kumar Upadhyay V. Union of India and Anr 2023, it was observed that the youth of India belonging to various communities, tribes, castes, or religions who solemnize their marriage ought not to be forced to struggle with issues arising due to conflict in various personal laws, especially in matters of marriage, succession, and divorce.
In Jorden Diengdeh V. S. S Chopra 1985, it was observed that the laws relating to Judicial separation and Divorce are far from uniform, and surely, this is high time for a complete Uniform Civil Code applicable to all people irrespective of religion or caste.
In Mohd. Ahmed Khan V. Shah Bano Begum 1985 the Supreme Court ruled that Muslim Husband is liable to pay maintenance to a divorced wife beyond the Iddat period ( a period of menstruation of a divorced wife to show her purity) which was not allowed in Muslim law and was completely against gender equality in India. To which some Muslims opined as anti-Shariat. Such piecemeal attempts by courts to bridge the gap between personal laws cannot take the place of a Uniform Civil Code.
Some who support the prospective code argue that individuals and organizations who contend that Muslim law derives from Islamic principles and constitutes an integral component of their unique identity fail to acknowledge that these very principles encompass Shariat law, which imposes significantly harsher and more severe punishments and restrictions than those prescribed by Indian Legal system. Consequently, these same aspects form part of the identity of Muslims. Embracing a Uniform Civil Code would not diminish their identity but rather facilitate their recognition as Indian Muslims.
Similar to Article 14 of the Constitution, which encompasses the right to equality, certain limitations are imposed to facilitate the advancement of women and other marginalized segments of society. In the same vein, it is plausible that Article 25 and 26, which pertains to freedom of religion, incorporates certain constraints to ensure the promotion of gender equality and the eradication of other forms of discrimination.
Uniform Civil Code is a plausible protection against regressive practices such as Triple Talaq, Polygamy, unequal inheritance rights(which in Muslim law is discriminatory to women), and minor marriage (age of puberty i.e. 15)under Muslim law.
When enacted, the Code may work to simplify laws that are segregated at present based on religious beliefs. The path to Uniform Civil Code requires careful navigation, acknowledging different communities’ diverse perspectives and aspirations. Implementing the code requires finding a middle path that respects the traditions and customs of various communities while ensuring that fundamental rights of equality, gender justice, and national integrity are upheld.
Inside India’s Uniform Civil Code : All you need to know.