Harshit Joshi writes about the factors causing the non – implementation of the Uniform Civil Code in India and the need for it’s due execution in the nation.
The Uniform civil code or Article 44 provides a proposal to replace the various personal laws of different communities or religions, which are based on their particular traditions or customs, with a common set of rules governing every citizen of the country. It is believed, that, when the Constitution was created there was a lot a debate on whether there should be Uniform Civil Code in the country or not. The long debate didn’t have any concrete conclusion, and caused a compromise, whereby, the Uniform Civil Code was incorporated into the Directive Principles of State Policies. It is contained in Article 44 of the Constitution, although not enforceable.
The major problem in implementing the Uniform Civil Code is that, our country has a variety of religions and communities, among which some have contradicting traditions and views.
Broadly, the Uniform Civil Code covers marriage, divorce, inheritance, adoption and maintenance. Under the Hindu Law, minimum age of marriage is 21yrs. for boys and 18 yrs. for girls, whereas, in Muslim law, there is no fixed age for girls for marriage as they are considered to be eligible at puberty. In divorce, as well, there is a triple talaq system under Muslim law. Therefore, the Muslim traditions largely contradict the customs and traditions followed by Hindus.
This debate concerning applicability of a Uniform Civil Code became more powerful after the case of Mohd Ahmed Khan vs. Shah Bano Begum and Ors., in 1985. The facts included that Shah Bano, who was a 62 years old Muslim woman from Indore, was divorced by her husband, and after sometime stopped giving her maintenance. She, therefore, went to the court of law claiming maintenance under Section 125 of CrPC. As the maintenance was awarded by the Court under the concerned provision, there were protests from the Muslim community that the judgment was against their personal law.
Thus, the need of Uniform Civil Code again became a question of importance.
The second case wherein the Supreme Court gave a strong reminder for the need a common civil code was that of Sarla Mudgal vs. Union of India (AIR 1995 SC 153). In the case, the question was whether after a Hindu marriage the husband could convert into Islam and marry a second wife without having obtained divorce from the first one.
Since independence, the need of uniform civil code has been put into question several times. The objective behind a uniform civil code is to have national integration and commonality in laws and policies applicable. Upon its implementation, all the religions and communities would be placed on an equal platform and can be judged on the basis of a common law.
In the middle of the controversy as to the possible enforceability of the Uniform Civil Code, the State of Goa has set an example by enacting a set of family laws which is applied to every community and religion practiced in Goa. It is based on the Portuguese Civil Code of 1867. The family law of Goa further governs matter like marriage, succession, divorce, guardianship, etc.
CONCLUSION
Till now, there has been no proper solution as to an efficient implementation of the Uniform Civil Code in the country. According to supporters of Uniform Civil Code, the major reasons forming an impetus to its implementation is that India is a secular nation, and therefore, if every religion is treated equally, then the laws governing the religions should also be the same. Recently, the Law Commission of India was asked by the Government to have a look in this matter and analyse the possibility of the implementation of the Uniform Civil Code. The implementation is touted to also help in removing vote bank politics, since if every religion will be covered under the same set of laws, then the politicians will have less to offer to minorities in exchange of their votes.
A dearth of a Uniform Civil Code is, therefore, a harm to real democracy and such needs to be changed.
