Disha Mazumdar writes about Uniform Civil Code, its pre and post independence period, and its need in the modern India.
Implication of uniform civil laws in matter of marriage, divorce, adoption and inheritance with no dominance of religion on these personal laws is what the uniform civil code demands , a uniform set of rules irrespective of their religion. Article 44 of the Indian Constitution states the requirement of a uniform civil code for the whole country which is still not fully implemented even after 70 years of Independence. Is it against the nature of secularism or just a provision for national integrity? Can implementation of this article abrogate religious beliefs and practices? Scriptures, holy books and customs have paved the path of personal laws from the ancient period. The governance of Muslim marriage under the Sharia law or Hindu marriages under the Hindu Marriage act created many problems in the present scenario. Through this article let us understand the history, importance, various judgments given over the period and discussions about uniform civil code.
Pre Independence Situation
Even during the rule of British, the debate for uniform civil code was popular among the colonials and the colonized .The Lex Loci Report 1840 discussed the need for a uniform criminal law but the personal laws of Hindus and Muslims should not be mixed. The British thought that the religious division among the people of India based on various belief and cultural diversities if disturbed can cause mutiny or riot in the country. Even the Queen did not make any changes. The personal laws like inheritance, marriage, divorce were all ruled under the umbrella of religious beliefs and scriptures . There was always a conflict between the customary laws but the Hindu laws were preferred more often cause it was easier to interpret , there was uniformity which was absent in the Sharia law and also the judges and the Britishers feared there could be huge opposition by the majority upper caste Hindus.
Post Independence Situation
The Hindu laws discriminated against the women in the inheritance, divorce and marriage issues, specially the Hindu widows suffered due to customary rituals many reforms and acts were passed like the Hindu Widow Remarriage Act, The Indian Succession Act and The Hindu Inheritance Act but was not fully favoured by every individual . The first Prime Minister Pandit Jawaharlal Nehru wanted a uniform civil code so that the women can get equal opportunity . The law minister B.R Ambedkar presented the bill to introduce uniform civil code as the Hindu laws did not widely support monogamy and inheritance by divorced or widow. Ambedkar’s continuous attack on Hindu laws made him very unpopular among the upper caste Hindus and even the Hindu Code Bill received criticism. The lesser version of this bill was passed in four separate acts, The Hindu Marriage Act, The Indian Succession Act 1925, Minority and Guardianship Act 1956, Adoption and Maintenance Act. It was decided to implement article 44 in the Directive Principle of the Constitution. The Hindu code bill had lot of loopholes as it was applicable only to the Hindu women ,the Muslims could not get any benefit from it and it was also unable to to solve the issue of gender discrimination. Then came the Special Marriage Act, 1954 which provided a marriage to any citizen irrespective to their religion but this was not applicable in the state of Jammu and Kashmir .Polygamy was considered to be illegal and the inheritance procedure was governed by the Hindu Succession Act .
Laws Prior To Constitution
The personal laws governed by religion, creates inequality and discrimination with the violation of fundamental rights guaranteed to its citizen. The triple talaq and the bigamy laws do not consider women to be equal and capable like the men. A Muslim woman can never ask for triple talaq and leave her husband. Polygamy itself is a violation of fundamental right. All these laws were prior to the constitution and signified discrimination like:
- The Muslim marriages are governed by Muslim law (Sharia ) were the husband is allowed to have more that one wife, but for a Hindu husband polygamy is a crime. No Hindu or Muslim women is allowed to have more than one husband. This is purely unfair on the part of Muslim personal law. The triple talaq system makes the women more vulnerable as they are abandoned by their husbands and are not liable for maintenance in certain cases. They cannot adopt under Islam and the proportion of the property inherited would be least in case of a wife. The above criteria puts them under the dominance of the male counterparts.
- Hindu Undivided Family is formed to to manage the taxes but a Muslim or a Christian family cannot do such act.
- After the completion of two years of marriage , Christian couple can file for divorce which is one year in the case of other couples.
- A Hindu father is always favoured for the custody of his child over the mother.
Uniform Civil Code: A Secular Approach
Over a period of time, there have been many landmark judgments which changed the society. The judicial review in the case of Mohd. Ahmed Khan vs Shah Bano Begum were a Muslim women asks for maintenance after her divorce or the case of Sarla Mudgal vs Union of India were the husband marries a Muslim wife without the dissolution of first marriage ,made major changes in the personal laws. We have achieved uniformity to a major extent but not completely.
There has been a wide opposition by the minorities of the country for uniform civil code. They believe that, it is unfair as their religious beliefs , cultural norms are under great scrutiny. Uniform civil code would never take away their right to religious acts nor would it prevent them to practise the religion of their own choice. It is for the national integrity and equal treatment of women which is absent in Sharia law. The code would not empower the Hindus nor make their laws more dominant, it would just separate religion from civil laws. The implementation of Uniform Civil Code was opposed by the All India Muslim Personal Law Board, Islamic scholars, AIMMM and lot many people majority being the Muslims. It has been wrongly interpreted that the code would abolish their cultural beliefs and customs and the majorities would enjoy their dominance. In reality the Hindu laws have also been continuously amended over a period of time. Jawaharlal Nehru amended the Hindu law of of bigamy in 1956-1957, the Bajpai government amended the Indian Divorce Act. It is a secular approach and doesn’t prevent anybody to practice his own religion it just draws a line between religion and law. According to article 44 legislature can’t forcibly make laws against the will of the people and hence public gathering, discuss forums, opinion and polls should be organized to know what the citizens actually think and also to eliminate the fear from the mind of those people and make them understand the real concern of Uniform Civil Code.
