Uniform Civil Code

Relevance and justification

A pessimist has described India as a land of problems, but among the myriad problems that have beset our country since Independence, the problem of combating fissiparious tendencies and divisive forces of casteism and communalism that tend to destory our national unity and interity must receive top priority and urgent attention. When secessionist or separatist demands have been creating explosive situations in the border States like Punjab, Assam, Mizoram, etc. and unstable conditions in the other parts of the country, it was but natural that the National Integration Council at its recently held meeting in New Delhi focusssed its attention on the virus of communalism that has been eating into the vitals of India's unity and integrity. Unfortunately, as the press reports indicate (The Times of India of 13th September, 1986), there was agreement only on one point, namely, that the root cause of the spread of communal strife was the growth of fundamentalism, but there was hardly any unanimity on how to combat fundamentalism. It seems only peripheral aspects — whether religious ceremonies should be avoided at all Government functions, whether lighting a lamp could be described as religious, whether too many religious holidays are being given and should be cut down, whether religious processions should be banned or regulated, etc. — appear to have enlivened the deliberations of the Council. But having identified the growth of fundamentalism as the root cause of communal discord, no immediate concrete steps to eradicate communalism were spelt out and, as usual, platitudinous reference was made to secular credo as being vital at the present juncture. In the context of fighting the poison of communalism, the relevance of a uniform civil code cannot be disputed; in fact it will provide a juristic solution to the communal problem by striking at its root cause. Nay, it will foster secular forces so essential in achieving social justice and common nationality. Since our Consitution envisages one society with singular citizenship, it is highly desirable that one single set of civil laws should govern all its citizens. The need and justification to have a uniform civil code as mandated by Article 44 of the Constitution cannot be over emphasised.

The immediate cause for the current debate on uniform civil code has been provided by the Supreme Court's decision in what has come to be known as Shah Bano case, (AIR 1985 SC 945) and the dubious and questionable sequel thereto, namely, the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. As is well known, the sequel was an exercise undertaken to nullify the Court's decision. A little background of Shah Bano decision needs to be stated. Earlier, in Bai Tahira's case (AIR 1979 SC 362), the Supreme Court had taken the view that a Muslim husband's obligation to pay maintenance to his divorced wife was not discharged on making customary payment as required by his personal law unless such payment was a just substitute for an adequate maintenance allowance under section 125, Cr. Pro. Code; in other words, the Court would take cognizance of payment of customary Mehr under section 127(3)(b) while passing an order under section 125. This view was reiterated in Fuzlunbi's case (AIR 1980 SC 1730). Then came the Shah Bano case (AIR 1985 SC 945) where a Constitution Bench of five Judges laid down that payment of Mehr or Dower by a husband to his divorced wife did not attract section 127(3)(b) and could not affect, nor could it lead to cancellation of, the maintenance order passed under section 125, and after referring to certain verses in Quran, the Court further ruled that it will be incorrect and unjust to extend the principle of Muslim law of limiting the husband's liability to provide for maintenace of the divorced wife to the period of 'Iddat' to cases where the divorced wife was unable to maintain herself after the expiry of Iddat period. In other words, the Court saw no conflict between the Muslim personal law and the secular law contained in section 125 enacted to secure social justice and which, the Court said, could be resorted to by the divorced wife, if she is unable to maintain herself after the period of 'Iddat' is over. Great furore was raised against the decision by a cross section of the Muslim community and it was criticised in vituperative language both inside and outside Parliament on emotive but erroneous grounds that the Supreme Court had no power to interpret Quranic texts and that the ruling interfered with their personal law which was claimed to be immutable. This salutary decision which preserved the benefit of a secular law for Muslim women divorcees was set at naught by preferring an old archaic rule of Muslim personal law. By the enactment of the above legislative measure on the basis of a whip issued to its party members and after ignoring all pressure of public opinion built against it by the opposition, media and the progressive elements in the Muslim community, the Government purported to confer protection — an illusory protection — on Muslim women divorcees. A more glaring instance of an abject surrender to pressures exerted by fundamentalists, obscurantists and religious fanatics of the largest minority community in the country with electoral considerations in mind would be difficult to find. Does not ritualistic invocation or incantation of the principles of secularism in face of such behaviour sound hypocritical? When the political will to strike at fundamentalism is lacking, secularism will always remain an unattainable ideal.

Closely following on the heels of Shah Bano decision the Supreme Court has rendered another decision on 24th February, 1986 in Mrs. Mary Roy's case (AIR 1986 SC 1011) holding that Kerala Christain perosnal law (Travancore Christian Succession Act, 1902) under which on an intestacy a daughter could inherit only one-fourth of the son's share or Rs. 5000/- whichever is less and a mother or widow of the intestate could claim only a life interest in his property, terminable at death or remarriage, stood repealed as from 1st April, 1951 when on integration under Act of 1951 the relevant provisions of Indian Succession Act, 1925 (Chapter II of Part V) were extended and made applicable to Indian Christians living in Travancore and Cochin States (Part B States) whereunder the rights of these female heirs got enlarged. In other words, in place of their personal law the Indian Christians of Travancore and Cochin were brought under the purview of a secular law, the Indian Succession Act, 1925, but this ruling has caused widespread dissatisfaction among the Male Christians of the erstwhile Travancore-Cochin area of Kerala State and the Church establishment in Kerala has launched a concerted campaign against it. Many Churches have gone to the extent of demanding a new Christian personal law, which presumably will restore the earlier position. Having yielded to a demand of similar nature in the case of Muslims can the Government resist it in the case of Indian Christians? Of course, the answer will depend upon the strength of political pressure that could be exerted by the Christian lobby and electoral considerations will not be irrelevant.

Content and Scope

At the outset, it is necessary to clarify tha though the expression 'civil code' suggests a great deal of private law, substantive as well as adjective, such as crimes, contract, tort, evidence, etc., the expression 'uniform civil code' for purposes of the present discussion has a reference to enacting a uniform family law intended to replace the different personal laws governing Hindus, Muslims, Christians, Parsis and Jews in matters of marriage, divorce, custody of children, adoption and inheritance. The debates in the Constituent Assembly under Draft Article 35 (present Article 44) also show that the concept of uniform civil code was confined to having a uniform family code for members of all communities living in the country, not merely for the sake of uniformity but also for securing social justice to weaker sections in different communities in the spheres of marriage, divorce, custody, adoption and inheritance. The diversities in these spheres of the personal laws governing these communities are so great and some of the rules obtaining in these spheres are so unfair, inequitable and humiliating that there is considerable scope and every necessity to bring uniformity as also to give a feeling to every member that he or she enjoys equality of social status irrespective of race, religion, caste or sex.

For instance, polygamy and unilateral divorce by pronouncing Talaq thrice in the presence of two witnesses which are peculiar features of Muslim peronsal law are unjust, derogatory, humiliating and discriminatory against Muslim women on the ground of sex. Similar discriminatory position obtains in regard to the ground of adultery available under the Indian Divorce Act, for, a Christian husband can get divorce on the ground of adultery simpliciter on the part of his wife, but a Christian wife has to prove one more ground such as cruelty or desertion in addition to adultery on the part of her husband in order to obtain divorce against him. So faras adultery as a ground for divorce is concerned, a petitioner under the Hindu Marriage Act, 1955, prior to its amendment in 1976 was at a considerable disadvantage as compared to the petitioners under either the Special Marriage Act, 1954, or the Dissolution of Muslim Marriages Act, 1939, or the Parsi Marriage and Divorce Act, 1936, inasmuch as under the Hindu Marriage Act prior to 1976 he was required to prove that the respondent 'is living in adultery', i.e., is guilty of continuous course of adulterous conduct, while proof of a single act of adultery on the part of the respondent was and is enough for the petitioners to succeed under the other Acts. Similarly, though the concepts of 'cruelty' and 'desertion' have come to acquire definite legal connotations in all personal laws, one can easily notice the amount of diversity that prevails in these laws in the matter of reliefs available on those grounds as also diversity in the length of the period of separation prescribed therein. Whereas under section 27(d) of the Special Marriage Act, 1954, section 13(l)(ia) of Hindu Marriage Act as amended in 1976 and Section 2(8) of the Dissolution of Muslim Marriages Act, 1939, cruelty is a ground for seeking divorce, the other peronsal laws declare cruelty asa ground for judicial separation in the first instance. As regards desertion, both the Special Marriage Act, 1954, and the Parsi Marriage and Divorce Act, 1936, require a three-year period of separation and provide that such desertion could become a ground either for judicial separation or divorce, while the Indian Divorce Act (1869) provides for a period of two years' separation affording ground for judicial separation only. Since marriage laws form the core of a Family Code, I have brought out prominently the diversities in the various personal laws dealing with that topic. But even in other spheres of personal laws also, there are diversities. Adoption in the sense of legal affiliation of a child conferring proprietary rights on him was available under the Shastric law and is now available under the Hindu Adoptions and Maintenance Act, 1956, to Hindus alone, whereas the institution of adoption in the aforesaid sense is unknown to other personal laws. Members of Muslim, Christian, Parsi and Jew communities are required to take recourse to proceedings under the Guardian and Wards Act, but guardianship over the person and property of a ward falls short of conferring the legal status of a son on the ward. Therefore, there is no reason why childless couples belonging to these communities should not have the same privilege enjoyed by childless Hindu couples. Similarly, in cases dealing with custody of children, the primary and paramount consideration being the welfare of the child, it is needless to have divergent provisions on some aspects touching the question as are obtaining in several personal laws.

These illustrations of diversities clearly show that there is considerable scope for making improvements in each set of personal law governing each community and no particular set of personal law can be said to be without defects or deficiencies and even the secular law like the Special Marriage Act, 1954, would need some trimming and pruning.

That the personal law of every religious community in the country touching the spheres of marriage, divorce, custody of children, adoption, inheritance, etc. falls within the ken of legislative competence of the Union as well as the State Legislatures is clear if regard is had to Entry 5 in the Concurrent List of the Constitution and, therefore, unification of family law is clearly permissible under our Constitution.
On the question as to what should be the guiding principles while preparing a uniform civil code, I may quote with approval the two principles enunciated by Prof. A.B. Shah in his article 'Why Uniform Civil Code', namely,

"First, the proposed code should not mean merely the extension of a Hindu Code to the other communities. On the contrary, the opportunity to enact such a code should be utilised to examine the deficiencies of the Hindu Code and to ensure that they are not carried over into the new code. Secondly, the new code should incorporate the good elements from all the personal laws currently in force in India or abroad and where necessary can go beyond them in the light of experience. The criterion for deciding whether a particular provision should be part of the uniform civil Code would be neither the scriptures of any religion, nor the exigencies of party politics, but the need to promote the emergence of a liberal integrated and dynamic society in India. The fundamental rights of the citizen embodied in the Indian Constitution and particularly the right to equality regardless of sex or creed, provide the necessary guidelines in this respect. If any departure from the principle of equality is considered necessary, it should be in favour of the weaker parties, namely, women and children."

Obviously the first guideline is necessary as it is intended to allay the fears entertained by members of the Muslim community that through such a code, the majority community is desirous of perpetuating Hindu domination over other communities.

Irrational and Invalid Objections to Code

Mainly the objections to the enactment of a uniform civil code have all along been raised by the largest minority community in the country, the Muslim community. Not merely the formulation of a uniform family code is objected to but the orthodox Muslim public opinion, the Moulavis and Ulemas as well as some intellectuals have vociferously opposed any change or reform in their personal law. The opposition to the code and to any change in their personal law is projected.

1. in the name of religion under Article 25 of the Constitution,
2. in the name of culture under Article 29 of the Constitution, and
3. its immutability being ordained by God and the Prophet.

Each one of these grounds of objection can be demonstrably shown to be irrational, fallacious or invalid and, therefore, unsustainable.

The opposition based on religion runs thus. Article 25 guarantees freedom of conscience and the right to profess, practise and propagate religion and since the Muslim personal law is an inseparable and integral part of their religion, any tampering with that law will necessarily mean interference in their religion which is prohibited by the Constitution. But while putting forth such argument, two vital things are ignored :

1. that though traditionally religion has socio-religious aspects, religion properly understood is and must be confined to individuals faith and beliefs and his personal relations with the Almighty and must be divorced from social aspects or practices that affect people in general in their social intercourse, and
2. that sub-article (2) of Article 25 expressly saves
3. laws concerning secular activity which may be associated with religious practice as also
4. laws providing for social welfare and reform, from the operation of sub-article (1), and it is indisputable that changes in personal laws with a view to bring about social welfare arid reform fall within the scope of sub-article (2). It will thus be realised that the objection based on religion is groundless. To put the matter beyond doubt there is need either to define the expression 'religion' or to judicially interpret it confining it to individual's faith, beliefs and his personal relations with the Almighty or the Creator or whatever be the super power or entity, for purposes of Article 25.

The second objection based on culture is that Article 29 guarantees to every section of the citizens of India the right to conserve its language, script or culture and the argument runs that the Muslim personal law is an essential part of their culture. In fact it is claimed to be a precious symbol of the cultural identity of Indian Muslims and conservation of their culture requires preservation of their law and changes in that law will affect the identity of their culture. The argument is based on fallacious reasoning. True, the concept of culture has not been judicially defined, but historians, sociologists and art critics have variously defined it. Some have defined it narrowly while others have defined it widely so as to include the whole way of life of a community and so understood, it would include law within its compass; but the culture of any community never remains static, it invariably responds to changing conditions and changing forces of social existence and shapes itself accordingly and, therefore, assuming that such a wider definition of culture includes law within its fold, the conservation of culture would not mean keeping intact every dement of it howsoever obsolete, decadent or unjust it might have become. On the other hand, adapting Muslim law to changed conditions and circumstances of modern life must enure for the preservation of Muslim culture. Though strictly unnecessary, to make things abundantly clear, a proviso to Article 29(1) could be inserted stating that nothing contained in sub-article (1) shall affect the operation of any existing law or prevent the State from making any law providing for social welfare or reform.

The third objection to any change in the Muslim personal law based on its immutability is highly irrational. There is nothing divine about any personal law and to say that Muslim personal law is immutable because it is ordained by God and the Prophet sounds medieval. In refutation all that is required to be pointed out is the way in which Muslim personal law has undergone a sea change in other Muslim countries. For instance, polygamy has been completely prohibited in Tunisia (Section 18 of Tunisian Law of Personal Status) and Turkey (Article 74 of Turkish Civil Code, 1926), while it has been ourbed in Syria, Morrocco, Egypt, Jordan, Iran and Pakistan by making it permissible subject to certain conditions such as obtaining of permission from third agency like the Court or Arbitration Council before taking a second wife. Similarly, the right of a Muslim husband to give unilateral Talaq has also been curbed in all these countries. Leaving aside other Muslim countries, even in India the passing of the Dissolution of Muslim Marriages Act, 1939, furnishing Muslim women with certain grounds of divorce which were not available to them till then speaks volumes against the claim of immutability about their personal law.

It would be interesting to mention that the objections based on these very grounds at the instance of some Muslim members were debated and ultimately rejected in the Constituent Assembly in connection with draft Article 35 (present Article 44). The draft Article ran thus :

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

An amendment by way of adding a proviso thereto was proposed by Mr. Mahomed Ismail Saheb, a Member from Madras, and the proposed amendment ran thus :

"Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law."

While supporting the proposed amendment, the Honourable Member said :

".............the right to follow personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture. If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages."

Other Muslim Members such as Shri Nizaruddin Ahmed, Shri Mahboob Ali Baig and Shri Pocker Sahib supported the amendment for similar reasons. But their objections were effectively met and answered by. Dr. Munshi, Sir Alladi Krishna Swami Ayyar and Dr. Ambedkar. Commenting on the proposed amendment Dr. Ambedkar disputed the statement of a Muslim Member that Muslim personal law, so far as this country was concerned, was immutable and uniform throughout the whole of India. He pointed out:

"..................up to 1935 the North-West Frontier Province was not subject to Shariat Law; it followed the Hindu law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to Muslims of North-West Frontier Province and to apply Shariat Law to them..........apart from North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession.........that in North-Malabar the Marumakkathayam law applied to all — not only to Hindus but also to Muslims."

Alluding to the arguments based on religion and culture Dr. Munshi said :

"The point, however, is this whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession."

In other words, in the Constituent Assembly, Muslim Members tried their best to get an assurance that their personal law would be exempt from the operation of the draft Article 35, but that demand was negatived so that for any one now to oppose this Directive Principle on grounds of religion or preservation of culture or immutability of his personal law would be tantamount to demanding an amendment of the Constitution. There is nothing wrong in such a demand but till it is conceded, it would be disingenious to oppose the implementation of Article 44 by relying upon the self-same rejected grounds.

Implementation of Article 44

In spite of the fact that Article 44 contains a mandatory provision making it incumbent upon the State (which expression for purposes of Part IV of the Constitution includes "Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India") to give effect to the Directive contained therein, it is a stark fact that the State has failed to implement it. The State has all along adopted and maintained an extra cautious approach to the mandate. Eminent personalities belonging to both the major religious communities of India have given expression to their unhappiness over the non-implementation of the Directive of Article 44. Chief Justice Gajendragadkar in his capacity as the Chairman of the Law Commission while dealing with 'Secularism and the Constitution of India' has observed thus :

"In the event, the non-implementation of the provisions contained in Article 44 amounts to a grave failure of Indian democracy and the sooner we take suitable action in that behalf, the better."

Welcoming the delegates to the Indian Law Institute's Seminar on Islamic Law in January 1972, Justice K.S. Hegde of the Supreme Court said :

"Religion-oriented personal laws were a concept of medieval times.............A society which is compartmentalized by its laws can hardly become a homogeneous unit.................In the Constituent Assembly, vested interests — Hindu as well as Muslim — had bitterly opposed the enactment of Article 44. But the founding fathers of the Constitution, in national interest, refused to bow to their pressure. There is no justification to adopt a different attitude now."

Chief Justice Chagla, a great nationalist Muslim, known for his ultra secularist ideas, in his article 'Plea for a Uniform Civil Code' published in March, 1973 has observed thus :

"That (Art. 44) is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision................ The Constitution was enacted for the whole country, it is binding on the whole country; and every section and community must accept its provisions and its directives..........."

The reasons for the Government's apathy and indifference in the matter are not difficult to understand. Obviously the Government wants to show that it is fully alive to the strong feelings against the uniform civil code prevailing in certain sections of the citizens and it does not wish to offend those feelings. In fact in the course of the debate on Muslim Women (Protection of Rights on Divorce) Bill, 1986, the Honorable Law Minister made it clear that even for bringing about reforms in the personal law governing any minority community, Government would like to wait till a demand in that behalf is made and backed, up by a majority of the members of the concerned community. Such an attitude during the British regime was understandable but not after 39 years of Independence, and when social justice has been the universal cry of modern times.

Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India and the emphasis is on the words 'endeavour' and 'secure'. Obviously the founding fathers were quite alive to the enormous difficulties likely to be encountered in enacting a uniform civil code. But despite difficulties some practical way, which will help the enactment of a uniform family code, has to be found out. Concerning Muslim personal law there have been two schools of thought, one radical led by Chief Justice Chagla and the other liberal led by Prof. A. A. A. Fyzee. Muslim jurists belonging to the radical school advocate immediate replacement of the personal laws of different communities by a common civil code without going through the intermediate stage of reforms in each set of personal laws, while others belonging to the liberal school believe that an intermediate stage of introducing reforms in each set of personal laws is necessary in the first instance which will facilitate the ultimate enactment of a uniform civil code and for bringing about the requisite reforms in Muslim personal law they suggest that it could be achieved through a liberal and progressive interpretation of the Sharia as has been actually done in other Muslim countries. Having regard to the diehard sentimental opposition based on emotive grounds, rational or irrational, that is being encountered to the enactment of a uniform civil code, it will, in my view, be highly desirable to have recourse to the modus operandi suggested by the liberal school in the matter. Prof. J. N. D. Anderson in his article on 'Muslim Personal Law in India' has pointed out how through liberal and enlightened interpretation of some Sharia texts Tunisia, for instance, has succeeded in prohibiting polygamy altogether and replacing unilateral divorce by judicial divorce. Two arguments helped in bringing about the change. First, that institutions like slavery and polygamy, though permissible in Quran and acceptable at a certain stage in human development, had become repugnant to the civilised conscience of the day and seeing that Muslims were virtually unanimous in accepting prohibiting of slavery, the question was posed, why they should not take a similar view of polygamy? Secondly, the Quranic Verse on Polygamy itself permits taking of more than one wife up to the limit of four but on condition that the husband must not treat them with less than equal justice and it was pointed out that fulfilment of the condition was really a feat which no man other than Prophet was capable of and since experience showed that the stipulation was impossible of performance in contemporary conditions the State was competent to intervene and prohibit unions which would prove sinful under the sacred law. Regarding unilateral repudiation great emphasis was laid on the aspect that the same was disfavoured though not forbidden by the Islamic law. In fact these are the two principal reforms required to be introduced in the Muslim personal law of marriage and divorce in India in order to do social justice to Muslim women, and there is no reason to believe that such enlightened and progressive approach will not work here especially having regard to the growth of the progressive element among the educated Muslims and the awakening which the debate on the Muslim Women's Bill, 1986, has stirred among the literate as well as illiterate Muslim women in the country. Through enlightened educative process and effective propaganda efforts will have to be made to see that progressive elements in the Muslim community grow in number so as to outs well the orthodox and the fanatic.

However, it is necessary that the Government must shed its apathy and complacency in the matter and without waiting for the demand for reforms being backed up by majority members of any minority community, the Government must take the initiative in pushing through the needed reforms with the support of the existing progressive elements available in the concerned community irrespective of their strength. Party politics and electoral considerations should be treated as thoroughly irrelevant. It will redound to the credit and political stature of any ruling party to go out of power for the sake of principle rather than making exit on indictments of corruption and inefficiency. Once there is codification of each set of personal laws by incorporating therein the needed improvements and reforms, it will go a long way towards achieving the objective of a uniform civil code.

One word about the recent announcement made by the Prime Minister that the Government is intending to bring forth a voluntary uniform civil code and newspapers say that even directions have been given to the Law Department to expedite the drafting of such code. Perhaps the announcement is the result of either pressure from within the ruling party or the realisation of the mistake in enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986. A voluntary uniform civil code is a contradiction in terms. The moment it is made optional it ceases to be uniform. Distinction is being made between 'uniform code' and 'common code' suggesting that Article 44 does not use the expression 'common'. Such ingenious refinement will only lead to greater confusion. The Constituent Assembly debates clearly show that by uniform civil code the founding fathers meant a family code uniformly applicable to members of all the communities living in the country. Any attempt to make the code voluntary or optional must be opposed. Instead of framing such optional civil code, Government would do well to take immediate steps to codify each set of personal laws incorporating therein the requisite reforms making them uniformly applicable to all the members of the concerned community.

Conclusion

In light of above discussion I would suggest :

1. For the purposes of Article 25 of the Constitution the concept of religion should be defined confining it to the individual's faith and beliefs and his personal relations with his Creator.
2. A proviso to Article 29(1) of the Constitution should be inserted to the effect that nothing contained in sub-art. (1) shall affect the operation of any existing law or prevent the State from making any law providing for social welfare or reform.
3. Following the liberal school Government should take immediate steps to codify each Set of personal laws by amending and incorporating therein the requisite reforms with a view to doing social justice to weaker sections in each community and on completing such process of codification undertake the framing of the uniform (common) civil code.
4. In the alternative, if straightway a uniform civil code is to be drafted, it should not be voluntary but should uniformly apply to members of all the communities.

Author Name: Hon’ble Justice V D Tulzapurkar