By
Kinkini Chaudhuri, II year of B.B.A., LL.B.(Hons.) from Amity University, Kolkata
Introduction
The Uniform Civil Code is a proposal in India that helps in the formulation and implementation of personal laws of citizens which apply to all the citizens throughout the country, irrespective of caste, creed, gender, religion, place of birth, etc. There are various personal laws in India, which are governed by their religious scriptures. The implementation of the uniform civil code is one of the contentious promises of the current ruling party, Bharatiya Janata Party. The Uniform Civil Code is one of the most important issues that is still being continued in India, in terms of secularism, mostly by the people of the Muslim community and other religious customs. Personal laws are different from personal laws as the former deals with cases related to marriage, divorce, adoption, inheritance, maintenance, etc. According to Articles 25-28 of the Constitution of India, it guarantees to all the citizens religious freedom and allows religious groups to maintain their affairs. Alongside, Article 44 of the Indian Constitution, mentions India to apply the Directive Principles and common law which apply to all the citizens of the country and formulate the national policies.
History
It was only during the British period when the concept of Uniform Civil Code had arisen, which was primarily done for the Hindus and Muslims. The main reason was that they had feared from further interference with the domestic sphere. Goa has a separate civil code, known as the Goa Civil Code because the state of Goa had been separated from British India because of the colonial rule in the erstwhile Portuguese Goa and Damon. Later, when India had achieved its independence from the clutches of the Britishers, different civil codes were formulated within the Indians.
During the period 1858 to 1947, the debate to form a uniform civil code had started. Even before the rule of the Britishers, people had tried to form religious and social customs. A very well-known concept of Sati was suppressed by the then Governor-General of India by passing a bill, known as the Bengal Sati Regulation, 1829, which had later been extended throughout the country.
In October 1840, the Lex Loci Report had emphasised the importance and also the necessity of the codification of the Indian laws, which are related to crimes, contracts and shreds of evidence, also mentioned that the personal laws of the Hindus and Muslims be kept outside of such codifications. Based on the religious diversifications, the Britishers had divided this sphere that was governed by various scriptures according to their communities, like the Hindus, Muslims, Christians, Parsis, etc. Even during mitigating the civil cases, based on the same religion, these scriptures were applied in the local courts or the panchayats. With the Queen’s Proclamation, 1859, the Indians had the freedom to govern their matters. Some of the examples of the personal laws are, cases dealing with inheritance, succession, marriage, religious ceremonies, etc. The Britishers and the Anglo-Indians used to govern the public sphere related to crimes, laws of contract and shreds of evidence, land relations, which were applied to all, regardless of their religion.
Due to the tussle between the Hindus and Muslims, there was a sort of variance in the preference of the customary laws, and this was mostly found in the present communities of Jats and Dravidians. According to Hindu law, a widow was not allowed to remarry, which was allowed in terms of the Shudras. Regardless of the differences, still, the Hindu law was the most preferred one because of the ease of implementation, and also the fear in the courts from the high caste Hindus. But, by the end of the nineteenth century, people started to favour the opinions of the locals, and also individual customs and traditions started to increase.
As compared to the Hindu Personal Law, the Muslim Personal Law is not enforced strictly and is mostly based on Sharia law. The application was also not equal at the lower courts and was severely restricted because of the bureaucratic procedures. Due to this, it led to the emergence of the customary laws, which was found to be more discriminative to the women, mostly in the western and the northern part of India. Later, in 1937, the Shariat Law was passed which allowed that all Indian Muslims would be governed by the Islamic Laws, in terms of marriage, divorce, maintenance, adoption, succession and inheritance.
Changes in the Legislature
In the year 1872, the Special Marriage Act was formed, which had given the Indian citizens an option of civil marriage. One limitation of this Act was that it applied mostly to the non-Hindus, as it involved renouncing their religion. After some years, in the year 1923, an amendment was passed, as the Special Marriage (Amendment) Act that had given the liberty to marry either based on their laws or under the Act without renouncing their religion and also retaining their succession rights. This applied to the Sikhs, Hindus, Buddhists and Jains.
Shah Bano Case
Later when the Hindu Code bill was enacted, there were two major changes in the personal laws, that is to the common Indian citizens and the Muslim community, as their laws were kept away from any kind of reforms. Until the Shah Bano Case, the tussle between the secular and religious authorities kept rising. Shah Bano was a 73-year-old woman who had sought maintenance from her spouse, Mr. Muhammad Ahmad Khan. After 40 years of their marriage, he had pronounced the term “Talaq” three times (also known as Triple Talaq) and had got a divorce from his wife. It was also found that he had denied her alimony. This sort of unilateral divorce was permitted under Muslim Personal Law. By the order of a local court, in the year 1980, she was granted the alimony. Mr. Khan, who himself was a lawyer, had challenged the decision stating that he had fulfilled all his obligations, as per the Islamic law. But, in the year 1985, the Apex Court had given the judgement, which was ruled in her favour under Section 125 of All India Criminal Code under the provision “Maintenance of Wives, Children and Parents”, which is applied to all the citizens. The Apex Court had stated that a uniform civil code would be formed.