Uniform Civil Code: Required or Not?

Introduction

India has been a land of diversity since before independence and it continues to do so even today. But as every coin has two sides, the diversity of different religions and cultures has resulted in problems which have arisen due to the legal provisions associated with the Constitution of India related to the diversity of customs and traditions. The personal laws as mentioned in the Constitution of India are different for all the four religions which are recognized in India. This difference results in a violation of the other rights bestowed upon the citizens of the country. For instance, A is a Muslim man who is married to B who is a woman. Since A and B are Muslims, their Marriage is registered under the Muslim Personal Law (Shariat) Application Act, 1937. A and B have two children namely C and D. C is their daughter and D is their son. A and B both decide to make a will in which it is mentioned that 50% of the total property will be inherited by D and 25% will be inherited by C. After the death of A and B the remaining 25% property will be given to a charitable trust. This calculation is based as per the Muslim law of Inheritance as specified in the Holy Quran and enforced through the Muslim Personal Law (Shariat) Application Act, 1937. In this case, there is discrimination towards the daughter as she is entitled to half of the property that her brother will inherit due to the sole reason that she is a woman. This provision of the Muslim Personal law is biased towards men and is unfair towards women in general. On the other hand, in the case of Hindu personal laws, as per the Hindu Succession (Amendment) Act, 2005 women of the house also have the right to claim an equal share in the property of the family. As the provisions of personal laws are subject to differ as per the customs and traditions of the religion, the share of property that one receives will also be different according to one’s religion. Hence, we can see that a Muslim girl will not be given an equal share in the property of the family whereas a Hindu girl will be given an equal share in the property of the family as per the mentioned provisions of personal law. This results in inequality which can be resolved through the formulation and implementation of the Uniform Civil Code. Uniform Civil Code is a directive principle of State Policy which is a set of guidelines to be followed by the Government for the smooth functioning of the country. Through Uniform Civil Code, Personal laws can be enforced in a manner keeping in mind that no other rights of the individuals are violated. This is pondered upon in detail in this article.

Meaning of Personal Laws in India

Personal Laws are a set of laws which are drafted to govern the personal relations of individuals with other individuals. These laws are based on the customs and traditions followed in one’s religion which is why these laws are different for different religions. Indians are grouped into four religions namely Parsis, Hindus, Muslims and Christians. People who are Sikhs, Buddhists, Jains and so on are included under the umbrella of ‘Hindus’ and follow the Hindu Personal Laws. These Personal laws are enforceable in a court of law. The personal laws related to Hindus, Parsis and Christians are codified. Some personal laws of Muslims are codified as well as some are uncodified. The uncodified laws are governed under the Muslim Personal Law (Shariat) Application Act, 1937.

Hindu Personal Laws: (Codified)

The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956
The Hindu Minority and Guardianship Act, 1956
The Hindu Adoption and Maintenance Act, 1956

Muslim Personal Laws: (Codified)

The Dissolution of Muslim Marriage Act, 1939
The Muslim Women's Protection of Rights on Divorce Act, 1986
The Muslim Women Protection of Rights on Marriage Act, 2019
Wakf Validating Act

Parsi Personal Laws: (Codified)

The Parsi Marriage and Divorce Act, 1936

Christian Personal Laws: (Codified)

The Indian Christian Marriage Act, 1872
The Indian Christian Divorce Act, 1872

Meaning of Uniform Civil Code in India

The Uniform Civil Code is a proposal in India to formulate and implement personal laws of citizens which apply to all citizens regardless of their religion, gender and sexual orientation. Uniform Civil Code was proposed twice, in November 2019 and March 2020 but was withdrawn soon both times without introduction in the parliament. The Uniform Civil Code if implemented, aims to replace the currently applicable personal laws of all religions which are inconsistent with each other. The proposal of the Uniform Civil Code includes monogamy, equal rights for son and daughter over the inheritance of paternal property and gender and religion-neutral laws regarding will, charity, divinity, guardianship and sharing of custody.

Challenging the Legality of Personal Laws

Divorce:

Shayara Bano v. Union of India and Another AIR 2017 9 SCC 1

In this case, Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016 Rizwan divorced Shayara through
instantaneous triple talaq. She filed a writ petition in the Supreme Court to
hold three practices namely, talaq – e - biddat, polygamy, and nikah – halala as
unconstitutional as they are in violation of Articles 14, 15, 21 and 25 of the
Constitution. Triple talaq is the pronunciation of the word ‘talaq’ meaning
divorce by the husband to the wife. The husband has to pronounce the word
‘talaq’ thrice to divorce his wife under the Muslim Personal Law
(Shariat) Application Act, 1937. All India Muslim Personal Law Board has argued
that the practices of triple talaq, polygamy, and nikah – halala are part of
the essential Islamic religious practices which are protected under Article 25
of the Constitution of India. On 22^nd August 2017 with a majority
of 3:2, the Supreme Court held that the practice of triple talaq is
unconstitutional. The reasoning is given by the majority views of Justices R. F.
Nariman and U. U Lalit was that the Muslim Personal Law (Shariat) Application
Act, 1937 insofar as it seeks to recognize and enforce triple talaq is within
the meaning of the expression ‘laws in force in Article 13(1) of the
Constitution of India. Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 specified that only the husband can divorce his wife
through triple talaq. Section 2 of the said Act was held unconstitutional by
the apex court of India.

Discrimination based on sex:

The Hindu Succession Act, 1956

This Act consists of Sections which majorly focus on the inheritance of property and related areas of people belonging to the Hindu religion. According to this Act, daughters were not given any share in the ancestral property of the father when this Act first came into force. ‘A daughter shall by birth become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son and be subject to the same liabilities in respect of the said coparcenary property as that of a son’ as per Section 6 (1) of the Hindu Succession (Amendment) Act, 2005. The amendment made in 2005 was due to the violation of Article 15 of the Constitution of India in the case of The Hindu Succession Act, 1986. Article 15 of the Constitution of India prohibits discrimination of any person on the grounds of race, caste, sex, place of birth or any of them. Here, there was discrimination based on sex as sons were given a share in the ancestral property of the Hindu Undivided Family but daughters were not.

Danamma Allias Suman Surpur and Another v. Amar and Another (2018) 3 SCC 343

In this case, Mr. Gurulingappa Savadi died in 2001 leaving behind his widow and four children. In the year 2002, Amar the son of Arun Kumar and the grandson of Mr. Gurulingappa Savadi, filed for a partition deed and separate possession of the joint family property. He denied any share to be given to be given to the two daughters of his grandfather namely Danamma and Mahananda. Amar wanted the property to be divided among his father, himself and his father’s brother; Vijay. He denied any share of the property to be given to the daughters as they were born before the enactment of the Hindu Succession (Amendment) Act, 2005 and had also received dowry at the time of their marriages and hence relinquished any share in the property. The trial court in 2007 held that the daughters are not coparceners in this case as they were born before the enactment of the 2005 act and also rejected the argument that they had received their share at the time of marriage as dowry. The high court also upheld the same when the daughters appealed in the same. The Hon’ble Supreme Court in its verdict interpreted Section 6 of the Hindu Succession Act, 2005 as one which promoted equality among the successors of the property as required by the Indian Constitution. Thus, it was held that the amended act of 2005 shall apply to daughters whether born before the enactment of the Act or after the enactment of the same provided that they were alive on the day of the enactment of the amended act 2005. This verdict made sure that all daughters are given equal rights concerning the inheritance of property. Be it discrimination based on two different sexes or between the same sex but in a different timeline, both are against equality. The issue of inequality was resolved due to the amendments and the verdict passed by the Supreme Court of India.

Marriage:

The laws related to marriage in India are included in Personal laws and the Special Marriage Act, 1954. Personal laws which are formulated based on customs and traditions followed by a particular religion, do not recognize the legalities involved in the marriage of people belonging to the LGBTQIA+ community as of now in India. The Special Marriage Act, 1954 consists of the word ‘man’ and ‘woman’ instead of gender-neutral terms which limits its application to people under the ambit of the term ‘man’ and ‘woman’. People belonging to the LGBTQIA+ community belong to different religions but cannot get married as per their customs since their personal laws do not recognize the same. The decriminalization of Section 377 of the Indian Penal Code by the Apex Court on 6^th September 2018 aimed at decriminalizing sexual intercourse between couples of the same sex. This historic development in India aimed at protecting the dignity of the physical, mental and emotional needs of couples belonging to the same sex and also of the LGBTQIA+ community in general. Couples of the LGBTQIA+ community are permitted to stay in live–in relationships but marriage is still a dream of many. But even today, the legal system of India does not consist of laws related to the marriage of people belonging to the LGBTQIA+ community. As of 2023, the hearing in the Supreme Court of India which is focused on a petition filed by two gay couples along with the other pending petitions in high courts throughout the country which were transferred to the Apex Court demanding marriage rights, is being pondered upon by Justice D Y Chandrachud. The decision is awaited from the Supreme Court as the hearing is still in process. As of today, the LGBTQIA+ community is discriminated from heterosexuals on the ground of gender which is a violation of their Right to Equality under Article 15 of the Constitution of India. This is unfair to them and it is of utmost importance for the society to accept their sexual orientation and for the Parliament to draft laws for their development.

Conclusion

Personal laws have in most cases been in contradiction to the Constitutional and other laws in India. The conflict can be resolved through the implementation of the Uniform Civil Code for all Personal laws. Divorce, marriage, gender discrimination, discrimination based on sex and so on are practices which are followed even today under the ambit of religion. These practices have well been challenged in some cases which form the crux of this article. According to me, if the Uniform Civil Code is implemented and enforced then the disputes of the contradiction of personal laws and fundamental rights will not arise and the conflicts can be avoided. The dispute between personal laws and other laws enforced in the county arises because personal laws are varied and apply to a certain community of people but other laws like fundamental rights, Indian Penal Code, Code of Criminal Procedure, Constitutional rights, Code of Civil Procedure and so on apply to all the people of the country and at times even to foreigners. Implementation of the Uniform Civil Code would make sure that laws are drafted in such a way that the court is in no need to strike a balance between Personal and other laws as done in the mentioned cases.

References

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Uniform Civil Code: Required or Not?

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