The Need for an Uniform Civil Code in the Modern India

Author – Kaushal Kasliwal

Abstract

The population in India is demarcated based on followers of Ideologies of Hinduism, Muslim, and many other religious ideologies. All the ideologies have their particular law while dealing with exclusive matters of their followers. In the era of modernization with continuous evolution and spread of population having a particular law for dealing exclusive matters of all the religions is a matter for a great concern that fabricates a serious need for enactment of a universal law for dealing with an exclusive matter of all the religions. This article is a critical analysis of factors that lead to the need for a universal law in modern times with this, the article also provides a critical analysis of the universal law with an eye of a Constitution of India, and this article also analyses costs and benefits of the application of universal law in the country. The article also provides recommendations for the better application of universal law in the country. 

KEYWORDS

Nikah, Mehr, talaq, guardianship, adultery.

Introduction

India is a land known for its secularity. There is not only one religion professed in the territory of India but more than one.  All the religions whether Hindu religion, Muslim, Sikh, Christian, and Parsi all have been provided with equal status and equal opportunity in the country. Every religious practice has its civil law or particular law administrating its exclusive matters such as Marriage, Divorce, Maintenance, inheritance, and succession, etc. The Hindus have their marriage act, inheritance and succession act, Muslims have their law administrating their exclusive matters, and Christians have their laws for their exclusive matters, while Jains and Sikhs were governed as per Hindu law. Despite been provided by the Constitution of India in Article 44 that the state should enact a universal civil code but there is no enactment of such law in the legislature of India till now. The universal civil code is the code that administers or governs all the exclusive matters of all the religions under one principle likewise all the penal matters of the country are administered under one law which is the Indian penal code enacted in 1860 etc. Till now the Goa is the only state of India that realizes the need for a universal civil code and enacted it as a law in its state. 

 Now in the modern world, it has been realized that having of particular law for a particular religion governing their exclusive matters particularly is a matter of great concern. As having of particular laws is a great threat to the unification of the nation as there is always conflict in principals and ideas among various religious practices and it also creates difficulty for Judicial institutions to handle the disputes where there is more than one law administrating the same set of the situation so each time when a dispute arises judicial institution has to solve the similar condition with different laws which only results in unnecessary delay and wastage of time of judiciary result of which there is a large number of cases pending before the Judiciary. Such bigamy is prohibited as per Hindu law which means any spouse as per Hindu law cannot remarry when his/her spouse is alive or present on the other side as per Muslim law polygamy is permitted which means a man can marry up to four women during his entire life, As per Hindu law guardianship during the marriage is not allowed and on the other side as per Muslim law Guardianship is allowed in marriage whereas as per Hindu law consideration by the husband to wife for marriage is not allowed whereas as per Muslim law consideration by the husband to wife for marriage is allowed. This type of difference fabricated the rigidity before the entire judicial system while handling the disputes in modern times where there are a large number of cases already pending before the entire judicial system. The differences in law also violate the principles of equality of the Constitution of India as according to the Constitution of India differentiation can’t be made based on caste, religion, etc. These differences are also a threat to the establishment of equal gender roles in the country as at some point Hindu women are entitled to get their rights but in a similar case and similar situation Muslim women are not entitled to get their rights this is also very discriminatory and derogatory aspect as at one place women is treated equally as men but at another place, women are treated unequally to men which is clear discrimination towards women based on their religion as ones protect their rights towards other but another doesn’t protect their rights this is against the principle of a Constitution of a country whose aim is to provide equal status to everyone irrespective of their religion, caste, etc. So the differences in the law handling exclusive matters in the country are a hindrance and threat to the overall development of the country which needs to be evacuated as early as possible as if there will be universal law all the Citizens will be treated equally to another irrespective to their caste, religion, tradition, etc. There are many differences in the particular law of one religion in comparison to the particular law of another religion administrating exclusive matters in the country which needs to be assessed and modified into one similar law in the country.

The Major Aspects Which Fabricated The Need For An Universal Civil Law

Mainly the differences in the law of various religions dealing with exclusive matters fabricated the need for enactment of universal civil law. The differences are-

As per the Hindu Marriage Act, the act of marriage is a sacrament or union of two people. According to this act, the ceremonies the marriage is compulsory, Bigamy is prohibited as per this act which means neither of any spouse can remarry during his/her entire course of marriage when his/her spouse is alive or present the bigamy is not only prohibited as per Hindu law but also considered as an offense which is punished as per section 494 of an Indian Penal code 1860.

In the case of Santosh Kumari v. Surjeet Singh, it was provided in this case that her husband could remarry during his entire life span then also when she is present even in that condition also the second marriage will be considered as illegal.

In the case of Sarla Mudgal v. Union Of India, it was held by the court that by converting to Muslim from Hindu and solemnizing of second marriage will be the misuse of personal law as laid down that this type of marriage will be considered as an offense as per section 494(5) of the Indian Penal Code, 1860. From this case, the judges provided an opinion to introduce a universal civil code in the country.

The legal age for marriage as per the act for boys is twenty-one years whereas for the girls is eighteen years. When the age of marriage was not increased to twenty-one years for boys and eighteen years for girls at that time father, brother, paternal grandfather or mother was having the right to act as a guardian for the marriage of their minor child but after the increase in the age limit for marriage the guardianship rule was over and marriage was only considered legal and valid when they attained the specified age limit for marriage.

Now as per Muslim law the marriage is only a contract to fulfill sexual desires, for channelizing domestic life, to increase the size of the family. This concept is opposite to the concept of marriage as per Hindu law where marriage is not only considered a sacrament but also considered as a union of two sexes. Marriage in Muslim law is known as Nikah. As per Muslim law for the valid marriage of Nikah, there should be a proposal from one party for marriage and acceptance for marriage from the other party to marriage the proposal and acceptance for marriage should be without any fear, coercion, or fraud. As per Muslim law, the husband is entitled to provide the consideration to the wife in respect of marriage the consideration amount for marriage is known as Mehr. It is upon women to accept or reject the proposal on a certain amount of consideration. As per Muslim law, a man can marry up to four women’s but the condition is he should have the capacity to treat all the wives equally. As per Muslim law when a boy or girl attains to the age of puberty then he or she is free to marry the person of their choice. But the marriage of a minor can be solemnized with the consent of the guardian and the guardian can be his/her father, paternal grandfather, brother, mother, maternal uncle, etc so guardianship is allowed as per Muslim law.

In the case of Abdul Ahamad v. Shah Begum, it was held by the court that the consent given by the person who is not authorized to provide consent for marriage from the side of a minor person is invalid. In such a case the marriage will be held invalid.

The matter related to the marriage under Christian law is governed by The Indian Christian Marriage Act, 1872 which provides that the marriage is an agreement between two peoples through offer and acceptance and the legal age for marriage as per Christian law for a boy is 21 years whereas for a girl is 18 years.

The matter related to the marriage under Parsi law is governed by the Parsi Marriage and divorce act which states that for a valid marriage the boy should be of a minimum of 21 years and the girl should be of a minimum of 18 years with two witnesses followed by the ceremonies of marriage as per the act.

So we can observe from the above that there are vast differences in regards to marriage in all the laws, if one law permits one this another law prohibits the same thing.

We can also observe the major differences in Hindu and Muslim law in regards to marriage from this table-

 As per Hindu law, the legally wedded husband and wife can dissolute their marriage on the grounds stated in section 13 of the Hindu Marriage act. The Hindu marriage act also under section 13-B provides a provision for divorce by mutual consent which means the legally wedded Husband and wife can dissolute their marriage by mutual consent of each other. The Hindu marriage act under section 14 provides that the marriage can’t be dissolved before the completion of one year of marriage.

As per section 13 of the Hindu marriage act following were the grounds for a divorce-

1. Cruelty- this ground states that when the behavior of one of the spouses is that it seems impossible for the other spouse to cohabit with the other. So it becomes the valid ground for divorce as per the Hindu marriage act. It also means that the distress fabricated by one of the spouses is that which affects the mental health of the other spouse.
2. Adultery- Adultery means voluntarily sexual intercourse with any person other than his/her spouse who is not his or her spouse. Adultery is a ground for divorce. Earlier adultery was known as a criminal offense under section 497 of Indian Penal Code-1860but in the case of Joseph Shine v. Union Of India, The court struck down section 497 of the Indian Penal Code by decriminalizing adultery and held adultery as a ground for divorce. 
3. Conversion- when any spouse converts his or her religion after marriage so such conversion will be held as a valid ground for a divorce.

In Madanam Seetha v. Madanam Vimla, In this case, the husband was held entitled to divorce when his wife converts her religion from Hindu to Christian religion.

4. Venereal disease- when one of the spouses is been suffering from such a disease which is communicable in that case divorce can be granted to another spouse on this ground.
5. Unsoundness of mind-   when one of the spouses is unsound from mind in that condition the divorce can be granted to the other spouse.

So as per Hindu law if any of these grounds are satisfied in the petition of divorce filed by one of the spouses so the divorce can be granted to the sound on these grounds. Otherwise legally wedded couples can also dissolute their marriage by mutual consent as per section 13-B of the act.

As per Muslim law, divorce can be of two types judicial and extra-judicial divorce. Extrajudicial divorce is of three types mainly, divorce by husband, divorce by wife, and divorce by mutual consent. There are three modes provided in which husband can take divorce in the first mode which is known as ahasan talaq husband can announce talaq any time when a wife is free from menstruation, in the second mode which is known as Hasan talaq husband is asked to announce talaq three times during one month or 30 days, in the third mode husband is asked to announce talaq when women are free from menstruation or can announce talaq in one sentence or three sentences. 

As per Muslim law, the wife does not have the right to announce divorce on her own but she can only announce divorce when the right to announce divorce is provided to her by her husband. Her husband can provide her the right to divorce on a conditional or unconditional basis or the wife has to buy this right from her husband. 

In the case of Buffatan Bibi v. Abdul Salim, it was held by the court that a wife who wishes to exercise her right of divorce provided by the husband must have to specify that the conditions led down by her husband for divorce is fulfilled.

In the mutual form of divorce, one party makes an offer of divorce and the others party accepts the offer of divorce then this form of divorce is known as mutual divorce.

After the passing of the Muslim marriage act of,1939 there is also provision for dissolution of marriage by judicial means. The grounds on which the judicial divorce can be granted are-

1. If there is no information of husband for more than four years,
2. If the husband fails to provide maintenance to his wife,
3. If husbands fail to perform marital obligations,
4. If the husband is found to be impotent,
5. If the husband inflicts cruel treatment towards with,

Based on the following grounds court can grant a judicial divorce.

So we can observe that the Hindu marriage act provides provision for only judicial divorce on the other hand Muslim law provides provision for both judicial and extra-judicial divorce. Whereas the matter related to divorce in Christian and Parsi law is governed by Indian Divorce Act 1869 which provides similar grounds for divorce such as adultery. Bigamy, cruelty, rape, and unsoundness of mind, etc 

We also observed that as per one law more rights are provided to women in respect of divorce but as per another law more rights are provided to men than women.

In regards to providing maintenance to the wife the court in the case of Danial Latif v. Union Of India, the court held that Muslim women also possess the right to receive maintenance even after the iddat period ends. Whereas in the case of Noor Saba Khatoon v. Mohd. Qasim, it was held by the court that children of divorced Muslim women also have the right to claim maintenance from their father. The Hindu law also provides a provision for grant of maintenance to wife it not only provides a provision for providing maintenance to wife after divorce but also provides a responsibility to the husband of maintaining his wife after marriage. Whereas the matter related to the maintenance in the Parsi and Christian law is governed as per the Indian Divorce Act,1869 which confers the right to claim maintenance through both civil and criminal proceedings.

So with the slight difference, all the laws provide a provision for providing maintenance.

So it can be said that principles of all the laws are different from each other and it is difficult to say that one law is better than another but it is also not difficult to say that there is not any discrimination between gender roles based on religious practices.

Besides these differences for establishing equal gender roles, for providing justice to the people of every gender, for removing the rigidity in process of dispute resolution there is a serious need for the enactment of a universal civil law in the country

UCC From The Eyes of the Constitution of India

The constitution of India already holds the provision for the creation of a universal civil code. The constitution of India in Article 44 states that the state should enact a universal civil code that administers all the exclusive matters of all the religions under one principle. The need for a universal civil code was realized in the case of Sarla Mudgal v. Union of India in the said case the court provided its opinion for the enactment of universal civil code as per Article 44 of the Constitution of India. In the case of Mohammad Ahmed Khan v. Shah Bano also the court realized the need for a uniform civil code, in this case, the court said that enactment of the Uniform Civil Code will help in removing disparities to law fabricated due to conflicting ideologies and will help in the integration of the country.

When the question arose in regards to universal civil code contradictory to the principle of freedom of conscience and freedom to profess religion contained in Article 25 of the Constitution of India. So the court in the case of John Vallamatton v. Union Of India, Held that Article 25 of the Constitution of India provides freedom of Conscience and freedom to profess and practice any religion which means every person is free to profess any religion of his choice whereas civil code differentiates religion from the social relations and personal law so there is no link between religion and personal law. The aim of Article 25 is to provide freedom to a citizen to profess the religion of their choice whereas civil code aims to govern social relations of citizens irrespective of any distinctions. So the civil code doesn’t contradict the provision of Article 25 as it doesn’t overtake the right of any individual to profess any religion freely but it only governs the social relations of individuals.

Costs and Benefits of the Enactment of the Universal Civil Code

Costs

   It will be a very difficult and challenging task for the administration to implement such a law in the country which directly triggers the ideologies of an individual as with a country where such a diverse population resides it will be a challenging task for an administration for bringing a major shift in the ideologies of an individual as people will resist accepting such big changes as for every individual in the country their ideologies matters the most. 

Benefits

The enactment of universal civil will generally help in the unification of nations by removing barriers of conflict in ideologies. The enactment of a universal civil code will help in providing similar rights to every individual in the society irrespective of any discrimination and any barriers. The enactment of universal law will also help in reducing the time of the judiciary in resolving the disputes by protecting from unnecessary delay led in the interpretation of principles of the particular law of every religion.

Conclusion

The above scenario explains to us that how having a particular law for particular religion governing exclusive matters of their religious member is a hazard in the modern world. This type of law is also a threat to the fundamental rights of the citizens. Besides this having such a law is also against the principle of equality guaranteed by the Indian constitution as it distinct the individual based on their religion. Having such a law is also a threat to gender justice as one gender is still now suppressed in comparison to another irrespective of providing equal status to them. The particular law brought Unnecessary and complexity to the judicial system of the country. As one law permits one practice on the other hand in a similar situation and similar circumstances another law denies that thing so it is very difficult for judicial institutions to solve every similar situation ad similar conditions with different prospective and from different interpretations. So having such a particular law is a threat to the progress of the nation in the modern world.

Eventually, the enactment of a universal civil code in the country will bring a major shift in the paradigm in dealing with exclusive matters in the country. The enactment of such a law will be an effective step in the unification of the country by removing conflict in ideologies. The enactment of such a law will be a great solution for providing gender justice in the country. Such a law will also fulfill the basic motive of the Constitution of India to establish equality in the country and to remove disparity from the country. So we can say that the enactment of a universal civil code is a need of an hour in the modern world to adapt and to keep pace with the change of the modern world.

Recommendations

Following are the recommendations-

1. With the enactment of a Universal civil code, the ideologies of an individual should also be kept into consideration. 
2. A draft should be prepared in such a way that the sentiments of every individual should not hurt.
3. More and more focus on removing rigidity while bringing flexibility in the judicial system should be kept.
4. Adaptation to the changes required to keep pace with the modern environment should be kept in mind while drafting such a policy.
5. More and more effort to provide justice to every gender and to establish equal gender roles in the country should be kept in mind while drafting such a policy.