A Contemporary Study on Uniform Civil Code

This research paper is written by Tushar Malviya a student of Lovely Professional University. He has done a contemporary study on Uniform Civil Code.

Table of Contents

Abstract

This article mainly discusses the concept of the Uniform Civil Code and its legal aspects. This paper examines the basic nature and implications of the Uniform Civil Code, as well as its legal perspectives and theories. The paper begins with an introduction to uniform civil law, defining the concept of uniform civil law and also discussing its origin or derivation. In addition, this part itself describes the need or desire

for a Uniform Civil Code, whether it should be implemented, and its advantages and disadvantages. Continuing the approach of the research paper, this paper discusses the relationship between the Uniform Civil Code and secularism, how the implementation of the Uniform Civil Code leads to the collapse of the state, and how this leads to the collapse of peace and harmony. Discuss how to connect.

We then move on to the Uniform Civil Code and Constitutional Guarantees. The paper also discusses Indian judicial judgments and attitudes towards the Unified Civil Code. Finally, we conclude this white paper with some recommendations and conclusions. researchers followed secondary data collection.

This is an educational study. Researchers also use commentaries, books, treatises, articles, memos, commentaries, and other writings to incorporate the diverse views of a large number of jurists with the intention of presenting a holistic view. I’m here. In this paper, researchers used case law extensively to identify trends in court decisions.

Keywords: Uniform Civil Code, Personal Laws, Secularism, Constitution, Judiciary

Introduction

India is a land where many different religions are practised like Hinduism, Islam, Buddhism, Jainism, Zoroastrianism, Christianity, Sikhism, etc., etc. India is secular. It is enshrined in our Constitution and included in the preamble after the 42nd Amendment in 1976. The term “secular” means that the state will neither follow any particular religion nor will the people. will not be discriminated against because of their religion. This means that everyone will have the freedom to follow any religion. This is also enshrined in our Constitution as a fundamental right under Sections 25 and 26.

In India, this term is extremely important as it is important to note that the division of India and Pakistan has happened for the sake of religion. Religion has always been used as a weapon by political institutions and a source of conflict for centuries. Conflict in Israel is also about religion.

In India, different individual laws govern different religions. For example, Hindus, Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act 1956 in matters relating to marriage, divorce, alimony, etc.

Christians are governed by laws concerning Christianity and Muslims by Islamic law. These are the three main sects of personal law in India – Hindu law, Christian law and Islamic law.

Now the problem is that there are differences and inconsistencies in the personal laws. There is no consensus. In addition, there have been cases of individual laws denying women rights or even giving them rights. To overcome these inadequacies, a uniform Civil Code can be promulgated. Uniform Civil Code means uniform personal law for all citizens of the country. This Code will replace the existing religious individual law in India and which has a uniform law that applies to all citizens regardless of religion. This was contemplated by our Constitution’s drafters under Section 44. But it was strongly opposed as it was considered a violation of Section 25 of the Constitution.

This article aims to approach the Unified Civil Code concept in a more practical and practical way to ensure that it can be properly implemented in India and to see if it is suitable for a country like India or not. Its legal dimensions are kept in mind.

Research Methodology

The researcher has followed secondary data collection. This is a doctrinal study. The researcher has also utilized commentaries, books, treatises, articles, notes, comments and other writings to incorporate the various views of the multitude of jurists, with the intention of presenting a holistic view. The researcher has made extensive use of Case Laws in this paper, so as to discern a trend in the judicial pronouncements.

Research Question

Whether the Uniform Civil Code should be a blend of personal laws or a new law?

Review of Literature

The interdependence between law and religion prevents the Indian state from reforming its individual religious laws and as a result, this further denies equal legal rights to Indian women. (Parashar) Secularism is an integral part of Indian democracy, but its use and limitations are currently debated. An in-depth analysis of the uncertainty of future secularism was offered. (Agnes) The Uniform Civil Code of India is a term that refers to the concept of a comprehensive civil code in India. The debate here is if UCC governs all people, regardless of their religion, does it replace the rights of citizens to be governed by different individual laws based on their religion or ethnicity? are not? (Choudhary) The Uniform Civil Code Bill has been introduced in the Indian Parliament. But it never became law due to opposition. One of the reasons the objections were raised is that Islam does not recognize adoption and would therefore violate Article 25 of the Constitution which stipulates the right to practice and profess any religion.

However art. 25 protects only practices that are essential and indispensable to any religion. The custom of adoption was common even in pre-Islamic Arabia. Article 38(2) states that the state must strive to eliminate all inequality. Thus, a uniform law would only attempt to eliminate the inequality of status between a child adopted by a Hindu and a child adopted by a non-Hindu. (Sharma) This book explores the interplay between legal, cultural and religious issues in the context of various intra- and inter-community conflicts. A range of guidelines and considerations have also been put in place. (Shetreet and Chodosh) The author argues that the Uniform Civil Code has been neglected for a long time, causing India to suffer.

Therefore, this article discusses the need for the same. (Hazarika) In this book, the author argues that the Uniform Civil Code is an overlooked concept that needs to be revisited and debated. The author emphasizes that it is time to attach importance to the unified civil code and chart the way. (Ratnaparkhi) This book delves into the limitations of enforcing a uniform civil code in India and explains why it remains such an unfamiliar concept. He details the challenges of doing the same. (Kumar) In this book, the author shows the steps to successfully implement a unified civil code and how to do it without disturbing the peace and causing riots. (Dhagamwar and Indian Law Institute) In this book, the author makes a comparison between the Uniform Civil Code and the personal law of Hindu and Muslim. The study authors objectively compare and determine whether amendments to individual laws are adequate and whether there is an urgent need. (Chavan and Kidwai)

Objectives

To understand the practical problems in the implementation of uniform civil
To study if the uniform civil code is violative of Article 25 of the Indian

Hypothesis

The Uniform Civil Code is not violative of Article 25 of the Constitution of India.

Uniform Civil Code and Personal Law

Women are considered inferior to men in most personal matters, especially when discussing the subject of marriage or inheritance, adoption or even inheritance. In particular, under the Hindu law of 1955 and 1996, Hindu women are not entitled to the same rights as Hindu men, anything or anything. Before 1955, polygamy was common among Hindus. Hindu women cannot hold any property as absolute owners, except in the case of Stridhan. She had only a limited estate that passed on to the last legal heirs of the male owner known as the modifiers upon his death.

She owns a limited interest, in the sense that whenever a problem arises with respect to relinquishment and mortgage or sale of the property, she cannot do it alone. On the matter of adoption, a Hindu woman does not have the right to adopt a child on her own. She cannot be the natural guardian of her child during her husband’s lifetime. These examples are illustrative enough to show the patriarchal nature of Indian society. Although Hindu law was codified, some discriminatory provisions still exist today. For example, a Hindu woman is not the partner of a partner among Hindu partners, except in certain states such as Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Therefore, she is not entitled to a co-ownership. It should therefore be forgotten that the codification of individual Hindu laws has not succeeded in completely eradicating gender inequality.

When discussing Islamic law, in pre-Islamic Saudi Arabia, women enjoy a secondary status because since then, it has been patriarchal. Since then, women are considered secondary to men the advent of Islam greatly contributed to the decline of Muslim women and the escalation of their problems. The Holy Quran gives equal rights to men and women and places women in an honourable positions.

However, certain aspects of Islam make the status of Muslim women, especially wives, precarious and low. In Islam, a man is allowed to marry four times while a woman cannot and to do so would be considered immodest and unclean. Women do not even have the right to divorce their husbands, while the method of divorce of wives by husbands by pronouncing three talaqs is particularly discriminatory. This defines the message given in the Holy Quran. This was found void5 and illegal, recently in Allahabad High Court ruling.

Even in the matter of inheritance, a Muslim woman is discriminated against when some Muslim scholars assert that Islam is more progressive and liberal in this respect. The legal position is that when two scholars or remains of the opposite sex but of the same qualifications inherit the estate of the deceased, the Muslim man will receive double the woman’s share. Even if alimony is required, a Muslim wife is not required to provide alimony after the Iddat period.

The Criminal Procedure Code that a husband is obligated to support his wife, including a divorced woman until she provides for her needs, is secular law and applies to all everyone, but there is controversy regarding Muslim men’s compliance with this rule.

In the famous case of Mohd Ahmed Khan v. Shah Bano Begum⁴, Supreme Court speaking via Y.V. Chandrachud, then Chief Justice, argued that Section 125⁵of the Criminal Procedure Code also applies to Muslims and that even a Muslim husband must provide for his divorced wife after the iddat period.

The controversy began and parliament passed the Muslim Women (Protection of Divorce Rights) Act of 1986 to overturn the ruling in the Shah Bano case. The effect of this law is that a Muslim husband is not required to provide for his divorced wife after the divorce period unless both spouses submit to the court on time that they want to be governed by the Ministry of Justice. criminal procedure law. It’s like having the right to dispose of but not using it to protect the personal space of rights and not doing enough justice for the woman who has suffered so much.

Uniform Civil Code and Indian Constitution

The main point is that if the drafters of the Constitution intended to apply a uniform civil code in India, they should not have placed it under article 44 of the Constitution as part of the guiding principles of state policy. The principles that guide State policy contained in Part IV (Articles 36-51), as their name suggests, are guidelines for the State only. They are not obligatory and are not enforceable by the Court. These are just active state obligations that will contribute to good governance.

The Preamble to the Constitution of India states that India is a secular and democratic republic. This means there is no state religion. A secular state should not discriminate against anyone because of their religion. A religion that is only concerned with man’s relationship with God. This means that religion should not interfere with an individual’s mundane life. The process of secularization is closely linked with the goal of forming a unified Civil Code as cause and effect. In the case of S.R. Bombay v. Union of India8, Judge Jeevan Reddy, he was argued that religion was a matter of personal faith and could not be mixed with secular goals and could be regulated by the state by enacting laws. In India, there is a concept of active secularism, which is different from the doctrine of secularism accepted by the United States and European countries, i.e. there is a wall between religion and religion. Church ‘State.

In India, secularism actively separates spirituality from personal faith. The reason for this is that the US and European nations have gone through periods of renaissance, reform, and enlightenment and are therefore able to enact laws that state that the state must not interfere in religion. In contrast, India has not yet undergone any form of renaissance or reform and therefore it is the duty of the state to intervene in religious affairs to remove obstacles to state governance. The reason why a country like India cannot go through a renaissance is very clear. Chances are that conflicts, rather than abate, will continue to increase and have an adverse impact on enacted laws. For example, a practice or tradition in one’s own law may be acceptable, but on the other hand, it may not be acceptable to those under another’s own law. Thus, when traditions are applied, the nature of the conflict changes from mutual differences to unconditional hostility. People find it difficult to accept or adapt to certain changes and when it comes to a society like India where religion defines the way of life, people connect with their religion instead of understanding that it is religion. Religion was created by man and that person. not created by religion. This thinking is found in cemeteries because some people still believe in burning. There must be a unified law that governs and regulates the behaviour of people of all religions and not of any particular section of society.

The preamble to the Constitution of India decreed the establishment of a “secular” democratic Republic. This means that there is no state religion or in other words, the state does not operate on any particular religion and will not discriminate on the basis of religion.

Articles 25 and 26 of the Indian Constitution are enforceable fundamental rights that guarantee freedom of religion and freedom to conduct religious affairs. At the same time, Article 44, which is not enforceable in court, provides that the state must endeavour to achieve a uniform civil code in India. The uniform civil code is the unified method or uniform law that governs all people as a single law and does not discriminate on the basis of any religion or belief.

As a new principle develops and enters people’s understanding, many questions arise and critics pave the way for them. In the process of unifying individual laws, an important question arose as to what would be the components of the Unified Civil Code. Since the individual laws of each religion have separate provisions, their unification will not only cause outrage but also open hostility towards each other. Therefore, the Uniform Civil Code should provide such laws in order to strike a balance between the protection of fundamental rights and the religious principles of the various communities that exist in the country. Issues like marriage, divorce, alimony, etc. may be secular in nature and the law may govern them.

Uniform Civil Code in Goa

Goa is the only state in India that has a uniform civil code regardless of religion, gender, or caste. Goa has a common family law. Thus, Goa is the only Indian state with a uniform civil code. In Goa, Hindus, Muslims, and Christians are all bound by the same laws regarding marriage, divorce, and succession. When Goa became part of a Union Territory in 1961 under the Goa Daman and Diu Administration Act of 1962, parliament approved the Portuguese Civil Code of 1867 in Goa and would be authorized by the legislature. authority to amend and repeal.

In Goa, marriage is a contract between two people of the opposite sex for the purpose of living together and forming a legal family registered with the civil status authority. And there are specific rules and regulations that must be followed by the parties once they can live together and start their lives, but there are some restrictions by which these types of people are prohibited from holding marriages, for example, any spouse found guilty of ‘having committed or encouraged the murder of another spouse must not marry.

The Special Marriage Act, of 1954

This form of marriage law provides for the civil marriage of two persons of the opposite sex, regardless of their religion. It was common for Indians to have their marriage outside the custom of their personal law. This law is enforced all over India except Jammu and Kashmir as they have granted special status under Section 370. Its law is akin to the Hindu Marriage Act of 1955, which gives an idea of how secularization of the law is for Hindus. Marriage specifically obliges everyone in the Muslim community to marry accordingly.

Under this act, polygamy is illegal and the succession system will be governed by Indian succession. But for divorce, some regulations are followed in Goa. Members of the Muslim community registered for marriage in Goa cannot take multiple wives under this law and during the marriage, all property and property belongs to the couple, each spouse is entitled to the one-half property. . and if one spouse dies, half of the property goes to the other. And the remaining half of the assets are divided among the children in the same report.

Conclusions and Recommendations

The Uniform Civil Code is concerned not only with gender equity but also with how a country responds to its own diversity. In India, freedom of religion exists alongside other rights such as equality and non-discrimination. Instead of taking a haphazard approach or letting cultures decide for themselves, India’s liberal multiculturalism strikes a balance.

He is ready to reform the practices of the majority while providing protections for vulnerable people in minority groups.

Is there a better way for India to negotiate this issue? The general opinion is that Western democracies are the model for liberalism. But how do the United States and France conceptualize freedom and religious law, the balance between the rights of majority and minority groups? What are Canada and the UK doing? But the problem is that India cannot model for Western countries because the conditions are not similar.

Most Western countries, despite claiming to be secular, tend to show a bias towards Christianity and middle Eastern countries clearly follow Islamic law. Even if we call for a unified Civil Code, we must know that the law cannot exist too far from social norms. Without the support of society or the capacity of the state to implement our own principles, we risk motivating people to seek alternative community justice, such as sharia courts. or khap panchayat. A common civil code would have to be careful in its choices. The question then remains as to whether it should mandate, and abolish all individual rights, or it should allow Indians to choose to live under their own religious umbrellas if they so prefer.

Either way, the time has come for us to expose our ideals and disagreements, to pursue a common dream code of civil law. In the seven decades that have passed since the enactment of the Constitution, no sincere attempt has been made to initiate such a dialogue.

It is also clear that the Uniform Civil Code does not violate Articles 25 and 26 of the Constitution. It should be a new law, not an amalgamation of individual laws

The problem with merging individual laws is that there is always the possibility of bias. Parliament is expected to introduce a new piece of legislation similar to the Special Marriages Act of 1954, which does not favor or prejudice any religion.

People need to understand that religion and law are two different concepts. This is because the Constitution allows people to follow their religion, which will continue despite the enactment of a uniform set of laws. The Uniform Code will not restrict their right to follow or profess their religion. For example, religious scriptures prescribe punishment for crimes, but the Indian Penal Code of 1860 is the only criminal law applicable in India. So it’s time people start treating religion and law as two different concepts and focus on empowering everyone. There is an urgent need for uniform laws in India.

References

Books:

Agnes, “The Supreme Court, the Media, and the Uniform Civil Code Debate inIndia.”The Crisis of Secularism in India, 2006, pp. 294–315.
Chavan, Nandini, and Qutub Jehan Personal Law Reforms and GenderEmpowerment: A Debate on Uniform Civil Code. Hope India Publications, 2006.
Dhagamwar, Vasudha, and Indian Law Towards the Uniform Civil Code. 1989.
Kumar, Uniform Civil Code: Challenges and Constraints. 2012.

Journals

Choudhary, “A Proposal for Uniform Civil Code for Law of Succession in India.” SSRN Electronic Journal, 2010.
Hazarika, “Should India Have a Uniform Civil Code?” SSRN Electronic Journal,2010.
Sharma, Sharda “Uniform Civil Code and Adoption Laws in India.”

Case Laws

Mohd Ahmed Khan Shah Bano Begum
R. Bommai v. Union of India
Shayara Banu Union of India & Ors.
Sarla Mudgal Union of India
John Vallamattom Union of India
Acharya Jagdishwaranand Avadhut Commissioner of Police, Calcutta
Lily Thomas, Etc. vs Union Of India & Ors.