New Delhi: The Delhi High Court has observed that the Uniform Civil Code (UCC) should not “remain a mere hope”, seeking to highlight the importance of a common set of civil laws governing marriage and divorce, among others.
In a judgment delivered on 7 July, Justice Pratibha M. Singh observed, “In modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating.”
The court added, “The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.”
The HC was hearing a petition on the applicability of the Hindu Marriage Act 1955 to a couple belonging to the Meena community, which is a notified Scheduled Tribe in Rajasthan. While Section 2(2) of the 1955 Act says that this law would not apply to members of any Scheduled Tribe, the court ruled that it would apply in this case because the couple had married according to Hindu rights, ceremonies and customs.
While discussing the conflicts that arise in personal laws, the HC then referred to various Supreme Court judgments to highlight the need for a “code — common to all”.
The Indian Constitution envisions a UCC, but the concept evokes sharp protest from critics, who argue that it goes against the freedom of religion. Proponents of a UCC, however, say it is important to uphold the country’s unity.
‘The State shall endeavour…’
Article 44 of the Constitution says that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Such a code envisions a common set of civil laws on matters such as marriage, divorce, adoption, inheritance and succession for all citizens of the country, irrespective of their religion.
However, this provision falls within the category of directive principles of state policy and is not a fundamental right.
Article 37 says these principles are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. However, unlike fundamental rights, neither the courts can enforce directive principles if there is a violation, nor can citizens approach courts demanding their implementation.
When this provision was being discussed during the Constituent Assembly debates, it faced resistance from several members. A few members demanded addition of exceptions to this provision, saying that any community “shall not be obliged to give up its own personal law in case it has such a law”. The members spoke about the right to freedom of religion, and also claimed that “such regimentation will bring discontent and harmony will be affected”.
Others who supported it argued that such a code is important to uphold the country’s unity, and the secular credentials of the Constitution.
‘Common civil code will help national integration’
Over the years, the Supreme Court has also spoken on the Uniform Civil Code. However, these have been peripheral remarks, instead of binding orders, with the court recognising the fact that bringing about such a code is exclusively in the legislative domain.
In 1985, for instance, the apex court called it “a matter of regret” that Article 44 has remained a “dead letter”. It then observed that “a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”, and that “it is the State which is charged with the duty of securing a uniform civil code”.
This was in the Shah Bano case, in which the Supreme Court declared that Section 125 of the Code of Criminal Procedure, which deals with maintenance, applies to all citizens irrespective of religion.
The issue was highly politicised by then, with then prime minister Rajiv Gandhi overturning the effect of the apex court decision by passing the Muslim Women (Protection on Divorce Act), 1986, which restricted maintenance for Muslim Women to iddat, a period Muslim women have to observe after dissolution of marriage during which she can’t remarry.
In another judgment passed in 1995, the court observed, “When more than 80 per cent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of ‘uniform civil code’ for all citizens in the territory of India.”
Goa is currently the only state to have UCC. Former chief justice of India S.A. Bobde had lauded this, and had encouraged “intellectuals” indulging in “academic talk” to visit the state to learn more about it. In a 2019 verdict, the Supreme Court had also described it as a “shining example” of UCC, observing that the founders of the Constitution had “hoped and expected” a Uniform Civil Code for India but there has been no attempt at framing one.
‘Neither necessary nor desirable’
In August 2018, the Law Commission of India submitted a report saying a Uniform Civil Code is “neither necessary nor desirable at this stage” in the country. It had also said “secularism cannot be contradictory to plurality”.
However, the report acknowledged that there were discriminatory practices within the different family laws in the country. It, therefore, suggested some changes to marriage and divorce laws that may be uniform across religions. For example, it wanted the marriageable age for both boys and girls to be 18 years.
It was also of the opinion that polygamy should be made a criminal offence to all communities, including Muslims. It had said this wasn’t being suggested “owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives which is unfair”.
But the commission reserved its recommendation on polygamy specifically because a petition demanding a ban on polygamy is currently pending in the Supreme Court.
(Edited by Amit Upadhyaya)