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PRESTIGE INSTITUTE OF MANAGEMENT AND

RESEARCH

DEPARTMENT OF LAW

SECTION 44 - UNIFORM CIVIL CODE

Submitted To:-

Prof. Rishika Khare

Submitted By:-

Aayush Arora
BA.LL.B 3rd sem

Acknowledgement
In performing our assignment, I had to take the help and guideline of
some respected persons, who deserve my greatest gratitude. The
completion of this assignment gives me much Pleasure. I would like
to show our gratitude towards Prof. Rishika Khare for giving me
good guideline for assignment throughout numerous consultations. I
would also like to expand my deepest gratitude to all those who have
directly and indirectly guided me in writing this assignment.
I would also like to express my gratitude towards the librarian of my
institution for providing me with the necessary books and materials
for the project.
Many people, especially my classmates, have made valuable
comment suggestions on this proposal which gave me an inspiration
to improve my assignment. I thank all the people for their help
directly and indirectly to complete my assignment.

Sl.No
.

TOPICS

INTRODUCTION

NEED OF UNIFORM CIVIL CODE

ASPECTS OF UNIFORM CIVIL


CODE
POSITION OF UNIFORM CIVIL
CODE IN LEGISLATURE
POSTION OF UNIFORM CIVIL
CODE IN JUDICIARY
THE SOLUTION

CONCLUSION

4
5

INDEX

Pg.no

INTRODUCTION

The term civil code is used to cover the entire body of laws governing rights relating to
property and otherwise in personal matters like marriage, divorce, maintenance, adoption
and inheritance. The demand for a uniform civil code essentially means unifying all these
personal laws to have one set of secular laws dealing with these aspects that will apply to all
citizens of India irrespective of the community they belong to. Though the exact contours of
such a uniform code have not been spelt out, it should presumably incorporate the most
modern and progressive aspects of all existing personal laws while discarding those which

are retrograde1.
Uniform civil code is the proposal to replace the personal laws based on the scriptures and
customs of each major religious community in India with a common set governing every
citizen. These laws are distinguished from public law and cover marriage, divorce,
inheritance, adoption and maintenance. Article 44 of the Directive Principles in India sets its
implementation as duty of the State. In contemporary politics, the Bharatiya Janta Party and
the Left support it while the Congress Party and All India Muslim Personal Law Board
oppose it. Goa has a common family law, thus being the only Indian state to have a uniform
civil code. The Special Marriage Act, 1954 permits any citizen to have a civil marriage
outside the realm of any specific religious personal law .Personal laws were first framed
during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition
from community leaders and refrained from further interfering within this domestic sphere.
The demand for a uniform civil code was first put forward by women activists in the
beginning of the twentieth century, with the objective of women's rights, equality and
secularism. Till Independence in 1947, a few law reforms were passed to improve the
condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu
Code Bill amidst significant opposition. Though a demand for a uniform civil code was made
by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally
accept the compromise of it being added to the Directive Principles because of heavy
opposition.
This project with deal with the various aspects of uniform civil code it will deal with needsa,
aspects, position and solution regarding uniform civil code.

1 http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?
msid=98057

NEED OF UNIFORM CIVIL CODE

The spine of controversy revolving around Uniform Civil Code has been secularism and the
freedom of religion enumerated in the Constitution of India. The preamble of the
Constitution states that India is a "Secular Democratic Republic" This means that there is no
State religion. A secular State shall not discriminate against anyone on the ground of religion.
A State is only concerned with the relation between man and man. It is not concerned with
the relation of man with God. It does not mean allowing all religions to be practiced. It
means that religion should not interfere with the mundane life of an individual. Rebecca J.
Cook rightly points out that although the Indian Constitution contains articles mandating
equality and non discrimination on the grounds of sex, strangely however, several laws exist
that apparently violate these principles and continue to be there especially in personal laws of
certain communities with provisions that are highly discriminatory against women. The
situation is further criticized when it pointed out that, The Indian State has, however, made
no effort to change these laws or introduce new legislation in conformity with Constitutional
principles. In fact Indian Government seems to have chosen to ignore these principles

completely and acts as if they did not exist.2


The Indian Constitution expressly stands for gender equality. For example, Article 44 of the
Constitution envisages a Uniform Civil Code for all citizens and lays down that, The State
shall endeavor to secure for the citizen a Uniform Civil Code through out the territory of
India.3 However, even after half a century from the framing of the Constitution, the ideal
of Uniform Civil Code is yet to be achieved. Women, who make up nearly a half of India,
continue to clamour for a gender just code to enjoy equality and justice irrespective of the
community to which they belong. The Uniform Civil Code is required not only to ensure
(a) uniformity of laws between communities, but also (b) uniformity of laws within
communities ensuring equalities between the rights of men and women.
One of the major problems that has provoked exciting polemics and aggravated majority
pressures is the enactment of a uniform civil code for the citizens throughout the territory of
India, as desiderated in Article 44. The provision is cautiously worded and calls upon the
State to `endeavour' to secure such a code. It is neither time-bound nor carries a compulsive
urgency. But the Hindu fundamentalists make it a militant demand as if Hindu law should be
made the national family law. There is apprehension in the mind of the Muslim minority that
the Quran is in danger, that its sacred family law will be jettisoned. In the Shah Bano case in
1986, the Supreme Court expressed displeasure at the delay in framing a uniform civil code,
which was regarded as a secular imperative. Raging controversy demanding the uniform
code followed and was resisted in full fury by the Muslim minority, with distinguished
exceptions.4

2 Kirti Singh, Obstacles to womens Rights in India, Human Rights of Women:


National and International Perspectives 375 (1994)
3 V.N. Shukla, The Constitution of India, 308
4 V.R. Krishna Iyer, Unifying Personal Laws The Hindu, 6 September 2002

ASPECTS OF UNIFORMS CIVIL CODE


1. Women rights: one of the most discussed topic these days is women rights and
equality .For far too long women have been victimized and justice has been denied to
them under the pretence of personal law. Personal laws of all religions discriminate
against women on matters of marriage, divorce, inheritance and so on. There is an urgent
need to cull out the just and equitable laws of all religions and form a blueprint for a
uniform civil code-based on gender justice. The Hindu code cannot be applied uniformly
to all religions. On the other hand, triple talaq would have to go, as would polygamy and
all the advantages-that accrue to Hindu undivided families in matters of property and
inheritance. 58 years is a long time for women to wait for gender justice. We need a
debate on a uniform civil code not because it is a magic wand with which all ills that
besiege women will disappear, not because it will lead to integration as the sangh parivar
claims it will unity need not imply a drab sameness but because it will be an

important step in freeing women from the shackles of a patriarchal society.


2. Secularism: The spine of controversy revolving around UCC has been secularism
and the freedom of religion enumerated in the Constitution of India. The preamble of
the Constitution states that India is a "secular democratic republic" This means that
there isno State religion. A secular State shall not discriminate against anyone on the
ground of religion. A State is only concerned with the relation between man and man.
It is not concerned with the relation of man with God. It does not mean allowing all
religions to be practiced. It means that religion should not interfere with the mundane
life of an individual.
In S.R. Bommai v. Union of India5, as per Justice Jeevan Reddy, it was held
that religion is the matter of individual faith and cannot be mixed with secular
activities. Secular activities can be regulated by the State by enacting a law. Articles
25 and 26 guarantee right to freedom of religion. Article 25 guarantees to every
person the-freedom of conscience and the right to profess, practice and propagate
religion. But this right is subject to public order, morality and health and to the other
provisions of Part III of the Constitution. UCC is not opposed to secularism or will
not violate Article 25 and 26. Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a civilized society.
Marriage, succession and like matters are of secular nature and therefore, law can
regulate them. No religion permits deliberate distortion. The UCC will not and shall
not result in interference of ones religious beliefs relating, mainly to maintenance,
succession and inheritance. This means that under the UCC a Hindu will not be
compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But in
matters of inheritance, right to property, maintenance and succession, there will be a
common law. The whole debate can be summed up by the judgement given by
Justice R.M. Sahai. He said, "Ours is a secular democratic republic. Freedom of
religion is the core of our culture.Even the slightest of deviation shakes the social
fibre. But religious practices, violative of human rights and dignity and sacerdotal
suffocation of essentially civil and material freedoms are not autonomy but
oppression. Therefore, a unified code is imperative, both, for protection of the
oppressed and for promotion of national unity and solidarity."
5 [1994] 2 SCR 644

3. Codification: The biggest obstacle in implementing the UCC, apart from obtaining a
consensus, is the drafting. Should UCC be a blend of all the personal laws or should it
be a new law adhering to the constitutional mandate? There is a lot of literature
churned out on UCC but there is no model law drafted. Many think that under the
guise of UCC, the Hindu law will be imposed on all. The possibility of UCC being
only a repackaged Hindu law was ruled out by Prime Minister Atal Bihari Vajpayee
when he said that there will be a new code based on gender equality and comprising
the best elements in all the personal laws. The UCC should carve a balance between
protection of fundamental rights and religious dogmas of individuals. It should be a
code, which is just and proper according to a man of ordinary prudence, without any
bias with regards to religious or political consideration.

POSITION OF UCC IN LEGISLATURE

The question of implementation of a common Civil Code has been raised mainly with
regard to matters where, the personal laws of a religious community have been challenged
in the court of law as being volatile of the Constitution or against general public interest.
Our law makers have generally shied away from legislating on such points of personal law
as are considered to be of controversial or sensitive nature, for fear such legislation being
labeled as an intrusion on the above rights thereby-resulting in strong backlash.
This became evident from the reaction to the judgment of the Supreme Court in the Shah

Bano case6 which gave a divorced Muslim woman the right to claim maintenance even after
the period of iddat. If the amount known as meher, paid to her on divorce was not sufficient
for her livelihood, she could claim maintenance under S.125 of the Criminal Procedure Code
(Cr.P.C). There was great agitation against this decision, led by Mullahs and Maulvis and
other fundamentalist sections, as being against the tenets of Islam. Succumbing to the
pressure of vote-bank politics and in order to appease the Muslim fundamentalists, the Rajiv
Gandhi government enacted The Muslim Women (Protection of Rights in Divorce) Act to
undo this decision. This Act exempted Muslims from the general law regulations of the
Cr.P.C, including S.125. It tried to restrict the divorced Muslim womans right to
maintenance up to the iddat period only and provided that under section 3(1)(a) a divorced
women is entitled to reasonable and fair provision and maintenance within the iddat period.
Similarly in case of the Adoption of Children Bill 1972, the Muslim community opposed a
uniform law regarding adoption applicable to all communities since Islam does not recognise
adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in
1980with an express clause of non-applicability to Muslims.
This was again opposed, this time by the Bombay Zoroastrian Jashan Committee, which
formed a special committee to exempt Parsis from the bill. The Adoption of Children Bill,
1995, was passed by both Houses of the Maharashtra legislative assembly, but is still
awaiting presidential assent. What needs to be understood is that the religion of an
individual or denomination has nothing to do in the matter of socio-economic laws of the
State. The freedom of religion conferred by the Constitution is not absolute and by no
means does it allow religion to contravene the secular rights of the citizens and the power of
the State to regulate the socio-economic relations.
Basically, a Common Civil Code will override only those personal laws which do not form
the essence of any religion. The keyword here is essence. Personal laws which form the
fundamental basis or the core of any belief system are ideally, excluded from the purview of
the Common Civil Code. Like the concept of secularism, justice , liberty, equality and
fraternity all are essential and inseparable part of Indian Constitution and along with clarity
and security are also considered as essential part of the constitution and as stated earlier
prevalence of different personal laws ruins the clarity of laws and creates apprehensions in
the mind of different religions so the very purpose of the Constitution is not fulfilled and
there is a necessity for the formation of Uniform Civil Code. Providing justice without
6 (1985 SCR (3) 844)

equality to the individual will not fulfil the very basic purpose of the Constitution. It will
create such a situation in which a person have the power to go to courts for infringement of
his rights but the basis of this infringement is equality itself which is not provided to
individual. Along with the above reasons the Fundamental Rights which are considered to
be the basic structure of the Constitution will also not be provided to the individual under
the garb of-different personal laws. There will be infringement of Articles like 14, 15,16, 17
and 18. As all of them talks about equality like Article 15 prohibits discrimination on the
grounds only of religion, race, caste, sex or any of them. Article 16 talks about equality in
matters of public employment.
Thus the very purpose of these Articles will not be fulfilled if the different personal will
keep on prevailing as they provide different treatment to individuals with in accordance with
the religion they follow.

POSITION OF UCC IN JUDICIARY

Even after more than six decades from the framing of the constitution, the ideal of UCC
under article 44 is yet to be achieved. However, efforts in this discretion continued as
reflected in various pronouncements of the supreme court from time to time The Supreme
Court seems to have a divided opinion on the introduction of a Uniform Civil Code. On one
hand, it has rejected attempts to do so through public interest litigation but on the other, it has
recommended early legislation for its implementation.

In Mohammad Ahmed Khan v. Shah Bano7, s Begum, popularly known as the Shah Banos
case, the Supreme Court held that It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter. Despite section 127 of Cr.P.C. 1973 (which
provides that if a woman has received an amount under personal law, she would not be
entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women
would be entitled to maintenance if amount received by her as dower under personal law
is not sufficient for her sustenance. Though the decision was highly criticized by Muslim
Fundamentalists, yet it was considered a liberal interpretation of law as required by gender
justice. Later, on under pressure from Muslim fundamentalists, the central government
passed the Muslim womens (Protection of Rights on Divorce) Act, 1986, which denied right
of maintenance to Muslim women under section 125 of Cr. P.C. The activists rightly
denounced that it was doubtless a retrograde step. That also showed hoe womens rights
have a low priority even for the secular state of India. Autonomy of a religious establishment
was thus made to prevail over womens rights.
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others8 Prime
Minister of the Country to have a fresh look at Art. 44 of the Constitution of India and
Endeavour to secure for its citizens a UCC throughout the territory of India. He also
suggested the appointment of a committee to enact a Conversion of religion Act. R.M.
Shahai, J., while agreeing with Kuldip Singh , J., too agreed that
Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. But
religious practices, volatile of human rights and dignity and sacerdotal suffocation of
essentiality civil and material freedoms, are not autonomy but oppression.
In Lily Thomas etc. v.Union of India and others9 the Court held that: The desirability of
UCC can hardly be doubted. But it can concretize only when social climate is properly built
up by elite of the society, statement amongst leaders who instead of gaining personal mileage
rise above and awaken the masses to accept the change.The court further added while it was
desirable to have a UCC, the time was yet not ripe and the issue should (be) entrusted to the
7 (1985 SCR (3) 844)
8 (AIR 1995 SC 1531)

9 SC 617, 2000

Law Commission which may examine the same in consultation with minorities Commission.
That is why when the court drew up the final order signed by both the learned judges it said,
the writ petition are allowed in terms of the answer to the questions posed in the opinion of
kuldip Singh, J. These questions we have extracted earlier and the decision was confined
to conclusions reached thereon whereas the observationson the desirability of enacting the
UCC were incidentally made.
In Danial Latifi and another v. Union of India10 the court upheld the validity of Sections 3
and 4 of the Muslim Women (Protection of rights on Divorce) Act, 1986, as not being
volatile of articles 14, 15 and 21 of the Constitution of India. 11Under section 3 of the Muslim
Women (Protection of rights on Divorce) Act, 1986, a Muslim husband is liable to make
reasonable and fair provision for future of divorced wife which includes maintenance also, so
she is not entitled to claim maintenance under section 125 of Cr.P.C. Under section 4 of the
Act, divorced Muslim woman unable to maintain herself after iddat period can precede
against her relatives or wakf Board for maintenance. Rajendra Babu, J., on b ehalf of a five
judges bench consisting of Patnaik, Mohapatra, Doraiswamy, Patil, and JJ...And himself
observed that: - In interpreting the provisions where matrimonial relationship is involved
We have to consider the social conditions prevalent in our society. It is a small solace to say
that such a woman should be compensated in terms of money towards her livelihood and
such a relief which partakes basic human rights to secure gender and social justice is
universally recognized by persons belonging to all religions.
In John Vallamattom v. Union of India12 the Supreme Court in a PIL by a Christian priest,
John and other citizens of Christian community, challenging the validity of the section 118 of
the Indian Succession Act, 1925, while striking down the said section as being volatile of
article 14 of the Constitution, and also concerned over the contradictions in marriage laws of
various religions, in a historic judgments, emphasized the need for a legislation by
Parliament on common civil code. Stressing that there was no necessary connection
between religious and personal laws in a civilized society, a three judge bench held that it
10 2001 AIR 3958
11
12 Writ Petition (civil)

242 of 1997

was matter of regret that article 44 of the Constitution, which provided for the state to
Endeavour to secure a UCC for its citizens throughout India, had not been affected. The
Court further observed that Parliament is still to step in for framing a UCC in the country. A
UCC will help the cause of the national integration by removing the contradiction based on
ideologies. It can be said that after mentioning the apex court view regarding the
implementation of UCC that Art. 44 needs to be interpreted to sustain the plurastic character
of the Indian community. It should be on the gender justice rather than on uniformity.
Although the Supreme Court has not yet interpreted Art. 44. On all his decisions the Court
enjoined upon the parliament to enact a UCC without specifying what a UCC would mean.
However, the word uniform should not mean the same law for all but it should mean
similar laws for all and similarly should be regarding equality and gender justice.
In Pannalal Bansilal v. State of Andhra Pradesh13, it held that a uniform law though highly
desirable, the enactment thereof in one go may be counter-productive to the unity and
integrity of the nation. Gradual progressive change should be brought about. Similarly, in
Maharishi Avadhesh v. Union of India , the Supreme Court dismissed a writ petition to
introduce a common Civil Code on the ground that it was a matter for the legislature and in
Ahmadabad Women Action Group v. Union of India , the Supreme Court showed reluctance
to interfere in matters of personal law.

THE SOLUTION
The importance of a uniform civil code is never in doubt but what is is the cooperation of the
Muslim community, especially the Sunnis. Most argue that once a uniform civil code is
enacted things will automatically fall into place and the initial resistance will die down.
However, experience has shown that laws can be effectively implemented only with the
cooperation of those on whom they are to be implemented. There are far too many examples
where laws and statutes enacted have failed to curb such insensitive and orthodox practices
13 1996 AIR 1023

which they were enacted to curb and abolish in the first place. For example, child marriage
and dowry are illegal and punishable offences, yet they are still prevalent in certain sections
of our society14.
A solution may be found at the meeting of the national convention on uniform civil code
which was held recently under the aegis of the bar council of India. The convention after
much deliberation drafted a model uniform civil code. It was suggested at the convention that
the proposed code may follow the pattern of the French civil code, or the Swiss code, or the
personal law code of the republics of the erstwhile Soviet Union, which had also faced
similar problems and successfully resolved them. It was generally agreed at the convention
that the proposed code should be indigenous in content, moulded in format duly informed by
the experience of other foreign codes. After a lengthy discussion, the convention framed a
draft code which had the following features:
The draft code contemplated to infuse eclectic norms into personal law rights, for example,
right to monogamous marriage, right to maintenance for either the husband or wife and
parents of the child, etc.
The code envisaged an adjudicatory mechanism similar to the family courts at par with
district courts from which the appeal would go to the high courts .
The proposed court would have civil and criminal jurisdiction supported by simple
procedural norms such as hearing in camera, legal representation, etc.
But all the above suggested measures will fail without a mindset for change. A mindset of
nationalism, yet at the same time not nationalistic fanaticism. India must once again
remember what it was meant to be since 1947 a Nation. A Nation which was never
supposed to let communal barriers come in between governance. India today is a nation
which has what is universally acknowledged as one of the largest talent pools of the world,
but which refuses to explore its potential and lethargically refuses to push itself to the next
level. It is for this reason that it is wrong to criticise only the non enthusiastic approach of
the government. We must criticise ourselves as a nation and as citizens of India, for it is
not the executive, legislature and the judiciary which comprise a Nation. It is the citizens
themselves who form the heart, the lungs and the stomach of one.

14 http://www.lawteacher.net/free-law-essays/constitutional-law/article-44-ofthe-constitution-of-india-constitutional-law-essay.php#ftn26

CONCLUSION

The object behind Article 44 is to effect an integration of India by bringing all communities
on a common platform on matters which are presently governed by diverse personal laws but
which do not form the essence of any religion. It is hoped that despite the odds stacked
against it, the uniform civil code will one day become a reality. It is also heartening to see
that the plea for a uniform civil code rests these days more on contentions related to gender
bias and harassment rather than theological considerations. Such a new interpretation of the
definition of a civil code broadens the scope of discussion and also helps to keep religious
arguments and the resultant communal and political tendencies out of it. For example, the
domestic violence act does not take religion into consideration while outlining offences
within it. Justice Leila Seths words aptly express the present perception which is starting to
spread rapidly among citizens: These are not Hindu or Muslim or Christian or Parsi
demands or laws these are a cry for gender just laws; for giving women their human rights
and their mandated constitutional rights. If we cant give them all the rights in one go, let us
progress little by little but let us not be stagnant. Let us move towards gender just laws and a
uniform civil code."Before parting the writer would like to quote Chief Justice Chagla, an
eminent Muslim Judge That (Article 44) is a mandatory provision binding on the
government....the Constitution was enacted for the whole country, it is binding on the whole
country, and every section and community must accept its provisions and its directives."If
only every Indian was equally liberal and nationalist in their approach to the laws of our land.
Priority governance would become far simple.