: REPERTORY:

1.INTRODUCTION
(Page No. 2)
2.NEED FOR UNIFROM CIVIL CODE
(Page No. 4)
3.POSITION OF COURT
(Page No. 5)
4.OTHER PERSONAL LAWS
(Page No. 6)
5.CONCLUSION
(Page No. 7)
6.BIBLIOGRAPHY
(Page No. 8)

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INTRODUCTION:
The personal law of the Hindus, such as relating to marriage, succession and the like
has all a sacramental origin, in the same manner as in the case of the Muslim or the
Christians. The Hindu along with skihs a, Buddhists and jains has forsaken their
sentiments in the cause of the national unity and integration, some others communities
would not, though the constitution enjoins the establishment of a uniform civil code
for the whole of India. The personal laws of the major religious communities had
traditionally governed marital and family relations, with the government maintaining a
policy of non-interference in such laws in the absence of a demand for a change from
individual religious communities India is a land of diverse religious Hindus Buddhists
jains Christian Muslims Parsees and Sikhs from then nation. Unity in diversity in the
core feature of the India nation. Each community has it won law governing marriage and
divorce, infants and minors adoption wills and succession. These personal law go with an
individual is entitled to have that individuals own personal law applied and not the law
which would be applied in the local territory. Personal law are statutory an customary
law applicable to particular religious or cultural group within a national jurisdiction.
They govern family relations in such matter as marriage and divorce maintenance and
succession. India is a secular country where every community is allowed its own personal
laws.chirstian have the Indian Christian marriage act,1872 and the Indian divorce act
1869,hindus have the Hindu succession act,1925(hereinafter HAS,1956)and the Hindu
marriage act,1955(hereinafter HMA,1955) and so on. Muslim personal law based on the
sharia, is not codified. since Muslims are governed by the sharia, an Indian male Muslim
is entitled to have four wives at any time it is interesting to note that after
independence, Pakistan modernized its personal law and made it quite difficult for a
man two marries a second time. Tunisia Turkey has actually abolished polygamy. In
India only Muslim man may practice polygamy and Hindu sons inherit greater shares of
their parents

Estates than their sister do. while ones religion determines which law will apply to him
or her regarding marriage,divorce,maintenance,guardianship,adoption,inheritance and
succession.unifrom civil code (here in after UCC) of India is a term referring to the
concept of an overarching civil law code in India. A uniform civil code administers the
same set of secular civil laws to govern all people, even those belonging to different
religions and regions. This supersedes the right of citizens to be governed under
different personals laws based on their religion or ethnicity. Such codes are in place in
most modern nations. There is no doubt that the idea of UCC is by and large, a child of
independent India. The British Indian government merely enacted a few laws which

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governed family relationship irrespective of the religion of the partners for e.g. special
marriage act, 1872; marriage womans property act,1874;Indian succession act,1925;and
the child marriage restraint act,1929.the British did not show any pursuit to encourage
the environment to uniformity of laws in India. to quote Choudhary Hydir Husain a
prominent Muslim lawyer,leveing under the British rule for about to centuries weve
come to consider it only natural for Hindus to be governed by Hindu laws and Muslim to
be governed by the Muslim law; but it is wholly a medieval idea and has no place in the
modern world.I would therefore strongly urge the necessity of having one single code
to be named as Indian civil code applicable to everybody living within the terrority of
Indian union irrespective to caste, creed or religion persuasions. This is the jurisdiction
solution to the communal problem. Its appears to be absolutory essential in the interest
of the unification to the country for building up one single nation with one single set of
law in the country. Article 44 of the constitution is requires the state to secure for
the citizen a uniform civil code throughout the territory of India. The term civil code
issued to cover the entire body of the laws governing rights relating to property and
personal matters such and marriage,divorce,maintenance,adoption and inheritance. The
object of this code is to enhance national integration elimination contradictions based
on ideologies. It aims to bring on communities on a common platform on matters which
are currently governed by diverse personal laws. However even after 60years of
independence, our law makers are yet to give effect to this provision.

NEED FOR UNIFORM CIVIL CODE: 3

Ours is a country with several different religious and belief system. The accepted
principal of law is that personal belief systems and laws must be in conformity with the
Constitution and not the other way round. Article 25 of the constitution guarantees to
every person the freedom of conscience and the right to profess practice and
propagate religion. Article 26 of the constitution guarantees to every religious
denomination the right to manage its own affairs in the matters of religion. no set of
laws can violate this article, which essentially project the religious freedom of
different person or communities. We are thus presented with a situation that seems
somewhat contradictory; how can there be a uniform set of laws which protects
religious freedom at the same time? The implementation of a uniform set of laws calls
for discarding certain personal laws which go against societys general outlook as a
whole, and this may amount to violation of the above mentioned articles of the
constitution. With multiple belief system, come multiple ideological conflicts. To live
together in concurrence with such diversity, we need to have uniformity at some level
so as to avoid such conflicts. What we need is a uniform civil code in the form of a
sophisticated, harmonized system of legal regulation that maintains and skillfully uses
the input of personal laws and yet achieves a measure of legal uniformity. As long as
the code does not go against the essence i.e. the core or fundamental belief of any
particular religion, it will not go against the religious freedom guaranteed by the
constitution. The UCC has been permanently associated in the Indian mind with
opposition by the Muslims. It was rightly pointed out in the constituently assembly that
all Hindus were in favor of UCC. They felt that the personal law of
inheritance,succession,etc. is really a part of their religion, if that were so, Indian
women can never be given equality with a man who is enshrined in art.14 of the
constitution. Art.14 of the constitution.Art.15 (1) provides that the state shall not
discriminate against any citizen on grounds only of religion, race, caste, sex and place
of birth pr any of them. Look at Hindu law, we will find discrimination against women
everywhere. To elevate the position of Indian women and provide them equality, India is
badly needed of a UCC for all Indians.

POSITION OF COURT:
Whether Art. 44 imply one thing or the other; it is not a thing of interpretation for
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any scholars of any religion or political dignitaries. It is the Judiciary that has been
vested with the sole & final power of interpreting the provisions of the Constitution.
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.
So it would be noteworthy to see the stand of the Judiciary on this issue.

In Pannalal Bansilal v. State of Andhra Pradesh, it held that a uniform law

though highly desirable, the enactment thereof in one go maybe 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

.
But in the case of Sarla Mudgal v. Union of India, which is one of the most
recent cases, amongst many others, in this context, the observations of the Honorable
Apex Court would prove to be eye-openers to the general public as well as the Government.
The Supreme Court directed the then Prime Minister P.V. Narsimha Rao to take a fresh
look at Article 44, which the Court held to be imperative for both protection of the
oppressed and promotion of national integrity and unity. It instructed the Union
Government through the Secretary to Ministry of Law and Justice to file an affidavit,
enumerating the steps taken and efforts made by the Government towards achieving a
common civil code for the citizens of India. The Division Bench of Kuldip Singh and R.M. Sahai
said that since1950 a number of Governments have come and gone but have failed to make any
efforts towards implementing the constitutional mandate under Article 44. It is based
on the concept that there is no necessary connection between religion and personal law
in a civilized society. No religion permits deliberate distortion. Marriage, succession
and the like are matters of a secular nature and therefore can be regulated by law.
Unfortunately, it was later clarified in an appeal that the direction issued by the Court
was on lyan obiter dicta And not legally binding on the Government.

OTHER PERSONAL LAWS:

The British colonial government administered India largely through a policy of

noninterference, allowing civil matters to be dealt with through respective religious
communities. Matters that fell under the jurisdiction of
These communities were called personal laws. The British began the intensive process
5
of codifying Hindu personal law in the early 1940s in an attempt to notate and therefore
organize the Indian political system. Dr.Ambedkar drafted a Hindu Code Bill; however
most of its progressive provisions could not be adopted by the parliament due to
orthodox thoughts to its opposition. As first law minister of India Dr. Ambedkar gave his
resignation from the parliament as he could not implement this Hindu code bill in
parliament. However, they did not complete codification before granting India its
independence in 1947, and this process was adopted and later completed by the
postcolonial government under Jawaharlal Nehru.

Whenever there is a talk of formulating a Uniform Civil Code in the country, some
minority fundamentalist organizations come together protesting that it poses a threat
to their religious identity. The politics of vote bank takes
Precedence over Indias integrity and unity. The Uniform Civil Code does not mean a Hindu
Code. It means an attempt to inculcate the best from all the communities and religions, both
minorities as well as majority. The Code shall not endanger the freedom of religious
minorities in any way. It will rather reflect the sanctity of ones religious beliefs and
practices in a
More matured form. Other than Hindu Personal Laws, no other Personal Laws is
codified in India due to some or the other problems rose during the discussion of the
codification. The Muslim community opposed a uniform law regarding adoption applicable
to all communities since Islam does not recognize adoption. Due to this opposition, the bill was
subsequently dropped and reintroduced in1980 with 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.

In the Shah Bano Case which gave a divorced Muslim woman the right to claim
maintenance even after the period of iddat. If the amount known as me her, paid to her on
divorce was not sufficient for her livelihood, she could claim maintenance under S.125.
There was great agitation against this decision, led by Mullas 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. The activists rightly
denounced that it was doubt less 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.
The main problem in codification of all the personal laws (mohamaden law,Parsi law,
6
Christian law; etc.) and in implication of Uniform Civil Code is that the customs
practices of different religions are different from each other. Some personal laws
allows some customary laws while does not allow them as they are against their religious
traditions. On the other hand, at the time of independence, Hindu religion was at the
majority in India and many other religious communities believes that the codification
of personal laws will give the Hindu law an upper hand and the other personal laws will be under
the Hindu law.

CONCLUSION:

The issue under Art. 44 today is not whether the provision under Art. 44 are undesirable
but only whether its implementation should be started now. The quotation of Hassan Imam, a
member of Constituent Assembly, would be a befitting climax to this long discussion Talk of
making India strong; it is all right and a very desirable thing to have a uniform law. It is a
must thing because otherwise we would be guilty of making a nation within a nation, a
community within a community. The section of the nation against the implementation of
Uniform Civil Code contends that in ideal times, in an ideal State, a UCC would be an
ideal Safe guard of citizens rights. But India has moved much further from ideal than
when the Constitution was written 50 years ago.
In view of these conflicts of various personal laws, all equally recognized in India, it
will be in the fitness of things that all inter-religious marriages[except those within the
Hindu, Buddhist, Sikh and Jain communities] be required to be held only under the Special
Marriage Act 1954. Even if such a marriage has been solemnized under any other law, for the
purposes of matrimonial causes and remedies the Special Marriage Act can be made
applicable to them. Such a move will bring all inter-religious marriages in the country
under uniform law. This will be in accordance with the underlying principle of Article 44
of the Constitution of India relating to uniform civil code. But to conclude, I would like
to say that citizens belonging to different religions and denominations follow different
property and matrimonial laws which is not only an affront to the nations unity, but also
makes one wonder whether we are a sovereign secular republic or a looseconfederation of
feudal states, where people live at the whims and fanciesof mullahs, bishops and
pundits.

BIBLIOGRAPHY:
Cases Referred

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Mohammad Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556.

Maharishi Avadhesh v. Union of India; 1994 Supp (1) SCC 713

Pannalal Bansilal v. State of Andhra Prades; AIR 1996 SC 1023 paragraph 12: (1996) 2 SCC 498

Smt. Sarla Mudgal v. Union of India and others, AIR 1995 SC 1531
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