RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA

SEMINAR PAPER
FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLE

TOPIC : UNIFORM CIVIL CODE AND FREEDOM OF

RELIGION IN INDIA

SUBMITTED TO: SUBMITTED BY:

Dr. LAKHWINDER SINGH AYUSH SUNDARKA

ASSISTANT PROFESSOR OF LAW 18532

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 ACKNOWLEDGEMENTS

I take this opportunity to express my profound gratitude and

deep regards to my Assistant Professor Dr. Lakhwinder Singh
for his exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The
blessing, help and guidance given by him time to time shall
carry me a long way in the journey of life on which I am about
to embark.
I also take opportunity to express a deep sense of gratitude to
this university for its cordial support, valuable information, and
guidance which helped me in completing this task through
various stages.
Lastly, I would like to thank almighty god, my parents and
friends for their constant encouragement without which this
assignment would not have been possible.

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 TABLE OF CONTENTS

CONTENTS PAGE NUMBER

Chapter 1
INTRODUCTION 6-11
1.1 Meaning of Uniform Civil Code
1.2 Historical Background of Uniform Civil Code
1.3 Aim and Scope of Article 44 in India
1.4 Right to religion under Article 25

Chapter 2
LAWS RELATING TO MARRIAGE IN INDIA 12-18

2.1 Personal Laws

2.2 Provision relating to Marriage under Special Marriage Act
2.3 Goa Civil Code
2.4 Need of Uniform Civil Code in India
Chapter 3
CONSTITUTIONAL CONFLICT 19-25

3.1 Conflict between Personal Laws and Part III of the Constitution

3.2 UCC : Gender Justice

3.3 Concept of Secularism and its Role in Formation of UCC

Chapter 4
SOCIO ECONOMIC CONDITIONS 26-28

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4.1 Ideal Social Conditions for Implementation of UCC

4.2 Are We Ready to Accept Uniform Civil Code?

Chapter 5
INTERNATIONAL MANDATE AND ROLE OF JUDICIARY 29-31

5.1 International Mandate

5.2 UCC: A call from Indian Judiciary

Chapter 6

CONCLUSION AND SUGGESTIONS 32-33

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Abstract

Part IV of the Constitution of India deals with the Directive Principles of State Policy. Even after
being unenforceable in Court of Law, they remain fundamental in the governance of the country.
These were also a part of fundamental rights which were not given to the People of India as
fundamental rights due to existing socio-economic position at that time. One such Directive
Principle is the Uniform Civil Code which has been mandated under Article 44 of the
Constitution of India. It creates an obligation on the State to strive for a Uniform Civil Code for
the citizens throughout the territory of India. But by the virtue of it being a non enforceable
Directive Principle of State Policy, it has remained a dead letter even after 68 years of the
enforcement of the Constitution of India. The over politicizing of the matter has caused
hindrance in the implementation of the Uniform Civil Code. One more reason for it being a dead
letter is that it has been vehemently opposed by the members of minority community who claim
that implementing a UCC and bringing all religions under one umbrella, would be an
interference with their Personal Laws which would lead to an infringement of their Right to
freedom of Religion which has been incorporated under Article 25 of the Constitution of India.
However, Judiciary at various instance, has called for the implementation of UCC but it is still a
dream to be achieved owing to India’s diverse culture. The UCC is need of the hour but it must
be done slowly and steadily after making the minority population of the Country aware about its
scope and extent.

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 CH. 1. INTRODUCTION

India is a country of vast and diverse culture with people having their own customs, traditions,
religion etc. and thus, they are governed by their own personal laws. There are various different
codes for different communities when it comes to personal law. Hindus have Hindu Marriage
Act, Hindu Adoption and Guardianship Act, Hindu Succession Act etc. whereas Muslims,
Christians and Parsis are governed by their own personal laws. In addition to this, India also have
a secular Special Marriage Act which felicitates the marriage of two persons irrespective of their
cast, creed, race and religion. But due to different legislations, governing different sets of
people, it becomes difficult at times to distribute justice equally to each and every person. That’s
why Uniform Civil Code was mandated by the framers of Constitution on the State, with the idea
of National Consolidation. The Uniform Civil Code was originally envisaged, by the Sub-
Committee of Fundamental Rights, in the Article 35 of the Draft Constitution which stated “The
State shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India”. The Uniform Civil Code was argued for the first time in the Constituent Assembly where
it was opposed by the Muslim members of the Assembly citing the reason that interference in
Muslim Personal Law will encroach upon their fundamental right to freedom which is
incorporated under Article 25 of the Constitution.

The Uniform Civil Code is still a distant dream because it is upon the parliament to make an
attempt to unify the personal laws in secular matters like Marriage, Divorce, Succession,
Maintenance etc. and none of the steps as such has been taken towards achieving the ideal of
Uniform Civil Code. The only step by the government which comes to my mind has been the
codification of Hindu Personal Laws. The codification of Muslim Personal Laws has been a
sensitive issue from that time, even though some of the enlightened Muslim opinion appears to
favour the call.

1.1 Meaning of Uniform Civil Code

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Uniform Civil Code means a common civil code for all citizens, which covers all matters relating
to marriages i.e. Marriage, Divorce, Maintenance, Succession etc. under one hood, by which the
different set of people having diverse culture and religion, would be governed irrespective of
their religion. It is a tool to secure gender equality by curbing down the menaces prevalent under
the personal laws of different religions. Like Polygamy, Triple Talaq and gender discriminatory
practices in matters of succession in Hindu Law and not to forget the recent issue which is
pending in front of Supreme Court i.e. Nikah Halala. These are some examples of gender
discriminatory practices under various Personal Laws. While most of the areas of law is uniform
in our country, this is one particular field which the legislation has not been able to invade so far.

1.1 Historical Background of Uniform Civil Code

The history of Uniform Civil Code can be traced back to the British Period. They succeeded in
laying down uniform laws covering almost all areas of law. They laid down a Uniform Criminal
Law (including its procedure), Uniform Civil Law covering personal relations like contract etc.
and other substantive laws. But, when in 1835 and 1853, the first and second Law Commission
were adopted, they were asked to prepare a draft on Uniform Civil laws governing the matters
relating to Marriage, Divorce, Succession, Maintenance etc. They expressly asked to keep the
Hindu Law and Muslim Personal Laws outside the ambit of Common Civil Code. They doubted
the wisdom of such uniform laws governing the matters of Personal Laws, which would be
applicable to all the communities irrespective of their cultural and religious difference. The
Second Law Commission even observed:

“The Hindu law and Mohammadan law derive their authority respectively from the Hindu and
Mohammadan religion. It follows that, as British legislature cannot make Mohammadan or
Hindu religion, so neither it can make Mohammadan or Hindu law. A code of Mohammadan or
a digest of any part of that law, if it were enacted as such by the legislative council of India,
would not be entitled to be regarded by Mohammadans as very law itself but merely as an
exposition of law, which possibly might be incorrect. We think it clear that it is not advisable to
make any enactment which would stand on such a footing1”

1
The Lex Loci Report of 1840.

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Again, Uniform Civil Code was proposed by the Sub Committee of Fundamental Rights who
engrafted the same under Article 35 of the Draft Constitution as a Directive Principle of State
Policy. The motion was put forward in front of Constituent Assembly and it was then
vehemently opposed by some Muslim members of the Assembly on the ground that it would be
an infringement of their Fundamental Rights if the Muslim Personal Law is interfered with.
Mohammad Ismail Sahib, Naziruddin Ahmed and Mahmood Ali Baig Sahib Bahadur were
among the ones who contested the motion. They also proposed an amendment in the Article 35
of the Draft Constitution and proposed the insertion of a proviso with effect to “Nothing in this
Article shall affect the personal laws of a citizen”. Also “No Community shall be obliged to give
up its own personal laws which shall not be changed except with their prior approval”. The
proposed amendment was rebutted by K.M. Munshi on the ground that we are an advancing
society and UCC is required for the national integration and consolidation. He also put forth the
discussion of Hindu Law Draft which was pending before the Assembly and emphasized on its
provisions, mostly of which ran counter to the injunctions by Manu and Yajnavalkya.

Dr. B.R. Ambedkar, the father of Constitution, as he is known, argued in favour of Uniform Civil
Code and rejected the amendments so proposed. He rebutted the proposal and observed:
“We have a uniform and complete Criminal Code operating throughout the country, which is
contained in the Penal Code and the Criminal Procedure Code. This country has also practically
a Civil Code, uniform in its content and applicable to the whole of the country. The only
province the Civil Law has not been able to invade so far is Marriage and Succession. It is this
little corner which we have not been able to invade so far2.”

1.2 Aim and Scope of Article 44 in India

The Uniform Civil Code is aimed towards bringing uniformity in Personal Laws and curbing
down social menaces prevailing in the Society, which are practiced in the name of Freedom of
Religion as envisaged in Article 25 of the Constitution. It strives for bringing gender justice by
removing gender discriminatory practices under various personal laws. Its main aim is to unify

2
The Constitutent Assembly Debates.

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the personal laws which would ultimately contribute towards the national integration and
consolidation.

It is necessary that law be divorced from religion. With the enactment of Uniform Civil Code,
secularism will be strengthened; much of the present day separation and divisiveness between
the various religious groups in the country will disappear, and India will emerge as a much more
cohesive and integrated nation.

If we talk about scope of Article 443 in India, the Court appreciates the difficulties involved in
bringing persons of different faiths and persuasions on a common platform, but nevertheless, the
court has said, “a beginning has to be made if the Constitution is to have any meaning.” “It is the
state which is charged with the duty of securing a uniform civil code for the citizens of the
country and unquestionably, it has the legislative competence to do so.”

1.3 Right to Religion under Article 25

Article 25 of the Constitution of India reads as follows:

25. Freedom of conscience and free profession, practice and propagation of religion –

1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion.
2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law –
a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
b) providing for social welfare and reform or the throwing open of Hindu religious institutions of
a public character to all cases and sections of Hindus.

By the bare reading of the provision relating to freedom of Religion as envisaged under Article
25, it can be drawn that, all persons in India has a right to freedom of conscience. Every person

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can freely profess, practice and propagate his religion. But this right is not absolute and it can be
curbed subject to public order, morality and health. Moreover, if we take recourse to Clause 2 of
the above mentioned article, it is clear that the state is not prevented from making any law which
falls under the category of secular activity and for the promotion of social welfare.

To understand the concept of Freedom of Religion in India, we must go through some judgments
by the Apex Court.

The term ‘Religion’ is nowhere defined in the Constitution of India and actually it is a term
which cannot be precisely defined. However, the Supreme Court has given an elaborated
meaning to this term in Lakshmindra4 where it observed “Religion is certainly a matter of faith
with individuals or communities and it is not necessarily theistic. There are well known religions
in India like Buddhism and Jainism which do not believe in God or in any Intelligent First
Cause.” Again in PMA Metropolitan v Moran Mar Marthoma5 the Supreme Court tried to
define Religion as “Religion is the belief which binds spiritual nature of men to super-natural
being. It includes worship, belief, faith, devotion, etc. and extends to rituals. Religious Right is
the right of a person believing in a particular faith to practice it, preach it and profess it.”

In Khursheed Ahmad Khan v. State of U.P.6, the Supreme Court observed “Article 25 protects
religious faith and not a practice which may run counter to public order, health or morality.”

The Court has interpreted the concept of Freedom of Religion and made a clear cut observation
many times that Article 25 only protects the essential religious practices and not customary
practices.

In Hanif Qureshi v. State of Bihar7, the Court held that sacrificing a healthy cow on the eve of
Bakrid is not an essential religious practice in Islam and therefore, it is not protected by Article
25.

4
AIR 1954 SC 282.
5
AIR 1995 SCC 2001
6
AIR 2015 SC 1429
7
AIR 1961 SC 448

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 CH. 2. LAWS RELATING TO MARRIAGE IN INDIA

India is a country of diverse culture and different sets of people are governed by different
personal laws. The personal laws find their source from religious texts in most of the cases.
People of different faith are allowed to practice whatever is preached in their religious texts.

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There are various laws relating to marriages in India, based on their Personal Laws and religious
beliefs. Other than this, there is a secular law which is known as Special Marriage Act, 1954
which allows inter-faith marriages too. Any two persons irrespective of their religious faith and
different caste, creed etc. can marry under this Act. However, there is one state where a Common
Civil Code is in force. Goa Civil Code is the code covering marriage matters under one hood, for
all, irrespective of their religious faith. These are the various laws relating to marriage matters in
India.

2.1 Personal Laws

 Hindu Law

Like other personal laws, Hindu Personal Law was also governed by the religious texts
before the year 1955. The Hindu Personal Laws was mostly based on the injunctions by
Manu and Yajnavalkya. When UCC debates were going on in Constituent Assembly, the
Hindu Law Draft was pending and most of its provisions ran counter to injunctions by Manu
and Yajnavalkya. It also had various gender discriminatory practices like Polygamy, and in
matters related to succession and inheritance. It was only then that with a view to implement
UCC, the codification of Hindu Personal Law could be done. With the codification of Hindu
Personal Laws, most of such practices were brought to rest. This was done in order to bring
gender justice to women, and also bring uniformity in the laws which governed Hindus.
Hindu Personal Law was codified under four main legislations i.e. Hindu Marriage Act,
Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and
Maintenance Act.

Sec. 5 of Hindu Marriage Act, 1955 deals with the essentials of a valid marriage. It reads as
follows:
5. Conditions for a Hindu marriage. - A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

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 (b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity.
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of
[eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;

The first essential requisite for a valid marriage under Sec. 5 of Hindu Marriage Act is that a
person should not have a living spouse at the time of marriage. There was no such provision
in Hindu Personal Law to this effect before the enactment of Hindu Marriage Act, 1955.
Polygamy was prevalent before the codification but now it has been invalidated under this
provision. A Hindu Man can only marry one woman at a time. If he contracts another
marriage even after having a living spouse, Section 494 of Indian Penal Code comes into
play, thus making the person liable for bigamy.

Sikhism, Buddhism and Jainism are also considered to be a part of Hinduism for the purposes
of Article 25 of the Constitution of India. The Hindu Marriage Act is equally applicable to all
these three religions. Their marriages are also governed by the Hindu Marriage Act, though
they have different cultures. So, Polygamy is not allowed as far these religions are
concerned, and any of the parties who contracts second marriage in the lifetime of his spouse,
will be guilty of Bigamy under Section 494 of Indian Penal code.

 Christian Marriage Act

Under the Indian Christian Marriage Act, 1872, Christian marriages in India are performed
by a Minister or Priest in a church. After the marriage is performed the minister or priest
enlists the marriage and issues a marriage certificate, thereby endorsing the marriage. A
marriage, performed earlier by a Priest or Minister of the Church, can likewise be enrolled, in
the register by the registrar of marriages. In order to get a marriage registered, it is

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incumbent on each party to the marriage to make an application to the concerned authority
located within its place of residence.

In order to constitute a valid marriage under the act, it is a requirement that either one or both
parties are Christians. Unless one of the parties to the marriage is governed by its own
personal law which forbids such a marriage on the grounds of prohibited degrees of
relationship, thereby rendering the marriage as void and redundant under the act. To
constitute a legitimate marriage under the act the following factors have to be complied
with:-

1) The bridegroom must not be under twenty-one years and the bride must not be under
eighteen years of age respectively;
2) Consent must be free and voluntary and not obtained by misrepresentation of facts,
compulsion or undue influence;
3) Neither party should have a spouse living at the time of marriage;
4) Marriage must be performed in the presence of at least two reliable witnesses, by a
person licensed to grant a certificate to the marriage.

 Muslim Personal Law

Marriage/'Nikah' according to Muslim Law is a contract underlying a permanent relationship

based on mutual consent.

A Muslim marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other as is required for a contract. Moreover there can be no marriage without free consent
and such consent should not be obtained by means of coercion, fraud or undue influence.

Just as in case of contract, entered by a guardian, on attaining majority, so can a marriage

contract in Muslim Law, be set aside by a minor on attaining the age of puberty.

The parties to a Muslim marriage may enter into any ante-nuptial or postnuptial agreement
which is enforceable by law provided it is reasonable and not opposed to the policy of Islam.
Same is the case with a contract.

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 The terms of a marriage contract may also be altered within legal limits to suit individual
cases. Although discouraged both by the holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

REQUIREMENTS

The solemnization of marriage requires adherence to certain forms and formulas. They are
called the essentials of a valid marriage. If any of these requirements is not fulfilled the
marriage becomes either void or irregular, as the case may be. Thus the essentials are as
follows:

 Proposal and Acceptance

 Competent parties
 No legal Disability

Besides all this, Muslim Personal Laws also allow contracting four marriages at a time, and
they cannot be charged under the provisions of IPC relating to the offence of Bigamy.

RELATIVE INCAPACITY OR PROHIBITION:

Springs from cases which render the marriage invalid only so long as the cause which creates
the bar exist. The moment it is removed, the incapacity ends and the marriage become valid
and binding. The following are the cases:

 Unlawful conjunction,
 Polygamy, or marrying a fifth wife.
 Absence of proper witnesses
 Differences of religion
 Woman undergoing IDDAT

2.2 Provision relating to Marriage under Special Marriage Act

The Special Marriage Act was enacted to provide a special form of marriage by any person in
India and all Indian nationals in foreign countries irrespective of the religion either party to the

15
marriage may profess. For the benefit of Indian citizens abroad, it provides for the appointment
of Diplomatic and Consular Officers as marriage officers for solemnizing and registering
marriages between citizens of India in a foreign country. The Act extends to the whole of India
except the state of Jammu and Kashmir and also applies to citizens of India domiciled in the
territories to which this Act extends who are in the state of Jammu and Kashmir.

Conditions Necessary for A Marriage

The following conditions are necessary:

1. That neither party has a spouse living at the time of marriage.

2. That neither party is incapable of giving a valid consent to the marriage due to
unsoundness of mind.
3. That neither party has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children.
4. That neither party has been subject to recurrent attacks of epilepsy or insanity.
5. That the bridegroom has completed the age of 21 years and the bride the age of 18 years
at the time of marriage.
6. That the parties are not within the degrees of prohibited relationship. However where a
custom governing at least one of the parties permits a marriage between them, such
marriage may be solemnized non with standing that they are within the degrees of
prohibited relationship.

2.3 Goa Civil Code

The Goa Civil Code, also called the Goa Family Law, is the set of civil laws that govern the
residents of the Indian state of Goa. It is largely based on the Portuguese Civil Code which was
introduced in Goa in 1870.

Some ways in which the Goa Civil Code is different from other Indian laws include:

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  A married couple jointly holds ownership of all the assets owned (before the marriage) or
acquired (after the marriage) by each spouse.
 In case of a divorce, each spouse is entitled to a half share of the assets. However, the law
also allows ante nuptial (occurring before marriage) agreements, which may state a
different division of assets in case of a divorce.
 These agreements also allow the spouses to hold the assets acquired before marriage
separately. Such agreements cannot be changed or revoked. A married person cannot sell
the property without the consent of his/her spouse.
 The parents cannot disinherit their children entirely. At least half of their property has to
be passed on to the children compulsorily. This inherited property must be shared equally
among the children.
 Muslim men, who have their marriages registered in Goa, cannot
practice polygamy. Also, there is no provision for a verbal divorce.

2.4 Need of Uniform Civil Code in India

Personal religious laws have been found to act as a big obstacle in the path of achieving this
goal. One of the biggest drawbacks of personal religious laws is that it fuels gender inequalities.
Women victimization and denial of justice to women has been going on for a very long time
under the personal law. What makes the situation worse is the functioning of caste panchayats.
These panchayats give such verdicts that are derogatory to the laws prescribed by our
Constitution. "An ex-Attorney General in this regard stated that the personal laws are completely
submitted to the Constitutional obligations and enjoy no immunity especially in cases where
fundamental duties towards women are concerned as they are guaranteed under Article 15 which
provides that any practice that is derogatory to the dignity of women’ shall be renounced
completely."

Further, in the absence of UCC judges interpret various provisions like maintenance in case of
Muslim women according to their prejudices and opinion. The introduction of UCC will prevent
such interference and promote Uniform provisions for the welfare of all women. It will remove

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prejudices against women regarding personal laws on divorce and maintenance. The introduction
of UCC will also promote monogamy among all the citizens of India including Muslims and it
will lead to betterment in the position of women.

In India, laws governing Hindu women are progressive and less discriminatory as compared to
laws governing Muslim women. There is no reason that why one portion of women should be
excluded from the benefits of such rights. The introduction of UCC will ensure uniform rights
for the women all over India.

Even the introduction of Uniform Hindu Code was initially opposed by the general masses at the
time of its inception but later on, it was well accepted. In fact, it becomes successful in
improving the position of Hindu women. UCC will ensure such kind of reforms in Muslim law
also which will benefit women. Thus it is in this context that we understand the need to adopt
UCC as it ensures Gender inequality and welfare of the women.

CH. 3. CONSTITUTIONAL CONFLICT

3.1 Conflict between Personal Laws and Part III of the Constitution
Two scenarios arise which are to be discussed to determine the conflict: -

a. Personal laws, codified, customary in practice coming in conflict with the provisions of Part-
III of the Indian constitution.

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b. Conflict of personal laws, which aims at reforming existing laws found to be arbitrary,
unconstitutional with Article 25 of the Indian Constitution.

The Indian Judiciary, ever since the inception of the Indian Constitution, has been facing a
dilemma in deciding the inter-relation of Personal Laws and Part III of the Indian Constitution.

One of the landmark and important judgment in this connection, which throw some light on this
dilemma is the Narasu Appa Mali case.

State of Bombay v. Narasu Appa Mali8

Relating to the “Bombay Prohibition of Bigamous Marriage Act, 1946, the validity of which was
challenged on the basis of Article 14, 15 & 25 of the Constitution of India, Major issues
involving the case were:

a. Whether the Personal laws of Hindus, is “Law” within the meaning of Article 13 (3) (b) and
Article 372 (3), Explanation 1?

b. Whether an alteration of the personal law of one religious community, without a similar
alteration in that of others, violates equality under law?

It was held by the court that:

“Personal laws are not included in the “law” referred to in Article 13 (3) and are not the “law in
force” referred to Art. 372 (3). Bombay Prevention of Hindu Bigamous Marriage Act, 1946 was
found not to be violative of Article 14 as the State was free to bring in social reforms in stages.

2. If religious practices are opposed to public order, morality or a policy of social welfare, duty
of which is upon the State, then the good of the people of the State as a whole will be preferred
over religious practices.

8
AIR 1952 BOM 84.

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Constitutionality of Personal Laws With Respect To Judicial Review

The Judicial review doctrine is explicitly reflected in Article 13 of the Constitution of India.
Laws enacted by the State found to be inconsistent with that of provisions of Part III of the
Constitution of India can be declared as ultra vires by the Supreme Court of India.

Issues such as Monogamy, Restitution of Conjugal Rights, Discriminatory grounds of divorce,

Maintenance are always a challenge for the judiciary to strike a balance between personal laws
based on religion and concerns of gender justice, equality and fairness of law.

Watershed Point of Judicial Review in Personal Laws- The Episode of Shah Bano

This is the case where the Apex court of India had to go against the existing personal laws to
take into consideration certain temporal, social and secular aspects, the landmark in the journey
of development of personal laws.

Supreme Court of India in Md. Ahmed Khan v. Shah Bano Begum9 ruled against the tenets of
Muslim persona law by providing maintenance claim to a Muslim divorced lady under Section
125 of Cr.P.C.52, despite prohibition under Muslim personal law giving a thought and a
direction towards the concept of “One nation, one law”, the Uniform Civil Code.

There are number of such cases including Sarla Mudgal v. Union of India where personal laws
and legal provisions pertaining to personal laws were challenged in relation to the above
mentioned issues. In some cases, Courts, without indulging into the question of constitutionality
of personal laws, made it point to recommend to the Union of India to bring UCC as a part of the
legal system.

Judicial Restraint – Ahemedabad Women’s Action Group (Awag) V. Union of India10

Well, this case is the classic example of exercise of judicial restraint when it comes to dealing
with or deciding a question in relation to personal law and Part III of Indian Constitution.

In this case Muslim personal law regarding polygamy and oral divorce by uttering the word
‘talaq’ thrice, which is popularly known as triple talaq, were challenged on the ground that they

9
AIR 1985 SC 945
10
AIR (1997) 3 SCC 573.

20
violated the fundamental right to equality. The Court held that the since the petition raised
questions of social policy, this fell outside the scope of its power. Although the Court had held in
an earlier case that personal laws also had to be consistent with the fundamental rights, it has
thought fit not to make such sweeping reforms in personal law through judicial process.

So this judgment shows that the court wanted to convey that in such cases remedy lies before
Parliament. It is for the Parliament to take the steps to reform the personal law. In this
connection, it is pertinent to note that Shah Bano case and Ahmedabad Women’s Action Group
case are two different corners of the same thread. They represent two different approaches of the
judicial attitude towards personal law. Shah Bano case, where Court has taken extremist
approach and look at the case of Ahmedabad women’s Action Group, where court did not
undertake to reform personal laws through judicial process. Court has thought it prudent to leave
major reforms causing social change to be brought about through legislative process.

The Supreme Court judgment outlawing instant triple talaq was a landmark decision11 but it also
highlights difficulties faced by judges in resolving thorny issues that overlap between civil
matters and personal laws. Justices Nariman, Lalit and Joseph took the stand that triple talaq is
not integral to the practice of Islam and isn’t protected by Article 25(1) safeguarding religious
freedoms. But Justice Joseph disagreed with the Nariman-Lalit view that a colonial-era
legislation surrendering “marriage, dissolution of marriage, including talaq” to personal law
regulated triple talaq, and hence must be tested against Article 14 guaranteeing equal protection
of the law.

Instead Justice Joseph, like Justices Khehar and Nazeer, reaffirmed that the law applicable to
Muslims “shall only be their personal law namely Shariat” and then proceeded to ascertain
whether triple talaq was sanctioned by Quran. But should judges be forced into laboured
interpretations of religious laws in matters like marriage that fall within the domain of civil law?
All three judgments on triple talaq conducted their own inquiries into Muslim laws, on
essentially theological issues, and arrived at different interpretations.

For women coping with marital, divorce, inheritance and alimony disputes, vacuum in the statute
on grounds of primacy of personal laws is a gross violation of Article 14. Justices Khehar and

11
Shayara Bano v. Union of India & ors. 2017 SCC SC 963

21
Nazeer, with qualified support from Justice Joseph, implored Parliament to extend the
codification of laws, “an issue of paramount importance”, to Muslims too. But codification of
personal laws will not end discrimination if the personal law is fundamentally discriminatory.
Even the Hindu codes still have provisions that favour men over women. A Uniform Civil Code
(UCC) would bring clarity, cut through the messiness necessitated by dealing with abstruse
theological matters, and actualise Article 14’s promise of equality.

But UCC seems tough to achieve in today’s fractious political climate. To bring it closer, every
party must drop the selective secularism it currently practises and move towards genuine
secularism. This responsibility falls especially heavily on BJP and NDA as they are politically
dominant in the country. Prime Minister Narendra Modi is best placed in decades to take the
initiative. He has parliamentary backing and his party manifesto promised a UCC if elected. But
Modi must first win minority backing by propounding an inclusive agenda in all walks of public
life. After GST on the economic front, UCC is the ultimate measure to “unify” Indian society12.

3.2 UCC : Gender Justice

Women empowerment in the major areas like social status, gender bias, health, security and
empowerment are of urgent necessity. The Indian state has in fact encouraged codifying tribal
customary laws. Article 44 expects from the State to secure a Uniform Civil Code for all citizens
of India. There is no Uniform Civil Code in India but a Uniform Criminal Code exists. The
Criminal law is equally applicable to all citizens irrespective of their religious affiliation.
However in the case of civil law particularly in the matter of personal laws there is no
uniformity. In Mohammad Ahmed Khan v. Shah Bano Begum13, popularly known as Shah
Bano’s case, the Supreme Court held that “It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter.” Though this decision was highly criticized by Muslim
Fundamentalists, yet it was considered as a liberal interpretation of law as required by gender
justice. However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India14, a PIL
was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory
and non-statutory law. This time Supreme Court became a bit reserved and held that the matter

12
Available at https://blogs.timesofindia.indiatimes.com/toi-editorials/time-for-ucc-if-unifying-india-is-modis-
mantra-uniform-civil-code-with-minority-backing-will-transform-indian-society/
13
Supra note 9
14
Supra note 10

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of removal of gender discrimination in personal laws “involves issues of State polices with
which the court will not ordinarily have any concern.” The decision was criticized that the apex
court had virtually abdicated its role as a sentinel in protecting the principles of equality
regarding gender related issues of personal laws of various communities in India.

The Apex Court pursued the same line in Lily Thomas etc. v. Union of India15 and others and
held, “The desirability of Uniform Civil Code can hardly be doubted. But it can concretize only
when social climate is properly built up by elite of the society, statesmen amongst leaders who
instead of gaining personal mileage rise above and awaken the masses to accept the change.”

The judiciary in India has taken note of the injustice done to the women in the matters of many
personal laws. It has been voicing its concern through a number of judgments indicating the
necessity to have uniformity in personal matters of all the citizens.

It is in this context that we need to understand the issue of the uniform civil code. The time has
come to place personal laws of all religions under a scanner and reject those laws that violate the
Constitution. 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.

3.3 Concept of Secularism and its Role in Formation of UCC

The Preamble of the Indian 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 religion is only concerned with relation of man with God. It means
that religion should not be interfering with the mundane life of an individual. The process of
secularisation is intimately connected with the goal of uniform Civil Code like a cause and
effect. In the case of S.R. Bommai v. Union of India16, as per the Justice Jeevan Reddy, it was

15
AIR 2000 6 SCC 224
16
AIR 1994 SCC 1918

23
held that religion is the matter of individual faith and cannot be mixed with secular activities and
can be regulated by the State by enacting a law.

In India, there exists a concept of positive secularism as distinguished from the doctrine of
secularism accepted by the United States and the European States i.e. there is a wall of separation
between the religion and the state. In India, positive secularism separates spiritualism with
individual faith. The reason is that America and the European States went through the stages of
renaissance, reformation and enlightenment and thus they can enact a law stating that State shall
not interfere with the religion. On the contrary, India has not undergone any kind of renaissance
or reformation and thus the responsibility lies on the state to interfere in the matters of religion so
as to remove the impediments in the governance of the state.

The reason why a country like India cannot undergo a renaissance is very clear. We have
discussed above how there is prevalence of not only different religions in the country but also
their own personal legislative laws. This is why chances are, that the conflicts, instead of
decreasing may go on increasing and showing reverse effects on the laws that are made. For
instance, a practice or a tradition in one's personal law may be acceptable but on the other hand,
it may not be acceptable to the people of other personal laws. So, when the traditions will be in
practice, the nature of the conflict will transform itself from general differences to hardcore
animosity.

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 themselves with their religion
instead of understanding that it is the religion which is made by human beings and that human
beings are not made by the religion. This thought finds itself in the graveyard because some
people still believe in burning. There needs to be a uniform law which governs and regulate the
behaviour of people of all the religions and not any particular section of the society. The
Preamble of the Indian Constitution resolves to constitute a "Secular" Democratic Republic. This
means that there is no state religion or in other words the state does not operate on any one
particular religion and shall not discriminate on the ground of religion. Article 25 and 26 of the
Constitution of India as enforceable fundamental rights guarantee freedom of religion and
freedom to manage religious affairs.

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At the same time Article 44 which is not enforceable in a court of Law states that the state shall
endeavour to secure a uniform civil code in India. Uniform civil Code is the uniform method or
the uniform law that governs the people as a uniform law and does not discriminate on the basis
of any religion or faith. As a new principle evolves and comes into the knowledge of the people
several questions arise and criticisms pave their way. In unification of the personal laws, an
important question that arose was what will be the ingredients of the Uniform civil code.

Since, the personal laws of each religion contain separate provisions, their unification will bring
not only resentment, but also enemity in the public towards one another, therefore the Uniform
Civil Code will need to bring in such laws that strike a balance between the protection of the
fundamental rights and the religious principles of the different communities that exist in the
country. Issues such as marriage, divorce, maintenance etc. can be matters of secular nature and
law can regulate them.

CH. 4. SOCIO ECONOMIC CONDITIONS

4.1 Ideal Social Conditions for Implementation of UCC

Regarding the Uniform Civil Code there is a lack of awareness among the people especially in
the minorities. It is true that they do not know the actual meaning and extent of the code. They
think that if the law gets enacted then they have to follow the religious practices of the majority
and hence they will lose their identity. So the first step should be to make the people aware as to

25
what is the actual meaning and scope of UCC. A Commission should be set up to determine the
scope and extent of the Code. The Parliament should enact a draft code specifying the contents.
It needs to segregate the essential religious practices and the secular practices related to religion.
Only those activities that are financial or matters related to secular character like maintenance or
inheritance should be regulated by the State and not the religious or customary practices like
saptapathi, nikah etc. It means religious practices of one community will not be forced on
another.

Provisions regarding the validity of marriage should include the age of the parties, registration of
the marriage etc. The people especially the minorities should be assured that there will be no
encroachment with their Right to Religion. Then, the draft should be made available for the
public opinion and nationwide campaigns and discussions should be held. After considering the
viewpoint of the commission, the Parliament should enact a code which is applicable throughout
the country irrespective of religion, race, caste, creed etc. The main aim should be to realize the
intentions of the founding fathers of the Constitution enshrined in the Preamble. We should not
forget the values and principles embodied in the supreme law of the land to secure social justice;
liberty of belief, faith and worship; equality of status; and unity and integrity of the nation. There
should be a balance between Right to Freedom of Religion and Right to Equality. Uniformity in
diversity should be the main objective of the code. In a country like India where Rule of Law
prevails, the Constitution cannot be subservient to personal laws. The discriminatory practices
like triple talaq which are in disguise of religious practices and customs must be subjected on the
touchstone of Article 14 and 15. Right to Equality which is the basic structure of the Constitution
should be given priority over the so called religious practices. In the words of Leila Seth, “If we
can't 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”

4.2 Are We Ready to Accept Uniform Civil Code?

ANALYSIS OF QUESTIONAIRE CONDUCTED BY LAW COMMISSION

The Chairman of Law Commission Justice (retired) Balbir Singh said that it is the Supreme
Court which has raised the issue of UCC time and again holding that Article 44 is not a dead
letter.” The observations framed by the Apex Court in the implementation of UCC are not

26
acknowledged. The Apex Court has only recommended the need of formulating UCC. Lately, a
questionnaire has been conducted by the law commission in this regard. The questions covered
up everything including the practices of triple talaq, polygamy, polyandry and also whether the
Uniform Civil Code should be optional? The objective behind this was to invite suggestions on
all possible modes of a Common Civil Code. After going through observations made by the
Apex Court it is clear that there has been no codification of how Uniform Civil Code should be?
The Apex Court has only recommended the need of creating Uniform Civil Code. This reform
taken by the law commission is helpful in codifying the various provisions of Uniform Civil
Code. The Muslim Law Board challenged the questionnaire on the ground that India can’t
impose a single ideology and the questions are against their personal laws. However, this step
will be helpful for the legislature in forming a Uniform Civil Code. The issue of forming an
optional Uniform Civil Code is highly questionable. A voluntary Uniform Civil Code is not only
a paradox, but also contradictory in terms.

Bharatiya Muslim Mahila Andolan is also not in favour of the UCC and they are asking for
codification in Sharia law. According to this Andolan, it is not the UCC that will bring gender
justice and equality to Muslim women. The UCC will be a clear violation of Article 25; their
goal is just to simplify the Sharia law in similar ways like Christian and Parsi minorities laws.
The Quran does not sanction the practice of triple talaq and there is a need to codify such laws.
This Andolan also opposed the decision of All India Muslim Personal Law Board’s (AIMPLB)
to boycott Law commission questionnaire on the UCC. They wanted to fill their responses and
make the government understand their needs of disallowing the practices of triple talaq and
polygamy. The UCC is of foremost importance but the education of women is also of great
concern. The step for the implementation of UCC would have been taken forward earlier also if
the women of the nation would have been educated suitably. Now women have become aware of
their rights and thus continuously raising voice to protect them from gender discriminatory laws.
Therefore, this questionnaire not only helped in framing the provisions of UCC but also brought
in light the objections raised by Muslim women against the formation of the UCC.

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 CH. 5. INTERNATIONAL MANDATE AND ROLE OF
JUDICIARY

5.1 International Mandate

As far as International Law provisions are concerned, India having ratified International
Convention on Civil and Political rights, 1966, and International Convention on the elimination

28
of all forms of discrimination against Women, 1979 is legally bound to enforce them under
National Laws. Despite all this, Women in India continue to suffer from discrimination in the
matter of marriage, succession, divorce, maintenance etc. As a step towards recognition of
Uniform Civil Code, the personal laws of various communities need to change, not only in
accordance with the Indian Constitution but also as per the provisions of the International Law.
Prevalence of discrimination against women under various personal laws of different
communities in India was openly accepted by India in its periodic report before the United
Nations Committee on the Elimination of All Forms of Discrimination Against Women
(CEDAW) when it admitted, “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 change from individual religious
communities.”” The major case concerning the use of international law for making domestic
laws is Vishakha v State of Rajasthan17, wherein The Sexual Harassment of Women at
Workplace Act, 2013 was passed in accordance with the provisions of International Convention
on the elimination of all forms of discrimination against Women,

Now is the time to redeem the pledge of gender equality to the women of the country and
achieve the goal enshrined in the Constitution. The author states that the personal laws of the
country should conform to equality and should not be arbitrary and unreasonable.

5.2 UCC: A call from Indian Judiciary

In the post-colonial India, the role of Judiciary in the implementation of uniform civil code is
very appreciable. In fact it is the judiciary, which through its interpretations paved the way
towards uniform civil code.

17
AIR 1997 6 SCC 241

29
For the very first time in the case of Mohd Ahmed Khan vs. Shah Bano Begum18 pertaining to
the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not
able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such
obligation on all the husbands is secular in character and is applicable to all religions.

In Ms. Jordan Deigndeh vs. S.S. Chopra, D Chinappa Reddy, J. speaking for the court referred
to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The
present case is yet another event which focuses on the immediate and compulsive need for a
uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of uniform
civil code is exposed by the facts of the present case.

In the case of Mrs. Zohra Khatoon v. Mohd. Ibrahim19, A substantial question of law was
raised and the High Court of Allahabad which cancelled the orders of the maintenance allowance
passed by the Magistrate on the grounds the when the divorced proceedings start from the female
side under the dissolution of Muslim Marriage Act 1939, in those cases wife cannot claim
maintenance from her former husband neither under the Muslim law nor under Sec. 125 of
Cr.P.C. Ultimately the Supreme Court overruled the decision of the High court on the ground
that it is based on the wrong interpretation of the Clause1(b) of the explanation to section 125
under this clause the wife continues to be wife even though she has been divorced her husband or
has otherwise obtained divorce and has not remarried.

Similarly in the case of Sarla Mudgal v. Union of India20, J. Kuldip Singh also put emphasis on
the need of uniform civil code and judgment delivered by him is again a step towards uniform
civil code. In this case the Supreme Court held that conversion of a Hindu male to Islam only for
the purpose Of contracting bigamous circumvents Section 494 of Indian Penal Code. Such
marriages have been declared as bigamous and void by the court. The court after referring to
various precedents on the point, categorically held that till uniform civil code is achieved for all
the Indian Citizens, there would be an inducement to a Hindu husband who wants to enter in to
second marriage while the first marriage is subsisting to become a Muslim. Here the Court was
pointing out the injustice done to the first wife, legally wedded.

18
Supra note 9.
19
AIR 1986 SC 587
20
AIR 1995 SC 1531

30
Recently, in Khursheed Ahmad Khan v. State of U.P.21, the Court commented on the practice of
Polygamy under Islam and held, “Article 25 protects religious faith and not a practice which may
run counter to public order, health or morality. Polygamy is not an integral part of religion and,
monogamy as a reform, is within the power of the State under Article 25 of the Constitution.”

The Judges of various High Courts and Supreme Court became the main instrument for bringing
important gradual legal developments which also put its impact on the question of uniform civil
code.

CH. 6. CONCLUSION AND SUGGESTIONS

Polygamy practiced mostly in Islam is a horrendous act of gender discriminatory practices. It

was also practiced in Hinduism, before the enactment of Hindu Marriage Act. A Legislation
prohibiting Polygamy for all, irrespective of their religious faiths, under the hood of UCC will not
be violative of Article 25 because the essence of Freedom of Religion lies in the protection of
essential religious practices and Polygamy is not one of them. The Preamble of the Constitution

21
Supra note 6.

31
envisages India as a secular country. The religious freedoms guaranteed to the citizens by Article
25 to 30 are subjected to the limitations given. Religion is about faith whereas law defines the
specific rights of an individual. There are many communities prevailing in India which is not
even known. The need of the hour is to make uniform laws for everyone so that these backward
communities do not suffer. One of the advantages of Uniform Civil Code is a proper notice and
registration of marriages. Now a day there is ongoing problems in the divorce cases and that is
where the need to make registration of marriages is compulsory. Article 44 is not a question of
national integration only but a reminder that all Indian women need this protection of a uniform
civil code, and an improvement and acceptance of their rights. All the Personal laws have
provisions discriminating women and children. These laws have to be changed, not only on the
basis of uniformity but on equality and justice to the downtrodden people of the communities.

Despite the progressive judicial pronouncements by the court in favour of giving a constitutional
mandate to Article 44, Parliament has done nothing to bring this noble ideal. The recent
questionnaire conducted by the law commission has got a large number of responses and
therefore proved to be a step forward. This clearly shows that the citizens of the country deserve
to be governed by a Common Civil Code. A mandatory Uniform Civil Code shall be created and
it should not be optional. It needs hard work. It needs dialogue and public debate and changing
the mindset with empathy. Let us prepare a good draft on the basis of the questionnaire
conducted and the needs of society. A progressive and broadminded outlook is required among
the people of all the religions to understand the essence of such code. For this purpose,
education, awareness camps, and programmes should be taken up by the government.

However, everything depends upon the government’s urge to implement it. If the government
makes it compulsory that there should be a total ban on animal slaughtering, then will it ask
Muslims not to do so? Or if the government legalizes cow slaughtering, will it not hurt Hindus?
Politicians are contesting elections mainly on the basis of caste and communities and thus have
aggravated the feeling of identities. The prevalence of Sati practice in some Rajputs areas is an
example of how difficult it is to enact a Uniform Civil Code. So it has to be dealt with carefully.
The Provisions of Uniform Civil Code should be such so that they do not affect the sentiments of
any community. Nothing can be done overnight. A slow and steady approach is necessary
because justice delayed is justice denied but if justice is hurried, justice may be buried. In the

32
event that laws are made oblivious of such social realities, they would get to be distinctly
unworkable and counterproductive. If we consider religion as a base for UCC, it is exceptionally
hard to remove the feelings and beliefs that are acquired in the psyches of individuals, be it any
religion. We need to enhance confidence in ‘Unity in Diversity’. Legislative efforts need to
execute the UCC that contains changes required in the present situation while withholding the
essence of each religion.

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