Uniform Civil Code: Is it Required?

On October 7, 2016, the Law Commission of India released a questionnaire for public opinion on the implementation of Uniform Civil Code (UCC) in India for all religions. They have asked for certain questions from the public. My thoughts on the subject in a point-wise format together with justifications are given below:

 

  1. Are you aware that Article 44 of the Constitution of India provides that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”?
    • Yes
    • No

In your View, does this matter require any further initiatives?

Yes, I am aware of Article 44 of the constitution of India. Article 44 is ‘The Directive Principle of State Policy’ which is guided by Article 37 which states that these are merely guiding policies for the State.

No, this matter does not require any further initiatives/investigation as:

  • As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
    • Article 25: Freedom of Conscience and free profession of religion
    • Article 26: Freedom to manage religious affairs
    • Article 27: Freedom from payment of taxes for promoting of any particular religion
    • Article 28: Freedom to attend religious instructions
  • The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

 

  1. The various religious denominations are governed by personal laws and customary practices in India on matters of family law, should the UCC include all or some of these subjects?
    • Marriage
    • Divorce
    • Adoption
    • Guardianship and Child Custody
    • Maintenance
    • Succession and
    • Inheritance
  • Yes, It should include all these
  • No, it should exclude ____
  • It should further include _____

 

As mentioned in answer 1 above, professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. All the above points mentioned are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interactions with the other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion. 

The answer will be “No, it should exclude all the above subjects”

 

  1. Do you agree that the existing personal and customary practices need codification and would benefit the people?
    • Yes
    • No
    • Personal laws and customary practices should be replaced by a uniform code
    • Personal laws and customary practices should be codified to bring them in line with fundamental rights

As discussed in detail in answer 2 above, any codification and replacement with a uniform code will in essence destroy the very tenant of the religion. Therefore (c) above is ruled out. Further, implementing UCC will be against the Fundamental Rights of the citizens of India, thereby ruling out (d). All the personal laws of the religions of India are currently codified in different and various legislatures and are being implemented as such. Recodification of the same would simply add to the confusion and create issues of interpretation and construction. Therefore (a) above is also ruled out.

The answer will be (b) NO, the existing customary practices donot need codification

 

  1. Will uniform civil code or codification of personal laws and customary practices ensure gender equality?
    • Yes
    • No

The answer will be (b) NO, UCC will not ensure gender equality. Achievement of gender equality cannot be by way of destroying a religion. Gender Equality is a misguided aim of UCC. For achieving gender equality the State ought to focus on education and labour laws that treat every person as human and does not impose any sort of gender based privilege or penalty. These laws have already been put in place, the need of the hour is proper implementation. The Government ought to implement education programmes for children, improve quality of education and ensure quality teachers in government schools to achieve the objective of Gender Equality and thereby increase the labour force participation rate of women without penalising or discriminating against the male labour force.

 

  1. Should the uniform civil code be optional?
    • Yes
    • No

There should be no UCC in the first place. But as there is no other option given by Law commission, the answer is (a) Yes, UCC ought to be optional

 

  1. Should the following practices be banned and regulated?
    • Polygamy (Banned / Regulated)
    • Polyandry (Banned / Regulated)
    • Similar customary practices such as Maitri-karaar (friendship deed) et al. (Banned / Regulated)

Let us analyse the above, all are forms of marriage which is regulated in India and only persons who have attained majority can contract marriage. A person who is a major is well aware of his/ her well-being and ought to enter into a contract of marriage by weighing all pros and cons. Every person enters a contract of marriage on his/her own free will. Similarly if they are not happy with the marriage, the option of divorce is always open. All contracts ought to be free to enter and leave, that is the way to restore balance of power to the contracting parties. Keeping the above cannon in mind let’s answer the questions:

a) and b) Polygamy / Polyandry: None (Regulated as no other option is there): The present religious doctrines have captured the issue and dealt with it in detail. The spouse’s interest is also kept in mind. Moreover, the dissentient spouse has an option of divorce if he/she so chooses. Further, in case of Polygamy in Muslim Law, at the time of nikah or any time after that the spouses can enter into an agreement, wherein the husband promises not to marry a second wife. The women can impose this condition prior to marriage (Moharam Ali v. Ayesa Khatum, (1915) 19 Cal. W.N. 1226)

c) Maitri-karaar: None (Regulated as no other option is there): The contract of Maitri –Karaar evolved as the contracting parties did not want to enter into a contract of marriage. Every person has a right to live the way he / she wants (Article 21, Right to life). The state ought not to make rules and regulations in what one does in his/her personal affairs. Regulating / banning the same is completely contrary to the wishes of the contracting party and Article 21 of the Constitution of India.

 

  1. Should the practice of triple talaq be
    • Abolished in toto
    • Retained the custom
    • Retained with suitable amendments

As discussed in question 6 above, persons contracting marriage enter the same at their own free will weighing all the pros and cons. Triple talaq is not a one sided affair, as per Muslim law women can also give a triple talaq called talaq-e-tafwiz. So the whole concept that, triple talaq being gender biased is incorrect.

The answer will be (b) Retained the custom

 

  1. Do you think that steps should be taken to ensure that Hindu women are better able to exercise their right to property, which is often bequeathed to sons under customary practices?
  • Yes, Hindu women must be made aware of this right and measures should be taken to ensure that women, under pressure from family donot forego their property
  • No there are adequate protection in the existing law
  • Legal Provisions will not help in what is primarily a cultural practice, steps have to be taken so sensitize the society instead

For correctly understanding the question, lets understand the concept first. Right to property for any heir can be divided into 2 parts

  • Self Acquired Property: This is the property acquired by the hard work of the individual during his/her lifetime. He should have all rights to deal with it the way he / she seems fit. Making laws for the same will be infringing on the fundamental rights of this individual. So if this individual wants to give it to his/her son, daughter, third person or charity is purely his decision and ought to be honoured.
  • Ancestral Property: The case of ancestral property is different, The Hindu Succession Act, 1956, clearly lays down detail rules on division of ancestral property within the heirs. Women have been given equal rights under the said act. So no discrimination as per law made.

As we can see above, law has been made which gives ‘Equal’ right to women heirs (including daughters). Making generalized statements that women forego their rights is incorrect on the part of the Law Commission. Adequate laws and protection is available to women under the present legal framework to enforce their rights if pressure / coercion is applied on them.

Further, Ministry of Child and Women have formed National Commission for Women who have been mandated to promote knowledge of laws in the State of India. If the NCW has been ineffective in its mandate, it’s a call for overhaul in the management of NCW instead of passing a new law.

Hence, the answer will be (b) No there are adequate protection in the existing law

 

  1. Do you agree that the two-year period of wait for finalizing divorce violates Chirstian women’s right to equality?
    • Yes, it should be made uniform across all marriages
    • This period is sufficient and in-keeping with religious sentiments

The question seems incorrect. The two-year period of wait as per section 10 of the Divorce Act is equally applicable for both man and women. There is no such inequality suffered by women as per the Divorce Act.

Therefore the answer is b) No. This period is sufficient and in-keeping with religious sentiments

 

  1. Do you agree that there should be uniform age of consent for marriage across all personal laws and customary practices?
    • Yes
    • No, customary laws locate this age at the attainment of puberty
    • The prevailing system of recognizing ‘voidable’ marriages is sufficient

As per the Child Marriage Restraint Act, 1929, a child is a person who, if a male, has not completed twenty one year of age, and if a female, has not completed eighteen years of age. As per this act marriage between a child is prohibited. Hence, by way of this act, the minimum age of marriage has already been made 18 for women and 21 for men. I do not see use of another code for the same.

Hence, the answer is (c) The prevailing system of recognizing ‘voidable’ marriages is sufficient

 

  1. Do you agree that all religious denominations should have the common grounds for divorce?
    • Yes
    • No, cultural differences must be preserved
    • No, but there should be the same grounds for divorce available for men and women within personal law

As mentioned in answer 6 above, persons contracting marriage are competent persons who have attained majority and can take correct decisions for themselves. Moreover The Special Marriage Act, 1954, has common grounds for divorce for both men and women. The parties contracting marriage always have the option to opt for the Special Marriage Act. If they have chosen to get married under their personal law, it’s because they chose. And choice is the tenant of The Constitution of India and is a fundamental right under Article 21 and also article 25 (Freedom to profess religion). Taking away such a personal choice is against the very fabric of our constitution.

The answer is (b) No, cultural differences must be preserved

 

  1. Would uniform civil code aid in addressing the problem of denial of maintenance or insufficient maintenance to women upon divorce?
    • Yes
    • No

The whole premise of this question is incorrect as Section 125 of CrPC has provisions to provide maintenance ‘only’ to women, married or divorced. Law commission has if fact chosen overlook the problem of denial of maintenance to men upon divorce. Men even if handicapped, ill or incapable to earn cannot claim maintenance from a healthy / earning wife . Where is the denial of maintenance for women?

Hence the answer is (b) No.

 

  1. How can compulsory registration of marriages be implemented better?

Yes, implementation can be improved by way of registration of all marriage halls and compulsory training of the priests. This way the priests / hall owners would be the hands and legs of the government which would promote marriage registration and educate the parties of its benefits. The Government can also promote public knowledge by targeted advertisement campaigns.

 

  1. What measures should we take to protect couples who enter into inter-religion and inter-caste marriage?

The following points may go a long way in protecting the couples:

  • Reduce the notice period required for registering a marriage and providing the marriage registration document on the spot
  • During elopement , the police to register the case of abduction of the girl only after proof of age is provided. In case the girl is found a major, and has voluntarily left home, the case should be cancelled and no arrests ought to be made. Protection to be accorded to the couple immediately.

 

  1. Would uniform civil code infringe an individual’s right to freedom of religion?
    • Yes
    • No

Yes, UCC will infringe the right to freedom of religion as:

  • As per the Article 25-28 of the Constitution of India, the citizens have a fundamental right to ‘Freedom of Religion’. The citizens freedom of religion are
    • Article 25: Freedom of Conscience and free profession of religion
    • Article 26: Freedom to manage religious affairs
    • Article 27: Freedom from payment of taxes for promoting of any particular religion
    • Article 28: Freedom to attend religious instructions
  • The Supreme Court of India in Ratilal Panachand Gandhi vs The State Of Bombay, 1954, had stated that, ‘every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such’. The UCC in essence will be restricting these religious practices and beliefs and contrary to the Fundamental Rights enshrined by our constitution. The very tenet of our constitution, the fundamental rights, are being violated

Professing ones religion, with all its customs and practices is the fundamental right of the citizens of India. Marriage, Divorce, Adoption, Guardianship and Child Custody, Maintenance, Succession and Inheritance are an ‘Integral’ part of these customs and practices. All religions have detailed age old customs for all the above subjects. These customs have been built on principles of equity and keeping in mind interaction with other customs. Many of them are intertwined with each other and cannot be modified without rewriting the whole code from scratch and thereby destroying the very fabric of that religion. This will be akin to creating a completely different religion which will be anything which we started with. Therefore, regulating / governing any of the above will directly interfere in these customs and in essence destroy the religion.

 

  1. What measures should be taken to sensitize the society towards a common code of codification of personal law?

As discussed in detail above, UCC is not required and all the objectives mentioned above have already been codified under various acts. Hence, the answer to this question is ‘Not Applicable’

 

Let us all Stand Up for a Cause…


Note: Please feel free to comment and discuss. I will be happy to modify the article if anywhere my understanding of the law is incorrect.

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