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Uniform civil code
ACKNOWLEDGEMENTS
It is a great pleasure for me to put on records our appreciation and gratitude
towards Nidhi raman for her immense support and encouragement all
through the preparation of this report. I would like to thank
the college(Siddhartha law college) for providing us with a well-equipped
library. Last but not the least, I would like to thank all the friends and others
who directly or indirectly helped us in completing our project report.
CONTENT
1. INTRODUCTION
2. NEED FOR UNIFORM CIVIL CODE
3. UNIFORM CIVIL CODE AND SECULARISM A DEBATE
4. Simplicity in law
5. POSITION OF LEGISLATURE
6. SUCCESSION AND INHERITANCE and MAINTAINENCE
7. UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICAIRY
8. UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY
9. WHT DO WE NEED UNIFORM CIVIL CODE
10. IMPLEMNTATION AT STATE LEVEL
11. CONCLUSION
12. BIBLIOGRAPHY
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 Muslims or the Christians. The
Hindus along with Sikhs, Buddhists and Janis have forsaken their sentiments in the cause of the
national unity and integration, some other 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 change from individual religious communities. India is a land of diverse religions
Hindus, Buddhists, Janis, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in
diversity is the core feature of the Indian nation. Each community has its own laws governing
marriage and divorce, infants and minors, adoption, wills, and succession. These personal laws
go with an individual across the states of India where they are part of the law of the land, and the
individual is entitled to have that individual's own personal law applied and not the law which
would be applied in the local territory. Personal laws are statutory and customary laws applicable
to particular religious or cultural groups within a national jurisdiction. They govern family
relations in such matters as marriage and divorce, maintenance and succession. India is a secular
country where every community is allowed its own personal laws. Christians have the Indian
Christian Marriage Act, 1872 and the Indian Divorce Act 1869, Hindus have the Hindu
Succession Act, 1925[hereinafter HSA, 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 to marry a second time. Tunisia and Turkey have
actually abolished polygamy. In India, only Muslim men may practice polygamy, and
Hindu sons inherit greater shares of their parents'
estatesthan their sisters do. While one's religion determines which law will apply to him or her re
garding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession.
Uniform civil code [hereinafter UCC] of India is a term referring
tothe concept of an overarching Civil Law Code in India. A uniform civil codeadministers the sa
me 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 personal 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 governed family relationships irrespective of the
religions of the partners for e.g. Special Marriage Act, 1872; Married Women’s 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 of uniformity of Laws in India. To quote
Choudhary Hyder Husain, a prominent Muslim lawyer, “Living under the British rule for about
two centuries we’ve come to consider it only natural for Hindus to be governed by Hindu Law
and Muslim to be governed by 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 t
he territory of Indian Union irrespective of caste, creed or religion persuasions. This is the
juristic solution to the communal problem .It appears to be absolutely essential in the Interest of
the unification of the country for building up one single nation with one single set of laws in the
country.”Article 44 of the Indian Constitution requires the State to secure for its citizens a
Uniform Civil Code throughout the territory of India. The term ‘civil code’ issued to cover the
entire body of laws governing rights relating to property and personal matters such as marriage,
divorce, maintenance, adoption and inheritance. The object of this code is to enhance national
integration by eliminating contradictions based on ideologies. It aims to bring all communities on
a common platform on matters which are currently governed by diverse personal laws. However,
even after 60 years of independence, our law makers are yet to give effect to this provision. This
article focuses on: • the status of the implementation of a Uniform Civil Code and,
• The steps taken and directed to be taken by the Legislature and Judiciary in this regard.
2. NEED FOR UNIFORM CIVIL CODE
Ours is a country with several different religions and belief systems. The accepted principle 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 these Articles, which essentially protect 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 society’s general outlook as a whole, and this may amount to violation of
the above mentioned Articles of the Constitution. With multiple belief systems, 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. 15(1) provides that the state shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, and place of birth or any of them. Look at Hindu
law, we will find discrimination against
women everywhere.If personal law of Hindus is a part of Hindu religion, equality can never be at
tained among men and women. Religion must be restricted to religiononly and the secular
activities attached to the religion must be regulated, unified and modified for a strong and
consolidated nation. The present Muslim law can never provide equality to Muslim women- if
personal law is considered as a part of their religion. To elevate the position of Indian women
and provide them equality, India is badly needed of a UCC for all Indians.
3. Uniform Civil Code and Secularism a Debate
The Government, the press, the politicians, the academics and even the minority organizations-
none of them have taken any sort of active interest in the UCC. Thus we could easily infer from
the attitude of people prevailing these days that this concept has been ignored and at worst they
have spread false information and impression about it. But, if we see today’s scenario then India
is more communalize then it was in 1947, so we should realize that the concept of UCC had
become very important and need immediate concern. People, who were the founding fathers of
constitution as well as non-Muslims thought that a uniform civil code was necessary for our
national unity and secularism. But along with them there are also few people who disagree about
this concept like Prof. Paras Diwan says “The uniform civil code has nothing to do with
Indianisation or national integration or interfering with the religion of one community or the
other.
4. simplicity in law
Uniform civil code provides clarity which arises out of simplicity. Different religions had made
the legal system a maze by creating rights for individuals in some ways and taking them in
another way depending upon the religion they follow. Thus to create clarity forth rights available
to all individual uniformly, there is a requirement of uniform civil code.
5. Position of the 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 case 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 woman’s 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 recognize
adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980
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. 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 equality to the individual will not fulfill 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.
6. SUCCESSION AND INHERITANCE
This area throws up even more intractable problems. In Hindu law, there is a distinction between
a joint family property and self acquired property which is not so under the Muslim law. The
Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and own
agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to be
abolished. There are also fetters imposed on the extent to which one can bequeath property by
will under the Muslim law. Considering all these, the UCC should be included. The law which is
applicable on Parsi and Christian with regard to the succession i.e. The Indian Succession Act,
1925 should be considering while framing UCC for Succession laws in India. Thus due to all
above reasons it is felt that the formation of Uniform Civil code is the prime necessity in today’s
time for our nation. Lastly, a very real fear has begun to make itself felt, which is that if we do
not make efforts now to move towards the UCC, and as the majority loses patience, we shall lose
the littlie ground that we have gained
According to the Hindu Adoptions and Maintenance…..
Sec-18 Maintenance of wife-
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance,-
(A) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and
without her consent or against her wish, or of willfully neglecting her;
(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that
it will be harmful or injurious to live with her husband;
(c) If he is suffering from a virulent form of leprosy;
(d) If he has any other wife living;
(e) If he keeps a concubine in the same house in which his wife is living or habitually resides
with a concubine elsewhere;
(f) If he has ceased to be a Hindu by conversion to another religion;
(g) If there is any other cause justifying her living separately?
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if
she is unchaste or ceases to be a Hindu by conversion to another religion.
According to Hindu marriage act-
Sec- 24 Maintenance Pendent late and expenses proceedings. Where in any proceeding under
this Act it appears to the court that either the wife or the husband, as the case may be, has no
independent respondent, it may seem to the court to be reasonable.
(Where it appears to Court that the wife or the husband, as the case may be, has no independent
income sufficient for her support and the necessary expenses of the proceedings, it may grant
interim maintenance to the wife.)
Sec-25 Permanent alimony and maintenance. (1)Any court exercising jurisdiction under this
Act may, at the time of passing any decree or at any time subsequent thereto, on application
made to it for the purpose by either the wife or the husband, as the case may be, order that
the respondent shall pay to the applicant for her or his maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the applicant as,
having regard to the respondent's own income and other property, if any, the income and
other property of the applicant, the conduct of the parties and other circumstances of the case
it may seem to the court to be just, and any such payment may be secured, if necessary, by a
charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favor an order has been made under this
section has re-married or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he has had sexual intercourse with any woman outside wedlock,
it may at the instance of the other party vary, modify or rescind any such order in such manner
as the court may deem just].
7. UNIFORM CIVIL CODE: A CALL FROM THE INDIAN 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 itsimplementation.In Mohammad Ahmed Khan v. Shah Bano, s Begum, popularly
known as the 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.” 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 women’s (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 women’s rights have a low priority
even for the secular state of India. Autonomy of a religious establishment was thus made to
prevail over women’s rights.”In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of
India and others 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 tha
t “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 a
utonomy but oppression.”In Lily Thomas etc. v. Union of India and others 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 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 India 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. Under 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
againsther relatives or wakf Board for maintenance. Rajendra Babu, J., on behalf ofa five judge’s
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 India 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 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 Pradesh, 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
8. UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY
The government has an intention to for a voluntary or optional UCC. It has be emerged by the
public that a voluntary code would be a welcome stepping stone towards a compulsory code and
would also allay the misgivings of the Muslims that the code would impose Hindu personal law
upon them. The convention of the Bar Council of India on the UCC came out strongly in favor of
a compulsory code. The problem in optional code is that it cannot be a uniform. It can only be
One moreaddition to the existing family laws, thus compounding rather than reducing the confus
ion that exists. The two facets with regard to the concept
of optionality should be considered .Either one has to opt for the entire codeor one may opt for
selected areas. One feels that opting for the UCC should be one-way process. There should be no
withdrawing. Once a person opts he/she will have opted for their future generations as well.
There will be no opting out. If one spouse opts for the code, the other will also have to do so as
otherwise the option will be ineffective. A voluntary code will create its own uncertainty as,
confusion and misinformation. For all the reasons, the UCC will have to be an improvement on
the existing laws in all respects and it will have to be very clear in its expression. Why do we
need a Uniform Civil Code? What does our Constitution say about Uniform Civil Code? In
article 44, our constitution clearly specifies this "The State shall endeavor to secure the citizen
uniform civil code throughout the territory of India”. The objective of this article is to effect an
integration of India by bringing all communities into a common platform which is at present
governed by personal laws which do not form the essence of any religion. The constitution is
very clear that unless a uniform civil code is followed, integration cannot be imbibed. However,
the so called secularists and saviors of secularism in India think otherwise. Their argument is that
this code will affect the religious freedom of minorities. One fails to understand how abiding the
law of land can go against religious principles! They claim that the sentiments of the minorities
are not considered while implementing common law! This code does not insist people from one
religion to start practicing rituals of other religions. All it says is, with changing living styles
along with the time, there should be a uniform civil code irrespective of all religions as far as
social ethics are concerned Till 1935, the Muslims in India followed different rules according to
their practice. Khoja Muslims and Kutchi Memons are examples for this. The Kutchi Memons
worshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had the inheritance
laws as per Hindus and also the marriage laws as per Hindus. Whena common Muslim Personal
law was formed; there were many minority creeds of Muslims who had to accept these laws
though they differed from their practices. There was no need of respecting the sentiments of the
minorities (among Muslims) then. If this can be done for minority creeds of Muslims, why can’t
the minority Muslims adapt the laws for the nation? Much was debated on this issue at the Indian
Parliament in 1948 by Ambedkar, Anantasayam Iyengar, KMMunshiji, Alladi Krishnaswamy
Iyer favoring UCC and members from other religions opposing it. On 23rdNov’1948, in
Parliament, a Muslim member gave an open challenge that India will never be the same if it tried
to bring in Uniform Civil code and interfere with Muslim personal law. It’s a shame that we
could not do anything on this till date! I even doubt whether we had any subsequent debates in
this regard at Parliament. The Hindu laws that were different in different parts of the country had
undergone a turbulent change, courtesy, geographically united India. The appreciable factor is
Hindus accepted these changes of laws with grace. Child marriages were banned, Sati was
banned, widow re-marriage was encouraged, divorce was introduced, in heritance laws were
amended and Hindus accepted all these changes. They never complained of hurting their
religious sentiments. Those who oppose this law claim that this law is poking nose into their
religious practices. “Narabali” (human sacrifice), that was considered a religious practice of
Hindus is banned today. Hindus never protested this stating that their religious practices are
tampered with. There are Muslim countries that follow Islamic laws. Still, the laws differ from
one country to another. This emphasizes that along with the personal laws, there has to be laws
that should be written considering the changing phenomenon and the living style of the nation.
Once again it is reiterated that this code is not biased towards are religion but to bring in a level
playing platform among the citizens of India. Muslims in other countries accept uniform civil
laws where they do not consider this as a defeat whereas in India it is. This is the result of the
selective secularism adapted by the political parties, media and the so-called learned men of
India. It is a pity that in a democratic & secular state, people have different laws based on their
religion. Is it secular to have different laws for different religion or it is secular to have a uniform
law? The approach of selective secularism had perpetuated the vertical divide among the people
of India in the name of religion. This resulted in people having prejudice over this law itself. By
bringing this code, neither the majority public wins over the minorities nor are the minorities in
danger. Unless this prejudice is erased, bringing this law is difficult. The leaders of this country
owe responsibility to explain this to public & an elaborate debate has to be held on this topic
(which will never happen as this is against secularism?).To make this debate on UCC healthy,
Hindus should not treat this as a weapon against minorities. Meanwhile, the minorities should
not feel that they lose by bringing this law.
9. Implementation at State-
Level: Analysis Even though a nation-wide Civil Code is not yet in place, a positive step in this
direction has already been taken. The state of Goa has enacted a setoff ‘Family Laws’, which is
applicable to all communities; Hindus, Christians, Muslims and others. There is no
discrimination on the basis of religion, caste or gender. The Goa civil code is largely based on
the Portuguese civil code of 1867, with some modifications based on the Portuguese Decrees on
Marriage and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the
Portuguese Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and
divorce, succession, guardianship, property, domicile, possession, etc. Muslim fundamentalists
opposed its enactment in the early 1980s but their attempts to introduce Sharia law in Goa were
ultimately met with defeat by liberal Muslims who insisted on the continuance of the unified
civil code. Former Chief Justice Y.V.Chandrachud expressed hope that the Goan Civil Code
would one day “awaken the rest of bigoted India and inspire it to emulate Goa.”There are two
important aspects of this code which assume great significance in the context of codification of
Indian laws:
• Civil registration of marriage is mandatory. Around 98 percent of Goan marriages take place
under Community Property law by virtue of which, each spouse automatically acquires joint
ownership of all assets already in their possession as well as those due to them by inheritance.
These assets may not be disposed of or encumbered in any way by one spouse without the
express consent of the other.
• The registration of births and deaths is also mandatory. The children of deceased parents fall
in the category of mandatory heirs. They cannot be disinherited whether male or female, except
under extraordinary circumstances. If the deceased parent leaves no will, all mandatory heirs are
entitled to an equal share of the estate of the deceased. If the deceased has made a will, he may
only dispose of 50 percent of the estate. This is called the quota disponivel. The remaining
50 percent must be divided equally among all mandatory heirs. Such a provision ensures the just
distribution of assets among all children, whether male or female.
10. CONCLUSION: In order to promote the spirit of uniformity of laws and accomplish the
objective enshrined in Article 44 of the Constitution, the following suggestions deserve
immediate consideration:
• T h e G o v e r n m e n t m u s t p r e p a r e a g o o d e n v i r o n m e n t f o r
U n i f o r m C i v i l C o d e b y e x p l a i n ing the contents and significance of Article
44. It should take steps and find out means to find out the obscurantist’s who oppose to move of
Uniform Civil Code
• T h e p r e s s , r a d i o , t e l e v i s i o n a n d v a r i o u s o t h e r m e a n s o f
c o m m u n i c a t i o n m a y b e o f great help in this regard. The conservative sections of
the citizens must be made to understand the utility of uniformity of laws so that they do not stand
in the way of implementation of Article 44 of the constitution.
• T h e S t a t e s h o u l d t a k e i n i t i a t i v e t o e x p l a i n t h e
U n i f o r m C i v i l C o d e t o the ordinary citizens. Special ways must be devised and
also special care must be taken to prevent inflaming of the ordinary man’s passions by
mischievous, rabble e-rousing methods.
• T h e S t a t e s h o u l d b r i n g s o c i a l r e f o r m b y s t a g e s a n d t h e
s t a g e s m a y b e t e r r i t o r i a l or they may be community wise. T h e
a t t e m p t s h o u l d b e m a d e t o e n a c t a U n i f o r m
C i v i l C o d e e m b o d y i n g w h a t i s b e s t ing all personal laws. It must be the
synthesis of the good in our diverse personal laws. It should represent one, drawn up by the
constitution between the different communities in India on the principle of give and take.
• I t i s t h e d u t y o f a c a d e m i c i a n s t o g e n e r a t e g o o d
e n v i r o n m e n t f o r t h e a d o p t i o n o f the Uniform Civil Code in India. It is their
moral duty to promote the feelings of secularism and explain the contents of Uniform Civil Code
to the community at large so that they are made to understand the beneficial effect of the
Uniform Civil Code.
• I n o r d e r t o a s s i s t t h e P a r l i a m e n t t o I m p l e m e n t
t h e U n i f o r m C i v i l C o d e , a C o m m i t t ee of eminent jurists belonging to
different religions should be constituted to make the task of uniformity of laws possible. The
rules of personal laws as in force in India dealing with marriage, talaq, inheritance, adoption,
maintenance, succession etc. must be modified to a large extent on the lines of suggestions to be
made by the Committee of eminent jurists.
• T h e r e i s a n e e d t o c o n d u c t a s t u d y o f
t h e p e r s o n a l l a w s o f a l l t h e c o m m u n i t i e s w ith a view to find out in
which areas of personal laws uniformity of
laws already exists and which are the areas where differences still persist and inthat manner they
can be resolved. We must pick and choose the areas which are ripe. Such areas can be those
relating to adoption, maintenance, guardianship, marriage and divorce. No doubt in the
beginning it will be the nucleus of a properly termed family code but ultimately that would pave
the path of Uniform Civil Code. Price- meal legislation, which is compressed and telescoped
within a few years, would achieve the objective aimed at and only a sincere effort without any
sentimental approach would be of great value in finding out what has been deluding by now just
as a mirage. It can be conclude by saying that the UCC amounts to equal laws for all sections of
society. All the people of India must be governed by one set of laws. For national unity and for
secularism, UCC is necessary. The plurality of laws in personal law matters is a blow and direct
threat to national integrity and solidarity. It is worth mentioning the name of a few
countries where a UCC has been functioning successfully viz. Germany, France, Spain Canada,
Japan, Turkey and Portugal’s. The government of India should take initiatives for enacting
a UCC, which should contain the best elements of different civil laws of the various religion
communities of the country and thus fulfill its positive obligations imposed upon it by article 44
of the Constitution of India. Between the Supreme Court’s mixed response and the legislature’s
wariness, the implementation of a national common Civil Code seems to be a distant dream. It is
only enlightened public opinion that will help fulfill it. Communal divides, vote-bank politics,
staunch fundamentalism are currently barriers to its realization but with time and tolerance they
can be overcome. What must be perceived as a matter of defining an individual’s rights
deteriorates instead, into a “majority versus minority” issue. The welfare of the community as a
whole must be considered instead of a particular class or sect. No doubt, the realization of a
common Civil Code is a tough job, given the vast ideological diversity. But a uniform civil law
is necessary in order to be truly secular. It is our collective duty as a modern society to rise above
cultural and religious differences and give effect to this constitutional mandate which is 60 years
overdue.
Bibliography
http://www.manupatra.com/
http://airwebworld.comhttp://articles.timesofindia.indiatimes.comwww.cse.iitk.ac.in
http://en.wikipedia.orghttp://mutiny.wordpress.com
http://www.outlookindia.com
http://upscportal.comhttp://uselectionatlas.org
http://indiankanoon.org
http://airwebworld.com
Books:
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 904 (5th ed., Wadhwa and Company Nagpur
New Delhi 2008) (1962) Constituent Assembly Debates vol. VII 547- 48.VASUDHA
DHAGAMWAR,
TOWARDS THE UNIFORM CIVIL CODE 53 (The Indian law Institution, New Delhi 1989)
(1989)NARENDAR KUMAR,
CONSTITUTIONAL LAW OF INDIA 166 (6th ed., Allahabad law Agency Delhi 2007) (1997)
Constituent Assembly Debates vol. VII 547- 48.Virendar Kumar,
Towards a Uniform Civil Code: Judicial Vicissitudes [from SarlaMudgal (1995) to Lily Thomas
(2000)] 42 Journal of Indian Law Institute 315 (2000).