Historical Perspective of Family Laws & Uniform Civil Code (UCC): A thorny issue in India for centuries: The concept of a Uniform Civil Code (UCC) in India has been prickly even before the Indian Constitution came into existence. It has been a subject of intense debate and discussion for centuries in India. India’s diversity lies, among many other things, in its culture based on both linguistics and religion. India, being a diverse country with multiple religions and religious laws, currently has different family laws (personal laws) for different religious communities. The family laws (personal laws) in India, based largely on age-old religious customs and usage, are accused of gross gender discrimination. The idea behind a UCC was enunciated in the Constitution to have a common set of laws governing personal matters such as marriage, divorce, inheritance, and adoption for all citizens, irrespective of their religious affiliations. However, due to the fact it violates other provisions of the Constitution implementing UCC is a challenge that no Government could overcome. When British Raj started codifying laws in India, they largely did so in Criminal Law and the laws related to governance. However, they were not interested to interfere with the religion, customs and cultural practices (usage). They had put their hands on any of these areas only when the initiative and pressure came from the leaders of the respective religions. For example, the prevention of Sati, prevention of Child marriage, Widow Remarriage etc was included in the Law Book only after the initiative and pressure came from the leaders of the Hindu society in Bengal. Historical perspective - Uniform Civil Code DebateEven though the debate over UCC has been there since the inception of the Republic of India, mostly it has been for political gain. Though no Government could overcome the challenge that come due to Personal Laws applicable to people from different religions on family matters, some governments showed courage to secularize and modernize by statutory enactments from time to time. Both Hindu personal law and Christian personal law have been made by and large free from large-scale gender discrimination. However, other personal laws are yet to come with landmark reforms that could set communities at par when it comes to the rights of women and children of a family. However, it is easier said than done. Even the 21st Law Commission emphasised the importance of reforming family laws across various religions to ensure gender equity, rather than solely focusing on the enactment of a Uniform Civil Code (UCC).The religion-based civil code dates back even before the colonial period in IndiaDuring the medieval period, Indian rule books were predominantly dictated by Islamic laws as most of the rulers were Muslims. Hence, most of the public laws were drawn from Islamic practices and were applied to all subjects irrespective of their religion. But when it came to matters of personal law, like marriage or succession, people of different faiths other than Islam were given the freedom to follow their traditions and culture while Islamic private law was applied to Muslims only. Even, due to intermixing of the population in this period, there are some instances where Hindu traditions were followed in a Muslim-majority area and people existed in harmony. During the Mughal period, laws related to land ownership and land revenue were made to suit Indian cultures and practices.The family laws (personal laws) in Pre-Independent India (colonial era)The East India Company and later the British Government were not interested to interfere with the religion, customs and cultural practices (usage). They had put their hands on any of these areas only when the initiative and pressure came from the leaders of the respective religions.
The family laws (personal laws) in Independent India (Post-Colonial era: 1947- 2023)During the drafting of the constitution, prominent leaders like Jawaharlal Nehru and Dr B.R Ambedkar pushed for a uniform civil code. India’s first PM Pt Jawaharlal Nehru professed his keen desire to have a Uniform Civil Code (UCC). He believed that till the time there is a conducive atmosphere for a unanimous Uniform Civil Code (UCC), the Personal law of the respective community should go through reform and change the objectionable parts with the Personal laws. The broad view was that the initiative and pressure to modify the personal law within the ambit of the constitution should come from the leaders of the community concerned. Amidst the differing views, framers of the Constitution included the UCC in the Directive Principles of State Policy (DPSP, Article 44) mainly due to opposition from religious leaders from both Hindu and Muslim societies and absence of readiness due to a lack of awareness among the masses during the time. Most importantly, the framers of the Constitution wanted India to evolve into a modern society and get rid of the Personal Laws based on religion and religious practices & customs as and when the needs arise. As a result, though the provision was made in the constitution (Article 44) for UCC, the framers continued with the status quo. Since then, the majority of the laws passed to amend the Personal Laws were reformed in nature to keep in with the demand of time. After Pt Jawaharlal Nehru won the 1952 general elections, the Hindu Code Bill was revived and went ahead to amend the Personal Laws that were reformed in nature to keep in with the demand of time. The political opposition, right-wing as well as the Left, attacked Nehru’s government saying it (the Hindu Code Bill) was an assault on Hindu tradition. Sucheta Kripalani, a Congress MP, felt Muslims weren’t quite prepared at that time, but the government would be able to bring UCC sooner than later. The Communists too wanted the personal laws of all communities to be reformed instead of UCC. Pt Nehru said the UCC had his “extreme sympathy,” but the time was not “ripe’ for it. He said, “I want to prepare the ground for it and this kind of thing (Hindu code) is one method of preparing the ground.”Dr. B.R. Ambedkar, one of the brains behind the world's largest written constitution, said “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, inequalities, discriminations and other things, which conflict with our fundamental rights”. The Hindu code bill -The bill was drafted by Dr B R Ambedkar to reform Hindu laws, which legalized divorce and opposed polygamy. Amidst intense opposition of the code, a diluted version was passed and secularized Hindu family law to an extent. Some of the bills of this period that followed were:-
Some of the court battles that have made the demand for UCC stronger and sharper:In the Mohd. Ahmed Khan vs. Shah Bano Begum case of 1985, Chief Justice Y.V. Chandrachud in his judgement observed: "It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". It seems, even the SC, the custodian of the Constitution, is not happy, even now, with the fact that our political system could not find a Uniform Civil Code that is unanimous yet not violating any of the Fundamental Rights enshrined in the Constitution. A number of court cases came up in which one of the parties sought justice for being aggrieved under the provisions of Personal Laws. However, in many cases, the HCs and the SC declined to consider the personal laws as violative of Fundamental rights. Some of the most talked about cases areThe State of Bombay v. Narasu Appa MaliThe case dealt with the question with regard to the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, of 1946. In appeal No. 331 of 1951 the Sessions Judge of South Satara held that the Act was invalid and acquitted the accused. In this case, Justice Gajendragadkar ruled that 'custom or usage' does not fall within the expression 'laws in force' in Article 13(1). The Judge opined that the practice of untouchability owed its origins to custom and usage. If it was intended to include 'custom or usage' in the definition of 'laws in force' in Article 13(3)(b), the custom of untouchability would offend the non-discrimination guarantee under Article 15 and be void under Article 13(1).The judgment of the state of Bombay v Narasu Appa Mali is yet to be overruled and holds the field as far as the protection of personal laws from the test of Constitutionality is concerned.Krishna Singh v. Mathura Ahir & othersThis is an appeal by special leave from a judgment and decree of the Allahabad High Court dated November 2, 1971. In 1981, a two-judge Bench of the Supreme Court was considering whether a person of the Shudra caste could become a sanyasi. While holding that if the custom and usage permitted, he could so become, the Court held that in the absence of such usage or custom, he could not be so ordained.Shah Bano case (1985)The Supreme Court of India in Md. Ahmed Khan v. Shah Bano Begum ruled against the beliefs of Muslim personal laws by granting a maintenance appeal to a divorced lady Shah Bano under Section 125 of Cr. P.C, despite refusal under Muslim personal law. The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the Criminal Procedure Code, which applied to all citizens irrespective of religion. [Section 125 of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife]. Further, the SC recommended that a uniform civil code be set up. The then government under pressure passed the Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.Maharshi Avdhesh v. Union of IndiaA Petition was filed under Article 32 of the Constitution (the case of Maharshi Avdhesh v. Union of India), appealing that the Muslim Women (Protection of Rights on Divorce) Act, 1986 be declared void as being in violation of Articles 14 and 15 of the Constitution. The Petition was dismissed by a two-judge Bench of the Supreme Court with an observation that these are issues for the legislature.Daniel Latifi CaseDanial Latifi, the counsel of Shah Bano, filed a Writ Petition in the Supreme Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court did test the Muslim Women (Protection of Rights on Divorce) Act, 1986 on the touchstone of fundamental rights.The Supreme Court, in 2001, held that the Muslim Women (Protection on Divorce Act), 1986 did not violate the Constitution or the fundamental rights. The bench observed that under Sec 3(1)(a), a Muslim husband is responsible for paying maintenance, which may be extended beyond the Iddat period, as well as making reasonable and fair provisions for his divorced wife’s future.Sarla Mudgal Case In this case, the question was whether a Hindu husband married under Hindu law can solemnise a second marriage by embracing Islam. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code (IPC). P E Mathew v Union of India, 1999Section 17 of the Indian Divorce Act, 1869, a central and a pre-constitutional law was challenged before the Kerela High Court as being arbitrary, discretionary, and violative of article 14 of the constitution. But the high court adopted the ratio of the Supreme Court in the previous judgements and held that the Christian personal law lies outside the scope of fundamental rights, even though the court did agree that section 17 was unjustified and discriminatory in nature. They left the matter to the legislature to amend the personal laws as they do not fall under the purview of fundamental rights.N. Adithyan v. Travancore Devaswom Board & OthersIn the case of N. Adithyan v. Travancore Devaswom Board & Ors, the Supreme Court was concerned with the issue of whether in Kerala only Brahmins could be ordained as priests in a certain temples. Longstanding usage and custom were cited in support of this claim.The Court turned down the plea and observed, "Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, and social equality. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country."John Vallamattom v. Union of India Case, 2003In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable to non-Hindus in India. Mr Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The SC held that Section 118 of the Indian Succession Act, 1925 being violative of Article 14 of the Indian Constitution will be struck down as unconstitutional.Shayara Bano vs Union Of India And Ors (2017): Triple Talaq CaseThe Constitution Bench of the Supreme Court, by a 3:2 larger part, put away and proclaimed the act of quick Triple Talaq or Talaq-e-bidder (the practice of divorce in the Muslim community) to be unconstitutional under Article 14 read with Article 13(1) of the Indian Constitution. A five-judge Constitution Bench has declared 3:2 that the practice of instantaneous Triple Talaq is unconstitutional. |
| About The Author Mr Falguni Goswami is the founder and Head of Careerbandhu Education. He is a renowned faculty, career counsellor and an Ex-Indian Air Force veteran with 30+ years of experience. He had spent years in different roles in the institutes like T.I.M.E and Career Launcher. |
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