0NIF0RN CIvIL C0BE

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A PR0}ECT 0N

UNIFORM CIVIL CODE
37// /4"// 4/ -/

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA



5UBMITTED TO: PROF. SHAIWAL SATYARTHI
5UBMITTED BY: PRANAV RAN1AN
ROLL NO. - 437 ,3
RD
SEM.

ACKNOWLEDGEMENT
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I fccl mysclf IigIly dcligIicd, as ii givcs mc incrcdillc lcasurc io rcscni a
rcscarcI acr on UNIFORM CIVIL CODE
I would lilc io cnligIicn my rcadcrs rcgarding iIis ioic and I Ioc I Iavc
iricd my lcsi io avc iIc way for lringing morc luminosiiy io iIis ioic.

I am graicful io my faculiy PROF. SHAIWAL SATYARTHI wIo Ias givcn
mc an idca and cncouragc mc io vcniurc iIis rojcci. I would lilc io iIanl
lilrarian of CNLU for iIcir inicrcsi in roviding mc a good lacl u maicrial.

Ai finally yci imorianily I would lilc io iIanl my arcnis for
INCOMMENSUFADLE suori.











RESEARCH METHODOLOGY
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A1MS AND OBJCT1VS:
Tho ain of lho piojocl is lo piosonl a dolaiIod sludy of UNIFORM CIVIL CODE in ioIalion lo
FAMILY LAW
SCOP AND L1M1TAT1ONS:
Though lhis is an innonso piojocl and pagos can lo viillon ovoi lho lopic lul locauso of
coilain iosliiclions and Iinilalions I vas nol alIo lo doaI vilh lho lopic in gioal dolaiI
SOURCS OF DATA
Tho foIIoving socondaiy souicos of dala havo loon usod in lho piojocl-
1 ilicIos
2 ooks
3 olsilos

MTHOD OF WR1T1NG
Tho nolhod of viiling foIIovod in lho couiso of lhis iosoaich papoi is piinaiiIy anaIylicaI
MTHOD OF RSARCH
Tho iosoaich voik of lhis piojocl is lasod on docliinaI nolhod
MOD OF C1TAT1ON
Tho iosoaichoi has foIIovod a unifoin nodo of cilalion lhioughoul lho couiso of lhis
iosoaich papoi




TABLE OF CONTENTS

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ACRNOWLDGMNT
RSARCH MTHODOLOGY
L1ST OF CASS

CHAPTRS:

. INTFODUCTION-----------------------------------------------------Pg. 6-7.

2. CONSTITUTIONAL PFOVISIONS ---------------------------------Pg. 8-.

3. NEED OF UNIFOFM CIVIL CODE -------------------------------Pg. -2.

. CODIFICATION------------------------------------------------------Pg. 22-2.

. CONCLUSION -------------------------------------------------------Pg. 26-27.


APPND1CS:
BIBLIOGRAPHY





LIST OF CASES

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. Danial Latifi v. Union of India AIR 2001 SC 3262.
2. S.P. Mittal vs. Union of India AIR 1983 SC 1.
3. Moh. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945.
4. S.R. Bommai v. Union of India (1994) SCC 1.
5. 1ohn Vallamattom v. Union of India AIR 2003 SC 2902.
6. A. 1. Avadhut v. Commissioner of Police, Calcutta (1984) 4 SCC 522.
7. Aruna Roy v. Union of India AIR 2003 SC 3176.
8. Pannalal Bansilal v. State of Andhra Pradesh AIR 1996 SC 1023.
9. Maharishi Avadhesh v. Union of India 1994 SCC (1) 713.
.Ahmedabad Women Action Group v. Union of India AIR 1997, 3 SCC 573.
.Pragati Varghese v. Cyril George Varghese AIR 1997 Bom 349.











INTRODUCTION

H1STOR1CAL BACRGROUND
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When India attained independence and the issue oI UniIorm Civil Code (UCC) arose, much
was debated at the Indian Parliament in 1948 as immediately aIter the independence riots in
the name oI religion began especially between Hindus and Muslims. While the Iounding
Iather oI our constitution and Chairman oI the Constitution DraIt Committee, Dr. B.R.
Ambedkar, supported by eminent nationalists like Gopal Swamy Iyenger, Anantasayam
Iyengar, KM Munshiji, Alladi Krishnaswamy Iyer and others Iavoured the
implementation oI the UniIorm Civil Code; it was strongly opposed by Muslim
Iundamentalists like Poker Saheb and members Irom other religions.
On 23rd November 1948 a Muslim member, in Parliament, gave an open challenge that
India would never be the same again iI it tried to bring in UniIorm Civil Code and interIere
with Muslim personal law. Earlier, the Congress had given an assurance that it would allow
Muslims to practice Islamic personal Law and the architects oI the Constitution, thereIore,
Iound a compromise by including the enactment oI a UniIorm Civil Code under the Directive
Principles oI State Policy in Article - 44. Distinguished members like Shri Minoo Masani,
Smt. Hansa Mehta and Rajkumari Amrit Kaur put in a note oI dissent saying that one oI
the Iactors that kept India back Irom advancing to nationhood has been existence oI personal
laws, based on religion, which keep the Nation divided into watertight compartments in many
aspects oI liIe. They were strongly in Iavour oI the view that UniIorm Civil Code should be
guaranteed to the Indian people within a period oI Iive to ten years. But even aIter sixty-one
years, because oI perverse secularism and perverted communalism, UniIorm Civil Code has
not come into being.
PRSNT SCNAR1O
UniIorm civil code oI India is a term reIerring to the concept oI dominant Civil Law Code in
India. A uniIorm civil code administers the same set oI secular civil laws to govern all people
irrespective oI their religion, caste and tribe. This supersedes the right oI citizens to be
governed under diIIerent personal laws based on their religion or caste or tribe. Such codes
are in place in most modern nations.
In a layman term uniIorm means same, civil means ordinary citizen and code means set oI
rules or principles or laws. So it means that same set oI rules applicable to all citizens,
irrespective oI religion.
India, i.e, Bharat Irom it`s very beginning is the land oI sarva dharma sambhava' ,
land oI diversity having various religious communities residing at a same place like Hindu,
Muslim, Jain, Christian, Buddhists, Parsees, and Sikhs. The important Ieatures oI this nation
is unity in diversity and also each community has its own laws governing marriage and
divorce, inIants and minors, adoption, wills, intestacy, and succession.
These personal laws go with an individual across the states oI India where they are part oI the
law oI 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.

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This term is used in India as a directive principle oI state policy. It is described in Part IV oI
the Indian Constitution. Article 44 oI the Indian Constitution states that the state shall
endeavour to secure Ior citizens a uniIorm civil code throughout the territory oI India and
also it is provided that uniIorm law Ior all persons may be desirable, but it`s enactment in one
go may be counter-productive to the unity oI nation.

The term civil code` as stated above is

used to cover the entire body oI laws governing rights relating to property and personal
matters such as marriage, divorce, maintenance, adoption and inheritance.

The object is to bring national integration by removing or eliminating all the diIIerences oI
ideologies. It aims to bring all communities on a common platIorm on matters which are
currently governed by diverse personal laws. This article Iocuses on the status oI the
implementation oI a UniIorm Civil Code and the steps taken and directed to be taken by the
Legislature and Judiciary in this regard.

In India the only state where the uniIorm civil code is applicable is Goa. But it was not easy
Ior the state to implement it as it is uniIorm to all religious communities, because some oI it`s
provision goes in contradiction to the personal laws.
2


FACTORS AFFCT1NG UCC

The mere three words and the nation break into depth oI non-integration and lack oI unity.
These three words are enough to divide the nation into two categories - politically, socially
and religiously. Politically, the nation is divided as BJP, which propagates implementation oI
the UniIorm Civil Code and the non BJP including the Congress party, Samajwadi party, who
are against the implementation oI the UCC. Socially, the intelligentsia oI the country, who
analyse logically the pros and cons oI the UCC and the illiterate who have no opinion oI their
own and succumb to the political pressure are at opposite poles. And, religiously, there is a
dangerous widening schism between the majority Hindus and the minority community mostly
the Muslims.




CONSTITUTIONAL PROVISIONS


1
Bakshi P.M., The Constitution of India, 9
th
edn., Delhi, Universal Law Publishing co.,29.
2
articles.timesofindia.indiatimes.com.
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No one in our country, our political leaders or individuals, have ever concentrated their
eIIorts towards deIining the UniIorm Civil Code. All we know is that some common law
covering issues relating to marriage, succession and property is called UniIorm Civil Code
but what these laws would be is anyone`s guess. Now, what does our Constitution say about
UniIorm Civil Code. In Article 44, our constitution clearly specifies the UCC "The State
shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of
India".
3
The constitution is thus, very clear that unless a uniIorm civil code is Iollowed,
integration cannot be imbibed. However, the Iact is that it is only a 'directives principle laid
down in the constitution.
The Directive Principles of state policy contained in Part IV oI the Constitution set out the
aims and objectives to be taken up by the states in the governance oI the country. Unlike the
Iundamental rights, these rights are not justiciable. II the state is unable to implement any
provisions oI Part IV, no action can be brought against the state in a law court. The idea oI
uniIorm civil code envisaged in our constitution can only be achieved iI the state attempts to
implement them with high sense oI moral duty.
Article 37 of the Constitution itself makes clear that, the directive principles shall not
be enforceable by any court
4
. Nevertheless, they are 'Iundamental in the governance oI
the country. This shows that although our constitution itselI believes that a UniIorm Civil
Code should be implemented in some manner, it does not make this implementation
mandatory. Hence, the debate on having a uniIorm civil code Ior India still continues. The
demand Ior a uniIorm civil code essentially means having one set oI laws that will apply to
all citizens oI India irrespective oI their religion. Though the exact contours oI such a uniIorm
code have not been spelt out, it should presumably incorporate the most modern and
progressive aspects oI all existing personal laws while discarding those which are retrograde.
Article 4 of the Indian Constitution declares that the state shall not deny to any
person equality before the law or the equal protection of laws within the territory of
India.
5
Thus Article 14 uses two expressions 'equality oI laws and 'equal protection oI
law. The phrase 'equality oI law Iinds a place in almost all written constitutions that
guarantees Iundamental rights. While 'equal protection oI the law is a more positive concept
implying equality oI treatment in equal circumstances. However, one dominant idea common
to both the expressions is that oI equal justice. But it also talks about reasonable
classiIications as the classiIication must be Iounded on an intelligible diIIerentia which
distinguishes persons or thing that are grouped together Irom others leIt out oI the group and
the diIIerentia must have a rational relation to the object sought to be achieved by the act.
In Danial Latifi v. Union of India,
6
the validity oI section 3 and 4 oI the Muslim Women
Protection oI Rights on Divorce} Act, 1986 was challenged on the ground that it is violation
oI Art. 14 oI the Constitution. Under these sections a Muslim divorced woman has right to

3
Bakshi P.M., The Constitution of India, 9
th
edn., Delhi, Universal Law Publishing co.,29.
4
ibid.
3
ibid.
6
AIR 2 SC 3262.
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claim maintenance Irom her husband even aIter the period oI iddat. The supreme court held
that the 1986 act is valid and is not violation oI Art. 14 oI the Constitution. The court held
that, (a) a Muslim husband is liable to make reasonable and Iair provision Ior the Iuture oI the
divorced wiIe extending beyond the iddat period in terms oI s. 3(1)(a) oI the 1986 act and (b)
not only this but iI a Muslim woman remains unmarried and is not able to maintain herselI
aIter iddat period she can proceed under s. 4 oI the act against her relatives who are liable to
maintain her in proportion to the properties which they may inherit on her death according to
Muslim law. II the relatives are Iound unable to pay her maintenance, the magistrate may
direct the State WakI Board, established under the WakI act, to pay such maintenance.
Article 5 of the Constitution prohibits discrimination on the grounds of religion, race,
caste, sex or place of birth. The Iirst clause oI Article 15 directs the state not to discriminate
against a citizen on grounds only on religion, race, caste, sex or place oI birth or any oI them.
The word discrimination` means an adverse distinction or to distinguish unIavourable Irom
others. II a law makes discrimination on any oI the ground it can be declared invalid. It is to
be noted that while clause (1) oI Article 15 prohibits discrimination by the state; (2) prohibits
both the state and the private individuals Irom making any discrimination. The object oI
Article 15(2) is to eradicate the abuse oI the Hindu social system and to herald a united
nation.
The Constitution itself gives protection to the different religions and religious groups by
including religious rights as fundamental rights.

Under Article 25(, guarantees to every person the Ireedom oI conscience and right to
proIess, practice and propagate religion. The right guaranteed under Article 25(1) like other
constitutional rights, is not absolute. This right is, subject to public order, morality and health
and to the other provisions oI Part III oI the constitution. Also under sub-clause (a) and (b)
oI clause (2) oI Article 25 the state is empowered by law to regulate or restrict any economic,
Iinancial, political or other secular activity which may be associated with religious practice;
and to provide Ior (i) social welIare and reIorm, and (ii) to throw open Hindu religious
institutions oI a public character to all classes and sections oI Hindu.

In S.P. Mittal vs. Union of India
7
the Majority in this case taking a very restricted view oI
religion held that the teachings oI Sri Aurobindo constituted a philosophy and not religion
even iI their Iollowers claimed them to be their religion. Chinnappa Reddy, J ; In a dissenting
opinion said " the question is not whether Sri Aurobindo reIused to claim or denied that he
was Iounding a new religion or a new school oI religious thought but whether his disciples
and community thought so because religion is a matter oI belieI and doctrine, concerning the
human spirit, expressed overtly in the Iorm oI ritual and worship and since Aurobindo's
disciples took Aurobindo's teachings in that spirit the teachings constituted a distinct religion.

UN1FORM C1V1L COD FOR TH C1T12NS

Article 44 talks about a UniIorm Civil Code Ior the citizens, ' the state shall endeavour to
secure Ior the citizens a uniIorm civil code throughout the territory oI India.

7
AIR 983 SC .
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On the one hand we have Article 25, which gives the liberty to all to proIess and propagate
their religion. The state will not gloriIy any particular religion.

On the other hand Article- 44 though a directive principle but Iundamental in the governance
oI the country talks oI a uniIorm civil code which can inIringe the Ireedom oI religion as
guaranteed under Article 25 and it can act tyrannical to the minorities. The state is trying to
play a dual role here. At one point oI time it says that the state will not propagate any
particular religion and in the second it is amassing the role oI religion itselI. The state is
indulging itselI into a sabotage to repress and suppress the minority right and religion. This
is what was done in Moh. Ahmed Khan vs. Shah Bano Begum
8
whereby ChieI Justice
Chandrachud echoed his misapprehension about Islam. He said that ' the Iatal point in Islam
is the degradation oI women. And to make things worse he declared that the actual and Iinal
solution oI the problem he was tackling lay in the immediate enactment oI a uniIorm civil
code. II a civil code means total abolition oI the Islamic personal law and imposition on
unwilling Muslims oI a wholly un-Islamic legal culture the Muslims cannot but IorceIully
resist such a socio-cultural upheaval. The Iact that a UniIorm Civil Code is being demanded
by individuals and organizations known Ior their prejudices against Muslims and other
minorities has Iully exposed the clandestine objects behind the advocacy Ior such a code and
thus caused a grave and irreparable damage to its cause. In a multi-dimensional country such
as ours just as the mythology oI the majority community cannot be accepted by the minorities
as "national history", the personal law oI the majority, or even a law imported Irom the west
and made theoretically applicable to it, cannot be imposed on the minorities as the Iamily law
oI India.
9


Under Article 26, which says that, subject to public order, morality, and health every
religious denomination oI every section oI it shall have the Iollowing right,
(a) To establish and maintain institutions Ior religious and charitable purposes,
(b)To manage its own religious aIIairs in matter oI religion,
(c) To own and acquire movable and immovable property,
(d)To administer such property in accordance with law.

Under Article 27, it provides that no person shall be compelled to pay any tax Ior the
promotion or maintenance oI any particular religion or religious denomination. This article
emphasises the secular character oI the state. The public money collected in the way oI tax
cannot be spend by the state Ior the promotion oI any particular religion.
10


Under Article 28, Ireedom as to attend religious instruction or religious worship in certain
educational institutions.
(1) No religion instruction shall be provided in any educational institution wholly maintained
out oI State Iunds.

8
AIR 985 SC 945.

9
Ratnaparkhi M.S., Uniform civil code, 3
rd
edn., Atlantic Publication, 997, pg.234.
10
Basu D.D., Shorter Constitution of India, Nagpur, Wadhwa, 29.
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(2) Nothing in clause (1) shall apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid
out oI State Iunds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or, iI such person is a
minor, his guardian has given his consent thereto cultural and educational rights.
Four types oI educational institutions were mentioned,
(a) Institution wholly maintained by the state,
(b)Institution recognised by the state,
(c) Institution that are receiving aid out oI the state Iund,
(d)Institution that are administered by the state but are established under any trust or
endowment.
11


Under Article 29, protection oI interests oI minorities,
(1) Any section oI the citizens residing in the territory oI India or any part thereoI
having a distinct language, script or culture oI its own shall have the right to conserve the
same.
(2) No citizen shall be denied admission into any educational institution maintained by
the State or receiving aid out oI State Iunds on grounds only oI religion, race, caste, language.
Under Article 30, right oI minorities to establish and administer educational institutions,
(1)All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions oI their choice.
(1A) In making any law providing Ior the compulsory acquisition oI any property oI an
educational institution established and administered by a minority, reIerred to in clause (1),
the State shall ensure that the amount Iixed by or determined under such law Ior the
acquisition oI such property is such as would not restrict or abrogate the right guaranteed
under that clause.
(2) The state shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management oI a minority,
whether based on religion or language.
Under the Constitution religion is not equated with Ireedom oI conscience, and the Ireedom
oI religion (deIined as embracing the propagation, practice, and public expression oI it) is not
an absolute one and is subject to regulation by the state.

11
Bakshi P.M., The Constitution of India, 9
th
edn., Delhi, Universal Law Publishing co.,29.
0NIF0RN CIvIL C0BE

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In the context oI the Indian Constitution, religion has been deIined as having "its basis in a
system oI belieIs and directives, which are regarded by those who proIess that religion to be
conducive to their spiritual well being.

In a number oI cases the Supreme Court has also held that religion was not merely a matter oI
Iaith and belieI, but also included rituals, ceremonies, and religious practices according to the
tenets oI a religion. Courts are called on to determine not only whether a practice oI a religion
is an essential part oI the religion, but also to scrutinize governmental restrictions on the
practice and propagation oI religion to determine whether the restrictions pass the test oI
public order, morality, and health. II not, they are not to be upheld. India stands Ior a secular
state. The constitution oI India stands Ior a secular state. The state has no oIIicial religion.
Secularism pervades its provisions, which give Iull opportunity to all persons to proIess,
practice and propagate the religion oI their choice. 'The constitution not only guarantees a
person's Ireedom oI religion and conscience, but also ensures Ireedom Ior one who has no
religion, and it scrupulously restrains the state Irom making any discrimination on grounds oI
religion. A single citizenship is assured to all persons irrespective oI their religion.


SCULAR1SM AND UCC
The 42
nd
Amendment, 976 inserted three new words in the preamble. Socialist` secular`
and integrity`. The spine oI controversy revolving around UCC has been secularism and the
Ireedom oI religion enumerated in the Constitution oI India. The Preamble oI the 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 oI religion. A
State is only concerned with the relation between man and man. It is not concerned with the
relation oI man with God. It does not mean allowing all religions to be practiced. It means
that religion should not interIere with the mundane liIe oI an individual.
12


In S.R. Bommai v. Union of India
3
, as per Justice Jeevan Reddy, it was held that religion is
the matter oI individual Iaith and cannot be mixed with secular activities. Secular activities
can be regulated by the State by enacting a law. Also Supreme Court held that secularism is a
basic Ieature oI the constitution.
In India, there exist a concept oI "positive secularism" as distinguished Irom doctrine oI
secularism accepted by America and some European states i.e. there is a wall oI separation
between religion and State. In India, positive secularism separates spiritualism with
individual Iaith. The reason is that America and the European countries went through the
stages oI renaissance, reIormation and enlightenment and thus they can enact a law stating
that State shall not interIere with religion. On the contrary, India has not gone through these
stages and thus the responsibility lies on the State to interIere in the matters oI religion so as
to remove the impediments in the governance oI the State.

12
Pandey 1.N., The Constitutional Law of India, 46
th
edn., Allahabad, Central Law Agency,29, pg. 435.
13
(994 SCC .
0NIF0RN CIvIL C0BE

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Articles 25|9| and 26|10| guarantees right to Ireedom oI religion. Article 25 guarantees to
every person the Ireedom oI conscience and the right to proIess, practice and propagate
religion. But this right is subject to public order, morality and health and to the other
provisions oI Part III oI the Constitution. Article 25 also empowers the State to regulate or
restrict any economic, Iinancial, political or other secular activity, which may be associated
with religious practice and also to provide Ior social welIare and reIorms. The protection oI
Articles 25 and 26 is not limited to matters oI doctrine oI belieI. It extends to acts done in
pursuance oI religion and, thereIore, contains a guarantee Ior ritual and observations,
ceremonies and modes oI worship, which are the integral parts oI religion which was decided
in Acharya 1agdishwaranand Avadhut v. Commissioner of Police, Calcutta.
4

UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on
the concept that there is no necessary connection between religion and personal law in a
civilised society. Marriage, succession and like matters are oI secular nature and, thereIore,
law can regulate them. No religion permits deliberate distortion held in Sarla Mudgal v.
Union of India.
15
The UCC will not and shall not result in interIerence oI one`s religious
belieIs relating, mainly to maintenance, succession and inheritance. This means that under the
UCC a Hindu will not be compelled to perIorm a nikah or a Muslim be Iorced to carry out
saptapadi. But in matters oI inheritance, right to property, maintenance and succession, there
will be a common law.
Justice Khare, in the 1ohn Vallamattom v. Union of India
6
case, said, "It is no matter oI
doubt that marriage, succession and the like matters oI secular character cannot be brought
within the guarantee enshrined under Articles 25 and 26 oI the Constitution."

The ChieI Justice also cautioned that any legislation which brought succession and like
matters oI secular character within the ambit oI Articles 25 and 26 is a suspect legislation.
Article 25 conIers right to practice and proIess religion, while Article 44 divests religion Irom
social relations and personal law.
The whole debate can be summed up by the judgement given by Justice R.M. Sahai. He said,
"Ours is a secular democratic republic. Freedom oI religion is the core oI our culture. Even
the slightest oI deviation shakes the social Iibre. But religious practices, violative oI human
rights and dignity and sacerdotal suIIocation oI essentially civil and material Ireedoms are not
autonomy but oppression. ThereIore, a uniIied code is imperative, both, Ior protection oI the
oppressed and Ior promotion oI national unity and solidarity in Sarla Mudgal v. Union of
India case.
In Aruna Roy v. Union of India
7
, the supreme court has said that secularism has a positive
meaning that is developing, understanding and respect towards diIIerent religions. Justice
Dharmadhikari quoted Gandhiji who said 'the real meaning oI secularism is sarva

14
(984 4 SCC 522.
13
(995 3 SCC 635
16
AIR 23 SC 292.
17
AIR 23 SC 376.
0NIF0RN CIvIL C0BE

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dharma sambhav' meaning equal treatment and respect Ior all religions. But we have
misunderstood the meaning oI secularism as sarva dharma abhav' meaning negation oI
all religion.
18



















NEED OF UNIFORM CIVIL CODE


18
Agarwala R.K., Hindu Law, 22
nd
edn., Allahabad, Central Law Agency, 28, pg. 32.

0NIF0RN CIvIL C0BE

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The need Ior uniIorm civil code has been Ielt Ior more than a century. The country has
already suIIered a lot in the absence oI a uniIorm code Ior all. It is rather a pity that the
longest and most elaborately written constitution in the history oI mankind, the Indian
constitution is responsible Ior creation oI erosion in society. The society has been Iragmented
in the name oI religions, sects and sex. Even at present, in India, there are diIIerent laws
governing rights related to personal matters or laws like marriage, divorce, maintenance,
adoption and inheritance Ior diIIerent communities. The laws governing inheritance or
divorce among Hindus are thus, very diIIerent Irom those pertaining to Muslims or Christians
and so on. In India, most Iamily law is determined by the religion oI the parties concerned
Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians
have their own laws. Muslim law is based on the Shariat; in all other communities, laws are
codiIied by an Act oI the Indian parliament. There are other sets oI laws to deal with criminal
and civil cases, such as the Criminal Procedure Code and the Indian penal code. The
multiIarious castes and creeds and their sets oI belieIs or practices are bewilderingly
conIusing and nowhere is a scenario like in India, oI various personal laws jostling together,
allowed.

Does India need the Uniform Civil Code? It varies Irom person to person. Even Italy has
one, as do the rest oI the developed world. It is high time that India had a uniIorm law dealing
with marriage, divorce, succession, inheritance and maintenance. But, it must be realized that
the scenario in India is extremely complex. India has a long history oI personal laws and it
cannot be given up easily. Unless a broad consensus is drawn among diIIerent communities,
the UniIorm Civil Code can`t do much good to the country. The reality in India is much more
complex than Western societies which have been totally secularised. The need is to work on
the existing laws in such a way that they don`t go against any particular Iaith or religion.

A UniIorm Civil Code administers the same set oI secular civil laws to govern diIIerent
people belonging to diIIerent religions and regions. This supersedes the right oI citizens to be
governed under diIIerent personal laws based on their religion or ethnicity. The common
areas covered by a civil code include: Personal Status, Rights related to acquisition and
administration oI property, Marriage, divorce and adoption.
UniIorm Civil Code will in the long run ensure equality. While other personal laws have
undergone reIorm, the Muslim law has not. It perhaps makes little sense to allow Muslims,
Ior example, to marry more than once, but prosecute Hindus or Christians Ior doing the same.
ThereIore, there is the demand Ior a uniIorm civil code Ior all religions
19
.
Also, UCC will help to promote gender equality. Several liberals and women`s groups have
argued that the uniIorm civil code gives women more rights.
However, the opponents oI UCC argue that this law is poking into their religious practices.
They Ieel that this code will aIIect the religious Ireedom oI minorities. One Iails to
understand how abiding the law oI land can go against religious principles! The claim that the

19
Deshta K., Uniform civil code,3
rd
edn., Deep and Deep Publications, 995, pg. 23.
0NIF0RN CIvIL C0BE

16

sentiments oI the minorities are not considered while implementing a common law is thus
beyond comprehension. UCC does not insist people Irom one religion to start practicing
rituals oI other religions. All it says is, with changing living styles along with the time, there
should be a UniIorm Civil code irrespective oI all religions as Iar as social ethics are
concerned.
20


The crusade Ior the implementation oI the UniIorm Civil Code and homogenizing the
personal laws is justiIied and should receive the support oI all progressive thinking Indians,
not because oI any bias, but because it is the need oI the hour. But it needs to come on the
heels oI a political consensus and that is what needs to be evolved. It is rightly believed that
the UniIorm Civil Code is necessary to eIIect an integration oI India by bringing all
communities into a common platIorm which at present is governed by personal laws which
do not Iorm the essence oI any religion. India as a nation will not be truly secular unless
uniIormity is established in the Iorm oI rational non-religious codiIied laws.

Politics apart, the case Ior a UniIorm Civil Code - which will cover the entire gamut oI laws
governing rights relating to property, marriage, divorce, maintenance, adoption and
inheritance - has been most argued on behalI oI women. There is universal agreement that
personal laws, regardless oI the community, are skewed against women. In the long sittings
oI the Constituent Assembly, it seems none had a notion about the injustice that was being
done to women in the name oI religion as also to the majority community by retaining certain
customs among the minority communities and by giving them certain privileges. A uniIorm
code provides equal rights to men and women. The absence oI a uniIorm code is thus
responsible Ior one calamitous vicissitude in the nation the subjugation oI women in
almost all the Iaiths.
One reason why personalized laws based on religion is not Iavoured is because religious laws
tend to be highly gender biased. Most major religions developed, over time, a bias towards
women - treating them as somewhat inIerior. In Christianity, Eve was meant to be the root
cause oI all evil. In Hinduism, Sati was practiced in some communities Ior ages till the
British Iormally put a stop to it. The practice oI dowry and the ill treatment oI widows
continue till today in many regions. In Islam, the staunchest Muslims don`t let women travel
alone, wear something revealing or go to work. These are just a Iew examples oI the deep
underlying biases that lie within Iaiths. Such practices are justiIied via religious texts or
customs that simply 'must not be broken. It has taken generations oI rebellion to inculcate
any change within these religions. Also, religious laws cannot be viewed objectively. They
are created Irom sentiments regarding what is correct according to conceptions oI God. Thus
to alter such a law one also has to change perceptions regarding core religious Iundamentals.
As a result, true progress in terms oI equality can be hindered by many years.
Let us take a look into the case oI Imrana a 28 years old woman, and the mother oI Iive
children. On June 6, 2005, Imrana, was raped by her 69 year-old Iather in-law Ali

20
legalserviceindia.com/articles/ucc.htm.

0NIF0RN CIvIL C0BE

17

Mohammad. Soon aIter she was raped, a local Muslim panchayat (council oI elders) asked
her to treat her husband Nur Ilahi as her son and declared their marriage null and void! Can
any law oI the land justiIy this?
21

The Iact that such a verdict could take place in India in the year 2005 is insulting to our legal
system. Had she been a Hindu or Christian, such a verdict would not have occurred, Iurther
highlighting the inequality oI the situation. In India, secularism has come to mean non-
intervening in the matter of religion. This needs to be relooked and debated as there
cannot be any discrimination in the guise oI secularism.
22

The Ireedom to adopt any religion is enshrined in the Constitution. It seems quite an innocent
and logical right. But Irom it springs the natural corollary oI preaching and propagating a
religion. In an educated society, it has no serious bearings but, in an illiterate and uneducated
society, it has very grave consequences, especially when the whole game is politicized. The
politicization results in appeasing the minority by giving them certain rights ultimately to
catch their votes or to gain their sympathy. Secular India has upheld the Ireedom oI religion
at the cost oI national unity. The interpretation oI laws, in the absence oI a uniIorm code Ior
all religious communities debars other religious communities Irom becoming a party to the
case in the court in which an appeal is made to restrain the religious heads Irom harassing the
members oI that community. A Iriend, an organization, even a brother is not accepted a party
against injustice iI he/she/it does not belong to that Iaith. The absence oI a common code has
thus, deprived the people oI having a common cause and is responsible Ior the subjugation oI
reIormers in the name oI religion in the biggest so-called secular nation.
Furthermore, the perception that a uniIorm civil code would change only Muslim personal
law is wrong, and probably came about because the Rashtriya Swayamsevak Sangh (RSS) is
the only political party that actively supports it. Orthodox practices in Hindu personal law or
Christian personal law will also have to undergo changes. For instance, the law pertaining to
succession among Hindus is unequal in the way it treats men and women. The concept oI the
'Hindu undivided Iamily, with respect to succession, would be changed under a UniIorm
Civil Code. Christian personal law does not allow the succession oI wealth to charitable
organizations. Under a UniIorm Civil Code, this law may very well be altered. This also
explains why historically changes in personal law have been resisted not just by one
community, but by the ruling orthodoxy in all oI them.
Moreover, many Islamic countries have codiIied and reIormed Muslim personal Law to
check its misuse. Muslim countries like Egypt, Turkey and even Pakistan have reIormed their
laws. Terence Farias, in his chapter The Development oI Islamic Law points out that the 1961
Muslim Family Law Ordinance oI Pakistan "makes it obligatory Ior a man who desires to
take a second wiIe to obtain a written permission Irom a government appointed Arbitration

21
jurisonline.in/2/3/uniform-civil-code-an-unfulfilled-vision/
22
www.legalsutra.com.

0NIF0RN CIvIL C0BE

18

Council." The interesting point regarding Pakistan is that until 1947 both India and Pakistan
had governed Muslims under the Shariat Act oI 1937. However, by 1961 Pakistan, a Muslim
country had actually reIormed its Muslim Law more than India had and this remains true
today. There is no reason why India should continue with vastly discriminatory personal
laws. In Iact, the reIorms meted out in Tunisia and Turkey helped abolish Polygamy.
Polygamy has also been either banned or severely restricted in Syria, Egypt, Turkey,
Morocco, Iran and even in Pakistan. Besides Muslims who live in U.S.A., Australia, U.K.
and other parts oI Europe readily accepted the civil laws applicable uniIormly to all citizens
in the respective countries but do not Ieel insecure on that account. So, then, why, in India
should there be such a Ieeling? Iran, South Yemen, and Singapore all reIormed their Muslim
laws in the 1970s, although Iran appears to have backslid in this respect. In the end the
argument is quite clear.
POS1T1ON OF TH LG1SLATUR

The question oI implementation oI a Common Civil Code has been raised mainly with regard
to matters where, the personal laws oI a religious community have been challenged in the
court oI law as being violative oI the Constitution or against general public interest.
Our law makers have generally shied away Irom legislating on such points oI personal law as
are considered to be oI controversial or sensitive nature, Ior Iear such legislation being
labeled as an intrusion on the above rights thereby resulting in strong backlash. This became
evident Irom the reaction to the judgment oI the Supreme Court in the Shah Bano case which
gave a divorced Muslim woman the right to claim maintenance even aIter the period oI iddat.
II the amount known as maher, paid to her on divorce was not suIIicient Ior her livelihood,
she could claim maintenance under S.125 oI the Criminal Procedure Code. There was great
agitation against this decision, led by Mullas and Maulvis and other Iundamentalist sections,
as being against the tenets oI Islam. Succumbing to the pressure oI vote-bank politics and in
order to appease the Muslim Iundamentalists, the Rajiv Gandhi government enacted The
Muslim Women (Protection oI Rights in Divorce) Act to undo this decision. This Act
exempted Muslims Irom the general law regulations oI 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 Iair
provision and maintenance within the iddat period.

Similarly in case oI the Adoption of Children Bill 972, the Muslim community opposed a
uniIorm 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
0NIF0RN CIvIL C0BE

19

with an express clause oI non-applicability to Muslims. This was again opposed, this time by
the Bombay Zoroastrian Jashan Committee, which Iormed a special committee to exempt
Parsis Irom the bill. The Adoption oI Children Bill, 1995, was passed by both Houses oI 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 Ireedom oI religion
conIerred by the Constitution is not absolute and by no means does it allow religion to
contravene the secular rights oI the citizens and the power oI the State to regulate the socio-
economic relations. Basically, a Common Civil Code will override only those personal laws
which do not Iorm the essence oI any religion. The key word here is essence.` Personal laws
which Iorm the Iundamental basis or the core oI any belieI system are ideally, excluded Irom
the purview oI the Common Civil Code.

POS1T1ON OF TH SUPRM COURT

The Supreme Court seems to have a divided opinion on the introduction oI a UniIorm 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 Ior its implementation.
In Pannalal Bansilal v. State of Andhra Pradesh
23
, it held that a uniIorm law though highly
desirable, the enactment thereoI in one go may be counter-productive to the unity and
integrity oI the nation. Gradual progressive change should be brought about.
Similarly, in Maharishi Avadhesh v. Union of India
24
, the Supreme Court dismissed a writ
petition to introduce a common Civil Code on the ground that it was a matter Ior the
legislature and in Ahmedabad Women Action Group v. Union of India
25
, the Supreme
Court showed reluctance to interIere in matters oI personal law.
But in Sarla Mudgal v. Union of India, the Supreme Court directed the then Prime Minister
P.V. Narsimha Rao to take a Iresh look at Article 44, which the Court held to be imperative
Ior both protection oI the oppressed and promotion oI national integrity and unity. It
instructed the Union Government through the Secretary to Ministry oI Law and Justice to Iile
an aIIidavit, enumerating the steps taken and eIIorts made by the Government towards
achieving a common civil code Ior the citizens oI India. The Division Bench oI Kuldip Singh

23
AIR 996 SC 23.
24
994 SCC ( 73.
23
AIR 997, 3 SCC 573.
0NIF0RN CIvIL C0BE

20

and R.M. Sahai said that since 1950 a number oI Governments have come and gone but have
Iailed to make any eIIorts towards implementing the constitutional mandate under Article 44.
It is based on the concept that there is no necessary connection between religion and personal
law in a civilized society. No religion permits deliberate distortion. Marriage, succession and
the like are matters oI a secular nature and thereIore can be regulated by law. UnIortunately,
it was later clariIied in an appeal that the direction issued by the Court was only an obiter
dicta and not legally binding on the Government.
In 1ohn Vallamattom v. Union of India, it was held that Articles 25 and 26 oI the
Constitution protect only those rituals and ceremonies which Iorm an integral part oI a
religion, and that matters oI a secular character cannot be brought under the guarantee
enshrined under them. The ChieI Justice oI India Iirmly emphasized that enactment oI
UniIorm Civil Code would end all such problems arising out oI ideological conIlict.
In Danial Latifi v. Union of India, a very controversial question oI political signiIicance (in
the background oI a secular constitution and the concept oI welIare state) was revisited i.e.
whether or not a divorced Muslim woman aIter divorce post iddat period is entitled to
maintenance by her husband. Here, the Supreme Court adopted a middle path and held that
reasonable and Iair provisions include provision Ior the Iuture oI the divorced wiIe (including
maintenance) and it does not conIine itselI to the iddat period only.
In Pragati Varghese v. Cyril George Varghese
26
, the Iull bench oI the Bombay high court
has struck down section 10 oI the Indian divorce act under which a Christian wiIe had to
prove adultery along with cruelty or desertion while seeking a divorce on the ground that it
violates the Iundamental right oI a Christian woman to live with human dignity under article
21 oI the constitution. The court also declared sections 17 and 20 oI the act invalid which
provided that an annulment or divorce passed by a district court was required to be conIirmed
by a 3 judge oI the high court. The court said that section 10 oI the act compels the wiIe to
continue to live with man who has deserted her or treated with cruelty. Such a liIe is sub
human. There is denial to dissolve the marriage when the marriage has broken down
irretrievably.


1MPLMNTAT1ON AT STAT-LVL


26
AIR 997 Bom 349.
0NIF0RN CIvIL C0BE

21

Even though a nation-wide Civil Code is not yet in place, a positive step in this direction has
already been taken. The state oI Goa has enacted a set oI Family Laws`, which is applicable
to all communities; Hindus, Christians, Muslims and others. There is no discrimination on the
basis oI religion, caste or gender. The Goa civil code is largely based on the Portuguese civil
code oI 1867, with some modiIications based on the Portuguese Decrees on Marriage and
Divorce oI 1910, the Portuguese Decrees on Canonical Marriages oI 1946, and the
Portuguese Gentle Hindu Usages Decrees oI 1880.

It includes laws governing marriage and
divorce, succession, guardianship, property, domicile, possession, etc. Muslim
Iundamentalists opposed its enactment in the early 1980s but their attempts to introduce
Sharia law in Goa were ultimately met with deIeat by liberal Muslims who insisted on the
continuance oI the uniIied civil code. Former ChieI Justice Y.V. Chandrachud expressed
hope that the Goan Civil Code would one day 'awaken the rest oI bigoted India and inspire it
to emulate Goa.
There are two important aspects oI this code which assume great signiIicance in the context
oI codiIication oI Indian laws:
Civil registration oI marriage is mandatory. Around 98 per cent oI Goan marriages take
place under Community Property law by virtue oI which, each spouse automatically acquires
joint ownership oI all assets already in their possession as well as those due to them by
inheritance. These assets may not be disposed oI or encumbered in any way by one spouse
without the express consent oI the other.
The registration oI births and deaths is also mandatory. The children oI deceased parents
Iall in the category oI mandatory heirs. They cannot be disinherited whether male or Iemale,
except under extraordinary circumstances. II the deceased parent leaves no will, all
mandatory heirs are entitled to an equal share oI the estate oI the deceased. II the deceased
has made a will, he may only dispose oI 50 per cent oI the estate. This is called the 86;a
disp65ivel. The remaining 50 per cent must be divided equally among all mandatory heirs.
Such a provision ensures the just distribution oI assets among all children, whether male or
Iemale.




CODIFICATION
0NIF0RN CIvIL C0BE

22


The biggest obstacle in implementing the UCC, apart Irom obtaining a consensus, is the
draIting. Should UCC be a blend oI all the personal laws or should it be a new law adhering
to the constitutional mandate? There is a lot oI literature churned out on UCC but there is no
model law draIted. Many think that under the guise oI UCC, the Hindu law will be imposed
on all. The possibility oI UCC being only a repackaged Hindu law was ruled out by Prime
Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender
equality and comprising the best elements in all the personal laws.
27

The UCC should carve a balance between protection oI Iundamental rights and religious
dogmas oI individuals. It should be a code, which is just and proper according to a man oI
ordinary prudence, without any bias with regards to religious or political considerations.
Here is an overview oI the essentials oI the UCC:
MARR1AG AND D1VORC
The personal laws oI each religion contain diIIerent essentials oI a valid marriage. The new
code should have the basic essentials oI valid marriage which shall include:

(i) The new code should impose monogamy banning multiple marriages under any religion.
Polygamy discriminates against the women and violates their basic human rights. Thus,
monogamy should be imposed, not because it is the Hindu law, but because it adheres to
Article 21 oI the Constitution and basic human values.
28

(ii) The minimum age limit Ior a male should be 21 years and Ior a Iemale should be 18
years. This would help in curbing child marriages. Punishment should be prescribed Ior any
person violating this provision. Also, punishment Ior other persons involved in such an act,
like the relatives, should be prescribed which would have a deterrent eIIect on the society.

(iii) Registration oI marriage should be made compulsory. A valid marriage will be said to
have solemnised when the man and the woman sign their declaration oI eligibility beIore a
registrar. This will do away with all the conIusion regarding the validity oI the marriage.

(iv) The grounds and procedure Ior divorce should be speciIically laid down. The grounds
enumerated in the code should be reasonable and the procedure prescribed should be
according to the principles oI natural justice. Also, there should be a provision Ior divorce by
mutual consent.
SUCCSS1ON AND 1NHR1TANC

27
articles.timesofindia.indiatimes.com.
28
Ahmad a., Mohammedan Law, 22
nd
edn., Allahabad, Central Law Agency, 28.

0NIF0RN CIvIL C0BE

23

This area throws up even more intractable problems. In Hindu law, there is a distinction
between a joint Iamily property and selI acquired property which is not so under the Muslim
law. The Hindu Undivided Family (HUF), Iormed under the Hindu law, run businesses and
own agricultural lands. Under the UCC, this institution oI HUF, peculiar to the Hindus, has to
be abolished. There are also Ietters imposed on the extent to which one can bequeath property
by will under the Muslim law. Considering all these, the UCC should include:

(i) Equal shares to son and daughter Irom the property oI the Iather, whether selI acquired or
joint Iamily property. There should be no discrimination based on sex in the matters oI
inheritance. The provisions oI the Hindu Succession (Maharashtra Amendment) Act, 1994
can be taken as guiding principles wherein the daughter oI a coparcener shall by birth become
the coparcener in her own right in the same manner as a son and have the same rights in the
coparcenary property as she would have had iI she had been a son, inclusive the right to claim
by survivorship and shall be subject to same liabilities and disabilities as the son.
(ii) Provisions Ior inheritance oI the property oI mother, which she has selI acquired or
acquired through her Iather or relatives.
(iii) The provisions relating to will should be in consonance with the principles oI equity.
There should be no limitations imposed on the extent to which the property can be
bequeathed, the persons to whom such property can be bequeath and the donation oI the
property by will Ior religious and charitable purpose.
(iv) The essentials oI valid will, the procedure Ior registration and execution oI the will
should be provided Ior.
(v) Provisions Ior giIts should not contain any limitations, though essential oI valid giIt and
giIt deed should be speciIied.
MA1NTNANC
The maintenance laws Ior the Hindus and Muslims are very diIIerent. Apart Irom personal
laws, a non-Muslim woman can claim maintenance under Section 25 of Code of Criminal
Procedure. A Muslim woman can claim maintenance under the Muslim Women (Right to
Protection on Divorce) Act, 1986. Apart Irom maintenance oI wiIe, there are also provisions
Ior maintenance oI mother, Iather, son and unmarried daughter under the Hindu law. The
UCC should contain the Iollowing with regards to maintenance:
29

(i) A husband should maintain the wiIe during the marriage and also aIter they have divorced
till the wiIe remarries.

29
Pandey 1.N., The Constitutional Law of India, 46
th
edn., Allahabad, Central Law Agency,29.

0NIF0RN CIvIL C0BE

24

(ii) The amount oI alimony should be decided on basis oI the income oI the husband, the
status and the liIestyle oI the wiIe.
(iii) The son and daughter should be equally responsible to maintain the parents. The reason
Ior this being that iI she claims equal share oI the property oI her parents, she should share
the duty to maintain her parents equally.
(iv) The parents should maintain their children - son till he is capable oI earning on his own
and daughter, till she gets married.
Thus based on these Iundamental principles, an unbiased and Iair UCC can be Iramed which
will be in consonance with the Constitution.
WORR1NG OF UCC AND TH 1ND1AN SCNAR1O
How Iull prooI will be the UCC? Will there be more abuse and less obedience oI UCC? Will
UCC have negative eIIect on the society? Such questions are bound to be raised aIter the
implementation oI the UCC. All laws are Iormulated to be obeyed, but they are abused. This
does not mean that law should not be implemented. Similarly, there is a great possibility oI
the UCC being abused, but this should not eschew the Parliament Irom enacting the UCC; the
social welIare and beneIits resulting Irom the implementation oI UCC are Iar greater.
While explaining the reason Ior including Article 44 in the Directives Principles, it was
observed,
"When you want to consolidate a community, you have to take into consideration the beneIits
which may accrue to the whole community and not to the customs oI a part oI it. II you look
at the countries in Europe, which have a Civil Code, everyone who goes there Iorms a part oI
the world and every minority has to submit to that Civil Code. It is not Ielt to be tyrannical to
the minorities."
Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be
created in which all sections Ieel secure enough to sit together and cull out the most
progressive oI their personal laws. But this can be answered by an example oI Hindu law.
When the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as diIIerent religious
denominations oI Hindus, was notiIied, there was a lot oI protest. And the then Law Minister,
Dr. Ambedkar, had said that Ior India`s unity, the country needs a codiIied law. In a similar
Iashion, the UCC can be implemented, which will cover all the religions, whether major or
minor, practiced in India and any person who comes to India has to abide by the Code.

Not many know that a UCC exists in the small state oI Goa accepted by all communities. The
Goa Civil Code collectively called Family Laws, was Iramed and enIorced by the Portuguese
colonial rulers through various legislations in the 19th and 20th centuries. AIter the liberation
oI Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws
to the territory but made the exception oI retaining the Family Laws because all the
0NIF0RN CIvIL C0BE

23

communities in Goa wanted it. The most signiIicant provision in this law is the prenuptial
public deed regarding the disposal oI immovable and movable property in the event oI
divorce or death. During matrimony, both parents have a common right over the estate, but
on dissolution, the property has to be divided equally; son and daughters have the equal right
on the property. As the procedure involves compulsory registration oI marriage, this
eIIectively checks child and bigamous marriage.
The philosophy behind the Portuguese Civil Code was to strengthen the Iamily as the
backbone oI society by inculcating a spirit oI tolerance between husband and wiIe and
providing Ior inbuilt saIeguard against injustice by one spouse against the other.

Commenting that the dream oI a UCC in the country Iinds its realisation in Goa, Iormer ChieI
Justice oI India Y.V. Chandrachud had once expressed hope that it would one day "awaken
the rest of bigoted India in Mohammad Ahmed Khan v. Shah Bano Begum.
30


















30
AIR 985 SC 945.
0NIF0RN CIvIL C0BE

26

CONCLUSION

In 1955, Jawaharlal Nehru attempted codiIication oI Hindu rituals and customs as part oI his
reIormist vision. The process had already begun in the Constituent Assembly. A select
committee had been Iormed to draIt a new Hindu Code to systematize social practices. The
orthodox elements violently opposed this and recommendations oI the committee could not
be made into a law.
But Nehru was convinced about it and brought in the Hindu Code Bill in 955, which gave
birth to a host oI legislations including Hindu Marriage Act, 956. When the debate was
raging on the Hindu Code Bill in Parliament in May 1955, a valid question was raised by
many members including J B Kripalani, that is why only codiIy Hindu rituals and customs
and not those oI Muslims?
Kriplani charged government as well as Nehru oI being communal. He accused the Prime
Minister oI lacking in courage to bring in reIorms by codiIying the Muslim law.
Exactly 50 years later, the Supreme Court delivered the Shah Bano judgment, applying the
secular provision oI Section 125 oI Criminal Procedure Code to rule that Muslim women
could not be allowed to be rendered destitute by denial oI maintenance by their husbands
citing the customary laws oI the community.
31

But, as time passed, the Supreme Court continued to rule in 2001 in Danial Latifi case, in
2007 in Iqbal Bano case and in 2009 in Shah Bano case that Muslim women could not be
deprived oI the beneIit oI Section 125 oI Cr.P.C.
32

The December 4, 2009 judgment is most categorical. It said, "Even iI a Muslim woman has
been divorced, she would be entitled to claim maintenance Irom her husband under section
125 Cr.P.C aIter the expiry oI the period oI iddat as long as she does not marry."
AIter 63 years oI independence and 60 years oI the Constitution, our political leadership has
not been brave enough to introduce reIorms in the social practices oI Muslim community.
Ironically, Article 44 oI the Constitution says, "The State shall endeavour to secure Ior the
citizens a uniIorm civil code throughout the territory oI India." UniIorm civil code oI India is
a term reIerring to the concept oI a dominant Civil Law Code in India. A uniIorm civil code
administers the same set oI secular civil laws to govern all people irrespective oI their
religion, caste and tribe. This supersedes the right oI citizens to be governed under diIIerent

31
www.legalindia.in.
32
legalserviceindia.com/articles/ucc.htm.

0NIF0RN CIvIL C0BE

27

personal laws based on their religion or caste or tribe. Such codes are in place in most modern
nations.
Sadly, none oI the governments, Irom Nehru to Manmohan Singh, had the courage to
attempt UCC, and that too aIter repeated admonition and expression oI anguish Irom the
SC.So, the real social opposition each time has come Irom the Muslim community that sees
any attempt to bring a UCC as an attack on its religious rights. The debate in India seems to
have gone the way oI the secularists in this respect and the recent rulings by the Supreme
Court calling Ior a UniIorm Code has not witnessed the protests and alarms that took place
Iollowing the Shah Bano case in 1985. It is quite possible that the Muslim community sees a
UniIorm code as a Iait accompli aIter almost 60 years oI Indian independence.
33
The matter is
Iar more political than legal. Every time the issue has come up there have been angry words
Irom both sides oI the debate. Religious Iundamentalism must go, social and economic
justice must be made available to the Muslim women and other women and their dignity and
quality be ensured, basic human rights guaranteed and there should be an end to exploitation
oI Muslim women also II Muslim countries can reIorm Muslim Personal Law, and iI western
democracies have Iully secular systems, then why are Indian Muslims living under laws
passed in the 1930s? also between the Supreme Court`s mixed response and the legislature`s
wariness, the implementation oI a national common Civil Code seems to be a distant dream.
It is only enlightened public opinion that will help IulIil it. Communal divides, vote-bank
politics, staunch Iundamentalism are currently barriers to its realization but with time and
tolerance they can be overcome. What must be perceived as a matter oI deIining an
individual`s rights deteriorates instead, into a 'majority versus minority issue. The welIare
oI the community as a whole must be considered instead oI a particular class or sect. No
doubt, the realization oI a common Civil Code is a tough job, given the vast ideological
diversity. But a uniIorm 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 diIIerences and give eIIect to
this constitutional mandate which is 60 years overdue.








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BIBLIOGRAPHY

BOORS:
. Ratnaparkhi M.S., UniIorm civil code, 3
rd
edn., New Delhi, Atlantic Publication,
1997.
2. Bakshi P.M., The Constitution oI India, 9
th
edn., Delhi, Universal Law Publishing
co.,2009.
3. Pandey J.N., The Constitutional Law oI India, 46
th
edn., Allahabad, Central Law
Agency,2009.
. Menski W., Modern Indian Family Law, Surrey, Curzon Press, 2001.
. Deshta K., UniIorm civil code,3
rd
edn., Deep and Deep Publications, 1995.
6. Agarwala R.K., Hindu Law, 22
nd
edn., Allahabad, Central Law Agency, 2008.
7. Ahmad a., Mohammedan Law, 22
nd
edn., Allahabad, Central Law Agency, 2008.
8. Kusum, Family Law I, 3
rd
edn., Nagpur, Lexis Nexis, 2011.
. Basu D.D., Shorter Constitution oI India, Nagpur, Wadhwa, 2009.

WBS1T V1S1TD:
. www.legalsutra.com
2. legalserviceindia.com/articles/ucc.htm
3. http://upscportal.com/civilservices/Study-Notes/UniIorm-civil-code-vs-Right-to-
Religion
. www.legalindia.in
. jurisonline.in/2010/03/uniIorm-civil-code-an-unIulIilled-vision/
6. articles.timesoIindia.indiatimes.com
7. www.indiankanoon.org/doc/1406604