An eagle's view into the UCC

In the run-up to the 2019 Lok Sabha polls, the current ruling party made three big promises - abrogation of articles 370 and 35A, Ram Mandir in Ayodhya and Uniform Civil Code. Two of these promises have been fulfilled right or wrong, success or failure is a different topic altogether, this one awaits. Article 44, in part IV of our constitution, Directive Principles State Policy, talks about UCC. The articles in part IV of our constitution are not enforceable by courts, although they are binding on the state. There is a lot of buzz about this issue before the monsoon session of the parliament, hence it is important for us to know about this issue. This blog aims in helping people understand more about the topic and understand the intricacies.

About the UCC

UCC stands for Uniform Civil Code. To understand this let us simplify the words. What is a code? In this context, code means a group of "rules" related to a particular issue. For example, the Indian Penal Code contains a set of rules of what constitutes a crime and what doesn't. What is civil? In this context, civil refers to the family, property, contracts, etc. Uniform means the same for all. In the present day, there are different laws governing civil matters for different groups of people. For example, the Hindu code bill for Hindus, Muslim personal law for Muslims, different codes for tribals, and so on and so forth.

What broadly classifies as a civil matter

There are 2 categories in both, criminal and civil laws, that is, procedural and substantive. Since our focus is on civil, we'll talk about civil. In the procedural aspect, we have the Civil Procedural Code of 1908, and to a fair degree, the Indian evidence act, and the Oaths act. In the substantive part, civil matters include mainly matters of family, property, and contracts. Under family, there are matters of marriage, separation, divorce, maintenance, adoption, succession, inheritance, guardianship, etc. In civil matters, the family part holds 95 per cent of the contention with respect to UCC.

In ancient India, the legal system was based on the smritis and Vedas. In smritis, the manusmriti and yajnavalkya smriti. Once Buddhism and Jainism came, there were small changes, but the larger picture remained the same. In medieval India, during the Islamic rule, sharia law was followed and later on, it was Fatwa-e-alamgiri which was based on Sharia. In British rule, judicial reforms were brought in starting from the judicial reform by Warren Hastings in 1772. To sum things up, in civil law, if the person being tried was a Hindu, Hindu law was applied, if Muslim, Muslim law and if anyone else, British law was applied.

Social reforms in British India

Lord William Benedict was the 1st governor-general of India. Under the guidance of Raja Ram Mohan Roy, in 1829, he "made the practice of Sati or suttee illegal in all jurisdictions of India." Subsequently, in 1829, he banned the practice of female infanticide. This was the first time the British got themselves involved in "civil matters". The decade between 1850 and 1860 saw a lot of developments. The 2nd law commission was set up. Lord Dalhousie, under the guidance of Ishwar Chandra Vidyasagar, passed 2 acts pertaining to Hindu civil society, the Hindu widow remarriage act and the caste disabilities removal act.

In 1873, the raj passed the special marriage act. It was done for inter-religion and inter-caste marriages. This act basically says the parties renounce themselves from their religions and get married (later amended in 1954). The same act amended is used for court marriages in India even today. The British kept passing acts that reformed Hindu society, mainly acts like the Married women property rights act, Hindu inheritance act, and Hindu Women's right to property act, which was known as the Deshmukh act. The Deshmukh act was reformatory in nature and gave absolute rights (in some places) to women with respect to property, there were reforms for widows as well. These were reforms mainly for Hindu society. In 1937, the Raj passed an act named the Muslim personal law (Shariat) application act, which basically said matters pertaining to Muslim civil society, will be dealt only with Muslim personal law and nothing else.

The debate on the Hindu code bill

In 1941, The British set up a committee, the Hindu law committee under the leadership of BN Rao, to address the issues in the bills passed previously, mainly the Deshmukh act and the separation issues in the Hindu society. In 1944 the report was submitted and it basically said there needed to be more work done. BN Rao got an extension. The next report was submitted to the constituent assembly in 1947, a select committee was set up under the leadership of BR Ambedkar to discuss this. Ambedkar came up with a report, which addressed issues like Divorce, joint family property rights, polygamy, etc. These things were considered “revolutionary” in nature, and due to internal opposition in the assembly, the Hindu code bill didn't have consensus, Dr Ambedkar resigned from the post of law minister due to this. The members of the congress suggested  Pt. Nehru that the issue of the Hindu code bill must be fought as an election issue for the 1st election of the Indian democracy. Pt Nehru fought the election saying, if he comes to power, the Hindu code bill will be passed. He won the election with an overwhelming majority.

The Hindu code bill

The Hindu code bill was passed in 4 different acts- The Hindu marriage Act 1955, The Hindu Succession Act, Hindu minority and guardianship Act and Hindu Adoption and Maintenance Act 1956. Through these acts most of the “regressive” problems related to gender and caste were addressed and even if they weren't, they came up through amendments or court judgements.

Key points of the Hindu marriage act
1. Defined who is Hindu.
2. Defined who is included and who is exempted from the act.
3. Established monogamy. 

4. Establishes conditions for divorce.

Key points of the Hindu Succession Act
1. Women got property rights. (Absolute right, not limited estate like the Deshmukh act) 

2. Defines where a person gets absolute right and is bound to give property to their heir. 
3. Was amended in 2005 so that the daughter gets equal rights as the son.

Key points of the Hindu Minority and Guardianship Act
1. Defines who is a minor
2. The guardian for unmarried daughters and sons is the father, followed by the mother.
3. In illicit relationships, the primary guardian is the mother followed by the father
4, The guardian of the married daughter is the husband.

Key points of the Hindu adoption and maintenance act
1. Establishes a minimum age difference of 21 years.
2. Cant adopt kids of the same sex twice.
3. Defines maintenance, primarily says the husband is responsible lifelong for the maintenance of the wife and kids. 

We have now seen the laws with respect to Hindu society, we can say, most of the contentions have been solved and the laws have been codified. Now, we’ll look at the personal laws of minorities.

Christians
The main acts governing the personal laws in Christian society are the Chrisitan marriage act of 1872, the Indian divorce act of 1869, the Indian succession act of 1925 and the Guardians and wards act of 1890. These laws didn't have much debate or contention as the British were also from a Christian background, so they understood the society well and made laws. As society evolved and became more progressive, reforms came through court judgements and the Christian civil society also accepted them well.

Parsis
The main acts governing the personal laws in Parsi society are the Parsi marriage and divorce act of 1925, the Indian succession act of 1925 and the Guardians and wards act of 1890.

Muslims
Muslim personal law is governed by Sharia law. The British raj tried to “reform” all other religions except Islam for reasons unknown. Instead, they passed an act in 1937 which said the only law applicable for Muslims in personal law will be the Sharia law. The court system in Muslim personal law is not well defined, the power of solving disputes is given to a person named “Qazi” who is a scholar in Sharia law. In 1939, the dissolution of Muslim marriage act was passed, which was seen as a progressive step, this act gave Muslims provisions to apply for divorce in courts.

Key points about Muslim marriage
1. Marriage is seen as a contract.
2. Polygamy is allowed. (Under certain conditions)
3. Nikka halala is practised in re-marriage.

Key points about Muslim divorce
1. If the husband says the word talaq thrice, the couple would get divorced. (Till recently until another landmark judgment was passed)

Key points about Muslim maintenance
1. After divorce, the husband is required to pay the mehar promised, and the wife is entitled to 3 months of maintenance.

Key points in Muslim succession
1. Women have absolute rights.
2. 1:3 division between daughter and son.
3. Concept of shuffa followed.

Judicial aspect of UCC

The Indian constitution guarantees religious freedom under articles 25, and 26. They are not absolute, they do have reasonable restrictions. With time, the court established the test of essential practices. The same Indian constitution guarantees, equality, and prohibits discrimination on grounds of sex, religion, caste, etc in articles 14 and 15 and guarantees dignified life under article 21. And the constitution also endeavours to have a UCC under article 44, in the directive principles of state policy. There is going to be a tug of war between articles 14,15,21,44 and articles 25,26. This opens a huge scope for an interesting debate on what should come first.

Narasu Appa Mali case 1951

Facts
1. In this case, a Hindu man convicted under a Hindu bigamy prohibition law complained that the law violated his fundamental right to equality under the recently adopted Constitution.
2. Since the law prohibited Hindu men from committing bigamy, but not Muslim men.

Court held
A two-judge bench of the Bombay High Court held that personal laws could not be invalidated by courts even if they are found to be opposed to fundamental rights,
2. Since personal laws were not “laws in force” as defined by Article 13 of the Constitution.
3. Thus, personal laws were immune from constitutional challenges. 


Shah Bano Case, 1985

Facts

1. The appellant was an advocate by profession and was married to the respondent in 1932. Out of wedlock, three sons and 2 daughters were born.
2. The respondent was hurled out of her matrimonial home by the appellant. After which the respondent filed for maintenance in a court of the magistrate.
3. Subsequently, the appellant divorced the respondent and denied her maintenance on the assertion that as the respondent ceases to be her wife, she cannot claim maintenance.
4. The Magistrate ordered the appellant to pay rupees 25 per month as maintenance and the respondent filed for revision in the High Court.
5. The High Court increased the amount to rupees 125 per month in favour of the respondent aggrieved from this the appellant filed the present appeal.

Judgment
The court basically upheld maintenance for Shah Bano, and said the religion of the person should not matter under CrPc 125. The judgment also directed Mohd. Ahmad Khan to pay Rs 10,000 to Shah Bano for the court expenses.

After the judgment

The political climate wasn't the best in India. Indira Gandhi had passed away recently and Rajiv Gandhi had just taken over as PM. He feared backlash from the Muslim community, and he decided to reverse the judgement and passed an act, The Muslim Women (Protection of Rights on Divorce) Act, 1986.
    

Daniel Latifi Case,1991

In 1991, the counsel of Shah Bano challenged the 1986 act, the SC judgement interpreted the act in such a saw, that the Muslim man has to make arrangements for maintenance within the period of iddat so as to ensure a stable life for his ex-wife. Upon failing to do so, he can be punished under CrPC 125.


Ms Shayara Bano case, 2015

Ms Shayara Bano filed a petition in the Supreme Court challenging the practices of triple talaq, Nikah halala and polygamy. The supreme court heard only the issue of triple talaq and gave a 3:2 verdict, directing the parliament to pass an act prohibiting triple talaq. The government passed The Muslim Women (Protection on Rights of Marriage) Act in 2019. 

Adoption

Adoption wasn't defined in the guardians and wards act. And it was not also allowed in non Hindu religions. The government passed an amendment act (in 2006) to the juvenile justice(care and protection of children)act, 2000. It defined adoption. After the Shabena Hashmi case, the SC ruled in her favor saying, people of all religions have the right to adopt and be adopted through the JJ act.


Current status of UCC

Currently, in India, there are common laws, such as the special marriage act, the JJ act, the Indian succession act, etc. They coexist with religious personal laws. In the state of Goa, there is a well-defined UCC, they were ruled by the Portuguese, and this is one of the main reasons. The Goa model is progressive and doesn't differentiate citizens based on religion. In 2022, Uttarakhand CM set up a committee under the leadership of a Retd supreme court judge to come up with a UCC draft. The report is expected soon.