Uniform Civil Code- has time changed now?
The government’s request to the Law Commission for a report on the uniform civil code comes on the trail of many related developments over the past several years. Last year the Supreme Court had said that divorced Muslim women were legally entitled to maintenance from their former husbands under Indian law. The Supreme Court had also nudged the Centre, asking it to take a quick decision on the code. Before that, in 2011 the Delhi High Court had turned down a Muslim man’s appeal that he could not be compelled to pay maintenance to his former wife because the law in question did not apply to the Muslims.
The Supreme Court has reminded the Centre thrice of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. Similar sharp reminders from the court also came in the past, but the ruling orthodoxy in all religions resisted the idea.
The Muslim community, by and large, seems to be hostile to the idea of the civil code and wishes to preserve its own personal law. In this atmosphere, it would not be advisable to enact a UCC, optional or otherwise, though such a code is desirable, until a consensus evolves. However, not all opponents of the UCC are opposed to reform of their personal law. Many progressive and forward-looking Muslims say that not only is their law as practised in India unfair to women, it is contrary to the tenets of Islam.
Not only Muslim Personal Law but also personal laws of other communities are pro-male. Under Hindu law a woman cannot inherit ancestral property. If she is abandoned by her husband, she cannot claim maintenance from her natal family either. A Hindu woman cannot adopt a child in her name. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to determine their share.
Nor is the position of women any better under Muslim law. While monogamy is the rule of law for a woman, the husband is entitled to have four wives. He can dissolve the marriage at any time. The wife, on the other hand, can divorce only with her husband’s consent. Under law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and no maintenance after the iddat to a woman are its other disturbing aspects.
Similarly, the Christian laws on marriage, divorce, maintenance and succession appear to be similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for mutual divorce. In statutes like the Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year. Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased kids.
In attempting to reform and codify the Hindu Law, the idea was that if it succeeded, other communities would follow suit, but this didn’t happen. This does not mean that existing personal laws should remain unaltered. While the judiciary’s role in attempting to rectify gender and other biases in community-specific legislation is welcome, the legislature cannot escape its responsibility of law making.
These developments are to be seen in the overall context of the Constitution’s Directive Principles of State Policy, which enjoins upon the State to have a uniform civil code. But there are some issues connected with this. When the Constitution came into force, while separate electorates were abolished in pursuance of the goal of national integration, enough safeguards were kept for protecting religious and linguistic minorities and their religious and cultural rights. With that in view, successive governments at the Centre remained aloof from this. Another thing to be kept in mind is that having the uniform civil code does not concern the largest minority, the Muslims, alone. There are communities that have their own civil laws and customs on marriage, divorce, adoption, maintenance and succession.
But now there are visible signs of change, with advocacy groups of various religious communities asking for a uniform civil code. The government, however, should move cautiously in the matter because this is after all a touchy subject and so can be emotive.
The government’s request to the Law Commission for a report on the uniform civil code comes on the trail of many related developments over the past several years. Last year the Supreme Court had said that divorced Muslim women were legally entitled to maintenance from their former husbands under Indian law. The Supreme Court had also nudged the Centre, asking it to take a quick decision on the code. Before that, in 2011 the Delhi High Court had turned down a Muslim man’s appeal that he could not be compelled to pay maintenance to his former wife because the law in question did not apply to the Muslims.
The Supreme Court has reminded the Centre thrice of its obligation to enact a Uniform Civil Code (UCC) as enshrined in Article 44 of the Constitution. Similar sharp reminders from the court also came in the past, but the ruling orthodoxy in all religions resisted the idea.
The Muslim community, by and large, seems to be hostile to the idea of the civil code and wishes to preserve its own personal law. In this atmosphere, it would not be advisable to enact a UCC, optional or otherwise, though such a code is desirable, until a consensus evolves. However, not all opponents of the UCC are opposed to reform of their personal law. Many progressive and forward-looking Muslims say that not only is their law as practised in India unfair to women, it is contrary to the tenets of Islam.
Not only Muslim Personal Law but also personal laws of other communities are pro-male. Under Hindu law a woman cannot inherit ancestral property. If she is abandoned by her husband, she cannot claim maintenance from her natal family either. A Hindu woman cannot adopt a child in her name. The wife of a Hindu cannot be her husband’s coparcener. The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to determine their share.
Nor is the position of women any better under Muslim law. While monogamy is the rule of law for a woman, the husband is entitled to have four wives. He can dissolve the marriage at any time. The wife, on the other hand, can divorce only with her husband’s consent. Under law, the share of a male heir of the same degree is twice that of a female. Polygamy, unilateral divorce and no maintenance after the iddat to a woman are its other disturbing aspects.
Similarly, the Christian laws on marriage, divorce, maintenance and succession appear to be similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for mutual divorce. In statutes like the Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year. Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased kids.
In attempting to reform and codify the Hindu Law, the idea was that if it succeeded, other communities would follow suit, but this didn’t happen. This does not mean that existing personal laws should remain unaltered. While the judiciary’s role in attempting to rectify gender and other biases in community-specific legislation is welcome, the legislature cannot escape its responsibility of law making.
These developments are to be seen in the overall context of the Constitution’s Directive Principles of State Policy, which enjoins upon the State to have a uniform civil code. But there are some issues connected with this. When the Constitution came into force, while separate electorates were abolished in pursuance of the goal of national integration, enough safeguards were kept for protecting religious and linguistic minorities and their religious and cultural rights. With that in view, successive governments at the Centre remained aloof from this. Another thing to be kept in mind is that having the uniform civil code does not concern the largest minority, the Muslims, alone. There are communities that have their own civil laws and customs on marriage, divorce, adoption, maintenance and succession.
But now there are visible signs of change, with advocacy groups of various religious communities asking for a uniform civil code. The government, however, should move cautiously in the matter because this is after all a touchy subject and so can be emotive.
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