1

WOMEN AND LAW PSDA

TOPIC: UNIFORM CIVIL CODE TOWARDS GENDER

JUSTICE

Submitted to: Ms Ankita

Submitted by: Muskan Ranga
Class: 7- C
Enrolment No.: 12517703818
PHONE NUMBER: 8571864238
 2

INTRODUCTION

Gender equality is one of the objectives of the Constitution of India which envisages equal rights
of women with man. Gender equality is considered as basic human right unless women are
allowed to live with dignity in the society1. The Constitution of India enumerates various
provisions to ensure gender equality in Part III as well as in Part IV. Part IV provides for
Directives Principles of State Policy and these directives are fundamental in the governance of
the country and it shall be the duty of the State to apply these principles in making law.
The State so far made laws to implement various Directive Principles. Some of the Directive
Principles which aimed at gender equality such as Art.39 and 42 has been implemented by
enacting legislation but the state however , even after 66 years of the commencement of the
Constitution of India have not taken any step to implement the Directive Principles of State
Policy provided under Art.44 of the Constitution of India. Art.44 provides for the Uniform Civil
Code throughout the territory of India.
Uniform Civil Code is a proposal to replace the personal laws which govern the different
religious communities in India with a common set of rules governing marriage, divorce,
inheritance, adoption and maintenance.
A personal law in India is based on religion, tradition, scripture and culture. Personal laws
contain some provisions which are unjust to women e.g. a Muslim husband can marry four
wives, her right to receive adequate maintenance from the husband after divorce is not
recognized. Many provisions of Muslim personal law are discriminatory towards women and
based on patriarchal ideology. Personal laws relating to Hindu was also discriminatory, however,
with the codification of Hindu Personal law many reforms has taken place in order to provide
equal right to Hindu women. But it cannot be said that the Hindu Personal law has completely
been reformed because in different parts of India some customary law prevails. This customary
law is based on caste, belief and tradition and plays a vital role in regulating family affairs which
are derogatory towards right of women. The state should make an endeavor to reform personal
laws of the communities in India in order to ensure gender equality. Reform of the personal law
should be made in conformity of various Fundamental Rights of the Constitution which seeks to
promote gender equality and social justice2.

1
Sathya Narayan, selected works of S.P.Sathe,Social Justice and Legal Transformation, Vol.3,Oxford
University Press,2015,p.251.
2
Art.14, 15 and 16 of the Constitution of India.
 3

What is ‘Personal Law’?

The Personal law is defined as a law that applies to a certain class or group of people or a
particular person, based on the religions, faith, and culture. It is one of the unique components of
Indian legal system.India is a multicultural society where we find different religious groups have
their own faith and belief.Their belief is decided by the sets of laws. And these laws are made by
considering different customs followed by that religion. So in India, different religious groups
have their seperate personal laws. Indians are following these laws since the colonial period.
The personal laws tells the stories about the culture, behaviour, beliefs and values ( of the
concerned religious group ) that are considered as the ‘social constructs’ which shape the views
of the people of the concerned group/ groups, about their antecedents and roots. In India such
‘social constructs’ has received legal recognition. Over centuries, through invasions and
migrations various religious groups like Islam, Parsi, and Christians have made India their home.
The invasions and migration have led to the advent of various personal laws in India.

Status of Personal Law in India

● Personal law subjects like marriage, divorce, inheritance come under Concurrent list.
● Hindu personal laws have been by and large secularized and modernized by statutory
enactments.

The Hindu personal laws (that apply also to the Sikhs, Jains and Buddhists) have been codified
by the Parliament in 1956

This Code Bill has been split into four parts:

1. The Hindu Marriage Act, 1955

2. The Hindu Succession Act, 1956
3. The Hindu Minority and Guardianship Act, 1956
4. The Hindu Adoption and Maintenance Act, 1956

● On the other hand, Muslim personal laws are still primarily unmodified and traditional in
their content and approach.
○ The Shariat law of 1937 governs the personal matters of all Indian Muslims in
India.
 4

○ It clearly states that in matters of personal disputes, the State shall not interfere
and a religious authority would pass a declaration based on his interpretations of
the Quran and the Hadith.

● Apart from it, Christians and Jews are also governed by different personal laws.

Why did we need personal laws in India?

The history of personal laws in India is rooted in India’s colonial past. Both Hindu and Muslim
Personal Laws were brought in the early 20th century to protect the private realm of the
household from the colonial state.

Issues/ problems of personal laws in India :

In India, the “Hindu” and “Mohammedan” laws were largely retained by the Constitution at the
time of independence. Consequently, personal laws as they exist today have largely been drawn
from the customs that were favourable to the native patriarchy.
Taking this argument forward, Nalini Rajan compared two seminal cases of personal laws being
challenged at court—Rakhmabai (a Hindu woman) and Shah Bano (a Muslim woman)—to
suggest that “owing to the complicity between religion and patriarchy”, reforming personal laws
may not be a tenable idea unless it is driven by women. Even after independence, when Hindu
Personal Law abolished polygamy, there was aviolent public backlashwhere Hindu men
threatened to convert to Islam because they felt that they were being stripped of their “customary
rights.”
Feminists’ arguments against the Personal Laws : Religious Texts Vs Gender
Justice
Should we be discussing the significance of Koranic or Hindu sacred texts in India or should we
be discussing equity and gender justice today? While feminists are wary of vesting too much
faith in legal state institutions for the sake of ensuring gender justice in society, they are equally
suspicious of political parties’ capacity to treat communities with equal respect and concern. 3

Does India Need a Uniform Civil Code?

Keeping the problems in mind the question may arise, whether India at all needs a Uniform Civil
Code. What is after all a ‘Uniform Civil Code’?

3
https://www.toppr.com/guides/business-laws-cs/introduction-to-law/principle-
sources-of-indian-law-personal-law
 5

Uniform Civil Code : Uniform Civil Code (UCC) is defined in our Constitution under Article 44
of Directive Principles of State Policy. It states that it is the duty of the state to secure for the
citizens a Uniform Civil Code throughout the territory of India. In other words we can say that it
means one country one rule. Let us find out more about Uniform Civil Code, its pros and cons.
● The Uniform Civil Code place a set of laws to govern personal matters of all citizens
irrespective of religion is perhaps the need of the hour and ensuring that their fundamental and
Constitutional rights are protected.
●It is the common set of governing rules for all citizens of India which refers to replace the
personal laws (based on religious scriptures and customs). These laws are famous from public
law and cover marriage, divorce, inheritance, adoption and maintenance. In fact Goa is the only
state which has a common family law and 1954 Special Marriage Act allows any citizen to marry
outside the realm of any special religious personal law.

Debate on Uniform Civil Code In India :

Since UCC is incorporated in DPSP they are neither enforceable in the court nor any political
discrepancy been able to go beyond it because minorities mainly Muslims felt that their personal
laws are violated or abrogated by it. Then a series of Bills were passed to codify Hindu laws in
the form of Hindu Marriage Act, 1955, The Hindu Succession Act, 1956, The Hindu Minority
and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, are
collectively known as Hindu Code Bill (covers Buddhist, Sikhs, Jains as well as different
religious denominations of Hindus) which allows right to divorce and inheritance to women,
made caste irrelevant to marriage and abolished bigamy and polygamy.
There are 3 aspects of UCC which not only affect our nation but are also enough to divide the
nation in to two categories due to which to take decision on it becomes a little difficult. These
three aspects are political, social and religious. It is a matter of great concern that politically, the
nation is divided as BJP propagates the implementation of Uniform Civil Code (UCC) and the
non BJP like Congress, Smajwadi Party who don’t want to implement UCC. Socially, the literate
persons of the country who have analysed the pros and cons of UCC and on the other hand,
illiterate who have no idea about it and being in hands of political pressure will have to take
decision. And religiously, there is a gap between the Hindus that are in majority and Muslims ,
the minority community.
It is in the year in 1985, the Supreme Court for the first time directed the Parliament to frame a
UCC. That is during Shah Bano case .

Uniform Civil Code: The Need of the Hour for Gender Justice in India
 6

Though the proposal of ‘Uniform Civil Code’ is condemned as unconstitutional as it goes against
Individual’s freedom (Article 25 of the Constitution ), it is the need of the hour, so far India’s
larger societal interest is concerned.
CUU as a Common Civil Code would put in place a set of laws to govern personal matters of all
citizens irrespective of religion.In fact, it is the cornerstone of true secularism. Such a
progressive reform would not only help end discrimination against women on religious grounds

but also strengthen the secular fabric of the country and promote unity. There is a need to reform
our social system, which is full of inequities, discriminations and other things which conflict
with our Fundamental Rights. As we know that there is a Criminal Code which is applicable to
all people irrespective of religion, caste, tribe and domicile in the country but there is no similar
code related to divorce and succession which are governed by Personal laws. It is also expected
that UCC will successfully deal with the problem of Honour Killing in India Which is being
practiced by extra constitutional bodies like Khap Panchayats.We have seen that the success of
the contentious bill to ban instant triple talaq which is now punishable.

Uniform Civil Code in Goa :

After Independence, State of Goa has adopted the Portuguese Civil Code which enforced a UCC
for all its citizens. Under this code, Married couple holds joint ownership in all assets owned
and acquired by each spouse. Even Parents can’t disinherit their children entirely at least half of
the property must be passed on to them. Muslim persons who have registered their marriage in
Goa are not allowed to practice polygamy.

Merits of Uniform Civil Code :

- To provide equal status to all citizens irrespective of their religion, class, caste, gender etc.
- To promote gender equality. UCC will bring both men and women at par.
- To accommodate the aspirations of the young population and to utilize their full potential
towards nation building.
- All Indian citizens are equal before the court of law. That is the criminal laws and other civil
laws except personal laws are same for all. So, UCC is necessary to promote the national
integration.

Demerits of Uniform Civil Code :

- Due to diversity in India it is somewhere tough to come up with a common and uniform set of
rules but our Government is trying to come up with common rules.
 7

- Several communities, mainly minority communities perceive Uniform Civil Code as an

encroachment on their rights to religious freedom.
- In personal matters, interference of state. As the constitution provides for the right to freedom
of religion of one's choice (Article 25).But with the codification of uniform rules and it
compulsion may reduce the scope of the freedom of religion.4

Judicial Opinion and Uniform Civil Code

The judiciary in India has taken note of the injustice done to the women in the matters of many
personal laws. It has been voicing its concern through a number of judgments indicating the
necessity to have uniformity in personal matters of all the citizens. In the case of Mohd. Ahamed
Khan vs. Shah Bano Begum AIR 1985 SC 945 pertaining to the liability of a Muslim husband to
maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme
Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular
in character and is applicable to all religions.

In Ms. Jordan Deigndeh vs. S.S. Chopra, D Chinappa Reddy, J. speaking for the court referred to
the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present
case is yet another event which focuses on the immediate and compulsive need for a uniform
civil code. The totally unsatisfactory state of affairs consequent on the lack of uniform civil code
is exposed by the facts of the present case.

Again in Sarala Mudgal vs Union of India AIR, 1995 1531, a division bench of the Supreme
Court consisting of Kuldip Singh and R.M. Sahai, JJ strongly advocated the introduction of a
Uniform Civil Code in India. In this case the Supreme Court held that conversion of a Hindu
male to Islam only for the purpose Of contracting bigamous circumvents Section 494 of Indian
Penal Code. Such marriages have been declared as bigamous and void by the court. The court
after referring to various precedents on the point, categorically held that till uniform civil code is
achieved for all the Indian Citizens, there would be an inducement to a Hindu husband who
wants to enter in to second marriage while the first marriage is subsisting to become a Muslim.
Here the Court was pointing out the injustice done to the first wife, legally wedded.

The Bench noted the failure of successive governments till date, to implement the constitutional
mandate under Article 44 of the constitution of India. It was suggested that the personal laws of
the minorities should be rationalized to develop religious and cultural amity preferably by
entrusting the responsibility to the Law Commission and Minorities Commission. The Bench
further directed the Government of India to file an affidavit indicating the steps taken and efforts

4
https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-
necessary-for-india-1477037384-1 ( Sikha Goel , 7TH August 2019 )
 8

made to have a fresh look at Article44 in August, 1996. However, the latter direction was treated
as “obiter dicta” by the court subsequently.

In a recent judgment, Lily Thomas vs. Union of India, AIR 2000 SC 1650, while dealing with
the validity of the second marriage contracted by a Hindu husband after his conversion to Islam,
the Supreme Court clarified that the court had not issued any directions for the codification of a
common Civil Code and that the judges constituting the different Benches had only expressed
their views in the Facts and circumstances under these cases. It appears that the Apex Court in
India, which showed great judicial activism initially with regard to uniform civil code, has taken
a backward step with this clarification.5

Conclusion : To bring UCC is a sensitive and tough task but not impossible

Though Sudden possibility of a UCC by no means seems to be an easy task in India still it does
not appear as unachievable .It is the need of the hour that , more aspects of personal laws (
irrespective of religions ) are likely to be taken up for scrutiny which marks the incremental
progress towards UCC.
Thus it is clear that, Article 44 states that the State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. This provision was made to promote unity
and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu
laws of marriage, succession, etc., have been drastically changed in the first decade of the
commencement of the constitution but there has been resistance from Muslim community in this
respect and for avoiding any resentment on their part political parties in power remained
reluctant to enforce a Uniform Civil Code. The present situation is open to misuse and is
inhuman and unjust for it permits inhuman and undignified treatment to women by providing
legal cover to polygamy. Justice Kuldeep Singh, in his leading judgment in Sarala Mudgal vs.
Union of India (1995) 3SCC 635, rightly observed that Article 44 is based on the concept that
there is no necessary connection between religion and personal laws. Marriage, succession and
the like matters of a secular character cannot be brought within the guarantee of religious
freedom in articles 25-28. Practice of polygamy has been treated as injurious to public morals in
USA and many Islamic countries have also abolished polygamy. The Court, therefore, requested
the Government of India to secure Uniform Civil Code for all citizens of India. No gender justice
could be rendered in its comprehensive sense, unless we have a uniform civil code containing the
best provisions taken from al the religions, with the sole aim of doing gender justice. Unless the
women, irrespective of their religious affiliation have been conferred equal rights on par with
men in personal matters, the constitutional mandate of right to equality of status and opportunity
cannot be implemented. However, adequate care should be taken to see that only the rights are

5
http://www.legalservicesindia.com/article/1832/Uniform-Civil-Code-Towards-Gender-Justice.html
 9

made uniform and not the rituals which are inherent part of the culture and religion as otherwise
it would violate the basic structure of the constitution viz. secularism.