UNIFORM CIVIL CODE: AN ELUSIVE NOTION

In India, we have different set of laws for various religious communities relating to personal matters like marriage, divorce, adoption, maintenance and property known as personal laws.  UNIFORM CIVIL CODE is the proposal to replace the PERSONAL LAWS  of each religious community in India with a common set governing every citizen irrespective of religion.  Article 44 of the Constitution exhorts the State to endeavour to secure for the citizens a UNIFORM CIVIL CODE throughout the territory of India. However, even a cursory glance through the Hindu Law (applicable on about 81% Indian population) and Mohammedan Law (applicable on largest minority i.e. Muslims constituting about 15% of Indian population) reveals that these laws vary in myriad ways both in theory and practice as applicable on people belonging to different caste, race, sects etc within a religious community. 

Notwithstanding having codified enacted Hindu laws (on inheritance, succession, adoption, marriage, divorce etc), customs/usages having force of law (as saved by said laws) govern different castes among Hindus as discernible from some examples given below:

1.   The Section 3 (g) of Hindu Marriage Act, 1955 enumerating the “Degree of Prohibited Relationship” prohibits the marriage with a widowed bhabhi. However, Kareva marriage (known as latta or chaddar udhana in Haryana) is prevalent in certain castes among Hindus and same has been saved by Section 5(iv) of HMA, 1955 (ie giving primacy to custom/usage). The legal position qua Hindu Marriage may be summed up as “stricter enacted law gives way to liberal custom”.

2.   Section 29(2) of HMA, 1955 saves customary divorce prevalent in certain castes.

3.   Under Mitakshara Law a son (although now daughter also) can ask for partition of ancestral/HUF property from the father during his lifetime.  However, customary law in agriculturist communities among Hindus in northern India does not recognize such right of a son.

4.   Conditions governing adopted child and adoptive person as prescribed by Sections 10 & 11 of the Hindu Adoption and Maintenance Act, 1956 are subject to customs or usages applicable to parties.

Likewise, the Sunni and the Shia schools of Mohammedan Law  do have important points of differences on the matters of Marriage,  Talaq, Dower, Maternity, Guardianship, Maintenance, Gift, Waqf, Pre-emption, Wills, Inheritance e.g.  

1.    Among the Shias temporary marriage (Muta) is lawful but not so among the Sunnis.

2.    The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition.

3.    Talaq under Sunni  laws may be effected orally or by a written document. Under Shia law a Talaq must be pronounced orally in the presence of two witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapacitated. Most importantly, Shia Law does not recognize Talaq-ul-Biddat (Instant Triple Talaq).

Uniform Civil Code may indeed be a good proposition. Nonetheless, it's immensely pertinent to mention herein that The Hindu Marriage Act, 1955 clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto. Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal. However, ultra sensitive disposition of certain people among Hindus especially in northern India over the issue of same gotra/same village/bhaichara/ghwand marriages sometimes even leading to bloodshed  (Honour Killings) although Hindu Marriage Act, 1955  unequivocally permitting such marriages since 1955 shows that every good idea is not necessarily practicable and acceptable to all.

Hence, instead of chasing after an elusive and politically loaded notion of UNIFORM CIVIL CODE, need of hour is to remove the vices (gender discriminations, archaic practices etc) from the different personal laws governing the different religious communities and to modernize them in sync with  the demand and challenges of the modern age to attain UNIFORMITY OF RIGHTS /EQ UALITY OF LAWS (distinguishable from uniformity of laws)  as far as possible in tune with FRs enshrined in part 111 of the Constitution.