Introduction:
India is one of the strongest democratic countries in the world, having a distinctive community and tradition. However, it stands as a secular state, guaranteeing its citizen fundamental rights under part III of the constitution. Article 25 and 26 of the constitution guarantees every citizen freedom to religion and on the other hand constitution states in Article 44 for having a uniform civil code under part IV (Directive Principle of State Policy) to gradual establish a legal uniformity in India. Irrespective of caste, gender and domicile code of criminal procedure applies to all. However, in case of divorce, successions etc there is no similar code governing the entire population but in such respect, the people are governed by personal laws. Personal laws are based on various sources and philosophy. Different religion has different personal laws and their application, bringing people under one roof whom all are governed by different personal laws are one of the biggest constraints. Uniform civil code defined in article 44 governs with the same set of civil laws, irrespective of religion, caste, and tribe. According to the framers of the constitution, some amount of modernization can be made according to the need of society. Dr B.R. Ambedkar truly believes for having a uniform civil code, but due to opposition from members of the drafting committee uniform civil code get its status as a directive principle of state policy. Directive Principle of state policy is not enforceable by the court so there is no remedy through a judicial proceeding if it is infringed but they are treated as fundamental in the governance of the country and it is the duty of the state while framing the laws this principle has to be applied. The growing role of courts categorized the reality of contemporary democratic society, to secure the value and interest as a law while utilizing the judicial process.
Muslim Personal laws
In India, various religions including Islamic religion have their laws which governed cases related to marriage, divorce, succession, adoption and many others. In 1937 British government enacted the Shariat Application Act 1937 which after independence came to known as Muslim Personal Law (Shariat) Application Act, 1937. Divorces in Muslim Law are practised by uttering the word talaq thrice which results in an increasing number of divorces among Muslims. This custom was acted against the Muslim women therefore many women activist suggested to abolish it. In 2019 triple talaq was abolished by the parliament. In Shayara Bano v. Union of India[1] Supreme Court declared the practice of triple talaq unconstitutional. The practice of polygamy among Muslims is allowed under Muslim personal law. In India practice of polygamy is generally considered as a social evil. In Itwari v Asghari[2], Allahabad High Court held that Muslim man cannot compel the first wife to live with him in case he is marrying again. For the spouse, the primary concern was the matter related to maintenance. Muslim women can claim maintenance under the Muslim Women Protection Act 1986. In Mohd. Ahmed Khan v. Shah Bano Begum[3], Supreme Court held that under section 125 of CRPC every woman is entitled to maintenance after being divorced by her husband which means Muslim women are also entitled under section 125 of CRPC and also stated that even after the completion of iddat period Muslim women can claim maintenance. However, In Denial Latifi vs. Union of India[4] the court upheld the constitutional validity of the Muslim Women’s Protection Act, 1986.
The practice of adoption is not entertained under the Muslim Personal Law. A Muslim couple legally cannot claims to be a parent or adoptive child. But in the case of Shabnam Hashmi v Union of India[5], the Supreme Court declares that as per Juvenile Justice Act right to adopt a child by a person will prevail over the personal law. Under Muslim personal law, marriage is a contractual obligation, it solemnized when one party make a proposal and the other accepts it. According to section 3 of Muslim Marriages Registration Act 1981 within the period of 30 days of marriage or nikah every such marriage should be registered under this Act.
Uniform Civil Code
Indian Constitution states in Article 44 that “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”[6] State is bound by the duty to provide its citizen with a uniform code throughout the territory of India. We can say in another word that one country one rule. For all citizens, a set of common personal law will be provided under a uniform civil code. In the colonial period codification of laws was done. The necessity for the codification of Indian laws was mentioned in the Lex Loci Report of October 1840 which emphasized on codifying the laws relating to crimes, evidence, contract etc, though due to some reasons it was recommended by the panel that personal law of Hindus and Muslims should not be codified. To deal with crime secular law codified by the British ruler but few attempts were made to codify the personal laws. During the post-colonial period, few members including Dr BR Ambedkar of the drafting committee were convinced for having codified laws but as the issue was sensitive it could not happens. One of the main problems while implementing a uniform civil code is the relationship between various religious personal laws and constitution. Right to equality and prohibition of discrimination any ground is given by the constitution. However, personal laws prevailing in India have a different effect on various religious communities and such community has different personal laws governing them. As the constitution doesn’t directly mention the word religious personal law anywhere but we can indirectly imply it in Article 44.
The Need for the Uniform Civil Code
One of the most controversial issues in the present era is the implementation of a uniform civil code. To a large extent, Muslims are opposing the implementation of a uniform civil code. If uniform civil code is implemented Muslim law will be the law who would have to undergo a drastic change. To promote secularism, right now we have secularism in a certain area not all. Uniform civil code means there will be single law which will govern all the citizen of India whether they are Hindu, Muslim, Sikh, Parsi etc. In other words, one law for the whole country. All citizen of India shall be traded similarly. Article 14 of the constitution also provides this that every citizen is equal before the law. E.g.: currently the situation is like Muslims can have four wives at a time but if the same act is done by the Christian, Hindu or citizen of any other religion he will be prosecuted for the same. To ensure that Indians are treated alike there shall be a uniform law for all Indians. Our society is patriarchal and misogynistic, follows the rules made hundreds of years ago which led to subjugation and mistreatment of Indian women. In modern society everything is changing, uniform civil code will help India in becoming a developed country. In Md. Ahmed Khan v. Shah Bano Begum[7] Facts of this case were like after the pronouncement of triple talaq by the husband maintenance was claimed from the husband by his wife (Shah Bano). Supreme Court held that every divorced woman have the right under section 125 of CRPC to claim maintenance from her husband after the completion of a period of iddat but at that time also article 44 was not highlighted. In Sarla Mudgal v. Union of India[8] the main question was that whether by adopting Islam can Hindu husband solemnize a second marriage. The court held that marriage under Hindu Marriage Law would not be dissolved if someone converts into Islam and marries again, under Hindu Marriage Act only Hindu marriage can be dissolved.
Judicial Activism
For the enforcement of uniform civil code apex judiciary, time to time has responded favourably even in the case of Sarala Mudgal, Vs. Union of India[9] was considered as a pointer to unwarranted and uncalled ‘Judicial Activism’. Directive Principle of state policy is not enforceable by the court so there is no remedy through a judicial proceeding if it is infringed but they are treated as fundamental in the governance of the country and it is the duty of the state while framing the laws this principle has to be applied. The state of Bombay vs. Narasuappa Mali[10] was the first case where article 14, 15, and 25 were the ground on which legislative provision of old Hindu law was challenged, it was held by the Bombay High Court, that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was intravirus to the Constitution. The validity of the Act was challenged on the ground that violates article 25 and allows the classification on religious ground.
Conclusion
India is a unique merger of both codified laws and uncodified personal laws but a country like India who promotes secularism needs a uniform civil code. But many people will not adopt the law which is different from their religious custom. After achieving the levels of literacy, awareness on several socio-political issues, the Uniform Civil Code shall be successfully introduced in India. After addressing a various problem like insecurity, disenfranchisement, of complete loss of identity and marginalization within Indian society it should be implemented. To bring about national integrity is the main aim of the Uniform Civil Code but without violating the rights of the citizens of India as Muslim population think that after adopting uniform civil code it would violate the rights of minorities to profess and practice their religion.
References:
[1] 2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016
[2] AIR 1960 All 684.
[3] AIR 1985 SC 945
[4] 2001
[5] (2014) 4 SCC 1
[6] Constitution of India
[7] AIR 1985 SC 945
[8] AIR 1995 SC 1531
[9] AIR 1995 SC 1531
[10] AIR 1952 Bom 84, (1951) 53 BOMLR 779
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