Uniform Civil Code (UCC) as a Tool of Reform in India – Legal Analysis

Meenakshi Mishra | Legal Thikana

The Constitution of India empowers the Legislature to legislate with respect to family related matters governed by the personal laws by a Common Civil Code. The Indian Constitution guarantees the religious and cultural freedom to every citizen of India. UCC represents liberalism which creates comprehensive economic, social and political programme for today‟s democratic state. This principle seeks to establish social and economic democracy in the country.

During the debate in the assembly over the Uniform Civil Code (UCC), a demanding reformation of traditional personal law with the nationalist objective of legal uniformity was suggested. However, there was uncertainty as to give it enforcement power or not because our country has religious diversity. Many liberals criticized the non-application of uniform civil code as it seeks to provide equal rights to woman, especially the Non-Hindu woman.

Muslim woman are governed by their personal laws which are more traditional and patriarchal. The non-justiciability of Article 44 resulted in a separate personal legal system in India; the Hindu Code Bill was eventually legislated by the Indian Parliament in four separate parts between 1955 and 1961. As the Directive Principles are non-justiciable, the constitution makes it clear that these principles are fundamental to govern the country and thus the state is obligated to apply these principles while making laws. But at the same time, this will ultimately has its effect on people of the country thus they must be ready to accept in order to accomplish the goals.

In the case of Narasu Appa Mali, the constitutional validity of the Bombay (Prevention of Hindu Bigamous Marriages) Act, 1946 was determined by the Bombay HC. One of the major contentions in this case was that the Act violates Article 14 and Article 15 as the practice of bigamy was to be abolished in Hindus whereas Muslims were still permitted. The judge in this case was of the opinion that it would be unable to hold that the Act violates law of equality to Hindus.

In the case of Mohd. Ahmed Khan vs. Shah Bano Begum and Ors, the husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs.179 per month, which enhanced the sum of Rs.25 per month originally stated by the Magistrate. The Supreme Court in this case held that though the Muslim Laws limit the husband‟s liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or accept the situation apprehended by Section 125 of the Code of Criminal Procedure, 1973. Hence the Court opined that it would be incorrect and unjust to not grant her maintenance. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the liability of the husband ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled under Section 125 of Cr.P.C. Thus, the Apex court of India had to go against the existing personal laws to take into consideration welfare of the people.

The Supreme Court of India ruled against the Muslim personal law by providing maintenance claim to a Muslim divorced woman under Section 125 of Cr.P.C, despite the prohibition under Muslim personal law, the court wanted the state to consider the concept of “One nation, one law”, the Uniform Civil Code.The decision of this case led to opposition and chaos which resulted the Parliament to enact The Muslim Women (Protection of Rights on Divorce) Act of 1986, with the intention of making the decision in Shah Bano‟s case ineffective.

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The soul of Article 44 that state is under the obligation to endeavour to make efforts towards common civil code in India but I personally feel implementation of this law should come from within the people and it should not be imposed by state because India being multi religious country its pluralistic identity needs to be preserved as well. It is observed that the idea to implement uniform civil code is disapproved due to customs, culture and personal laws of different religious communities. As the constitution assures the citizens their fundamental rights it is difficult to implement a common code, even then the judiciary is trying to put efforts to highlight the importance of implementing uniform civil code and also encouraging steps to be taken in accordance.

The Law Commission Chairman, Justice Balbir Singh Chauhan was of the view that the Uniform Civil Code cannot be implemented since freedom of religion is guaranteed by the Constitution but measures could be taken to reform Personal Laws. But till what extent Judiciary can interfere into the personal laws is another debated question.