Uniform Civil Code: Issues, Challenges and Possibilities

(any one of the following)

2.     Union government submitted an affidavit to the Supreme court in the Ashwini kumar Upadhyay case in 2022 regarding the UCC

3.     The 21st Law Commission of India said it is neither necessary nor desirable to bring a uniform civil code for India.

4.     The 22nd Law Commission of India on June 14^th 2023, sought fresh suggestions from various stakeholders, including public and religious organisations, on the Uniform Civil Code (UCC).

2.   To prevent the misuse of the personal laws of one community by the people of other communities.

3.   To ensure rule of law among all the religions as guaranteed by article 14 of the Indian constitution

4.   To achieve the goal of – “One Nation – One Law”

5.   It is the cornerstone of true secularism and national unity

6.   To end the anti women practices like unilateral oral triple talaq system

7.   As a society evolves, it enacts laws which protect and safeguard the rights and interests of all its citizens.

8.   It is not aimed against any particular religion or its customs, but to prevent oppression in the name of religion.

9.   It helps to bring national integration

2.     Code of Mesopotamia – Ur – Nammu

3.     US Constitution – All Men are Equal

History:

1772:

•       Colonial government used religious doctrines to formulate personal laws.

1840:

•       The Lex Loci (=Law of the land) Report of October 1840:  There should be personal laws

1859:

•       Queen’s Proclamation:

•       Civil laws should be governed by personal laws.

1937:

•       The Muslim Personal Law (Shariat) Application Act, 1937

1939:

•       Dissolution of Muslim Marriage Act, 1939

1973:

•       The All India Muslim Personal Law Board (AIMPLB) established to preserve Muslim personal law.

2019:

•       The triple talaq act 2019

2.     Shariya act 1934

3.     Parsi Marriage and Divorce act 1936

4.     Special Marriage Act 1954

5.     The Hindu Marriage Act 1955

6.     Minority and Guardianship Act 1956

7.     Adoptions and Maintenance Act 1956

8.     Foreign Marriage Act 1969

9.     Christian Marriage Act 1972

10.  Muslim Women Protection of Rights on Divorce act 1986

b.     Divorce

c.      Alimony

d.     Inheritance

e.      Adoption and

f.      Property

UCC was not within the scope of fundamental rights.

2.     Nasiruddin Ahmad:

UCC violates the right to freedom of religion

3.     K.M. Munshi:

UCC will promote the unity of the nation and equality for women.

4.     B.R. Ambedkar:

UCC would not be imposed on all citizens.

5.     JL Nehru:

UCC will be voluntary for the states to enact.

2.     Criminal laws are codified in to uniform laws.

3.     Jammu Kashmir had no common criminal law till 2019.

4.     Nagaland did not adopted common criminal code.

2.     Article 44:

The State Shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

2.     Preventing misuse of personal laws

3.     To guarantee rule of law

4.     A model in many Theocratic states.

5.     To bring unity and integrity in a diversity (Supreme court in the John Mathai Case 2003)

6.     Religious equality along with religious freedom

2)     Egypt, Turkey & Iraq: Triple talaq banned

3)     3. Algeria & Bangladesh: Female Marriage age is 18

1)     Shabano Vs. Md. Ahmed case 1985

2)     Usman Khan Bahmani vs. Fathima Unnisa Begum 1990

3)     Abdul Khader vs. Razia Begam 1990

4)     Motiar Rahaman Vs. Sabina Khatun 1993

5)     Sarala Mudgal Vs. union of India 1995

6)     Kaka vs. Hassan Bano 1997

7)     Karim Abdul Rehman vs. Shehnaz Karim 2000

8)     John Mathai vs. Union of India 2003

9)     9. Shaira Bano case 2018

Law Commission had concluded in 2018 that a UCC is neither desirable nor feasible.

The hurdles are –

2.   Lack of political commitment among the parliamentarians to formulate it.

3.   The issue being a part of the directive principles which covers the non-justiciable rights.

4.   Disinterestedness to disturb the age old colonial legacy of personal law system

5.   In India everything is linked to religion – from birth to death. Hence the government is not ready to interfere in the religious beliefs of the people.

6.   Fear of communal violence

7.   A belief that – state should not interfere in the personal laws as they have religious source

8.   Failure of the government to bring about a consensus

9.   The issue is very sensitive as it is directly related to cultural aspect of people’s life. If not handled properly then it may become a law and order challenge across the country.

10. To avoid the state intrusion into freedom of religion of the people.

2.     Initiating a national debate across various communities.

3.     Gradual reforms in the personal law system

Colonial practice of personal law

•       Tribal variations

•       Gender issue

•       Cultural sensitivity

•       Orthodox opposition

•       Life cycle events – religion linked

•       Communal violence

•       Non justiciability

•       Consensual

So, Goa as a state has the UCC.

Even Uttarakhand is also trying to bring one.

Gujarat as a state may bring secure a UCC.

•       Shall =. expressing a strong assertion or intention.  Shall is used for future time reference.

•       Endeavor = Try hard to do or achieve some thing.

•       Secure = To fix | To provide | Shield | Guard

•       Citizens = Only the members of a country. Not foreigners

•       Uniform = Similar in all circumstances with reasonable exemptions

•       Civil Code = A set of legal rules and regulations in civil matters like – marriage, divorce, inheritance, adoption etc.

During the constituent assembly debates the question arises whether this Art should be a fundamental right or a directive principle, the matter was settled as DPSP by 5:4 votes (5 in favor or DPSP and 4 as FR).

–          PM Modi

–          Ex vice president Mr. Venkaiah Naidu

–          22^nd Law Commission

–          The supreme court in a series of cases

Apprehensions are created among the people by diverting the issue from “uniform” to “common”

•       It is governed by Portuguese civil code of 1867.

•       It was extended to Goa in 1869.

•       It wasn’t repealed after its liberation of Goa.

The Supreme Court, in its judgment in Jose Paulo Coutinho (2019), had referred to Goa as the “shining example of UCC”

The Portuguese Code is allowed to be continued by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962.

2.     Every birth, marriage and death have to be compulsorily registered.

3.     Polygamy is prohibited for all communities.

4.     Triple talaq is not permitted

5.     During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.

6.     Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.

7.     The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.

There are exemptions in the law –

2.     Exemptions from the Civil Code were given to gentile Hindus.

3.     The Goa code begins in the name of God and Dom Luis, King of Portugal and Algarve.

4.     The Roman Catholics, can solemnize their marriages in church after obtaining a No Objection Certificate from the Civil Registrar. Whereas for others, only a civil registration of the marriage is accepted as a proof of marriage.

5.     The Catholics marrying in the church are excluded from divorce provisions under the civil law. For Hindus, divorce is permitted only on the grounds of adultery by the wife.

The UCC is in force in Goa before independence i.e.  since 1867

2.     The register will conduct a summary inquiry to confirm that, neither of the couple is a –

a.      Minor

b.     Married to others

c.      In a live in with some one else.

3.     Failure to register will attract a punishment of imprisonment up to three months or a fine up to Rs. 10,000 or both

4.     In case of break up, the same has to be informed to the registrar through a statement of termination of relationship.

5.     Children born to the live in couple will be treated as legitimate.

6.     Live-in relationships where the consent of one of the partners was obtained by force, coercion, undue influence, misrepresentation or fraud concerning the identity of the other partner will also not be registered.

7.     If a woman in a live-in relation is deserted by her partner, she is entitled to claim maintenance from him

8.     A competent court having jurisdiction over the place where they last cohabited will deal with the case

1.     Men 21

2.     Women 18

Two people are said to be within the “degrees of prohibited relationship” if they share a common ancestry or they are the wife/husband of a common ancestor. This exception applies to those communities, which have an established custom allowing marriage within the degrees of prohibited relationships.

2.     Practices like halala and iddat (Islamic practices a woman must go through after a divorce or the death of the husband) are banned.

2.     Elimination of distinctions between legitimate and illegitimate children

3.     Equal treatment for adopted and biologically born children.

4.     In the event of a person’s death, the proposed UCC ensures equal property rights for the spouse, children, and parents.

2.     Assam