Uniform Civil Code in Ambit of Secularism

I. Introduction

As we are well aware that laws are segregated in two ways. Criminal laws and civil laws, the criminal laws are such branch of law which deals with criminal wrongs. Which end up as in jails and fines. And the other branch is civil wrongs such as property disputes, family disputes and payment of damages etc. so, if we elaborate the civil code in its simple sense means all such civil laws such as property law, family law, contract law, corporate law.

And uniform civil code refers to uniformity among individuals in all such above mentioned laws perspective in that jurisdiction. The uniform civil code means uniform set of laws which will regulate the citizens of india in every aspects not only in aspects of criminalising wrong doer who has committed certain crime but also in the regulation of personal laws affairs.

Proponents argue that a uniform civil code would promote gender equality, social justice, and national integration by replacing diverse personal laws with common set of civil laws applicable to all citizens regardless of religion. However, opponents raise concerns about its potential infridgement in religious freedom and cultural autonomy.

A civil law as described above that is applied consistently to every individual within that jurisdiction is called a uniform civil code. In India, all civil law is applied equally to all individuals, with the exception of family law and certain aspects of property law that are related to family law (save where a distinction is recognized between a citizen and a person). In the political sense, UCC today refers only to a unified body of rules that regulate family law matters, such as succession, adoption, maintenance, marriage and divorce, independent of caste and religion.

Ironically as per the hypothesis of these research paper i.ie., the UCC is implemented in india after the implementation of the uniform civil code all communities suxh as hindu, muslim, sikh, Christians even all the genders will be treated equally and will have equal rights.

And also the core matter which is focused in the subject matter of implementation of uniform civil code is that the discrimination going on from such a long period of time with the women who belongs to muslim community will completely come to an end. And all those women will have the same set of all such rights inclusive of the matrimonial rights as all other women have in the Indian society. Thus, the concept of uniform civil code has been a subject of debate and controversy in india for decades.

II. Historical background

Now, as we have discussed above about the types of laws governing us i.e., criminal laws, commercial laws and civil laws. The time when britishers use to rule us, in that time there main focus was how they can rule us so they made commercial laws according to there need.

And which was equal for all. Also the have drafted the criminal laws in the same way that is equal for all, so that they could criminalise the troupe or whoever goes against them. In that scenario, they didn’t even interfere about the civil laws or the rights of the women and situations of women at that time.

They didn’t even took care that “is there any uniformity in the civil laws or not, and does women at that time had the same rights which are enjoyed by the men of that time. But, when after the independence of india they made the laws for hindus, Buddhist and jains, but they didn’t made any laws related to muslims community and thus in the matters of marriage, divorce and succession or inheritance they had been given previledge to make there own laws according to there religion.

And at that time the well known leader of congress the Dissenting Congressman was not happy and spoke about the decision of Jawaharlal Nehru, called this decision even as “Communal” and commented that “ I Feel That Nehru Government Doesn’t Want To Improve The Condition And Situation Of Women ”.² He at that time wanted to implement uniform civil code before any of the political clashes between several parties as going on in present scenario.

III. Implication on personal laws

Taking this discussion further, critics of uniform civil code expresses that implementation of uniform civil code would violate religion biased beliefs of many individuals belonging to certain religion. More specifically, as per the current scenario all around India peoples in muslim community beliefs that implementation of uniform civil code would violate there religional beliefs. But as per the facts if the uniform civil code is implemented in India it will superficially benefit the women and girls of muslim community.

Although, no other communities are opposing the implementation of uniform civil code. Women and girls of other religion in india already have all the rights and liberty to live their life peacefully, but as per my opinion after the implementation of uniform civil code life of muslim women and girls will completely change towards enlighten future which is highly required and will be resulted beneficial for them.

On the fact, in which many citizen of india are having a doubt that implementation of uniform civil code doesn’t mean implementing Hindu laws over other religion as, by its implementation even hindu community will also have to follow the new code which will be formed as UCC. As, also said by a well known indian politician³ said that – “hindu religion also has a lot of diversity and it cannot be painted with one brush.”

(A) Implications on Hindu Law

Also as per fact, before the judgement in case of lata mittal⁴ hindu daughters were deprived of the joint heirship in parental property as per the codes of mitakshara school of hindu law which governs succession. Then after the twenty years after filing the case, the supreme court has given the judgement in which it was stated that women will be given equal rights in the ancestral property same as men. And similarly, in this way by seeing the current scenario and by following such an landmark cases the uniform civil code will be drafted which will further not only be beneficial for hindu community but will also be beneficial for all other communities i.e., all the citizens of India.

Thus , section 2 (2) of hindu marriage act does not apply to the scheduled tribes. Secton 5(5) and section 7 of the law state that customary practices will override the provisions. But the implementation of UCC will not allow such exceptions.

(B) Implications on Christian Law

Prior to year 2017 the Christian women could not give divorce to there husband on the grounds of committing adultery. Also on the other hand, christen husband were having the rights in which they can simply declare there wives as adultress and can divorce them. Thus, at present this law of antiquated Christian divorce act 1869 is amended in year 2016. Thus after implementing the uniform civil code all this discriminations against women in India will come to an end.

(C) Implications on Parsi Law

Also some of the discriminations are still going on against parsi daughters who are married non – parsi men lost their ancectral property rights and non – parsi wives of parsi husbands are only entitled to half of the property of there husbands according to parsi personal law. But, as it is crystal clear from the fact above and is sufficient to understand that this personal laws of various communities are majorly male obsessed and were made to supress women and causing discrimination against them.

(D) Implications on Muslim Law

Now, here I want to give the reference of the [MOH. AHMED KHAN VS.SHAH BANO]⁵ case where shsh bano was divorced by her husband by saying talaq three times i.e., by triple talaq also known as talaq –e – biddat and was denied maintenance under section 125 of code of criminal procedure, 1973. Then she filed cases in district court and high court where decision was in her favour and due to that her husband had filed the case in appeal in supreme court and in year 1985 supreme court had also given the judgment in favour of shah bano under the provision of “ maintenance of wife, children and parents” under section 125 of code of criminal procedure, 1973 which is applied to all citizens irrespective of religion. Also, the apex court that is supreme court of india has also recommended to parliament that a uniform civil code is to be set up.

Also as per the Muslim personal law (shariat) application act, 1937 the provision states that maintenance which is to be given to wife after the divorce is till the period of iddat and after that there is no liability of the husband over his wife, which is clearly a discrimination against the wives. As there is no legal boundation on the side of husband for giving divorce , it is totally depended on the will of the husband. Which is definitely not a matter of concensus as per the shariat act. But, by keeping in mind that the rights of wife here is totally violated and as per the code of criminal procedure section 125 the wife should get the maintenance irrespective of the period of iddat, if the woman is not able to manage her livelihood.

Hence, by implementation of uniform civil code this discrimination with the muslim women will come to an end and polygamy will be abolished and the minimum age under the shariat act will be changed and would be like others.

(E) Implications on Sikh Law

The Sikhs are governed under the anand marriage act, 1909 which covers the marriage laws of Sikhs but ironically there is no provisions for divorce in anand marriage act. Due to which the divorce or seperations of Sikhs are governed by the hindu marriage act.

But, if uniform civil code gets implemented then all the communities will be governed under the same law and will be treated equally.

IV. Compatibility with secularism

As stated above, uniform civil code refers to a set of laws that applies to all the citizens of a country, regardless of their religion, in matters related to personal issues such as marriage, divorce, inheritance, adoption and maintenance. Uniform civil code is listed in directive principle of state policy under ARTICLE 44 of the Indian constitution which says that “ the state should try to ensure that everyone in india has the same civil code.”

And the philosophy of secularism maintains that religion has no place in a country’s daily social and political affairs. And the word secularism is added to the preamble of our Indian constitution through 42^nd amendment. Also in other words it can be described that secularism is an essence of preservation of mixed cultural nation with wide variety of languages spoken, and having different beliefs among different people of different religion and so on the superficial country INDIA is formed.

Though people of certain community admits that implementation of uniform civil code would infringe religious freedoms of individuals. As, as per principle of secularism every individual has a right to exercise their freedom of religion and follow the customary practice as per their personal laws. But, as described above personal laws of every community has many faults which are in on going state to follow but now it is the high time to understand that this is not a time to have a conflict among communities.

It is the integral principle of our constitution that no individual or group shall be discriminated on the grounds of caste, sex, race, religion etc. and thus, to implement this it is required that every citizen of India shall be governed under a equal pace i.e., under a common law. Thus it is very impossible to separate personal laws from the state affairs. The supreme court has said that todays India is being uplifted from the mindset of castism and religious dramas and thus recommended may at times to the parliament to set up the committee for enactment of uniform civil code.

As majorly, different personal laws in india, irrespective of the religion are male centric laws in which rights of women are always violated. And thus, whenever the subject matter would be upliftment or benefits of girls and women of the community, A community is always against any changes or amendments for their benefit. It looks like they always want equality and rights for yourself but not for the girls or women of certain community. Also these people does not pay gratitude to the tips of the honourable apex court but they oppose Such initiatives as mentioning them as political agenda and even call this as communal agenda of political party taking such initiatives.

Here are some references of why uniform civil code is to be preferred over secularism –

1. Moh. Ahmed Khan vs. Shah Bano⁶

Is the case in which Shah Bano's husband divorced her by saying "talaq" three times, or "triple talaq," commonly referred to as "talaq-e" biddat. She was also refused maintenance under section 125 of the 1973 Code of Criminal Procedure. Following that, she filed cases in district and high courts, where the decisions were in her favor. As a result, her husband filed an appeal with the Supreme Court, which heard the case in 1985 and rendered a decision in Shah Bano's favor under the section 125 of the Code of Criminal Procedure, 1973, which provides for "maintenance of wife, children, and parents" and is applicable to all citizens regardless of religion. Thus, if this continues women of certain religion will always be discriminated by the males of certain religion.

2. Danial Latifi & Anr vs. Union of India⁷

In the case of denial latifi the (MWA) muslim women’s act was challenged on the grounds that it violates article 14 i.e., right to equality, and article 15 i.e., right against discrimination of indian constitution. Also it violates article 21 of Indian constitution i.e., right to life and personal liberty.

The amount received by a woman during the period of iddat should be sufficient to support her both during and after iddat, the Supreme Court ruled, holding the statute to be constitutional and harmonizing it with section 125 of the Crimson Palace Convention. Consequently, a divorced Muslim woman has the legal right to lifetime maintenance, or until she remarries, under Australian law.

3. Sarla Mudgal vs. Union of India & Anrs.⁸

In this case, the issue was whether a Hindu husband who had been married under Hindu law could then solemnize a second marriage by converting to Islam. The court determined that a Hindu marriage that had been solemnized under Hindu law could only be dissolved on any of the grounds listed in the Hindu Marriage Act of 1955, it could not be dissolved by conversion to Islam and subsequent marriages consequently, a second marriage that was solemnized after converting to Islam would be illegal under section 494 of the Indian Penal Code (IPC).

4. John Vallamattom vs. Union of India⁹

In this instance, John Vallamattom, a priest from Kerala, contested the constitutionality of Section 118 of the Indian Succession Act, which applies to Indian citizens who are not Hindus. Section 118 of the legislation, according to john Vallamatton, it discriminates against Christians by placing unjustifiable limitations on their ability to donate property by will for religious or philanthropic causes. The section was declared unconstitutional by the bench.

V. Arguments and criticism

As discussed above about the compatibility with secularism, Indian secularism places a negative duty on the State to treat its citizens in accordance with "Sarva Dharm Sambhava" and to not to associate India with any one religion.

If we say about the proponents of the uniform civil code, Promoting equality and justice for all citizens, irrespective of their religious beliefs, is how supporters of a uniform civil code contend that it is consistent with secularism's tenets. They contend that, in order to guarantee equal treatment under the law and a level playing field for all individuals, a common set of laws should be in place, regardless of their religious affiliation.

But, if we say about the opponents of the uniform civil code, its implementation might violate minority communities right to freedom of religion. They argue that because personal rules are essential to religious rituals, they ought to be upheld as matters of individual rights and cultural identity. Secularism, they contend, entails recognizing and honoring the diversity of religious practices as well as empowering local communities to make decisions about their own personal affairs in accordance with their own traditions and customs.

VI. Suggestions

• Adopting UCC would be a step toward promoting gender equality. To put UCC into practice, both personal and religious laws should be reviewed, and the best provisions from other nations' personal laws as well as from all religions should be gathered and put into practice. However, this process should be founded on extensive consultations.
• To achieve uniformity and to consider the greatest interests of all religions, a draft of the Uniform Civil Code should be produced. To draft the Uniform civil code, a committee composed of distinguished legal experts ought to be formed.
• In order to implement uniform civil code effectively throught the nation, religious organizations and Indian society should take the inititative on this issue.

VII. Conclusion

Therefore, as per the above discussions made on uniform civil code to be preferred over secularism, it is crystal clear according to the facts stated in this research paper that in communities following personal laws many discriminations are going on under curtain which is not visible through the naked eyes but if seen deeply, implementation of uniform civil code would bring this discrimination to an end and will result to raising uniformity among the various religions in India. And, according to me implementation of uniform civil code would ensure for all its citizens, irrespective of religion, a secured and protected fundamental and constitutional rights.

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VIII. References

1. Constitution of India By Dr. J.N Pandey

2. Indian Constitution By M.P Jain.

3. Business standard - https://www.business-standard.com/finance/personal-finance/expl ained-how-uniform-civil-code-will-impact-marriage-adoption-inheritance-124020800227_1.html

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