Uniform Civil Code Essay Contest

UNIFORM CIVIL CODE
The term Uniform Civil Code connotes the idea of same set of civil rules for the citizens irrespective of their religion, caste, etc. Civil law governs the matters pertaining to marriage, adoption, inheritance, succession and so on. In India such matters of the citizens are still governed by the personal laws of their respective communities. It’s the mandate upon the state as a directive principle of state policy to promulgate a Uniform Civil Code for whole the country. But even after 66 years of independence it is just a distant dream leading to various ambiguities in the interpretation of personal laws. So, the present paper is deliberating upon the importance of uniform civil code as a tool to create religious harmony, there by promoting fraternity as enshrined in the Constitution. The need for uniform civil code was presented by female activists in the beginning of the 20th century, with the objective ofwomen's rights, equality and secularism ADVANTAGES: 1) Uniform civil code will strengthen the status of women and lower castes people as many laws are favorable to them. 2) The code is the sign that the country has crossed the barriers of caste and religion considerations. 3) Modern, equal and gender sensitive laws are the need of the country and Uniform civil code serves the purpose. 4) The code is the sign that the country has crossed the barriers of caste and religion considerations. 5) The code will help to reduce vote bank politics. WHY THERE IS NO UNIFORM CIVIL CODE YET?
If uniform civil code comes into existence, the same rule will apply to all the people of the nation without considering their religion, caste, with regards to divorce, marriage, adoption, property, maintenance, and inheritance. The last central government did not touch this sensitive issue as it involved personal sentimental values of people towards their religion. The first Prime Minister Jawaharlal Nehru sighted the need of uniform civil code during his tenure, but he was only able to include it in the directive principles of the constitution. ARTICLE 44 OF CONSTITUTION OF INDIA “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. This provision was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution.Article 44 of the Indian constitution aims at social justice and equality to all the citizens of India. The Uniform Civil Code, includes all legal aspects, social events in matter of birth, death, marriage, divorce, maintenance, inheritance, succession, and adoption etc. It also relates to the rights and freedoms given by the Constitution of India, but it does not relate the social practices and cultural customs. GOA CIVIL CODE The goa civil code is also known as goa family law, it governs the residence of Indian state of goa. In India there are religion-specific civil codes that governs various religions. The Goa civil is mostly based on PortugueseCivil Code 1867 and had some modifications in it after it was introduced in Goa 1970 While the whole nation is unable to implement uniform civil code, the small state of goa has been successful in doing so. While the nation is still in the process of debating over the controversial topic of uniform civil code, the state of goa has successfully implemented it. The state of goa runs a same set of “family laws” for all the communities residing in the state of goa. Goa civil code governs all the citizen of goa irrespective caste, religion and gender. The Goa civil is mostly based on PortugueseCivil Code 1867 and had some modifications in it after it was introduced in Goa 1970 Under the working of this code, no discrimination is there in Hindu, Muslims, Christians or any other community in GOA. It exercise control over matters like succession, marriage, divorce, etc. and also in matters of gender inequality. Under this Code, each birth, death and marriage is compulsorily to be registered and it provides for anequal distribution of property to both husband and wife(irrespective of gender) and also among n children also. The Muslims who had their marriages registered in goa cannot marry second wife nor can divorce the existing wife to remarry another lady. Under the code, at the time of divorce distribution of property has very strict provisions. In case of divorce each spouse will get half the share of the total property. In case of succession, if a spouse dies half of the property will be given to the alive spouse and half to the children, irrespective of gender. DEBATE ON UNIFORM CIVIL CODE According to Article 39 the Uniform Civil Code is taken as a principle of government. Also the Supreme Court stated that they have been waiting for the long enough and now the government should come forward for the Uniform Civil Code. In the constitution the Muslim assembly have been rejected it in a big manner and by these the Ambedkar Shab has said that the government will be foolish who have rejected it without asking their own people. According to the members of Assembly the Uniform Civil Code is going to affect the constitution in many of manner. Also the freedom of religion is guaranteed to each and every one and no one has the right to take. The constitution of Assembly stated that in his Article 44 that the every country should impose the Uniform Civil Code so that country can be sat together. BENEFIT & CHALLENGES OF UNIFORM CIVIL CODE IN INDIA A Uniform Civil Code is much better for India. As India need the Uniform Civil Code because in India there are different laws, rules and regulation according to the different religion, different caste and section, which make the confusion in the law. Right now in India it is benefit because in India there are different law, so by these the different laws will become one law and all the people will stay with unity and equality and the whole country will be one country. If Uniform Civil Code enters in India then there will be no minorities and also the riots related to all the religion be stop. Also the minorities have the right to get there space for there their religion but as they are minorities therefore they cannot get space for their religion. The major challenge related to the Uniform Civil Code in India is the political parties .As all the parties are there to form their own government and fulfill their basic need and luxurious needs. The constitution of India does not need any amendment because it itself is capable to change the laws of the country. If uniform Civil Code came in to India then there will be the one law, one country, and one nation. Also the gender discrimination will be over the religion riots, warsetc. will be diminished. OBLIGATION ON THE UNIFORM CIVIL CODE After the consideration of the fundamental rights in Part 3 of the constitution, the constituent assembly decided to frame the “directive state principle of state policy”. There was justifiable difference between the two, not only that but right to enforce the fundamental rights is also made fundamental. The directive principles policy, however were not made justifiable, for obvious reasons. The directive principles were not made valid for various reasons. Article 37 of the constitution says, the provisions contained in the part will not be enforceable by and court, but the principles there in laid in are nevertheless fundamental in governance of the country, and it shall be duty of the state to apply this principles in making laws WHAT DOES INDIAN CONSTITUTION SAYS ABOUT THE UNIFORM CIVIL CODE? Article 44 is considered as one of the “Pioneer Principles” ever brought in the history of Constitution. It states “The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India." The provision was made to promote unity and integrity which is the cherished goal enshrined in Preamble to our Constitution. Article 37 of the constitution makes it clear that “shall not be enforceable by any court”. CASE STUDYCASE 1:Mohammed Ahmed Khan v. Shah Bano Begum In 1932 a Muslim woman named Shah Bano was married to Mohammed Ahmad Khan. Mohammed Ahmad Khan was a well-known advocate in Indore, Madhya Pradesh and had five children with his wife Shah Bano. After 14 years of marriage, Mohammed Ahmad Khan married to a younger woman and after living with both the wives he threw Shah Bano and her five children out of the house. In April 1978, when Mohammed Ahmad Khan stopped giving him Rs.200 per month which he promised to give her saying that she had no means to support her five children and herself, she filed a petition against her husband Mohammed Ahmad Khan at a local court under section 125 of the code Code of Criminal Procedure, asking him for giving her amount of Rs.500 for her children and herself. On November 1978 Mohammed Ahmad Khan her husband gave her divorce which was legal under Islamic Law and hence defending himself he said Shah Bano had ceased to be his wife so he was no more liable to give her monthly maintenance to her except the pre-determined amount that is Rs.5400. In August 1979, Mohammed Ahmad Khan was ordered by court to pay Shah Bano Rs.25 per month by way of maintenance. On July 1st 1980, on revisional case of Shah Bano, the High Court of Madhya Pradesh raised the amount to Rs.179.20 per month as her maintenance for her five children and herself. Mohammed Ahmed Khan then filed a petition to appeal before Supreme Court stating that Shah Bano was no more her wife because he had married another woman and it was legal under Islamic Act and stated that he was o more liable to pay her maintenance. Case 2 : The appellant married respondent as per the muslim rites on 27/10/1980. During the wedding three children were born 2 daughter and 1 son. On the occurrence of the dispute between them, the respondent trashed the appellant out of the house along with the children, also refrained and neglected to maintain the children. After thrashing the first wife out of the house, the respondent married again and brought the second wife, as the appellant had no financial aid to maintain herself and the kids and her husband i.e the responder was financially sound, so she filled an application under section 125 Cr .P. C. in the court. She claimed a sum of Rs. 400/- pm for herself and Rs. 300/- pm for each child as maintaince cost. The trial court found that the respondent had failed and refrained to maintain his wife and children. And the appellant and her children were entitled to grant of maintaince from her husband. The trial court directed the respondent to pay Rs. 200/- pm for his wife and Rs.150/- pm for each child till they all are major. In the mean time the respondent divorced the appellant and filed an application in the trial court seeking modification of order. The Trial Court held that in view of the provisions of the 1986 Act the wife after her divorce was grantded maintenance only for a period of three months i.e. for the period of Iddat. the children’s concern was not affected. Thus in the personal laws, muslim women have very weak status. Hence the uniform civil code will altogether empower women of all the religions and caste. BIBLIOGRAPHYhttp://articles.economictimes.indiatimes.com/2003-07-28/news/27541538_1_uniform-civil-code-personal-laws-sarla-mudgalhttp://www.legalservicesindia.com/article/article/should-india-have-a-uniform-civil-code-394-1.htmlhttp://theglobaljournals.com/gra/file.php?val=September_2013_1379480988_82bba_57.pdfhttp://en.wikipedia.org/wiki/Mohd._Ahmed_Khan_v._Shah_Bano_Begumhttp://en.wikipedia.org/wiki/Uniform_civil_code_of_Indiahttps://mutiny.wordpress.com/2007/02/07/uniform-civil-code/http://www.quora.com/Article-44-of-the-Constitution-of-India-declares-that-The-State-shall-endeavor-to-secure-for-the-citizens-a-Uniform-Civil-Code-throughout-the-territory-of-India-Why-has-then-India-failed-to-enforce-uniform-civil-code-since-1950http://www.legalserviceindia.com/articles/ucc.htm ------------------------------------------------------------------------------------------------------------------------------- THE END -------------------------------------------------------------------------------------------------------------------------------

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It is argued that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.[i] The necessity or otherwise of a uniform civil code cannot be debated in the absence of a coherent conception of what the UCC will be and what it will do.[ii] Recently, it has been reported that the Union Law Minister has requested the Law Commission to examine the issues pertaining to the implementation of UCC and submit a report to the government.

Article 44 of the Constitution of India provides that “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

The object behind this Article is to effect an integration of India by bringing all communities on the common platform on matters which are at present governed by diverse personal laws but which do not form the essence of any religion, e.g., divorce, maintenance for divorced wife.[iii] The Constitution of India stands for a secular state, i.e. the state has no official religion. Dr. Radhakrishnan, former President has once said, “When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives…We hold that not one religion should be given preferential status…This view of religious impartiality, or comprehension and forbearance, has a prophetic role to play within the National and International life”.[iv]

Political history of India shows that during the Muslim regime, justice was administered by the Qazis and they applied the Muslim Scriptural law to Muslims, but there was no similar assurance so for litigations concerning Hindus was concerned. This system, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Muhammadans. The 1772 Regulations followed by the Regulations of 1781 prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage and institutions…This broad policy continued throughout the British regime until independence.[v]

The Supreme Court has felt the need for a uniform civil code for the first time in a case wherein a Muslim woman seeking maintenance under S.125 of the Cr.P.C. The Court has then observed that a common civil code would help the cause of national integration and thereby directed the Parliament to frame a UCC.[vi] In Jorden Diengdeh v. Chopra, S. S., [vii] the Supreme Court reiterated the same issue but in a different context and held that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. It is the state which is charged with duty of securing a UCC for the citizens of the country and, unquestionably; it has the legislative competence to do so.

Further, in Sarala Mudgal v. U.O.I,[viii] the issue was whether a man embracing Hindu religion, who has converted into Islam for the sole purpose of marrying second time, commits the offence under S.494 IPC. The Apex Court, while discussing the above question, has opined that it was high time that a UCC be introduced. The Supreme Court had observed: “Pt. Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said, ‘I do not think that at the present moment the time is ripe in India for me to try to push it through.’ It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Art. 44 from the cold storage where it is lying since 1949… The utmost that has been done is to codify the Hindu Law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority & Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, which has replaced the traditional Hindu law based on different schools of thought and scriptural laws into one codified code when more than 80 percent of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil Code for all citizens.”

The Court once again urged the government to come up with a UCC in Danial Latifi v. U.O.I, [ix]wherein the Court has liberally interpreted S.3 of the Muslim Woman (Protection of Rights on Divorce) Act, 1986.

In most cases, it is argued that the marriage, succession and like matters are not of a secular character and the same has been protected under Arts. 25, 26 and 27.[x] But the Court in Ratilal v. State of Bombay,[xi] held that Art. 25(2) (a) saves the power of the state to regulate or restrict secular activities associated with religious practice. But these restriction or regulations should be primarily concerned with the secular aspects of religious practice rather than with the essentials of religion as per judicial pronouncement and it is upon the court to decide the dividing line among them. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society.[xii] Nevertheless the Court has continued to emphasize that a common civil code will help the cause of national integration by removing the contradictions based on ideologies.[xiii]

Though the repeated judicial reminders have urged the government to implement a common civil code throughout the country, the Supreme Court’s judgments in itself reveals the lacuna in its understanding of what Art. 44 means.  Recently, Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, in a letter to Prime Minster Narendra Modi in November 2015, has stated the importance for codifying Muslim Law as a part of framing a common civil code in the country.[xiv] Starting from the Shah Bano[xv] till the recent case of Shayara Banu[xvi] (the constitutional validity of triple talak divorce and polygamy is challenged); the court has failed to interpret the notion behind adopting a UCC. It has been frequently stated in media that the codification of Hindu laws is considered as a stepping stone in framing a UCC in the country. Also, it has been debated that, if the state of Goa could frame a UCC, then why not others?

The Goa Civil Code is based on the Portuguese Civil Code of 1867. Goa is the only state in India which has enforced uniform civil code for all citizens. The notable provision of the Goa Civil Code is that the Community Property Law guarantees immediately upon betrothal, for each spouse 50% of all assets owned and due to be inherited at the time of marriage. Both the wife and husband own half of the property but each partner must take the spouse’s permission before disposing of any of these assets.

However, the Goa Civil Code is not strictly a UCC, as it has specific provisions for certain communities. For example, The Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa. Whereas for other communities, the law prohibits bigamy; the Roman Catholics can solemnize their marriages in church after obtaining a ‘No Objection Certificate’ from the Civil Registrar. For others, only a civil registration of the marriage is accepted as proof of marriage.[xvii] So, if the UCC means uniformity so as to the cause of national integration then how can we argue that the government should adopt the Goan Model in rest of the states?

M.K. Gandhi has once said, “We should get out of the miasma of religious majorities and minorities.” It is explicit from the above observations that a UCC is not just an attempt to put an end to the discrimination against women on religious grounds but to strengthen the unity and integrity of the nation.

[i] Ahmed Khan, Mohd. v. Shah Bano Begum, AIR 1985 SC 945

[ii] Alok Prasanna Kumar on UCC: A Heedless Quest? , ECONOMIC & POLITICAL WEEKLY, June 18,2016, available at Uniform Civil Code

[iii]Supra note. i

[iv] Radhakrishnan, Sarvepalli., RECOVERY OF FAITH, 1956, p. 184

[v] Sarala Mudgal v. U.O.I, (1995) 3 SCC 635

[vi]Supra note. i

[vii] AIR 1985 SC 935

[viii]Supra note. v

[ix] AIR 2001 SC 3262

[x] The Constitution of India

[xi] (1954) SCR 1055

[xii]Supra note. v

[xiii] John Vallamattom v. U.O.I, (2003) 6 SCC 611

[xiv] M. Venkaiah Naidu on Why not a Common Civil Code for all? , THE HINDU, July 16, 2016, available at https:// Common Civil Code

[xv]Supra note. i

[xvi] Shalini Nair on Shayara Banu’s fight against triple talaq, THE INDIAN EXPRESS, April 24, 2016, available at Triple Talaaq

[xvii] Partha S. Ghosh on The Politics of Personal Law in South Asia: Identity, Nationalism and the Uniform Civil Code, ROUTLEDGE, pp. 19-22

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