Uniform Civil Code Project
Uniform Civil Code Project
Uniform Civil Code Project
Name:Abhishek chatterjee
Mr Sushil Goswami
Submitted To :
Reg No:11A006
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Batch :2011-16
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Index
Introduction
Pg 2
Need for uniform civil code
Pg 3
Position of the legislature
Pg 4
Uniform civil code: a call for the judiciary
Pg 6
Uniform civil code optional or compulsory
Pg 8
Uniform civil code and secularism
Pg 10
Succession and inheritance
Pg 12
Conclusion
Pg 15
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INTRODUCTION
The personal law of the Hindus, such as relating to marriage, succession
and the like has all a sacramental origin, in the same manner as in the case
of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists
and Janis have forsaken their sentiments in the cause of the national unity
and
integration,
some
other
communities
would
not,
though
the
practice
polygamy, and
Hindu sons
inherit greater
shares of
their parents'
estatesthan their sisters do. While one's religion determines which law will
apply to him or her regarding marriage, divorce, maintenance, guardianship
, adoption, inheritance, and succession. Uniform civil code [hereinafter
UCC]
of
India
is
term
referring
tothe concept of an overarching Civil Law Code in India. A uniform civil cod
eadministers the same set of secular civil laws to govern all people, even th
ose belonging to different religions and regions. This supersedes the right
of
citizens
to be
governed under
different personal
laws
based on
their religion or ethnicity. Such codes are in place in most modern nations.
There
is
no
doubt
that
the
idea of
UCC is
by and
large, a
child
strongly
urge
the
necessity
of
having one single code to be named as Indian Civil Code applicable to every
body living within the territory of Indian Union irrespective of caste, creed
or religion persuasions. This is the juristic solution to the communal
problem .It appears to be absolutely essential in the Interest of the
unification of the country for building up one single nation with one single
set of laws in the country.Article 44 of the Indian Constitution requires the
State to secure for its citizens a Uniform Civil Code throughout the territory
of India. The term civil code issued to cover the entire body of laws
governing rights relating to property and personal matters such as
marriage, divorce, maintenance, adoption and inheritance. The object of
this code is to enhance national integration by eliminating contradictions
based on ideologies. It aims to bring all communities on a common platform
on matters which are currently governed by diverse personal laws.
However, even after 60 years of independence, our law makers are yet to
give effect to this provision.
2. NEED FOR UNIFORM CIVIL CODE
Ours is a country with several different religions and belief systems. The
accepted principle of law is that personal belief systems and laws must be in
conformity with the Constitution and not the other way round. Article 25 of
the Constitution guarantees to every person the freedom of conscience and
the right to profess practice and propagate religion. Article 26 of the
Constitution guarantees to every religious denomination the right to
manage its own affairs in the matters of religion. No set of laws can violate
these Articles, which essentially protect the religious freedom of different
person or communities. We are thus presented with a situation that seems
somewhat contradictory; how can there be a uniform set of laws which
protects religious freedom at the same time? The implementation of a
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uniform set of laws calls for discarding certain personal laws which go
against societys general outlook as a whole, and this may amount to
violation of the above mentioned Articles of the Constitution. With multiple
belief systems, come multiple ideological conflicts. To live together in
concurrence with such diversity, we need to have uniformity at some level
so as to avoid such conflicts. What we need is a Uniform Civil Code in the
form of a sophisticated, harmonized system of legal regulation that
maintains and skillfully uses the input of personal laws and yet achieves a
measure of legal uniformity. As long as the code does not go against the
essence i.e. the core or fundamental belief of any particular religion, it will
not go against the religious freedom guaranteed by the Constitution. The
UCC has been permanently associated in the Indian mind with opposition by
the Muslims. It was rightly pointed out in the Constituently assembly that
all Hindus were in favor of UCC .They felt that the personal law of
inheritance, succession, etc. is really a part of their religion. If that were so,
Indian women can never be given equality with a man who is enshrined in
art. 14 of the Constitution. Art. 15(1) provides that the state shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
and place of birth or any of them. Look at Hindu law, we will find
discrimination against
women everywhere.If personal law of Hindus is a part of Hindu religion, equ
ality can never be attained among men and women. Religion must be restric
ted to religiononly and the secular activities attached to the religion must
be regulated, unified and modified for a strong and consolidated nation. The
present Muslim law can never provide equality to Muslim women- if
personal law is considered as a part of their religion. To elevate the position
of Indian women and provide them equality, India is badly needed of a UCC
for all Indians.
3. Position of the Legislature:
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Article
16
talks
about
equality
in
matters of public employment. Thus the very purpose of these Articles will n
ot be fulfilled
if the
provide different
different personal
treatment to
will keep
individuals with
on prevailing
in accordance
as they
with the
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(which
provides that
if a
woman has
received
an amount
under personal law, she would not be entitled to maintenance under section
125 of Cr.P.C. 1973 after divorce) Muslim women would be entitled to
maintenance if amount received by her as dower under personal law is
not sufficient for her sustenance. Though the decision was highly criticized
by Muslim Fundamentalists, yet it was considered a liberal interpretation of
law as required by gender justice. Later, on under pressure from
Muslim fundamentalists, the
central government
passed the
appointment
of
committee
to
enact
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Conversion of religion Act. R.M. Shahai, J., while agreeing with Kuldip Singh
, J., too agreed that Ours is a Secular Democratic Republic. Freedom of reli
gion is the core of our culture. But religious practices, volatile of human
rights and dignity and sacerdotal suffocation of essentiality civil and materia
l freedoms, are not autonomy but oppression.In
Lily Thomas
etc. v.
Union of India and others the Court held that: The desirability of UCC can
hardly be doubted. But it can concretize only when social climate is
properly built up by elite of the society, statement amongst leaders who
instead of gaining personal mileage rise above and awaken the masses to
accept the change.The court further added while it was desirable to have a
UCC, the time was yet not ripe and the issue should (be) entrusted to the
Law Commission which may examine the same in consultation with
minorities Commission. That is why when the court drew up the final order
signed by both the learned judges it said, the writ petition are allowed in
terms of the answer to the questions posed in the opinion of kuldip Singh,
J. These questions we have extracted earlier and the decision was confined
to
conclusions
reached
thereon
whereas
the
section 125
of Cr.P.C. Under
section 4
of the
Act, divorced Muslim woman unable to maintain herself after iddat period
can
precede
to
all
religions.In
John Vallamattom
v. Union
of India the
need for a
legislation by
that there
Parliament on
was no necessary
common
civil
connection between
matter
of regret
that article
44 of
the
Supreme
Court has
not yet
interpreted Art.
44.
On all
his decisions the Court enjoined upon the parliament to enact a UCC
without
specifying
what
UCC
would
mean.
However,
the word
uniform should not mean the same law for all but it should mean similar
laws for all and similarly should be regarding equality and gender justice. In
Pannalal Bansilal v. State of Andhra Pradesh, it held that a uniform law
though highly desirable, the enactment thereof in one go may be counterproductive to the unity and integrity of the nation. Gradual progressive
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cannot
be
a uniform.
It
can only
be
one more
addition to the existing family laws, thus compounding rather than reducing
the confusion
facets with
regard to
the concept
of optionality should be considered .Either one has to opt for the entire code
or one may opt for selected areas. One feels that opting for the UCC should
be one-way process. There should be no withdrawing. Once a person opts
he/she will have opted for their future generations as well. There will be no
opting out. If one spouse opts for the code, the other will also have to do so
as otherwise the option will be ineffective. A voluntary code will create its
own uncertainty as, confusion and misinformation. For all the reasons, the
UCC will have to be an improvement on the existing laws in all respects and
it will have to be very clear in its expression. Why do we need a Uniform
Civil Code? What does our Constitution say about Uniform Civil Code? In
article 44, our constitution clearly specifies this "The State shall endeavor to
secure the citizen uniform civil code throughout the territory of India. The
objective of this article is to effect an integration of India by bringing all
communities into a common platform which is at present governed by
personal laws which do not form the essence of any religion. The
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by
Ambedkar,
Anantasayam
Iyengar,
KMMunshiji,
Alladi
introduced, in heritance laws were amended and Hindus accepted all these
changes. They never complained of hurting their religious sentiments.
Those who oppose this law claim that this law is poking nose into their
religious practices. Narabali (human sacrifice), that was considered a
religious practice of Hindus is banned today. Hindus never protested this
stating that their religious practices are tampered with. There are Muslim
countries that follow Islamic laws. Still, the laws differ from one country to
another. This emphasizes that along with the personal laws, there has to be
laws that should be written considering the changing phenomenon and the
living style of the nation. Once again it is reiterated that this code is not
biased towards are religion but to bring in a level playing platform among
the citizens of India. Muslims in other countries accept uniform civil laws
where they do not consider this as a defeat whereas in India it is. This is the
result of the selective secularism adapted by the political parties, media and
the so-called learned men of India. It is a pity that in a democratic & secular
state, people have different laws based on their religion. Is it secular to
have different laws for different religion or it is secular to have a uniform
law? The approach of selective secularism had perpetuated the vertical
divide among the people of India in the name of religion. This resulted in
people having prejudice over this law itself. By bringing this code, neither
the majority public wins over the minorities nor are the minorities in
danger. Unless this prejudice is erased, bringing this law is difficult. The
leaders of this country owe responsibility to explain this to public & an
elaborate debate has to be held on this topic (which will never happen as
this is against secularism?).To make this debate on UCC healthy, Hindus
should not treat this as a weapon against minorities. Meanwhile, the
minorities should not feel that they lose by bringing this law.
6. Uniform Civil Code and Secularism a Debate
The Government, the press, the politicians, the academics and even the
minority organizations- none of them have taken any sort of active interest
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in the UCC. Thus we could easily infer from the attitude of people prevailing
these days that this concept has been ignored and at worst they have
spread false information and impression about it. But, if we see todays
scenario then India is more communalize then it was in 1947, so we
should realize that the concept of UCC had become very important and
need immediate concern. People, who were the founding fathers of
constitution as well as non-Muslims thought that a uniform civil code was
necessary for our national unity and secularism. But along with them there
are also few people who disagree about this concept like Prof. Paras Diwan
says The uniform civil code has nothing to do with Indianisation or national
integration or interfering with the religion of one community or the other.
7. simplicity in law
Uniform civil code provides clarity which arises out of simplicity. Different
religions had made the legal system a maze by creating rights for
individuals in some ways and taking them in another way depending upon
the religion they follow. Thus to create clarity forth rights available to all
individual uniformly, there is a requirement of uniform civil code.
Najmas case was not an isolated one. There was the historic case of Shah
Bano, which changed the political contours of the country, and there were
the saga of Saddiqunissa and the soul-stirring tale of Gudiya, who have been
at the receiving end of the obscurantist Islamic clerics, who have not even
spared tennis sensation Sania Mirza, pronouncing a fatwa against dress on
the court of play. A survey of Muslim women in Bihars Darbhanga district
some years ago, Sabina Hussein of the Delhi-based Centre for Womens
Development, found that 8% of Muslim women were divorced. Only three
out
of
eight
received
that
too
in
paltry
irregular
installments.
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It is not for the first time that the courts came to help unfortunate Muslim
women. In 2002, the Bombay High Court, in landmark judgment had ruled,
A divorce between Muslim couples will have to be convincingly proved in a
court of law under the civil procedure code and Indian Evidence Act. A mere
statement, written or oral, by a man divorcing his wife wont be enough
proof of his having obtained a divorce. The 88-page ruling by a full bench
has now become a binding for the Maharashtra government. The judgment
came after hearing in a case filed by Dagdhu Pathan, a resident of Latur,
challenging the maintenance claims by his wife Rahimbi. The judgment
clearly mentioned that for divorces to be deemed legal, husbands must
prove in court all requirements of procedure of a divorce under Muslim
laws, like reconciliation, arbitration and payment of mehr.
Saddiquinissa case, the Lucknow Bench of the Allahabad High Court
pointed out that talaq could not be given by the husband in one instance
and only comes to force after a certain time which is meant for
reconciliation and arbitration by friends and relatives. It also ruled
that talaq has to be confirmed by a court, which has to hold that the
marriage was dissolved on valid grounds. Only then the talaq would become
legally acceptable. Over two decades back, another Muslim woman, Shah
Bano, asked a court to ensure support from her husband who had divorced
her after 43 years of marriage and thrown her out on the street. The
Supreme Court had at that time ruled it could not accept her husbands plea
that he was only bound by Islamic laws. A husband must assist his wife
financially after a divorce if she has no other means, it ruled.
The reader should recall that, while a Division Bench of the Bombay High
Court delivering its verdict on the Dilshad Begum and her husband
Ahmadkhan Hanifkhan Pathan case on January 21, 2007, Justice B H
Mariapalle ruled that, talaq, talaq, talaq, these three words were not
enough for a Muslim man to divorce his wife. Justice Mariapalle observed
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that the talaq between Dilshad Begum and Ahmadkhan Hanifkhan Pathan
was not valid as the husband had not gone through the preconditions of
arbitration and reconciliation prescribed by the Muslim law. The reasons
for divorce, appointment of arbiters, the arbiters resorting to conciliation
proceedings and failure of such proceedings or a situation where it was
impossible for the marriage to continue, have not been proved in this case,
the Justice added.
It is to be noted here that even though India is a secular republic, its
citizens subject to uniform civil-law. Muslims enjoy a separate civil-code,
which is at par with the shariah law, including in laws of divorce, which
harshly oppresses Muslim women. But in criminal matters, they have
chosen to follow the Indian Penal Code, just to avoid harsh Islamic
punishments
like
flogging,
hanging,
beheading,
stoning
to
death,
the
implementation
of
uniform
civil
code
for
all.
But,
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(1) Subject to the provisions of this section, a Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be
maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband
without forfeiting her claim to maintenance,(A) if he is guilty of desertion, that is to say, of abandoning her without
reasonable cause and without her consent or against her wish, or of willfully
neglecting her;
(b) If he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband;
(c) If he is suffering from a virulent form of leprosy;
(d) If he has any other wife living;
(e) If he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) If he has ceased to be a Hindu by conversion to another religion;
(g) If there is any other cause justifying her living separately?
(3) A Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceases to be a Hindu by
conversion to another religion.
According to Hindu marriage actSec- 24 Maintenance Pendent late and expenses proceedings. Where in
any proceeding under this Act it appears to the court that either the
wife
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or the husband, as the case may be, has no independent respondent, it may
seem to the court to be reasonable.
(Where it appears to Court that the wife or the husband, as the case may
be, has no independent income sufficient for her support and the necessary
expenses of the proceedings, it may grant interim maintenance to the wife.)
Sec-25
court exercising
jurisdiction under this Act may, at the time of passing any decree or
any time subsequent thereto, on application made to it for the
by either the wife or the husband, as the case may be, order
respondent shall pay to the applicant for her or his
at
purpose
that the
maintenance and
support such gross sum or such monthly or periodical sum for a term not
exceeding the life of the applicant as, having
own income and other property, if any, the
the applicant, the conduct of the
secured, if necessary,
by
respondent.
under sub-section
order has
been made under this section has re-married or, if such party is the wife,
that she has not remained chaste, or, if such party is the husband, that he
has had sexual intercourse with any woman
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Conclusion
I believe it is very essential that some progress is made towards a unified
civil code because ours is a secular country. Every one is supposed to be
equal under the eyes of the law, having different laws for different people
doesnt thus make sense. Religious laws tend to be archaic and seem to
even be patriarchal and detrimental towards women. Religion is a personal
thing and law is the interest of the public. Yes there are many roadblocks
towards the road to a uniform civil code and forcing everyone to adopt it is
not only a difficult choice it is also an ethical one.
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