Uniform Divorce Law: Step Towards Uniform Civil Code?

uniform civil code

With a PIL for uniform divorce laws making headlines, debates about a uniform civil code are rife again. What is a uniform civil code, what would it entail and what are the concerns around it, N13 explains.

The uniform civil code (UCC) is again in the limelight. This time because of a Public Interest Litigation (PIL) filed in the Supreme Court. The plea says different modes of divorce currently governed under the personal laws violated the right to equality. It says personal laws offer varied means of maintenance and alimony to women belonging to different religions. The PIL asked the apex court to declare that the grounds of divorce under personal laws are violative of Articles 14, 15, and 21.

Hearing the plea, the apex court issued notice to the Centre seeking its response on uniform grounds of divorce for all citizens. The plea was filed by lawyer and social-political activist Ashwini Upadhyay. A bench, headed by Chief Justice S A Bobde, heard the matter on 16 December.

What does the new petition at SC seek?

The plea seeks uniform grounds of maintenance and alimony for all Indian citizens. The ground, it says, should be gender-neutral and religion-neutral. Also, the PIL said the basis of this should be Articles 14, 15, 21 and 44 of the Constitution.

Article 14 guarantees equality before the law. It offers equal protection of laws. Article 15 prohibits discrimination. It also enables the Centre to make special provisions for women and children. Article 21 guarantees the right to life and liberty. Article 44 sets the goal for a uniform civil code for all Indian citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India, it says.

The PIL argues that the laws relating to maintenance and alimony are complex. It also says the laws are against the constitutional mandate of being equal, rational and just.

What are personal laws?

In India, there are common criminal laws. However, for certain matters like marriage, divorce, and inheritance, there are religion-based personal laws. Personal laws respect religious texts and the rules set by them and work accordingly. These laws govern people belonging to different religious communities differently. 

For example, when it comes to marriage there is no common law. The marriage of Hindus is governed by the Hindu Marriage Act, 1955. Muslim marriages are governed by the Muslim personal law. BR Ambedkar, during a debate at the Constituent Assembly, said the country practically had a Civil Code.

“We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country,” Ambedkar had said.

Marriage and succession were the only provinces the Civil Law has not been able to invade, he observed then. The debate that personal laws are discriminatory is very old. Personal laws trace their roots back to the British era. They were brought in the early 20th century as an effort of religious reformers (males in almost all cases) and were somewhat retained even after independence.

Read: Understanding Ambedkar

Where does the issue arise?

The Constitution of India promises equality to all citizens. However, personal laws often come across as patriarchal and unjust towards women. Most of the provisions in the personal laws, irrespective of the religion, favours patriarchy. 

For example, in the Muslim personal laws, Triple Talaq system that was declared as unconstitutional by the Supreme Court in 2017, allowed a man to divorce his wife instantly by uttering ‘Talaq’ thrice. It even allowed him to do it via a simple text or email.

When it comes to Hindu personal laws only a man can adopt a child and not a woman, even with her husband’s consent. Earlier the daughters of the deceased male did not even enjoy the same rights as that of the sons in his property, however, The Hindu Succession (Amendment) Act, 2005, amended this.

Under Christian personal laws, Christian women couldn’t earlier obtain a divorce on the grounds of adultery alone. They had to prove cruelty, bestiality and sodomy along with it under Christian Divorce Act 1869. In 2016, the government cleared a proposal to amend some of its provisions.

Parsi daughters who marry non-Parsi men lose their property rights. Non-Parsi women have the right to only half the property of their Parsi husband.

UCC: A political hot potato

Uniform Civil Code or UCC — a standardised law regulating all aspects of personal law — has been a top agenda for the ruling BJP for many years. It was also a poll promise of BJP in the 2019 Lok Sabha polls.

In the 2019 Lok Sabha manifesto, the BJP said there cannot be gender equality till India adopts a UCC. It said the code will protect the rights of all women. The party reiterated its stand to draft a UCC, drawing upon the best traditions and harmonizing them with the modern times.

The BJP government’s first move in this direction, however, was to strike down the practice of Triple Talaq that came under Muslim Personal Law.  In 2017, the Supreme Court called the practice unconstitutional. In 2019, the Parliament passed a law making it illegal and unconstitutional.

The Ministry of Law and Justice in June 2016 asked the Law Commission of India to examine the prospects of uniform civil code. In 2018, the commission presented a report. It said the UCC is neither necessary nor desirable at this stage.

“Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy,” the report said. 

The report emphasized that the goal should be to eradicate discrimination and with that as the focus meaningful differences within personal laws could be preserved and inequality could be weeded out to the greatest extent possible without absolute uniformity.

While it is imperative to ensure justice to women in all religions and communities, experts point out that the idea of reforming personal laws should be driven by women and not by majoritarianism or vote bank politics.

What’s wrong in having a uniform civil code?

Mohamad Ismail, a member of the Constituent Assembly, during the constitutional debates of 1948 argued that the idea of the UCC should be to secure harmony through uniformity. On November 23, 1948, he also warned that such regimentation would bring discontent and affect the harmony. During the same debate, another member, Naziruddin Ahmad said the goal towards a uniform civil code should be gradual and should be done with the consent of the people concerned.

While the Supreme Court has tread with caution regarding the PIL for a uniform divorce law, this isn’t the first time the apex court is handling the subject. In the 1985 Shah Bano case, it had observed that a common civil code will help the cause of national integration. In the 1995 Sarla Mudgal case it said, “Where more than 80 per cent of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance, anymore, the introduction of Uniform Civil Code for all citizens in India.” In several other cases too, the SC had stressed the need to push for a uniform Civil Code. 

But then there’s a problem. And that is India’s diversity. 

A potpourri of different cultures where practices within the same religion differ across regions, bringing in a uniform civil code could be tricky. This is where it is important to have crystal clarity on what the UCC would entail and who drives the cause.

While it is necessary to address the oppression women face in the name of religion, what also needs to be seen is whether a uniform civil code would mean extending the practices of one religion over the others in the current political scenario. In other words, uniform civil code shouldn’t mean making laws of one religion uniform for all. A code, if at all, should be formed after consultations from all the communities in India. Experts note that given the idea behind UCC is eradicating discrimination against women, the liberal aspects of different personal laws could be incorporated to codify a uniform civil code.

While the debate is again on, the reply of the Union government on the SC’s question will decide its direction.

Tail end: The exceptional case

There is one state in India that has a uniform civil code. And that’s Goa. The state has a Goan civil code. Based on the Portuguese Civil Code, 1867, it was introduced after Goa was elevated from being a Portuguese colony to an overseas territory. Barring a few exceptions, people of all religions living in the state have a common law on marriages, divorces, and adoption.

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