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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
LUCKNOW
Academic Session: 2016-
FINAL DRAFT
“UNIFORM CIVIL CODE:
A SPECIAL REFERENCE TO SHAH BANO CASE”
UNDER THE GUIDANCE OF: SUBMITTED BY:
ABDULLAH NASIR ARUNIMA SINGH
FACULTY OF LAW ROLL NO: 169
DR. RAM MANOHAR LOHIYA SECTION ‘B’
NATIONAL LAW UNIVERSITY B.A. LLB (Hons.), SEMESTER I
SIGNATURE OF PROFESSOR SIGNATURE OF STUDENT
ACKNOWLEDGEMENT
First of all, I would like to thank Abdullah Nasir for giving me this opportunity to make the project on such an interesting topic and all the support and guidance that I have received from him, without which this project could not have turned into a reality.
I would also like to thank all my colleagues and seniors for providing me support and material facts and figures related to this topic.
Last but not the least; I would like to thank my parents for providing me appropriate guidance and support to prepare the project.
All the above mentioned people have very whole heartedly helped me to make this project in the present shape.
INTRODUCTION
Uniform Civil Code(hereby referred as UCC) or Common Civil Code is a topic that causes much furor in a pluralist diverse democracy like India and is a topic which has been the hot bed of discussion from its inception into the Indian Constitution. With time it has gained the center stage of the convoluted politics in India, which is driven more by sentiments than logic. It is also a topic which veritably shows how the lack of initiative on the side of legislature would nullify the effect of good counsel by the esteemed judiciary. In short, it is a very controversial topic which irradiates a reader about the hindrance and obstacles in the way of democratic reform in a country like ours.
The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance. As things stand, there are different laws governing these aspects for different communities in India. Thus, the laws governing inheritance or divorce among Hindus would be different from those pertaining to Muslims or Christians and so on.
The demand for a uniform civil code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.
Having a common civil code would mean that the variances and the special provisions that create so much confusion and anger would be uniform. There would not be any difference in the implementation of laws since they will be the same for all and finally all the citizens of the country could be on equal footing. The problem of arbitrary nature of some of the laws would be easily dealt with since then these laws could be challenged easily and removed without facing
the angst of the public. These would be easily amendable and would not be anachronistic in their nature.
Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce and polygamy in the country. The Bano case made it a politicized public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity.
Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere. The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women's rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.
the Shariat Act since they had since old followed certain Hindu customs. He even gave examples of European countries, most of them having a Common Civil Code and that everyone in that country, be it an immigrant or a resident has to follow them.^5 However, Article 44 is in the Part four of the constitution, i.e. it is not enforceable. Article 37 lays down the basic framework wherein the part IV can apply. Part IV contains Articles 37 to 51; it contains what may be described as merely obligations of the state. The directive Principles of State Policy possess mainly two characteristics, first, they cannot be enforced in any court of the country, and second, if state does not follow the guidelines given in DPSPs, its obedience or implementation cannot be secured through judicial proceedings.^6
Part IV of the constitution is designed to bring out the social and the economic revolution promised at the time of independence; these principles which aim at making the Indian masses free in positive sense ordains that the state shall strive to promote the welfare of the whole people. 7
5 VN Shukla, ‘The Constitution of India’(10 edn 2001, Eastern Book Company) 354. 6 VN Shukla, ‘The Constitution of India’(10 edn 2001, Eastern Book Company) 342. 7 ShailjaChander, ‘ Justice VR Krishna Iyer on Fundamental Rights and Directive Principles’ (2003, Deep & Deep Publications) 242.
PERSONAL LAWS
Merriam Webster dictionary defines personal laws as law that applies to a particular person or class of persons only wherever situated- distinguished from territorial law. Personal Laws are that body of laws whose content differs from person to person based on his ethnicity or religion. These laws are separate from the territorial laws, given the universality of the previous one. These generally apply on the matters relating to family law, inheritance, adoption, marriage, divorce, property, etc. It was thought that in order to guarantee the principle of secularism, the state ought to remove the variances in the personal law and replace it with a common civil code since the concept of a secular state presupposes uniform civil code.^8
These are more or less based upon the observed customs and rituals being carried on since time immemorial and legislations which codify them. They are somewhat hereditary in nature; in that laws relating to religion and customs will be assessed based on the standing practices.
The first exercise of separate laws for separate subjects, which is modern day’s contentious topic, was from the time of Sir Warren Hastings. He imposed the Muslim law on Muslims and the Hindu law on Hindus on certain matters of litigation. He believed that it would be a great evil to impose on Indian people a foreign legal system. Britons followed the example of Romans who allowed their foreign subjects the right to practice their own religion and laws.
In course of time, Hastings’ policy of preserving the indigenous Indian laws came to be appreciated and eulogized; it came to be recognized that to ensure the stability of British government in India, it was of fundamental importance the affections of Indians be conciliated. 9
8 Rajeev Bhargava(ed), ‘Secularism and its critics’ (6 edn 2007, Oxford India Publishers) 245,246. 9 MP Jain, ‘Outlines of Indian Legal and Constitutional History’ (6 edn 2008, LexisNexis Butterworths) 530.
THE SHAH BANO CASE: CASE BRIEF AND CONSEQUENCES OF THE
DECISION
Case Name- Mohd. Ahmed Khan v Shah Bano Begum and Others. Citation- AIR 1985 SC 945; [1985] 2 SCC 556; 1985 Cri L.J. Coram- Y.V. Chandrachud, CJ.;D.A Desai (^) , Chinnapareddy , E.S Venkataramiah & Ranganath Mishra JJ
Case history- The appellant who was married to the respondent in 1932, drove her away in 1975 after having three sons and two daughters. The respondent in 1978 filled an appeal I the klocal district court of Indore under Section 125 of Cr. P.C for maintenance provision of rupees 500 a month. The appellant, in November 1978 divorced the respondent by an irrevocable talaq. He argued that the respondent had ceased to be his wife and he was no longer oblignated to maintain her, and that he had deposited a sum of rupees 200 per month for about two years and that he already deposited a sum of rupees 3000 in the court by the way of dower during the period of Iddat. The District court increased it further to Rupees 179.20 per month. The appellant then filled a special leave petition in the Supreme Court under Article 136.
Note- Despite having two case laws applicable namely Baitahira v. Ali Hussain Fidalli Chothia 11 and Fazlunbi v. K. Khader Vali^12 , the division bench comprised of Murtaza Fazalali and A. Varadrajan decided that were not properly decide and referred this matter to a larger bench.
Questions before the court-
- Does Sec. 125 of Cr. P.C applies to Muslims?
11 AIR 1979 SC 362
12 AIR 1980 SC 1730
- Does the Muslim law provide no obligation on the husband to provide for the maintenance of the divorced wife?
- Whether the provisions of sec 125 are in contravention or overriding the Muslim Personal Law Shariat application act 1937
- Whether the liability of husband to maintain his wife is limited to the period of Iddat?
- Whether Mahr is alimony, dower or an amount in consideration of marriage payable at the end of divorce?
Appellants Arguments-
- Under Muslim Personal law, the liability of the husband to maintain a divorced wife is limited to the period of Iddat?
- Sec. 127(3)(b) provides for a valid defense that if a woman has been paid the settlement money under any personal law, she cannot lay claim under Sec. 125 and that Mahr is an amount payable on divorce.
- The discussions of RajyaSabha when passing the Code of 1973 which clearly show that if any change has to come, it has to come from within the Muslim community.
The Judgment-
- Section 125(1)(b) provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.
- Section 125 overrides the personal law, if there is a contravention between the two.
- The appellant’s arguments are insufficient to prove that a Muslim husband is not obligated to provide maintenance to his divorced wife, who is unable to maintain herself.
maintenance. 13 This view was favoured by the liberals, however it was met with strict opposition from the traditionalists. It was seen as if this act would curtail every Muslim’s right to carry on his religion, it was seen as though the state would necessarily violate the principle of secularism and would affect an erosion of Muslim personal laws.
Widespread anger charged amid the masses. The other political interest also sought to use this occasion to secure theirown interests. This anger intensified and it was difficult to control. The knowledge about this act in the minds of the outraging public was scant and this lead to origin or a lot of rumors and misconceptions regarding the decision. The only argument that the traditionalists could come up with while encountering the decision was that it was violative of the Muslim traditional law.
The state had previously codified and reformed the Hindu personal law in 1950s, however this time the situation was rather different. Even though the laws of Hindus themselves were rather varied, they occupied the majority throughout the history of the country. In the cases of reforms in Muslim laws, however, there was a problem that they were in the minority. Since the time of constitutional assembly debates on Article 35(Now Article 44) to the current scenario, any attempt to make reforms or changes in the Muslim laws is met with fierce and often ill-informed resistance. There is an inherent lack of knowledge amongst most of the people about the actual content and implications of the Muslim laws. This ignorance gives way to problems of ignorance which breeds the issue of misinformed choices and resistances. Each step to change and alter laws to make them more in tune with modern scenario is met with distrust due to many caprices.
This situation was no different. The tension led to Shah Bano herself withdrawing her claim of maintenance.^14 The rigid approach of Muslim leadership provided further fuel to Hindu right wing forced in their anti-Muslim propaganda. This placed the secular groups in awkward
13 MP Jain, ‘Outlines of Indian Legal and Constitutional History’(6 edn, 2008, LexisNexis Butterworths) 569. 14 Flavia Agnes, ‘Women and Law in India’ (2006, Rashtriya Printers) 103.
position, and in order to separate themselves from the right wing Hindu forces, they withdrew the resistance.
The Congress faced defeat in several state assembly elections in 1985-86, as the Muslim vote tipped the favour to the opposition parties. Against this backdrop of dwindling support, the government decided to enact the Muslim Women Protection from Divorce Act, 1986. This act was an effort to pacify the Muslim sentiments which were ruffled due to the Government reopening the locks of the disputed shrine in Ayodhya.^15
15 Flavia Agnes, ‘Women and Law in India’ (2006, Rashtriya Printers) 103.
In free India, the Governments made only few attempts to secularize the personal laws or to enact them in such direction. However there are still some laws which prove that the legislature is slowly but steadily trying to secularize the personal laws. The special marriage Act 1954 is one such example. This act for the first time brought a code of a secular code of marriage, divorce and inheritance, the marriage was monogamous and the divorce was permitted on the progressive ground as mutual consent also it enabled Indians to marry irrespective of their religion and without renouncing their religion^21 However it was optional and was not imposed compulsorily on the whole citizenry of the country.
Other acts like the Hindu Code of 1955-56 were seen in dubious light. While some hailed this act as being the first step towards UCC, others thought that it would be better that the Government directly implements UCC. 22 This act brought reforms in the Hindu Personal Law which was rather varied. The step to provide a uniform law governing adoptions was also opposed by the muslim and the scheduled caste community when the Indian Adoption Bill 1976 was enacted giving Indians all over the power to adopt a child of any religion. 23 Even the section 125 which replaced the old Code’s section 488 was secular in that it warranted that any wife unable to maintain herself can claim compensation from her husband and also included within its purview the wives who were divorced and had not remarried.^24 Another significant step is the compulsory registration of marriage under the compulsory registration of marriages Act 2006, Which will strive to curb the problems of child marriages, polygamy and woman’s legal insecurity regarding marital status.^25
21 Ajai Kumar, ‘Uniform Civil Code: Challenges and Constraints’ (2012, Satyam law International) 98. 22 Ajai Kumar, ‘Uniform Civil Code: Challenges and Constraints’ (2012, Satyam law International) 99,100. 23 Ajai Kumar, ‘Uniform Civil Code: Challenges and Constraints’ (2012, Satyam law International)101. 24 Ajai Kumar, ‘Uniform Civil Code: Challenges and Constraints’ (2012, Satyam law International)103. 25 Ajai Kumar, ‘Uniform Civil Code: Challenges and Constraints’ (2012, Satyam law International)106.
CONCLUDING REMARKS
Uniform Civil Code is a rather controversial idea in the modern times, even though the awareness in on the rise in the public yet many myths and misconceptions still prevail in the public. These misconceptions are the root-cause why the government especially the legislature deters from making and implementing UCC provisions. Further even the reforms in the personal laws are viewed with suspicion and hostility as efforts to obliterate and rupture the religion and religious practices. Added to the problems is the short temper and high ignorance of public and over-protectiveness of the state. This breeds the divisionary politics and the vote-bank politics which is harmful for the country.
No doubt that there have been steps taken towards the realization of UCC and secularism and equality however they have been slow. The Supreme Court has often emerged as a protector of civil liberties and has stated on numerous occasions the urgent need for UCC, alongwith its total lack of jurisdiction in the formulation of UCC provisions. In conclusion till the time there is a conscious effort on the part of public or a responsible and foresighted legislature, the dream of the fathers of our constitution will remain a dream and India will not be able to function as a democracy in true emphatic sense.
