UNIFORM CIVIL CODE

Current Affairs

DECEMBER 11, 2016

PLACEMENT PREPARATION COMMITTEE
IIM INDORE

Uniform Civil Code | Placement Preparation Committee

What is Uniform Civil Code?

Uniform Civil Code is a proposal to replace the personal laws based on customs of each major
religious community with a common set of laws that would cover every citizen in India in its
ambit. 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.
Article 44 of the Constitution declares that the state shall endeavour to secure for the citizens a
Uniform Civil Code throughout the territory of India. During the debate in the Constituent
Assembly, Dr. B.R. Ambedkar, while supporting the need to frame a Uniform Civil Code,
expressed the hope that its application might be purely voluntary.
While there is a criminal code which is applicable to all people irrespective of religion, caste,
tribe and domicile in the country, there is no similar code when dealing with respect to divorce
and succession which are governed by Personal Laws. The Uniform Civil Code seeks to
administer the same set of secular civil laws to govern all people.
The Supreme Court has reminded the Centre thrice of its obligation to enact a Uniform Civil
Code (UCC) as enshrined in Article 44 of the Constitution. Similar sharp reminders from the
court also came in the past, but the ruling orthodoxy in all religions resisted the idea.

Why is it needed?
A set of laws to govern personal matters of all citizens irrespective of religion is the cornerstone
of true secularism. It would help end gender discrimination on religious grounds and
strengthen the secular fabric.

Why is it in the news?

The development came after a Muslim woman, who was divorced by her husband through a
phone call from Dubai, challenged the Muslim practices of polygamy, triple talaq (talaq-e-bidat)
and nikah halala, leading the Supreme Court to seek response from the Centre on her plea.
For the first time in India's constitutional history, the Centre had on October 7 opposed in the
Supreme Court the practice of triple talaq, 'nikah halala' and polygamy among Muslims and
favoured a relook on grounds of gender equality and secularism.
After periodic reminders from the Supreme Court through observations while dealing with
matrimonial cases involving mainly Muslim women, the current UPA government has asked the
Law Commission to examine the viability of implementing a Uniform Civil Code in the country
based on the best elements from various existing personal codes.

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The Uniform Civil Code is currently gathering momentum and this is happening in two phases.
The first is action against triple talaq, which the All India Muslim Personal Law Board,
dominated by men, wants to retain. Triple talaq is a quick divorce option for men, which many
Muslim nations, do not permit. The government wants to make it illegal and the courts are on
its side.
Triple talaq has been banned in Pakistan, Bangladesh, Iran and even Saudi Arabia, because as
per Islam, there has to be a gap of one menstrual cycle between each time the man utters the
word talaq. This ensures that divorce is not given in a fit of rage and the man has time to cool
down and think rationally over his decision. While in India, talaq can now be given via SMS
or email.
The second issue is the matter of polygamy, which is where the real interest of Hindutva lies. It
is felt that polygamy is the instrument through which Muslims reproduce faster than Hindus
and at some point will become a majority
It is true that except Bangladesh and Indonesia, every Islamic country has a uniform law based
on Sharia which applies even to non-Muslims. But it is also true that in virtually all other
countries where Muslims live in significant numbers there is a uniform law both civil and
criminal. Even in India, Goa still practices a common civil code, which has been the law since
1867 when the state was under the Portuguese colonial rule. Admittedly, this code allows some
flexibility to certain religious or customary practices that are debatable, but the point is that on
principle there is one civil law for all the Indian citizens living in Goa. And the Muslims in the
state are quite comfortable with it.

Arguments in favor of Uniform Civil Code

1. Child Marriage
Statistics:

30.2% of all married women, or 10.3 crore girls, were married before they had turned 18 Census 2011

Nearly 12 million Indian children were married before the age of 10 years, 84% of them
Hindu and 11% Muslim - IndiaSpend analysis of Census 2011

51.2% women in Rajasthan, aged between 20-25, were married off before the age of 18 Annual Health Survey (2012-13)

It is known and stated several times that early marriage is the cause for poor maternal health
and higher infant mortality rates apart from the reason behind low level of education.
National Family Health Survey (NFHS 3) has showed that 16% or one in six girls in the age group
of 15-19 had started bearing children.

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Even as judiciary has set 18 as minimum age for a girl to marry in India, the Muslim Personal
Law states that a girl is "competent" to get married if she attains puberty or completes the age of
15 years.
In various communities, where joint family culture still exists, all the girl children are married at
once to save on money. An example of this is Bhauri.
2. Polygamy
Polygamy, the practice of having more than one wife, is another problem that Uniform Civil
Code will address. According to conditional polygamy provision, Muslim men are allowed to
have more than one wife. In some section of Hindus, usually in rural areas, Polygamy is
accepted, often with approval by earlier wives. It is to be noted that Polyandry has been
traditionally permitted in a few Hindu tribes.
In 2014, Bharatiya Muslim Mahila Andolan made fresh efforts by drafting a law that seeks a ban
on polygamy. Aimed at further codifying Islamic legal provisions regarding marriage, it will
make all polygamous marriages illegal.
BMMA co-founder Zakia Soman insisted that it would allow those fighting for gender justice to
have the support of the law.
Statistics:

Latest census data showed that there are about 6.6 million more women who are
"currently married" than men. The data indicated that there are a very large number of
women in polygamous marriages.

The 2005-06 National Family Health Survey (NFHS-3) found that 2% women reported
that their husband had other wives besides herself. Husbands of women with no children
are more likely to have multiple wives.

3. Divorce
Hindu personal law sanctions divorce on the ground that they have been living separately for a
period of one year or more. Christian personal law says the time period for filing a petition for
the divorce has to be after 2 years or more. Muslim personal law allows a man to divorce his wife
after saying talaq thrice.
Triple Talaq has been criticised severely in the recent times. It has been criticised by the Centre
as well as the Supreme Court.
4. Inheritance
An amendment to the Hindu Succession Act now gives daughters rights to ancestral wealth
equal to that of the son. According to Muslim personal law, daughters share is equal to one-half
of the sons, keeping in mind that a woman is worth half a man.

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5. Separation
Personal laws also make it difficult for couple to apply for divorce due to different marriage
laws/act. The Bombay High Court in 2013 held that a Hindu married to a non-Hindu in
accordance with Hindu rituals cannot seek divorce under the Hindu Marriage Act.
Similarly, the Christian laws on marriage, divorce, maintenance and succession appear to be
similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of
two years mandatory for mutual divorce. In other statutes like the Special Marriage Act, Hindu
Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year.
Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased
kids.
In attempting to reform and codify the Hindu Law in the first instance, the idea was that if it
succeeded, other communities would follow suit, but this didnt happen. However, this does not
mean that existing personal laws should remain unaltered.

Arguments against the uniform code

Legislative reforms in different religious and tribal groups have created a greater degree of
uniformity among different personal laws so much so that the uniform civil code has become
more or less irrelevant. There is more debate and dissent within communities and a concerted
attempt to reform family law from within. They also point out that India already has optional
civil code in the form of the Special Marriages Act, 1954. This Act read with other similar Acts
such as the Indian Succession Act, 1925 provides an excellent legal framework for all matters of
marriage, divorce, maintenance and succession for those who wish to avoid religion-based laws.

Issues in implementing Uniform Civil Code (UCC)

1. Absence of Uniformity
The talk of UCC, in the absence of uniformity in most other laws prevailing in the country, is
premature. Even the Criminal Procedure Code and the Civil Procedure Code are not uniform
throughout the country as they have been amended and modified by various State
Governments.
2. Diversity in laws
A comparative study of the personal laws of the Hindus, Muslims and other minorities will
reveal that the sheer diversity of these laws, couples with the dogmatic zeal with which they are
adhered to, cannot permit uniformity of any sort.

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3. Heterogeneity of the Hindu Law

The heterogeneity of the Hindu law itself is such that even the possibility of uniform Hindu
code is ruled out. Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may
be solemnised in accordance with the rites and ceremonies of a variety of people who come
under the definition of a Hindu.

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