Here is your essay on the Importance of Uniform Civil Code in India:
‘Secularism‘ is a basic feature of the Indian Constitution. It means a state which has no religion of its own as recognized religion of state.
In a secular state, the state regulates the relation between man and man. It is not concerned with the relation of man with God.
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India is a multi-religious country, and every religion has its own philosophies, own concepts and rules about marriage, divorce, adoption, etc. and our constitution protects all religions. India has no religion of its own. It treats all religions equally.
Indian constitution embodies the positive concept of secularism.
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India has a multiplicity of family laws. Every religion has its own personal law and because of secular concept of India every religion follows its own personal laws. Christians have their own Christian, Marriage Act 1872, and Indian Divorce Act, 1869; Parsis have their own Marriage and Divorce Act, 1936.
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Hindus have their own Hindu Marriage Act, 1955, Muslim law is still uncodified and traditional; there is also a Special Marriage Act, 1956, which is a secular code of marriage law of a general nature under which any two Indians irrespective of their religion may marry but it is an optional law of which any two Indians can take advantage and thus we can say that family law in India is communal in so far as each community or religious group has its own distinct law for given domestic affairs and relations. But it creates confusion; nowadays family law is thus a maze, because what law will apply to a person depends on the religion he follows and so many complications arise in the family laws.
There is no homogeneity in India in matters of marriage succession and family relation. Not only there is diversity of laws, but the diverse laws have diverse provisions on similar point and all this creates very confusing situation at present.
E.g. (1) Monogamy has been introduced for everybody except Muslims, who still enjoy privilege of having four wives at a time, etc.
(2) Only Hindus can adopt a child in the sense of affiliating him or her legally and confer on the child rights of property. Others cannot adopt even if they want to do so. They have to take recourse to the Guardian and Wards Act, but guardianship over a child falls far short of conferring the legal status of a son on the ward.
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(3) The various divorce laws prevalent in India at present are also inexplicable and indifferent on some matter of dissent of marriage such as—Parsi law requires a three year period of separation and it could serve as a ground both for judicial separation or divorce, while Indian Divorce Act provides for a period of two year separation and makes it a ground for judicial separation only and it is to say that each law suffers from some deficiencies and identical matters show differences.
It is true that present day family law is a mixture of old and new; it is of complicated, incoherent and non-symmetrical nature and so there is need for such a code which will do away with diversity in matrimonial law. Family laws of religion need to be changed in view of contemporary social circumstances.
It is important to simplify the Indian legal system to make Indian society more homogeneous; only then the idea of a secular society can be achieved and for these there is need for uniform civil code for all religions.
Article 44 of our Constitution says that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
In a historic judgment in Sarla Mudgal v. Union of India (1995) 3 SCC 635, the Supreme Court directed the P.M. Narsimha Rao to take a fresh look at Art. 44 of the Constitution, which enjoins the state to secure a uniform civil code which, according to the court is imperative for both protection of the oppressed and promotion of national unity and integrity.
The provision of Art. 44 of the Constitution today, as regards the question of uniform civil code has become the most debatable question.
The Division Bench (Kuldip Singh and R.M. Sahai) in then- separate but concurrent judgment said that since 1950 a number of Governments have come and gone but they have failed to make any efforts towards implementing the constitutional Mandate under Art. 44.
The consequence of the problem today is that many Hindus have changed their religion and have converted to Islam only for the purpose of escaping the consequences of bigamy; this is so because Muslim law permits more than one wife, to the extent four.
Many petitions were filed on this topic. One petition was filed by a registered society working for the welfare of woman as ‘public interest litigation’.
The second was filed by one Meena Mathur. The third case by Sunita Alias Fatima, etc. after the judgment of famous Sarla Mudgal case.
In this case, the question arose that, whether a Hindu husband married under Hindu Law, after conversion to Islam, without dissolving the first marriage can solemnize a second marriage. The Court has held that such a marriage will be illegal and the husband can be prosecuted for bigamy under section 494 of the I.P.C. and to eliminate such types of evil practices from society the Supreme Court held that, there is need for uniform civil code to take up such situations.
It is true that India has set before itself the ideal of a secular society and in that context achievement of a uniform civil code becomes all the more desirable. Such a code will do away with diversity in matrimonial laws, simplify the Indian legal system, and make Indian society more homogeneous. It will delink laws from religion which is a very desirable objective to achieve in a secular and socialist pattern of society.
The uniform civil code will contain uniform provisions applicable to everyone and based on social justice and gender equality in family matter. Its provisions will be fair and equitable so that every member of the society may have a feeling of equality of social status from major social change and will thus create a national identification.
In variety of judgments the court has aroused the hope that one of the greatest evil of Indian society will be removed. In Pragati Varghese v. Cyril George Varghese (AIR 1997 Bom. 349) the full Bench of the Bombay High Court has struck down section 10 of the Indian Divorce Act under which a Christian wife had to prove adultery along with cruelty or desertion while seeking a divorce on the ground that, it violates the fundamental rights of a Christian woman to live with human dignity under Article 21 of the Constitution.
The court also declared sections 17 and 20 of the Act invalid which provided that an annulment or divorce passed by a District Court was required to be confirmed by 3 Judges of the High Court. The Court said that section 19 of the Act compels the wife to continue to live with a man who has deserted her or treated her with cruelty; such a life is sub-human.
There is denial to dissolve the marriage when the marriage has broken down irretrievably. But such types of judgment of court are criticised by many who are opponents of uniform civil code and many controversies arose out of such issue the famous one is Shah Bano Case.
During the debate in the Constituent Assembly on Art. 44, several Muslim members had expressed the fear that implementation of Art. 44 would abrogate their personal law. Persons, who oppose the code, argue that, India has been declared to be a secular state and according to Articles 25 to 29 there is freedom of religion.
It even extends “to manage its own affairs in matter of religion”; such people strongly oppose implementation of uniform civil code and say that the code is unconstitutional to their freedom of religion. They oppose the code, because of the existence of conservatism among certain sections of the Indian population, and Governments defer to these sentiments because of political considerations; political parties, (Legislature) oppose this code because of their selfish interest; they do not interfere in the personal laws of Muslim or minority population because if they give support to uniform civil code, it becomes dangerous to their vote bank thus because of their personal interest, they oppose the code and it becomes extremely difficult to have any progressive measure in the area of family law.
For example sometime back, the Government introduced in Parliament the Adoption of Children Bill, 1972; seeking to add a secular and uniform law of adoption to govern all adoptions irrespective of religion of the parties involved.
It would have repeated the Hindu Adoption Act. For the Hindus, the proposed law would have secularized the law of adoption based on the legal friction having a religious and sacrament basis. But, even this permissive and optional law was opposed by orthodox people.
In Shah Bano’s case, (Most controversial case) the Supreme Court through Chandrachud, regretted that Art. 44 has remained a “a dead letter” so far and chided the Government for not undertaking to enact uniform civil code as required by Art. 44. The court observed that:-
“There is no evidence of any official activity for framing a common civil code for the country. A common civil code will help the cause of National Integration by removing disparate loyalties to laws which have conflicting ideologies according to present position.
The only tangible progress made so far in the direction of a uniform civil code has been the partial codification of the Hindu Law and the enactment of the secular Special Marriage Act.
The debate is going on whether the state should undertake enactments of a uniform civil code or reform of individual personal law. A proposal has now emerged that, to start with, let there be a voluntary uniform civil code, and this seems to be a worthwhile proposal. The first step in this direction may be the enactment of a common law of divorce applicable to everyone superseding all the disparate laws of divorce now prevalent in India.
The ideal of a uniform civil code for all India is regarded as eminently desirable to foster the sense of national unity and integrity. But the great hindrance in achieving this most desirable goal is the orthodox public opinion against it.
The traditional, conservative, religious opinion still holds sway over the Muslims, and we can also say that Government regards it as a politically sensitive issue and so hesitates to proceed. Till there is a better appreciation among the Muslims until then the law in its present day confused and variable state will continue dividing the people on a religious basis something which does not go well with the secular concept.
And finally it is recommended that to make the idea of uniform civil code successful firstly, implement enactment of a common law of divorce applicable to everyone, all castes, because it is true that the problem of dissolution of marriage being essentially social and not religious, the grounds of dissolution of marriage,… of Restitution of Conjugal right, period of judicial separation are all same for all religions. If it happens, the uniform civil code is likely to be effective. There is urgency to bring about a uniform civil code.