By Justice Kamaljit Singh Garewal
There does not seem to be unanimity in our secular republic to legislate a Uniform Civil Code (UCC), a code which shall cover all aspects of personal laws, uniformly applicable to each and every citizen. Opinions regarding the uniformity of the Code were at one time deeply divided between conservatives and liberals of all hues. It’s difficult to locate the Golden Mean. The position has improved because the Supreme Court has been periodically calling for UCC. There is a section of urbane middle-class, call them rationalists or pragmatists, who are confident that a Uniform Civil Code shall work and should be drafted. But this is still a distant dream.
In fact, the Law Commission of India under the Chairmanship of Justice BS Chauhan, former judge of the Supreme Court, wrote a well researched paper on Family Laws in August 2018 and realised there were many difficulties in writing a UCC.
The need to have a UCC has existed since time immemorial, that is to say, from January 26, 1950, when Article 44 (Article 35 of the Draft Constitution) came into existence requiring “the State to strive to secure for its citizens a Uniform Civil Code”. The best opportunity was probably in 1950 itself, but it was lost in the tumultuous birth pangs of the nation. At that time, it was important to keep our extremely diverse nation united. In the intervening 72 years, not much progress has been achieved because the desired political stability and consensus of opinion has been lacking. Anyhow, it was a great achievement that Hindu laws of marriage, succession, adoption, minority and guardianship were codified in 1955-56, a victory for women’s rights and modernity, but it did not help Muslims, Christians, Jews or Parsis.
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HISTORY OF PERSONAL LAWS
Hindu shastras gave us the law, written in Sanskrit, understood and interpreted by Brahmins and enforced by kings. Typical issues would be succession disputes over property or trials for crimes. Legal systems weren’t complicated because there were answers for all types of cases found in the shastras.
Likewise, shariat law ruled over Muslims, written in Arabic, understood and interpreted by kazis and enforced by nawabs.
With the arrival of the East India Company in Bengal, the English began to enforce English Common Law on their English subjects, which led to the establishment of courts of law on the lines of courts in England. But when it came to judging disputes between their native subjects, questions arose regarding which law to follow. Naturally, the Brahmins and the kazis would be called to give their opinions according to the shastras or the shariat. Ultimately, by 1862, High Courts came to be established over large parts British India and disputes began to reach them, to be decided according to respective religious laws.
This also led to the codification of laws like the Caste Disabilities Removal Act, 1850; the Hindu Widow (Remarriage) Act, 1856; the Guardian and Wards Act, 1890; the Anand Marriage Act, 1909; the Hindu Disposition of Property Act, 1916; the Hindu Inheritance (Removal of Disabilities) Act, 1928; the Hindu Gains of Learning Act, 1930 and the Hindu Women Rights to Property Act, 1937.
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Similarly, many Muslims laws got codified like the Kazis Act, 1888; the Mussalman Waqf Acts of 1913, 1923 and 1930; the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939. This seems to be where things stood when the Drafting Committee of the Constituent Assembly began its work in 1946.
DELIBERATIONS BEFORE THE DRAFTING COMMITTEE
The Drafting Committee deliberated on the Uniform Civil Code (Article 35 in the draft) on November 23, 1948, with Dr HC Mookerjee in the Chair. Mohamad Ismail (Madras) moved that a proviso be added to Article 35: “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.” He submitted that matters of retaining personal law had precedents in Yugoslavia where: “The Serb, Croat and Slovene States agreed to grant to the Mussalmans in the matter of family law and personal status provisions suitable for regulating these matters in accordance with Mussalman usage.” He concluded by saying that for creating and augmenting harmony in the land it was not necessary to compel people to give up their personal law.
Nazirudin Ahmed (Bengal) moved to add the proviso “that the personal law of any community which has been guaranteed by the statue shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law”.
He forcefully submitted that
“this is not a matter of mere idealism. It is a question of stern reality which we must not refuse to face and I believe it will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country. What the British in 175 years failed to do or were afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the State to do all at once. I submit, Sir, that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy”.
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During the debate, Dr BR Ambedkar had said that before the Muslim Personal Law (Shariat) Application Act, 1937, Muslims in many parts were governed by Hindu law and even the Marumukkatayam system of inheritance and succession which had been prevalent in many of the southern Indian states. The debates revealed a lack of consensus about what a Uniform Civil Code entailed. KM Munshi and Alladi Krishnaswamy Iyer also rose to oppose the proviso.
Reading the debates 74 years later, one is definitely enlightened. Speakers on both sides of the debate were learned men concerned about the future of India and were expressing their views dispassionately, with clarity, a great sense of responsibility and a deep understanding of the issue. It emerged that a number of existing laws were of universal application like the Indian Penal Code and Contract Act and the two Procedure Codes. The sticking point then and even now is whether there should be a code of personal laws as well for universal application for all or would such a Code infringe the freedom of religion of some.
Some speakers felt the Code could co-exist with personal laws, some felt it should replace personal laws, while some others felt that it may conflict with religious freedom. The provisos which some members had moved to exclude personal laws from the UCC were defeated. Resultantly, we have Article 44 as it stands today, but very little progress to show. The stalemate continues as if the defeated provisos are still part of Article 44.
A FEW IMPORTANT CASES
We got our UCC as a Directive Principle of State Policy and yet we don’t have one, perhaps never will. The clash between personal laws and the Constitution began early as the grounds had been clearly laid down in the Constitution itself. After the coming into force of the Constitution, any law in force, if inconsistent with fundamental rights, was void (Article 13) and all existing laws were saved (Article 372).
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One of the first cases of challenge to a personal law arose in the State of Bombay where a man was convicted for bigamy under the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The convict appealed and argued that the law violated his religion and was void. The reason given was that a Hindu could not reach salvation unless he had a son to perform his last rites and he was permitted by the Hindu religion to marry the second time if his wife did not bear him a son. The bench which heard the matter comprised of the most distinguished judges: Chief Justice MC Chagla and Justice Gajendragadkar. The facetious argument was rejected and the law was declared valid (The State of Bombay vs Narasu Appa Mali (A.I.R. 1952 Bombay 84).
In the well known case, Mohd Ahmed Khan vs Shah Bano Begum (A.I.R. 1985 Supreme Court 945), the question of Muslim personal law came up when the Muslim husband appealed against an order of maintenance under Section 125 CrPC, obtained by his wife after 40 years of marriage and five children. The five-judge bench of Chief Justice YV Chandrachud with Justices DA Desai, O Chinnappa Reddy, ES Venkataramiah and Rangnath Misra relied on two judgments of Justice V Krishna Iyer and held that a divorced Muslim woman was entitled to maintenance under Section 125 CrPC.
The Court also observed: “Article 44 of our Constitution has remained a dead letter. 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. It is the State which entrusted with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the Constitution is to have any meaning.” However, the government overturned the decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure.
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A rather piquant situation arose in Jordan Diengdeh vs S.S. Chopra (reported as A.I.R. 1985 Supreme Court 935). The couple was married in 1975 under the Indian Christian Marriage Act, 1872. The wife sought nullity of marriage under the Indian Divorce Act, 1869, but instead, the trial judge granted judicial separation. When the matter reached the Supreme Court, Justice O Chinnappa Reddy recorded that under the Act, judicial separation did not lead to divorce after one year, as in the case Hindu Marriage Act, 1955.
It was also found that:
“A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act 1939, show that the law relating to judicial separation, divorce and nullity of marriage was far from uniform. Time had come for the intervention of the legislature provide a uniform code of marriage and divorce as envisaged by article 44 and to provide a law for a way out of the unhappy situation in which couples find themselves. It is necessary to introduce irretrievable breakdown of marriage, and mutual consent as grounds of divorce in all cases.”
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Fast-forward to the most recent judgment of the Supreme Court in Shayara Bano vs Union of India (2017) 9 SCC 1, which by a majority of 3 to 2, held the Muslim practice of triple talaq to be unconstitutional. This judgment led to the passage of the Muslim Women (Protection of Rights of Marriage) Act 2019, making triple talaq illegal and void.
This is definitely a step forward to give the nation a Uniform Civil Code, but the road is still long and the destination far. The minority view that personal law is protected under Article 25 may still have to be overcome. The tussle between Articles 25 and 44 of the Constitution is nowhere near conclusion.
Nevertheless one could say that the Uniform Civil Code for Hindus has been in operation since 1955. UCC will only shine as a monumental achievement if nationally accepted, but will be a monumental folly if imposed only to be rejected by any one group or community.
The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York