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Making the code

The Congress missed a golden chance of enacting a uniform civil code in the Shah Bano case. Discriminatory practices must be outlawed and reason be made more dominant over sentiment. Vijay Kumar Malhotra writes.

india Updated: Mar 06, 2009 13:19 IST
Vijay Kumar Malhotra
Vijay Kumar Malhotra
Hindustan Times

A marriage that is void does not exist in the eyes of the law. Unfortunately, many political parties that profess to be secular pander to obscurantist forces. One recalls a call by the Supreme Court (SC) to Parliament in 1985 to frame a Uniform Civil Code (UCC).

It was in the Shah Bano case that the SC held that a Muslim woman has the right to receive maintenance from her husband under Section 125 of the Criminal Procedure Code (CrPC). But the Congress government overturned the judgement by enacting the Muslim Women (Right to Protection on Divorce) Act, 1986, curtailing the right of a Muslim woman for maintenance under Section 125 of the CrPC. A plea was taken by the government that the SC had not made it binding on the government or on Parliament to enact the UCC and that personal laws should not be interfered with unless there is a demand from within.

In the case of Sarla Mudgal vs Union of India, the issue was whether a Hindu husband, married under the Hindu Law, can solemnise a second marriage by embracing Islam. The SC held that a conversion to Islam and remarriage would not, by itself, dissolve the Hindu marriage under the Act passed in 1955.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and such matters are of a secular nature and the law can regulate them. When it was argued that the possibility of a uniform civil code might be a repackaging of the Hindu Law, the then Prime Minister AB Vajpayee said that there would be a new code based on gender equality and comprising the best elements in all personal laws.

The new code would impose monogamy banning multiple marriages under any religion. The grounds and procedure for divorce should be specifically laid down. Provisions on matters such as succession and inheritance should be included in the common code. Discriminatory practices must be outlawed and reason be made more dominant over sentiment.

Vijay Kumar Malhotra is Leader of Opposition, Delhi Legislative Assembly