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Of Uniform Civil Code & other laws

EARLIER THE Bharatiya Janata Party (BJP) used to lay much emphasis on the Uniform Civil Code. But now for all practical purposes it has been quietly put on the backburner. Perhaps, it's rightly so. Because, it is not very practicable in immediate implementation.
None | By Retd. Justice K.N. Goyal
PUBLISHED ON JUL 30, 2006 12:02 AM IST

EARLIER THE Bharatiya Janata Party (BJP) used to lay much emphasis on the Uniform Civil Code. But now for all practical purposes it has been quietly put on the backburner. Perhaps, it's rightly so. Because, it is not very practicable in immediate implementation.

True, it is that our entire Criminal Law (substantive as well as procedural) and our laws of contract, torts, equity, and also civil procedure are uniform for all communities. The problem, however, arises only in respect to marriage, divorce, adoption, maintenance and succession.

Now, so far as marriage is concerned, there is already a Special Marriage Act, which is available to all communities alike, on a voluntary basis though. It is also true that Hindus, Muslims, Parsis alike when they migrate and settle in a western democracy, whether England, rest of Europe or USA they are governed in these matters also by the same laws that govern the majority community (Christians). But in a country like India the problems are different.

When people from this sub-continent go to the West they do so out of free will — mostly for economic or educational reasons. They know, or are supposed to know, what lies in store for them when they go there. Here in our country they were born and from their birth have been governed by a different personal law.

Although many Muslims had adopted the practices and customs of their Hindu neighbours and were governed by the same law, the British in 1937, a decade before going away from here, passed a law in order to ensure that they all got governed by the Shariat. Now, that's almost seven decades ago. 

Gradually, due to economic progress and advance of education and greater social mixing, many Muslims are gradually adopting a more liberal attitude and the gulf of differences is narrowing.

As for monogamy, even now Muslims who apply or join a government service are governed by the same rules. These rules disqualify polygamous persons from appointment, etc. If polygamy is contracted while in service they are liable to dismissal. The same rules apply to the entire public sector.

The prohibition of polygamy even among Hindus and Christians is not very effective. An infringement is no doubt a criminal offence, but prosecution is possible only when the wife complains. In most cases, the wife does not like to initiate such proceedings. Instead she quietly carries on, trying to keep the family united, so that she and her children do not suffer any further.

Among famous bigamy cases are those of actor-MP Dharmendra and senior politician Ram Vilas Paswan. Chief Ministers and other politicians coming from a tribal background have also been taking two wives with impunity. The Hindu Code itself exempts tribals from this and other provisions. Likewise among Muslims too, although four wives are permitted most for economic and other reasons are in practice content with one wife. Polygamy has become, even among Muslims, more an exception than a rule. On the whole, though it is more widely practised among Muslims than others.

Then why bother about these exceptions? Hindus have not yet mustered courage to bring even tribals under their common umbrella, so why raise unnecessary ruckus over Muslims?

Social and economic reasons will automatically work to further reduce the percentage of polygamous Muslims.

For maintenance for divorced wives under Section 125 Cr. PC the Shah Banu case had, following several earlier cases, held that it applied to Muslims also.

The furore among Muslims arose at that time not so much because of the decision but more because of the unnecessary obiter dicta of Chief Justice Chandrachud, who further tried to interpret the Shariat so as to support the decision and also for his insistence on a uniform code.

Buckling under fundamentalist pressure Rajiv Gandhi tried to take Muslims out of Section 125 and to enact a separate act for them. But even under the new act courts have been taking almost the same view and no protests have been heard. After all, the fundamentalists are also politicians and they would not like to alienate the female vote bank unnecessarily.

Article 21 of the Constitution has also been broadly interpreted over the years.

It now includes the right to a meaningful life, which means that widows and divorced women can also claim this right.

On adoption a voluntary common statute on the lines of special marriage act should be possible, even though the Janata Party's attempt in this behalf in 1978 was frustrated by Imam Bukhari and others.

Since then Justice Rebeillo of the Bombay High Court among others, has held, in a case relating to Christians that even among communities which have no adoption law the twin human rights, namely, the right of an abandoned child to a name and a family and of a childless couple to bring additional joy in the family through an adopted child make it a mandatory part of their human rights. Article 21 of the Constitution comes into play here.

The judge ruled that under the inherent powers of the high court in its locus parentis jurisdiction a child taken by an issueless Christian couple under its guardianship could be given in formal adoption. The old Guardians and Wards Act and now even more so the Children Act (initiated by Maneka Gandhi) are useful vehicles, which are being increasingly used by such Muslim couples too. Many Hindus too will not like to give up their separate HUF status which is a useful income tax saving device. The Muslim waqf law is even more beneficial for Muslims in several respects.

Moreover, the Hindu Succession Act does not apply to tenancy laws. The Muslims and Christians too are, in a respect of 'bhumidhari', governed by, for instance, the UP Zamindari Abolition and Land Reforms Act.

Even Mulayam Singh Yadav has not heeded the AIMPLB's repeated appeals to amend the law. The realities of the countryside rule out a share in inheritance to such land for daughters (which normally means, sons-in-law) with sons.

So it is better to let the law evolve gradually towards uniformity than to make it a political issue, which only further divides the communities and the body politic.

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