Uniform civil code will ensure gender equality
The idea of one-nation-one-law will serve the citizens and ensure the goal of absolute social justice. Undoubtedly, it is high time to achieve political consensus on UCC without delay
On March 24, the Uttarakhand cabinet formed a committee of experts to implement the Uniform Civil Code (UCC) in the state. The UCC, as envisioned under Article 44 of the Constitution, provides for the formulation of one law applicable to all religions in matters related to marriage, divorce, inheritance, and adoption. Many feel a common civil code is crucial to reducing conflicts and contradictions from various personal laws. If UCC is promulgated in Uttarakhand, the state will be the first one to do so in India. A version of UCC survives in Goa through Section 5(1) of the Goa, Daman and Diu Administration Act, 1962, under the Portuguese Civil Code, 1867. This code was retained even after Goa was annexed to Indian Union in 1961.
The prolonged delay in the implementation of UCC in India has been due to the unwillingness of previous ruling political parties. The Bharatiya Janata Party has been demanding its implementation since Jana Sangh era. Even the Indian judiciary has been urging governments to implement UCC but to no avail.
The best chance for implementing UCC was after the Shah Bano case verdict. In 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court, demanding maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973, from her divorced husband MA Khan. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce, too, if she cannot fend for herself.
However, Khan contested the claim because the Muslim Personal Law in India required the husband to only provide maintenance for the iddat (the waiting period a woman must observe after the death of her husband or divorce before she can marry another man) period after divorce. Khan’s argument was supported by the All India Muslim Personal Law Board. The Board contended that courts could not interfere in those matters laid out under Muslim Personal Law, adding that it would violate The Muslim Personal Law (Shariat) Application Act, 1937. After detailed arguments, the Supreme Court in 1985 upheld the high court's decision that gave orders for maintenance to Shah Bano under CrPC.
This historic verdict could have been the best chance to implement UCC. Still, the judiciary’s efforts were nullified when the Congress government, led by late Rajiv Gandhi, perceived the ruling as anti-Islamic. By doing so, it ignored the fundamental rights of women and their children. It passed the Muslim Women (Protection on Divorce Act), 1986, which overturned the verdict in the Shah Bano case and said the maintenance period could only be made liable for the iddat period. Many were annoyed by this move, and to counter it, the Congress tried to appease Hindus by granting shilanyas rights at Lord Ram Lala, Ayodhya.
So like Shah Bano, many other intra-faith marital victims cannot be protected even today, thanks to the multi-judiciary system for personal laws.
In 2021, the Delhi high court also backed the need for a UCC and asked the Centre to take the necessary steps. The court noted that modern Indian society is gradually becoming "homogeneous", dissipating “traditional barriers” of religion, community, and caste, and in view of these changing paradigms, a uniform civil code is in order. The judgment was passed by Justice Prathiba M Singh on July 7 on a plea involving the applicability of the Hindu Marriage Act, 1955, in respect of parties belonging to the Meena community. Justice Singh observed that courts had been repeatedly confronted with the conflicts that arise in personal laws. She observed that people belonging to various communities, castes, and religions, who forge marital bonds, struggle with such conflicts.
Not only marital but other personal laws like succession and customary laws also deprive women of their legitimate rights. Even today, daughters are not equal heir to ancestral rights either customary or of assets in some personal law while Hindu Succession Act 2005 and the 2020 amendment also upheld coparcener’s legal right i.e. daughters are now coparcener by birth, justifying her right in the same manner as the son.
A common civil code will ensure gender equality. Hence the idea of one-nation-one-law will serve the citizens and ensure the goal of absolute social justice. Undoubtedly, it is high time to achieve political consensus on UCC without delay.
Dr Tulsi Bhardwaj is an academician, Indian University and endeavour post-doc fellow awardee by the Australia government; and an executive member, western UP BJP Team.
The views expressed are personal