Uniform civil code

ACKNOWLEDGEMENTS

It is a great pleasure for me to put on records our appreciation and gratitude

towards Nidhi raman for her immense support and encouragement all

through the preparation of this report. I would like to thank

the college(Siddhartha law college) for providing us with a well-equipped

library. Last but not the least, I would like to thank all the friends and others

who directly or indirectly helped us in completing our project report.

 

CONTENT

1. INTRODUCTION

2. NEED FOR UNIFORM CIVIL CODE

3. UNIFORM CIVIL CODE AND SECULARISM A DEBATE

4. Simplicity in law

5. POSITION OF LEGISLATURE

6. SUCCESSION AND INHERITANCE and MAINTAINENCE

7. UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICAIRY

8. UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY

9. WHT DO WE NEED UNIFORM CIVIL CODE

10. IMPLEMNTATION AT STATE LEVEL

11. CONCLUSION

12. BIBLIOGRAPHY

INTRODUCTION

“The personal law of the Hindus, such as relating to marriage, succession and the like has all a

sacramental origin, in the same manner as in the case of the Muslims or the Christians. The

Hindus along with Sikhs, Buddhists and Janis have forsaken their sentiments in the cause of the

national unity and integration, some other communities would not, though the Constitution

enjoins the establishment of a "Uniform civil Code" for the whole of India”. The personal laws

of the major religious communities had traditionally governed marital and family relations, with

the Government maintaining a policy of non-interference in such laws in the absence of a

demand for change from individual religious communities. India is a land of diverse religions

Hindus, Buddhists, Janis, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in

diversity is the core feature of the Indian nation. Each community has its own laws governing

marriage and divorce, infants and minors, adoption, wills, and succession. These personal laws

go with an individual across the states of India where they are part of the law of the land, and the

individual is entitled to have that individual's own personal law applied and not the law which

would be applied in the local territory. Personal laws are statutory and customary laws applicable

to particular religious or cultural groups within a national jurisdiction. They govern family

relations in such matters as marriage and divorce, maintenance and succession. India is a secular

country where every community is allowed its own personal laws. Christians have the Indian

Christian Marriage Act, 1872 and the Indian Divorce Act 1869, Hindus have the Hindu

Succession Act, 1925[hereinafter HSA, 1956] and the Hindu Marriage Act, 1955[hereinafter

HMA, 1955] and so on. Muslim personal law, based on the Sharia, is not codified. Since

Muslims are governed by the Sharia, an Indian male Muslim is entitled to have four wives at any

time. It is interesting to note that after independence, Pakistan modernized its personal law and

made it quite difficult for a man to marry a second time. Tunisia and Turkey have

actually abolished polygamy. In India, only Muslim men may practice polygamy, and

Hindu sons inherit greater shares of their parents'

estatesthan their sisters do. While one's religion determines which law will apply to him or her re

garding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession.

Uniform civil code [hereinafter UCC] of India is a term referring

tothe concept of an overarching Civil Law Code in India. A uniform civil codeadministers the sa

me set of secular civil laws to govern all people, even those belonging to different religions and

regions. This supersedes the right of citizens to be governed under different personal laws

based on their religion or ethnicity. Such codes are in place in most modern nations. There is no

doubt that the idea of UCC is by and large, a child of independent India. The British Indian

Government merely enacted a few laws which governed family relationships irrespective of the

religions of the partners for e.g. Special Marriage Act, 1872; Married Women’s Property Act,

1874; Indian Succession Act, 1925 and the Child Marriage Restraint Act, 1929.The British did

not show any pursuit to encourage the environment of uniformity of Laws in India. To quote

Choudhary Hyder Husain, a prominent Muslim lawyer, “Living under the British rule for about

two centuries we’ve come to consider it only natural for Hindus to be governed by Hindu Law

and Muslim to be governed by Muslim Law; but it is wholly a medieval idea and has no place in

the modern world...I would therefore strongly urge the necessity of

having one single code to be named as Indian Civil Code applicable to everybody living within t

he territory of Indian Union irrespective of caste, creed or religion persuasions. This is the

juristic solution to the communal problem .It appears to be absolutely essential in the Interest of

the unification of the country for building up one single nation with one single set of laws in the

country.”Article 44 of the Indian Constitution requires the State to secure for its citizens a

Uniform Civil Code throughout the territory of India. The term ‘civil code’ issued to cover the

entire body of laws governing rights relating to property and personal matters such as marriage,

divorce, maintenance, adoption and inheritance. The object of this code is to enhance national

integration by eliminating contradictions based on ideologies. It aims to bring all communities on

a common platform on matters which are currently governed by diverse personal laws. However,

even after 60 years of independence, our law makers are yet to give effect to this provision. This

article focuses on: • the status of the implementation of a Uniform Civil Code and,

• The steps taken and directed to be taken by the Legislature and Judiciary in this regard.

2. NEED FOR UNIFORM CIVIL CODE

Ours is a country with several different religions and belief systems. The accepted principle of

law is that personal belief systems and laws must be in conformity with the Constitution and not

the other way round. Article 25 of the Constitution guarantees to every person the freedom of

conscience and the right to profess practice and propagate religion. Article 26 of the Constitution

guarantees to every religious denomination the right to manage its own affairs in the matters of

religion. No set of laws can violate these Articles, which essentially protect the religious freedom

of different person or communities. We are thus presented with a situation that seems somewhat

contradictory; how can there be a uniform set of laws which protects religious freedom at the

same time? The implementation of a uniform set of laws calls for discarding certain personal

laws which go against society’s general outlook as a whole, and this may amount to violation of

the above mentioned Articles of the Constitution. With multiple belief systems, come multiple

ideological conflicts. To live together in concurrence with such diversity, we need to have

uniformity at some level so as to avoid such conflicts. What we need is a Uniform Civil Code in

the form of a sophisticated, harmonized system of legal regulation that maintains and skillfully

uses the input of personal laws and yet achieves a measure of legal uniformity. As long as the

code does not go against the essence i.e. the core or fundamental belief of any particular religion,

it will not go against the religious freedom guaranteed by the Constitution. The UCC has been

permanently associated in the Indian mind with opposition by the Muslims. It was rightly

pointed out in the Constituently assembly that all Hindus were in favor of UCC .They felt that

the personal law of inheritance, succession, etc. is really a part of their religion. If that were so,

Indian women can never be given equality with a man who is enshrined in art. 14 of the

Constitution. Art. 15(1) provides that the state shall not discriminate against any citizen on

grounds only of religion, race, caste, sex, and place of birth or any of them. Look at Hindu

law, we will find discrimination against

women everywhere.If personal law of Hindus is a part of Hindu religion, equality can never be at

tained among men and women. Religion must be restricted to religiononly and the secular

activities attached to the religion must be regulated, unified and modified for a strong and

consolidated nation. The present Muslim law can never provide equality to Muslim women- if

personal law is considered as a part of their religion. To elevate the position of Indian women

and provide them equality, India is badly needed of a UCC for all Indians.

3. Uniform Civil Code and Secularism a Debate

The Government, the press, the politicians, the academics and even the minority organizations-

none of them have taken any sort of active interest in the UCC. Thus we could easily infer from

the attitude of people prevailing these days that this concept has been ignored and at worst they

have spread false information and impression about it. But, if we see today’s scenario then India

is more communalize then it was in 1947, so we should realize that the concept of UCC had

become very important and need immediate concern. People, who were the founding fathers of

constitution as well as non-Muslims thought that a uniform civil code was necessary for our

national unity and secularism. But along with them there are also few people who disagree about

this concept like Prof. Paras Diwan says “The uniform civil code has nothing to do with

Indianisation or national integration or interfering with the religion of one community or the

other.

 

4. simplicity in law

Uniform civil code provides clarity which arises out of simplicity. Different religions had made

the legal system a maze by creating rights for individuals in some ways and taking them in

another way depending upon the religion they follow. Thus to create clarity forth rights available

to all individual uniformly, there is a requirement of uniform civil code.

5. Position of the Legislature:

The question of implementation of a common Civil Code has been raised mainly with regard to

matters where, the personal laws of a religious community have been challenged in the court of

law as being volatile of the Constitution or against general public interest. Our law makers have

generally shied away from legislating on such points of personal law as are considered to be of

controversial or sensitive nature, for fear such legislation being labeled as an intrusion on the

above rights thereby resulting in strong backlash. This became evident from the reaction to the

judgment of the Supreme Court in the Shah Bano case which gave a divorced Muslim woman

the right to claim maintenance even after the period of iddat. If the amount known as meher, paid

to her on divorce was not sufficient for her livelihood, she could claim maintenance under S.125

of the Criminal Procedure Code (Cr.P.C). There was great agitation against this decision, led by

Mullahs and Maulvis and other fundamentalist sections, as being against the tenets of Islam.

Succumbing to the pressure of vote-bank politics and in order to appease the Muslim

fundamentalists, the Rajiv Gandhi government enacted The Muslim Women (Protection of

Rights in Divorce) Act to undo this decision. This Act exempted Muslims from the general law

regulations of the Cr.P.C, including S.125. It tried to restrict the divorced Muslim woman’s right

to maintenance up to the iddat period only and provided that under section 3(1)(a) a divorced

women is entitled to reasonable and fair provision and maintenance within the iddat period.

Similarly in case of the Adoption of Children Bill 1972, the Muslim community opposed a

uniform law regarding adoption applicable to all communities since Islam does not recognize

adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980

with an express clause of non-applicability to Muslims. This was again opposed, this time by the

Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis

from the bill. The Adoption of Children Bill, 1995, was passed by both Houses of the

Maharashtra legislative assembly, but is still awaiting presidential assent. What needs to be

understood is that ‘the religion of an individual or denomination has nothing to do in the matter

of socio-economic laws of the State.’ The freedom of religion conferred by the Constitution is

not absolute and by no means does it allow religion to contravene the secular rights of the

citizens and the power of the State to regulate the socio-economic relations. Basically, a

Common Civil Code will override only those personal laws which do not form the essence of

any religion. The keyword here is ‘essence.’ Personal laws which form the fundamental basis or

the core of any belief system are ideally, excluded from the purview of the Common Civil

Code. Like the concept of secularism, justice , liberty, equality and fraternity all are essential and

inseparable part of Indian Constitution and along with clarity and security are also considered as

essential part of the constitution and as stated earlier prevalence of different personal laws ruins

the clarity of laws and creates apprehensions in the mind of different religions so the very

purpose of the Constitution is not fulfilled and there is a necessity for the formation of Uniform

Civil Code. Providing justice without equality to the individual will not fulfill the very basic

purpose of the Constitution. It will create such a situation in which a person have the power to go

to courts for infringement of his rights but the basis of this infringement is equality itself which

is not provided to individual. Along with the above reasons the Fundamental Rights which are

considered to be the basic structure of the Constitution will also not be provided to the individual

under the garb of different personal laws. There will be infringement of Articles like 14, 15, 16,

17 and 18. As all of them talks about equality like Article 15 prohibits discrimination on the

grounds only of religion, race, caste, sex or any of them. Article 16 talks about equality in

matters of public employment. Thus the very purpose of these Articles will not be fulfilled if the

different personal will keep on prevailing as they provide different treatment to individuals with

in accordance with the religion they follow.

6. SUCCESSION AND INHERITANCE

This area throws up even more intractable problems. In Hindu law, there is a distinction between

a joint family property and self acquired property which is not so under the Muslim law. The

Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and own

agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to be

abolished. There are also fetters imposed on the extent to which one can bequeath property by

will under the Muslim law. Considering all these, the UCC should be included. The law which is

applicable on Parsi and Christian with regard to the succession i.e. The Indian Succession Act,

1925 should be considering while framing UCC for Succession laws in India. Thus due to all

above reasons it is felt that the formation of Uniform Civil code is the prime necessity in today’s

time for our nation. Lastly, a very real fear has begun to make itself felt, which is that if we do

not make efforts now to move towards the UCC, and as the majority loses patience, we shall lose

the littlie ground that we have gained

According to the Hindu Adoptions and Maintenance…..

Sec-18 Maintenance of wife-

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the

commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her

claim to maintenance,-

(A) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and

without her consent or against her wish, or of willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that

it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living;

(e) If he keeps a concubine in the same house in which his wife is living or habitually resides

with a concubine elsewhere;

(f) If he has ceased to be a Hindu by conversion to another religion;

(g) If there is any other cause justifying her living separately?

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if

she is unchaste or ceases to be a Hindu by conversion to another religion.

According to Hindu marriage act-

Sec- 24 Maintenance Pendent late and expenses proceedings. Where in any proceeding under

this Act it appears to the court that either the wife or the husband, as the case may be, has no

independent respondent, it may seem to the court to be reasonable.

(Where it appears to Court that the wife or the husband, as the case may be, has no independent

income sufficient for her support and the necessary expenses of the proceedings, it may grant

interim maintenance to the wife.)

Sec-25 Permanent alimony and maintenance. (1)Any court exercising jurisdiction under this

Act may, at the time of passing any decree or at any time subsequent thereto, on application

made to it for the purpose by either the wife or the husband, as the case may be, order that

the respondent shall pay to the applicant for her or his maintenance and support such gross

sum or such monthly or periodical sum for a term not exceeding the life of the applicant as,

having regard to the respondent's own income and other property, if any, the income and

other property of the applicant, the conduct of the parties and other circumstances of the case

it may seem to the court to be just, and any such payment may be secured, if necessary, by a

charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any

time after it has made an order under sub-section (1), it may at the instance of either party,

vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favor an order has been made under this

section has re-married or, if such party is the wife, that she has not remained chaste, or, if such

party is the husband, that he has had sexual intercourse with any woman outside wedlock,

it may at the instance of the other party vary, modify or rescind any such order in such manner

as the court may deem just].

7. UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICIARY

Even after more than six decades from the framing of the constitution, the ideal of UCC under

article 44 is yet to be achieved. However, efforts in this discretion continued as reflected in

various pronouncements of the supreme court from time to time The Supreme Court seems to

have a divided opinion on the introduction of a Uniform Civil Code. On one hand, it has rejected

attempts to do so through public interest litigation but on the other, it has recommended early

legislation for itsimplementation.In Mohammad Ahmed Khan v. Shah Bano, s Begum, popularly

known as the Shah Bano’s case, the Supreme Court held that “It is also a matter of regret that

Article 44 of our Constitution has remained a dead letter.” Despite section 127 of Cr.P.C. 1973

(which provides that if a woman has received an amount under personal law, she would not be

entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women would

be entitled to maintenance if amount received by her as “dower” under personal law is

not sufficient for her sustenance. Though the decision was highly criticized by Muslim

Fundamentalists, yet it was considered a liberal interpretation of law as required by gender

justice. Later, on under pressure from Muslim fundamentalists, the central government

passed the Muslim women’s (Protection of Rights on Divorce) Act, 1986, which denied right of

maintenance to Muslim women under section 125 of Cr. P.C. The activists rightly denounced

that it “was doubtless a retrograde step. That also showed hoe women’s rights have a low priority

even for the secular state of India. Autonomy of a religious establishment was thus made to

prevail over women’s rights.”In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of

India and others Prime Minister of the Country to have a fresh look at Art. 44 of the Constitution

of India and Endeavour to secure for its citizens a UCC throughout the territory of India.” He

also suggested the appointment of a committee to enact a

Conversion of religion Act. R.M. Shahai, J., while agreeing with Kuldip Singh, J., too agreed tha

t “Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. But

religious practices, volatile of human

rights and dignity and sacerdotal suffocation of essentiality civil and material freedoms, are not a

utonomy but oppression.”In Lily Thomas etc. v. Union of India and others the Court held that:

“The desirability of UCC can hardly be doubted. But it can concretize only when social climate

is properly built up by elite of the society, statement amongst leaders who instead of gaining

personal mileage rise above and awaken the masses to accept the change.”The court further

added while it was desirable to have a UCC, the time was yet not ripe and the issue should (be)

entrusted to the Law Commission which may examine the same in consultation with minorities

Commission. That is why when the court drew up the final order signed by both the learned

judges it said, “the writ petition are allowed in terms of the answer to the questions posed in the

opinion of kuldip Singh, J. These questions we have extracted earlier and the decision was

confined to conclusions reached thereon whereas the

observationson the desirability of enacting the UCC were incidentally made.”In Danial Latifi

and another v. Union of India the court upheld the validity of Sections 3 and 4 of the Muslim

Women (Protection of rights on Divorce) Act, 1986, as not being volatile of articles 14,

15 and 21 of the Constitution of India. Under section 3 of the Muslim Women (Protection of

rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provision

for future of divorced wife which includes maintenance also, so she is not entitled to claim

maintenance under section 125 of Cr.P.C. Under section 4 of the Act, divorced Muslim woman

unable to maintain herself after iddat period can precede

againsther relatives or wakf Board for maintenance. Rajendra Babu, J., on behalf ofa five judge’s 

bench consisting of Patnaik, Mohapatra, Doraiswamy, Patil, and JJ...And himself observed that: -

“In interpreting the provisions where matrimonial relationship is involved we have to consider

the social conditions prevalent in our society. It is a small solace to say that such a woman

should be compensated in terms of money towards her livelihood and such a relief which

partakes basic human rights to secure gender and social justice is universally recognized by

persons belonging to all religions.”In John Vallamattom v. Union of India the Supreme Court in

a PIL by a Christian priest, John and other citizens of Christian community, challenging the

validity of the section 118 of the Indian Succession Act, 1925, while striking down the said

section as being volatile of article 14 of the Constitution, and also concerned over the

contradictions in marriage laws of various religions, in a historic judgments, emphasized the

need for a legislation by Parliament on common civil code. Stressing that there

was no “necessary connection” between religious and personal laws in a civilized society,

a three judge bench held that it was matter of regret that article 44 of the Constitution, which

provided for the state to ‘Endeavour” to secure a UCC for its citizens throughout India, had

not been affected. The Court further observed that “Parliament is still to step in for framing a

UCC in the country. A UCC will help the cause of the national integration by removing the

contradiction based on ideologies.” It can be said that after mentioning the apex court view

regarding the implementation of UCC that Art. 44 needs to be interpreted to sustain the plurastic

character of the Indian community. It should be on the gender justice rather than on uniformity.

Although the Supreme Court has not yet interpreted Art. 44. On all his decisions the Court

enjoined upon the parliament to enact a UCC without specifying what a UCC would mean.

However, the word “uniform” should not mean the same law for all but it should mean similar

laws for all and similarly should be regarding equality and gender justice. In Pannalal Bansilal v.

State of Andhra Pradesh, it held that a uniform law though highly desirable, the enactment

thereof in one go may be counter-productive to the unity and integrity of the nation. Gradual

progressive change should be brought about. Similarly, in Maharishi Avadhesh v. Union of India

, the Supreme Court dismissed a writ petition to introduce a common Civil Code on the ground

that it was a matter for the legislature and in Ahmadabad Women Action Group v. Union of

India , the Supreme Court showed reluctance to interfere in matters of personal law

8. UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY

The government has an intention to for a voluntary or optional UCC. It has be emerged by the

public that a voluntary code would be a welcome stepping stone towards a compulsory code and

would also allay the misgivings of the Muslims that the code would impose Hindu personal law

upon them. The convention of the Bar Council of India on the UCC came out strongly in favor of

a compulsory code. The problem in optional code is that it cannot be a uniform. It can only be

One moreaddition to the existing family laws, thus compounding rather than reducing the confus

ion that exists. The two facets with regard to the concept

of optionality should be considered .Either one has to opt for the entire codeor one may opt for

selected areas. One feels that opting for the UCC should be one-way process. There should be no

withdrawing. Once a person opts he/she will have opted for their future generations as well.

There will be no opting out. If one spouse opts for the code, the other will also have to do so as

otherwise the option will be ineffective. A voluntary code will create its own uncertainty as,

confusion and misinformation. For all the reasons, the UCC will have to be an improvement on

the existing laws in all respects and it will have to be very clear in its expression. Why do we

need a Uniform Civil Code? What does our Constitution say about Uniform Civil Code? In

article 44, our constitution clearly specifies this "The State shall endeavor to secure the citizen

uniform civil code throughout the territory of India”. The objective of this article is to effect an

integration of India by bringing all communities into a common platform which is at present

governed by personal laws which do not form the essence of any religion. The constitution is

very clear that unless a uniform civil code is followed, integration cannot be imbibed. However,

the so called secularists and saviors of secularism in India think otherwise. Their argument is that

this code will affect the religious freedom of minorities. One fails to understand how abiding the

law of land can go against religious principles! They claim that the sentiments of the minorities

are not considered while implementing common law! This code does not insist people from one

religion to start practicing rituals of other religions. All it says is, with changing living styles

along with the time, there should be a uniform civil code irrespective of all religions as far as

social ethics are concerned Till 1935, the Muslims in India followed different rules according to

their practice. Khoja Muslims and Kutchi Memons are examples for this. The Kutchi Memons

worshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had the inheritance

laws as per Hindus and also the marriage laws as per Hindus. Whena common Muslim Personal

law was formed; there were many minority creeds of Muslims who had to accept these laws

though they differed from their practices. There was no need of respecting the sentiments of the

minorities (among Muslims) then. If this can be done for minority creeds of Muslims, why can’t

the minority Muslims adapt the laws for the nation? Much was debated on this issue at the Indian

Parliament in 1948 by Ambedkar, Anantasayam Iyengar, KMMunshiji, Alladi Krishnaswamy

Iyer favoring UCC and members from other religions opposing it. On 23rdNov’1948, in

Parliament, a Muslim member gave an open challenge that India will never be the same if it tried

to bring in Uniform Civil code and interfere with Muslim personal law. It’s a shame that we

could not do anything on this till date! I even doubt whether we had any subsequent debates in

this regard at Parliament. The Hindu laws that were different in different parts of the country had

undergone a turbulent change, courtesy, geographically united India. The appreciable factor is

Hindus accepted these changes of laws with grace. Child marriages were banned, Sati was

banned, widow re-marriage was encouraged, divorce was introduced, in heritance laws were

amended and Hindus accepted all these changes. They never complained of hurting their

religious sentiments. Those who oppose this law claim that this law is poking nose into their

religious practices. “Narabali” (human sacrifice), that was considered a religious practice of

Hindus is banned today. Hindus never protested this stating that their religious practices are

tampered with. There are Muslim countries that follow Islamic laws. Still, the laws differ from

one country to another. This emphasizes that along with the personal laws, there has to be laws

that should be written considering the changing phenomenon and the living style of the nation.

Once again it is reiterated that this code is not biased towards are religion but to bring in a level

playing platform among the citizens of India. Muslims in other countries accept uniform civil

laws where they do not consider this as a defeat whereas in India it is. This is the result of the

selective secularism adapted by the political parties, media and the so-called learned men of

India. It is a pity that in a democratic & secular state, people have different laws based on their

religion. Is it secular to have different laws for different religion or it is secular to have a uniform

law? The approach of selective secularism had perpetuated the vertical divide among the people

of India in the name of religion. This resulted in people having prejudice over this law itself. By

bringing this code, neither the majority public wins over the minorities nor are the minorities in

danger. Unless this prejudice is erased, bringing this law is difficult. The leaders of this country

owe responsibility to explain this to public & an elaborate debate has to be held on this topic

(which will never happen as this is against secularism?).To make this debate on UCC healthy,

Hindus should not treat this as a weapon against minorities. Meanwhile, the minorities should

not feel that they lose by bringing this law.

9. Implementation at State-

Level: Analysis Even though a nation-wide Civil Code is not yet in place, a positive step in this

direction has already been taken. The state of Goa has enacted a setoff ‘Family Laws’, which is

applicable to all communities; Hindus, Christians, Muslims and others. There is no

discrimination on the basis of religion, caste or gender. The Goa civil code is largely based on

the Portuguese civil code of 1867, with some modifications based on the Portuguese Decrees on

Marriage and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the

Portuguese Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and

divorce, succession, guardianship, property, domicile, possession, etc. Muslim fundamentalists

opposed its enactment in the early 1980s but their attempts to introduce Sharia law in Goa were

ultimately met with defeat by liberal Muslims who insisted on the continuance of the unified

civil code. Former Chief Justice Y.V.Chandrachud expressed hope that the Goan Civil Code

would one day “awaken the rest of bigoted India and inspire it to emulate Goa.”There are two

important aspects of this code which assume great significance in the context of codification of

Indian laws:

• Civil registration of marriage is mandatory. Around 98 percent of Goan marriages take place

under Community Property law by virtue of which, each spouse automatically acquires joint

ownership of all assets already in their possession as well as those due to them by inheritance.

These assets may not be disposed of or encumbered in any way by one spouse without the

express consent of the other.

• The registration of births and deaths is also mandatory. The children of deceased parents fall

in the category of mandatory heirs. They cannot be disinherited whether male or female, except

under extraordinary circumstances. If the deceased parent leaves no will, all mandatory heirs are

entitled to an equal share of the estate of the deceased. If the deceased has made a will, he may

only dispose of 50 percent of the estate. This is called the quota disponivel. The remaining

50 percent must be divided equally among all mandatory heirs. Such a provision ensures the just

distribution of assets among all children, whether male or female.

10. CONCLUSION: In order to promote the spirit of uniformity of laws and accomplish the

objective enshrined in Article 44 of the Constitution, the following suggestions deserve

immediate consideration:

• T h e G o v e r n m e n t m u s t p r e p a r e   a g o o d e n v i r o n m e n t   f o r

U n i f o r m   C i v i l C o d e b y e x p l a i n ing the contents and significance of Article

44. It should take steps and find out means to find out the obscurantist’s who oppose to move of

Uniform Civil Code

• T h e p r e s s , r a d i o , t e l e v i s i o n a n d   v a r i o u s o t h e r   m e a n s o f

c o m m u n i c a t i o n   m a y b e o f great help in this regard. The conservative sections of

the citizens must be made to understand the utility of uniformity of laws so that they do not stand

in the way of implementation of Article 44 of the constitution.

• T h e S t a t e s h o u l d t a k e i n i t i a t i v e t o e x p l a i n t h e

U n i f o r m   C i v i l C o d e   t o the ordinary citizens. Special ways must be devised and

also special care must be taken to prevent inflaming of the ordinary man’s passions by

mischievous, rabble e-rousing methods.

• T h e S t a t e   s h o u l d   b r i n g s o c i a l r e f o r m b y s t a g e s a n d   t h e

s t a g e s m a y   b e   t e r r i t o r i a l or they may be community wise. T h e

a t t e m p t   s h o u l d   b e   m a d e   t o   e n a c t a   U n i f o r m

C i v i l   C o d e   e m b o d y i n g w h a t i s b e s t ing all personal laws. It must be the

synthesis of the good in our diverse personal laws. It should represent one, drawn up by the

constitution between the different communities in India on the principle of give and take.

• I t   i s   t h e d u t y o f a c a d e m i c i a n s t o g e n e r a t e g o o d

e n v i r o n m e n t   f o r t h e   a d o p t i o n   o f the Uniform Civil Code in India. It is their

moral duty to promote the feelings of secularism and explain the contents of Uniform Civil Code

to the community at large so that they are made to understand the beneficial effect of the

Uniform Civil Code.

• I n   o r d e r t o a s s i s t t h e   P a r l i a m e n t   t o   I m p l e m e n t

t h e   U n i f o r m C i v i l   C o d e , a   C o m m i t t ee of eminent jurists belonging to

different religions should be constituted to make the task of uniformity of laws possible. The

rules of personal laws as in force in India dealing with marriage, talaq, inheritance, adoption,

maintenance, succession etc. must be modified to a large extent on the lines of suggestions to be

made by the Committee of eminent jurists.

• T h e r e i s a   n e e d   t o   c o n d u c t a   s t u d y o f

t h e   p e r s o n a l   l a w s   o f   a l l t h e   c o m m u n i t i e s w ith a view to find out in

which areas of personal laws uniformity of

laws already exists and which are the areas where differences still persist and inthat manner they 

can be resolved. We must pick and choose the areas which are ripe. Such areas can be those

relating to adoption, maintenance, guardianship, marriage and divorce. No doubt in the

beginning it will be the nucleus of a properly termed family code but ultimately that would pave

the path of Uniform Civil Code. Price- meal legislation, which is compressed and telescoped

within a few years, would achieve the objective aimed at and only a sincere effort without any

sentimental approach would be of great value in finding out what has been deluding by now just

as a mirage. It can be conclude by saying that the UCC amounts to equal laws for all sections of

society. All the people of India must be governed by one set of laws. For national unity and for

secularism, UCC is necessary. The plurality of laws in personal law matters is a blow and direct

threat to national integrity and solidarity. It is worth mentioning the name of a few

countries where a UCC has been functioning successfully viz. Germany, France, Spain Canada,

Japan, Turkey and Portugal’s. The government of India should take initiatives for enacting

a UCC, which should contain the best elements of different civil laws of the various religion

communities of the country and thus fulfill its positive obligations imposed upon it by article 44

of the Constitution of India. Between the Supreme Court’s mixed response and the legislature’s

wariness, the implementation of a national common Civil Code seems to be a distant dream. It is

only enlightened public opinion that will help fulfill it. Communal divides, vote-bank politics,

staunch fundamentalism are currently barriers to its realization but with time and tolerance they

can be overcome. What must be perceived as a matter of defining an individual’s rights

deteriorates instead, into a “majority versus minority” issue. The welfare of the community as a

whole must be considered instead of a particular class or sect. No doubt, the realization of a

common Civil Code is a tough job, given the vast ideological diversity. But a uniform civil law

is necessary in order to be truly secular. It is our collective duty as a modern society to rise above

cultural and religious differences and give effect to this constitutional mandate which is 60 years

overdue.

Bibliography

http://www.manupatra.com/

http://airwebworld.comhttp://articles.timesofindia.indiatimes.comwww.cse.iitk.ac.in

http://en.wikipedia.orghttp://mutiny.wordpress.com

http://www.outlookindia.com

http://upscportal.comhttp://uselectionatlas.org

http://indiankanoon.org

http://airwebworld.com

Books:

M.P. JAIN, INDIAN CONSTITUTIONAL LAW 904 (5th ed., Wadhwa and Company Nagpur

New Delhi 2008) (1962) Constituent Assembly Debates vol. VII 547- 48.VASUDHA

DHAGAMWAR,

TOWARDS THE UNIFORM CIVIL CODE 53 (The Indian law Institution, New Delhi 1989)

(1989)NARENDAR KUMAR,

CONSTITUTIONAL LAW OF INDIA 166 (6th ed., Allahabad law Agency Delhi 2007) (1997)

Constituent Assembly Debates vol. VII 547- 48.Virendar Kumar,

Towards a Uniform Civil Code: Judicial Vicissitudes [from SarlaMudgal (1995) to Lily Thomas

(2000)] 42 Journal of Indian Law Institute 315 (2000).