23 Oct, 2018

Article 44: Uniform Civil Code (Indian Context) | Gender Discrimination and the need for implementation of the Uniform Civil Code

Written By: Anishka Sinha And Koteshfred Rao Dasari, BBA.LLB 2nd Year, Bharati Vidyapeeth Deemed University, New Law College, Pune, India.
Reviewed By: Swati Jha, Regional Supervisor – South Asia, Goeman Bind HTO

Religion is a set of beliefs and customs that are followed by a group of people. Each group follows different traditions and norms, but the spirit and essence of every religion are similar with respect to morals. Every religion propagates basic principles such as non-violence, prohibition of adultery and domestic violence, etc. This suggests that although every religion is contrasting from each other in terms of rules and traditions, there are common areas around which a new Uniform Civil Code can be made. These laws may focus on humanitarian principles rather than religious principles as in the case of countries like Indonesia and Turkey. These countries, although Muslim, focus on humanitarian rights and secular laws rather than the holy book of the religion.

The Preamble of the Indian Constitution idealizes the concepts of fraternity, equality, and unity of all Indian citizens through “Secularism”. Since India is a country full of stark different communities with contrasting views on certain subjects, it is very difficult to make one law for every Indian citizen to follow. Taking into consideration the different faiths of the Indian people, the constitution makers introduced the concept of the Uniform Civil Code (Article 44) under part IV of the Constitution that is, the Directive Principles of State Policy. At present, almost every community has a codified law of their own. The Parsi community follows the Parsi Marriage and Divorce Act,1936. The Hindu community has the Hindu Marriage Act and so on. All these laws result in a very complicated system of governance in the country, as there are a lot of differences amongst the acts of every community. A uniform law, binding on all the citizens would take away a lot of the existing complications and provide a smooth flow with respect to the personal laws. The concept of a Uniform Civil Code seems very appealing but the main hindrance to its implementation is the mindset of the population. The regular communal riots give no scope for the politicians to bring in a law which interferes with religion.

Bringing the Uniform Common Code by a drive and convincing the nationals of India to follow the law is totally out of question. The general population are not prepared for such an exceptional step towards globalization. The outlook of the Indian populace is very conservative and backward. There is in every case a type of conflict between the communities, which recommend a great deal of turmoil and instability. No ruling party would forcefully acquire a Uniform Common Code as this would make a great deal of discontent among the greater part of the populace. Introducing a Uniform Common Code would alarm for any party that is in control as it would have major ramifications on the general public as a whole. Given the present-day atmosphere, it is far-fetched that we will see a Uniform Common Code in the years to come.

AIR 1995 SC holds an extreme importance. In this case, there were three aggrieved parties, all filing a case with the help of Sarla Mudgal. Sarla Mudgal runs an NGO named Kalyani, which helps women who are distressed. This case questioned the validity of a second marriage if a Hindu husband takes up the religion of Islam. Given that the first marriage is not dissolved by law.

In this case, the three aggrieved parties are:

  1. Meena Mathur;
  2. Geeta Rani; and
  3. Sushmita Ghosh

Meena Mathur was married to Jitender Mathur on 27th February 1978. They had three children together. In 1988, Meena Mathur found that her husband had converted to Islam in order to marry Sunita Narula, who was also known as Fathima. Meena claimed that Jitender had converted to Islam only so that he was eligible to marry Fathima. However, in the process, he infringed upon the provisions of section 494 of the Indian Penal Code, 1860. Section 494 states, “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”[1] Jitender Mathur asserted himself saying that as a Muslim, he was allowed to have four wives according to Muslim personal laws. Despite the fact that one of the wives was of Hindu faith. It was found that Fathima had also filed a writ petition against Jitender Mathur. In the petition, it was stated that Jitender Mathur, who was Hindu at the time, was married to Meena Mathur who was also Hindu. It further states that Jitender had converted to Islam so that he could marry Fathima. As a result of this marriage, Fathima conceived a child. After marrying Fathima, he then converted back to Hinduism and agreed to give maintenance to Meena and her three children via an undertaking dated 28th of April, 1988. Her complaint was that she wanted to continue following Islam and not be maintained by the husband.

This showcases how people can take advantage of the many laws that are in place. Due to a simple change of religion, Jitender created complications in the laws of the two religions. According to the Hindu laws, one is permitted to have only one wife. The concept of polygamy is not supported. In fact, it is punishable under Section 494 of the Indian Penal Code, 1860. Whereas, Islam recognizes the concept of polygamy. With Jitender changing his religion, he created a situation where the two laws cross over each other. There are many such situations and many people are affected by the actions of such individuals as seen in the rest of the case. The second aggrieved party, Geeta Rani, married Pradeep Kumar on 13th of November 1988, she claimed that her husband used to get physically violent. She further claimed that he had once gotten so violent that he broke her jaw bone. In the month of December in 1991, she discovered that he ran off with another lady named Deepa and married her after converting to Islam. She claimed that the only reason he converted to Islam was so that he could facilitate a second marriage.

The third aggrieved party, Sushmita Ghosh, married C.G. Ghosh on the 10th of May, 1984 via the Hindu religion Vedic rights, rituals and ceremonies. In 1992, the husband asked Sushmita Ghost for a mutually consented divorce. Saying that he no longer wished to stay with her. However, Sushmita wanted to remain C.G. Ghosh’s legally wedded wife and was not willing to seek divorce. Mr. Ghosh one day told his wife that he had converted to Islam. He obtained a certificate from the Qazi which verified his conversion of faith from Hinduism to Islam. He further voiced his intention to marry another woman named Vinita Gupta. In the writ petition, Sushmita Ghosh prayed that her husband is restrained from marrying Vinita Gupta and that she remains his lawfully wedded wife.

It was held by the Supreme Court that the second marriage would be invalid and void, even if one of the spouses converts to Islam. In order to validate the second marriage, he must first dissolve the first marriage under Hindu Marriage Act,1955 before he marries another woman. There is no automatic dissolution of a Hindu Marriage. It can only be broken or dissolved as per the grounds mentioned in Section 13 of the Hindu Marriage Act, 1955. A simple conversion to Islam followed by marrying again would not amount to such a dissolution. As a consequence, the court held that all the husbands were guilty under section 494 of the Indian Penal Code, 1860.

A change of faith has an adverse effect on the people around them as the concept of religion is extremely sacred in India. However, it is not uncommon to see people take advantage of the many laws which are present in India, as seen in the case above. A person may reach a difficult stage in life and for reasons of his own, not wish to follow the rules of his own personal law. Looking for a way out of the difficult situation, he looks for an answer in another faith’s personal laws. As a result, he converts to another religion just because the laws seem more convenient for him. Completely disregarding his duties prior to conversion. Conversion of faith can be filtered if a Uniform Civil Code was in place.

If every citizen was under the jurisdiction of a Uniform Civil Code, this mindless conversion of faith would be stopped. Because it doesn’t matter what religion you may follow, everyone is equally subject to the Uniform Civil Code. It would bring order and consistency, in a sociological aspect, by curbing disruptions caused by the change of faith. A Uniform Civil Code would help provide better harmony within each community if not between communities.

The Muslim Personal Law (Sharia) Application Act, 1937 has jurisdiction over Muslims in India. It deals with marriage, succession, inheritance, guardianship etc., among Muslims. They do not have a codified Muslim Family Law. The foremost origin of Islamic Law is the Quran, which they believe to be God’s words. The Quran is not based on the constitutional values, it is more of the Quranic value and does not ensure gender justice also. Unlike other religions, in the Muslim community, the inequality between men and women is a little backdrop. Muslim Women are not as educated and self -dependent like the women of other sections. Education is denied to them and they are not allowed to work either. Hence, post-divorce the need for maintenance, alimony or ‘mahr’ in Islamic language becomes greater in them. This statement will be well demonstrated after citing the notable ‘Shah Bano Case’. It is a contentious case of alimony in Muslim law. In 1932 Shah Bano married Mohammed Ahmad Khan, an affluent and well-known advocate. Out of their wedlock, they have begotten five children. After 14 years of their marriage, Ahmad Khan married a younger woman. He continued staying with both the wives, though there was no legal sanction given to polygamy. But it existed both in Hindu as well as in Muslim community. After years of staying with both the wives, he drove out Shah Bano out in the year 1975. She was 62 years old then. She filed a petition in April 1978 for maintenance under section 125 of The Code of Criminal Procedure (CrPC) because he stopped paying her maintenance. Under section 125 of CrPC, a wife without any source of income, getting neglected by her husband is entitled to maintenance. The lawyer husband took up the defense of talaq, saying that after divorce any kind of relationship with the divorced wife is Haram and against Islam. Also, he has paid mahr and maintenance and is not subjected to pay any further amounts. In the year 1979, Ahmad Khan was commanded by the lower court to pay ₹25 per month to his divorced wife by way of alimony. This amount was further revised to an amount of Rs.179/-per month on a revision after an application by Shah Bano in the year 1980. Mr. Khan then filed a suit at the Supreme Court of India stating that he is not entitled to pay any amount to his divorced wife as he now had a second marriage, which is also permitted under Muslim Law. For now, Shah Bano is not his responsibility anymore. However, the Supreme Court dismissed the appeal and confirmed the decision of the High Court of Madhya Pradesh. The Supreme Court said that Section 125 of Code of Criminal Procedure, 1973 is applicable to the Muslims too and therefore Mr. Ahmad Khan will have to pay maintenance to Shah Bano every month. At this point, the Court also ruled for Article 44 (Uniform Civil Code) of the Indian Constitution. A Uniform Civil Code would help in bringing national integration and also in removing the disparities and conflicting ideologies of different personal laws. The adjudication given by the courts was not relished by the Muslim community. They went down on streets also as the press made it a national issue that their religion and personal laws were being stroked and encroached upon. Then in the year 1984, the Indian National Congress had won the General Elections by absolute majority. The Prime Minister Rajiv Gandhi was advised by the other Chiefs to make a move by enacting a law in favor of the Islamic community. It was the first crisis faced by Rajiv Gandhi as a Prime Minister. This proposal was not for the welfare but for polls that were to come. Rajiv Gandhi enacted an act in the parliament, “The Muslim Women (Protection of Rights on Divorce) Act, 1986”. This act annulled the decision of the High Court of Madhya Pradesh in Shah Bano’s Case. The act proposed that the divorced women be paid only till the period of ‘Iddat’.

This case stirred Indian society over the issue of Uniform Civil Code. As the implementation of this code will be opposed by the Muslim community, but apparently be supported by the women’s in the Muslim background. The execution of the Uniform Civil Code would highly benefit the women, as all their personal laws will be abolished. The practice of triple talaq, the abolition of polygamy, Mahr (maintenance), adoption rights, succession and inheritance, abolition of practiced of Iddat etc., would be terminated.

Before the commencement of the constitution, India was ruled by various acts which were passed by legislature present before the independence of India. After the commencement of the constitution, India was still governed by these laws with the exception of those which went against the spirit of the constitution or infringed upon the fundamental rights of the citizens of India.[2] One such case was the Mary Roy case of 1986. The Travancore Christian Succession Act, 1092 provides that, “a widow or mother becoming entitled under sections 16, 17, 21 & 22 of said act shall have only life interest terminable at death or on remarriage. The daughter shall not be entitled to succeed to the property of the interstate in the same share as that of the son but she will be entitled to one-fourth the value of the share of the son or Rs. 5000. Whichever is less and even this amount she will not be entitled on intestacy, if Streedhanom[3] was provided or promised to her by the interstate or in the lifetime of the intestate, either by his wife or husband or after the death of such wife or husband by her or his heirs”.

Mary Roy used to live with her two children in a family owned a cottage in Udhagamandalam. After her father passed away, her brother, George Isaac reportedly sent goons and thugs in order to force her out of the family-owned property. According to the abovementioned law, Mary Roy was not eligible to be a successor to the property as it only allows the male child to have succession rights to property owned by the father. Consequently, Mary Roy filed a suit against her brother claiming that the law which she was subject to was void and ultra vires as it is inconsistent with Article 14 of the Indian Constitution. Providing for equality and prohibition of discrimination on the ground of sex.[4]The Supreme Court had to decide the validity of the Indian Succession Act over the said territory as it was originally under the jurisdiction of the Travancore Christian Succession Act and eventually held that the Indian Succession Act was supreme over the other Act. This meant that women of Indian Christian background were now allowed equal successor rights as that of the male child. This was a landmark case relating to the successorship rights of the Indian women. The Travancore Christian Succession was in force despite the discriminatory nature of it. It was only considered as void after the judgment passed by the Supreme Court in the Mary Roy case. It is evident in this case how the adjudication of a simple succession matter was complicated due to the many different existing acts. Not only that, the laws which are being used are very outdated and old to be applied in the existing environment. The laws passed at the time was blatantly infringing on the basic humanitarian concept of equality. The legislature can solve this problem with the introduction of a common code which is followed by all people. A common code would eliminate the need for many different acts and would make is simpler for adjudication of matters. In the process, the verdict passed by the courts would have more chances of being fair and just, as they would no longer have to look at the religion of the subject to pass a judgment.

However, the Uniform Civil Code is vital for India so that there are same laws are for each native without contemplating religion. This way there would be better uniformity in law and it would be easier for judges to adjudicate matters. It is difficult to comprehend why religion has been given so much individual importance that it keeps lawmaking bodies from infringing upon that field. Without a Uniform Civil Code, calling India a unified and secular country is just an illusion. At present, only Goa has a uniform civil code for all its citizens. Therefore, we must take a hard look at Goa Family Law and check whether it could be imitated in the rest of the country.

The Parsi community is one of the minority communities in India. In every census, India’s population increases by approximately 21% and the Parsi population diminishes by about 12%. The Parsi population is strictly against the implementation of the Uniform Civil Code, because all the protection they have been granted in terms of their faith, will be withdrawn. Consequently, the Parsi community fears that their norms and culture will be diluted. Women from almost all communities are strongly in favour of the implementation of the Uniform Civil Code. The reason behind this is the gross injustice that is being practiced in the day to day lives of almost every community. Women suffer gender inequality which is considered as a violation of basic human rights. Women in almost all the communities have been allotted an inferior status to man in Indian society. According to Parsi communal laws, if any Parsi Zoroastrian woman gets married to a man who is not Parsi, they are excommunicated from their faith and no longer allowed to follow a Parsi religion or participate in any religious ceremonies which are of Parsi faith. Whereas, if a Parsi Zoroastrian man solemnizes marriage with a non-Parsi Zoroastrian woman, he continues to be Parsi as before the marriage.

In Goolrukh M. Gupta v. Burjor Pardiwala, the petitioner who was of Parsi faith married a man of different faith. Goolrukh Gupta who belonged to the Parsi community wedded a non-Parsi under the provisos of Special Marriage Act. According to the Parsi customary laws, she was debarred from entering the fire temple, tower of silence (where a person is buried after death) and from participating in any of the Parsi customs and rituals. During this period, her father expired and she was barred from entering the Tower of Silence and could not attend the funeral of her father. She then looked to Law for relief. She filed a case against the leaders of the Parsi community. A five-judge bench was set up to hear the matter. The petitioner claimed that according to the Special Marriage Act if people of two different faiths marry, none of the spouses are required to give up their faith. She also contended that the Parsi laws are extremely unjust and gender discriminatory. Hence it infringes upon Article 14 of the Indian Constitution which prohibits any sort of discrimination on the grounds of sex, caste, religion, etc. As well as Article 25 of the Indian Constitution which allows “free profession, practice, and propagation of religion.” She also claimed that there was nothing in the Parsi scripture which prohibited a born Parsi to continue being a Parsi after marriage. The Supreme Court ruled in favor of Goolrukh Gupta. It was held that a Parsi lady, who weds outside her community, must be permitted to enter the fire temple, tower of silence and participate in the various religious customs of the Parsi community.

After observing all the above four cases from the different religions, it is evident that there is gross injustice done to the women of India in the name of religion. This affects the livelihood of the Indian citizens and does not allow them to live to the best of their potential. No woman must have to face such discrimination. Without a Uniform Civil Code, there is no hope of a gender unbiased society as women would always be seen as second to man in the eyes of religion. In the above cases, it is seen how women from every religion were victimized by their own personal laws. In Sarla Mudgal & Others v. Union of India, they faced the problem of divorce and maintenance because the husband had solemnized another marriage by way of conversion to Islam. In the Shah Bano case, there were complications regarding maintenance and also the issue of bigamy. And in the case of Goolrukh Gupta v. Burjor Pardiwala, she was thrown out of her religious community because she married a non-Parsi.

The Uniform Common Code, if actualized all through the country, would quash the different laws of marriage, succession, inheritance and so on, or contrast religions, as it exists today. All citizens would be subject to the Uniform Civil Code as they are subject to the Indian Penal Code. The population would not be divided according to faith and all people would be seen as one. The Supreme Court of India after delivering numerous judgments have repeatedly asked the Central Government for the enactment of a Uniform Civil Code. But to the Central Government, the citizens are seen as vote banks and therefore keep them divided on the lines of religion and castes in order to please communities.[5] As seen in the Shah Bano Case, the Supreme Court gave a fair judgment but the Union Government at the time, headed by Rajiv Gandhi amended the Atrocities to Women Act in order to please the Muslim people.

Goa was under Portuguese rule for over 400 years. In 1910, after the Portuguese monarchy was overthrown and as a result, there was a change in the laws relating to marriage, succession, protection of children, etc. Goan Family Laws follows the concept of absolute equality, whereby people of all castes, religion, sex, tribe, etc. are seen equally and without any prejudice. All the citizens of the Union Territory of Goa have the same laws apply to them. This means that there is no scope for showing bias and there is uniformity in the law which helps the judiciary take better decisions for the matters that come to them.

The law of community property is another characteristic feature of the Goan family law. The law states that, at the time of marriage, the husband and the wife must equally share the property owned by them and also the property which is due to be inherited by them. The husband and wife automatically acquire joint ownership of all properties. Therefore, the husband cannot sell and take other important decisions relating to their properties without first consulting his wife. This promotes gender equality and also creates a suitable situation for developing a better relationship between husband and wife as they are required by law to make such important decisions together. Ultimately resulting in a long lasting relationship and a lower divorce rate. In the case of divorce, the wife is, by law, eligible to receive 50% of her husband’s salary. As a consequence, the wife does not need to depend upon the kindness and goodwill of her husband.

A major problem that India faces in the concept of arranged marriage, which may or may not be forced onto the child by the parents and community. This creates a lot of emotional disturbance to the wife/husband which may or may not result in extremely impulsive acts such as suicide. Or long-term emotional problems like depression and other personality disorders. This is taken care of by disallowing the parents to completely disinherit their children from their property. This gives the citizens of Goa the freedom to pick their own spouse with the assurance that they will always have some form of livelihood in case of any unprecedented complications. This takes away a lot of stress from the citizens and allows them to live a more fruitful life.[6]

Before 1960, Goa was ruled by the Portuguese and when Goa became a part of India, the Union Government allowed the civil code of the land to stay as it was. Hence, the laws in Goa are mainly based on the Portuguese Civil Code with a few minor changes here and there. Taking this into account, the Christian population in Goa is 25 percent, the Muslim population is 8%, and the Hindu population is 66 percent according to the 2011 census.[7] Whereas the Christian population in India is 2.3 percent. The Muslim population is 13.4 percent and the Hindu population is 80.5 percent. In comparison, the Christian population is considerably higher in Goa, than it is all over India. And the Muslim population is greater all over India as compared to only Goa.

 “We have made it clear to the Law Commission that Muslim personal law is divine and flows from the Quran. Hence there is no scope of any change in it, and we cannot accept any change,” said S.Q.R. Ilyas, member, AIMPLB (All India Muslim Personal Law Board).[8]

As shown in the quote above, the Muslim community is strongly against the introduction of a Uniform Civil Code. But in Goa, 8% of the population is Muslim. It is still a considerable chunk of the population. There seems to be little or no complaints from the Muslim and Hindu communities in Goa. Meaning if there was a uniform civil code in India, according to data, there would be little or no complaints from the communities all over the nation. But, this does not depend on one minor statistic. This issue is much greater than just the population content of a geographical area.

There is further confusion about what laws to add to the Uniform Civil Code. Every community wants to add their own laws to the uniform civil code. Taking into consideration that the majority of the population in India is Hindu, it is very likely that the majority of the laws would be Hindu in nature. This is probably why the Muslim community is strongly against the implementation of the Uniform Civil Code.

In 1954, the then Prime Minister Jawaharlal Nehru was questioned about the enforcement of Article 44 in India. He replied, saying that India was not ready for it then. It’s been 72 years since Independence, many Prime Ministers have come and gone but not one Prime Minister has brought the required change. Even now the country is not ready for it. The people of India would never be ready to willingly give up their religious customs. The policymakers would have to draft laws which do not infringe on any of the community’s laws. This is an immense task as the laws of different religions always overlap with one another. They must pass basic laws which focus on secular morals in order to accommodate every religion. After such an act is passed, there is bound to be unrest amongst most, if not all the religions. But this unrest will eventually reach a standstill and the people must be given time to adapt to this major change. At the end of all this unrest, India will finally be a unified nation and fraternity would flourish.

[1] “Section 494 in The Indian Penal Code,” indiankanoon.org/doc/508426/.

[2] Article 13 (1)

[3] Meaning: dowry

[4] “Inheritance Rights of Christian Women since ‘Mary Roy’.” Live Law, 8 Dec. 2014, www.livelaw.in/inheritance-rights-christian-women-since-mary-roy/.

[5] Service, Express News. “Shiv Sena: Uniform Civil Code Will Unite Country.” The Indian Express, Thursday, May 03, 2018, 4 Aug. 2018, indianexpress.com/article/india/shiv-sena-uniform-civil-code-will-unite-country-5292058/.

[6] “Goa Religion Census 2011.” Jaisalmer District Population Census 2011, Rajasthan Literacy Sex Ratio and Density, www.census2011.co.in/data/religion/state/30-goa.html.

[7] “Goa Religion Census 2011.” Jaisalmer District Population Census 2011, Rajasthan Literacy Sex Ratio and Density, www.census2011.co.in/data/religion/state/30-goa.html.

[8] “Muslim Personal Law Flows from Quran, Cannot Be Changed: AIMPLB.” Theweek.in, www.theweek.in/news/india/2018/07/31/muslim-personal-law-flows-from-quran-cannot-be-changed-aimplb.html.

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