NEED FOR UNIFICATION OF PERSONAL LAWS

By Devm Blogs September 23, 2020

INTRODUCTION

The personal laws of India are relatively complex because each religion only follows its laws. In many states, registration of marriage and divorce is not necessary. Different laws are prevalent for Sikhs and Hindus, Buddhists, Christians, and Muslims. An exception to these laws is Goa. It has a Uniform Civil Code, i.e. all the religions have to follow one single law for divorce, marriage, and adoption. Goa’s uniform civil code is primarily based on the Portuguese civil code 1867, in which:

A Muslim man who has not registered his marriage in Goa is not eligible to practice polygamy. Additionally, a verbal divorce cannot take place as no provision is there supporting it.[1] Also, the property is shared equally between the married couple, and pre-nuptial agreements are essential.[2]

The people who framed Constitution were vigilant about the discrimination and unequal treatment from times immemorial. So, they included several provisions in the Constitution with the sole purpose of upliftment of the status of women. Articles 15 and 14 of the Constitution states that everyone is equal before the law.

Nonetheless, personal laws are different in each religion regarding divorce, succession, guardianship, marriage, maintenance, and adoption. There is no Uniform Civil Code relating to personal matters, but there is some uniformity in criminal laws in India.[3]

WHY UNIFICATION?

Uniform Civil Code means unifying the personal laws into a single set of laws that will apply to all Indians irrespective of their religion, caste, and sex. The application of UCC is crucial for protecting the oppressed and promoting unity and national integrity.

UCC will protect the rights of women, i.e. the right to justice in courts and the right to equality in matters relating to divorce, custody of children, adoption, marriage, maintenance, etc.[4]

1. Simplification of Laws

So many personal laws are prevalent. These laws create complexity, confusion, and inconsistency. It also leads to delayed justice and sometimes, no justice. Implementation of UCC will eliminate this confusion.

2. Simplification of Indian Legal System

UCC will defeat the divisionist and communal forces in the long term.[5]

HISTORICAL BACKGROUND

The controversy of UCC has been prevalent since the colonial period, i.e. even before the British rule. They tried to reorganize the religious customs and local social customs. The then Governor-General of India, whose name was Lord William Bentinck, attempted to abolish sati. Sati was a practice in which the widow had to die on her husband’s funeral pyre. He passed the Bengal Sati Regulation in 1829. Later, it was protracted to India’s English territories.[6]

The Lex Loci Report of 1840 stated the relevance of implementing the Uniform Civil Code in India regarding the law of evidence and crimes. But it suggested that Muslim and Hindu personal laws should not be included in this codification.

India’s religious divisions were separated by the British. Further, they said that sacred scriptures and customs of several communities such as Hindus, Muslims, and Christians should govern these divisions. Panchayats and local courts applied these laws whenever they dealt with cases of civil disputes between people of the same religion. Interference of state would only occur in exceptional cases. Therefore, Indians were allowed to self-govern themselves in domestic matters. The queen of 1859 approved the non-interference of the state in religious matters.[7]

Sarla Mudgal, President, Kalyani & Ors V. Union of India & Ors. (1995 AIR 1531 SC)

It laid down the principles against the practice of solemnizing second marriage by conversion to Islam, while the first marriage not being dissolved.

The first petitioner was the President of a registered society known as “KALYANI”. The second petitioner was a woman whose name is Meena Mathur. She was the wife of Jitender Mathur.

ISSUES

Whether a man who is married under Hindu Law converts into Islamism and marries the second time?
Will the second marriage be valid when the first marriage has not yet been dissolved under the law, and the first wife is still Hindu?
Whether such a man be guilty under Section 494 of the IPC?[8]

JUDGEMENT

Honorable judge Kuldip Singh stated the importance of the implementation of UCC. Further, he said that until UCC is implemented in India, Hindu men can enter into second marriage whether the first marriage has been dissolved or not. Because only the Hindu law states that monogamy is an offense. Whereas, under Muslim law, a man can have four wives at the most. If a Hindu man wants to embrace Islam and marry the second time, he can do that, and he will not be liable under section 494 of the Indian Penal Code.[9]

SUPREME COURT’S VIEW

In October 2015, the Supreme Court of India asserted the need for a Uniform Civil Code and said that “This cannot be accepted, otherwise every religion will say it has a right to decide various

issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.

CONCLUSION

In the end, it can be halted that the implementation of the Uniform Civil Code in India is essential. By doing this, citizens of India will have one single law for everything such as marriage, divorce, maintenance, and adoption. The Law Commission suggested that the Legislature should consider equality in the communities. For ensuring promotion, equality, and protection and avoiding religious and social taboos faced by women due to the personal laws, the Uniform Civil Code should be implemented. Treating women equally and acknowledging their rights is of paramount importance.

Author(s) Name: Palak Gupta (symbiosis Law School, Nagpur)

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[1] “Uniform Civil Code (UCC): Article 44 of the Indian Constitution” (Accessed on 12^th September at 11:52 am)

https://legalthirst.com/uniform-civil-code-ucc-article-44-of-the-indian-constitution/

[2] “Uniform Civil Code” (Accessed on 12^th September at 12:16 pm)

https://www.civilsdaily.com/news/uniform-civil-code/

[3] “Unification of Personal Laws in India and Rights of Women” (Accessed on 12^th September at 12:54 pm)

http://www.ssr-net.com/issues/Vol_4_No_1_June_2018/1.pdf

[4] “Unification of Personal Laws in India and Rights of Women” (Accessed on 12^th September 1:32 pm)

http://www.ssr-net.com/issues/Vol_4_No_1_June_2018/1.pdf

[5] “Uniform Civil Code” (Accessed on 12^th September at 1:57 pm)

https://www.drishtiias.com/to-the-points/Paper2/uniform-civil-code