Tuesday Conference

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Theology e-magazine

To make humanity united in worshipping God

Who is afraid of
Uniform Civil Code

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Tuesday Conference reaches you its 14th issue with a

studies article on the Uniform Civil Code titled Who Is Afraid of A
Uniform Civil Code.
A Uniform Civil Code (UCC) administers the same set of
secular civil laws to govern different people 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. The common areas covered by a civil code include:
# Personal Status
# Rights related to acquisition and administration of property
# Marriage, divorce and adoption

The perception that a UCC would change only Muslim

personal law is wrong, and probably came about
because the RSS is the only political party that actively
supports it.

Page - 02

A lot of the animosity is caused by preferential treatment

by the law of certain religious communities and this can
be avoided by a UCC.

What is UCC?
Orthodox
practices in
Hindu
personal law
or Christian
personal law
will also have
to undergo
changes. UCC
will in the
long run
ensure
Equality.

Currently, there is a Hindu Marriage Act, a Muslim Personal

Law (Shariat) Application Act, 1937, a Christian Marriage Act and
a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to
any person who is a Hindu, Buddhist, Jain or Sikh by religion.
There is also a Special Marriages Act, 1954 under which people can
perform marriage irrespective of the religion followed by either
person.
According to Article 44 of the
constitution, The State shall
endeavour to secure for the
citizens a uniform civil code
throughout the territory of
India.
Having a UCC will mean that all these laws will be replaced
by a new law which will be applicable for all irrespective of their
The
debate
religions.
surrounding the UCC
History of Uniform Civil Code
dates back to the
colonial era. The
British applied a
common
criminal
code for all but
allowed the religious
laws to be applied in
the case of personal
matters.

Most of countries in th e developed w or ld, including th e United States,

France, Germany, etc. have common civil laws in place which is applicable to all its
citizens who, regardless of race, religion or gender, abide by them. Among the
emerging economies, India is the only BRICS nations without a common civil code.

Page - 03

The Shah Bano Case of 1985

Shah Bano, an elderly Muslim, and mother of five, was divorced by her husband.
Her husband refused to pay her maintenance beyond the period of iddat (three-month
period after divorce in which she cannot remarry) arguing that Muslim personal law
does not oblige him.
The case went up to the Supreme Court which granted her
maintenance for life under Section 125 of the Cr.P.C (according to
which he had to maintain her until she remarries or dies if she
has no means of her own for survival). Some Muslims perceived
this as an attack on their religion and their personal laws and
protested against the judgment.
This caused the Congress government to pass the Muslim Women (Protection of
Rights on Divorce) Act, 1986 which nullified the judgment of the Supreme Court.
However, in the later judgments, the Supreme Court of India upheld the Shah Bano
judgment and the act was nullified.

What is stand of the Supreme Court

The court regrets:
India is a secular nation and it is a cardinal necessity that religion is distanced
from law. Ther efor e, th e task befor e us is to inter pr et th e law of th e land,
not in light of the tenets of the parties religion but in keeping with the legislative
intent and prevailing case law.

another innocuous case :

in July 2003, seeking to strike down Section 118 of the Indian Succession Act which
prevents Christians from willing property for charitable and religious purposes, and
the Bench has again while regretting the government's inability to enact a UCC, struck
down the Section declaring it to be unconstitutional.

in October 2015 the apex court had said,

There is total confusion We should work
on the Uniform Civil Code. What happened
to it? If you (government) want to do it,
then you should do it. Why dont you frame
and implement it.
A Uniform Civil Code does not necessarily mean a repeal of all
personal laws as propagated.

Page - 04

There is
discriminatio
n against the
wife in two
ways- both in
the time

Why do we need a Uniform Civil Code?

Many women associations feel that UCC would give women
equal rights, as they believe the current laws discriminate against
them.
a) A Muslim husband can divorce his wife by simply saying Talaq,
Talaq, Talaq, without providing any reason, whereas a Muslim
wife has to file a petition in court, which might take years, and
she has to provide some ground for divorce, like cruelty, adultery
etc. She also has to produce witnesses or documentary evidence
in support of that ground.

required for
the divorce
and also for
the
obligation for
providing

b) A Muslim man can marry four wives, but a woman

reason being

can, at a time, have only one husband. According to the

waived off for

men.

1961 census (the last census to record such data), polygamy was
actually less prevalent among Indian Muslims (5.7%) than among
several other religious groups (Adivasis-15.25%, Buddhists-7.9%,
and Hindus-5.8%).

c) Christians are also given separate standards for

divorcewhich makes it more difficult for them than it is for

Hindus.
d) According to the Hindu Succession Act, a mother has
equal rights over the property as do the children and the widow in
the event of her sons death. But when a married daughter dies, the
mother ranks after the husbands heirs.

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 dont agree with
this at all. It has to be done through a decree of a court. The Supreme
Court of India

Why is it difficult to implement?

1) The vast diversity of the personal laws, along
with the devotion to which they are adhered to,
makes uniformity of any sort very difficult to
achieve.
2) The next problem comes from trying to
remove politics from the debate. Any comment,
opinion or discussion hardly passes through
without political angles being attributed to it.
6) Some people also argue that it would lead to
a loss of the culture and the identity of the
minorities in the Indian society.

Page - 05

3) Many people still do not know

what the uniform civil code really
means. There are still false
conceptions
surrounding
it,
especially
amongst
the
minorities, which make a rational
debate on its implementation
quite difficult.
4) UCC is also sometimes
perceived as the imposition of the
Hindu code and procedures, and
this adds to its opposition from
the minorities.

5) The Hindu law has already been

reformed, and yet the amount of land
actually inherited by Hindu women is
only a fraction of the land they are
entitled to under the reformed Hindu
law.
Thus it is argued that the backwardness of
Muslim women cannot be solely explained
by their personal law.

The Legal Challenges.

Questions will be asked regarding the limit of State with respect to religion.
Attempt to highlight the States intervention in the religious matter.

The argument of the conflict of UCC with fundamental rights would be brought to
the table, challenging the common codes authenticity.

Art.25, 26 and 29 are the most conflicting fundamental rights in relation to UCC.
Art. 44 of the Directive Principles of State Policy advocates for the UCC.
Its often argued that since the directive principles of state
Policy on various issues havent been implemented, why should
the UCC?

Page - 06

Arguments in favour

1) It will enhance the status of women and so-called lower castes as many
personal laws are biased against them.
2) Many provisions are violations of human rights.
3) Article 25 and 26 guarantee freedom of religion and UCC is not opposed to
secularism.
4) Modern, liberal and gender-sensitive civil code is need of the hour.
5) A sign that the Nation has moved away from caste and religion considerations.

6) All Indians should be treated same

7) Every Modern Nation Has it. A uniform civil code is the sign of modern
progressive nation.
8) Will help in reducing vote bank politics that most political parties indulge in
during elections and in National integration.
9) The various personal laws are basically a loop hole to be exploited by those
who have the power. Our panchayats continue to give judgments that are against

our constitution and we dont do anything about it.

10) It promotes real secularism

A Way forward...
1) We should ask all communities to suggest
reforms within personal laws on modern and
liberal lines.
2) Communities should be convinced that UCC is
to bring reforms not suppress them.
3) May be a piecemeal reform rather than a
holistic reform starting with what minorities are
most comfortable of doing away with.

Page - 07

The UCC, if brought in now, will be perceived as an apology for hegemony of the
Hindu laws over the personal laws applicable to Muslims and Christians, and
justifiably so.
The provisions for divorce by mutual consent that have
been introduced in the Hindu Marriage Act or under the Divorce
Act applicable to Christians are actually a movement towards the
Muslim understanding of marriages.
K. Kannan is a former judge of the Punjab and Har yana High Cour t

Catholic church has an "open mind" ...

Catholic Bishops' Conference of India today urged the
Centre to hold time-bound discussion with all religious groups in
the country on uniform civil code issue. Stating that the church
has an "open mind" to take part in the debate, the apex
bishops' body also said the country's unity should be protected as
such.

Any
discussion
on the
uniform civil
code should
be held
ensuring the
religious

CBCI's stand is also that a progressive approach be

freedom

adopted to the entire issue. Fr Donald D'Souza, deputy secretary,

guaranteed

CBCI, said: "Whatever is obnoxious in the personal laws of

by the

religious minorities from the perspective of the greater

good of the nation and the people as a whole, should be

constitution.

eliminated."
Conclusion: To turn ourselves against a progressive reform in the legal
framework of the country would not be a feasible attempt. Moreover the civil

society has become more democratic on religious matters. It is equally

important to take the confidence of minorities when their life

and rituals are under question.
Editor: Tony Maliyekal VC

Published from Vincentian Vidyabhavan, Aluva.