Article 44 directs the state to secure a uniform civil code for the citizens applicable throughout the territory of India. Its main motive is to establish gender justice in India. Even though the state has not shown any efforts towards the enactment of uniform civil code but the judiciary considers it essential to lookout the necessity of the code in the country so as to establish gender justice. Also, the uniformity in the application of laws such as marriage laws, divorce and maintenance laws, etc.
Article 44 states that, “The state shall endeavor to secure for the citizens a uniform civil code throughout the India.”
The above article was looked upon by the historical judgment in Sarla Mudgal vs. Union of India. The Court had directed the government through the Secretary of Ministry Law and Justice, to file an affidavit, and issue a Uniform Civil Law. There had been many cases witnessed that involved such incidents. In the cases, the husband of the plaintiff had converted his religion to Islam and married another woman. The problems were not confined to this but had a large scope, for instance in a case the man had married to a Muslim woman and later left her and converted to Hinduism again. By this, the grievance of the woman was that she could not claim and ask for any protection under the Muslim law as she continued to be a Muslim. In another case, the petitioner was threatened by her husband that he would embrace Islam and marry another woman. She had asked for a restraining order by the court for preventing her husband to marry another woman.
On the facts, the court held that a Hindu marriage continues to exist even after conversion to Islam. And the husband as declared by the court under the section 494 of IPC will be held liable under the practice of bigamy.
Uniform Civil Code seeks to replace personal laws that were based on the scriptures and holy books and customs of each specific religion and community in India by a common set of rules and law. As discussed before, the list of marriage, divorce and the maintenance comes under the list.
Recently, the Supreme Court considering the judgments held that:
- The constitution in Article 44 requires the state to enact the common civil code throughout the but till date no action has been taken in this regard.
- The Hindu personal laws have been modified but there has been no attempt to frame a uniform civil code for the citizens of the country.
- Even after the conclusions made and the judgments delivered in the case of Shah Bane in 1985, there has nothing been done to enact a common law for all.
- The Supreme Court has enshrined the state of Goa as a ‘Shining Example’ where Uniform Civil Code has been implemented for every religion while protecting certain limited rights.
“Goa as a shining example”
Goa has a common civil code for all which follows the Portuguese civil code 1867. It includes certain provisions:
- A Muslim man residing in the state of Goa who has registered marriage in the state cannot practice polygamy.
- If a married couple share property equally, in a pre-nuptial order the assets are divided equally between man and woman on divorce.
The laws that are applicabe to a certain class or group of people based on their religion, faith and culture are the personal laws. In a country like India, there are many religions and the people belong to different castes, having their own faith and belief. The set of laws prescribed for their religion is based on their belief. These laws were made considering the customs followed by the people and their religion. In India, people follow these laws since colonial period. Earlier the British had implemented these laws as they were a foreign Nation and it was an approach to prevent any kind of protests that they could have faced by imposing a common civil code for all.
The main subjects of personal law were marriage, divorce and maintenance. The Hindu law, initially had a lot of discrimination towards the women. But later, with the actions and voices raised against, they were largely modified and secularized by the statutory enactments. It was codified by the parliament in 1956 . It was applicable to Sikhs, Jains and the Buddhists too. The Hindu code bill has been split in four parts:
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- The Hindu Adoption and Maintenance Act, 1956
The Muslim personal laws are unmodified and has a traditional approach in their content and laws. They have not been changed considering the opposition. The Muslim laws are governed by the Shariah Law of 1937. There hasn’t been much change in those laws. There are only some enactments till the date. The law clearly states that in the matters of personal disputes, the state shall not interfere and a religious authority would pass a declaration on the basis of interpretation of the Quran and the Hadith.
The Christian and Jews apart from these have their own personal laws.
Are the personal laws Fault-less?
The Supreme Court has recently declared the act triple-talaaq as illegal which is a big step towards the gender equality and has raised a question on religion-based personal laws in the country.
Thirty-two years ago Shahnaaz Shaikh filed a public interest litigation (PIL) challenging the triple talaq provisions as she was given divorce by her husband at midnight, which acquired attention. The petition stated that Sharia law had given unequal rights to the Muslim women by imposing purdah, also allowing polygamy and the unilateral divorce and depriving the divorced Muslim women of maintenance rights.
The women activists had soon discovered that this kind of discrimination existed for all the personal laws,and all the religions. For instance, the hindu daughters were also deprived of the property rights. They were not entitled to their patriarchal property. After Lata Mittal filed a case in 1985 and won a 20-year legal battle in the Supreme Court was only that Hindu daughters were provided equal rights in the ancestral property.
Similarly, the Christian women were not allowed to divorce their husbands on the claim of adultery committed by their husbands. But on the other hand the Christian men could simply pronounce their wives as adulteress and issue a divorce. It was only a few years ago that the proposal to amend the Christian divorce act, 1869 was accepted.
 (1995) 3 SSC 635.
 1985 AIR 945, 1985 SCR (3) 844