A Lawyer Makes A Strong Case For A Uniform Civil Code In India

Posted on October 20, 2016 in Sexism And Patriarchy, Society

By Kunal Basu:

The recent debacle over the urgent need for a codified Uniform Civil Code has once again sprung to the forefront, as through the unending current conflict between Islamic personal law-based religious practices and Article 25 of our Indian Constitution that states that every person is free to profess, preach and practice his own religion.

The 1973 Muslim Personal Law Board — the self-constituted ‘propagator’ for all uncodified Islamic laws – is of a strangely vague and arrested opinion that the enactment of a codified uniform civil code for its religion would cast a severe impingement upon its fundamental right to preach and practice the same freely. However, it is ironic that most suggestions relating to codification of Islamic personal laws have not only been made, but also supported wholeheartedly and enthusiastically by a significant number of Muslim women.

A persuasive petition by the Indian Muslim Women’s Movement (Bharatiya Muslim Mahila Andolan) group relating to the codification of Islamic personal law and nullification of the existing Shariat Act is already pending before the Apex Court of India. As all matters relating to divorce, marriage, inheritance and succession are primarily religious culture-confined, would it not be best to straitjacket this controversial dispute by drawing up one uniform legislation that would encompass all of the former and operate to the benefit of members of all religious convictions and denominations?

It is a non-rebuttable legal presumption that India is a diverse country allowing its citizens to lead a secular life. The Supreme Court of India had made this legal stance very clear in ‘S.R. Bommai vs. UO’ (1994 SC 1918) when it rightly ruled that secularism is a basic structural feature of our Constitution and that the State could not impinge upon a person’s civil right to practice his religious beliefs with ease. The role of the Indian State is merely to act as an administrative regulator of the laws passed by our Parliament and not an ultra-administrative activist in furtherance of its own negative political vested interests.

It is not necessary that being born to one particular religion alone must mandatorily force a person to follow the faith propagated by their religion. Law does not permit forced conversion from one religion to another on vague grounds of religious supremacy. No religion in the world can be permitted to exist if its members use radicalistic methods in converting another to its practices against their will and without their consent, as it would be declared by the judiciary as violating an individual’s fundamental right to practice their own religion freely and without any form of hindrance.

The advantages of having an enacted Uniform Civil Code rest on the ground that such a law would decide matters of property, marriage, divorce et al on an equalised footing, as opposed to the current vague and confusing customary practices followed by different subsects of the Islamic faith such as the Hanafi (Sunni) and Shia schools of thought. Whilst on matters of divorce, the former school states that triple talaq is wholly valid, the latter school states that divorce ‘ila’ can be maintainable only through judicial grounds for doing so, although ironically both schools belong to the same Islamic religious faith.

As per a recent media report, it was stated that Muslims had prayed at a Hindu temple as they believed that the consort of Lord Venkataswamy was their God as well. Similarly, Hindus have followed Islamic religious faiths when they prayed at Khanqah Dargah. Is this not ample proof of indirectly embracing religious diversity using pluralistic culturalism, even though the propagators of the same belong to a totally different religion as opposed to the one they followed?

It can be argued that India is a diverse country with a multitude of religious denominations and various sub-categories of religions ensconced within its jurisdictional confines.  Through Article 51A (g), our Constitution permits every citizen of India to promote religious brotherhood (and sisterhood) intra Indian masses and renounce derogatory practices detrimental to the interests of women — an irony, as the much-abhorred practice of triple talaq totally estops Muslim women of their civil rights to claim judicial alimony and a share of immoveable property.

The Indian judiciary also has made it explicitly clear that in no matter relating to religion can the State interfere except where it contravenes the law and national interests. However, it is ironic that instead of following judicial directives, the nation is on a divisive front today with half of its population demanding the urgent need for a common codified statute law that would seek to govern religious tenets of all denominations on a single footing and the other half vis-à-vis the All-India Muslim Personal Law Board wholly rejecting it on grounds of violating their fundamental right to practice religion under Article 25 of our Constitution.

Under the 1937 Muslim Personal Law(Shariat) Act, Section 2 of the same, states very clearly that excluding agricultural land, in every other matter relating to marriage, divorce, succession, maintenance and guardianship amongst others, the applicable law would be the relevant customary law; i.e. the Shariat Act. In a parallel light, all Hindu personal laws such as the Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956) and the Hindu Adoptions and Maintenance Act (1956) all state that if a person is a Hindu, as defined in the interpretation clauses following the Preamble of the Acts, they would be governed by their own personal laws. The Christian Marriage Act (1872) also states the same too. That fact cannot be disproved, as under the 1872 Indian Evidence Act, this fact is already proved under Section 3.

Similarly, if one were to interpret Section 3 of the Indian Citizenship Act (1955), it would become clear that citizenship is granted to all persons who are born as an Indian within the territorial jurisdiction of India, excluding companies. The law makes absolutely no difference if the applicant/person born is a Hindu, Muslim, Parsee or Jain by religion. Why then, should members belonging to a specific religious community be granted special status quo laws, when they are as much Indian citizens as their brethren brothers or sisters belonging to a different religious denomination but still professing to be Indians at the same time?

We are all Indians. Article 1(1) of our Constitution says, “India, that is Bharat, shall be a collective union of States.” Nowhere is it mentioned that our country should be a ‘Hindu’ rashtra just because the majority of its people might be Hindu. It is also arguable that nowhere in our Constitution does the law pave legal inroads or statutory privileges for Hindu or Muslim citizens who have fulfilled minimum residential or other statutory qualifications under the 1955 Citizenship Act. Such a law would never stand the test of constitutionality by our judiciary as it violates a basic fundamental right to live life freely whilst propagating individualistic religion beliefs.

Central legislations such as the 1860 Indian Penal Code or even for that matter, the Civil (1908) and Criminal (1973) Procedure Code make no difference between religious denominations when prescribing punishment or the procedures for punishment. The definition of ‘person’, ‘man’ and ‘woman’ under Sections 11, 8 and 10 of the 1860 Indian Penal Code, applies to all offenders irrespective of their gender, race or religious origin. In this regard, the law is absolutely impartial, as is the legislative intendment behind enactment of such statutes.  If central laws like the IPC et al do not cater to the whims of a small majority of religious denominators, then why should personal laws be granted an exception? Is not the current Muslim Personal law defying Article 14(1) and (2) of our Constitution that seeks to guarantee equality before the law and equal protection of laws, especially with relation to matters of interest to Muslim women?

Under the law, the mischief rule of interpretation states that every legislation is enacted with a view to curb the active mischief that is prevalent in a society. While Islam permits polygamy whilst Hinduism prohibits it. The irresistible conclusion would be that a Hindu male would naturally convert to Islam and marry whilst being wedded to his Hindu wife, as Islam does not prohibit it. To curb this problem, the 1956 Hindu Marriage Act has laid down bare provisions for divorce proceedings prior to remarriage vis-à-vis Section 13(1)(ii) of the Act that state that an aggrieved party may file for divorce if the opposite party converts to another religion that permits polygamy.

In Kerala, the Marumakattayam law prohibits marriage to another person whilst the first spouse is still alive, as the same is punishable under Section 494 of the Indian Penal Code. Similarly, Section 5 of the Madras Aliyasantana Act (1949) states that any marriage contracted by the parties prior to the passing of the Act would be void as the law does not recognise polygamous marriages.

The law defined rigidly by the Hon’ble Supreme Court of India in ‘Sarala Mudgal vs. UOI’ (1995 AIR 1531) and ‘Lily Thomas vs. UOI’ (2000 6 SCC 224) expressly but categorically mentions that on no ground can a Hindu male convert to Islamic faith and marry (as Islam permits a man to have bigamous wives) whilst retaining his former status quo of being lawfully wedded to his Hindu wife. Proper divorce procedures as enshrined under Sections 13 or 13-B of the 1955 Hindu Marriage Act must be followed prior to remarriage with a member of another religion. Sudden conversion to other personal religions whose diktats permit bigamous marriages does not excuse criminal liability or judicial proceedings from being instituted against the converter, as his act of remarrying whilst having a first wife from another religion contravenes Hindu personal laws ipso facto.

In the ‘State of Bombay vs Narasu Appa and Ors.’ (1951 53 Bom. LR 779) it was held by the Supreme Court that every religion is free to pursue its own beliefs and traditions. Whilst Hindu laws prohibited a man from marrying another woman while his first wife was still alive, Islamic law permitted it.  Hence, mere conversion to another religion to escape penal liability imposed by the first for bigamy is not permissible.

The inception of the Uniform Civil Code as a single legislative enactment would seek to remove all issues relating to marriage, divorce, inheritance and succession amongst other topical issues incidental to customary personal laws. In the light of prevailing public interests, this step would certainly be seen as a welcome one by women, particularly Muslims fighting for their civil rights in a religion that seeks to deny them the same by following arbitrary customary religious practices like triple talaq.

Similarly, post the ‘Mohd. Ahmed Khan vs. Shah Bano’ (1985 SCR 3) case, the Rajiv Gandhi-led Central Government passed the 1986 Muslim Women (Protection of Rights on Divorce) Act in an attempt to nullify the Supreme Court order that stated that a Muslim woman had as much right to claim alimony and maintenance from her husband under Section 125 Cr. PC as anyone else. If our central laws prosecute an individual solely on grounds of his crime and not on the basis of his religious conviction, then why should personal laws be granted a special status quo exception?

Being an enrolled lawyer at the Bar, I am of the opinion that both Hindu and Muslim personal laws must be repealed in favour of a single codified legislation that seeks to regulate matters on property, marriage, and divorce on an equalised footing. I wholly concede that such a step would mean a gigantic effort at repealing existing codified Hindu and Muslim personal laws and the enacted 1938 Shariat Act amongst other legislations ex parte our Government.

But if successful enactment of a single uniform law such as the Uniform Civil Code can be passed by both the Lok Sabha and Rajya Sabha that operates to the benefit of all classes of religious denominations, Hindus, Christians, Jews, Parsees and Muslims alike, I think it would be the first step towards securing constitutional and legal justice for the Muslim women, especially where their fundamental and civil rights relating to property, inheritance and succession are at stake in the hands of an outdated religious practice seeking to give more male primacy and deny women their civil and legal fundamental rights to a law that tries to promote equality amongst all classes transcending religion and casteism-turned outdated practices.

If the State of Goa has no qualms in implementing such a law for all its resident people irrespective of caste, class or religion, why should a small minority bear an exception to a general rule of legal uniformity for all people in matters attempting to secure their legal rights and constitutional interests?