What is Uniform Civil code
Uniform civil code in India is the proposal to replace the personal laws based on the scriptures and customs of each major religious with a common set governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
Uniform Civil Code - Article 44 requires the State to secure for the citizens a uniform civil code throughout the territory of India.
In a historic judgement in Sarla Mudgal v. Union of India, the Supreme Court has directed the Prime Minister Narsimha Rao to take fresh look at Art. 44 of the constitution which enjoins the State to secure a uniform civil code which, accordingly to the court is imperative for both protection of the oppressed and promotion of national unity and integrity. The Court directed the Union government through the Secretary to Ministry of law and Justice to file an affidavit by August 1995 indicating the steps taken and efforts made, by the Government, towards securing a uniform civil code for the citizens of India.
The above direction was given by the Court while dealing with case where the question for consideration was whether a Hindu husband married under Hindu law, after conversion to Islam, without dissolving the first marriage, can solemnise a second marriage. The Court has held that such a marriage will be illegal and the husband can prosecuted for bigamy under Section 494 of the Indian Penal Code.
In this case four petitions were filed. The petition was filed by a registered society working for the welfare of woman as public interest litigation.
The second was filed by one Meena Mathur. She contended that she was married to one Jitendra in 1978 and they had three children out of the wedlock. In 1988 her husband solemnized second marriage with one Sunita Narula alias Fatima after they converted to Islam.
In the third case Sunita alias Fatima contended that after marrying her Jitendra Mathur had again reverted back to Hinduism and leaving his first wife. Her grievance was that she still continues to be a Muslim but not being maintained by her husband and has no protection under either of the personal law. In the third case, the petitioner Gita rani contended that she was married to one Pradeep Kumar according to Hindu rites in 1988. In 1991 she came to know that her husband ran away with one Deepa and after conversion to Islam married her.
The fourth petitioner Sushmita Ghosh contended in the Court that she was married to G.C. Ghosh according to Hindu rites in 1984 but in 1992 her husband told her that he did not like her and he would embrace Islam and marry one Vinita Gupta. She prayed that her husband be restrained from entering into second marriage with Vinita Gupta.
On the facts of the cases, the Court held that a Hindu marriage continues to exist even after one of the spouse converted to Islam. There is no automatic dissolution of Hindu marriage. It can only be dissolved by a decree of divorce on any of the grounds mentioned in Section 13 of the Hindu Marriage Act. Accordingly, the Court held that the second marriage of Hindu after his conversion to Islam was void in terms of Section 494 IPC and the husband was liable to be prosecuted for bigamy.
As regards the question of "Uniform Civil Code" the Division Bench (Kuldip Singh and R.M. Sahai. JJ) in their separate but concurrent judgments said that since 1950 a number of Governments have come and gone but they have failed to make any efforts towards implementing the constitutional mandate under Art 44 of the constitution. Consequently the problem today is that many Hindus have changed their religion and have converted to Islam only for the purpose of escaping the consequence of bigamy. This is so because Muslim Law permits more than one wife and to the extent of four. Kuldip Singh J., said that Art. 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matters are of a secular nature and therefore, they can be regulated by law. No religion permits deliberate distortions, the judges declared. Much apprehension prevails about bigamy in Islam itself. In many Islamic countries as in Syria. Tunisia Morocco, Pakistan, Iran and other Islamic countries have codified their personal law to check its abuse.
He pointed out that even in America it has been judicially acclaimed that the practice of polygamy is injurious to "public morals" even though some religion may make it obligatory or desirable for its followers. It can be regulated by the State just it can prohibit human sacrifice or the practice of Sati in the interest of public order.
This judgment of the court has aroused the hope that one of the greatest evil of Indian Society will be removed. But unfortunately the Court, while hearing an appeal filed by one of the accused in the above case, clarified that its direction was only an obiter dicta and not legally binding on the Government. This clarification was given by Mr. Justice Kuldip Singh who had directed the Government to take immediate steps for implementing the mandate of Art. 44 of the constitution. Even before the clarification of the court the Prime Minister had told to the Muslim Ulemas of Rampur, U.P. that his Government would not implement the constitutional mandate under Art. 44 of the Constitution.
In Pragati Varghese v. Cyril George Varghese, the Full Bench of the Bombay High Court has struck down Section 10 of the Indian Divorce Act under which a Christian wife had to prove adultery along with cruelty or desertion along with cruelty or desertion while seeking a divorce on the ground that it violates the fundamental right of a Christian woman to live with human dignity under Art. 21 of the Constitution. The Court also declared Section 17 and 20 of the Act invalid which provided that an annulment or divorce passed by a District Court was required to be confirmed by a 3 Judges of the High Court. The Court said that Section 10 of the Act compels the wife to continue to live with a man who has deserted her or treated her with cruelty. Such a life is sub-human. There is denial to dissolve the marriage when the marriage has broken down irretrievably.
All marriages must be registered : First step towards Uniform Civil Code - In Seema v. Ashwani Kumar, the Supreme has held that all marriages irrespective of their religion, be compulsorily registered. Moved by the plight of women fighting for their rights under marriage like maintenance and custody of their children, a two Judge Bench of the Supreme Court comparising Justices Arijit Pasayat and S.H. Kapadia directed the Centre and State Governments to amend the law or frame rules and notify them within three months. The Court directed the government to provide for "consequences of non-registration of marriages" in the rules which should be formalized after inviting public response and considering them. The court said the rules so framed would continue to operate till the respective governments framed proper legislations for the compulsory registration of marriages. Giving no room for appeasement or dilution of the objective to be achieved through such legislations, Justice Pasayat said all new laws to be framed by the governments have to be placed for scrutiny before the Supreme Court. The Court felt that this ruling was necessitated by the need of time as certain unscrupulous husbands deny marriages leaving the spouses in the lurch, be it for seeking maintenance, custody of children or inheritance of property. The ruling of the Court will itself facilitate the object of having a common civil code as most the problems relating to it are due to the non-registration of marriages. The benefits of this ruling are as follows:-
It will -
- prevent child marriage;
- check bigamy and polygamy;
- help women to exercise their rights under marriage - maintenance - custody of children;
- enable widows to claim inheritence; and
- deter husbands from deserting their wives.
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