Chapter 2

Gender Justice and Uniform Civil

Code : An Overview
Dr. P.K. Pandey

INTRODUCTION
The Indian democratic society, which is governed by the rule of law, in which
it is predicted that all citizens are equal before law and entitled to receive equal
protection of law, irrespective of their caste, creed, religion, race and sex etc. But,
the pillar of humanity i.e. women are jeopardized in many ways and bound to face
problems of varied nature only due to being women. Constitutional and statutory
protections and safeguards could not provide fruitful results for their protection
in form of a human being. Though, the Indian Judiciary has also done a lot but it
is ground reality that there are some limitations on jurisdiction of Judiciary and
Judiciary cannot take over the functions of other organs of the State viz. executive
and legislative. In this connection, the Uniform Civil Code (UCC), a constitutional
mandate, is awaiting the mercy of Indian Legislature to take the form of law to
provide equal status to women, who are victims of diversities in personal laws.
In India, it is harsh fact that women, at the first hand, are not women rather they
are Hindu, Muslim, Christian, Jew or Parsi. This mentality is the root cause of our
backwardness, discrimination and various social evils. It is need of hour to
understand the utility of UCC which is an efficient tool to harmonise the diversities
of laws in personal matters which will ultimately achieve the objective enshrined
in gender justice. In this chapter, an attempt has been made to draw the full picture
of UCC, its need and relevance for enactment.

UNIFORM CIVIL CODE: CONCEPT

The expression UCC is combination of three terms-uniform, civil and
code. Uniform refers to the form of a thing which differs from common.
Uniform means same in similar conditions and common means to one and
the same in all circumstances. As Sathe said that the word uniform should not
mean that the same law for all but it should mean similar laws for all and similarity
should be regarding equality and gender justice.1

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Gender Justice and Uniform Civil Code : An Overview 17

The term civil has been derived from Latin word civilis, means a citizen.
When civil is used as adjective of law, it means pertaining to the private rights
and remedies of a citizen; as distinguished from criminal, political etc.2 Further,
the term code which is derived from the Latin word codex means a book
consisting originally of wooden tables covered with wax and later of sheets of
parchment of papyrus3. It was first used, regarding collection of laws, to denote
two private collections of imperial Roman laws viz. Codex Gregorianas (291
A.D.) and Codex Hermogenianus (294 A.D.). The term civil code is used to
cover the entire body of laws governing rights relating to property and otherwise
in personal matters like marriage, divorce, maintenance, adoption and inheritance.4
The term, in modern time, is used in the sense of a comprehensive work of
legislation regulating an entire province of law provided that is arranged
systematically and based on uniform principles.5
Indeed, in legal arena, UCC is confined to having a uniform family code
for every members of all communities i.e. Hindu, Muslim, Parsi etc., residing in
India regarding marriage, divorce, custody, adoption, succession etc. to achieve
the goal embodied in the Constitution of India by which we have solemnly
resolved to constitute India into a Sovereign, Socialist, Secular, Democratic
Republic.
De facto, the concept of UCC has two aspects- firstly, there should be
uniform law for all community and secondly, all being governed by one law as
well as uniformity within communities viz. between men and women.
INTERNATIONAL OBLIGATIONS AND UCC
In international law, when a State ratifies an international instrument
becomes under obligation to amend its domestic law in consonance with that
ratification. India also has ratified many international instruments like-
International Covenant on Civil and Political Rights, 1966; Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), 1979
under which India is duty bound to amend its domestic laws. CEDAW is the
most important human rights instrument for the protection and promotion of
womens rights and is also one of the most ratified treaties.6 Discrimination on
the ground of sex i.e. only due to being women, women are bound to face
humiliation. They have inferior status inside and outside home. Under the
provisions of Art. 17 of the CEDAW, a committee on the Elimination of
Discrimination against Women, is established to monitor the compliance of
CEDAW provisions. India ratified CEDAW with subject to Art. 5 (a) and 16 (1)
of the CEDAW as the Government of the republic of India declares that it shall
abide by and ensure these provisions in conformity with its policy of non-
interference in the personal affairs of any community without the initiative and
consent. Submitting the periodic report before UN committee on the Elimination
of Discrimination against Women, India admitted that the personal laws of the
major religious communities had traditionally governed marital and family
relations, with the Government maintaining a policy of non -interference in such
laws in the absence of a demand for change from individual religious communities.7

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18 Human Rights and Gender Justice

Like other countries, who have ratified CEDAW, India submits periodic
report to Committee. Taking into account the inhuman treatment, the committee
observed that steps have not been taken to reform the personal laws of different
religious and ethnic groups, in consultation with them, so as to conform to the
convention.8 Further, the Committee noted that the Governments policy of
non-intervention perpetuates sexual stereotypes, son preference and
discrimination against women.9
The Committee urged the Government to withdraw its declaration to
Article 16, paragraph 1, of the Convention and to work with and support womens
groups as members of the community in reviewing and reforming these personal
laws. The Committee also calls upon the Government to follow the directive
principles in the Constitution and Supreme Court decisions and enact a uniform
civil code that different ethnic and religious groups may adopt.10
The Committee appreciated the contribution made by the Supreme Court
of India in developing the concept of social action litigation and a jurisprudence
integrating the Convention into domestic law by interpreting Constitutional
provisions on gender equality and non -discrimination.11
Another international monitoring body of International Covenant on Civil
and Political Rights 1966, the Human Rights Committee, considering the third
periodic report of India, commented that the women in India have not been freed
from discrimination. They are subjected to personal laws which are based on
religious norms and which do not accord equality in respect of marriage, divorce,
inheritance rights. The HR Committee recommended to Govt. of India that efforts
be strengthened towards the enjoyment of their rights by women without
discrimination and that personal laws be enacted which are fully compitable with
the covenant. As Derret observed that [u]nification of law in India is an undoubted
aim of a public which ardently desires unification as an object of general policy.12
DISCRIMINATION AGAINST WOMEN IN PERSONAL LAWS
Women, whose whole life is devoted for men in various forms like-mother,
wife, sister, daughter etc., are discriminated in all personal laws. Being the
backbone of the family, they have inferior status in comparison to men. Only
because of a specific community, the women are discriminated in the matters of
marriage, divorce, inheritance, adoption and maintenance etc. and this statement
is applicable to all personal laws. Some instances are as-
Hindu: In Hindus, in ancient literature, women have been regarded in form
of Goddess and in present day too Goddess are worshipped in form of women.
But, on other hand, they are discriminated in all walks of life. Before codification
of Hindu law, [p]ermission for polygamy and child marriage, prohibition on inter-
caste marriage and widow marriage, absence of divorce and other matrimonial
remedies, denial of womens right to share in the family property or in the property
of the deceased persons and male dominance in matters like custody, guardianship
and adoption of children caused unjust conditions in the Hindu social order.13 After
codification of Hindu law, the practices of polygamy, child marriage, inter-caste
marriage were removed.14 Earlier, Hindu women were not coparcener in Hindu

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Gender Justice and Uniform Civil Code : An Overview 19

coparcenery but now they have got right to be coparcener. Discriminatory provisions
of the Hindu Succession Act, 1956 are repealed.15 Property of a female Hindu is
her absolute property, whether acquired before or after the commencement of
Hindu Succession Act.16 Hindu female has not only equal rights of divorce17 rather
they have extra ground of divorce too.18 It is notable achievement for a nascent
democracy that a major segment of its population is emancipated from orthodox,
irrational and discriminatory relations and their place is governed by the principles
of justice, equality and liberty. The task of law giver was not one of much difficulty
as the majority of the Hindu community was ready to receive the reforms.19 Now,
the women are entitled to adopt the kids like a male.20
In spite of the codification of Hindu law, there are certain discriminatory
provisions as-during the life of her husband, a Hindu wife cannot be a natural
guardian of her children.21 Provision of adoption is available only in Hindus and
not in any other community. Thus, the members of other communities are
discriminated, due to not getting the benefit of adoption.
As Jawahar Lal Nehru said that the British policy of non-interference with
personal law and mechanical interpretation or perpetuation of Hindu customs
stopped the natural growth of Hind law and gave rise to petrified rules.22 Thus,
it is clear that the objective enshrined in the Constitution of India could not do
justice with fair sex and concept of gender equality could not be achieved till date.
Muslim: The Muslim personal law had incorporated still more rigid and
unfair usages like polygamy, unilateral divorce, non-maintenance of divorced
wife and gender discrimination in matters of succession.23 Halala24 process is
very inhuman and discriminatory provision for remarriage to women. In Muslim
law, a male can marry to four wives at a time but the wife has not same option
like her husband. There is no limitation regarding number of Muta marriages in
Shia law. Muslim females have inferior status in divorce too. In the matter of
succession, the Muslim female is discriminated. The divorced Muslim woman is
entitled to receive maintenance only upto iddat period. Though a progressive
step was taken by Honble Supreme Court of India25 but the Government of
India for doing so-called justice with Muslim male community (but the main
intention was to increase vote bank) passed the Muslim Women (Protection of
Rights on Divorce) Act, 198626 to nullify the effects of Shah Bano case27.
According to this Act, a Muslim male is liable to maintain her divorced wife only
upto iddat period unless both spouses submit to the court at the appropriate
time that they would like to be governed by Criminal Procedure Code, 1973.
Justice V. Krishna Iyer observed that the policy underlying the statute has betrayed
the constitutional intention of enacting uniform civil code and attainment of
social justice.28 The whole incident shows that the temporary will of the
parliamentary majority is sometimes able to subvert the secular and egalitarian
values.29 The aforesaid Act can be held unconstitutional on following grounds30-
It discriminates divorced women on the ground of the religion.
Art. 15 (3) enjoys that the special law made for women must be beneficial
to them but at the same time does not permit same law to be framed for
the women of a particular religion.
20 Human Rights and Gender Justice

Dignity of women and equality of status and equal opportunity for all
and fraternity of the preamble of the Constitution are not saved.
It is violative of Art. 14 of the Constitution as the classification is
arbitrary, irrational and unreasonable.
It is also inconsistent with the provisions of Art. 39-A of the
Constitution.
The Supreme Court of India has ruled that the liability of a Muslim husband
to his divorced wife to pay maintenance is not confined to the iddat period
only.31
As Nehru wrote that Hinduism and Islam, quite apart from their religious
teachings, lay down social codes and rules about marriage, inheritance, civil and
criminal law, political organization and indeed almost everything else. In other
words, they lay down a complete structure for society and try to perpetuate this
by giving it religious sanction and authority.32 According to Nehru, the extreme
religious reverence which some people gave to their personal laws was completely
misplaced.33
After attaining independence also, Indian Govt. could not reform Muslim
law because of a large distrust and protest by Muslim representatives in
Constituent Assembly. The Muslim representatives got a sense of undue reverence
to Quranic prescriptions which were regarded as the base of their personal laws.
Nehru felt that Muslims were not sufficiently educated to accept and approve
modern values. He observed now we do not dare to touch Muslims because
they are in minority and we do not wish Hindu majority to do it. These are
personal laws and so they will remain for the Muslims unless they want to
change them.34 As Justice Tulzapurkar observed, peculiar features of Muslim
personal law are unjust, derogatory, humiliating and discriminatory against
Muslim women on the ground of sex.35
Similar discriminatory provisions are there in other communities like Parsi,
Jews and Christian. A Christian husband, under the Indian Divorce Act can get
divorce on the ground of adultery on the part of his wife but a Christian wife has
to prove one more ground such as cruelty or desertion in addition to adultery on
the part of her husband to obtain divorce. It is amply clear that in Christian
personal law, wifes grounds for divorce make her inferior.
As far as matrimonial laws of Jews, there is no codified law in India. Even
today, they are governed by their religious laws. Jews do not regard marriage as
a civil contract, but as a relation between two persons involving very sacred
duties.36
These illustrations of diversities clearly show that there is considerable
scope for making improvements in each set of personal law governing each
community and no particular set of personal law can be said to be without
defects or deficiencies and even the secular law like the Special Marriage Act,
195437 would need some trimming and pruning.38
INDIAN CONSTITUTION
Before attaining independence, India was ruled by many rulers as Britishers,
Gender Justice and Uniform Civil Code : An Overview 21

Mughals etc. In Mughal period, Muslim law was applied to Muslims to do

justice by Kazis in civil cases. In criminal cases, Muslim criminal law was
applicable for all on a uniform scale. Mughal system of administration of justice
was continued till 1772 in British period. In 1772, at the first time, Lord Warren
Hestings provided regulation applicable to all in civil cases irrespective of their
religion or creed i.e. without discrimination between Hindus and Muslims. Personal
laws were permitted to apply by the regulation of 1781 in matters of marriage,
inheritance, religious usages only under the authority of legislation and not under
the authority of religion. In criminal matters, Muslim criminal law was applied,
which were amended by time to time, to all religious communities in India. Lord
Cornwallis, in 1790, introduced ameliorative measures regarding criminal law
and procedure. Before independence of India, the Britishers enacted many laws39
which were applicable for all without discrimination of caste, creed, religion
though the provisions were against their personal laws.
Before independence, there were distinct governing personal laws for two
major communities-Hindus and Muslims. Personal law was not uniformly
applicable to all members to any community. As Hindus were governed by
Mitakshara and Dayabhaga law. Again, Mitakshara was divided in four schools
viz. Mithila, Madras, Benaras and Bombay. In nutshell, Hindus had separate
personal law for themselves. In same tune Muslims were also classified in two
sects-Sunni and Shia. Sunni sect was divided in Hanafi, Hanbal, Maliki and Shafi
and Shia sect was divided in Ithna Ishari, Ismaili, Zyadia. These two sects-shia
and sunni-differ from each other in application of personal law, though Muslim
personal law is derived from one source i.e. Quran. Christians were divided in
Catholics and Protestants, whose personal law is codified in the form of Christian
Marriage Act, 187240 and Indian Divorce Act, 186941. Similarly, Parsis have their
own personal law applicable to them. Goa, Daman and Dieu in 1961 and in 1961
Pondichery merged in India which ultimately introduced two foreign legal
systems. 42
After independence, some laws are enacted which are uniformly applicable
to all43 irrespective of their caste or religion. As renowned Muslim Jurist Tahir
Mahmood said that the State in India has not left each and every aspect of the
law of personal status, family relations and succession to be governed by the
various denominational laws. Certain laws meant to be applicable all Indians,
alike have been enacted in the said areas now and then. The Muslim law, like all
other personal laws, operates in India, so long as its application is not ousted by
any of such uniform laws, enacted in this country.44
Honble Supreme Court of India ruled that the legislation-not religion-
being the authority under which personal laws were permitted to operate and is
continuing to operate the same can be superseded/supplemented by introducing
a uniform civil code. In this view of the matter, no community can oppose the
introduction of uniform civil code for all the citizens in the territory of India.45
In Constituent Assembly46, during making the Constitution, a hot debate
took place in favour and against UCC. Regarding UCC, a separate Art. 35 was
proposed in draft Constitution as-
22 Human Rights and Gender Justice

State shall endeavour to secure for citizens a uniform civil code

throughout the territory of India.
In Assembly, there were two groups-first, those who favoured UCC-
K.M. Munshi, B.R. Ambedkar, S.C. Majumdar, Alladi Krishnaswami Ayyar;
and second who opposed-Mahboob Ali Baig, Naziruddin Ahmad, Mohammad
Ismail, Pocker Sahib, Hussain Imam. The second group, the opposers of the
UCC, wanted to amend Art. 35 to exclude personal laws from the purview of the
UCC.
Mohamad Ismail Sahib said that the right to follow personal law is part
of the way of life of those people who are following such laws; it is part of their
religion and part of their culture. If anything is done affecting the personal laws,
it will be tantamount to interference with the way of life of those people who
have been observing these laws for generations and ages. This secular State
which we are trying to create should not do anything to interfere with the way of
life and religion of the people. The matter of retaining personal law is nothing
new; we have precedents in European countries. He proposed a proviso to add
in Article 35 as-
Provided that any group, section or community of people shall not be
obliged to give up its own personal law in case it has such a law.
As Naziruddin Ahmad said that the personal law of any community would
not be changed without the previous approval of that community. Further, he
observed that what the British in 175 years failed to do or was afraid to do, what
the Muslims in the course of 500 years refrained from doing, we should not give
power to the State to do all at once.. He also proposed amendments in this
regard as-
Provided that the personal law of any community which has been
guaranteed by the statue shall not be changed except with the previous
approval of the community ascertained in such manner as the Union
Legislature may determine by law.
Mahbood Ali Baig Sahib Bahadur also moved amendment as-
Provided that nothing in this article shall affect the personal law of the
citizen.
Pocker Sahib also asked to amend Art. 35 as-
Provide that any group, section or community of people shall not be
obliged to give up its own personal law in case it has such a law.
The proposed idea of amendment to Art. 35 was opposed by Dr. Ambedkar
stating that I can cite innumerable enactments which would prove that this
country has practically a Civil Code, uniform in its content and applicable to the
whole of the country. The only province the Civil Law has not been able to
invade so far is marriage and succession. Further, he observed that up to 1935
the North-West Frontier Province was not subject to the Shari at Law. It followed
the Hindu Law in the matter of succession and in other matters, so much so that
it was in 1939 that the Central Legislature had to come into the field and to
abrogate the application of the Hindu Law to the Muslims of the North-West
Frontier Province and to apply the Shari at Law to them apart from the North-
Gender Justice and Uniform Civil Code : An Overview 23

West Frontier Province, up till 1937 in the rest of India, in various parts, such as
the United Provinces, the Central Provinces and Bombay, the Muslims to a large
extent were governed by the Hindu Law in the matter of succession that in
North Malabar the Marumakkathayam Law applied to all-not only to Hindus
but also to Muslims. It is to be remembered that the Marumakkathayam Law is
a Matriarchal form of law and not a Patriarchal form of law.
Opposing the demands of Muslim members, K.M. Munshi said that I
know there are many among Hindus who do not like a uniform Civil Code,
because they take the same view as the honourable Muslim Members. They feel
that the personal law of inheritance, succession etc. is really a part of their
religion. If that were so, you can never give, for instance, equality to women. But
you have already passed a Fundamental Right to that effect and you have an
article here which lays down that there should be no discrimination against sex.
Look at Hindu Law; you get any amount of discrimination against women; and if
that is part of Hindu religion or Hindu religious practice, you cannot pass a single
law which would elevate the position of Hindu women to that of men. Therefore,
there is no reason why there should not be a civil code throughout the territory
of India.
Finally, the Constituent Assembly rejected the proposed amendments by
Muslim members and adopted Art. 35 as-
The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
Accordingly, the provision relating to UCC was placed in Art. 44 as
Directive Principles of State Policy. The term endeavour, used in Art. 44,
means that the drive of the State and the response of the people should result in
a revolutionary movement placed towards confiscation.47 the expression civil
code connotes a code or law regulating civil matters including marriage, divorce,
inheritance and such other matters governed by personal law. Such a code shall
be uniformly applicable to all citizens irrespective of religion, race, caste and sex.
Art. 44 does not hint at the features of future civil code. It also does not say
whether uniformity of civil law is to be attained at a stretch or by piecemeal
reforms. From the views of Constitution makers at the making of the Constitution,
it can be gathered that uniform civil code is aimed to solve the problem of gender
discrimination based on religion. In brief, its emphasis is on uniformity with
justice.48
As Derret points out, demand for unity, certainty, equality of sexes and
elimination of restrictive and antique rules seemed to be the principal reasons for
codification.49 Further, Justice Tulzapurkar said that [i]n the context of fighting
the poisonous communalism, the relevance of a uniform civil code cannot be
disputed; in fact it will provide a juristic solution to the communal problem by
striking at its root cause. Nay, it will foster secular forces so essential in achieving
social justice and common nationality. Since our Constitution envisages one
society with singular citizenship, it is highly desirable that one single set of civil
laws should govern all its citizens. It is true that the mandate of framing of UCC
is a directive principle and this mandate is not justiciable in the court of law but
24 Human Rights and Gender Justice

it does not mean that this constitutional mandate is meaningless. From time to
time, attempts have been made to achieve the goal of enacting UCC. Major area
of Hindu law was changed soon after the commencement of the Constitution.
First President of India, Dr. Rajendra Prasad, opposed the enactment of Hindu
code. Consequently, the Hindu law was changed in piecemeal legislation.50 New
concepts like inter-caste marriage, matrimonial remedies, divorce, monogamy,
inter-caste adoption etc. were introduced in Hindu law. It was indeed a step
forward, but still a step short to achieving a common unified civil code.51 First
Law Minister of India, Dr. Ambedkar, was in favour of enacting a comprehensive
Hindu code but due to a stiff opposition by Rajendra Prasad he could not
succeed and resigned from cabinet.
Defending the introduction of Hindu Code Bill, Pandit Jawahar Lal Nehru
said that I do not think that at the present the time is ripe for me to try to push
it (UCC) through.52 Since, the uniform civil code was politically sensitive issue,
the founding fathers of the Constitution arrived at a honourable compromise by
placing it under Art. 44 as a directive principle of state policy.53 In spite of the
fact that Art. 44 contains a mandatory provision making it incumbent upon the
state (which, for the purposes of Part IV of the Constitution, includes Government
and Parliament of India and the Government and the legislature of each of the
States and all local and other authorities within the territory of India or under the
control of the Government of India) to give effect to the directive contained
therein, it is a stark fact that the State has failed to implement it. The State has all
along adopted and maintained extra cautious approach to the mandate.54 Former
Chief Justice Gajendragadkar said that in the event, the non-implementation of
the provisions contained in Art. 44 amounts to a grave failure of Indian democracy
and the sooner we take suitable action in that behalf, the better and that in the
process of evolving a new secular social order, a common civil code is a must.55
Justice Hegde also observed that religion oriented personal laws were a concept
of medieval times alien to modern societies which are secular as well as
cosmopolitan and that so long our laws are religion oriented, we can hardly
build up a homogenous nation.56
Since the legislature has proved time and again its unreliable character and
callous or partisan approach in the matter of enacting uniform civil code, hope is
to be pegged on the judicial venture in this direction.57 Further, it may be said
that it is not too difficult to draft a uniform civil code incorporating, as far as
possible, the laws of various religious and tribal communities which are not
contradictory to one another and which are not in violation of the Constitution
of India.58
GROUNDS OF OBJECTIONS TO UCC
The largest minority community of India i.e. Muslim community, generally,
opposes the enactment of UCC. They object not only enactment of uniform
family code but the orthodox Muslims as well as some intellectuals have strongly
opposed any slightest reform in their personal law. There are mainly three
objections raised by them as-
Gender Justice and Uniform Civil Code : An Overview 25

Muslim law is sacrosanct and immutable and no legislature can amend

it.
UCC is against fundamental right guaranteed under Art. 25.
UCC is against fundamental right contained in Art. 29.
The first objection raised by the community is meaningless and irrational
because there is nothing divine about the personal laws. In many Muslim countries,
the personal law has been changed according to the requirement of the time and
society. For example- in Turkey and Tunisia, polygamy is prohibited59 in toto
while it has been curbed in Egypt, Japan, Jordan, Syria and Pakistan by making
it permissible subject to certain conditions. Like this, uncontrolled right of triple
talaq by husband has been curbed in these countries. As far as concerned to India,
the Muslim law took changes through the Shariat Act, 193760; the Dissolution of
Muslim Marriages Act, 193961; Muslim Women (Protection of Rights) on Divorce
Act, 198662. Indeed, the Dissolution of Muslim Marriages Act, 193963 brought
about considerable changes regarding right to divorce by wife which were not
available to them earlier. These instances show that the objections raised about
immutableness of the Muslim personal law is baseless and irrational. When the
Hindu law was codified, such type of objection was also made viz. [t]he Hindu
law is based on a divinely revealed law and ought not to be disturbed64 but the
Indian Parliament did not give any hide to such objection and Hindu law was
codified. In same tune, the Muslim law also may be codified without taking care
of such types of objections.
The next objection is also not proper because in any way the UCC does
not violate the fundamental right contained in Art. 25 as this fundamental right is
not absolute rather this right is available subject to public order, morality, health
and other provisions of Part-III of the Constitution. After taking into
consideration the position of Muslim women, it is very much clear that they are
victim of many sufferings and hardships only due to being a member of Muslim
community. So the State has capacity to enact the UCC and the objections raised
in this regard must be avoided. As Bombay High Court65 observed that what the
State protects is religious faith and belief. If religious practices, run counter to
public order, morality or health or a policy of social welfare upon which the
State has embarked, then the religious practices must give away before the good
of the people of the State as a whole.
Honble Supreme Court held that66-
Article 44 is based on the concept that there is no necessary connection
between religion and personal law in a civilised society. Article 25
guarantees religious freedom whereas Article 44 seeks to divest religion
from social relations and personal law. Marriage, succession and like
matters of a secular character cannot be brought within the guarantee
enshrined under Articles 25, 26 and 27.
Further, the court observed that-
Freedom of religion is the core of our culture. Even the slightest deviation
shakes the social fibre. But religious practices, violative of human rights
and dignity and sacerdotal suffocation of essentially civil and material
26 Human Rights and Gender Justice

freedoms, are not autonomy but oppression. Therefore, a unified code

is imperative both for protection of the oppressed and promotion of
national unity and solidarity.
Chief Justice Khare in John Vallamattom and another v. Union of India67
reminded that there is no necessary connection between religious and personal
law in a civilized society. Article 25 of the Constitution confers freedom of
conscience and free profession, practice and propagation of religion. The aforesaid
two provisions viz. Articles 25 and 44 show that the former guarantees religious
freedom whereas the latter divests religion from social relations and personal
law. It is no matter of doubt that marriage, succession and the like matters of a
secular character cannot be brought within the guarantee enshrined under Articles
25 and 26 of the Constitution. Justice Tulzapurkar suggested that [t]o put the
matter beyond doubt there is need either to define the expression religion or to
judicially interpretation it confining to individuals faith, belief and his personal
relations with the Almighty or the creator or whatever be the super power or
entity, for the purposes of Art. 25.68
Third objection that UCC is against Art. 29 ensured in Constitution is
not considerable. Art. 29 says that as-
Protection of interests of minorities: (1) Any section of the citizens
residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have the right to conserve
the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.
They argue that Muslim personal law is essential ingredient of their culture
and they have right to preserve their identity. Any change in Muslim personal
law will adversely affect to their identity of culture. Here this is very vital that
what is culture?, there is no definition or interpretation availed by the Judiciary.
But, one fact is very much true that if having four wives at a time, uncontrolled
and irrational power of triple talaq, maintenance only for iddat period, is culture,
then immediate attention is needed in this area to do justice with Muslim women.
Justice Tulzapurkar suggested to add Art. 29 (1) as a proviso as- nothing contained
in sub-article (1) shall affect the operation of any existing law or prevent the
State from making any law providing for social welfare or reform.69
Objections by Muslim representatives were raised in Constituent
Assembly and those were rejected by the Assembly. Thus, it is clear from
abovementioned that objections to UCC is baseless, invalid, irrational and a
stumbling block to get the objective of gender justice rather enactment of UCC is
need of hour to balance our counterpart of society. Further, the enactment of
UCC is very relevant and significant to achieve the following goals-
To achieve gender justice: In each community, women have been placed
at an inferior status and they are victims of male superiority. Though, our
Constitution guarantees right to equality and so many rights, the women are not
able to get these rights in essence. To convert the de jure position of women in de
Gender Justice and Uniform Civil Code : An Overview 27

facto, UCC is of utmost need. As Kerala High accepted the usefulness of UCC
as:
When such a uniform civil code comes into being, it is our ardent hope
that there shall be liberal borrowing from the concept of Islam about
easy, simpler, non-expensive, non-cumbersome and user friendly
procedure prescribed for unwilling spouses to walk out of such dead
marriage with honour, self-respect and dignity duly providing for the
economic security of the fragile partner of such fractured marriage.70
National integration and consolidation: National integration, unity
and secularism is highly valuable for a nation. Because of this the Constitution
framers included provisions to enact UCC which will ultimately contribute to
the secular idea and facilitate the unity of India which was otherwise hampered
by diversity of social practices based on creed and religion. As Chaudhari Hyder
Hussain71 has urged the necessity of having one single code to be applicable
to everybody irrespective of caste, creed or religious persuasions. Further, he
said it appears to be absolutely essential in the interest of unification of the
country for the building up one single nation with one single set of laws in the
country. Kerala High Court said that:
All Indians ideally will have to come under the umbrella of a uniform
civil code which will contribute to the creation of national identity and
character. Persons who have imbibed the core constitutional value of
secularism and the constitutional dream of the polity having a uniform
Indian civil law are members of the classified group to whom this law is
expected to cater.72
Justice and equality: If personal laws were tested on the ground of
principle of equality and due process, they would be found unjust, unfair,
unconstitutional and arbitrary. Different personal laws have different measures
of justice in which women are sufferer. De facto, justice, fraternity, equality and
secularism are inseparable from each other. UCC will provide rational, fair, just
and humane measures regarding personal matters of parties. Thus, for doing
substantial justice according to the clear rule of law in all such cases are posted
before the Supreme Court, it is indeed imperative to have a common civil code.73
Clarity, simplicity and intelligibility of personal laws: Clarity,
simplicity and accessibility are the stock arguments in favour of UCC. Through
UCC, personal laws will take a new form which will be simple, clear and uniform
for all citizens of India.
As Justice Tulzapurkar said that [o]nce there is codification of each set of
personal laws by incorporating therein the needed improvements and reforms, it
will go a long way towards achieving the objective of a uniform civil code.74 T.K.
Tope observed that India has accepted the ideal of a secular State. Hence, it is
necessary to replace the various systems of personal laws by a uniform civil
code. As a first step towards this goal, Parliament codified laws relating to
Hindus However, no further steps were taken for enacting a civil code for all
Indians. Even a secular bill for adoption of children was withdrawn from the
Parliament by the Government in 1978. The reluctance on the part of the
28 Human Rights and Gender Justice

Government to pass a civil code is based on the apprehensions that the party
might lose the support of the Muslims at the time of next general elections.75
It is unfortunate that the Government of India, which played such an
important role in reforming the Hindu law, has allowed itself to be guided by
Muslim orthodox in the matter of reforming the personal laws of the Muslims.
Excessive fear of hurting the susceptibilities of the Muslims might have
contributed to the apathy of the majority community; the failure in not
initiating the reforms is bound to retard the progress of this community. The
fear that such reforms would offend the feelings of the minority community is an
unjustified fear76 and in fact amounts to surrendering before non-secular forces.77
In simple terms, Indias system is taking power away from the State and placing
it in the hands of religion, whereas a unified civil code could possibly do the
opposite78 and the case for the introduction of a Uniform Civil Code has continually
become less prominent and less urgent.79 Honble Supreme Court of India also
observed that it is also a matter of regret that Article 44 of our Constitution has
remained a dead letter80.
V.N. Shukla says that perhaps a uniform civil code may have to wait
indefinitely until a general consensus among all communities in the country
emerges in this regard.81
The introduction of UCC would certainly be in conformity with the tenets
of secularism. Turning a Nelsons eye by the rulers at the centre towards the
constitutional goal under Art. 44 would tantamount to a fraud on the Constitution.
It is high time that life is infused into it. The Supreme Court of India has been,
time and again, drawing the diligence of the Government towards UCC whenever
it is faced to ticklish issue.82
On 26 January 1950, India declared to be republic with the purpose of
having fraternity among all citizens under the Constitution. Since Art. 44 is a
constitutional mandate but nothing progress could be made in this direction on
the part of legislature. The Judiciary has played a commendable role through
various decisions. The Supreme Court of India in Seema v. Ashwani Kumar83
ruled that registration of marriages should be compulsory irrespective of creed,
religion, caste etc. In this case, Honble Court directed as-
(i) The procedure for registration should be notified by respective States
within three months from today. This can be done by amending the
existing Rules, if any, or by framing new Rules. However, objections
from members of the public shall be invited before bringing the said
Rules into force. In this connection, due publicity shall be given by the
States and the matter shall be kept open for objections for a period of
one month from the date of advertisement inviting objections. On the
expiry of the said period, the States shall issue appropriate notification
bringing the Rules into force.
(ii) The officer appointed under the said Rules of the States shall be duly
authorized to register the marriages. The age, marital status (unmarried,
divorcee) shall be clearly stated. The consequence of non-registration
of marriages or for filing false declaration shall also be provided for in
Gender Justice and Uniform Civil Code : An Overview 29

the said Rules. Needless to add that the object of the said Rules shall be
to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute,
the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure
that the directions given herein are carried out immediately.
This judgment is a step further in the direction of UCC. In 2005, the
Indian Parliament passed the Protection of Women from Domestic Violence Act,
200584 to provide for some effective protection of the rights of women guaranteed
under the Constitution who are victims of violence of any kind occurring within
the family and for matters connected therewith or incidental thereto. Further, the
Maintenance and welfare of Parents and senior Citizens Act, 200785 took the
form of law to compel sons and daughters to pay maintenance allowance to their
parents. These both Acts are enforceable to all irrespective of their religion,
caste, creed or community. In nutshell, reasons for non-implementation of Art.
44 are as-opposition by minorities, negative attitudes of political parties, absence
of public opinion, lack of courage on the part of government etc. Doubtless, the
UCC has great importance to achieve the object of gender justice but there are
some suggestions like Forum against Oppression of Women proposed specific
gender just legislations in general areas such as marriage, inheritance, social
security etc. 86 in lieu of UCC. The Delhi based Working Group on Womens
Rights suggested that an entirely new set of national, secular civil laws be drawn
up. It has, at the same time, argued for a reverse optionally which would allow
women to switch from secular law to personal law if they felt it more advantageous
to do so.87
CONCLUDING OBSERVATIONS
India, being the signatory of various international instruments, is under
obligation to provide gender justice to all its citizens. UCC, which is an efficient
tool to achieve the goal enshrined in the Constitution of India, has become only
debatable issue and our Indian legislature, due to lack of commitment, did nothing
to enact the UCC rather this organ of State, to get benefits in general elections,
has attempted to restrict the journey of UCC which has been accelerated by
Judiciary from time to time. In this respect, the attempt in Shah Bano case is a
good illustration. There is no legal, moral and constitutional justification to put
the enactment of UCC in cold storage. Kerala High Court also said that most
unfortunately, despite the mandate of Article 44 of the Constitution, Legislatures
- Central and State, have not addressed themselves to the question.88 As Derret
has observed that [t]he results of the present situation are so distressing that
there can be no advantage in delay and the work of codification should go forward
without further hesitation.89 Further, he opined that [a] well-drafted code will
endeavour to avoid such eventualities where possible, but the way out of these
difficulties is clear and unobjectionable.90 De facto, it is failure on the part of
legislature which can be never said in interest of national integrity and unity.
a uniform civil code is a vital for the protection of the oppressed, promotion of
30 Human Rights and Gender Justice

national unity and solidarity, for safeguarding the human rights of women in
India irrespective of the religious community they belong and, moreover, to
bring the national laws in conformity with the legally binding provisions of
international law in the form of various international human rights instruments
already ratified by India.91 In fact, Art. 44 is an important and far-sighted
directive92. The Supreme Courts call for a uniform civil code strengthens the
rule of law. It is trite to say that dispensation of justice to all through the
enactment of a uniform civil code would indeed be far more satisfactory way of
doing justice than doing justice from case to case.93 Due to apathy and indifference
of the Government the so-called minority, though they are second largest majority
of the nation, assert a series of anti-national demands and communalized the
issue of the UCC. In this regard, some sensible suggestions are as-
For healthy growth of consensus on the realization of UCC, inter-
caste, inter-religion marriages, adoptions should be allowed and
encouraged.
Political parties should come forward beyond considerations of general
elections. First of all, they should think about national integrity and
unity.
Conducive environment should be created and developed in which
every member of society be mentally prepare to accept the UCC.
In the name of introducing UCC, no attempts should be allowed to
hurt the religious feelings of any community.
Throughout the country, a proposed model of UCC should be circulated
in which there must be just, fair, reasonable and humane provisions.
The Law Commission of India should take a comparative and
comprehensive study of different personal laws of all the communities.
Further, scientific classification should be made of the similarities and
dissimilarities in all personal laws. Which subjects are not controversial
or less-controversial, at the first stage, UCC must deal on those issues.

REFERENCES
1. S.P. Sathe, From Shah Bano to Daniel Daniel Latifi, January 2002 The
Lawyers Collective at 9
2. Art. 5 (a)
3. Art. 16 (1)
4. www.hvk.org/articles/0703/227.html
5. Quoted in: Jyoti Rattan, Uniform Civil Code in India: A Binding Obligation
under International and Domestic Law, vol. 46:4, 2004 JILI 577-587 at 581.
6. Gurkirat Kaur, Women and the Law. (New Delhi: Shree Publishers and
Distributors 2005) at 16
7. Para 40, Committee on the Elimination of Discrimination against Women
Twenty-second session 17 January 4 February 2000 Excerpted from:
Supplement No. 38 (A/55/38) available at http://www.un.org/womenwatch/
daw/cedaw/cedaw25years/content/english/CONCLUDING_COMMENTS/
India/India-CO-1.pdf
8. Para 60, Committee on the Elimination of Discrimination against Women
Gender Justice and Uniform Civil Code : An Overview 31

Twenty-second session 17 January 4 February 2000 Excerpted from:

Supplement No. 38 (A/55/38) available at http://www.un.org/womenwatch/
daw/cedaw/cedaw25years/content/english/CONCLUDING_COMMENTS/
India/India-CO-1.pdf
9. Ibid.
10. Para 61, Committee on the Elimination of Discrimination against Women
Twenty-second session 17 January 4 February 2000 Excerpted from:
Supplement No. 38 (A/55/38) available at http://www.un.org/womenwatch/
daw/cedaw/cedaw25years/content/english/CONCLUDING_COMMENTS/
India/India-CO-1.pdf
11. Para 46, Committee on the Elimination of Discrimination against Women
Twenty-second session 17 January 4 February 2000 available at http://
www.un.org/womenwatch/daw/cedaw/cedaw25years/content/english
CONCLUDING_COMMENTS/India/India-CO-1.pdf
12. J. Duncan M. Derret, Hindu Law: Past and Present. (Kolkata: A. Mukherjee
and Co. 1957) at 40
13. P. Ishwara Bhat, Directive Principles of State Policy and Social Change
with Reference to Uniform Civil Code, vol. 25, 1989 Banaras Law Journal
75-96 at 76
14. Sec. 5, Hindu Marriage Act, 1955
15. Sec. 23, 24 of Hindu Succession Act, 1956 repealed by the Act No. 39/2005
16. Sec. 14 of Hindu Succession Act, 1956
17. Sec. 13 (1) of Hindu Marriage Act, 1955
18. Sec. 13 (2) of Hindu Marriage Act, 1955
19. Supra note 13 at 84
20. The Personal Laws (Amendment) Act, 2010 received assent of the President
of India on August 31, 2010 and it is published in the Gazette of India as Act
30 of 2010 on September 1, 2010. The statement of objects and reasons of
the Act mention the objects as-
(a) to amend clause (b) of section 19 of the Guardians and Wards Act, 1890 on the
basis of the recommendation of the Law Commission of India contained in
paragraph 6.83 of its Eighty-third Report on the Guardians and Wards Act,
1890 so as to include the mother along with the father as a fit person to be
appointed as guardian so that courts shall not appoint any other person as a
guardian of minor if either of the parents is fit to be the guardian of such minor;
(b) to amend section 8 of the Hindu Adoptions and Maintenance Act, 1956 so as
to remove the incapacity of a married woman to take in adoption of a son or
daughter merely on the basis of her marital status;
(c) to amend section 9 of the Hindu Adoptions and Maintenance Act, 1956 so as to
provide that the mother with the consent of the father and the father with the
consent of the mother, shall have equal right to give in adoption of their children.
21. Sec. 6 of Hindu Minority and Guardianship Act, 1956
22. Supra note 13 at 76
23. Ibid. at 77
24. The divorced Muslim wife has to marry another person and get the marriage
consummated. Thereafter, the wife will take divorce from second husband
and then she can be able to marry the first divorced husband.
25. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
26. Act No. 25 of 1986
27. AIR 1985 SC 945
32 Human Rights and Gender Justice

28. Quoted in: Supra note 13 at 86

29. Supra note 13 at 87
30. Bhagwati Prasad Singhal, Uniform Civil Code- Framing is Imperative,
1998, AIR (Journal) 164-167 at 168
31. Danial Latif v. Union of India (2001) 7 SCC 740
32. Jawahar Lal Nehru, Glimpses of World History at 736 quoted in: Supra note
13 at 77
33. Supra note 13 at 77
34. Ibid. at 85
35. Tulzapurkar, Uniform Civil Code, 1987 AIR (Journal) 17-24 at 18
36. India 2009. (New Delhi: MIB, Govt. of India 2009) at 677
37. Act No.43 of 1954
38. Supra note 35 at 19
39. Caste Disabilities Removal Act, 1850; Evidence Act, 1872 (Specifically
sections 107, 108, 112); Married Womens Property Act, 1874; Majority Act,
1875; Kazis Act, 1880; Transfer of Property Act, 1882; Guardians and Wards
Act, 1890; Indian Succession Act, 1925; Child Marriage Restraint Act, 1929;
Shariat Act, 1937; Parsi Marriage and Divorce Act, 1936; Sati Regulation
Act, 1829; Dissolution of Muslim Marriage Act, 1939.
40. Act No. 15 of 1872
41. Act No. 4 of 1869
42. In Goa, Daman and Dieu, there was Portugese Civil Code, 1867 and French
Civil Code, 1804 was in force in Pondichery.
43. The Dowry Prohibition Act, 1961; Civil Procedure Code, 1908 as amended
in 1976, 1999, 2002.
44. Tahir Mahmood, The Muslim Law in India quoted in: Bhagwati Prasad Singhal,
Uniform Civil Code- Framing is Imperative, 1998, AIR (Journal) 164-167
at 165
45. Sarla Mudgal v. Union of India, AIR 1995 SC 1531 Para 35
46. Tuesday, the 23rd November 1948. Available at http://164.100.47.132/
LssNew/constituent/vol7p11.html
47. Quoted in: Anam Abrol, Desirability of Uniform Civil Code in India with
Special Reference to Muslims, 1991, Madras Law Journal (Journal) 19-27 at 22
48. Supra note 13 at 83
49. Quoted in: Ibid.
50. Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956;
Hindu Minority and Guardianship Act, 1956.
51. Virendra Kumar, Towards A Uniform Civil Code: Judicial Vicissitudes [From
Sarla Mudgal (1995) to Lily Thomas (2001)], Vol. 42:2-4, JILI 314-334 at 315
52. Quoted in: Sarla Mudgal v. Union of India, AIR 1995 SC 1531
53. Jyoti Rattan, Uniform Civil Code in India: A Binding Obligation under
International and Domestic Law, vol. 46:4, 2004 JILI 577-587 at 581.
54. Supra note 35 at 22
55. Gajendragadkar, Secularism and the Constitution of India quoted in: D.C.
Manooja, Uniform Civil Code: A Suggestion, vol. 42: 2-4, 2004, JILI 448-
457 at 455
56. K.S. Hegde, Islamic Law in Modern India quoted in: D.C. Manooja, Uniform
Civil Code: A Suggestion, vol. 42: 2-4, 2004, JILI 448-457 at 455
57. Supra note 13 at 87
58. Anam Abrol, Desirability of Uniform Civil Code in India with Special
Gender Justice and Uniform Civil Code : An Overview 33

Reference to Muslims, 1991, Madras Law Journal (Journal) 19-27 at 19

59. Sec. 74 of Turkey Civil Code, 1926; Sec. 18 of Tunisian Law of Personal
Status
60. Act No. 26 of 1937
61. Act No. 8 of 1939
62. Act No. 25 of 1986
63. Act No. 8 of 1939
64. Supra note 12 at 38
65. State of Bombay v. Narasu Appa AIR 1952 Bombay 84
66. Sarla Mudgal v. Union of India, AIR 1995 SC 1531
67. (2003) 5 SCALE 384 at 397 Para 44
68. Supra note 35 at 20
69. Ibid. at 21
70. Abdurahiman v. Khairunnessa, Mat. Appeal No. 82 of 2004 decided on 1
March, 2010.
71. Quoted in: Bhagwati Prasad Singhal, Uniform Civil Code- Framing is
Imperative, 1998, AIR (Journal) 164-167 at 165
72. Saumya Ann Thomas v. The Union of India, WP(C).No. 20076 of 2009(R)
decided on on 25 February, 2010
73. Supra note 51 at 334
74. Supra note 35 at 23
75. T.K. Tope, Constitutional Law of India. 1992 at 347
76. Quoted in: Bhagwati Prasad Singhal, Uniform Civil Code- Framing is
Imperative, 1998, AIR (Journal) 164-167 at 167
77. Justice D.R. Khanna quoted in: Bhagwati Prasad Singhal, Uniform Civil
Code- Framing is Imperative, 1998, AIR (Journal) 164-167 at 166
78. Tina M. Thomas, A Uniform Civil Code in India: The Flaws of Personal
Law System and Goa as a Model for a Common Law, vol. 5 no. 1, 2009
International Affairs Journal 7-13 at 13
79. Werner Menski, The Uniform Civil Code Debate in Indian Law: New
Developments and Changing Agenda, Vol. 09 No. 03, 2008 German Law
Journal 211-250 at 248
80. Mohammed Ahmed Khan v. Shah Bano Begum 1985(2) SCC 556
81. V.N. Shukla, Constitution of India. 10th ed. (Lucknow: EBC 2001) at 309
82. D. Sura Reddy, Article 44: A dead Letter?, Vol. 38:3, 1996 JILI 405-409 at 408
83. http://indiankanoon.org/doc/1037437/
84. Act No. 43 of 2005
85. Act No. 56 of 2007
86. Quoted in: Is Gender Justice Only A Legal Issue? Political Stakes in UCC
Debate, March 1-8, 1997, Economic and Political Weekly 453-458 at 453
87. Ibid.
88. Agnes Alias Kunjumol v. Regeena Thomas, RSA. No. 703 of 2009, Kerala
High Court, decided on 18 May, 2010
89. Supra note 12 at 41
90. Ibid. at 51
91. Supra note 53 at 587
92. Smt. Jacintha Kamath v. K. Padmanabha Kamath, AIR 1992 Kant 372, I
(1992) DMC 574, ILR 1992 Kar 1233
93. Supra note 51 at 329