Uniform Civil Code is not an alien concept to India. Article 44 of the constitution itself mentions it. India is a religious, cultural, and lingual diversity with a huge population having faith in different religions. The country has adopted personal laws in family laws for different religions according to their faith. The result of this is the establishment of Family courts, which when dealing with a person of the Hindu religion has to refer to a different law than dealing with a person of the Muslim religion. There is a vast difference between the provisions of marriage, adoption, inheritance, and divorce in both laws. Goa is the only Indian state to have a Uniform Civil Code at present, while other states like Gujarat and Uttarakhand have stepped towards it. Presently, the demand for a Uniform Civil Code is rising, amid which Kerala High Court has remarked that the Centre should seriously consider the enactment of the Uniform Marriage Code as Family Courts have become Another Battleground. Whereas, on 9th of December a private member bill was introduced in Lok Sabha for implementation of UCC. Dr. B.R. Ambedkar, who maintained neutrality on the subject, opined that even if the uniform laws were to be implemented, they would be applicable to only those who submit to its jurisdiction. While others were divided on the issue, A.K. Iyer and K.M. Munshi urged the Constituent Assembly to include articles dealing with the Uniform Civil Code. This article will analyze the possibilities of implementing a Uniform Civil Code in India.
STEP TOWARDS UCC
While Goa is the only state to have Uniform Civil Code implemented, it was not a product of any Indian legislation, but rather the provision of the Portuguese Civil Code, 1867. The model of UCC in the state of Goa is an example of what a uniform code should not look like, the legislation although known as uniform but has different provisions for different religions.
Recently, Uttarakhand and, following it, the Gujarat State Assembly has set up a committee to ponder upon the question of implementation of UCC in the state. “Personal laws” being a subject under the Concurrent List, can be deliberated upon by the states. Allahabad High Court in 2021 also called upon the Central government to initiate the process for implementation of a Uniform Civil Code, stressing the issue of marriage of an interfaith couple who contracted marriage upon conversion and were seeking protection of their rights under Article 21 of the Indian Constitution. Advocate Ashwini Upadhyay filed a PIL with the writ of Mandamus to be issued to the Central Government for legislation of the Uniform Code on marriage, divorce, and other personal laws. In response, the Law Ministry told the Apex court that it or any other entity does not have the power to direct the Parliament to frame or enact any law and only the elected members of the Parliament have the sovereign power to enact particular legislation. On the other hand, the government has told the court that it has already referred the matter to the 22nd Law Commission whose response on the matter is awaited. The judiciary has through its various judgments also conferred to it in landmark judgments such as those of Mohd. Ahmed Khan v. Shah Bano Begum, Sarla Mudgal & others v. Union of India, Shabnam Hashmi v. Union of India, Danial Latifi v. Union of India, and the list goes on. This shows the need for uniform laws in the country.
DRAFT OF UCC
In the year 2017, a group of citizens comprising lawyer Mr. Dushyant, author Mr. Mukul Kesavan, Major General S. Vombetkere, and others, submitted a draft of a model uniform code in the areas of marriage, partnership, right to adopt, divorce, custody of the child, succession, and inheritance, dissolution of Hindu Undivided Family and the duties of the government which was forwarded by former attorney general Soli J Sorabjee to Justice B.S. Chauhan, the then chairman of the 21st Law Commission of India. This draft covered some very important aspects of the legislation which has been a long-sought demand. One such is the gender-neutral terminologies and recognition of same-sex marriage.
The definition of marriage laid down by this draft is inclusive of all sections of society and tends to remove discrimination against the queer community. It defines marriage under Section 2(a) as “the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender, or a transgender with a man or a woman”. It also pushed the legal age to marry to 20 years and also prohibited marriage with close relatives. Not limited to this, it also recognized live-in relationships as a “partnership” under Section 2(b) as “living together of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman”.
It also sought to relax the rules of adoption for all couples, whether married or in a partnership without any discrimination based on their sexual orientation. It dealt with the matter of adoption under Section 5(1) which reads –“All married couples and couples in partnership are entitled to adopt a child. The sexual orientation of the married couple or the partners not to be a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt a child”.
With the proposal to enact uniform laws in all the dimensions of family matters the draft also seek to repeal personal laws such as the Hindu Marriage Act, Hindu Succession Act, Muslim Personal Law, and other similar legislations.
IS INDIAN SOCIETY READY TO ADOPT UCC?
The biggest challenge in the implementation of the Uniform Civil Code is the numerous religious and cultural differences existing in the country. India is well known for its hospitality to various religious beliefs and for accommodating every religion with equal respect and opportunity. It is such a vital part of the nation as to be mentioned in the Constitution itself under the Fundamental Rights in the form of Articles 25 and 26 which guarantee the Right to Freedom of Religion.
Experts are divided on the issue, but the question is that even in this modern era where the recognition of human rights is given international importance, when will India stop sticking to these old laws which are stringent enough to discriminate against the queer community in all family matters and compromise with the equal rights to women in many aspects. It still shows the dominance of patriarchal rule.
It’s been 75 years of Independent India, but the real freedom of the nation is still somewhere tied in chains. We still are bound by different laws for different religions even after being a secular country whereas Muslim countries such as Tunisia, Saudi Arabia, and Turkey have abolished and even criminalized polygamy in these countries. As Indian society progresses, we have to develop our legislation too to make it conform to the principles of justice, equity and good conscience. A law is only considered just when it provides equality to everyone, whereas currently India not only has discriminatory laws but also lacks any legislation on family law for the queer community.
The day is not far from when the UCC will be implemented in the entire country. The active role of legislature and state governments towards the issue is a reflection of it. The government has assured to investigate the matter after the report of the 22nd Law Commission. The judiciary also is seen to have a positive approach towards it. The primary need for these Uniform laws is uniformity in the nation and ensuring equality is its basic work, here, Goa should not be taken as a role model which although claims to have a uniform law, still discriminates through legislation itself. Reformation is the need of society and India should reform its laws according to the current scenario. Thus, the uniform civil code is no more a utopian concept and its implementation is not far-fetched anymore.
Author(s) Name: Shagun Shrivastava (Hidayatullah National Law University, Raipur)
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