Uniform civil code
ACKNOWLEDGEMENTS
It is a great pleasure for me to put on records our appreciation and gratitude towards Nidhi raman for her immense support and encouragement all through the preparation of this report. I would like to thank the college(Siddhartha college(Siddhartha law college) for providing us with a well-equipped library. Last but not the least, I would like to thank all the friends and others who directly or indirectly helped us in completing our project report.
CONTENT 1. INTRODUCTION 2. NEED FOR UNIFORM CIVIL CODE 3. UNIFORM CIVIL CODE AND SECULARISM A DEBATE Simplicity in law 5. POSITION OF LEGISLATURE 6. SUCCESSION AND INHERITANCE
MAINTAINENCE
UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICAIRY UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY WHT DO WE NEED UNIFORM CIVIL CODE . IMPLEMNTATION AT STATE LEVEL . CONCLUSION . BIBLIOGRAPHY
INTRODUCTION
“The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Janis have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "Uniform civil Code" for the whole of India”. 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. India is a land of diverse religions Hindus, Buddhists, Janis, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in diversity is the core feature of the Indian nation. Each community has its own laws governing marriage and divorce, infants and minors, adoption, wills, and succession. These personal laws go with an individual across the states of India where they are part of the law of the land, and the individual is entitled to have that individual's own personal law applied and not the law which would be applied in the local territory. Personal laws are statutory and customary laws applicable to particular religious or cultural groups within a national jurisdiction. They govern family relations in such matters as marriage and divorce, maintenance and succession. India is a secular country where every community is allowed its own personal laws. Christians have the Indian Christian Marriage Act, 1872 and the Indian Divorce Act 1869, Hindus have the Hindu Succession Act, 1925[hereinafter HSA, 1956] and the Hindu Marriage Act, 1955[hereinafter HMA, 1955] and so on. Muslim personal law, based on the Sharia, is not codified. Since Muslims are governed by the Sharia, an Indian male Muslim is entitled to have four wives at any time. It is interesting to note that after independence, Pakistan modernized its personal law and made it quite q uite difficult for a man to marry a second time. Tunisia and Turkey Turke y have
actually abolished
polygamy.
Hindu sons
In India,
only Muslim
inherit greater
men may
practice
polygamy, and
shares of
their parents'
estatesthan their sisters do. While one's religion determines which law will apply to him or her re garding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession. Uniform
civil
code
[hereinafter
UCC]
of
India
is
a
term
referring
tothe concept of an ov erarching Civil Law Code in India. A uniform civil codeadministers the sa me set of secular civil laws to govern all people, even those belonging b elonging to different religions and regions. This supersedes the right of citizens to be governed under different personal laws based on their religion or ethnicity. Such codes are in place in most modern nations. There is no doubt that the idea of UCC is by and large, a child of independent India. The British Indian Government merely enacted a few laws which governed family relationships irrespective of the religions of the partners for e.g. Special Marriage Act, 1872; Married Women‟s Property Act, 1874; Indian Succession Act, 1925 and the Child Marriage Restraint Act, 1929.The British did not show any pursuit to encourage the environment of uniformity of Laws in India. To quote Choudhary Hyder Husain, Husain, a prominent Muslim lawyer, “Living under the British rule for about two centuries we‟ve come to consider it only natural for Hindus to be governed by Hindu Law and Muslim to be governed by Muslim Law; but it is wholly a medieval idea and has no place in the
modern
world...I
would
therefore
strongly
urge
the
necessity
of
having one single code to be named as Indian Civil Code applicable to everybody living within t he territory of Indian Union irrespective of caste, creed or religion persuasions. This is the juristic solution to the communal problem .It appears to be absolutely essential in the Interest of the unification of the country for building up one single nation with one single set of laws in the country.”Article 44 of the Indian Constitution requires the State to secure for its citizens a Uniform Civil Code throughout the territory of India. The term „civil code‟ issued to cover the entire body of laws governing rights relating to property and personal matters such as marriage, divorce, maintenance, adoption and inheritance. The object of this code is to enhance national integration by eliminating contradictions based on ideologies. It aims to bring all communities on a common platform on matters which are currently governed by diverse personal laws. However, even after 60 years of independence, our law makers are yet to give effect to this provision. This article focuses on: on: • the status of the implementation of a Uniform Civil Code and, • The steps taken and directed to be taken by the Legislature and Judiciary in this regard.
2. NEED FOR UNIFORM CIVIL CODE
Ours is a country with several different religions and belief systems. The accepted principle of law is that personal belief systems and laws must be in conformity with the Constitution and not the other way round. Article 25 of the Constitution guarantees to every person the freedom of conscience and the right to profess practice and propagate religion. Article 26 of the Constitution guarantees to every religious denomination the right to manage its own affairs in the matters of religion. No set of laws can violate these Articles, which essentially protect the religious freedom of different person or communities. We are thus presented with a situation that seems somewhat contradictory; how can there be a uniform set of laws which protects religious freedom at the same time? The implementation of a uniform set of laws calls for discarding certain personal laws which go against society‟s general outlook as a whole, and this may amount to violation of the above mentioned Articles of the Constitution. With multiple belief systems, come multiple ideological conflicts. To live together in concurrence with such diversity, we need to have uniformity at some level so as to avoid such conflicts. What we need is a Uniform Civil Code in the form of a sophisticated, harmonized system of legal regulation that maintains and skillfully uses the input of personal laws and yet achieves a measure of legal uniformity. As long as the code does not go against the essence i.e. the core or fundamental belief of any particular religion, it will not go against the religious freedom guaranteed by the Constitution. The UCC has been permanently associated in the Indian mind with opposition by the Muslims. It was rightly pointed out in the Constituently assembly assembl y that all Hindus were in favor of UCC .They felt that the personal law of inheritance, succession, etc. is really a part of their religion. If that were so, Indian women can never be given equality with a man who is enshrined in art. 14 of the Constitution. Art. 15(1) provides that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Look at Hindu law, we
will find
discrimination against
women everywhere.If personal law of Hindus is a part of Hindu religion, equality can never nev er be at tained among men and women. Religion must be restricted to religiononly
and
the
secular
activities attached to the religion must be regulated, unified and modified for a strong and consolidated nation. The present Muslim law can never provide equality to Muslim women- if
personal law is considered as a part of their religion. To elevate the position of Indian women and provide them equality, India is badly needed of a UCC for all Indians.
3. Uniform Civil Code and Secularism a Debate
The Government, the press, the politicians, the academics and even the minority organizationsnone of them have taken any sort of active interest in the UCC. Thus we could easily infer from the attitude of people prevailing these days that this concept has been ignored and at worst they have spread false information and impression about it. But, if we see today‟s scenario then India is more communalize then it was in 1947, so we should realize that the concept of UCC had become very important and need immediate concern. People, who were the founding fathers of constitution as well as non-Muslims thought that a uniform civil code was necessary for our national unity and secularism. But along with them there are also few people who disagree about this concept like Prof. Paras Diwan says “The uniform civil code has nothing to do with Indianisation or national integration or interfering with the religion of one community or the other.
4. simplicity in law
Uniform civil code provides clarity which arises out of simplicity. Different religions had made the legal system a maze by creating rights for individuals in some ways and taking them in another way depending upon the religion they follow. Thus to create clarity forth rights available to all individual uniformly, there is a requirement of uniform civil code.
5. Position of the Legislature:
The question of implementation of a common Civil Code has been raised mainly with regard to matters where, the personal laws of a religious community have been challenged in the court of law as being volatile of the Constitution or against general public interest. Our law makers have generally shied away from legislating on such points of personal law as are considered to be of controversial or sensitive nature, for fear such legislation being labeled as an intrusion on the above rights thereby resulting in strong backlash. This became evident from the reaction to the judgment of the Supreme Court in the Shah Bano case which gave a divorced Muslim woman the right to claim maintenance even after the period of iddat. If the amount known as meher, paid to her on divorce was not sufficient for her livelihood, she could claim maintenance under S.125 of the Criminal Procedure Code (Cr.P.C). There was great agitation against this decision, led by Mullahs and Maulvis and other fundamentalist sections, as being against the tenets of Islam. Succumbing to the pressure of vote-bank politics and in order to appease the Muslim fundamentalists, the Rajiv Gandhi government enacted The Muslim Women (Protection of Rights in Divorce) Act to undo this decision. This Act exempted Muslims from the general law regulations of the Cr.P.C, including S.125. It tried to restrict the divorced Muslim woman‟s right to maintenance up to the iddat period only and provided that under section 3(1)(a) a divorced women is entitled to reasonable and fair provision and maintenance within the iddat period. Similarly in case of the Adoption of Children Bill 1972, the Muslim community opposed a uniform law regarding adoption applicable to all communities since Islam does not recognize adoption. Due to this opposition, the bill was subsequently dropped and reintroduced in 1980 with an express clause of non-applicability to Muslims. This was again opposed, this time by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The Adoption of Children Bill, 1995, was passed by both Houses of the Maharashtra legislative assembly, but is still awaiting presidential assent. What needs to be understood is that „the religion of an individual or denomination has nothing to do in the matter of socio-economic laws of the State.‟ The freedom of religion conferred by the Constitution is not absolute and by no means does it allow religion to contravene the secular rights of the citizens and the power of the State to regulate the socio-economic relations. Basically, a Common Civil Code will override only those personal laws which do not form the essence of any religion. The keyword here is „essence.‟ Personal laws which form the fundamental basis or the core of any belief system are ideally, excluded from the purview of the Common Civil
Code. Like the concept of secularism, justice , liberty, equality and fraternity all are essential and inseparable part of Indian Constitution and along with clarity and security are also considered as essential part of the constitution and as stated earlier prevalence of different personal laws ruins the clarity of laws and creates apprehensions in the mind of different religions so the very purpose of the Constitution Co nstitution is not fulfilled and there is a necessity for the formation of Uniform Civil Code. Providing justice without equality to the individual will not fulfill the very basic purpose of the Constitution. It will create such a situation in which a person have the power to go to courts for infringement of his rights but the basis of this infringement is equality itself which is not provided to individual. Along with the above reasons the Fundamental Rights which are considered to be the basic structure of the Constitution will also not be provided to the individual under the garb of different personal laws. There will be infringement of Articles like 14, 15, 16, 17 and 18. As all of them talks about equality like Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex or any of them. Article 16 talks about equality in matters of public employment. Thus the very purpose of these Articles will not be fulfilled if the different personal will keep on prevailing as they provide different treatment to individuals with in accordance with the religion the y follow.
6. SUCCESSION AND INHERITANCE
This area throws up even more intractable problems. In Hindu law, there is a distinction between a joint family property and self acquired property which is not so under the Muslim law. The Hindu Undivided Family (HUF), formed under the Hindu law, run businesses and own agricultural lands. Under the UCC, this institution of HUF, peculiar to the Hindus, has to be abolished. There are also fetters imposed on the extent to which one can bequeath property by will under the Muslim law. Considering all these, the UCC should be included. The law which is applicable on Parsi and Christian with regard to the succession i.e. The Indian Succession Act, 1925 should be considering while framing UCC for Succession laws in India. Thus due to all above reasons it is felt that the formation of Uniform Civil code is the prime necessity in today‟s time for our nation. Lastly, a very real fear has begun to make itself felt, which is that if we do not make efforts now to move towards the UCC, and as the majority loses patience, we shall lose the littlie ground that we have gained
According to the Hindu Adoptions and Maintenance….. Sec-18 Maintenance of wife(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband husban d during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,(A) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting h er; (b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her hu sband; (c) If he is suffering from a virulent form of leprosy; (d) If he has any other wife living; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) If he has ceased to be a Hindu by conversion to another a nother religion; (g) If there is any other cause justifying her living separately? (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
According to Hindu marriage actSec- 24 Maintenance Pendent late and expenses proceedings. Where in this Act it appears to the court that either the
any proceeding under
wife or the husband, as the case may be, has no
independent respondent, it may seem to the court to be reasonable.
(Where it appears to Court that the wife or the husband, as the case may be, has no independent income sufficient for her support and the necessary expenses of the proceedings, it may grant interim maintenance to the wife.) Sec-25 Permanent alimony and maintenance. (1)Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his
maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having
regard to the respondent's own income and other property, if any, the
income and
other property of the applicant, the conduct of the parties and other circumstances of the case it may seem to to the court to be just, just, and any such payment payment may be secured, secured, if necessary, by a charge on the immovable property of the respondent.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order
under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favor an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind rescind any such order in such manner as the court may deem just].
7. UNIFORM CIVIL CODE: A CALL FROM THE INDIAN JUDICIARY
Even after more than six decades from the framing of the constitution, the ideal of UCC under article 44 is yet to be achieved. However, efforts in this discretion continued as reflected in various pronouncements of the supreme court from time to time The Supreme Court seems to have a divided opinion on the introduction of a Uniform Civil Code. On one hand, it has rejected attempts to do so through public interest litigation but on the other, it has recommended early legislation for itsimplementation.In Mohammad Ahmed Khan v. Shah Bano, s Begum, popularly known as the Shah Bano‟s case, the Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” Despite section 127 of Cr.P.C. 1973 (which provides that if a woman has received an amount under personal law, she would not be entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women would be entitled to maintenance if amount received by her as “dower” under personal under personal law is not sufficient for her sustenance. Though the decision was highly criticized by Muslim Fundamentalists, yet it was considered a liberal interpretation of law as required by gender justice. Later, on under pressure from Muslim fundamentalists, the central government passed the Muslim women‟s (Protection of Rights on Divorce) Act, 1986, which denied right of maintenance to Muslim women under section 125 of Cr. P.C. The activists rightly denounced that it “was doubtless a retrograde step. That also showed hoe women‟s rights have a low priority even for the secular state of India. Autonomy of a religious establishment was thus made to prevail over women‟s rights.”In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and others Prime Minister of the Country to have a fresh look at Art. 44 of the Constitution of India and Endeavour to Endeavour to secure for its citizens a UCC throughout the territory of India.” He also
suggested
the
appointment
of
a
committee
to
enact
a
Conversion of religion Act. R.M. Shahai, J., while agreeing with Kuldip Singh, J., too agreed tha t “Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. But religious
practices,
volatile
of
human
rights and dignity and sacerdotal suffocation of essentiality civil and material freedoms, are not a utonomy but oppression.”In Lily Thomas etc. v. Union of India and others the Court held that: “The desirability of UCC can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statement amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.”The court further added while it was desirable to have a UCC, the time was yet not ripe and the issue should (be)
entrusted to the Law Commission which may examine the same in consultation with minorities Commission. That is why when the court drew up the final order signed by both the learned judges it said, “the writ petition are allowed in terms of the answer to the questions posed in the opinion of kuldip Singh, J. These questions we have extracted earlier and the decision was confined
to
conclusions
reached
thereon
whereas
observationson the desirability of enacting the UCC were incident ally made.”In
the
Danial Latifi
and another v. Union of India the court upheld the validity of Sections 3 and 4 of the Muslim Women (Protection of rights on Divorce) Act, 1986, as not being volatile of articles 14, 15 and 21 of the Constitution of India. Under section 3 of the Muslim Women (Protection of rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provision for future of divorced wife which includes maintenance also, so she is not entitled to claim maintenance under section 125 of Cr.P.C. Under section 4 of the Act, divorced Muslim woman unable
to
maintain
herself
after
iddat
period
can
precede
againsther relatives or wakf Board for maintenance. Rajendra Babu, J., on behalf ofa five judge‟s five judge‟s bench consisting of Patnaik, Mohapatra, Doraiswamy, Patil, and JJ...And himself observed that: - “In interpreting the provisions where matrimonial relationship is involved we have to consider the social conditions prevalent in our society. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognized by persons belonging belongin g to all religions.”In John Vallamattom v. Union of India the Supreme Court in a PIL by a Christian priest, John and other citizens of Christian community, challenging the validity of the section 118 of the Indian Succession Act, 1925, while striking down the said section as being bein g volatile of article 14 of the Constitution, and also concerned over ove r the contradictions in marriage laws of various religions, in a historic judgments, emphasized the need for a
legislation by
was no “necessary
Parliament on
connection” between
common
civil
code. Stressing
that there
religious and personal laws in a civilized society,
a three judge bench held that it was matter of regret that article 44 of the Constitution, which provided for the state to „Endeavour ” to secure a UCC for its citizens throughout India, had not been affected. affected. The Court further observed that “Parliament is still to step in for framing a UCC in the country. A UCC will help the cause of the national integration by removing the contradiction based on ideologies.” It can be said that after mentioning the apex court view
regarding the implementation of UCC that Art. 44 needs to be interpreted to sustain the plurastic character of the Indian community. It should be on the gender justice rather than on uniformity. Although the Supreme Court has not yet interpreted Art. 44. On all his decisions the Court enjoined upon the parliament to enact a UCC without specifying what a UCC would mean. However, the word “uniform” should not mean the same law for all but it should mean similar laws for all and similarly should be regarding equality and gender justice. In Pannalal Bansilal v. State of Andhra Pradesh, it held that a uniform law though highly desirable, the enactment thereof in one go may be counter-productive to the unity and integrity of the nation. Gradual progressive change should be brought about. Similarly, in Maharishi Avadhesh v. Union of India , the Supreme Court dismissed a writ petition to introduce a common Civil Code on the ground that it was a matter for the legislature and in Ahmadabad Women Action Group v. Union of India , the Supreme Court showed reluctance to interfere in matters of personal law
8. UNIFORM CIVIL CODE OPTIONAL OR COMPULSORY
The government has an intention to for a voluntary or optional UCC. It has be emerged by the public that a voluntary code would be a welcome stepping stone towards a compulsory code and an d would also allay the misgivings of the Muslims that the code would impose Hindu personal law upon them. The convention of the Bar Council of India on the UCC came out strongly in favor of a compulsory code. The problem in optional code is that it cannot be a uniform. It can only be One moreaddition to the existing ex isting family laws, thus compounding rather than reducing the confusi on
that exists.
The two
facets with
regard to
the concept
of optionality optionality should should be considered .Either one has to opt for the entire entire codeor one may opt for selected areas. One feels that opting for the UCC should be one-way process. There should be no withdrawing. Once a person opts he/she will have opted for their future generations as well. There will be no opting out. If one spouse opts for the code, the other will also have to do so as otherwise the option will be ineffective. A voluntary code will create its own uncertainty as, confusion and misinformation. For all the reasons, the UCC will have to be an improvement on the existing laws in all respects and it will have to be very clear in its expression. Why do we need a Uniform Civil Code? What does our Constitution say about Uniform Civil Code? In
article 44, our constitution clearly specifies this "The State shall endeavor to secure the citizen uniform civil code throughout the territory of India”. The objective of this article is to effect an integration of India by bringing all communities into a common platform which is at present governed by personal laws which do not form the essence of any religion. The constitution is very clear that unless a uniform civil code is followed, integration cannot be imbibed. However, the so called secularists and saviors of secularism in India think otherwise. Their argument is that this code will affect the religious freedom of minorities. One fails to understand how abiding the law of land can go against religious principles! They claim that the sentiments of the minorities are not considered while implementing common law! This code does not insist people from one religion to start practicing rituals of other religions. All it says is, with changing living styles along with the time, there should be a uniform civil code irrespective of all religions as far as social ethics are concerned Till 1935, the Muslims in India followed different rules according to their practice. Khoja Muslims and Kutchi Memons are examples for this. The Kutchi Memons worshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had the inheritance laws as per Hindus and also the marriage laws as per Hindus. Whena common Muslim Personal law was formed; there were many minority creeds of Muslims who had to accept these laws though they differed from their practices. There was no need of respecting the sentiments of the minorities (among Muslims) then. If this can be done for minority creeds of Muslims, why can‟t the minority Muslims adapt the laws for the nation? Much was debated on this issue at the Indian Parliament in 1948 by Ambedkar, Anantasayam Iyengar, KMMunshiji, Alladi Krishnaswamy Iyer favoring UCC and members from other religions opposing it. On 23rdNov‟1948, in Parliament, a Muslim member gave an open challenge that India will never be the same if it tried to bring in Uniform Civil code and interfere with Muslim personal law. It‟s a shame that we could not do anything on this till date! I even doubt whether we had any subsequent debates in this regard at Parliament. The Hindu laws that were different in different parts of the country had undergone a turbulent change, courtesy, geographically united India. The appreciable factor is Hindus accepted these changes of laws with grace. Child marriages were banned, Sati was banned, widow re-marriage was encouraged, divorce was introduced, in heritance laws were amended and Hindus accepted all these changes. They never complained of hurting their religious sentiments. Those who oppose this law claim that this law is poking nose into their religious practices. “Narabali” (human sacrifice), sacrifice), that was considered a religious practice of
Hindus is banned today. Hindus never protested this stating that their religious practices are tampered with. There are Muslim countries that follow Islamic laws. Still, the laws differ from one country to another. This emphasizes that along with the personal laws, there has to be laws that should be written considering the changing phenomenon and the living style of the nation. Once again it is reiterated that this code is not biased towards are religion but to bring in a level playing platform among the citizens of India. Muslims in other countries accept uniform civil laws where they do not consider this as a defeat whereas in India it is. This is the result of the selective secularism adapted by the political parties, media and the so-called learned men of India. It is a pity that in a democratic & secular state, people have different laws based on their religion. Is it secular to have different laws for different religion or it is secular to have a uniform law? The approach of selective secularism had perpetuated the vertical divide among the people of India in the name of religion. This resulted in people having prejudice over this law itself. By bringing this code, neither the majority public wins over the minorities nor are the minorities in danger. Unless this prejudice is erased, bringing this law is difficult. The leaders of this country owe responsibility to explain this to public & an elaborate debate has to be held on this topic (which will never happen as this is against secularism?).To make this debate on UCC healthy, Hindus should not treat this as a weapon against minorities. Meanwhile, the minorities should not feel that they lose by b y bringing this law. 9. Implementation at State-
Level: Analysis Even though a nation-wide Civil Code is not yet in place, a positive step in this direction has already been taken. The state of Goa has enacted a setoff „Family setoff „Family Laws‟, which is applicable to all communities; Hindus, Christians, Muslims and others. There is no discrimination on the basis of religion, caste or gender. The Goa civil code is largely based on the Portuguese civil code of 1867, with some modifications based on the Portuguese Decrees on Marriage and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the Portuguese Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and divorce, succession, guardianship, property, domicile, possession, etc. Muslim fundamentalists opposed its enactment in the early 1980s but their attempts to introduce Sharia law in Goa were ultimately met with defeat by liberal Muslims who insisted on the continuance of the unified civil code. Former Chief Justice Y.V.Chandrachud expressed hope that the Goan Civil Code
would one day “awaken the rest of bigoted India and inspire it to emulate Goa.”There are two important aspects of this code which assume great significance in the context of codification of Indian laws: • Civil registration of marriage is mandatory. Around 98 percent of Goan marriages take place under Community Property law by virtue of which, each spouse automatically acquires joint ownership of all assets already in their possession as well as those due to them by inheritance. These assets may not be disposed of or encumbered in any way by one spouse without the express consent of the other. • The registration of births and deaths is also mandatory. The children of deceased
parents fall
in the category of mandatory heirs. They cannot be disinherited whether male or female, except under extraordinary circumstances. If the deceased parent leaves no will, all mandatory heirs are entitled to an equal share of the estate of the deceased. If the deceased has made a will, he may only dispose of 50 percent of the estate. This is called the quota disponivel. The remaining 50 percent must be divided equally among all mandatory heirs. Such a provision ensures the just distribution of assets among all children, whether male or female.
10. CONCLUSION : In order to promote the spirit of uniformity of laws and accomplish the
objective enshrined in Article 44 of the Constitution, the following suggestions deserve immediate consideration: •The
Government
Uniform Civil
must
Code
by
prepare a
good
environment for
e x p l a i n ing the contents and significance of Article
44. It should take steps and find out means to find out the obscurantist‟s who oppose to move of Uniform Civil Code •The
press,
radio,
television
and various
other means
of
c o m m u n i c a t i o n m a y b e o f great help in this regard. The conservative sections of the citizens must be made to understand the utility of uniformity of laws so that they do not stand in the way of implementation of Article 44 of the constitution.
•The
State
should
Uniform Civil
take
Code to
initiative
to
explain
the
the ordinary citizens. Special ways must be be devised and
also special care must be taken to prevent inflaming of the ordinary man‟s passions by mischievous, rabble e-rousing methods. •The
State should bring
stages
social
may be territorial
or
reform
they
may
by
be
attempt should be made to enact Civil Code embodying
what
is
stages
community
and the wise.
The
a Uniform
b e s t ing all personal laws. It must be the
synthesis of the good in our diverse personal laws. It should represent one, drawn up by the constitution between the different communities in India on th e principle of give and take. tak e. •It is the
duty
of
academicians
to
generate
good
e n v i r o n m e n t f o r t h e a d o p t i o n o f the Uniform Civil Code in India. It is their moral duty to promote the feelings of secularism and explain the contents of Uniform Civil Code to the community at large so that they are made to understand the beneficial effect of the Uniform Civil Code. •In order
to
assist
the Uniform
Civil C ode,
the Parliament to Implement a C o m m i t t ee of eminent jurists belonging to
different religions should be constituted to make the task of uniformity of laws possible. The rules of personal laws as in force in India dealing with marriage, talaq, inheritance, adoption, maintenance, succession etc. must be modified to a large extent on the lines of suggestions to be made by the Committee of eminent jurists. •There
is
a need to conduct
the personal laws of all which areas
of
the communities personal laws
a study
of
w ith a view to find out in uniformity of
laws already exists and which are the areas where differences still persist and inthat manner the y can be resolved. We must pick and choose the areas which are ripe. Such areas can be those relating to adoption, maintenance, guardianship, marriage and divorce. No doubt in the beginning it will be the nucleus of a properly termed family code but ultimately that would pave the path of Uniform Civil Code. Price- meal legislation, which is compressed and telescoped
within a few years, would achieve the objective aimed at and only a sincere effort without any sentimental approach would be of great value in finding out what has been deluding by now just as a mirage. It can be conclude by saying that the UCC amounts to equal laws for all sections of society. All the people of India must be governed by one set of laws. For national unity and for secularism, UCC is necessary. The plurality of laws in personal law matters is a blow and direct threat to national integrity and solidarity. It is worth mentioning the name of a few countries where a UCC has been functioning successfully viz. Germany, France, Spain Canada, Japan, Turkey and Portugal‟s. Portugal‟s. The government of India should take initiatives for enacting a UCC, which should contain the best elements of different civil laws of the various religion communities of the country and thus fulfill its positive obligations imposed upon it by article 44 of the Constitution of India. Between the Supreme Court‟s mixed response and the legislature‟s legislature‟s wariness, the implementation of a national common Civil Code seems to be a distant dream. It is only enlightened public opinion that will help fulfill it. Communal divides, vote-bank politics, staunch fundamentalism are currently barriers to its realization but with time and tolerance they can be overcome. What must be perceived as a matter of defining an individual‟s rights deteriorates instead, into a “majority versus minority” issue. The welfare of the community as a whole must be considered instead of a particular class or sect. No doubt, the realization of a common Civil Code is a tough job, given the vast ideological diversity. But a uniform civil law is necessary in order to be truly secular. It is our collective duty as a modern society to rise above cultural and religious differences and give effect to this constitutional mandate which is 60 years overdue.
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