Impact of UCC on Muslim Personal Law
Authored by Shweta Tated
Keywords: Uniform Civil Code, Muslim Law.
India is the world’s largest democracy, diverse within million communities and traditions with a secular fabric attached the Constitution making it a divergent and tolerant nation with respect of guaranteeing its citizens under Part III Article 25 and 26, Fundamental Right to Freedom of Religion, but on the contrary, a growing need and controversy of implementing the Uniform Civil Code under Part IV Article 44 of the Constitution of India states the UCC. It is the one that provides for one law for the whole country applicable to all religious communities in their personal matters such as marriage, divorce, inheritance and adoption. The Article states that,’ the state shall endeavor to secure Uniform Civil Code for the citizens throughout the territory of India’. It proposes to shift personal laws established on the scriptures and customs of each major religious community within the country, with a set of rules common to each other.
Personal Laws in India
There are varied customs and communities prevailing among the people of India. Religion has been an essential part of the country’s culture throughout India’s history. In India all our family laws are determined by the religion of the parties under various personal laws. The Muslim personal laws are still primarily unmodified and traditional in their content and approach towards the Shariat law of 1937 which governs the personal matters of all Indian Muslims in India.
It clearly states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration with the support of interpretations of the Quran and the Hadith. This law isn’t applicable in Goa as Goa Civil Code is applicable there regardless of religion. Also, it’s not applicable to Muslims who marry under the Special Marriage Act,1954. There are two scenarios during which there’s a conflict between Personal Laws and Part III of the Constitution:
1. Personal laws, codified, customary in practice coming in conflict with the provisions of Part-III of the Indian constitution.
2. Conflict of personal laws, which aims at reforming existing laws found to be arbitrary, unconstitutional with Article 25 of the Indian Constitution. Highlights on Personal Laws
1. Divorce: Divorce under Muslim law has always been a primary concern. The practice of Triple Talaq gives the capacity to a man to divorce his wife just by uttering the word ‘talaq’ thrice. This tradition is against legal principles and immoral in nature. Due to UCC, the practice of triple talaq would be abolished, and therefore the dissolution of each marriage would happen through court proceedings. The petitions for separation filed within the court would deter Muslim men and women from remarriage as a second marriage is socially considered to be a taboo in India.
2. Inheritance: Succession and inheritance are a matter of prime concern among the concerns that are existing under the law. The provisions regarding succession and inheritance differ from each other. The implementation of UCC would cause drastic changes within the Muslim law in such a way that it would end in a codified law enforced within the context of rules of inheritance and succession, a stable structure of share would be established, illegitimate children and adoptive children would even have a share in their father’s property.
3. Polygamy: Polygamy is a very widespread practice under the Muslim law. One amongst the leading changes which the Muslim law would undergo with the approaching of the UCC is that it might cause abolition of the practice of polygamy. Polygamy as a practice is typically considered to be a social evil in India. However, it’s been stated by Atal Bihari Vajpayee that the coming up of UCC wouldn’t impose Hindu law on any religion. It would contain the essentials of all the religions.
4. Adoption: Muslim, Christian and Paris’s have no adoption laws and need to approach the court under Guardianship and wards act, 1890 whereas Hindu’s are governed by Hindu Adoption and Maintenance act, 1956. The implementation of UCC for governing the laws concerning adoption would cause considerable and drastic changes under the Muslim personal law in such a way that ,a Muslim woman would be allowed to take a child in adoption, the couples can legally claim the status to be the adoptive parents of the child who is being adopted by them, after being taken into adoption by the adoptive parents, a child breaks all the ties from the family in which he was born, and he becomes entitled to inherit the property of his adoptive father as being a natural child.
5. Maintenance: Apart from personal laws, a non-Muslim woman can claim maintenance under Section 125 of Code of Criminal Procedure. A Muslim woman can claim maintenance under the Muslim Women Act, 1986. In the case of Denial Latifi Vs. Union of India the court held that the provision regarding maintenance should be fair and reasonable and therefore the constitutional validity of the Muslim
Women’s Protection Act, 1986 was also upheld in this case.
Need for Uniform Civil Code
The main aim of UCC is to unite all Indians irrespective of religion, caste, gender and also to unite minds. So, the benefits in relation to the UCC are as followed:
a) Equal status to all citizens
b) Promote gender equality
c) Accommodate the aspirations of young population and utilize their full potential towards nation-building
d) Promote national integration
e) Bypass the issue of reform of existing personal laws
f) Constitutional secularism
g) To overcome communalism
h) Simplification of legal system
Issues regarding UCC
Though there are several advantages of UCC but several hurdles still exist. These are a brief obstacle within the course of a race to win. These issues are:
a) Due to diversity in India it’s tough to come up with common and uniform set of rules
b) UCC for few communities perceive as an encroachment on their rights to religious freedom
c) Due to codification and compulsion it may reduce the scope of freedom of religion
d) It is a sensitive and tough task to bring UCC
1. State of Bombay vs. Narasu Appa Mali: It was challenged on the basis of Articles 14,15 and 25 of the Constitution of India.
2. Shah Bano Case: She moved to the SC seeking maintenance u/s 125 of the Code of
Criminal Procedure as her husband divorced her by giving triple talaq after 40 years.
It had been held in the favour of Shah Bano. It had been observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law.
3. Sarla Mudgal Case: The question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage. The SC held that adopting Islam for a second marriage is an abuse of Personal laws. The Hindu marriages are often dissolved under Hindu Marriage Act, 1955 that is merely by converting itself into Islam and marry again does not dissolve the marriage under
Hindu Marriage Law and thus will be an offense under Section 494 of the Indian Penal Code.
4. John Vallamattom vs. Union of India Case: A writ petition was filed in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians because it imposes unreasonable restrictions on their donation of property for the charitable purpose by will. The bench struck down the Section declaring it to be unconstitutional.
A secular India needs a consistent code but urgent need to force any uniform civil code on a population resistant to change isn’t necessary. Most people aren’t truly able to adopt secular laws distinct from their religious customs. It can genuinely be said that uniform civil code isn’t distinct and far from reach prospect in law. It’s practical essence which can be seen through the directive principle of state policy in the Constitution. The UCC must form a balance between the protection of fundamental rights and religious teachings of individuals. It ought to be a code, that is simply just and proper according to a man of ordinary prudence, without any bias with regard to religious and political considerations.
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