Article 44 of the Indian constitution under directive principles reads: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. However, Directive Principles are only guidelines and not enforceable by the law. But, at the same time when we can adopt other directive principles irrespective of caste , creed , sex or place of birth then why can’t we adopt a right which is in national interest and for national integration. We have just accepted secularism as a principle but have not asked ourselves what it means to be secular as a guild. Secularising India has to begin with a common civil code that ensures equal rights to all citizens without exceptions, that’s secularism in action. Religion invades on every human rights in the civil law effecting the process of national integration and thus religions should be demarcated from our social institutions in order to strengthen the social fabric of the country.
I have serious doubts on India being a ‘secular’ nation since every religion has freedom to frame its own personal laws and advocate policies. It’s a matter of shame and disgrace that we have raised enough voice in the name of Secularism but have failed to address adequate steps to implement ‘Secularism’ in action and even after 69 years of independence we are still practising “Fake Secularism” .
The British applied a uniform criminal code for all but allowed the religious laws to be applied. At the time of drafting our constitution, there were extensive debates regarding these personal laws. For some, UCC was against the interest of minorities and for some, it was seen as a tool for national integration. Though due to lack of common consensus the common civil code was placed under the Directive principles, which the state shall venture to achieve and adopt when needed. Later, the cases of Shah Bano and Sarla Mudgal took up a spirited debate surrounding personal laws and common code.
Shah Bano case was an alimony and maintenance case and the judgement pronounced by the apex court was historic. Shah Bano was an elderly muslim women divorced by her husband. Subsequently, her husband refused to pay her alimony beyond the period of three months in which she even can’t re-marry (Iddat). According to present religious law he was obliged to pay her maintenance for this period only. The case went up till the Apex Court which then granted her maintenance for life under Section 125 of the Crpc as Crpc was common for all and that she could claim maintenance under it. But, unfortunately for the sake of traditional vote bank politics and in the name of securing interest of minorities, the then congress government overturned the Supreme Court judgement and passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. This act allowed maintenance to a divorced woman only during the period of iddat, according to the provisions of personal law. However, in the later judgements, the Supreme Court of India upheld the previous judgement and the 1986 act was again nullified. In the past, the apex court has often reiterated and asked the government to come up with a decision on the issue in national interest.
The claim that the sentiments of the minorities are not considered while implementing a common law is thus beyond comprehension. With a UCC, the society will get rid of all gender discriminating laws and send a blow to the patriarchal nature which is the need of hour. Those who have not allowed changes in the personal law have done a great disservice to the community. Retaining the outdated personal law has contributed to keeping them backward and marginalised.
The injustice in the personal law can be seen that – A muslim husband can divorce his wife by simply saying ‘Talaq, Talaq, Talaq’, without ascribing any reason, whereas a Muslim wife cannot do so. Even if a men scribes on a wall talaq talaq talaq its Talaq. Another ground of discrimination is that the muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it. This is not only unjust but also violation of Articles 14, 15 and 21 of the Indian Constitution. A male gets a double share of the inheritance over that of a female. Our society is exceedingly patriarchal and by allowing outdated laws to continue to govern the family we are condemning all Indian women to subjugation.
A study by an NGO, Bharatiya Muslim Mahila Andolan found that more than 90 percent Muslim women were against the practice of triple talaq. Surprisingly, triple talaq is restricted in countries like Pakistan and Saudi Arabia but it continues in India.
It is argued that Article 25, provides for practice and propagation of religion and with uniform civil code article 25 is not perceived. This is not a valid altercation as religion shouldn’t be confused with personal laws. Personal issues relating to marriage , inheritance, share etc are secular in nature. India is ‘Vasudeva Kutumbkam‘. It’s a home and home is not a building. It’s a feeling and we run by understanding and integration. That’s the corporal idea of India.
Muslim community should push for a uniform civil code and those who have not allowed changes in the personal law have done a great disservice to the community. It may be tough to predict the future of this code but the time has come to adopt a Uniform Civil Code in order to secularize and integrate India.