Dr. M. Hashim Kidwai
Ex-MP (Rajya Sabha)

The question of a uniform civil code has sprung into prominence because of a recent judgement of the Supreme Court delivered by Justice Kuldeep Singh and Justice Sahni. It has also come up because of the demand of BJP leaders that there should be a Uniform Civil Code for all Indians.

As pointed out by the distinguished jurist HM Seervai, Justice Singh has gratuitously raised the question of a uniform civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry other women although their wives were alive. This practice was there because Muslim law permitted a Muslim to marry four wives at a time. Surely, it is a fraudulent practice, but Muslim law should not be blamed for this. It is also to be noted that Muslims were not a party in the case in which judgement has been delivered by the two judges.   

Since article 44 under which the state is to endeavour for a uniform civil code, is not judiciable, which means it can not be enforced by the judiciary. The enforcement will be violative of article 25 of the Constitution, which guarantees religious freedom to all Indians citizens.

That only Muslims are opposed to the uniform civil code is false. The majority community is also opposed to it, which is evident from the fact that instead of following Special Marriage Act it follows the Hindu Marriage Act. According to Seervai the order of Justice Kuldeep Singh concurred by Justice Sahani requests the Government of India through the Prime Minister to have a fresh look at article 44 and endeavour to secure for Indian citizens a uniform civil code throughout the territories of the country is null and void and the Supreme Court cannot enforce the mandate of article 44.

He rightly observed that a common civil code for Hindus and Muslims is an impossibility.

Seervai observes that Section 7 (182) of Hindu Marriage Act clearly lays down that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto while Section 7(2) says that where such rites and ceremonies include the Satapadi (i.e., the taking of 7 rounds by the bride groom and the bride together before the sacred fire) the marriage becomes complete and binding when the 7th round is taken and it clearly contradicts the observation of Justice Singh that marriage has nothing to do with revisions while Section 5 (IV & V) of the said act lays down conditions subject to which marriage may be solemnised namely “the parties are not within the degree of the prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two and concludes that there is no common civil code governing marriage among Hindus.

The argument that the enactment of a uniform civil code will promote a feeling of national unity among Indians loses its validity when the strong sentiments of minorities, especially of the Muslims, are taken into account. They are passionately attached to their personal law and are not prepared to change or replace it.

The enthusiasts for a uniform civil code try to make capital out of the fact that Indian Constitution under the Directive Principles of State Policy provides, “the States shall endeavour to secure the citizens a uniform civil code throughout the territory of India”. Never the less it is worth remembering that the Directive Principles are not binding on the Central or state governments. They are merely instructions for Governments as to what policies they ought to follow in order to realise the ultimate goal of establishing a welfare state. They have no legal force. On the other hand, the Constitution guarantees freedom of religion by including this freedom in Fundamental Rights. These rights are sacrosanct and Parliament has no right to abridge or scrap them. This will affect the basic structure of the Constitution.

Secular activities mentioned in Clause (2) of article 25 do not mean marriage, divorce and succession. Secular activity on the contract denotes strict impartiality and objectivity on the part of the government. It implies fair and equal treatment to all Indian citizens irrespective of caste, creed religion, sex etc. The very essence of Indian secularism is recognition of different religions on equal footing. Thus, it will be against the spirit of the Constitution if a uniform civil code is imposed upon the people.

The champions of uniform civil code contend that Muslim Personal Law has become outdated and needs to be modernised. But this contention is false as Muslim Personal Law has for centuries pioneered a number of progressive principles which even today are accepted.
1. The principle that marriage is a civil contract involving no change in the legal status of the woman.
2. The wife’s retention of her full legal personality with preliminary capacity to contract and to acquire, hold and dispose of property without reference to her husband.
3. The wife’s continuance in her father’s as distinct from her husband’s family, after marriage as before and her co-ordinated related right to inherit from her parents.
4. The wife’s right to demand from her husband as an essential precondition of marriage, a marriage settlement or mahar (dower).
5. The wife’s right to hizanat (custody of young children in case of separation from her husband with the latter remaining liable for maintenance).
6. The woman’s right to re-marry after divorce or widowhood.
7. The woman’s right to stipulate conditions in the marriage contract.
8. The woman’s peremptory right of divorce in case of lack of chastity imputed to her, aside from other instances of cruelty or conduct violative of the marriage contract.
9. Divorce by mutual consent.

The Muslim Personal Law leaves the parties free to put in the marriage contract appropriate terms to secure the wife’s rights. Such terms may include a stipulation that the husband could not marry a second wife and that the wife shall have the right to divorce herself at will.

In view of this any dispassionate observer will find that Muslim Personal Law is quite modern, flexible and adequate enough to suit any evolving society. The words of George Bernard Shaw are worth recalling, “the laws of marriage and divorce given by Islam are most suitable for our times”.

If by a uniform civil code is meant a civil code for the purposes of civil code there is already the civil procedure code which deals with this aspect.

When there are still other important Directive Principles to be taken care of, like improvement of educational standards, the duty to provide adequate means of livelihood, improvement of the level of nutrition and the standards of living of the people and the introduction of prohibition, it is meaningless to dwell upon solely article 44 without fulfilling the above-mentioned requirements. Article 44 is not of such great importance that it should take precedence over other articles of Directive Principles.

Advocates of a uniform civil code forget that all Indian communities have personal laws and there are separate personal laws for Hindus, Muslims, Christians and Parsees.

If the idea is to promote a uniform personal law, there was no need after the promulgation of the Constitution to enact Hindu Succession Act and the Hindu Marriage Act. No criticism was levelled against the Hindu Joint Family system. There is nothing wrong in Hindus following what they see as proper for them and necessary for the preservation of their identity, their custom and usages.

If a uniform personal law has to be introduced, it will be to change the entire concept of various institutions, customs and usages which have been held sacred by various communities.

In a pluralistic society, which recognises equal rights for all religions, it will be a denial of social justice if under the guise of introducing a uniform civil code religious beliefs of other communities are thrown over board.

Article 371 A and 371 C are special provisions with respect to the states of Nagaland and Mizoram. The religious and social practices of the Nagas and the people of Mizoram and their customary laws and procedures will prevail over the laws of India, including the administration of civil and criminal justice through these articles.

Uniform civil code is an attempt to destroy the religious and cultural practices of minorities, which will set in motion a dangerous precedent. Article 44 is one of the Directive Principles while article 25 which gives the right to profess, practice and propagate one’s religion is a fundamental right. The enforcement of Article 44 will be against the basic structure of the Constitution and if this structure is destroyed, India will cease to be a state which was established for the purposes of achieving social justice and upholding the secular and democratic ideals which were so dear to the hearts of the framers of the Constitution.

This article appeared in The Milli Gazette print issue of 1-15 December 2015 on page no. 11

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