By Avinash Singh
Published on: February 11, 2024 at 00:10 IST
India follows two types of law, one is Civil law and other one is Criminal law. Civil laws are the laws which deals with matter of dispute between two persons, civil law is also of two type one is substantive and other is procedural. Substantive law covers matter related to family (marriage, divorce, maintenance, adoption, succession, wards and guardianship), property, contract, and tort. Procedural law deals with the procedure which is followed by Courts to settle the dispute between the parties like Civil Procedure Code, 1908. Criminal law deals with the matter which are not only affecting the parties but also society at large, in such matter one party is state itself.
The personal laws which is family related laws comes under the domain of Civil law. Personal laws are based on the beliefs of customs, practise and scriptures of religious groups such as Hindu, Muslim, Christian, Parsi etc. since centuries of year. Personal laws provides different treatment to person of different class of society in matter of marriage, divorce, succession, adoption, maintenance, guardianship etc.
The personal laws are protected under Article 25 to 28 of The Constitution of India which is the fundamental right of the individual and gives them right to practice their religion. But there are certain lacuna in personal laws which causes discrimination, inequality in the society on ground of religion and gender. To eradicate all such discrimination, inequality from the society The Constitution of India given the directive to state under Article 44 to implement the Uniform Civil Code (UCC) which would be homogenous to everyone. The main aim of UCC is to provide common legal framework, which will be equally applicable to all citizen irrespective of their religion, gender etc.
In this Article we will describe the historical, constitutional and current background of personal laws with case laws, UCC.
In ancient India the Hindu were governed by Vedas, Manusmriti, Yagyavalkya smriti and Narada smriti. All rituals pertaining to marriage, inheritance were governed by these scriptures. In that time there was no concept of divorce in Hindu marriage because of belief that marriage is holly sacrament for upcoming seven lives.
In medieval India when Mughal came into India then they fallow their own Shariat law which was divine law for them, if any dispute arises related to civil matter Muslim used to go to Kaji and he gives decision according to Shariat but if any new type of dispute arises which was not given in Shariat then they go to Mufti and he gives legal instruction (Fatwa) related to that matter. Mughals did not touch the Hindu personal laws, it was governed according to Hindu scriptures.
By the Charter Act of 1829 Lord William Bentinck became the governor. Britishers first time intervine in the civil law of Hindu religion and repeal the practice of Sati from the society which was in violation of Womens right to life and that practice also violates many other rights of women. The practice of Sati was prohibited by making legislation of Sati Prohibition Act, 1829 with the help of Raja Ram Mohan Roy. The last incident of Sati was came into news in 1987 in the case of Roop Kanwar, after that incident the legislature made laws more strengthen and passed The Commission Of Sati (Prevention) Act, 1987.
In 1856 The Hindu Widow Remarriage Act, 1856 came into force which protects the rights of Hindu widow. Ishwar Chandra Vidyasagar and Lord Dalhousie gives their contribution to implement this law. Earlier to this law the Hindu Women were not allowed to remarry. In the year of 1929 the legislature implement the Child Marriage Restraint Act, 1929 which is also known as Sharda Act. This law fix the age of marriage for male is 18 year and female 14 year, by implementing this law the very evil practice of the society was curtailed and later by the amendment in 1976 the age male to 21 year and female 18 year. For Muslim the Shariat Act, 1937 was enacted which deals with the matter of Muslim personal laws. This Act does not provide any court or procedure to adjudicate the dispute arises, the dispute only goes to Kaji and Mufti. The Britishers does not much intervene in Muslim personal laws.
The personal laws of Christian’s related to all matters are codified like Christian Marriage Act, 1872, Indian Divorce Act, 1869, Indian Succession Act, 1925, Guardian and Wards Act, 1890. Parsi’s personal laws are govern by Parsi Marriage and Divorce Act, 1936.
A committee was constituted under the chairmanship of B.N Rau in year 1941 to make a draft of Hindu Code Bill, the bill was prepared in 1947 but not passed in Parliament. Dr. BR Ambedkar was very determinant to implement Hindu Code Bill and UCC also but when the Hindu Code Bill was not passed he resigned from the post of law minister.
Pandit Jawaharlal Nehru was also in support to pass the Hindu Code Bill and UCC but later he decided that these law will be pass if he wins the first election. Congress won the election and the Hindu Code Bill was passed by the parliament in four different laws which are Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956.
These laws are applicable to Hindu, Buddhist, Jain, and Sikh, these laws remove most of the discrimination among Hindus, it provides equal right to both male and female. Only one discrimination was there related to succession, the daughter were not entitle to inherit ancestral property, but in the case of Vineeta Sharma Vs Rakesh Sharma 2020 the Supreme Court ruled that a daughter/women shall also be considered as coparcener same as male in the inheritance of ancestral property of Hindu family property even if father died before the Hindu Succession (amendment) Act, 2005. This right was given to daughter on the ground of Article 14 of the Constitution of India which talks about equality before law. After this Act there is no more need to amend the Hindu law.
In Muslim law there was discrimination on ground of gender, male have more rights in all matters than female like divorce, polygamy, maintenance and halala etc. But in terms of succession the Muslim law was more progressive than other personal laws. In Muslim personal law the maintenance was granted to divorced wife only till the iddat period which is 3 months in divorce and 4 months 10 days if her husband died. But Muslim women can demand the maintenance to her whole life in section 125 of Code of Criminal Procedure.
In case of Mohd. Ahmed Khan Vs Shah Bano Begum 1985, Shah Bano claimed the maintenance under section 125 of CrPC, Mohd Ahmed Khan argued that he had already paid the maintenance till iddat period but court had given the judgement in favour of Shah Bano and direct Mohd. Ahmed to provide Rs. 25 per month to Shah Bano, in appeal the High Court increased the to Rs 179.20 per month.
In last the matter came in Supreme Court and this court validate the decision of High Court and also give direction to Mohd. Ahmed to pay Rs 10,000 to Shah Bano for the expenses in filing the case etc. The court also says that, the government must take essential step to implement Uniform Civil Code.
In the year of 1986 the Parliament passes Muslim Women (Protection of Rights on Divorce) Act, 1986 which nullify the judgement of Shah Bano case. This Act provide the maintenance only till the iddat period for women and 2 year for children. But in the case of Noor Saba Khatoon Vs Mohd Quasim, 1997, the Supreme Court held that, after divorce the children are entitled to get maintenance, son till 18 year of age and daughter till her marriage.
In the case of Danial Latifi Vs Union of India 2001 (Danial Latifi was the advocate of Shah Bano in her case) Supreme Court held that, the husband have to give such amount of maintenance to his divorced wife that she can maintain herself whole life with that amount, and ofcourse the amount will be fixed according to income of husband and lifestyle of wife. After this case the contention of maintenance resolved in Muslim personal law.
In the case of Shayara Bano Vs Union of India 2017 the Supreme court gave a historical judgement of India that with the majority of 3:2 declared the practice of Triple Talaq to be unconstitutional, the Triple Talaq (talaq a biddat) was the social evil. After this judgement, in 2019 the parliament pass law which make the offence of Triple Talaq is cognizable, non bailable but compoundable, the punishment is for 3 years.
A Uniform Civil Code is a legal framework that seeks to provide a single set of laws applicable to all citizens, regardless of their religious or cultural affiliations. The primary objective of implementing a UCC is to promote gender justice, equality, and the protection of fundamental rights by ensuring a standardized legal system across diverse communities. Countries like India have debated the implementation of a UCC to replace existing personal laws.
Features of UCC:
- Equality: UCC promotes equality among citizens by eliminating discriminatory practices based on religion or community.
- Standardization: UCC envisions a single set of laws applicable to all citizens, fostering a sense of unity and coherence in the legal system.
- Fundamental Rights: It aligns with the principles of fundamental rights, ensuring that individuals enjoy equal protection under the law
Personal laws, on the other hand, are legal frameworks that are specific to a particular community or religious group. These laws govern various personal matters such as marriage, divorce, inheritance, and family relations. Personal laws often derive from religious scriptures, traditions, and customs, creating a distinct set of rules for different communities within a multicultural society.
Features of Personal Laws:
- Religious and Cultural Specificity: Personal laws are tailored to the religious and cultural practices of specific communities, reflecting their unique customs.
- Diverse Application: Different communities may have separate personal laws, leading to a diversity of legal norms within a single legal jurisdiction.
- Autonomy: Communities often view personal laws as a means of preserving their autonomy and cultural identity.
Uttarakhand after Goa are the only two states which implemented the Uniform Civil Code in their respective state. Article 25 to 28 of the constitution gives the freedom to the individual to practice and profess essential customs in their religion. Supreme court by using the doctrine of essentiality repeal many practice from different religion which were not essential to their religion and also violets the fundamental rights of many people.
Article 44 direct the State to make UCC for the citizens. The personal law of Hindu is codified and there is no further need of amendement. The personal law of Muslim is certainly gender bias in terms of polygamy and halala. Other Islamic countries are govern by Muslim law but they removed the gender biasness from their law, but in India their is gender discrimination. A petition is pending before the Supreme Court filed by Sameena Begum to criminalize the polygamy under section 494 of IPC, nikah halala under section 498A of IPC. As for as concern about adoption for Muslim, in case of Shabana Hashmi Vs Union of India, the Supreme Court held that, any person irrespective of their religion can adopt children under Juvenile Justice (Care and Protection of Children) Act, 2015.
India is a secular state and largest democracy in the world with highly diverse population. Religion has a significant role in the Indian society. To regulate the all citizens in single framework, it is necessary to implement the UCC. It has been 75 years of independence and implementation of Constitution of India but UCC has not yet implemented. UCC is a tool for reformation which aims to eliminate gender discrimination and promote gender equality, it will also promote cultural unity and social integration. Personal laws has been reform but its time to give every person equal rights under the law, irrespective of their religion and gender.