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Post at: Aug 11 2021

Uniform Civil Code

Why in News?

  • Delhi High Court backed the idea of Uniform Civil Code, in a judgement on July 7, 2021 on a plea involving the applicability of the Hindu Marriage Act, 1955, in respect of parties belonging to the Meena Community.

So, what is a Uniform Civil Code?

  • A Uniform Civil Code (UCC) is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
  • Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
  • Article 44 is one of the directive principles of state policy (DPSP).
  • DPSP as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

 

Does India not already have a uniform code in Civil Matters?

  • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Partnership Act, Civil Procedure Code, Evidence Act etc.
  • States, however, have made hundreds of amendments and, therefore, in certain matters, there is diversity even under these secular civil laws.

 

Post-Independence Reforms within Personal Laws

  • The major legislative reforms have been the Hindu law reforms of the 1950s.
  • Though the enactments codified the Hindu laws, they didn’t bring in equality, gender justice or uniformity and provided a statutory recognition for the divorce, customs, and usages by various sects & communities.

Marriages in Hindus:

  • For instance, under section 5 of the Hindu Marriage Act, which stipulates conditions for contracting a Hindu marriage and under section 7, which prescribes the ceremonies for performing a valid Hindu marriage.
  • In this section customs & usages have been awarded due recognition, even while prescribing the Brahmanical rituals such as Vivaha homa (the sacrificial fire), Satapadi (seven steps), and Kanyadan as essential ceremonies.

Divorce in Hindus

  • While section 13 of the Act provides for a judicial divorce section 29(2) validates customary divorces.

Registration of Marriage

  • The provision for registering a marriage under section 8 is optional.

Rights of divorced Muslim women to claim maintenance

  • The constitutional validity of Muslim Women Act, 1986 was challenged in Danial Latifi v Union of India.
  • This Act was passed after the ruling in the Shah bano case, where the Supreme Court had upheld the right of a divorced Muslim women for post-divorce maintenance under section 125 of the code of criminal procedure.
  • This Act overturned the verdict in the Shah Bano case and said the maintenance period can only be made liable for the Iddat period (it is a waiting persied a woman must observe after the death of her husband or divorce before she can remarry another man; it is usually 3 months.)
  • In Danial Latifi, the apex court said the liability can’t be restricted to the period of iddat.

Challenges in implementing UCC

  • The legislature power to enact family laws is placed in the concurrent list (entry 5, list III of the seventh schedule). Therefore, both parliament and state legislatures are vested with this power.
  • So, it could lead to clash on the Federal front.
  • In addition, it could impact relations with the North-Eastern States, which are further protected through specific constitutional guarantees of protection of customary laws under Article 244(2) and the sixth schedule.
  • A specific provision is also awarded to customary rights of tribal communities under Article 244(1) and the fifth schedule.
  • Also some sections in Minorities claim it is a way of imposing majority views on them.

 

Way forward

  • An incremental approach towards uniform rights appears to be the most effective strategy to break away from the communally vitiated identity politics within which the controversy over the enactment of a UCC appears to be entrapped.
  • Each state in the US has a separate constitution and separate criminal laws and the plurality of laws has not weakened that country.
  • The UCC has no role in maintaining the integrity of the country.

@  Anubhav Upadhyay


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