After the Delhi High Court directed the Centre to apply the Uniform Civil Code (“UCC”), it is once again in the news and the topic of heated debates. The Delhi High Court, in response to a petition challenging the application of the Hindu Marriage Act, 1955 to a couple from the Meena community, underlines the fact that the youth of this nation, belonging to different communities, tribes, etc. should not be made to struggle with the issues arising from various personal religious law. Let us try to find out to what extent is this statement valid.

Uniform Civil Code- Meaning and Importance

UCC is a law or a code that would impress upon the idea of one nation one law. It would envisage for one single law for basically all the communities pertaining to their issues like marriage, divorce, etc. The UCC is enshrined in the Article 44, which is part IV of the Constitution as- “The state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” According to Article 37 of the Constitution, it is part of the Directive Principles of State Policy, which are non-justiciable, or not enforceable in a court of law. Fundamental Rights, on the other hand, are enforceable in a court of law.

The thing to consider here is while other Articles of the Directive Principles of State Policy include the usage of phrases like “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc., the phrase included in Article 44 is “state shall endeavour.” However, Article 43 mentions “the state shall endeavour through legislature.” This shows that all the other Articles are relatively of greater importance than Article 44.

Understanding the context of the Constitution makers

As mentioned above, the UCC basically deals with the personal laws of various religious communities of our country. However, it is worth noting that the personal laws are specified in the Constitution’s concurrent list, which clearly means that the framers of the Constitution never wanted a uniform law for the entire nation. It means that the personal laws can be different in all the 29 states of India. It’s also not as if there’s no uniform code in any of these areas. In civil proceedings, Indian laws follow a consistent code. like the Partnership Act, Sales of Goods Act, Evidence Act, etc. but again, all of these have gone through hundreds of amendments as suited to the different States. Thus, the notion of “one nation, one law” is not proposed by the Constitution.

The Complex case of Goa

Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019) was the case in which the Supreme Court mentioned Goa as “a shining example of an Indian State which has a uniform civil code applicable to all…”

The Portuguese, in 1867, introduced the Goa Civil Code, which unlike others begins with the name of God as well as the King of Portugal. The Civil Code of Goa is divided into four sections, each of which deals with civil capacity, the acquisition of rights, the right to property, and the breach of rights and remedies. The Code has been preserved thanks to Section 5(1) of the Goa, Daman, and Diu Administration Act, 1962, which allowed it to continue. The Jammu & Kashmir Reorganisation Act, 2019, on the other hand, has removed regulations based on local Hindu customs; even Kashmiri Muslims were bound to such non-Islamic laws and customs.  The Hindus, living in Goa, are still following the family and succession laws of the Portuguese. Polygamy, that also on a limited scale, is made permissible to the Hindu community upon their opposition. Such freedom is not given to any of the other communities living there. Some concessions are given by the Code to the Catholics. They need not require to register their marriage and the marriages performed in the Church can be dissolved by the Catholic priests. The High Court automatically approves dissolutions by Church tribunals as is the case with the Sharia courts. The question that whether the revised Hindu Code Bill will be adopted over the Portuguese Civil Code is still up in the air.

According to the Code of 1867, there is joint ownership in case of matrimonial property and the same is equally divided in case of divorce. But at the same time, according to the pre-nuptial contracts, parties have the option to opt out of the joint ownership. Thus, even during the joint ownership of the properties, the husband remains the overall controller of the assets. The various Acts (Goa Succession, Inventory Proceedings Act of 2012 and the Notaries Act) passed by the Union Government in 2016 clearly placed the deceased’s descendants, ascendants, and brothers ahead of the surviving spouse (order of legal succession).

The Muslim community of the Goa is governed according to the Portuguese law and the Shastric Hindu Law, where the enactment of Muslim Personal Law (Shariat) Application Act of 1937 is still missing.

The Supreme Court ruled unanimously that religious freedom is unrestricted under Articles 25 and 26 of the Constitution (Shayara Bano v. Union of India (2017) 9 SCC 1). The right to exercise one’s own personal law has been elevated to the highest standard of fundamental right. UCC is just one of the directive principles. In Minerva Mills Ltd. v. Union of India (1980 AIR 1789, 1981 SCR (1) 206), the Supreme Court correctly stated that “to destroy the guarantees given by Part III [fundamental rights] in order purportedly to achieve the goals of Part IV [directive principles] is plainly to subvert the Constitution by destroying its basic structure.”

Understanding Legal Pluralism

India consists of legal pluralism which is a situation of legal coexistence in a single society. There isn’t a single legislation that applies to all Hindus in the country. According to the Hindu Marriage Act of 1955 marriages between close relatives is prohibited but the same is considered propitious in the south. The practices of various Hindu communities are also taken into account by the Hindu Code Bill. Concessions were even made by the Hindu Succession Act of 1956, and it took until 2005 to make a daughter a coparcener. Wives aren’t coparceners yet. Even today, property passes to Class I heirs first, and subsequently to Class II heirs if there are no Class I heirs. While sons’ heirs are classified as Class I, daughters’ heirs are not classified in the same class. Even among Class II heirs, the male line is given preference. If a marriage does not have a child, the husband’s parents inherit not just the husband’s but also the wife’s property.

Similarly, personal laws are not applied in the same way by Muslims and Christians. The local customs prevalent in Nagaland, Meghalaya, and Mizoram are protected by the Constitution.

After 1950, even the enactment of property laws in a few of states is unequally applied to men and women, to say nothing of discriminatory personal laws. These laws are not subject to judicial review and are contained in Schedule Nine.

However, in some of the earlier cases, the Supreme Court’s findings in various judgments dealing with the subject of a UCC were needless obiter dicta (Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945, 1985 SCR (3) 844). In other cases (Sarla Mudgal v. Union of India, 1995 AIR 1531, 1995 SCC (3) 635 in which four Hindu men converted to Islam in order to marry second wives), the court’s conclusions were erroneous and problematic. Rather than condemning the defendants in Sarla Mudgal, the court vilified Muslims, saying: “Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation theory or three-nation theory and that in the Indian Republic there was to be only one Nation — Indian nation — and no community could claim to remain a separate entity on the basis of religion.” It further observed, “there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim.” The court ignored the fact that while all Congress leaders, including Jawaharlal Nehru, Sardar Patel, and Mahatma Gandhi, voted for Pakistan, Maulana Abul Kalam Azad stood firm and voted against it; neglected V.D. Savarkar’s two-nation theory; and brushed aside the Hindu Right’s history of resistance to the Hindu Code Bill.

Way Forward

A UCC blueprint has yet to be designed. So yet, no expert panels have been established, such as the Hindu Law Committee of 1941. Marriage solemnization, the consecrated aspect of marriage, incentives of income tax for the joint families of Hindus, are some features of Hindu law that may or may not be included in the UCC. Ceremonies like kanyadaan and sanpati may as well be excluded from the UCC. Therefore, the central government should establish Muslim Law Reforms Committees, Christian and Parsi Law Reforms Committees, and Tribal and Indigenous Law Reform Committees as a first step, and then proceed with the reform process based on the suggestions of these committees. The UCC must include provisions like as dower (husband’s payment) and nikahnama (prenuptial contract). Will Hindus be able to embrace the changes?

A UCC, according to the Law Commission in 2018, is not desirable nor practical. Hence, it is true that enacting a UCC incrementally is the best approach.

Rajiv Gandhi National University of Law, Patiala, Punjab and Second Year


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