UCC: Search for unity in a Diverse India

 The Uniform Civil Code (UCC) is a proposal in India that is aimed at replacing personal, traditional, customary and religious laws and practices with a common statute applicable to all irrespective of their religion, caste, gender etc.

Civil laws are broadly categorized in two types: Financial laws and Family laws. While discussing about UCC, we focus mainly on Family laws.

EVOLUTION OF PERSONAL LAWS

Ancient India was mostly governed by Brahamanical order of society and laws books like Yajnavalkyasmriti, Manusmriti and Naradsmriti, among these, they governed the social order, religious duty, traditions etc. which were socially accepted morals and legal norms in ancient India.

Given the Hindu majority in medieval India, Muslim rulers adopted a middle ground approach. Hindus' civil matters followed their personal laws, while Muslims were guided by canonical texts like the Quran, Hadith, Sunnah, and Fatwa-e-Alamgir. All state subjects were subjected to uniform criminal laws based on retributive justice.

Law reforms were started in India while it was ruled by the English. Civil law were untouched, whereas criminal law changed from retributive to rehabilitative. The Gentoo Code of Warren Hastings, compiled Hindu legal texts and were used to settle Hindu civil disputes, while Kazis overlooked the Muslim personal law.

Social reformers of the time, with British tried reforming Hindu society, Acts like the Sati Abolition Act 1829, Caste Disabilities Act 1850, Hindu Widow Remarriage Act 1856, Child Marriage Restraint Act 1929, Hindu Women's Rights to Property Act 1937 were enacted to reform Hindu society.

Similarly, Muslim personal laws were codified under Muslim Personal Law Act 1937 and Muslim Marriage Act 1939. Christian personal laws saw the enactment of Christian Marriage Act 1872, Indian Divorce Act 1869, and Indian Succession Act 1925. Parsi personal laws were codified under Parsi Marriage and Divorce Act 1936.

Post-independence, Hindu Code Bill was passed, comprising of: Hindu Succession Act 1956, Hindu Marriage Act 1955, Hindu Guardianship Act 1956, and Hindu Maintenance Act 1955. These codified laws covered approximately 87% of India’s population, leaving out Muslim, Christian, and Parsi communities. The framers of the Constitution considered the time unfit for reforming personal laws due to the recent partition, thus making UCC a Directive Principles of State Policy to be addressed by future governments.

Every religion in India has its own set of rules that are socially acceptable despite being discriminatory towards women, children, and adoptive family members.

Example:

1. Christian and Parsi laws do not recognize children born out of wedlock, granting succession rights only to legitimate children.¹
2. In Muslim community after the abolishment of Triple Talaq, system of ‘Khula’ is adopted, which is initiated by women unlike triple talaq. However this system is forced upon women by men, and wives are obligated to return Meher to their husbands, financial obligations of husband vary on case-by-case basis, which is regressive towards women.
3. In Assam, recent crackdowns on child marriages charged husbands under the POSCO Act, despite Muslim personal law permitting marriage after puberty. The Special Marriage Act 1954 prescribes girls' minimum marriage age at 18, conflicting with Muslim personal laws, resulting in numerous Assamese marriages being declared void.
4. Hindu Undivided Family (HUF), is a legal entity allowing Hindu families to claim tax benefits. However, any such equivalent benefits are not available to other religions which is violation of Article 14 of Indian Constitution.
5. Furthermore, an illegitimate child is not considered a part of the Hindu Joint Family, which also infringes upon their right to ancestral property.

While judiciary has tried addressing these issues, it often lacks the comprehensive input from all stakeholders to reform all personal laws.

Reforms by the Judiciary:

1. In Moro Vishwanath vs. Ganesh Vithal, Supreme Court interpreted the difference between Hindu Joint Family and a Coparcenary under Mitakshara and Dayabhaga school of law.³
2. In Sujata Sharma vs. Shri Manu Gupta, Delhi High Court ruled that in a HUF a female can become a ‘Karta’.⁴
3. In 2017 a petition was filed in Supreme Court by Naomi Sam Irani challenging the jury system in Parsi matrimonial disputes. The jury's decision is final, and no appeals are permitted; this is unfair to Parsis compared to people of other religions, and it also violates article 14 and 21 of the Indian Constitution. (The matter is still subjudice).
4. In Shayara Bano vs. Union of India, Supreme court declared Triple Talaq in Muslim community as unconstitutional and abolished it.⁵
5. In Molly Joseph vs. George Sebastian, Supreme Court held that Canon laws in Christianity may have religious implications for individual but they are not above civil laws (i.e. Indian Divorce Act, 1869).⁶

Indian Constitution empowers the Supreme Court and High Courts to enact judicial reforms. However, excessive use of these powers may lead to judicial overreach. To prevent this we need a statue like UCC. 

Holistic thinking is essential when debating about UCC that would cover entire nation, including sexual and gender minorities. These communities lacks legislation that addresses their marriage, adoption, succession, and divorce as being excluded from personal laws.

Reference Case laws:

1. Delhi High Court. Raj Kumar Sharma vs. Rajinder Nath Diwan. AIR1987 Del323
2. Supreme court of India. Revanasiddappa vs. Mallikarjun. 2023 INSC783
3. Supreme Court of India. Moro Vishwanath vs. Ganesh Vithal. (1873) 10 Bom.444
4. Delhi High Court. Sujata Sharma vs. Shri Manu Gupta. CS(OS)--2011/2006
5. Supreme court of India. Shayara Bano vs. Union of India. (2017)9 SCC1
6. Supreme court of India. Molly Joseph vs. George Sebastian. AIR1997 SC109