Legal Articles

Towards Uniform Personal Laws

The issue of Uniform Civil Code (UCC) has been a subject of debate amongst the lawyers, jurists, academia as also the judiciary and has been intermittently coming up before the courts. And now a few days back a petition has been filed before the apex court assailing the diversity in the provisions of the family laws such as alimony, maintenance, divorce, custody, etc, in the different family law statutes in our country. It has been alleged, and rightly so, that this causes hardship to many people placed in similar situation but belonging to a different religion and are therefore discriminatory. The Court has sent notice to the ministry of home affairs, ministry of law and justice and ministry of women and child development. While article 44 of the Constitution provides for the attainment of uniform civil code as the goal, the Constitution mandates liberty and equality of all irrespective of caste, community, gender or religion. And it is common knowledge that a set of different personal laws governing people belonging to different religious beliefs cause hardship to women within their own law as also discriminate people belonging to different religions. It is significant to note that until a few decades back, the disparities, inadequacies and inequities between and within the personal laws were enormous; these have been reduced and the gaps diminished by pragmatic, liberal and practical approach of the judiciary. Strong pleas for reform and enactment of UCC have been made. In Jordan Diengdeh (1985), the Supreme Court, after reviewing the statutory personal laws of different communities, made a strong plea for UCC and sent a copy of the order to the ministry law and justice for proper action. In fact, such plea has been made by courts in various cases. While Article 44 of the Constitution continues to remain a directive because of political wranglings, the judiciary has imperceptibly made substantial advancements in this direction. To take a few examples, Shah Bano supreme court 1985, on maintenance for divorced Muslim wife; Sabani alias Saira Bano, Supreme Court, 1987, on Muslim wife’s right to separate maintenance from her husband who has entered into polygamous marriage, notwithstanding the fact that polygamy is permissible under Islamic law; Daniel Latifi, supreme court, 2001, on divorced  Muslim wife’s right to maintenance under the provisions of the Code of Criminal Procedure; Shayara Bano, supreme court, 2017,declaring triple talaq as unconstitutional; Ammini E J, 1995 Kerala,reading down section 10 of the Divorce Act( Christian law) and striking down a few words in the section as ultra vires being gender discriminatory; Saumya Ann Thomas, Kerala 2010 separation period of two years for obtaining divorce by mutual consent under section 10A, Divorce Act reduced to one year to bring it in conformity with other personal laws, and so on. However, despite endeavour by courts to avoid discrimination and give meaningful relief to parties irrespective of their religious affiliation, there are areas of concern where concerted move and clarity is required, e.g., on grounds of divorce there are still variations in different personal laws, Also specific provisions on marriage after conversion is required, especially in view of the fact that certain personal laws permit polygamy. Another issue in the context of uniformity in personal laws is

the plethora of customary laws prevalent in our country with different rules, beliefs and faith some of which may not sound very fair and reasonable too but these have a legal sanction. What really is required is a reform in the different personal laws wherever required and not an imposition of one set of laws on the other. There are the good and not so good points in all systems. We need to weed away the not so good ones and compile a law which is just, fair, equal and in conformity with present socio-cultural conditions. The term Uniform Civil Code has been too much politicised. We perhaps need to change the label without changing the content

About the author

Kusum

Leave a Comment