UNIFORM CIVIL CODE.....

 

UNIFORM CIVIL CODE, ONE NATION ONE LAW, A REAL NEED OF AN HOUR IN INDIA WITH RESPECT TO MARRIAGE, ADOPTION, DIVORCE, MAINTENANCE AND SUCCESSION, WOMENS RIGHTS, GENDER DISCRIMATION AND SOCIAL ILLS IN THE SOCIETY.

 

Recently Government of India has initiated a debate on Uniform Civil Code.  There are voices raised for and against this Uniform Civil Code, some possess a moderate view and some are forcibly trying to give it a religious colour.  The current dispensation is already targeted by many as regards their so called extremist view.  Today the false propaganda has been at the front which has affected the very attempt of the Government of India to bring the unanimity amongst the people of India before introducing any legislation in the Supreme Houses of Democracy.  The matter is placed before all the intellectual class, civil society and the religious heads so that a common and comprehensive dialogue can bring the entire nation under one law.

 

India is a Secular country having huge population of different caste and creed which turns to be approximately 1.32 billions. Therefore it is but natural that in secular country like India, people belonging to various religious dominations have been conceded to the constitutional freedom to be governed by their respective personal laws with respect to certain sensitive matters like marriage, divorce, maintenance and succession. The policy of preserving personal law was so strictly adhered to, that the constitution proclaims in Article 372 that the law enforce in the country before the commencement of the constitution shall continue to remain in force until altered or repealed or amended by a competent legislature or any other competent authority.

 

In India each community has its own personal law.  Personal laws in India deal with marriage and divorce, maintenance, guardianship and succession, joint family and partition, and can broadly be characterized as ‘Family Law’. Since personal law deals with the relationship between private individuals, it is clear that personal law cannot be public.  Presently in India Hindu Law, Muslim Law, Christian Law and Parsi law are the broad personal laws.  Before going in to the details, it is necessary to have a look on Women Rights under different Personal Laws.

WOMENS RIGHT UNDER DIFFERENT PERSONAL LAWS

 

Womens	Hindu Law	Muslim Law	Christian Law	Parsi Law
Rights	Women have been elevated to the level of divinity.  As per tradition, a woman has limited freedom.  She is dependent entity in a household dominated by male members.	Women have been recognized as legal entity and gave her all rights than man enjoyed. The status of women by instituting rights of property, ownership, inheritance, education, marriage and divorce.	Christianity emerged from Patriarchal societies that place men in position of authority in marriage, societies & government. They are working as religions sisters and nuns, played an important role in Church life also in schools, hospitals, nursing homes.	Parsi women are discriminated against by laws which have no basis in the communities religions belief. Parsi community having 90% literacy.
All the codified and non-codified religions have been dominated and controlled by men, so all the tenets propounded in them push women to a subaltern status.  This can be delineated by examples from some important religions.
	She is seen as merging her identity with her husband and the two are considered one entity, represented by husband.	She is equal to half a man for all legal and social purposes.	She is having low status, chose to view Eve and by extension women as source of evil and sin in the world.	She share the fear of extinction of community and most of them have resisted changes in their personal laws.

 

MARRIAGE UNDER DIFFERENT PERSONAL LAWS

 

Marriage	Hindu Law	Muslim Law	Christian Law	Parsi Law
Under Different Personal Laws	Hindu conception of marriage is totally divine and the marriage bond is unbreakable and even the death of the husband cannot free the wife of the bond of marriage. While Young she remains under control of father, after marriage under the control of her husband and on his death under control of her sons.	Marriage (Nikah) is defined to be a contract which has for its object the procreation and the legalizing of children. The institution of marriage in Islam has three aspects, legal, social and religions.  Legally, it is a contract and not a sacrament. In India, marriages among all sets of Muslims are usually solemnized by Kazis or Mullas in presence of witnesses. The other things involved are Mehr, Polygamy.	The laws regulating to solemnization of marriage among Indian Christians is the Christian Marriage Act of 1872. Three sets of authorities are provided for the solemnization of marriage, i.e. Minister of Religion, Marriage Registrars and Persons licensed to solemnize.  Registration of such marriage is compulsory.	The parsis in India are believed to be the descendent of Iranian Zoroastrians.  Parsi Personal law is based on Hindu Custom and the rules of English Law.  Marriage is required to be registered under Parsi Marriage and Divorce Act, 1936. Immediately on the solemnization, the marriage should be certified by officiating priest & witnesses.

 

In order to avoid the confusion amongst the people, a Special Marriage Act, 1954 was enacted which provides a special form of marriage which can be taken advantage of any person in India with some conditions relating to solemnization of special marriage.

 

DIVORCE UNDER DIFFERENT PERSONAL LAWS

 

Divorce	Hindu Law	Muslim Law	Christian Law	Parsi Law
Under different personal laws	Hindu Marriage Act, 1955 was enacted.  Divorce was introduced for protection of helpless women when they were ill-treated.  Vital and dynamic changes in the Hindu Law of Marriage and Divorce were introduced in the Act, 1955. Section 13, laid down clear provisions for divorce under certain circumstances. Section 14 renderes the provision of divorce a bit difficult as no petition for divorce can be filed within one year of marriage except in exceptional hardship. Section 15, lays down the limitations on the rights of divorced persons to re-marry.	Under Muslim Law, the husband has the unilateral power of pronouncing divorce on his wife without assigning any reason without an cause, literally at his whim, even in a jest or in a state of intoxication and without any resource to the court or any other judicial, administrative authority, even in her absence, by just uttering the formula of Talak. It has been still in existence in Modern India. Under Digital progress of India, the Divorce under Muslim law has attained the highest humiliation to women as they are divorced on whatsapp and facebook like social medias.	The Indian Divorce Act amendment in 2001 deals with divorce among Christian.  Roman Catholics do not come under the purview of any divorce proceeding since their Church has not recognize Divorce.  It does not provided for divorce by mutual consent. Since 1869, Indian Divorce Act did not undergo any major changes and thus Christian Law of divorce in India remained embedded on the principles of Victorian vintage for more than a century and a quarter.	The Parsi Marriage and Divorce Act, 1955 governs divorce for Parsis in India.  If consummation of marriage is imposable because of natural cause, such marriage can be declared null and void at the instance of either party. Their amendment Act, 1988 provides for divorce by mutual consent.  Divorcee women can claim maintenance for her spouse through criminal proceeding or/and civil proceeding. Either party can present a petition for dissolution of marriage by a decree of divorce.
Under most of the Indian Personal Laws, there is a period of wait after a decree dissolving the marriage is passed, before the expiry of which spouses are not free to remarry.  The provision is identical in the Hindu Marriage Act, Special Marriage Act and the Parsi Marriage and Divorce Act.

 

MAINTENANCE UNDER DIFFERENT PERSONAL LAWS

 

Maintenance	Hindu Law	Muslim Law	Christian Law	Parsi Law
Under different personal laws	Section 24 Hindu Marriage Act, 1955 deals with interim maintenance and expenses during proceedings. Section 18 Hindu Adoption and Maintenance Act, 1956 defines maintenance as provision for food, clothing,  education and medical attendance and treatment. Under Hindu Law the wife has an absolute right to claim maintenance from her husband.  A person has obligation to maintain his wife, children and aged parents. Maintenance can also be claimed under section 125 Cr.P.C. and Protection of Women from Domestic Violence Act, Section 20.	The personal law statutes governing a Muslim woman’s right to maintenance are the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of right on Divorce) Act, 1986.  The Muslim law of maintenance differs from the law of maintenance in most other system of law, except wife, in most of the cases the obligation of Muslim to maintain arise only if the claimant has no means or property out of which he or she can maintain herself or himself. Maintenance is called Nafqah, it includes food, raiment, and lodging and other essential requirements for livelihood.	The Indian Christian have no Personal Law and their domestic obligations have to be governed by the English Law and under that law a wife has no common law right to suing her husband for maintenance. In Indian Divorce Act, 1869 the right of only wife to maintenance, both alimony pendent lite and permanent.   Permanent alimony can be granted only in case of dissolution of marriage or judicial separation as per Section 37 of the Act. The husband doesn’t have the same right under the said act, it can be claimed only by the wife.	Under Special Marriage act and Parsi Marriage and Dissolution Act the needy spouse, can apply for interim maintenance while under the Indian Divorce Act only wife can apply for interim maintenance.  The Parsi Marriage and Divorce Act, 1936 provide for maintenance Pendent lite and for permanent alimony and maintenance. After the amendment the provision has been brought at par with the Hindu Marriage Act, 1955, now even a husband can seek maintenance.

 

INHERITANCE AND SUCCESSION RIGHTS IN DIFFERENT PERSONAL LAWS.

Inheritance &	Hindu Law	Muslim Law	Christian law	Parsi Law
Succession rights under different personal laws	The Hindu Succession Act, 1956 makes a new era in the history of social legislation in India. Stridhan – Derived from Stri (Woman) and Dhana (property). The Hindu Women Right to Property Act, 1937 was hailed as opening a fresh chapter in the history of woman’s right to property. This landmark legislation conferred ownership rights of women. It brings revolutionary changes in Coparceners and also in Law of Partition, alienation of property, inheritance and adoption. Amendment of 2005, brings status of daughters equal to that of a son as coparcener.	The body of Islamic Law is referred to as Sharia or The Clear Path.  This emanates primarily from four sources.  The Quran, Sunna, Qiyas, and Ijma.  The Muslim law of Succession and inheritance has been derived from Quaranic Verses. It is completely different from Hindu Law.  In Holy Quaran daughters are given rights of inheritance from their parents, wives from husband and mothers from their children.  It has changed the status of women in an unprecedented fashion. The law of inheritance provides for fixed shares which take precedence over the succession of the next of kin to the residue. Mothers get 1/3rd Share. Maternal Grandmother get 1/6th share. Widow get 1/4th Share.	Christian as a general law to the inheritance and succession are entitled to equal shares on inheriting the property on the death of a person. The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance, baring exceptions to Hindus, Sikh, Jains, Buddhists and Muslims as they are governed under separate laws of succession. There is no discrimination between sons and daughters with regard to the distribution of the intestate father’s property. The law for Christian does not make any distinction between relations, through the mother or father.  The relations from paternal and maternal sides are equally related to the intestate.	Like Hindus and unlike Muslim Law, there were separate rules for the distribution of the assets of a male and a female.  A parsi woman is accorded no protection against arbitrary decision either.  A parsi Male is not bounded by any such law. The son is entitled to equal share of the mother’s property along with daughter.  The daughter is not entitled to the same right when she inherits the property of her father.  The son’s share in his father property is twice that of a daughter. When a Parsi woman dies intestate, the property is divided equally among the widower and children. Male is not bound by any such restriction.

 

ADOPTION UNDER DIFFERENT PERSONAL LAWS

 

Adoption	Hindu Law	Muslim Law	Christian Law	Parsi Law
Under different personal laws	In view of the Dharmasastras, the adoption was looked mostly as sacramental law rather than a secular law.  In earlier days it was believed that only sons were capable of carrying forward the family lineage. During those days there was a strong belief that if a Hindu dies without having a song he would go to Hell. After the codification of Hindu Law, a system is placed for the society under the Hindu Adoption and Maintenance Act, 1956 including the legitimacy and illegitimacy of the child. The condition precedent of age difference of 21 years was incorporated to avoid the social evil.  The rights of the adopted son in the pre-adoption family and post adoption family were regularized. The act has provided the requirements of valid adoption, eligibility both adoptive and adopted, capacity of a Hindu under the distinct provisions under the Hindu Adoption and Maintenance Act, 1956.	Under Muslim law, the process of child adoption has been a foreign subject… it is neither been accepted nor recognized.  In Islam there is a concept of Paternity.  Therefore adoption is forbidden in Islam. The Personal Law is silent on childless couple.  Even it there is a adoption then adopted children will have no property rights under Muslim Law. The adoption is customary under Muslim Law, thererfore anybody desires to adopt a child has to first prove the existence of custom. Otherwise the Non-Hindus desirous of adopting a child can only take the child in guardianship i.e. The Guardian and Wards Act, 1890. The judicial intervention at the Apex court has extended the right to adoption to Muslims.  There is no legislation in existence to safeguard orphaned Muslim children. The right to adopt under Muslims is governed by Juvenile Justice Act as the Act will take precedence over all personal laws and religious rules in the country.	The personal laws under the Christianity do not recognize adoption.  The adoption can be taken place from an orphanage under the permission from the court of law under the provisions of Guardian and Wards Act.  The Christian has no adoption law. The adoption is a personal law issue as it is a legal affiliation of a child. A Christian can only take a child into foster care under the act. After the introduction of various amendments to the Juvenile Justice Act, 2002, the Christians can adopt a child under the act as it is having precedence over all the personal laws and religious rules in the country. The different courts have taken diverse views relating to adoptions in the case of orphans, adoption from the original parents or biological parents or guardians.  But at present there is no legislation in existence as rescue to adoption in Christians.	The personal laws under the Parsi law do not recognize adoption.  The adoption can be taken place from an orphanage under the permission from the court of law under the provisions of Guardian and Wards Act.  The Parsis has no adoption law. The adoption is a personal law issue as it is a legal affiliation of a child. After the introduction of various amendments to the Juvenile Justice Act, 2002, the Parsis can adopt a child under the act as it is having precedence over all the personal laws and religious rules in the country. The different courts have taken diverse views relating to adoptions in the case of orphans, adoption from the original parents or biological parents or guardians.  But at present there is no legislation in existence as rescue to adoption in Parsis. Here too there no legislation is in existence for Parsis for adoption.

 

 

 

GENDER DISCRIMINATION & SOCIAL ILLS IN INHERITANCE IN PERSONAL LAWS

Gender	Hindu Law	Muslim Law	Christian Law	Parsi Law
Discrimination & social ills in Inheritance in Personal laws	Prior to the Act of 1956, Hindus were governed by Shastric and Customary laws which varied from religion to religion, and sometimes it varied in the same religion on the basis of caste. A woman was humiliated, neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.	In the present scenario women as mothers, wives, daughters and widows do not have equal rights, while Quran gives equality to them.  The customary practices are highly discriminatory and it excluded daughters and widows in the bottom line of the succession order. Women are kept in dark.  Most of her rights are confined within the pages of the rule book. Most of the women are not aware about their right under Islam and who are aware have never asked for it.	In Indian Succession Act, 1925, the right of Christian widow is not exclusive and gets curtailed as the other heirs step in.  Only if the intestate has left none who are of kindred to him, the whole of his property would belong to his widow. If there are any lineal decedent then only 1/3rd share devolves to his widow. Another anomaly is that the widow of pre-deceased son gets no share, but children whether born or in the womb at the time of death would be entitled to equal share.	Parsi women were discriminated against by laws which have no basis in the community’s religious belief. Parsis having 90% literacy have among the most unjust inheritance laws in the country today.  This finally only goes to prove the discrimination and gender biases do not disappear with progressive education.

 

 

In our Constitution of India, a woman is although awarded with the fundamental right of gender equality and right to life and liberty, ensuring dignified and equal status to that of a man.  But in actual practice they are observed more in breach than in compliance position.   In India, women professing any religion, Hindu, Muslim, Christian, Parsis etc., enjoy some rights which govern various aspects of their lives such as marriage, adoption, divorce, maintenance, inheritance, succession.  Her virtues, vices, strength, and her weakness are assumed on religions practices and religions norms. The evaluation of the status of women in India has been a continuous process of ups and downs since ages. 

 

Now a days the equality before law has been scrupulously asked and followed.  Recently India has seen various traditional changes while preaching and practicing the respective religious beliefs.  This is the indication of change.  Every Indian may it be woman or a man desires for change for their own empowerment.  The ironical situation is that Indians have placed the women on a very high pedestal and they are worshiped and honored as Goddess, but in practice we show no concern honor.  Despite of the 75 years of Independence the Women Reservation Bill is still under carpet and not seen the light of the day.

 

There is an inherent discrimination against women in the Indian social structure. This prejudice is widespread even among the educated and enlightened people. Education is the most powerful instrument for changing women’s position in society. Education for women lays an important role in women’s empowerment. Education boosts a women’s self-esteem, her self-confidence, her employment opportunities and her ability to deal with the problem of the world around. One cannot teach self confidence and self esteem; one must provide the conditions in which these can develop. Education helps girls and women’s to know their rights and to gain confidence to claim them. Education is important for everyone, but it is a critical area of empowerment for girls and women’s. This is not only because education is an entry point to opportunity but also because a woman’s educational achievements have positive ripple effect within the family and across generation.

 

Upon comparing the rights of the woman pertaining to Marriage, Adoption, Divorce, Maintenance, inheritance and succession amongst the above religion and religious beliefs, there is the disparity despite we the Indians being equal before the law as our Preamble prescribed.  In order to remove the anomaly amongst the women of different religious belief, it is very required to bring the common legislation for not only all the women but men across the religious belief in India and for that the Constitution of India specifically prescribes the Uniform Civil Code under Article 44, which is the need of an hour to place all the citizens on the same and equal platform. ONE NATION ONE LAW is the only prerequisite of Uniform Civil Code as prescribed under The Constitution of India.

 

Jayant Aloni

159, Surendra Nagar,

Nagpur 440015