Impact of Uniform Civil Code on Muslim personal law

This article discusses the need for the Uniform Civil Code in India and its impact on the Muslim personal law after its implementation. UCC which is defined under Article 44 of the Indian Constitution is one of the DPSPs. The main findings of this research are that the demand for the implementation of UCC in India came to the fore in the Judgement of Shah Bano Case, 1985, and it became one of the most controversial political issues. Indians are striving hard to have UCC in India for the past three and a half decades. But till today no attempt has been made to implement it. The purpose of this article is to analyze what kind of impact UCC would have on Muslim Personal Law, which predominantly gives more rights and freedoms to male than a female. Hence, to bring about gender equality and justice and national harmony, UCC is essential.

Introduction

India is a diverse country with multiple religions and ethnicity living within its borders. It is a secular country that gives “freedom of religion” to all the persons. This is reflected in our legal system in the form of religion-based personal laws. The citizens belonging to various religions are governed by their own personal laws.

Uniform Civil Code or simply UCC is one of the directive principles of state policy and is defined under Article 44 of the Indian Constitution as “the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” A UCC here refers to a single law, applicable to all citizens of India in their matters such as marriage, inheritance, divorce, adoption, and custody. It is intended to replace the system of fragmented personal laws, which govern interpersonal relationships and related matters within different religious communities.

UCC is a directive principle which is enshrined in the Indian Constitution as a goal towards which the nation should strive, but it isn’t a fundamental right or a constitutional guarantee. One can’t approach the court to demand a UCC.[1] But the state must make use of DPSPs in implementing policies. Goa is the only Indian state which has implemented UCC but has many drawbacks. The need to implement UCC has come to achieve gender equality and national harmony in the country. But it is widely opposed by the Indian Muslims as UCC would take away the freedom of religion give to them.

Impact on Muslim Personal Law

The implementation of UCC in India in the present situation is one of the most controversial issues which have been witnessed by the country. The first difficulty in the way of implementation of UCC is that it clashes with Art.25 of the Indian Constitution which guarantees freedom of religion to all. Also, there is a large opposition from the Muslim community. The reason is, with the coming of UCC Muslim personal law would be affected to a larger extent. 

Hindu personal laws have been by and largely secularized and modernized by statutory enactments. The Hindu personal laws (that apply also to the Sikhs, Jains, and Buddhists) have been codified by the Parliament in 1956. This Code Bill has been split into four parts: The Hindu Marriage Act, 1955 The Hindu Succession Act, 1956 The Hindu Minority and Guardianship Act, 1956 The Hindu Adoption and Maintenance Act, 1956.

On the other hand, Muslim personal laws are still primarily unmodified and traditional in their content and approach. The Shariat law of 1937 governs the personal matters of all Indian Muslims in India. It clearly states that in matters of personal disputes, the State shall not interfere and religious authority would pass a declaration based on its interpretations of the Quran and the Hadith.[2] With the implementation of UCC in India, it’ll have a larger impact on customs and practices followed only by the Muslims under their law.                                                   

1.     Impact on “evil customs” practiced under Muslim Personal Law

·       The Triple Talaq:

Talaq or divorce under Muslim personal has always been a matter of debate in the whole country since the implementation of the Shariat law. There have been numerous protests among the various other religious groups of the country opposing the instantaneous, unilateral, and irrevocable divorce by Muslim men which are considered as a customary practice among Muslims.

This practice allowed a Muslim man to divorce his wife just by uttering the word “talaq” thrice instantaneously. As a result of which the divorce cases among Muslims increased. This issue was absolutely against women and people all over the country specifically the most affected Muslim women were protesting for the abolition of this inhumane practice. This practice was against legal practices and was immoral.

This was questioned in the case of Shayara Bano and Ors vs. Union of India[3], 2017 and the Constitutional Bench of five Judges with the ratio of 3:2 decided that this is an immoral practice which violates Articles 14, 15(1), 21 and 25 of the Constitution and abolished the practice of Triple Talaq in India, though it was contended by the Respondents that talaq-e-bidder is an age-old practice of their religion. But the bench did not address the core issue: whether personal laws prevail over fundamental rights and regarding the implementation of UCC. With the setting up of UCC, triple talaq would have been automatically abolished.

·       Polygamy:

Polygamy is a widespread practice among Muslims. A Muslim male can marry up to 4 wives without giving divorce to his previous wives and it’s not considered as a crime under IPC which punishes a person for practicing bigamy. Also, if a Muslim woman marries more than one man, then she is punished for committing bigamy under S. 494 and 495. The only exception is given to Muslim males and it violates Article 14, 15(1), and 21 of the Indian Constitution.

The practice of Polygamy has been questioned in various cases: State of Bombay vs. Narasu Appa Mali[4], Sarla Mudgal vs. UOI[5] and also in Shayara Bano vs.UOI1. But till today the practice has not been abolished in the name of custom. If the UCC is implemented then this immoral, inhumane practice can be abolished, and thus, the Justice can be upheld.

·       Nikah Halala:

This is another immoral practice among Muslims, where if a divorced woman wants to marry her husband again who has divorced her, then she has to undergo nikah (marriage) with another man and lead a marital life, then get talaq (divorce) from him to marry her previous husband. This was a custom practiced for ages but in the reality, women have to suffer a lot because of this practice, and with the bringing of UCC in India, Nikah Halala can be easily abolished as it is practiced only among Muslims.

·       Iddat:

One of the significant changes which the Muslim law would undergo with the implementation of UCC would be the abolition of the practice of Iddat. Iddat is a practice under the Muslim Law which a woman has to undergo before she gets married for a second time after getting talaq from her husband or after the death of her husband. Until the iddat does not get over, she cannot marry. Iddat period varies from 3 months to 1 year (if she becomes pregnant). The purpose of this practice was to see if the woman gets pregnant after getting a divorce or after becoming a widow. Three months of iddat must be followed by such a woman and if she does not gets conceived, and then she can go for a re-marriage. But in this technological era, practicing iddat has no meaning at all. But it is still practiced in the name of custom, due to which such a woman has undergone pain. Hence, the implementation of UCC would abolish this evil practice.

2.     Impact on Adoption

Adoption is one of the major issues in India. No other personal laws except Hindu Law allow the coupes to follow the practice of adoption. The procedure relating to adoption is governed by the Hindu Adoption and Maintenance Act, 1956. As a statutory provision, the Muslim personal does not allow the practice of adoption. The Muslim couples cannot legally claim that they are the parents of the adoptive child.[6]

Thus, the implementation of UCC would drastically affect the Muslim personal law. The laws relating to adoption can be made applicable to all Indian Muslims. The Muslim parents can legally claim the status of the adoptive child and the child becomes entitled to inherit the property of his adoptive father. Hence, with the bringing of UCC, the adoptive child of Muslim parents becomes as good as their natural child.  

3.     Impact on Inheritance and Succession

The provisions regarding the inheritance and succession differ from one religion to another. Under the Muslim law in the case of intestate inheritance, the sons will receive a share as equal to the share of two daughters. The mother of the children would be entitled to one-sixth share in the property of the deceased husband. Under Sunni law, an illegitimate child is entitled to a share in the mother’s property. However, Shia law does not permit any kind of share in the property of either of the parents. 

Therefore, with the implementation of the Uniform Civil Code, it’d result in a codified law enforced in the context of rules of inheritance and succession. A stable structure of share would be established and illegitimate and adoptive children also become entitled to inheritance and succession.

4.     Impact on Contractual Marriage

Muslim marriages are considered to be a contractual obligation for the parties. Under the Muslim personal law, a marriage is being solemnized between the two parties only when there is a proposal being made by one party and accepted by the other with the consideration being given. Unlike marriages under Hindu Personal Law which are considered as a sacrament, Muslim marriages are considered as contracts. The implementation of UCC would abolish the contractual system of marriages. Also, the registrations of marriages would become compulsory. 

5.     Impact on Maintenance

The Supreme Court for the first time directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan vs. Shah Bano Begum[7], popularly known as the Shah Bano case. In this case, Shah Bano, a 73-year-old woman was given triple talaq from her husband after forty years of their marriage. She claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure. Though she was initially granted maintenance by the verdict of the lower court, the judgment was challenged in the Supreme Court. Then the Supreme Court ruled in her favor in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of CrPC.

It further recommended for setting up of Uniform Civil Code.  Soon this became a nationwide political issue.  However, the government overturned the Shah Bano case decision by way of Muslim Women (Protection of Rights on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure and she is entitled to maintenance only during the iddat period. 

But later in the case of Danial Latifi vs. UOI[8] the court held that the provision regarding maintenance should be fair and reasonable and the constitutional validity of the Muslim women Protection Act, 1986 was also upheld in this case. But still, Muslim women have no proper law to claim maintenance from their husbands.

Hence, with the implementation of UCC, Muslim women can claim maintenance for their livelihood. Gender Justice and equality would be upheld with the setting up of UCC.

Conclusion

Hence, with the above analysis, we can conclude that the Uniform Civil Code will have a larger impact on the Muslim Personal Law than any other personal laws in the country. Some of the customs and practices followed under the Shariat are immoral, against public health and order as mentioned under Article 25 and thus are unconstitutional, violating “Right to equality” under Article 14, Article 15 and “Right to live with human dignity” under Article 21 of the Indian Constitution. And with the implementation of UCC such practices can be abolished.

Thus, we can say that the UCC in India is the need of the hour. The only aim of UCC is to take the country towards gender equality and justice. The implementation of UCC will also result in the equality of all religions in the country. Though UCC clashes with Article 25 of the Indian Constitution as claimed by the Indian Muslims, the goal of UCC is to bring about national integrity without violating the rights of the citizens of India. Therefore, UCC must carve a balance between the protection of fundamental rights and the religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious and political considerations. India is a secular country and to maintain national harmony UCC is essential.

FAQs

  1. Is the implementation of UCC in India essential?
  2. What are the difficulties for the implementation of UCC in India?
  3. Can Directive Principles of State Policies prevail over Fundamental Rights? If yes, in what circumstances?
  4. Explain the cases of Shah Bano and Shayara Bano.
  5. What is the impact of the Uniform Civil Code on Muslim Personal Law?

References

  1. https://blog.ipleaders.in/ucc-in-muslim-personal-law/
  2. https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters
  3. https://www.thehinducentre.com/publications/issue-brief/article29796731.ece
  4. https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece
  5. https://www.drishtiias.com/to-the-points/Paper2/uniform-civil-code
  6. The judgment of Shayara Bano case, 2017, 1951 SCC Online Bom 72
  7. The judgment of Shah Bano case, 1985, 1985 (2) SCC 556
  8. Judgment of Daniel Latifi case (2001) 7 SCC 740, Narasu Appa Mali case, 1951 SCC Online Bom, and Sarla Mudgal case, (1995) 3 SCC 635

[1] https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters

[2]  https://www.drishtiias.com/to-the-points/Paper2/uniform-civil-code

[3] (2017) 9 SCC 1

[4] 1951 SCC Online Bom 72: AIR 1952 Bom 84

[5] (1995) 3 SCC 635

[6] https://blog.ipleaders.in/ucc-in-muslim-personal-law/

[7] 1985 (2) SCC 556: AIR 1985 SC 945

[8] (2001) 7 SCC 740

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