Every now and then, the Indian Press and enlightened citizens of India, pull up their sleeves for heated debates on the enactment of a Uniform Civil Code (UCC). This means if UCC is enacted, all personal laws on marriage, divorce and property rights in the country would be guided and replaced by one set of laws applicable to all communities of our country.
While the common citizen is happy, there has been stiff opposition from some quarters. The Catholic Secular Forum (CSF) General Secretary, Joseph Dias said in a July 2014 report that Christians were against a Uniform Civil Code (UCC) foisted upon the minorities. He said this reacting to a statement that the law minister plans to introduce UCC as per BJP manifesto and as suggested by the Supreme Court. One wonders how he took it upon himself to become the spokesperson on behalf of the Christian Community.
According to Dias the government’s move “would be ultra vires of the Constitutional right to freedom of religion and gives the impression that the BJP government would like to control especially the minorities and its property or institutions by weakening the authority of religious leadership.” From his statement it appears he is more concerned with the “weakening the authority of religious leadership” than the uniform benefits that will flow to citizens from UCC.
Regarding his statement that Catholic Church has a Canon Law, which is followed all over the world and regulates family issues like, divorce, marriage and inheritance implemented by Ecclesiastical Courts, the fact is it is not the Canon Law but the civil law which prevails in UK, USA, France, Germany in spite of is a high Christian population.
In this context, reference may be made toKerala High Court 10 October 2012 judgement which unequivocally said that Canon Law and also Ecclesiastical Courts come under civil law. “The maxim Roma locutaest, causa finite est (Rome has spoken, case is closed) no longer survives” the court observed in the judgment. The court observed further: “Canon Law, as it exists now, realises the fences erected by civil law and cautiously veers away from any transgression thereof.” Going by this judgement, family issues like, divorce, marriage and inheritance are matters of civil right and therefore comes under civil law and certainly not Canon Law.
The court also pointed out that Canon Law was discussed only to answer the right of the parishioners and it shouldn’t be understood that it would override the civil law of the land. Canon Law can have theological or ecclesiastical implication to the parties, but such personal law cannot have any legal impact, the judge quoted from a full bench decision of the high court that was later upheld by the Supreme Court.
Passport Seva portal stipulates that for applicants born on or after 26.01.89, only Birth Certificate issued by the Municipal Authority or any office authorized to issue Birth and Death Certificate by the Registrar of Births and Deaths is acceptable. On whether for Christians, Muslims and Parsis, marriage certificate issued by Qazi/Church will be accepted as a valid proof of marriage, the answer is only an attested copy of marriage certificate issued by Registrar of Marriage would be accepted. If one has marriage certificate issued by Qazi/Church, then one has to meet Assistant Passport Officer (APO) at the nearest Passport Seva Kendra (PSK).
Many of my friends when they wanted to take their wives abroad were asked to produce Civil Marriage Certificates – the Church Marriage Certificate was not accepted. They had to go to Marriage Registrars for Civil Marriage. Even for Divorces (Decree of Nullity), the pronouncement by the Judicial Vicar of Ecclesiastical Court has no value in a court of law. That is why the Judicial Vicar writes on the judgement copy that the concerned couples should get his judgement RATIFIED in a civil court for he knows that the canon decree issued by the church with regard to marriage annulment is null and void in the court of law. So how can Dias say that Canon Law regulates family issues through Ecclesiastical courts?
India has multiple family laws. The Christians have their Christians Marriage Act 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. The Parsis have Parsi Marriage and Divorce Act, 1936, and their own separate law of inheritance. Muslims have their own personal laws. Hindus law has by and large been secularized and modernized by statutory enactments.
The law is communal insofar as each community or religious group has its own distinct law to govern domestic relations. It is also personal as each person carries one’s own law wherever one goes in India.
The provision for an equitable and non-discriminatory Uniform Civil Code is enshrined in Article 44 of the Constitution. Fali S. Nariman, constitutional jurist and senior advocate, says: “Article 44 provides that the state shall endeavour to secure to citizens a Uniform Civil Code throughout the territory of India.” The Article is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them without religious interference.
The secular activities, such as inheritance in personal laws should be separated from religion. A uniform law would be applicable to all irrespective of religion, caste and creed. Skeptics said that firstly, Uniform Civil Code (UCC) would infringe on the fundamental right of freedom of religion as mentioned in Article 25 and secondly, it would amount to a tyranny of the minority. The first objection is misconceived because secular activity associated with religious practice is exempted from this guarantee and since personal laws pertain to secular activities they fall within the regulatory power of the state. Regarding the second point, nowhere in advanced Muslim countries viz.Turkey, Egypt, Malaysia and Indonesia there is a separate set of laws for minority communities.
For women who constitute almost half the population of India, the UCC will provide equality and justice in courts of law in matters of marriage, divorce, maintenance, custody of children, inheritance rights, adoption etc. irrespective of their religion.
Says Subhash C. Kashyap, constitutional expert and honorary professor at the Centre for Policy Research, a Delhi-based think tank, “The advantage of having a Uniform Civil Code is that every citizen would have to adhere to only one law. It would bring equality before law and, more importantly, equal protection before law.”
In all modern countries there is only one common law for everybody. In India there is only one common criminal law (IPC and Cr PC) for everybody. For instance Muslim law provides stoning to death for a woman who commits adultery, but stoning would be illegal under IPC. A Muslim husband can divorce his wife by saying “TalaqTalaqTalaq” without ascribing any reason, whereas a Muslim wife cannot do so. She has to file a petition in court which takes years to decide and she must make out a ground (adultery, cruelty, etc.).
A Muslim man can marry four wives but a Muslim woman can at a time, have only one husband. Monogamy represents equality between man and woman and this is the age of equality and Women Empowerment. So why should polygamy be permitted to Muslim men under Muslim Personal Law? Up to 1955 a Hindu man could have unlimited wives. This law has been altered by Hindu Marriage Act 1955 which allows only monogamy.
The Supreme Court of India for the first time, directed the Parliament to frame a UCC in 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case, In this case, the penniless Shah Bano Begum claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq by him. The Supreme Court held that Shah Bano had a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. The then Chief Justice of India Y. V. Chandrachud observed that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”
Thus, the apex court has on several instances directed the government of realize the Directive Principle enshrined in our Constitution.
The Preamble of the Constitution states that India is a “secular democratic republic”. This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. A State is only concerned with the relation between human beings. This does not mean one cannot practice one’s religion – it means that religion should not interfere with the life of an individual.
The whole debate can be summed up by Justice R.M. Sahai’s judgment. He said: “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedom are not autonomy but oppression. Therefore, a unified code is imperative, both for protection of the oppressed and for promotion of national unity and solidarity.”
In all modern countries there is only one common law for everybody. Nowhere in advanced Muslim countries (Turkey, Egypt, Malaysia and Indonesia) has the personal law of each minority been recognized to prevent enactment of a civil code. In the West, most countries including the USA have a civil code and everyone has to abide by it without crying “minority”. If Joseph Dias visits these countries would he dare to say there that UCC would be “ultra vires of the Constitutional right to freedom of religion?”
It is the high time that India had a uniform civil law which would incorporate the most modern and progressive aspects of all existing personal laws and discard those that are retrograde.
Isaac Harold Gomes, Kolkata
Member - ICPA
Tel: +09433060603 E-mail: firstname.lastname@example.org