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: isaacgomes@hotmail.com
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