July 30, 2021

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The ‘ghost’ of the Common Civil Code is coming

Whatever the distance was between the Sangh and the BJP, it is getting erased.

Rajesh Choudhary

It has been 74 years since independence, during which the Constitution was amended 125 times, but the Indian Civil Code did not work in the spirit of Article 44 related to Uniform Civil Code. This was stated in a letter to the Chief Justice of the Supreme Court recently. In this, an appeal has been made to them that a bench should be constituted to hear different petitions filed for uniformity of personal law. Though there is no petition for the implementation of the Uniform Civil Code, but if the existing petitions are looked at in totality, the matter leads to its implementation.

marriage, divorce, succession

At present, there are different personal laws for different communities and religions in the country. Muslim personal law permits four marriages, while other religions, including Hinduism, have a rule of one marriage. What is the minimum age of marriage? There are different rules on this as well. Muslim girls are considered eligible for marriage when they become physically adult (periods start coming). The minimum age of marriage in other religions is 18 years. As far as divorce is concerned, in Hindu, Christian and Parsi couples can get divorce only through the court, but in Muslim religion, divorce is done according to Sharia law. Immediate divorce by uttering talaq three times has now become unconstitutional, but on the basis of the waiting period of three months, talaq-e-hasan and talaq-e-ahsan are still valid. A Muslim has an oral will, while in other religions only a registered will is valid. The adoption rules are also different for Hindus, Muslims, Parsis and Christians.

The Common Civil Code was discussed in detail in the Constituent Assembly. Advocate Ashwini Upadhyay of the Supreme Court points out that during the debate on Article 44, Babasaheb Ambedkar had said, “Practically, there is a civil code in this country, the provisions of which are universal and are uniformly applicable throughout the country.” But there is the area of ​​marriage-succession where a uniform law does not apply. This is a very small area for which we have not been able to make uniform laws. So gradually positive changes should be brought. At the same time, member of the Constituent Assembly K.M. Munshi said that in the last few years religious activities have covered all walks of life. We have to stop this and say that matters like marriage etc. are not religious but a matter of secular law. Another member of the Constituent Assembly, Krishnaswamy Iyer, had said that some people believe that if the Uniform Civil Code is made, then religion will be in danger and the two communities will not be able to live together in a friendly spirit. But the purpose of this article is to increase friendship. Uniform Civil Code will not end but strengthen friendship.

After independence, in 1980, the issue of Uniform Civil Code was raised in the famous Minerva Mills case. Then the Supreme Court had said that harmony and balance between Fundamental Rights and Directive Principles is an important fundamental principle of the Constitution. After this, in the famous Shah Bano case in 1985, the Supreme Court had said that Article 44 of our Constitution has become a dead letter and it is sad. The article talks of a Uniform Civil Code, but there is no evidence of any effort at the government level. In the 1995 Sarla Mudgal case, the top court even said that after all, how much more time will the government take to fulfill the wishes of the framers of the constitution? Then the observation of the court was also that there is no point in keeping the Uniform Civil Code suspended for eternity in the country. Eight years later, in 2003, the Supreme Court once again expressed grief over the non-implementation of Article 44 in the John Balvatam case. At the same time, declaring triple talaq unconstitutional in 2017, the Supreme Court said in the Saira Bano case that we hope that a law will be made keeping in mind the reforms in Shariat on the global stage and in Islamic countries. In 2019, it cited the example of Goa, where the Portugal Civil Code has been in force since 1867, but no effective effort was made to implement the Uniform Civil Code in the country. However, on 31 October 2018, the Law Commission had said that the Uniform Civil Code is neither necessary nor desirable at this stage.

five applications

In the latest development, after December 2020, five separate applications have been filed in the Supreme Court, requesting for uniformity of personal law. In these, it has been requested to unify the rules related to succession for every citizen and to set a kind of ground in divorce cases. In the third application, it has been said that there should be uniformity in the matter of alimony and lump sum amount to be paid for subsistence. In the fourth petition, there is a need to make Adoption and Guardianship Act gender neutral, religion neutral for all religions. There is also an application to raise the age of marriage to 21 years for everyone. Before these petitions, applications have also been filed against polygamy and nikah halala.

If these five applications are seen in totality, then there is no doubt that these matters will decide the future of the Uniform Civil Code. The stand of the central government will give an idea on which side the camel is going to sit. But it is certain that these five applications have brought the genie of the Uniform Civil Code very close to the mouth of the bottle.

Disclaimer: The views expressed above are those of the author.