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Mainstream, VOL LV No 15 New Delhi April 1, 2017

On Uniform Civil Code

Sunday 2 April 2017, by Eduardo Faleiro

The question of a Uniform Civil Code is one of the most controversial issues in Indian politics today. The Uniform Civil Code is intended to replace personal laws based on customs and religion of the major communities of India by one common law covering marriage, divorce, inheritance, adoption and maintenance and governing every citizen.

Article 44 of Constitution, a Directive Principle, says that the State should endeavour to secure for all citizens an Uniform Civil Code through-out India. This provision does not supersede Article 25 on the Fundamental Right to freedom of religion. Pandit Nehru supported the idea of an Uniform Civil Code but did not want it to be forced upon any community.

In 2003, replying to my special mention in the Rajya Sabha, the then Union Law Minister, Arun Jaitley, stated that the Uniform Civil Code was not on the agenda of the government. He said that regarding personal laws, the policy of the government was to enter into consultation with the religious communities concerned. This approach of the Vajpayee Government has obviously been set aside. Recently, the Govern-ment of India urged the Supreme Court to examine the validity of Triple talaq and the legality of polygamy. The Supreme Court refused to hear the Uniform Civil Code issue along with the Triple talaq matter. The hearing on Triple talaq will begin in the Supreme Court on May 11 next.

Triple talaq is based on the Shariat Law. Under this law, a husband can divorce his wife on pronouncement of talaq in three successive ‘tuhrs’, broadly three consecutive months. The first and second pronouncements are revocable. It is the third pronouncement that dissolves the marriage. A later day innovation is the pronouncement of talaq at one sitting called talaq-e-bidat to get an incorrigibly acrimonious couple part ways as quickly as possible.

Justice Baharul Islam of the High Court of Orissa, later a Supreme Court judge, held in the Jiauddin Ahmed vs Anwara Begum (1978) case that “The correct law of talaq as ordained by the Holy Quran is that talaq should be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected.”

In the 20th century, several Muslim countries have modified the Islamic personal law. Turkey adopted a modified Swiss Civil Code in 1926 taking away the religious inputs and allowing for judicial control. Egypt framed a law in 1929 terming the Triple talaq pronouncement at one sitting as a single pronouncement open to easy revocability. In Iraq, since 1959, divorce can be effected only after approval by the personal status courts. Algeria has adopted the same law making further provision for completing the reconciliation process within 90 days. In 1963, the Pakistan Supreme Court ruled against Triple talaq at one sitting. In Tunisia since 1956, divorce is possible only through a court which examines if there is scope for rapprochement between the parties before granting the relief sought.

Indonesia is the largest Muslim majority country in the world. Their national motto is ‘unity in diversity’. Religious diversity is recog-nised through freedom of religion provisions in the Constitution and through the recognition of the legal consequences of religion. For example, Muslims have Islamic family and inheritance laws applied to them and Christians have their religious marriage given automatically the legal effects of a civil marriage. Indonesia takes religious pluralism seriously as a means of respecting the diversity of its citizens. Islamic personal laws are enforced in several countries where Muslims are in a minority such as in Britain, Israel, Sri Lanka, Thailand, Singapore, Uganda, Ethiopia, Ghana, Kenya and Tanzania.

In India, we have the Special Marriage Act, 1954 which is optional and enables every Indian citizen to marry outside the realm of his or her religious personal law. The Special Marriage Act is available throughout India except in Jammu and Kashmir. Under this Act, polygamy is illegal and inheritance and succession are governed by the Indian Succession Act.

On the question of polygamy, the community- wise data as per the census of 1961, the last census to record such data, is Adivasis 15.25 per cent, Buddhists 7.9 per cent, Jains 6.72 per cent, Hindus 5.80 per cent and Muslims 5.70 per cent. In Mizoram, a Christian sect practices polygamy. Polygamy is decreasing continuously in every community.

It is sometimes alleged that Goa is one State in India with a Uniform Civil Code. This is not true. Some usages and customs of Hindus and Muslims have been safeguarded by the Civil Code operating in Goa. For instance, Catholic marriages in Church have civil effects automatically whilst in other communities the marriage has to be registered before the Civil Registrar. Adoption is not permitted to Catholics and Muslims whilst it is permitted to Hindus.

On invitation from the Governor of Goa a delegation consisting of twentyfive highly qualified Muslim women doctors, writers, engineers, social workers, advocates, students and housewives met the Governor at Cabo Raj Niwas on October 14 last. They opposed the idea of a Uniform Civil Code and expressed satisfaction with the present Muslim personal law in the country. All questions related to legal aspects of marriage, inheritance, adoption, joint or nuclear family, divorce etc. were answered in the light of the Holy Quran and the teachings of the Prophet and it was clear that all the members of the delegation were in favour of the Muslim personal law as it exists in the country at present. They pointed out difficulties faced by the Muslim community in the working of the Civil Code in Goa.

The Union Government seeks to enact a Uniform Civil Code, irrespective of religion, whilst there are still some laws that provide economic and social benefits merely on the ground of religion. The Constitution (Scheduled Castes) Order of 1950 states that only Scheduled Caste persons who profess the Hindu religion can be treated as Scheduled Caste. The Scheduled Caste status was extended to Sikhs and Buddhists of Scheduled Caste origin in 1956 and 1990 respectively.

Given the fact that Scheduled Caste status and benefits which go with it are aimed at redressing historical caste-based socio-economic deprivation, the Dalit Muslims and Dalit Christians have a compelling case for the Scheduled Caste status under the Constitution. People of Scheduled Caste origin, converts to Christianity or Islam, may have changed their religion but this did not alter their social or economic status. The Constitution (Scheduled Caste) Order should be amended and all benefits under it should be available also to Christians and Muslims of Scheduled Caste origin.

A Consultative Committee may be constituted by the government consisting of former Supreme Court and High Court judges mainly from the Muslim community, moderate religious scholars and women representatives to assess the viability of a Uniform Civil Code. It should uphold communal harmony in a manner that every community is confident that its religious and cultural identities are not threatened.

The author is a former Union Minister now based in Goa.

ISSN : 0542-1462 / RNI No. : 7064/62