Uniform Civil Code of India – NOT a Muslims Issue

The voices demanding a “Uniform Civil Code for India” have been on a steady increase over time. Many think that only Muslims in India enjoy a special privilege and Uniform Civil Code will bring the Indian Muslims in line with the rest of the country. The media also show Muslim images whenever there is a discussion on the Uniform Civil Code giving an impression that the Uniform Civil Code of India will only impact Muslims. The truth is the opposite.

There are also some who believe in “One Nation, One Law”. Some say, the Constitution wants a Uniform Civil Code for India, therefore we must implement it. Let’s analyse it in detail.

Let’s begin with the basics as many support or oppose Uniform Civil Code without knowing what Uniform Civil Code for India is all about.

In India, all the criminal laws are uniform and applicable equally to all, no matter what religion they belong to. Hindus, Muslims, and people of all faiths have the same Criminal law.

We have Uniform Criminal Law for everyone

Civil laws in India are for everyone and are applicable to all faiths. Example: Civil laws for financial transactions, encumbrances, and disputes in property, etc. are the same for Hindus, Muslims, and peoples of all faiths.

Exceptions in Civil laws for personal matters

ONLY in purely personal matters like marriage, divorce, inheritance, and adoption, each religion has its own personal laws based on its religious texts. 

For example, Hindus have Hindu Personal Law which is based on their religious scriptures like  Vedas, Smritis, and Upanishads. For Muslims, the Muslim Personal Law is based on their scriptures Quran, and Sunnah (the sayings and life of Prophet Muhammad).

Like Hindus and Muslims, other communities like Christians, Jews, and Parsis also have their own Personal Law based on their religious scriptures.

What is Uniform Civil Code trying to do?

The Uniform Civil Code (UCC) aims to bring a common law, which would be applicable to all religious communities in purely personal matters such as marriage, divorce, inheritance, and adoption.

All communities like Hindus, Muslims, Christians, Jews, and Parsis have Personal Laws. A Uniform Civil Code for India will impact all the communities and not just Muslims.

There are only 4 civil matters that are governed as per Indian Muslim personal law. They are: 

1. Marriage 

2. Divorce 

3. Inheritance and

4. Wakf Bodies (Wakf bodies manage movable and immovable properties donated by philanthropists for charitable purposes. The Wakf bodies are governed by the Central Government Wakf Act of 1995).

All civil matters, other than the four listed above do not come under Muslim Personal Law and Muslims are treated like any other citizen of India without any special privilege.

Muslim Personal Law – not applicable to inter-faith marriages

If a Muslim man or a woman marries a non-Muslim, the marriage and divorce come under “Special Marriage Act”. Muslim Personal Law is not applicable to inter-faith marriages. 

Muslim Personal Law – not applicable to Criminal Matters

The Muslim Personal Law is not applicable to criminal matters. All criminal matters for Muslims come under the common law of India that is applicable to all the citizens of our country. Muslims are treated like any other citizen with no special treatment.

Hindus gain NOTHING if the Muslim Personal Law is abolished. Why?

Muslim Personal Law is applicable only for:

1. Marriages between Muslims, 

2. Divorces between Muslims, 

3. Inheritance for kids born to Muslims and 

4. Wakf bodies that manage properties for Muslims.

If you carefully look at the four civil matters governed by the Indian Muslim Personal Law, all the four civil matters are only between Muslims.

What will a Hindu gain if the Muslim Personal Law is abolished? Nothing!

What does the nation benefit from the removal of Indian Muslim Personal law? Absolutely nothing!

Hindus enjoy a special privilege of saving money through HUF

Under the “Hindu Personal Law”, there is a provision called HUF (Hindu Undivided Family) that allows Hindus, Buddhists, Jains, and Sikhs to save taxes by forming a HUF. Tax savings using the HUF scheme is shown below.

https://cleartax.in/s/huf-hindu-undivided-family 

This tax saving under Hindu Undivided Family (HUF) scheme allows only Hindus, Buddhists, Jains, and Sikhs to save money. This scheme is not extended to Muslim, Christian, Parsi and Jewish citizens of India. 

Have you ever seen the “forces” who demand Uniform Civil Code speak about this? 

What will happen to this privilege when Uniform Civil Code is drafted?

Scheduled Tribes do not come under Hindu Marriage Act, 1955

The scheduled tribes though Hindus, do not come under the purview of the Hindu Marriage Act, 1955. 

The Hindu Marriage Act, 1955 states:

“Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe…”

Reference: https://indiankanoon.org/doc/1922953/ 

Honourable High Court of Jharkand observed:

“It is conceded even by the appellant that "the parties to the petition are two Tribals. Who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in ­4­ light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage."  

Reference: https://indiankanoon.org/doc/169899294/ 

Article 44 of the Constitution speaks about the implementation of the Uniform Civil Code of India.

Article 44 comes under a section called “Directive Policies/Principles”. Articles under “Directive Policies/Principles” section can’t be enforced by the court but are to be considered by the Government in making laws.

Apart from Uniform Civil Code, the directive policies of the Constitution also recommend the following:

1. Article 47 speaks about “raising the Standard of Nutrition and Living, Public Health & Prohibition of Alcohol”. The Article 47 says:

“The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” 
  • What is the status of nutrition in our country? 
  • What is the level of standard of living in our country?
  • What is the condition of health infrastructure in our country? How many politicians who speak about Uniform Civil Code get treated in Government Hospitals? This says a lot about the state of our public health sector.
  • Has the government implemented the prohibition of alcohol in all the states?

2. Article 38 speaks about “Minimising the inequalities of Income and eliminate inequalities in status, facilities and opportunities”. The article 38 says:

“The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”

What is the reality?

According to the inequality report released in May 2022 by “Economic Advisory Council to the Prime Minister”, if you earn a salary of Rs 25,000 or higher, then your salary is in the top 10% of the total wages earned in India.

The report also shows that the top 10% in India are getting more than 30% of the total income.

https://thewire.in/economy/india-inequality-report-wages-mgnregs

India’s richest 1% holds a huge 58% of our country’s total wealth and the top 10% of the population holds 73% of our country’s wealth.  

https://timesofindia.indiatimes.com/business/india-business/indias-richest-1-corner-73-of-wealth-generation-survey/articleshow/62598222.cms

Article 38 and 47 also come under the same “Directive Policies/Principles” in which the recommendation for Uniform Civil Code.

All those who speak about Article 44, why are they quiet about Article 38 and 47?

We ask our esteemed reader, which is more important for the people of India – better nutrition, the standard of living, better health infrastructure, reducing income inequality, or making everybody follow the same civil code for marriage, divorce, and inheritance?

The Law Commission is a panel of legal experts and is headed by a retired judge. They do research and advise the Government of India on legal reform. In 2016, the Ministry of Law and Justice asked the 21st Law Commission of India to examine matters related to Uniform Civil Code. After 2 years of research, the Law Commission presented its report. 

The Chairman of the Law Commission and former Supreme Court judge, Justice Balbir Singh Chauhan said:

Uniform Civil Code is not possible, it’s not even an option, because Personal laws are part of the Constitution under Article 25 and can never be struck down. This is a misapprehension. Even if someone comes up with such a law, which violates the Constitution, it would be struck down”.

https://www.news18.com/news/india/uniform-civil-code-is-not-possible-its-not-even-an-option-law-commission-chairman-1595623.html 

Dr. Ambedkar, the father of our Constitution remarked:

“It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.”  - Constituent Assembly debates, Volume VII, 3 December 1948.

As you can see, Dr. Ambedkar wanted the application of the Uniform Civil Code only to those who volunteer for it. How can we ignore the wise words of the father of our constitution?

Many think that, if we remove the personal law for Muslims, we will have a single law across the country. If they read the Constitution carefully, they will understand that several non-Muslim sections of Indian society have been granted exceptions.

Articles 371 (A) to (I) and the sixth schedule of the constitution of India under Articles 244(2) and 275(1) provides certain exceptions to the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law. 

Let’s look at Article 371A.

Article 371A of the Indian Constitution, grants exception to the state of Nagaland for:

(i) religious or social practices of the Nagas,

(ii) Naga customary law and procedure,

(iii) administration of civil and criminal justice involving decisions according to Naga customary law, and

(iv) ownership and transfer of land and its resources

Similar exceptions are granted to people in other north-eastern states.

Our law allows exceptions in Criminal Procedure

Did you know that we have exceptions in Criminal Procedure?

The Code of Criminal Procedure (CrPC), 1973, is not applicable to the State of Nagaland and to the tribal areas. Will those who say “One Nation, One Law” publicly declare that they will remove all the Criminal and Civil exemptions for the North-Eastern states? 

The Immoral Traffic (Prevention) Act, 1956 (Act/ITPA) puts restrictions on prostitution. But, Cities like Mumbai and Kolkata have dedicated “red light” areas where prostitution is legal. In several other parts of the country, prostitution is illegal. One wonders what happened to “One Nation, One Law”?

Note: Did you know that the punishment for prostitution for man and woman are different? A woman charged with prostitution can be imprisoned for a period of 6 months to one year. A man charged with prostitution can be imprisoned for a period of 7 days to 3 months. Gender equality or gender discrimination? You decide.

Many argue that since India is a secular country, a particular religion cannot be allowed special privileges. The reality is different.

Sikhs enjoy special privileges

Article 19 of Indian Constitution says all citizens shall have the right to:

assemble peaceably and without arms”.  

However, there is an exception for Sikhs to carry Kirpans because of their religious beliefs.

Article 25 of Indian Constitution states:

“The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion”.

Sikhs can carry Kirpans even at the airport.

https://www.indiatoday.in/india/story/sikhs-kirpan-allowed-within-airports-aviation-security-curved-dagger-1925251-2022-03-14 

Will the government overturn this provision for Sikhs in the name of the Uniform Civil Code?

Exception granted to Digambara Jain Monks and Sadhus for public nudity

Section 294 of the Indian Penal Code lays down the punishment for obscene acts or words in public but there is an exception for Digambara Jains and Sadhus for public nudity.

Jain monk and religious leader Tarun Sagar gave a 40-minute speech in the nude to the Haryana state assembly. 

Jain Digambar monk Tarun Sagar addressing haryana assembly naked

 

Naked Sadhus at the Kumbh Mela
 

What happened to Section 294 of Indian Penal Code? 

Isn’t this an exception granted on the basis of religious beliefs?

Exception granted for the Jain ritual called “The Santhara”

“The Santhara” is a Jain religious practice of a ritualistic fast till death. The Honourable Supreme Court stayed the prohibition order of the High Court which compared “The Santhara” to suicide.

https://www.thehindu.com/news/national/Supreme-Court-lifts-stay-on-Santhara-ritual-of-Jains/article60295094.ece 

Isn’t this a special privilege allowed for the Jains on the basis of their religion?

Hindu man can take a second wife as per Goa Civil Code

Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 allows Hindu men to marry a second wife under certain conditions like: 

1) First wife does not have kids till the age of 25

2) First wife does not have male kids and she has completed 30 years of age etc.

Note: Male kids are given preference. Gender equality or gender discrimination? You decide.

This provision is clearly contrary to both the Indian Penal Code and the Hindu Marriage Act, which prohibit polygamy for Hindu men. One must also note that the Goan Civil code does not allow men of other faiths to marry more than one.

Isn’t this a special privilege allowed for the Hindu men on the basis of their religion? 

When was the last time this was discussed in public?

Section 2 (g) of the Hindu Marriage Act, 1955, prohibits an uncle to marry his niece. The act states:

“degrees of prohibited relationship- two persons are said to be within the degrees of prohibited relationship (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;”  

https://indiankanoon.org/doc/590166/ 

In South India, it is a common custom among Hindus to conduct marriages between uncles and nieces.

In the name of Uniform Civil Code, should these marriages be annulled as they are against the Hindu Personal Law? 

Can the South Indian Hindus be forced to abide by the Hindu Personal Law and not to conduct marriages between uncles and nieces?

Those who demand for Uniform Civil Code claim that Muslim Personal Laws are against gender equality, therefore we need an Uniform Civil Code. The truth of the matter is some sections of Hindu Personal Laws are also against gender equality.

Note: The issue of gender equality in Islamic law deserves an elaborate response and therefore is not included in this article.

According to the Hindu Personal Law:

1. Married woman living with her husband can’t adopt a child on her own 

2. Hindu widows have very limited maintenance rights from in-laws and parents. 

The Honourable Supreme Court granted divorce to a Hindu man whose wife refused to live with his parents.

The Honourable Supreme Court Judges said:

“In a Hindu society, it is a pious obligation of the son to maintain the parents.” 

They also observed:

“It is not a common practice or desirable culture for a Hindu son in India to get separated from his parents on getting married at the instance of the wife, especially when the son is the only earning member in the family.”

https://indiankanoon.org/doc/130314186/ 

We ask the esteemed reader:

1. If religion should not play in marriage and divorce, why did the Honourable Judges mention “Hindu society” and “Hindu son”? 

2. If the man was a non-Hindu, will the judgement still be the same?

3. Will the Judgement be the same if a Hindu wife asks for divorce from a husband who refuses to live with her parents?

Under the Hindu Succession Act, 1955, the wife is not the coparcener.

Note: A coparcener is a person who enjoys an equal share along with others in the inheritance.

The property devolves first to class-I heirs, and if there are none, then to class-II heirs. The heirs of sons are considered class-I but the heirs of daughters are not. Even among class-II heirs, preference is given to male lineage. 

If a Hindu couple is childless, self-acquired property of both spouses goes to the husband’s parents even when they have thrown out the daughter-in-law. The wife’s parents do not get anything from the property of their childless daughter.

Gender Equality or Gender Discrimination? You decide.

Many allege that because of Muslim Personal Law, Muslim men are given the special privilege of polygamy and therefore, Uniform Civil Code must be brought in. It is a myth that Muslim men are more polygamous. 

According to the government census on polygamy, Hindus at 5.8% are more polygamous than Muslims who are at 5.7%. The Adivasis (many are Hindus) with 15.25% have the highest percentage of polygamy. 

https://scroll.in/article/669083/muslim-women-and-the-surprising-facts-about-polygamy-in-india

Tribal man, former Sarpanch marries three women at the same time

 
 
https://timesofindia.indiatimes.com/city/indore/tribal-man-marries-his-three-girlfriends-in-alirajpur-district/articleshow/91273040.cms
 

If polygamy is prohibited by Hindu law, how come this tribal man married more than one?

One wonders if Hindus by law are prohibited to marry more than one, how come they are more polygamous than Muslims? 

If Hindu law prohibits polygamy, how come the Adivasis are the most polygamous?

You can read about the alleged threat of the “birth rate of Muslims” here.

To answer this question, let’s take a look at a judgement of the Honourable Supreme Court.

“The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.” -  T.M.A Pai Foundation v. State of Karnataka and Ors

https://indiankanoon.org/doc/512761/ 

A united nation need not necessarily have uniformity. The United States of America is a good example of this. Each state in the US has a separate Constitution and separate criminal laws. This has neither weakened that country in any manner nor has it affected its unity or integrity. The Uniform Civil Code has no role in maintaining the integrity of the country.

Since the Uniform Civil Code will impact people of all faiths and the practices that they consider sacrosanct, there is bound to be a lot of resistance and differences of opinion from various corners. This can negatively impact the principle of “unity in diversity”, a principle that we as Indians have celebrated for the last 75 years.

In the name of Uniformity, if the Sikhs are asked not to carry Kirpans, what do you think will be their reaction?

In the name of Uniformity, if the Adivasis are stripped of their exceptions granted to them, what do you think will be their reaction?

If the government brings the Uniform Civil Code, what will happen to the personal laws of the Hindus, Sikhs, Jains, Scheduled Tribes, and Christians? Will they be completely repealed? Will the best parts of all the personal laws be taken to form a common civil code? If yes, what will be the criteria to decide “what is best” in each personal law? All these questions remain unanswered.

It is important to note that though the government has been speaking about Uniform Civil Code for quite some time, they have not submitted a “draft” of the Uniform Civil Code or explained how they will draft the Uniform Civil Code and implement it. 

Important and pressing matters like better health services, free education for all, eradication of poverty, controlling inflation, etc. are the need of the hour and therefore need immediate attention and not laws related to personal affairs like marriage, divorce and inheritance. 

We must remind the reader that Article 38 and 47 of our constitution speak about the important matters related to better health services, prohibition of alcohol, and eradicating inequality of income, but there is a deafening silence on these matters from those who demand Uniform Civil Code. Do these matters require immediate attention or Uniform Civil Code? You be the judge!

 

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