It was All India Women’s Conference who were the first to demand Uniform Civil Code, UCC hereinafter, in 1930s entailing equal rights for women, irrespective of religion, marriage, inheritance, divorce, adoption or succession.
While Constituent Assembly and Parliament have been positive towards UCC, it was postponed as Directive Principles of the Constitution as they did not wish to augment religious strife and tension in the country during decades after independence. With the Supreme Court judgment holding Triple-Talaq unconstitutional and illegal, it is now necessary and unavoidable to go ahead with the enactment of Uniform Civil Code. After report of Bharatiya Law Commission on UCC is received, ball shall be set rolling by the Union Government.
An ideal UCC shall include several restructured laws viz. abolition of Islamic polygamy, arbitrary divorce, tax benefits to HUF, some distinct practices of Buddhism, Jainism, Sikhism etc. to attain faith-neutrality. Every political party must shun motivated secularism as well as vote politics before a sound and rational consensus is arrived at. Fortunately, Government headed by PM Modi is well poised to undertake the gigantic exercise involving marathon discussions and consensus making.
Let us first have a bird’s eye-view of all such laws that may be affected by UCC –
Hindu Personal Laws apply to all except Muslims, Christians, Parsis and Jews. It is valid for Buddhists and Jains too. Hindu Succession Act 1956 did not concede birthright to women in ancestral property which was amended in 2005 and co-parcenary’ right extended to married daughters too; Hindu Marriage Act 1955 regarded marriage as a sacrament, without living spouse at the time of marriage, minimum marriageable age of 18 and 21 for girls and boys respectively, marriage only out of prohibited degrees of pre-existing relationships; bigamy a criminal act; divorce on specific grounds of adultery, cruelty, religious conversion, mental illness etc.; divorce petition within one year of marriage not permissible, cool off period from 6 to 18 months allowed, both men and women may claim maintenance, no claim of maintenance for unchaste women or after conversion, refusing to live with husband’s parents a ground for divorce; woman has no claim to matrimonial home unless purchased with her own earnings; Hindu Minority and Guardianship Act 1956 allows Hindu-s to adopt within a defined legal framework.
Muslim Personal Law Shariat Application Act 1937, Dissolution of Muslim Marriages Act 1939 and Muslim Women Protection of Rights on Divorce Act 1986 are the three Acts in addition to four schools of Sunni jurisprudence i.e. Hanafi, Maliki, Shaifii, Hanbali and two Shia schools, Jafari and Zaidiyyah.
No distinction between self-owned and ancestral property, no birth-right to property, property inherited only after death of ancestor, equal share to property for men and women, half of every woman’s share given as Mehr, marriage being a civil contract with defined obligations, ceremony in presence of two adult witnesses with at least one man, polygamy allowed, husband may freely divorce unilaterally only after four attempts of reconciliation and Iddat, woman can divorce on specified grounds only, Halala compulsory if divorced woman wants to remarry her ex-husband, no adoption laws on board, no right to inheritance for adopted child, adoption limited to foster care alone, mother not recognised as natural guardian of her child.
Christian Personal Law is the Indian Christian Marriage Act 1872 for marriage, divorce and maintenance with Christians of Travancore, Cochin, Manipur and J&K exempted, inheritance and succession governed by the Indian Succession Act 1925, adoption and guardianship governed by Guardians & Wards Act 1890.
Parsi Personal Law is the Parsi Marriage & Divorce Act 1936 amended in 1988, marriage is a spiritual compact, non-Parsi woman not entitled to inheritance while children can, children of Parsi woman married to a non-Parsi not regarded as Parsis, divorce claims maintainable only after two years of marriage on specific grounds, mutual consent or irretrievable breakdown unacceptable, special Parsi courts adjudicate such cases, maintenance maintainable till next marriage only, adoption not recognised. Parsi Chief Matrimonial Courts are established as special courts in each of the presidential towns of Calcutta, Madras and Bombay.
In contested matrimonial matters, special delegates are appointed, who are usually respected members of the small community. Parsis are a tiny community whose ancestors came to Bharata from Parsia in Iran. They currently count mere 61,000 and diminishing by the day. Nation’s population rises by 21% and Parsis decline by 12% every Census.
Scheduled tribes follow their own customary community laws.
So what we behold is that while all communities are governed by the same criminal jurisprudence but civil acts by a plethora of personal laws zealously guarded by their respective communities. Supreme Court’s judgement upholding privacy as a fundamental right, Article 44 of the Directive Principles of the Constitution to ensure legislation of UCC as well as Article 25 (2)A to ensure freedom of religious practices, have together created a Bermuda Triangle for a well-meaning Government to navigate through before being able to successfully draft an acceptable and implementable UCC.
It is also an exercise of delicate balancing as unfounded communal friction and apprehension of majoritarian bullying through absolute majority in Parliament has been created by nefarious anti-national unity lobbies. While assimilation-ists are being accused of ‘majoritarianism’, those who vouch for hydra-headed isolationism in the name of pluralism are accused of being hostile to unity and uniformity in civil laws that the Government wishes to introduce. Votaries of multiculturalism overlook the fact that multiculturalism has failed the world over even as admitted by British Premier David Cameron owing to fanatical inflexibility and extreme sense of isolationism among Muslims.
Displacement of Rohingya Muslims from Burma caused by their own criminal fundamentalism againt their own Burmese Government, then desparately seeking refuge in other countries instead of introspecting and mending their ways, is a monumental endorsement of miserable collapse of the much tom-tommed doctrine of multiculturalism. Muslims rigidly want all other communities and countries to compromise with them and be perpetually obliged in doing so while they do absolutely no compromise or adjustment under any circumstance. Such a conduct is nothing short of fanaticism of diabolical variety.
Owing to foreign invasions, country remained in grave turmoil during fierce struggle against foreigner invaders for centuries who plundered and savagely brutalised our ancestors. Mughals, British despots, then Christian missionaries caused havoc with social fabric of the country. They also forced and induced proselytization of a large section of population into Islam / Christianity which had no roots in the region / country at all. Not only that, they destroyed Manusmriti’s Varna system, imposed caste system, sowed seeds of class / caste / religious divisions, separatism, anti-Hinduism and anti-nationalism. Our glorious history was denied to us to destroy our national pride and self-esteem. Fires of separatism were malevolently stoked by those foreign occupiers and every group / community was deviously motivated to practise their own laws and civil codes commensurate with their policy of ‘Divide, Rule, Loot and Destroy’.
Over decades, highly destructive ideas like excessive emphasis over so-called plurality hiding separatism in reality, assumed deep roots with a plethora of rules and standards. Often, these used to kick up storms of complex conflicts and confrontation leading to serious law and order issues. Post-1947, it was visualised to gradually move towards re-unification of Bharata for a stable and secured future of all denizens. Thus, realised was the necessity of enacting one single code of conduct for all communities residing in the country. While civil code for Hindu-s was standardised immediately, minorities were left to fend for themselves owing to political considerations. However, demand has started growing louder for UCC if the nation has to be truly progressive with laws gender neutral as almost all laws have been biased against women.
Constituent Assembly was constituted amidst one of the worst human calamities that mankind might have ever witnessed and all that due to personality-clashes / ambition of just a few individuals who anointed themselves greater than people as well as this nation. At the instance of some Hindu reformers, British occupiers of the country had outlawed certain practices and drafted a Hindu Reforms Law in 1946 yet deliberately did not touch Muslim personal practices in pursuance of their malevolent policy of ‘Divide, Rule, Loot and Destroy’. JL Nehru and his Xerox copies stoked pre-existing sense of separatism among Muslims emphasising they apprehended for their security and well-being due to Hindu majoritarianism !! It was so ironical to vouch that Hindu-s, most peaceful and least aggressive community in the world, were dubbed to cause grave existential threat to the most violent community in the world, responsible for initiating / causing savagery / butchery on non-Muslims all over the world for the last 1400 years !!
That is when seeds of the rift over UCC were sown and watered repeatedly British Thugs and their cohorts in Congress. Had JL Nehru been a nation-maker, eradicated apprehension of Muslims, assumed guarantee for their well-being on behalf of Hindu-s, cited and hammered glorious history of Ahimsa and non-invasion by Hindu-s into Muslim minds, contours of the nation would have been unbelievably different and there would have been no deadly imbroglio over UCC today. Root-cause of the problem is hidden in the fact, majority of Hindu leaders do not have guts to tell Muslims bluntly, you have been initiator of all troubles, you are guilty as Hindu-s merely reacted to defend themselves when sick and tired of atrocities inflicted by you, you have to mend your ways first and last, you always initiated blood-bath… that such an atrocious religious bullying will destroy them one day…But no leader has mustered so much courage to say that publicly.
Communists too, generously fished in troubled waters and aggravated friction, attrition and tension in the country with an absurd dream to capture the nation and impose Communism. Some leading members of the Constituent Assembly envisaged, UCC would be incorporated into the Constitution as a fundamental right and not as one of the Directive Principles of State Policy. Then there was another group of Muslim members stoutly opposing UCC demanding Personal Laws as fundamental rights and they dubbed UCC ‘tyrannical’ !! Highly provocative speeches were delivered in the Constituent Assembly and their refrain was, if British did not ‘touch’ Muslim Personal Laws for 175 years, then who was Constituent Assembly to dare doing that !!
They did not vouch for the fact, Constituent Assembly was supreme and they had no business to compare that with those handful of British Thugs from Thomas Row to ‘Lord’ Mountbatten who intruded only to plunder and destroy the country. Their assertion in fact, amounted to sedition. Muslim members asserted, proposed Article 35 of the Constitution incorporating UCC directly contradicted Article 19 allowing right to practise religion and if enacted, grave consequences would follow. Thus, Fundamental Rights Sub-Committee was compelled to recommend, UCC be treated as justiciable rights because “one of the factors keeping India back from advancing to nationhood was the existence of personal laws”. Minorities Sub-Committee also examined the issue and declared, “Common Code should be made entirely voluntary” and the entire Clause in Directive Principles be worked out again.
Constituency Assembly member KM Munshi asserted to outgrow personal laws integrated to religion fostered, nurtured by British Thugs and their Kangaroo courts. According to Alladikrishna Ayyar, cries of “religion in danger” and of “lack of amity if a code were made mandatory” were non-sequitur as the clause was aimed at amity and integrating Bharata into one nation. “Is this country always to be kept as a series of competing communities?” poignantly he asked. Dr. Ambedkar was baffled when a Muslim member wanted to know whether UCC was feasible and desirable in a vast country like our’s, “We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete criminal code…
We have a law of transfer of property… I can cite innumerable enactments which would prove that this country has practically a civil code, uniform in it’s content and applicable to the whole of the country.” Muslim Personal Law was not immutable as Muslims in North-West Frontier Province were exempted from Shariat till 1935 and those in the United Provinces, Central Provinces and Bombay were governed by Hindu laws in matters of succession while in North Malabar even followed matriarchal Marumakkathayam law !! Nehru enjoyed tremendous support in those years and he should / could have gone ahead with UCC instead of converting UCC a ‘decoration piece’ in Directive Principles of the Constitution and a golden historic opportunity was lost. Dr. Ambedkar authored UCC in 1951 and it was killed by the sham of ‘unity in diversity and plurality’ having strong under-currents of Islamic appeasement. Second such effort was done by Bangladesh Mahila Parishad in 1989 and that was done to death by Bangladeshi Islamism where question of diversity and plurality did not arise at all.
Unlike women from other communities, Muslim women are denied their legal rights in personal realm despite Quranic injunctions. Practices such as Triple Talaq and Halala persist in our society despite the fact that the Quran does not sanction them. Quran gave clear rights to women 1,400 years ago in marriage, family, society and public life, but in reality there has been a persistent denial of these rights to them. So much so that deeply entrenched perception persists that in Islam, men are supreme over women.
Shariah Application Act, 1937 is silent on all these matters. It is claimed that Bharatiya Muslims are governed by Shariah but Shariah as practised currently in different parts of the country, is undefined and unwritten. It is subject to multiple interpretations and misinterpretations which are invariably unfair to women. When Muslim Marriage Dissolution Act 1939 was being legislated, Ulemas insisted on a stipulation that cases under this law should only be heard only by a Muslim Judge. Ulemas stick to their stand even today. That is why they demand institutions like Darul Qaza (parallel Islamic courts) be vested with judicial powers. This explains why Muslim Personal Law Board always challenges authority of courts examining Constitutional validity of religious laws. Whenever courts deliver a verdict not approved by the clergy, they accuse courts of interference in their religion. Courts have been prodding successive Governments to enact UCC as enshrined in Article 44 of the Constitution.
They raised the issue in 1985, 1995, 2015 and now while trashing Triple Talaq as bad in law. Votaries of so-called minority rights claim UCC to be a RSS conspiracy !! They are intentionally ignorant of the fact that not a single member of Constituent Assembly was RSS member !! Shariah based on Quran and Hadis recorded 30 decades after so-called Prophet’s demise, began at the time of Khalifa and continued for 100 years. Almost 90 percent of these codes do not belong to Quran at all, reflect Arabic traditions of those times. Shariah is neither uniform across all Islamic countries nor immutable based on local cultural practices as well as outlawed in large number of Islamic countries. Laws should be equal for all citizens irrespective of religion, caste or gender and in a democratic polity, no religious law can be above Constitution.
Muslims claim Quran, Shariah enjoy ‘divine mandate’ and unconditional obedience to Quran’s commandments is a prerequisite for being considered a Muslim. Hindu-s never had an ‘obey or die’ commandment puking ‘holy’ texts like Quran or Bible. However, Christians and other communities have mostly accepted and honoured Constitutional mandates and they have not been so intransigent with respect to civil codes like Muslims. Hindu-s have been most amenable when it comes to reformation and advancement. After going through all these narrations, any rational fellow would conclude, UCC has been necessitated only due to defiant and ‘do not care a damn’ attitude of Muslim community. If they are not disciplined and restrained to conform to sane social norms facilitating other communities to co-survive peacefully through UCC, it may lead to social tension of monumental dimensions and well-being of entire nation shall be jeopardised.7