Chapter - 4

Uniform Civil Code:

Misconception and Reality
 Chapter - 4

Uniform Civil Code : Misconceptions and Reality

Uniform Civil Code is often debated for political purposes.

Whereas the reality is that masses find such debates difficult to
understand. One point stands out clearly on which everyone can
agree; the problem is serious one and it needs careful examination.
There are direct claims and indirect comments without
understanding whole issue. To dispel the ignorance manifested
wittingly or unwittingly, researcher is taking up the issue from a
point of view of an academician and hopes to pinpoint myths and
realities revolving around Uniform Civil Code.

Article 44 of the Indian Constitution states that :-

"The state shall endeavour to secure for citizens a

Uniform Civil Code throughout the territory of
India."

One of the most common misconceptions about the Uniform

Civil Code is that the Hindus have surrendered their personal laws
for the sake of uniformity throughout the country. Another
important misconception is that the four Hindu enactments made
in 1955-56 have rectified all the evils of Hindu's laws associated
with, inter alia, the gender justice. The third popular fallacy about
the Uniform Civil Code is that Muslims are the only stumbling
 Uniform Civil Code: Misconceptions and Reality

block in the implementation of the directive contained in Article

44 of the Indian Constitution. The fourth popular misconception
is that the Muslim law is against the gender justice. Hence Muslim
women are the most inferior women in India with respect to their
legal rights as opposed to others. The fifth popular misconception
is that the Uniform Civil Code, if implemented, would
strenghtened the national unity. The sixth fallacy is that the
personal laws are a gift by the Britishers and extended by the
Constitution of India to the minorities especially MusHms in India.
The seventh misconception about the Uniform Civil Code and
personal laws is that, in all the states, all the religious communities
have surrendered their laws for the sake of uniformity and national
unity.

But the reality is otherwise. It is not so that only the Muslims

are opposed to the change in their religion based personal laws. If
we go through the history of the Hindu Code Bill, we would find
that there was a very stiff resistence by the Hindu religious
scholars, constitutional academicians, political leaders and the
upper caste Hindus. Even the first Hindu Code Bill was allowed
to lapse. It was due to the inhuman and degrading state of Hindu
women in their ancient laws that the then government headed by
Pt. Jawaharlal Nehru, brushing aside all opposition, got the Bill
passed in Parliament despite a threatened veto by President of
India Dr. Rajendra Prasad. Due to the threat posed by Dr.

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 Uniform Civil Code: Misconceptions and Reality

Rajendra Prasad and the stiff opposition by the upper caste Hindu
especially Brahmin certain anti women and anti secular laws, were
incorporated in four Hindu Acts.*

It will be desirable to discuss some of the important fallacies

in detail.

A. Dimensions of personal laws.

B. Erroneous approach for Uniformity
C. Misconception about Muslim Personal Laws
D. What does Article 44 demand?

A. Dimensions of Personal Laws

(i) Diversities based on region and territory

It is a great myth that different sections of Indian citizens are

governed by different personal laws due to the fact that they
follow different religion which have laws of their own. In fact
neither all followers of any religion are governed by uniform law
throughout India, nor is any personal laws uniformly applicable to
all followers of a rehgion from which it is derived. The law differs
from region to region and territory to territory and often
differently applies in different circumstances.

The scope for countrywide uniformity as envisaged in Article

44 is restricted by the Constitution itself as enactment of personal
laws, including its family laws has been placed in list III
(concurrent Isit) of the Constitution.^ Accordingly, parliament and

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 Uniform Civil Code: Misconceptions and Reality

State legislature both can make, and have made, laws in these
areas.^ Parliamentary legislation on family law matters is moreover
often supplemented with additional provision by the state
legislatures/

The other dimension of diversity in Family Laws may be

noted as below :

I. Jammu and Kashmir state has, under the special provisions

of the Constitutions applicable to that state, its own set of
family laws - both statutory and non statutory.

Their application is regulated by the Sri Pratap Consolidation

ofLaws Acts of 1977 (B).

II. When Pondichery was annexed to India in 1954, Local

inhabitants (Hindu, Muslims, Christian and others) were given
a choice to be governed by the old French Civil Code
(Applicable in region under the French Colonial Rule^).

III. In 1962 when Goa, Daman and Diu became part of India, the
Portuguese Civil Code 1867 and its supplementary laws -
including the archaic Hindu usages decrees of 1880 were
written in force in the entire region. The position remains
unchanged after the creation of the state of Goa.^

IV. In Nagaland and Mizoram the local customary law was

protected by a special provision incorporated in the
Constitution in 1962,* through an amendment. The purpose

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 Uniform Civil Code: Misconceptions and Reality

of this amendment was to protect the identity of the local

tribes. In these and many other regions the Hindus, Muslims
and Christians are governed by personal laws which are
significantly different from those which govern their co-
religionists citizens in the other parts of India.

(ii) Diversities based on specified group of persons

There are various categories of persons whom personal law

enactments regard as the exception to the general Indian citizen
by which they are exempt from the purview of the executive
action through statutory law. This phenomenon is found almost all
over the country where certain categories of persons, in matters
of their personal law, are exempt from the purview of statutory
law. This leads the complicated diversities in the field of personal
laws.

Under the Indian Succession Act, 1925, the government of

every state is authorised to issue a gazette notification in order to
exempt from the application of that Act, any particular race or
tribe, in the state on the ground of 'impossibility' or
'inexpediency' of the applying the same.'" This authorisaiton has
in the past, been exercised in the favour of the Christians of
Coorg, certain Christian Races in Assam'^ and the several
Christian Tribe in Bihar and Orissa.'^

After independence the age old tradition of protecting tribal

and secterian laws was allowed to continue by the Indian

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 Uniform Civil Code: Misconceptions and Reality

Constitution the two privileged classes under the Constitution

were created viz., the "Scheduled Caste" and "Scheduled
Tribe". Out of these two privileged classes special exemptions
have been given to the Scheduled Tribes, though no such special
exemption has been given to any of the scheduled caste under any
of the personal law statute. Thus, all the four Hindu-law
enactments of 1955-56 are wholly inapplicable to each of the
Scheduled tribes.''* Inapplicability of some of these Acts to
certain tribes in Assam, Bihar and Orissa has been judicially
confirmed.'^

As such these Acts cover almost the entire gamut of family

law and succession, the tribal customs in these areas stand fully
protected. And due to the concentration of particular tribes in
particular regions of India, this statutory perpetuation of their
customs, that are at great variance with the general law and
pratice, adds a new chapter to territorial diversities in the personal
laws of India.'^

(iii) Diversities based on customs usages

Going through the four Hindu-Law enactment of 1955-56 one

finds an interesting and relevant aspect of diversity which is based
on the customary law of Hindus, Buddhists, Jains and Sikhs.
Specific provisions relating to the customs of Hindus, Buddhists,
Jains and Sikhs, running counter to general statutory provisions,
enjoy full legal protection under the provisions of the concerned

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•:r-^ -T- \ y 2>Q ^ ^niform Civil Code: Misconceptions and Reality

enactments iReffiSfl^es. Among the customs and customary

institutions that remained so protected are :

(i) those violating statutory rules relating to \sapinda'

relationship and prohibited degrees in marriage;'^

(ii) Customary marriage - rites replacing 'SaptapadC\^^

(iii) Customary divorce;'^

(iv) Custom of adopting major and married children.^°

The customs under each of the abovementioned heads maybe

in vogue among the Hindus in any "local area, tribe, community,
group or family".^' No court has perhaps ever frowned on this
wide-based protection of diversified custom despite the fact that
the term "law" in Article 13 of the Constitution is specifically
extended to custom and usage having the "force of law".

Not only the Hindu law retains custom as an exception of the

general rule but the customs in derogation of the general law are
protected under other laws as well. For example, the law relating
to civil marriage did not contain any statutory provision relating
to the 'prohibited degrees' was not subjected to the face of
contrary customs. But after 9 years the law was amended to
protect customs and usages contrary to the rules of 'prohibited
degrees' in marriage.^^ Under the amended law customs find a
greater role to prevail and be recognized, as in this case it would
be sufficient if it governs with in"atleast one of the parties" to

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 Uniform Civil Code: Misconceptions and Reality

marriage^^ (unlike under the Hindu Marriage Act which would

conceive supremacy of the custom in this regard only if it governs
both parties to marriage.^'*

The Muslim Personal Law (Shariat) Application Act, 1937

also contains provisions relating to custom and usage applied to
wills and legacies and adoption. These provisions are contrary to
the Islamic law yet this discriminatory provision was incorporated
into the Act due to purely political reasons. Interestingly such a
provision has been repealed in Pakistan by the Pakistan Muslim
Personal Law (Shariat) Application Act, 1962. The net result of
the exception to the general law is that in predominantly Muslim
Union territory of Lakshadweep and in Malabar region of Kerala,
there remains a dyarch in respect of law applicable to the
Muslims.

The diversity in the realm in personal laws in our country is

very wide. This diversity is based not on religious but other
grounds. Having their roots in the distant past the interterritorial
and custom based diversity in the sphere of personal law could
not be hurried in the debries of freedom movement.

B. Uniformity : An Erroneous Approach

Article 44 appears in Part IV of the Constitution which

provide "Directive Principles of State Policy". The most
important Article which governs this part is Article 37 which
contains the following three points :

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 Uniform Civil Code: Misconceptions and Reality

(1) The principles contained in part IV shall not be enforceable

by any court.

(2) This principle will be nevertheless, fundamental in the

governance of the country; and

(3) It shall be the duty of the state to apply to these principles in

making laws.

Article 44 clearly, does not ask the legislature to enact a civil

code; It contains a principle which the state should apply in
making civil laws. The principle of Article 44, basically, is
'uniformity in civil laws'. The state is expected to apply these
principles - whenever wherever and as far as, possible - making
laws relating to civil transactions.

In the constitutional expression "Uniform Civil Code" the

prefix, "Uniform" - not found in any of existing codes (IPC,
CPC, CrPC), and the absence of a capital ' C in the words
"Civil" and "code" very were establish that this expression
does not pointout to a single comprehensive law; it only prescribe
a principle of policy : that in reforming old and enacting New Civil
Laws the principle of Uniformity should be observed as far as
possible".

What appears strange is that the interpretation or

implementation of Article 44 on line that application of the same
law for all the members of a particular community throughout the
length and breadth of India is not talked about at all. Nobody
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 Uniform Civil Code : Misconceptions and Reality

demand that all Hindus should be governed by one and the same
law in all circumstances in all the parts of country. Nobody is
interested in the abolition of the Hindu customary law which is still
in the force. Until today the target of law men and laymen who
have taken interest in Article 44 has been the personal law of the
religious-cum-cultural monirities, especially the Muslim Personal
law which the protogonists of uniformity want to be abolished by
one stroke of legislation.^^

Ordinarily, the principle of Uniformity to be applied in

making civil laws, is fundamental in the governance of the
country; but if - for any valid and cogent reason - the state can
not apply the principle of uniformity by while making civil laws,
no court in the country can in any way have the principle
enforced. The constitution leaves it, entirely and exclusively to the
wisdom of the state when, how, in what way, and to what extent it
can and should apply the principle of uniformity in making civil
laws.^^

Attempts have been made both by the legislature and court to

apply Hindu law to non-Hindus in the place of their own laws; and
this is often done under the pretext of effecting uniformity in
family law. For example - the blanket restriction on marrying a
cousin (drawn from the Hindu Laws) under Special Marriage Act
of 1954.28

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 Uniform Civil Code: Misconceptions and Reality

Another instance of this legislative trend was found in a local

law enacted in 1950 by the West Bengal government, protecting
continued enforcement of the classical (Dayahhaga) Hindu law
to the Muslims in the former state of Cooch-Bihar now merged in
West Bengal.^^ This was done to counter effect a law enacted by
Parliament during the same year, under which the Muslim Personal
Law (Sharlat) Application Act of 1937 would have become
applicable in Cooch-Bihar - in 1950 itself.^*^. For 30 years
extension of the Shariat Act, 1937 to that territory was kept
stalled and the move had the blessing of the Calcutta High Court.

It is submitted that it is highly improper to impose the law or

usage of a particular community over another under the pretext of
seeking 'Uniformity' in civil laws. By no dint of imagination can
the constitutional doctrine of the uniformity in civil law means
imposition or forced domination of one particular legal culture or
a total suppression of another.

C. The Great Fallacy about Muslim Personal Law

It is a popular belief that the Muslims alone have a personal

law and that this personal law is the stumble of block in
implementing the directive of Article 44 of Indian Constitution.
Muslims are blamed that due to their personal law the directive of
Article 44 is not being reahsed as the do not want to forgo their
personal law in favour of a Uniform Civil Code. This is a
fallicious notion : There are a varieties of personal laws which are

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 Uniform Civil Code: Misconceptions and Reality

applicable to different communities both Muslims and non-

Muslims in India. They are as follows :-

I. Hindu Personal Laws largely codified but partly the codified

(Also applicable mutatis mutandis, to Budhists, Jains and
Sikhs);

II. Customary Law of Hindus, Budhists, Jains and Sikhs

wherever protected by legislation or case law;

III. Tribal law of Hindus and others;

IV. Christian Personal Law - reformed and codified.

V. Parsi Personal Law - reformed and codified;

VI. Jewish Personal Law - wholly unreformed and uncodified

and;

VII. Muslim Personal Law partly reformed but uncodified.^^

Another issue which has been forcefully advocated by justice

Kuldeep Singh in Sarla Mudgal Case^^ was " Have the Hindus,
Budhists, Jains and Sikhs (constituting more than the 80% of the
citizen in India) been brought under "one unified code".

The answer to this question is in negtative. The fact is that

the Hindus, Buddhists, Jains and Sikhs are still not governed by a
uniform law.

(I) The four Hindu law enactments of 1955-56 do not cover the
entire gamut of Hindus Personal Law. Certain important

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aspects of Hindu Law are still qualified i.e., the law relating
to co-parcenary, joint family and partition of property. In
these matters the classical Hindu law is still applied. Hindu
law, broadly speaking, has two schools (1) Mitakshara, (2)
Dayahhaga. Even today thousands of cases relating to
propertis are being decided by the court in accordance with
principle of the above mentioned schools.

(II) The four Hindu law enactment of 1955-56 have uniform

application through out the territory of the India. But, in Goa,
Daman Diu, there still is in force old Hindus usages decrees
of 19th century. In Pondichery most of Hindus have opted to
be governed by the French Civil Code. Similarly Jammu and
Kashmir has its own Hindu law enactment, State of Uttar
Pradesh and Tamil Nadu have amendments to Hindu Code.
Andhra Pradesh and Kerala have enacted special Hindu Law
statutes supplementing the central laws.

III. In south Indian states - Andhra Pradesh, Karnataka, Kerala

and Tamil Nadu, the Hindu matriarchal families are governed
not by the Hindu code, but by a variety of customary laws.

IV. Local custom and usage prevailing in North-eastern states -

Nagaland, Mizoram, Meghalaya, Arunachal Pradesh and
Sikkim are fully protected under Article 371A of the Indian
Constitution or by virtue of legislative provision and judicial
decisions.

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 Uniform Civil Code: Misconceptions and Reality

V. Various tribes are free to follow their own customs which

differ from tribe to tribe and place to place under Section 2-
3 of the four Hindu enactments. The entire tribal population
following the Hindu, Buddhist, Jain and Sikh religion is fully
exempt from the four Hindu law enactments.

VI. The Hindu Law Enactment allows all the Hindus, Buddhists,
Jains and Sikhs to follow their respective customs and
usages in the following matters :-

(i). Prohibited degrees in marriage and sapinda relations^^

(Hindu Marriage Act, 1955, sec. 5);

(ii). Marraige-rites and ceremonies^^ (sec. 7);

(iii). Right to obtain divorce without proper Judicial

proceedings" (sec. 291);

(iv). Adoption of adult and married persons (Hindu

Adoption and Maintenance Act,"** 1956, sec. 10);

(v). Mitakshara Coparcenary Property (Hindu Succession

Act,39 1956, sec. 6);

(vi). Joint family properties governed by

Marumakkattayam^ nambudh and Ahyasandantana
customs'"' (sec. 7);

(vii). Properties held by Sthanamandans'^^; and

(viii). Specified impartible estates'*^ (sec. 5(ii))^'*.

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 Uniform Civil Code: Misconceptions and Reality

All the four Hindu law enactment of 1955-56 clarify that

"custom and usages" for this purpose include those prevalent,
"In any local area tribe community, group or family."'-' The
scope for customary practices is, thus, extremely wide.

These may and often do, differ - among the Hindus,

Buddhists, Jains, Sikhs from area to area, tribe to tribe,
community to community, group to group and family to family.

Whither uniformity? The Four Hindu Enactment of 1955-56,

surely do not bring "more than 80% of citizens" following the
Hindus, Budhists, Jains or Sikhs religious under the banner of one
uniform law.

It does'nt mean that no uniformity has been effected by these

Acts. Many provisions of the Four Acts do uniformity apply to
those who are governed by them but quite a few do not; and a
very large number among those "more than 80% citizens" are not
governed by those statutes at all. It is a fact that there remains
considerable diversity in respect of conflicting traditional joint
family rules, prevalence of local, law, exemptions to schedule
tribes and statutory protection to all types of customs and usages.

So far as, the Muslim Personal Law is concerned, it could

not have and did not, remain outside the ambit of the states'
legislative power. Central legislature have occasionally exercised
its power to make statutory provision regarding the scope of
Muslim personal law"* administration of waqf,'*^ women to judicial
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 Uniform Civil Code: l\Aisconceptions and Reality

divorce'*'', and post divorce rights;'** registration of marital

transactions and dowers.^"

The protagonists of uniform civil code project the issue in

such a manner that the minorities, especially the Muslims, feel that
it is they who will have to sacrifice their personal law for the sake
of Uniform Civil Code. This apprehension is due to the manner of
compaign in which it is alleged that the only defect lies in the
personal laws of Muslims. We have seen and we will see later that
the other religious groups including the Hindus also have
discriminating laws and laws which are unequal. So the campaign
for a uniform civil code should be carried on in such a way that
the minorities should not become apprehesive. Supposing that if
the Muslims, Christians and the Parsis were to give up their
personal laws abruptly, what could be the susbtitute for them?
Obviously, the Special Marriage Act, 1954, the Guardians and
Wards Act, 1886. How could, then, these minorities be expected
to adopt the said laws when the majority community has not done
...? If the idea is to impose on Muslims, Christians and Parsis, the
Hindu Law Enactments of 1955-56 in the name of Uniform Civil
Code, for obvious and legally tenable reasons they can not be
expected to digested.^' This is the main reason why the Muslims,
Christians and Parsis link their rspective personal law with their
religious identity. They are apprehensive that if a Uniform Civil
Code is ever enacted that would mean the total abrogation of their
religion based personl laws and the imposition of the terol laws.

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 Uniform Civil Code: Misconceptions and Reality

They do not want to give up their personal laws for the sake of
implementing the mandate of Article 44.

The state can not discard the personal laws of the minorities,
which has by its own direct action gifted to the majority
community a separate religon based personal law. Doing so will
be wholly unconstitutional of course, the state can codify and
reform the personal laws of minorities as it has done in the case
of majorty but neither the personal laws of minorities can be
altogether repealed while that of majority community remains
intact - protected and fortified by statute nor can the personal
laws of the majority despite its codified and reformed shape be a
substituted for a uniform civil code so as to be imposed on the
minorities'^.

So for as the question, what is the stumbling block to a

uniform civil code is concerned the answer lies with the diverse
variety of personal laws - Both codified and uncodified,
reformed and unrefomed - applicable not only to minorities but
to the majority communities also. Each of such personal laws is
a stumbling law who what the constitution call " a uniform civil
code through out the territory of India." The state is not at all
interested in carrying out the directive principle of Article 44.
Custodian of state authorities are continuously practising the
policy of appeasement of the majority community through an
effective step by step, protection of its religion, communal

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 Uniform Civil Code: Misconceptions and Reality

customary, tribal and personal laws, and a blow for thwarting

a uniform civil code is squarely put on the Muslims only. It is
nothing short of fraud.

D. What Does Article 44 Demand?

It is necessary to know the meaning message, import and

scope of each and every word of Article 44 to know the exact
nature of this article. If we carefully and honestly analyse the
provision of Article 44 then we would be able to draw a just and
reasonable conclusion. The cautiousty selected wordings of
Article 44 is very important. Article 44 in our constitution does
not direct any law-making body to enact a uniform civil code
straight away. It only says that the state shall endeavour to secure
a uniform civil code for the citizen throughout the territory. If we
pay deep attention to the wordings of the said article following
questions arise.

(i) Is endeavouring to secure something the same as directly

enacting a law?

(ii) What is the meaning and scope of a 'civil code'? What does
the expression 'uniform' stand for?

(iii) 'Do uniform' and 'common' convey the same meaning and
are they interchangeable words?

(iv) Is the Uniform Civil Code to be compulsorily applicable to

all citizens of India?

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 Uniform Civil Code: Misconceptions and Reality

Now we will discuss the meaning of the words endeavour to

secure uniformity in civil law and extend of their applicability.
Article 44, clearly, does not ask the legislature to enact a civil
code, it contains a principle which state should apply in making
civil laws. The demands of Article 44 - whatever they are - and
the modalities for the implimentation both are to be determined in
tune with the provisions of part III of Constitution guaranteeing
Fundamental Rights - including right to equality before law and
equal protection of laws,^'* citizen civil liberties, freedom of
individual to profess and practice their respective religions,^''
freedom of religious communities to manage their own affairs*^^
and right of sections of citizens to preserve their distinct culture."

Legislative enactment of an all India Uniform Civil Code

straight away is not envisaged by the Constitution even at the
central or union level. Article 44 wants the government and the
legislature to make possible endeavours which may in the long run
secure uniformity in the making and application of civil laws. To
demand that parliament should straight away enact a uniform civil
code goes against the letter and the spirit of Article 44.'"' What
should be the rule of interpretation and how the balance between
part III and part IV of the constitution should be maintained has
been very beautifully explained by the Supreme Court of India in
Minerva Mills case^^. It was observed by the Supreme Court :-

"India represent a mosaic of humanity consisting of

diverse religious, linguistic and caste groups. The
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 Uniform Civil Code: Misconceptions and Reality

rationale behind the insistence on fundamental rights

has not yet lost its relevance, alas or not. The
Congress session of Karachi adopted in 1931 the
Resolution on Fundamental Rights as well as on
economic and social change.

The Sapru Report of 1945 said that the Fundamental Rights

should serve as a "standing warning" to all concerned that :

'What the Constitution demands and expects is

perfect equality between one section of the
community and another in the matter of political and
civil rights, equality of liberty and security in the
enjoyment of the freedom of religion, worship, and
the pursuit of the ordinary application of life. (p.
260).'^o

The Indian nation marched to freedom in this background.

The Constituent Assembly resolved to enshrine the Fundamental
Rights in the written text of the Constitution. The interlinked goals
of personal liberty and economic freedom then came to be
incorporated in two separate parts, nevertheless parts of an
integral indivisible scheme which was carefully and thoughtfully
nursed over half a century. The seeds sown in the 19th century
saw their fruition in 1950 under the leadership of Jawaharlal Nehru
and Dr. Ambedkar. To destroy the guarantees given by part III in
order purportedly to achieve the goals of part IV is plainly to

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 Uniform Civil Code: Misconceptions and Reality

subvert the Constitution by destroying its basic structure. Indian

Constitution is founded on the bed-rock of the balance between
part III and IV. To give absolute primacy to one over the other is
to disturb the harmony of the Constitution."^''

These are the settled position of the relationship between the

part III and part IV of the Indian Constitution and the directive
contained in Aticle 44 is not an exception.

As to the meaning and scope of civil code an imminent

Expert of Hindu law. JDM Derrett observed :

"Civil code throughout the world, suggests a great

deal of private law, including contract and Tort."

Professor Tahir Mehmood righly formulated this situation and

observed that :

"This is indeed true. There are numerous countries in

the world which have no civil codes at all. In many
other countries there is in force a civil code which
contains all sorts of civil laws (as opposed to penal
laws) except family and succession laws. In very few
countries there is a civil code which covers also laws
of families relations and succession. In most countries
family and succession laws are contained in special
statutes standing separate from the local civil codes if
there any inforce. In view of these various models
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 Uniform Civil Code: iVIisconceptions and Reality

available outside India, how do we determine the

meaning and the scope of the expression "Civil
Code" as used in article 44 of the Constitution? shall
be presume that in this provision the terms is just
synonym for family code? Is it right to presume so?

The word 'code' is used in many different senses. It may

mean a single comprehensive statute (e.g. The Indian Penal Code),
but it may also refer to the body of several statute dealing with
the same subject. It is in this later sense that the term Hindu Code
- by which means the four Hindu law statute is enacted during
1955-56. What does, then, article 44 mean? Does it necessarily
talk of a family code, which is single (like the Indian Penal Code),
or does it leave room for a body of several statutes of family law
and succession on the pattern the Hindu code 1955-56."

As far as the word 'uniform' is concerned the standard

dictionaries of the English language do not translate 'uniform' as
'common' and vice-versa.

In recent years we have been hearing a lot about the

sophistry that the constitution speaks of a Uniform Civil Code but
anti-Muslim block wants to introduce a common civil code. h4

P.C. Chatterjee comments :

"I have to confess that the distinction to 'uniform'

and 'common' in this context is one that beats me.

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 Uniform Civil Code: Misconceptions and Reality

No examples are provided of a code which may be

'common' but not 'uniform' or vice versa. For
instance, if a Code prescribes that some men may
have four wives (Muslims) but others may have only
one, would such a Code, be described as uniform? In
ordinary language, one would be inclined to say that
such a code is not uniform because it does not apply
equally to all males. Could such a code be described
as common? I would say again that it is not common
and for the same reason. But supposing it is
contended that a code is uniform it if prescribes a rule
which applies to a particular limited class only and is
not intended to assert anything more" .^'^

Is it, then, not worth examining what are in fact the

requirements of uniformity in respect of a civil code (to the more
specific and accurate of a family code)? Does the Constitution
talks of a strict and rigid uniformity of family law? Is such
uniformity in fact possible. All these questions are indeed worth
pondering in the interest of a smooth, peaceful and harmonious
implementation of article 44 in a forseeable future. Uniformity,
obviously can not be a purposeless goal. The modalities for
translating the mandate of Article 44 into action should be
decided with the reference to its objects and purposes. What does
the law of interpretation provides in such a situation is very
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 Uniform Civil Code: Misconceptions and Reality

beautifully summed up by a writer :

"Generally a mandatory provision is to be construed

strictly, while a directory provision is to be construed
liberally. There is no reason to adopt a different line
of reasoning in the construction and interpretation of
the Constitution. In all such cases one must consider
the real purpose of the provision, whether statutory or
Constitutional."^^

To conclude the discussion about the scope of the word

uniform used in Article 44. The researcher is fully agreed with the
observation of learned author Dr. Tahir Mahmood :

"The word 'uniform' here (in article 44) has so far

been thoughtlessly regarded as a synonym for the
word 'common', and perhaps nobody has ever
considered why the father of Constitution prefered the
former to the latter expression. I think there is
difference between 'common' and 'uniform' - the
former meaning one and the same in all circumstances
whatsoever and the latter meaning 'same in the similar
circumstances'."^^

To give the answer of the fourth question that whether the

Uniform Civil Code should be applied compulsarily to the all the
citizens of India. It is necessary that every uniform civil law, if
and when enacted, must compulsarily apply to all Indians? In this
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 Uniform Civil Code: Misconceptions and Reality

regard the observatios made by Dr. B.R. Ambedkar is worth

mentioning which he made while concluding the debate on uniform
civil code in the Consititute Assembly :

"Nothing would prevent a future parliament from

enacting a civil code and making it applicable only to
these who voluntarily submit to its provisions."^'"

It can safely observed that in our country the personal laws

applicable to different communities are 'veriform'. This diversity
in personal in laws is not only based on religion or religious or
group but it also due to the customs of the people. The myth that
the Muslim Personal Law is the only of obstacle in the
procurement of the Uniform Civil Code is totally baseless. In fact
the personal laws of the majority community are more veriform
than the personal laws of minorities' community. The meaning and
scope of Article 44 is generally misunderstanding not only by the
laymen but the by law men also.

Summary

Uniform Civil Code is the victim of certain misconceptions

and realities and it is an irony that the interpretation as well as
implementation of Article 44 of our Constitution is not being taken
into account in its right perspective.

There are prejudicial attemtps on the part of legislature and

court both to examine the whole issue from a 'majoritarian'
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 Uniform Civil Code: Misconceptions and Reality

approach. Such attemtps defeat the very purpose of Article 44 for

uniformity in personal laws.

India is a large country with diverse personal laws and

customs. These diversities are by product of different customs,
regions and territorial separation. Again there are specified groups
who enjoy special treatment like tribal laws which were allowed to
continue even by Constitution of India. Beside that Constitution
itself created two privileged class viz., the "Scheduled Caste"
and "Scheduled Tribe". We have a spectrum of personal laws
and customs as diverse as nation's languages, cultures and
geographical realities.

There is erroneous quest for Uniform Civil Code simply

because Article 44 does not direct the legislature to enact a civil
code. It contains a principle basically for "Uniformity" in civil
laws.

Whenever Muslim Personal Law is debated it lacks

intellectual impartiality. Media reportage, academic analysis and
often politician's view points reflect the vested interests of those
concerned. Often Muslim Personal Law is shown as defective and
discriminatory.

The question is - what does Article 44 demand? It desires to

provide nation's citizen uniformity in civil laws but applicable on
those who voluntarily accept and submit to its provision. Thus, it
wants only a shift from veriform to uniform.
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 Uniform Civil Code: Misconceptions and Reality

References

1. Tahir Mehmood, Personal Laws in Crisis, p. 31 (1986).

2. Constitution of India 1950, schedule VIII : List III, Entry 5.
3. See Hindu Succession Act 1956; also sec Kerala Hindu Joint
Family Abolition Act, 1975.
4. See State Amendments of the Hindu Marrige Act 1955 (Uttar
Pradesh, Tamil Nadu); of the Muslim Personal Law {Shariat)
Application Act, 1937 (Andhra Pradesh, Kerala and Tamil
Nadu); and of the Kazis Act 1880 (Mahrashtra).
5. Muslim Dower Act 1920; Dissolution of Muslim Marriages
Act 1939; Hindu Marriage Act 1980 - read with Article 370
of Indian Constitution.
6. See J. Minathur, "Justice in Pondichery" (1973).
7. See Tahir Mehmood, "Matrimonial Laws in Goa, Daman and
Diu : Need for Legislative Action" Islamic C.L.O, (1982), p.
93.
8. Article 371-A, added by the Constitution (13th Amendment)
Act, 1962.
9. Saleem Akhtar and Ahmad Naseem, Personal Laws and
Uniform Civil Code, p. 81 (1998).
14. Hindu Marriage Act 1955, Sec. 2(2); Hindu Succession Act
1956; Sec. 2(2); Hindu Minority and Guardianship Act 1956,
Sec. 3(2); Hindu Adoption and Maintenance Act 1956.
15. Dasrath v. Guru AIR 1972 Ori 78 (Bathwates); Satish v.
Bagram, AIR 1973 Gau. 76 (Borokarchris).
16. Supra note 9 at 82.
17. Hindu Marriage Act, 1955, sec. 5 clauses (iv) and (v).
18. Id Sec. 7.
19. Id Sec. 29(2).

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 Uniform Civil Code: Misconceptions and Reality

20. Hindu Adoption and Maintenance Act 1956, Sec. 10, clauses
(iii) and (iv).
21. See the definition of "Custom and Usage" in Sec. 3(a) of
the Hindu Marriage Act 1955 and Sec. 3(a) of the Hindu
Adoptions and Maintenance Act 1956.
22. Section 4(d), proviso, added by the Special Marriage
(Amendment) Act 1963.
23. Ibid.
24. Supra note 15
25. Tahir Mehmood, Uniform Civil Code : Fictions and Facts,
p. 129(1995).
26. Tahir Mehmood, Personal Laws in Crisis, p. 31 (1986).
27. Supra note 25 at 129.
28. Section 4 class (d) and first scheduled part I, II - Entries 34-
37.
30. The Cooch Bihar (Assimilation of Laws) Act, 1950, passed
by Parliament.
31. See Anisur Rahman vs. Jaleelul Rahman, AIR 1981, Cal. 48.
32. Supra note 9 at 86.
33. (1995) 3SC 635
34. Supra note 25 at 48.
35. Id. at 47.
36. Section 5, Hindu Marriage Act, 1955.
37. Id., Section 7
38. Section 10, Hindu Adoption and Maintenance Act, 1956.
39. Section 6, Hindu Succession Act, 1956.
40. Id., Section 7
41. Ibid
42. Id., Section 5(ii)

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 Uniform Civil Code: Misconceptions and Reality

43. Section 3 in all the Acts.

44. Supra note 9 at 49.
45. See The Muslim Personal Law (Shanat) Application Act,
1937, Mapilla Succession Act 1918 (Tamil Nadu, Kerala).
46. See The Waqf Act 1954; U.P. Muslim Waqf Act 1960; The
Waqf Act, 1995.
47. Dissolution of Muslim Marriages Act 1939; J&K Dissolution
of Muslim Marrige Act 1942.
48. Muslim Women (Protection of Rights on Divorce) Act 1986.
49. Acts Applicable in Assam, Bihar, Bengal, Meghalaya and
Orissa for detail see, Tahir Mehmood, The Muslim Law of
India, p. 55 (1982).
50. J&K Muslim Dower Act, 1920.
51. Tahir Mehmood, "Constitutional Ideal of Uniform Civil
Code - Is Muslim Personal Law a Stumbling Block?"
Religion & Law Review (Vol. Ill, No. 2, 1993), p. 171.
52. Id. at 172.
53. Id. at 173.
54. See Article 14 of the Constitution of India.
55. See Article 25 of the Constitution of India.
56. Article 26 of the Constitution of India.
57. Article 29 of the Constitution of India.
58. Supra note 25 at 133.
59. Minerva Mills vs. Union of India, AIR, 1980, SC 1789.
60. I hid.
61. Ihid.
62. Supra note 25 at 177.
63. Ihid at 127
64. P.C. Chatterjee, "Civil Code, Uniform or Common",
Seminar (No. 441, May 1996), p. 54.
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 Uniform Civil Code: Misconceptions and Reality

65. Ibid.
66. Bindra's Interpretation of Statutes, 7th ed., 1984, edited by
Tahir Mehmood, p. 517.
67. Supra note 26 at 31.
68. Constituent Assembly Debates, Vol. 7, 1947, pp. 550-52.

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