TITLE OF THE RESEARCH PAPER 

By
Name of the Student: Aishani Chakraborty
Roll No.: 2019118
Semester: 3
Name of the Program: 5 year (B.A. LL.B.)
Name of the Faculty Member: Prof. Lakshmipati Raju
Date of Submission:

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, 
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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 TABLE OF CONTENTS

TITLE PAGE NO.

1. Acknowledgement 4
2. Abstract 5
3. Introduction 8
4. Uniform civil code and personal laws 10
5. Case Laws on Uniform Civil Code 11
6. Uniform Civil Code and secularism 12
7. Uniform Civil Code and the Gender Justice 13
8. Recommendations and Conclusion 15
9. Bibliography

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 ACKNOWLEDGEMENT
I have endeav0red t0 attempt this pr0ject. H0wever, it w0uld n0t have been feasible
with0ut the valuable supp0rt and guidance 0f Pr0f. Lakshmipati Raju. I w0uld like t0
extend my sincere thanks t0 him.

I am als0 highly indebted t0 Dam0daram Sanjivayya Nati0nal Law University Library

Staff, f0r their patient c0-0perati0n as well as f0r pr0viding necessary inf0rmati0n & als0
f0r their supp0rt in c0mpleting this pr0ject. My thanks and appreciati0ns als0 g0 t0 my
classmates wh0 gave their valuable insight and help in devel0ping this pr0ject.

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Abstract

“This pr0ject primarily talks ab0ut the c0ncept 0f the Unif0rm Civil C0de and its legal
dimensi0ns. I have tried t0 examine the basic essence 0f the Unif0rm Civil C0de and what d0es
it mean and its legal pr0spective and the0ries. This pr0ject starts with the intr0ducti0n t0 the
Unif0rm Civil C0de in which it defines the c0ncept 0f the Unif0rm Civil C0de and als0
discusses ab0ut its 0rigin 0r where it has derived fr0m. It briefly talks ab0ut the hist0ry 0f the
Unif0rm Civil C0de and then discusses ab0ut the relati0nship 0f the Unif0rm Civil C0de with
the pers0nal laws. In this part it discusses h0w the pers0nal laws, play an imp0rtant r0le when it
c0mes t0 the f0rmati0n 0f the Unif0rm Civil C0de. It further discusses the need 0r desire f0r the
Unif0rm Civil C0de under this part itself, that whether the Unif 0rm Civil C0de sh0uld be
implemented 0r n0t and what are the pr0s and c0ns 0f the same. As we further pr 0ceed t0wards
the appr0ach 0f the pr0ject, it discusses ab0ut the relati0nship 0f the Unif0rm Civil C0de with
the Secularism and discusses h0w the implementati0n 0f the Unif0rm Civil C0de may lead t0 the
disintegrati0n 0f the nati0n and h0w this will lead t0 the breakd0wn 0ff the peace and harm0ny
am0ng the pe0ple. Then it further discusses ab0ut the Unif0rm Civil C0de and the c0nstituti0nal
guarantees. As we further pr0ceed, then it discusses ab0ut the relati0nship between the Unif0rm
Civil C0de and the gender justice and human rights. This pr 0ject als0 talks ab0ut vari0us
judgements and the take 0f the Indian Judiciary t0wards the Unif0rm Civil C0de. Last but n0t the
least, this pr0ject c0ncludes with certain sets 0f rec0mmendati0ns and c0nclusi0ns which aims t0
spread kn0wledge and make the readers inquisitive ab 0ut their appr0ach 0n the t0pic 0f Unif0rm
Civil C0de and its Legal Dimensi0ns.

Scope and Objective Of The Study

The 0bject 0f the study is t0 analyze the c0ncept 0f the Unif0rm Civil C0de. A study 0f the
c0ncept, including s0me research articles and papers al0ng with s0me newspapers and the
hist0ry b00k have been c0nducted t0 bring ab0ut a significant result that helps in impr 0ving the
analytical c0ncept 0f the Unif0rm Civil C0de in the mind 0f the readers. It aims at pr0viding
deep kn0wledge 0f the subject matter. Its main 0bjective is t0 pr0vide a new s0urce 0f
inf0rmati0n, kn0wledge and wisd0m t0 the readers 0f this article. The critical analysis 0f the
Unif0rm Civil C0de, is a t0pic, which is 0therwise underst00d t0 be s0mething which has
already been established in vari0us different papers, as we see a l 0t 0f j0urnals getting published

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0n the issue 0f the Unif0rm Civil C0de and the gender rights and the human rights and als 0 the
secularism and the Unif0rm Civil C0de but this pr0ject als0 analyses the c0nstituti0nal
perspective and the pers0nal law plea, s0 as t0 understand that if we intr0duce the c0ncept 0f the
Unif0rm Civil C0de ,it can have its 0wn pr0s and c0ns and 0ne needs t0 c0nsider each 0f them
while talking and discussing ab0ut the Unif0rm Civil C0de. The vitality 0f understanding the
c0ncept 0f the Unif0rm Civil C0de , is critical when it c 0mes t0 the understanding 0f the Indian
s0ciety and especially the effect 0f the Indian pers0nal laws.

Research Meth0d0l0gy

This research article is c0mpletely 0riginal and d0es n0t in any way 0r by any means intend t0
plagiarize any material fr0m the internet and d0es n0t intend t0 vi0late any individuals c0pyright.
The meth0d0l0gy ad0pted is largely analytical and descriptive. Reliance has been placed largely
0n sec0ndary s0urces like b00ks and articles.”

Chapterizati0n

This pr0ject has been divided in chapters. It c0nsists 0f f0ll0wing chapters

I. Intr0ducti0n (Chapter I)
II. Unif0rm Civil C0de and Pers0nal Laws (Chapter II)
III. Unif0rm Civil C0de and secularism (Chapter III)
IV. Unif0rm Civil C0de and the Gender Justice (Chapter IV)
V. Case Laws (Chapter V)
VI. Rec0mmendati0ns and C0nclusi0n (Chapter VI)

Research questi0n

1. What is the relati0nship 0f the Unif0rm Civil C0de and the Pers0nal Laws 0f the c0untry
and h0w d0 they effect each 0ther?
2. What are the effects 0f the Unif0rm Civil C0de 0n the c0ncept 0f the Secularism?

Hyp0thesis

When researching ab0ut any t0pic, we have t0 be clear ab0ut the issues, s0 when it c0mes t0
talking ab0ut this t0pic, s0me 0f the maj0r issues I f0und were that w0men were regarded as

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sec0ndary in the patriarchal s0ciety that has existed in India since its very incepti 0n, but d0 the
c0ming up 0f the “Unif0rm Civil C0de help the matter in any way. An0ther imp0rtant issue that
we f0und was that m0st 0f the times, we see t0 it in 0ur day t0 day lives, that pe0ple 0ften tend t0
talk ab0ut the unif0rm civil c0de, with0ut kn0wing it's real essence and the pr 0s and c0ns 0f it.
S0me issues really need t0 be l00ked at because there are certain chances that even if the law
prevails in the fav0ur 0f the unif0rm civil c0de, the pe0ple pertaining t0 their lack 0f awareness
and kn0wledge, d0 n0t c0nsider themselves t0 be at the receiving end, but if we think ab0ut it, at
the end 0f the day all 0f us be it any 0f religi0n, there will be regi0nal and pi0us issues. The
religi0us identities that exist in 0ur c0untry sh0uld n0t feel like they are being 0vershad0wed 0r
d0minated by a set 0f rules which are n0t even their 0wn. These are s0me 0f the issues that will
be dealt by us in the f0ll0wing pr0ject.”

Ch 1 - Intr0ducti0n

“India is a secular state and nati 0n, which means that it d0es n0t f0ll0w any 0ne particular
religi0n 0r there is n0 0fficial religi0n f0r the c0untry. It means that the state will n0t be
dependent 0n any kind 0f religi0us instituti0ns f0r taking decisi0ns f0r the state, it will n0t
interfere with the religi0us matters and the religi0n will n0t interfere with the efficacy 0f the
state. India is als0, the w0rld's largest dem0cracy and the sec0nd m0st p0pul0us c0untries 0f the
w0rld and it is emerging as a maj0r p0wer since the 1990's. It has a str0ng military and has
cultural influence 0ver everything and its ec0n0my is fast gr0wing and p0werful. India is a
highly diverse c0untry with s0 many linguistic, cultural and religi0us identities. This is als0
reflected in its federal p0litical system, whereby p0wer is shared between the central g0vernment
and the states. Religi0ns n0t 0nly have been serving as the f0undati0n 0f the culture 0f India, but
have had en0rm0us effect 0n Indian p0litics and s0ciety. In India, religi0n is a way 0f life. It is
an integral part 0f the entire Indian traditi0n. A vast maj0rity 0f Indians, (0ver 93%) ass0ciate
themselves with the religi0n. Acc0rding t0 the 2001 census 80.5% 0f the p0pulati0n 0f India
practice Hinduism, Islam, Christianity, Sikhism, Buddhism and Jainism are 0ther maj0r religi0ns
f0ll0wed by the pe0ple 0f India. There are als0 numer0us min0r tribal traditi0ns, th0ugh these
have been affected by maj0r religi0ns such as Hinduism, Buddhism and Christianity. It is in this
diverse c0ntext that the c0ncept 0f the Unif0rm Civil C0de need t0 be analyzed.”

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As it is already said that India has numer 0us religi0ns and languages, the pe0ple 0f vari0us
religi0ns have been g0verned by their 0wn pers0nal laws since time immem 0rial. It leads t0 a
different treatment meted 0ut t0 different classes 0f pe0ple in their pers0nal laws. There are
different pers0nal laws f0r different religi0us pe0ple such as f0r the Hindus Hindu marriage act,
Hindu successi0n act, Hindu ad0pti0n and maintenance act, and als 0 the Hindu guardianship act,
f0r the different purp0ses such as the marriage, ad0pti0n, successi0n, guardianship etc. Muslims
and Christians are g0verned by their separate pers0nal laws and the reas0n why we have separate
pers0nal laws is that every religi0us gr0up has different beliefs, cust0ms and practices and it is
p0ssible that the practices and beliefs 0f 0ne religi0n may c0ntradict with the 0ther 0ne and s0
f0r the peaceful running 0f the s0ciety, we have different pers0nal laws. It can be seen 0ften that
the pers0nal laws 0ften face difficulty when the questi0n 0f successi0n, marriage, div0rce,
inheritance, ad0pti0n, maintenance, guardianship etc. The difficult p0rti0n 0f them arises
because different kind 0f judgement sh0uld be given in different situati0ns and there is difficulty
in the distributi0n 0f justice. The part 0f the distributi0n 0f justice d0es n0t Unif0rm Civil C0de
And Its Legal Dimensi0ns remain unif0rm in its applicati0n and faces a l0t 0f difficulty and s0 t0
s0lve this decisive steps were taken t0wards the nati0nal c0ns0lidati0n in f0rm 0f idea 0f
unif0rm civil c0de which was f0r the first time m00ted seri0usly in the C0nstituent Assembly in
the year 1947.

“The Unif0rm Civil C0de as envisaged in the Article 44 0f the C0nstituti0n includes inter alia,
entire gambit 0f family laws. As far as the unif0rm legislati0n is c0ncerned, we have alm0st
c0vered every aspect 0f law except matrim0nial laws. There is n0 unif0rm civil c0de 0f law
applicable t0 the marital relati0n 0f all, irrespective 0f ethnic 0r religi0us affiliati0ns. S0 thr0ugh
Article 44, the m0dern State is called up0n t0 perf0rm its 0ner0us resp0nsibility 0f giving
unif0rm” civil c0de 0n the ab0ve subject, applicable t0 all the citizens 0f the c0untry. The term
Unif0rm Civil C0de and its meaning itself came under intense scrutiny during the C 0nstituent
Assembly Debates. Muslim members were very defensive against this pr 0visi0n and did n0t shy
speaking against it. Mr. B. P 0cker Sahib Bahadur wanted t0 kn0w what the term “unif0rm civil
c0de” stand f0r and which particular law 0f which particular c0mmunity were the framers 0f the

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pr0visi0n g0ing t0 take as the standard. This was really imp 0rtant and even if we talk ab0ut a
unif0rm civil c0de t0day, we need t0 kn0w ab0ut the standard pr0visi0n 0f all the religi0ns that
we have right n0w in the c0untry. The pr0blem is that if take anything standard 0ut 0f the law 0f
the religi0us maj0rity, then the min0rities will rebel and c0mplaint and it will n0t be fair 0n the
part 0f the legislature t0 d0 s0 because India is a secular c0untry and the secular pr0visi0n is the
basic structure 0f the c0nstituti0n and it cann0t be amended in any manner. The Muslim
member's 0pined that the w0rd civil c0de did n0t c0ver strictly pers0nal law 0f the citizens .If it
was Muslim law which was t0 be kept as the standard law, then the situati0n w0uld have been
that the min0rities w0uld have been ruling the maj0rity and then the never ending quarrels
between the Hindus and “Muslims have been the talk 0f the t0wn since time immem0rial. It is
very wr0ng t0 set standards in a secular s0ciety and especially in a s0ciety like India where there
is ethnic and religi0us and even linguistic plurality. The reas 0n is that if we give imp 0rtance t0
0ne, the 0thers will rebel and it will lead t 0 hav0c in the s0ciety, which is very much evident in
the hist0ry 0f the c0untry. Giving imp0rtance t0 any 0ne religi0n and setting standards which
d0es n0t suit the 0ther religi0ns, is a call f0r the disintegrati0n 0f the c0untry, disturbing the
internal peace and security and the unity 0f the c0untry. The c0untry can face maj0r disasters in a
situati0n like this. Mr. M.C. Chagla, a f0rmer Minister while making a vehement plea f0r
unif0rm civil c0de wr0te, Article 44 is a mandat0ry pr0visi0n binding the g0vernment and it is
incumbent up0n it t0 give effect t0 its pr0visi0n.” The c0nstituti0n was enf0rced and enacted f0r
the wh0le c0untry, which means every secti0n and c0mmunity has t0 accept its pr0visi0ns and
its directives. The C0nstituti0n 0f India in Article 44 enj0ins, that the State shall endeav0ur t0
secure f0r the citizens a unif0rm civil c0de thr0ugh0ut the territ0ry 0f India. It is 60 years 0r
m0re, yet we have n0t been able t0 attain that level 0f s0phisticati0n t0 accept and ad0pt the
c0nstituti0nal mandate, and the basic reas0n behind this is that even th 0ugh we talk ab0ut peace,
harm0ny and br0therh00d, when it c0mes t0 the relati0nship 0f the Hindu and the Muslim
c0mmunity, we 0ften are traced back t0 the bl00dshed that t00k place at the time 0f the
independence and 0ur 0pini0ns are 0ften based 0n the hatred and enemity that prevails since a
century n0w.

Ch 2 - Unif0rm civil c0de and Pers0nal laws

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“Under this part 0f the paper, we will be f0cussing m0re 0n the relati0nship between the pers0nal
laws and the Unif0rm Civil C0de and h0w the pers0nal laws will be affected by the Unif0rm
Civil C0de. In this part 0f the paper we will als0 be discussing ab0ut the vari0us pr0visi0ns in
the pers0nal laws that p0se a seri0us threat against equality and are discriminat 0ry in nature and
that they give us a string reas0n f0r us t0 have a Unif0rm Civil C0de. When we c0nduct a study
0f the pers0nal laws, we c0me t0 kn0w that the w0men have always been” c0nsidered inferi0r t0
the p0siti0n 0f men and that India is a patriarchal s 0ciety since the ancient times. The w0men are
c0nsidered inferi0r in m0st 0f the pers0nal matters as c0mpared t0 men, especially when it
c0mes t0 the discussi0n 0f the t0pic 0f the matrim0ny 0r the successi0n, ad0pti0n 0r even the
inheritance. There have been vari0us instances which petrify my 0pini0n. Under the Hindu Law
specifically, in the year 1955 and 1996, the Hindu w 0men did n0t enj0y equal rights al0ng with
the Hindu men be it anything 0r any matter. Bef0re 1955 p0lygamy was prevalent am0ng the
Hindus. The Hindu w0men c0uld n0t h0ld any pr0perty as its abs0lute 0wner except in the case
0f Stridhan. She had 0nly limited estate which was passed 0nt0 the legal last full heirs 0f the
male 0wner called revisi0nary 0n her death. She 0wned a limited interest, in the sense that
whenever an issue came up f0r the deserti0n 0f the pr0perty and m0rtgaging 0r selling the
pr0perty, she c0uld n0t d0 it 0n her 0wn. When it came t0 the matter 0f ad0pti0n a Hindu w0men
did n0t have the right t0 ad0pt a child 0n her 0wn. She c0uld n0t be natural guardian 0f her
children during the life 0f her husband. These examples are illustrative en0ugh t0 sh0w the
patriarchal nature 0f the Indian s0ciety.

“Even th0ugh the Hindu law has been c0dified, certain discriminat0ry pr0visi0ns Unif0rm Civil
C0de and Its Legal Dimensi 0ns still exist even t0day. F0r example a Hindu w0man is n0t a
c0parcener in Hindu c0parceners except in a few states like Andhra Pradesh, Maharashtra,
Karnataka and Tamil Nadu. C0nsequently she is n0t entitled t0 the share in the c0parcenary.
Thus it is 0blivi0n t0 the fact that the c0dificati0n 0f pers0nal laws 0f Hindus has n0t succeeded
c0mpletely in eradicating the gender inequality. When it c 0mes t0 discussing ab0ut the Muslim
Law, in the Pre-Islamic Arabia, the w 0men enj0yed a sec0ndary status because since then it has
been a patriarchy since then. The w 0men since then were c0nsidered sec0ndary t0 men. The
advent 0f Islam has c0ntributed much when it c0mes t0 the deteri0rati0n 0f the Muslim w0men
and the escalati0n 0f their pr0blems. The H0ly Quran gives equal rights t0 men and w0men and
places w0men in a respectable p0siti0n.” H0wever, there are certain aspects in Islam that render

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the p0siti0n 0f Muslim w0men especially the wives insecure and inferi0r. In Islam, a man is
all0wed t0 marry f0ur times whereas the w0men cann0t and if they d0 they are treated as
unchaste and impure. W0men are n0t even given the right t0 div0rce their husbands, when
particulary the meth0d 0f div0rcing the wife by the husband by pr0n0uncing triple Talak is
highly discriminat0ry. This is inspite 0f the message given in the H0ly Quran. This has been held
v0id and unlawful, recently in the Allahabad High c 0urt judgement. Even in the matter 0f
successi0n, a Muslim w0man “is discriminated against the asserti0n 0f certain Muslim sch0lars
that the Islam in this regard is m 0re pr0gressive and liberal. The legal p0siti0n is that when tw0
sch0lars 0r residuary 0f 0pp0site sex but 0f the same degree inherit the pr0perty 0f the deceased,
the Muslim male gets twice the share 0f the female. Even in the matter 0f maintenance, the
muslim wife is n0t required t0 be maintained bey0nd the Iddat peri0d. The Criminal Pr0cedure
C0de which imp0ses an 0bligati0n 0n the husband t0 maintain his wife including div0rced wife
until she maintains herself is a secular law and is applicable t0 all, h0wever there is a c0ntr0versy
regarding the Muslim men f0ll0wing this pr0visi0n. In the fam0us case 0f M0hd Ahmed Khan
v. Shah Ban0 Begum1, Thee SC speaking thr0ugh Y.V. Chandrachud, the then Chief Justice
held that the Secti0n 125 0f the CrPC is applicable als0 t0 the Muslims and that even a muslim
husband is als0 liable t0 maintain his div0rced wife bey0nd the iddat peri0d. The c0ntr0versy
began and the parliament has passed the Muslim W 0men (Pr0tecti0n 0f Rights 0n Div0rce) Act,
1986 t0 0verrule the judgement in the Shah Ban0 Case. The effect 0f this act is that a muslim
husband is n0t liable t0 maintain his div0rced wife bey0nd the iddat peri0d unless b0th the
sp0uses submit t0 the c0urt at the appr0priate time that they w0uld like t0 be g0verned by the
CrPC. This is like having the pr 0visi0n but n0t using it f0r the sake 0f pr0tecti0n 0f the Pers0nal
law space and n0t giving en0ugh justice t0 the w0man wh0 is suffering s0 much.”

Ch 3 - Unif0rm civil c0de and secularism

The Preamble 0f the Indian C0nstituti0n states that India is a Secular, Dem0cratic, Republic.
This means that there is n0 State religi0n. A secular state shall n0t discriminate against any0ne
0n the gr0und 0f religi0n. A religi0n is 0nly c0ncerned with relati0n 0f man with G0d. It means
that religi0n sh0uld n0t be interfering with the mundane life 0f an individual. The pr0cess 0f
secularisati0n is intimately c0nnected with the g0al 0f unif0rm Civil C0de like a cause and

1
AIR 1994 SC 1918

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effect. In the case 0f S.R. B0mai v. Uni0n 0f India2, as per the Justice Jeevan Reddy, it was
held that religi0n is the matter 0f individual faith and cann0t be mixed with secular activities and
can be regulated by the State by enacting a law. In India, there exists a c 0ncept 0f p0sitive
secularism as distinguished fr0m the d0ctrine 0f secularism accepted by the United States and
the Eur0pean States i.e. there is a wall 0f separati0n between the religi0n and the state. In India,
p0sitive secularism separates spiritualism with individual faith. “The reas0n is that America and
the Eur0pean States went thr0ugh the stages 0f renaissance, ref0rmati0n and enlightenment and
thus they can enact a law stating that State shall n 0t interfere with the religi 0n. 0n the c0ntrary,
India has n0t underg0ne any kind 0f renaissance 0r ref0rmati0n and thus the resp0nsibility lies
0n the state t0 interfere in the matters 0f religi0n s0 as t0 rem0ve the impediments in the
g0vernance 0f the state. “The reas0n why a c0untry like India cann0t underg0 a renaissance is
very clear. We have discussed ab0ve h0w there is prevalence 0f n0t 0nly different religi0ns in
the c0untry but als0 their 0wn pers0nal legislative laws. This is why chances are, that the
c0nflicts, instead 0f decreasing may g0 0n increasing and sh0wing reverse effects 0n the laws
that are made. F0r instance, a practice 0r a traditi0n in 0ne's pers0nal law may be acceptable but
0n the 0ther hand, it may n0t be acceptable t0 the pe0ple 0f 0ther pers0nal laws. S0, when the
traditi0ns will be in practice, the nature 0f the c0nflict will transf0rm itself fr0m general
differences t0 hardc0re enem0sity. Pe0ple find it difficult t0 accept 0r adapt t0 certain changes
and when it c0mes t0 a s0ciety like India where religi0n defines the way 0f life, pe0ple c0nnect
themselves with their religi0n instead 0f understanding that it is the religi0n which is made by
human beings and that human beings are n0t made by the religi0n. This th0ught finds itself in the
graveyard because s0me pe0ple still believe in burning. There needs t 0 be a unif0rm law which
g0verns and regulate the behavi0ur 0f pe0ple 0f all the religi0ns and n0t any particular secti0n 0f
the s0ciety.”

The “Preamble 0f the Indian C0nstituti0n res0lves t0 c0nstitute a "Secular" Dem0cratic

Republic. This means that there is n0 state religi0n 0r in 0ther w0rds the state d0es n0t 0perate
0n any 0ne particular religi0n and shall n0t discriminate 0n the gr0und 0f religi0n. Article 25 and
26 0f the C0nstituti0n 0f India as enf0rceable fundamental rights guarantee freed0m 0f religi0n
and freed0m t0 manage religi0us affairs. At the same time Article 44 which is n 0t enf0rceable in
a c0urt 0f Law states that the state shall endeav0ur t0 secure a unif0rm civil c0de in India.
2
1985 (3) SCR 844

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Unif0rm civil C0de is the unif0rm meth0d 0r the unif0rm law that g0verns the pe0ple as a
unif0rm law and d0es n0t discriminate 0n the basis 0f any religi0n 0r faith. As a new principle
ev0lves and c0mes int0 the kn0wledge 0f the pe0ple several questi0ns arise and criticisms pave
their way. In unificati0n 0f the pers0nal laws, an imp0rtant questi0n that ar0se was what will be
the ingredients 0f the Unif0rm civil c0de. Since, the” pers0nal laws 0f each religi0n c0ntain
separate pr0visi0ns, their unificati0n will bring n0t 0nly resentment, but als0 enemity in the
public t0wards 0ne an0ther, theref0re the Unif0rm Civil C0de will need t0 bring in such laws
that strike a balance between the pr0tecti0n 0f the fundamental rights and the religi0us principles
0f the different c0mmunities that exist in the c0untry. Issues such as marriage, div0rce,
maintenance etc. can be matters 0f secular nature and law can regulate them.”

Ch 4 - Unif0rm civil c0de and gender justice

“As we have already discussed h0w the pers0nal laws vi0late the rights 0f the w0men and d0 n0t
c0nsider them as equal t0 men and c0nsider them sec0ndary, we wish t0 c0nvey that the Indian
s0ciety is trapped in the vici 0us circle 0f the patriarchy d0gma that they are n0t even able t0 see
and respect the human rights 0f the w0men. There is a l0t 0ff c0ntr0versy regarding the gender
justice and the unif0rm civil c0de in being. There is a l 0t t0 c0nsider bef0re 0pting f0r a unif0rm
civil c0de, we need t0 think whether 0r whether n0t t0 bring in the c0ncept and a c0mm0n civil
law t0 every0ne in the c0untry, with s0 much 0f diversity and the legal pluralism existing in the
c0untry. W0men emp0werment has always been the talk 0f the t0wn since decades n0w and n0t
much has been d0ne when the questi0n 0f the pers0nal laws and the w0men arises. W0men
emp0werment in the c0re areas like the s0cial status, gender bias, health, security and the main
c0re emp0werment are 0f exigent needs. The Indian state has infact enc 0uraged c0difying the
tribal c0mmunities laws but there are pr0blems with it, they are ever ev0lving and keep 0n
changing fr0m time t0 time.”

Article 44 0f the Indian C0nstituti0n expects fr0m the State t0 secure a Unif0rm Civil C0de
f0r all the citizens 0f India. There is n0 Unif0rm Civil C0de in India but a Unif0rm Civil C0de
exists. There exists a unif0rmity in the law when it c0mes t0 the legal criminal pr0cedures but
when it c0mes t0 the pers0nal law there is n0 unif0rmity and there cann0t be any unif0rmity
because 0f the prevalence 0f the diversity in the c0untry. The laws relating t0 every religi0n, be
it Hindu, Christian, Parsi and Muslims are different and vary fr 0m 0ne religi0n t0 an0ther. S0me

12
pe0ple and researchers say that Unif0rm Civil C0de sh0uld be implemented and br0ught in the
Indian C0nstituti0n in practicality, h0wever we argue against it and say that it is n 0t 0nly the
pr0blem 0f the gender justice, there are many 0ther pr0blems that wwill arise with the upc 0ming
0f the Unif0rm Civil C0de in the c0untry. There are different pers0nal laws f0r different
purp0ses like the marriage, ad0pti0n, successi0n, inheritance, successi0n and guardianship and
all 0f them differ with each 0ther when it c0mes t0 different religi0us gr0ups in the c0untry.
Theref0re, an upc0ming 0f the Unif0rm Civil C0de, is n0t p0ssible in a c0untry like India f0r the
vari0us different reas0ns. “It is a kn0wn fact that in the pers 0nal laws 0f all the c0mmunities,
gender justice is inbuilt and it is a result 0f the s0ci0 ec0n0mic c0nditi0ns under which they are
ev0lved. That is why there is a need t0 ref0rm the pers0nal laws. When it c0mes t0 the pers0nal
laws w0men underg0 many difficulties and experiences in their lives like the severe trauma in
matters relating t0 the marriage, div0rce and inheritance. P0lygamy, deserti0n and triple talaq are
just a few examples t0 sh0w the p0ssibilities 0f the harassment against w0men. Indian w0men
are f0rmally granted equality in p0litical rights thr0ugh Indian C0nstituti0n but due t0 the
different pers0nal laws, w0men experience inequality, deprivati0n and vi0lence. Within the
family their p0siti0n is pitiable. When it c0mes t0 the real sense 0f equality the Supreme C0urt in
certain cases has 0pined a need f0r the legislati0n f0r a c0mm0n civil c0de 0r a unif0rm civil
c0de envisaged by article 44 0f India's C0nstituti0n sh0uld be enacted. It said in Shah Ban 0's
Case in 1985, in Sarla Mudgal Case in 1995 and in Vallamattam case in 2003. A critical l 00k at
the c0nstituti0nal debate, legislative enactments and judicial decisi 0ns very clearly indicate the
lack 0f seri0usness in ensuring justice t0 w0men. Gender issues need t0 be addressed very
seri0usly and theref0re the pers0nal laws can be amended and need t0 be amended rather than
bringing up a wh0le new unif0rm civil c0de.”

Ch 5 - Case Laws

M0hammad Ahmed Khan v. Shah Ban0 Begum3

In this case, “a penuri0us Muslim w0man claimed f0r maintenance fr0m her husband under
Secti0n 125 0f the C0de 0f Criminal Pr0cedure after she was given triple talaq fr 0m him. The
Supreme C0urt held that the Muslim w0man have a right t0 get maintenance fr0m her husband
under Secti0n 125. The C0urt als0 held that Article 44 0f the C0nstituti0n has remained a dead
3
AIR 1985 SC 945.

13
letter. The then Chief Justice 0f India Y.V. Chandrachud 0bserved that, A c0mm0n civil c0de
will help the cause 0f nati0nal integrati0n by rem0ving disparate l0yalties t0 law which have
c0nflicting ide0l0gies
After this decisi0n, nati0nwide discussi0ns, meetings, and agitati0n were held. The then Rajiv
Gandhi led G0vernment 0verturned the Shah Ban0 case decisi0n by way 0f Muslim W0men
(Right t0 Pr0tecti0n 0n Div0rce) Act, 1986 which curtailed the right 0f a Muslim w0man f0r
maintenance under Secti0n 125 0f the C0de 0f Criminal Pr0cedure.” The explanati0n given f0r
implementing this Act was that the Supreme C0urt had merely made an 0bservati0n f0r enacting
the UCC, n0t binding 0n the g0vernment 0r the Parliament and that there sh0uld be n0
interference with the pers0nal laws unless the demand c0mes fr0m within.

Sarla Mudgal v. Uni0n 0f India4

“In this case, the questi0n was whether a Hindu husband, married under the Hindu law, by
embracing Islam, can s0lemnise sec0nd marriage The C0urt held that a Hindu marriage
s0lemnised under the Hindu law can 0nly be diss0lved 0n any 0f the gr0unds specified under the
Hindu Marriage Act, 1955. C0nversi0n t0 Islam and Marrying again w0uld n0t, by itself,
diss0lve the Hindu marriage under the Act. And, thus, a sec0nd marriage s0lemnised after
c0nverting t0 Islam w0uld be an 0ffence under Secti0n 494[5] 0f the Indian Penal C0de. Justice
Kuldip Singh als0 0pined that Article 44 has t0 be retrieved fr0m the c0ld st0rage where it is
lying since 1949. The H0n'ble Justice referred t0 the c0dificati0n 0f the Hindu pers0nal law and
held, Where m0re then 80 percent 0f the citizens have already been br0ught under the c0dified
pers0nal law there is n0 justificati0n whats0ever t0 keep in abeyance, any m0re, the intr0ducti0n
0f the 'unif0rm civil c0de' f0r all the citizens in the territ0ry 0f India.”

  S.R. B0mmai v. Uni0n 0f India5

Facts.

KARNATAKA

The facts were that the Janata Party being the maj0rity party in the State Legislature had f0rmed
G0vernment under the leadership 0f Shri S.R. B0mmai. In September 1988, the Janata Party and
4
AIR 1985 SC 945.
5
1994 AIR 1918.

14
L0k Dal merged int0 a new party called Janata Dal. The Ministry was expanded with additi 0n 0f
13 members. Within tw0 days thereafter, 0ne Shri K.R. M0lakery, a legislat0r 0f Janata Dal
defected fr0m the party. “He presented a letter t0 the G0vern0r al0ng with 19 letters, allegedly
signed by legislat0rs supp0rting the Ministry, withdrawing their supp0rt t0 the Ministry. As a
result 0n 19.4.1989, the G0vern0r sent a rep0rt t0 the President stating therein there were
dissensi0ns and defecti0ns in the ruling party. In supp0rt 0f his case, he referred t0 the 19 letters
received by him. He further stated that in view 0f the withdrawal 0f the supp0rt by the said
legislat0rs, the chief Minister, Shri B 0mmai did n0t c0mmand a maj0rity in the Assembly and,
hence, it was inappr0priate under the C0nstituti0n, t0 have the State administered by an
Executive c0nsisting 0f C0uncil 0f Ministers which did n0t c0mmand the maj0rity in the H0use.
He, theref0re, rec0mmended t0 the “President that he sh0uld exercise p0wer under Article
356[1].
H0wever 0n the next day seven 0ut 0f the nineteen legislat0rs wh0 had allegedly written the said
letters t0 the G0vern0r sent letters t0 him c0mplaining that their signatures were 0btained 0n the
earlier letters by misrepresentati0n and affirmed their supp0rt t0 the Ministry. The Chief Minister
and his Law Minister” met the G0vern0r the same day and inf0rmed him ab0ut the decisi0n t0
summ0n the Assembly Sessi0n. The Chief Minister als0 0ffered t0 pr0ve has maj0rity 0n the
fl00r 0f the H0use even by pr0p0ning the Assembly Sessi0n, if needed. T0 the same effect, he
sent a telex message t0 the President. The G0vern0r h0wever sent yet an0ther rep0rt t0 the
President 0n the same day i.e., 20-4-1989, and stated that the Chief Minister had l 0st the
c0nfidence 0f the maj0rity in the H0use and repeated his earlier request f0r acti0n under Article
356[1]. 0n that very day, the President issued the Pr0clamati0n in questi0n with the recitals
already referred t0 ab0ve. The Pr0clamati0n” was, thereafter appr0ved by the Parliament as
required by Article 356[3].[3]
A writ petiti0n was filed 0n 26th April 1989 challenging the validity 0f the pr0clamati0n. A
special bench 0f 3 judges 0f Karnataka High C0urt dismissed the writ petiti 0n.
MEGHALAYA
0n 11th 0ct0ber 1991 the president issued a pr0clamati0n under Article 356(1) dismissing the
g0vernment 0f Meghalaya and diss0lving the legislative assembly. The Pr0clamati0n stated that
the President was satisfied 0n the basis 0f the rep0rt fr0m the G0vern0r and 0ther inf0rmati0n
received by him that the situati 0n had arisen in which the G0vernment 0f the State c0uld n0t be

15
carried 0n in acc0rdance with the pr0visi0ns 0f the C0nstituti0n. The G0vernment was dismissed
and the Assembly was diss0lved acc0rdingly.

NAGALAND
“On 7th August 1988, the president issued the pr 0clamati0n 0n the basis 0f G0vern0r Rep0rt and
dismissed the G0vernment 0f Nagaland thus diss0lving the Legislative assembly. Shri Vamuz0,
leader 0f 0pp0siti0n party, challenged the validity 0f Pr0clamati0n in Gauhati High C0urt. A
Divisi0n Bench c0mprising the Chief Justice and Hansaria, J. heard the petiti 0n. The Bench
differed 0n the effect and 0perati0n 0f Article 74[2] and hence the matter was referred t0 the
third Judge. But bef0re the third learned judge c0uld hear the matter, the Uni0n 0f India m0ved
this C0urt f0r grant 0f special leave which was granted and the pr 0ceedings in the High C0urt
were stayed.”

MADHYA PRADESH, RAJASTHAN AND HIMACHAL PRADESH

The “Vishva Hindu Parishad [VHP], RSS and Bajrang Dal dem 0lished the structure 0f Babri
Masjid in Ay0dhya claiming it t0 be Ram Janma Bhumi. It sh0uld be n0ted that that VHP, RSS
and Bajrang Dal are wings 0f the BJP, which at the time 0f dem0liti0n was the ruling party in
Uttar Pradesh. 0n acc0unt 0f this dem0liti0n c0mmunal ri0ts spread 0ut in the entire c0untry.
Thereafter the H0n'ble Supreme C0urt banned RSS, VHP and Bajrang Dal in the c0untry.
H0wever the G0vernment 0f Madhya Pradesh, Himachal Pradesh and Rajasthan failed t0
implement this ban. As a result, the c0nditi0n became w0rst in the ab0ve menti0ned states. There
was t0tal failure 0f Law and 0rder in these states. As a result, 0n 15th December 1992, the
president issued the pr0clamati0n under Article 356 dismissing the State G0vernments and
diss0lving the Legislative Assemblies Madhya Pradesh, Himachal Pradesh and Rajasthan. The
validity 0f these pr0clamati0ns was challenged by the Writs in the appr0priate High C0urts. The
M.P. High C0urt all0wed the petiti0n, but writ petiti0n relating t0 Rajasthan and Himachal
Pradesh were withdrawn t0 Supreme C0urt.”

“Held. H0n'ble Supreme C0urt while adjudicating that a State G0vernment cann0t f0ll0w
particular religi0n discussed at length the c0ncept 0f Secularism. The C0urt held that Secularism
is 0ne 0f the basic features 0f the C0nstituti0n. Secularism is a p0sitive c0ncept 0f equal
treatment 0f all religi0us. This attitude is described by s0me as 0ne 0f neutrality t0wards religi0n

16
0r as 0ne 0f benev0lent neutrality. While freed0m 0f religi0n is guaranteed t0 all pers0ns in
India, fr0m the p0int 0f view 0f the State, the religi0n, faith 0r belief 0f a pers0n is immaterial.
T0 the state, all are equal and are entitled t0 be treated equally. In matters 0f State, religi0n has
n0 place. And if the C0nstituti0n requires the State t0 be secular in th0ught and acti0n, the same
requirement attaches t0 p0litical parties as well. The C0nstituti0n d0es n0t rec0gnise, it d0es n0t
permit, mixing religi0n and State p0wer”

Ch 6 – c0nclusi0n and rec0mmendati0n

When it c0mes t0 the questi0n 0f s0me0ne asking us regarding the desirability 0f the Unif0rm
Civil c0de, we str0ngly believe that there is n0 need 0f the Unif0rm Civil C0de t0 be intr0duced
and this 0pini0n is based 0n several reas0ns which are 0pined bel0w -

* “The first reas0n why we w0uld like t0 state that is, if the Unif 0rm Civil C0de is enacted and
implemented, there are high chances 0f massacre, and ri0ts like situati0ns happening again which
will lead t0 the disintegrati0n 0f the c0untry.

* Sec0ndly, the pr0blem with the Unif0rm Civil C0de and the pers0nal laws will remain the
same and there will be n0 difference because in the Unif0rm Civil C0de, there will be a set
standard 0f rules which will further n0t be able t0 c0ver each and every aspect 0f the pers0nal
law and which will led t0 even m0re pr0blems that we have t0day.”

*Thirdly, when it c0mes t0 the questi0n 0f setting standards 0f the Unif0rm civil c0de, which
law will prevail 0ver the 0ther will create a maj0r pr0blem f0r the c0untry.

*F0urthly, “even if the law is implemented, it will n0t be accepted by the pe0ple 0f the c0untry
and the reas0n behind this is the diversity in the c0untry. Different pe0ple have different beliefs
and 0pini0ns and when it c0mes t0 religi0n in India it is n0t just a way 0f life but it is c0nsidered
as s0mething supreme and ab0ve everything and in such a situati0n setting a c0mm0n standard
f0r all is an invitati0n t0 man-made hav0c.”

17
* Fifthly, when the pe0ple are n0t willing t0 accept the c0de, then f0r wh0m is the c0de being
made f0r. Like it is n0t justifiable t0 make laws and keep them d0cumented in the particular
sense and if this is 0nly the case then there are pers0nal laws t00 which are there f0r the
d0cumentati0n purp0ses.

* Lastly, it is easy t0 say that we will bring in the Unif 0rm Civil C0de, but an imp0rtant
questi0n that arises is that n0 0ne has ever seen a temple and a m 0sque side by side whereas, the
Temple, Gurudwara and the Church can be seen t0gether. Thus, we pers0nally feel that there is
n0 need f0r the c0dificati0n 0f the Unif0rm Civil C0de and the 0nly need 0f the h0ur is t0 amend
the pers0nal laws.

Bibliography

1. Uniform civil code for India by Shimon Shreet and Hiram E. Chodosh
2. Uniform civil code : An ignored constitutional imperative by M.S Ratnaparkhi
3. Indian constitution by M.P Jain

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