Article 44 of the Constitution: A Numb Letter to be Salvaged

This article was written by Shrevina Bhosle, a student of  Government Law College, Mumbai.

INTRODUCTION

Uniform Civil Code is the alternative recommendation for distinctive laws based on personal laws of customs of the vast religious communities which exist in India. The UCC will codify matters relating to divorce, marriage, maintenance, adoption, etc. It is one of the Directive Principles manifested in Article 44 of the Indian Constitution. However, the Directive is not in contradiction with Article 25 of the Indian Constitution. There exists a misconception that the implementation of the Uniform Civil Code will invalidate one to practise his/ her own religion. The Uniform Civil Code has been an important issue in regard to secularism in the country. It was also a controversial topic after the Shah Bano Case in the year 1985 where disputes arose about unreformed laws of the Muslim Personal Law and the Sharia Law. Although India is a diverse country, yet orthodox thinking against women still exists, therefore women face problems due to the divergent laws for marriage, adoption, divorce, inheritance and maintenance.

 In the case of  Mohd. Ahmed Khan vs. Shah Bano Begum (1985 SCR (3) 844, Shah Bano, a Muslim mother of five children from Indore, was divorced by her husband in the year 1978. She filed a criminal suit against her husband in the Supreme Court of India wherein she won the right to alimony from her husband. But the judgement was reversed by the Indian Parliament under dragoon from the Islamic orthodoxy. Criticisms arose regarding the judgement of the Supreme Court and Muslims protested and cited the Quran to state that the judgement was in contradiction with the Islamic Law. It was in this case that it was pointed out that there existed divergent civil code for religions particularly for the Muslims in India. Pursuant to this, the Congress Government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which mitigated the judgement of the Supreme Court and limited the rights of Muslim divorcees to retain alimony from their husbands for only 90 days from the day of divorce. But in later judgements, like Shamima Farooqui vs. Shahid Khan Case, the Act was nullified and the Shah Bano judgement of the Supreme Court was sustained.

ARGUMENTS IN FAVOUR OF THE IMPLEMENTATION OF UNIFORM CIVIL CODE

Reduction in Vote-Bank Politics:

The Uniform Civil Code will put an end to the vote bank politics by the political parties who target religions as a means to gain vote of the people. If there are same set of laws for every religion, the religious sentiments of people will not be used as a form to gain votes by the political parties and people will thus, vote fairly.

Enhancement in the status of women:

With codified uniform personal laws, there will be an augmentation of the status of women in the society and they will not face sufferings with regard to marriage, divorce, succession or adoption.

Uniform Civil Code is the need of Hour:

There is a need for codified uniform personal laws that are gender sensitive, contemporary and enlightened.

Sign of Development:

This will be an indication that the country has developed and moved away from religion and caste contemplation.

Uniform Civil Code not in contradiction to Articles 25 & 26:

Article 25, i.e., Freedom of conscience and free profession, practice and propagation of religion and Article 26, i.e., Freedom to manage religious affairs subject to public order, morality and health, every religious denomination or any section thereof shall have the right guarantee freedom of religion and the uniform civil code is not in contradiction to the same.

ARGUMENTS AGAINST THE IMPLEMENTATION OF UNIFORM CIVIL CODE

No scope for change in status of women:

The arguments against the UCC state that even after the implementation of the UCC there would be no change in the status of women since former laws which were implemented in favour of women have brought no change either. For example, pursuant to the Hindu Inheritance Act, there was no change in the estate upheld by the women.

Opposition from the Minorities:

Some sections of the minorities are against the implementation of the uniform civil code because they feel that after the implementation of the uniform civil code, majority views would be imposed on them and they will be under pressure to act as per the majority. The minorities are of the view that the Hindus (81%), who are in majority would pressurize the minorities’ i.e., the Muslims (13%), Christians (2%), and Others (2%), to act as per their views.

Lack of Political View:

There exists a lack of political will due to the nature of the issue being complicated and vulnerable.

Divergent Religious Communities:

India is a country with diverse religious communities, each with different personal laws which leads to the formation of politicisation and therefore, the implementation of uniform civil code is not possible.

LANDMARK JUDGEMENTS:

The most surpassed judgement that the Supreme Court has issued is the judgement in the case of   Mohd.  Ahmed Khan vs. Shah Bano Begum  (1985 SCR (3) 844, which has already been discussed above. Apart from the Shah Bano Case, there are a few landmark judgements which made a difference in matters of marriage, guardianship and succession and are as following;

1. Shamim Ara vs. State of U.P. and Anr

In this case Shamim Ara, the Appellant and Abrar Ahmed, the Respondent were married in 1968 according to the Muslim Shariyat Law and they had four sons. The appellant on behalf of her and her two minor children filed an application under Section 125 of the Criminal Procedure Code for desertion and cruelty. She was refused maintenance by the Learned Presiding Judge of the Family Court at Allahabad on the ground that she was already divorced by the Respondent. Nonetheless, maintenance of Rs. 150/- every month was allowed for one son of the Appellant, the other son turning a major while the pendency of the proceedings. The Appellant had denied being divorced while the Respondent stated being divorced by the Appellant in the attendance of a Mehboob and around 4-5 persons of the neighbourhood. The divorce said to have been given by him to the appellant was a triple talaq. The Appellant filed for Revision before the High Court. The High Court held that the divorce which is apparent to have been given was not given in the presence of the Respondent and the same was not communicated to her. The High Court held that the Respondent could claim for maintenance. The question that arose before the High Court was whether the Appellant can be said to have been given the divorce since none of the holy books of the Muslims contain as such. Therefore, this case took the problem of Triple Talaq and reinforced the status of the Muslim women.

1. Dilshad Begum Ahmadkhan Pathan vs. Ahmadkhan Hanifkhan Pathan and Anr.

The Petitioner had filed a Misc. Criminal Application under Section 125 of Criminal Procedure Code stating that she was driven out of the house by her husband i.e., the Respondent.  She had claimed for divorce and was granted the same by the Learned Judicial Magistrate, First Class. The said order was challenged by the Respondent in a Revision Petition. It was pointed out in this case that saying of the word “talaq” is not adequate for a divorce. The Court also provided that there needs to be a procedure of appointing arbitrators to reunite the couple.