Law that is meant to govern the people finds its roots in the customs that the people of that particular region follow if it is anything against it the people may not follow it and may revolt against it. In a vast country like India with a variety of cultures, practices, religions and prevalent among the masses, there exists a multitude of personal laws that correspond to their religion in governing subjects like marriage, adoption, inheritance, divorce, etc.
Article 25 of the Constitution of India, recognizes this union of states as secular, and every citizen of this country is allowed to preach and practice any religion and will not be on any grounds whatsoever be discriminated against. Article 25 is under Part III of the Constitution which enshrine the Fundamental Rights.
Article 44 of the Indian Constitution, is under Part IV i.e., Directive Principles of State Policy, it states that,
“Uniform Civil Code for the citizens: —
The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The Uniform Civil Code in India aims to establish a consistent legal framework governing personal affairs for all citizens, irrespective of their religious affiliations. This step is aligned with India’s secularist approach, aiming to ensure equal treatment for everyone, regardless of their faith, especially in matters related to marriage, inheritance, adoption, divorce, and maintenance. The issue revolves around the existing variations and inconsistencies within personal laws.
1. The Existing Personal Laws In India
India, a land of diverse cultures, religions, and ideologies, grapples with the challenge of preserving minority identities amidst a prevailing majority. Since independence, India has diligently strived to protect and promote the distinctiveness of its minority groups while fostering unity toward the nation’s development and public welfare goals. Articles 29 and 30 of the Indian Constitution stand as stalwarts, safeguarding the right of individuals to follow their beliefs and practices while Articles 14, 19, and 21 guarantee equality and freedom to people from all walks of life that tends to get overlooked in various religious practices.
Despite these constitutional provisions, religion continues to hold significant sway in many parts of India, influencing people’s responses to various situations. Acknowledging the need to maintain secularism, the Indian legislature recognized the laws and obligations of different religions. This acknowledgment led to the establishment of Personal Laws, which govern matters such as inheritance, guardianship, adoption, marriage, divorce, and succession based on an individual’s religious affiliation. These Personal Laws correspond to various religions, including Hindu, Muslim, Christian, Parsi, and Jewish, reflecting the diverse religious fabric of the nation.
1.1 Hindu Personal Law
The Hindu law is one of the oldest and most rudimentary laws still in use today and is well-known around the world. It is defined by the Hindu Succession Act of 1956, which is a codified law passed by the Indian Parliament on the Intestate (unwilled property) to revise and enforce the Intestate and Testamentary Succession as per Hindu law, but the Indian Succession Act plays a significant role in some cases.
Pre-2005, women lacked equal property rights compared to men. However, after the 2005 amendment, equality was established, allowing women to become Karta or coparceners, a change highlighted in Vineeta Sharma v. Rakesh Sharma.[1] Statutes like the Hindu Marriage Act (1955), Indian Succession Act (1925), and Guardianship and Adoption Act (1956) govern various aspects of Hindu law: adoption, marriage, succession, property, and more. These regulations stem from Hindu personal law, deriving from rituals and statutes, forming the bedrock of Hindu legal development.
1.1.1 Guardianship:
The Hindu Minority and Guardianship Act of 1956 revised, regulated, and clarified Hindu law on guardianship of minor children. According to Section 4(b) of the act,[2] a minor is defined as an individual who has not reached the age of eighteen. He is seen as a person who is mentally and physically immature and in need of protection. Sections 6-9 of the act[3] discuss the notion of several guardians in Hindu law, as well as their powers and responsibilities.
1.1.2 Adoption:
Under Hindu law, adoption is a significant practice guided by religious beliefs. The Hindu Adoption and Maintenance Act, of 1956, regulates adoption, mandating that all adoptions comply with its provisions. Initially, only males could adopt, but an amendment now permits females to adopt. This statute applies nationwide, except in Jammu and Kashmir, and applies to all Hindus. Sections 6-17 of this Act delve into the intricacies of adoption, outlining its processes and intricacies.
1.1.3 Divorce:
The Hindu Marriage Act governs divorce in Hindu law. Section 10 of the Indian Divorce Act of 1869 allows women to divorce for grounds such as adultery, bigamy, desertion, etc. Later, Section 10A introduced mutual consent as a means for divorce. Sections 11 to 30 cover various aspects of divorce. Divorce emerged post-1956 due to the absence of mechanisms and prevalent practices like Sati. To address the curtailment of women’s rights, lawmakers recognized the necessity and passed this legislation.
1.2 Muslim Personal Law
When we talk about Muslim law, we mean a codified law ruled by Muslim Law (Shariat) 1937, which governs all rules pertaining to divorce, maintenance, inheritance, and so on. The Quran is primarily the source from which Muslim law is derived. Despite the fact that the Muslim population is divided into two major groups:
- Shia Law
- Sunni law
Both groups are ruled and managed by their own rules, but the laws that govern them are primarily taken from the Quran, which is regarded to be God’s Word and is followed by any Muslim.
1.2.1 Adoption:
Islamic law doesn’t recognize adoption as Hindu law does, as seen in Mohammed Allahabad vs Mohammad Ismail,[4] where the court upheld the absence of adoption in Muslim law. Instead, Islamic law acknowledges paternity. The key difference lies in how the adopted individual is referred to in adoption, they’re considered the child of someone else, while in paternity, acknowledgment doesn’t establish them as the child of another. The Guardianship and Wards Act of 1890 allows individuals to adopt a child with court permission.
1.2.2 Guardianship:
Islamic authorities categorize guardianship of a minor’s property as an inference. Sources of Muslim law firmly talk about guardianship of a minor’s property as guardianship of a person is just an assumption since Muslim personal laws are not formalized like other laws.
1.2.3 Succession:
The notion of distinct property is not recognized by Muslim law. When a Muslim individual passes without making a will, the estate within his ambit of ownership will be divided amongst legal heirs following the deduction of some costs from the remaining property also named as heritable property.
1.2.4 Distribution Of Property:
The Shia and Sunni schools of law are two schools of Muslim law. Under Shia law, a deceased person’s property is divided per strip, which means according to the relationship in their family and the quantity is determined by the branch wherein they live and the number of individuals in their branch, whereas under Sunni law, the heritable asset is split per capita, which means per head, and everyone gets an equal amount.
1.2.5 Divorce:
Under Muslim law, divorce is controlled by the Muslim Marriages Act of 1939. According to the statute, divorce can occur in one of two situations:
- if it is done from the side of the wife, it is termed as Judicial Divorce.
- if it proceeded by the husband, it is termed as Extra Judicial Divorce.
In Shia and Sunni law, various elements must be met before a divorce may be considered legitimate, such as capacity, formalities, and the use of express words, as well as free consent. As a result, divorce is allowed under Muslim law and it can be accomplished in a variety of ways, including by mutual permission of both parties.
In the case of Daniel Latif vs Union of India,[5] the restitution of divorcee Muslim women who have been divorced by the way of Talaq-e-ahsan, where earlier the husband provided restitution for the period of Iddat period alone, it was held that the husband must provide restitution even beyond the period the Iddat.
After a lot of deliberation and discussion and some backlash, the courts in the case of Shayara Bano vs. Union of India,[6] declared Talaq-e-bidder or Triple Talaq as unconstitutional.
1.3 Christian Personal Law
Christian Personal Law or family law regulates Adoption, Divorce, Guardianship, Marriage, and Succession in India. The provisions of canon law concerning marriage are recognized as the personal law of Catholics in India (except in the state of Goa). The Indian Christian Marriage Act, of 1872 regulates marriages of Indian Catholics (except in the state of Goa).
1.3.1 Adoption:
Christians in India can adopt children under section 41 of the Juvenile Justice (Care and Protection of Children) Act 2006, as well as different state government guidelines and rules.
1.3.2 Divorce:
In Christian personal law, both husband and wife can seek a divorce on the grounds of Adultery, Cruelty, Desertion, Insanity, Incurable leprosy, Conversion, Wilful refusal to consummate the marriage, Communicable Venerable Disease, Failure to obey the order for restitution of conjugal rights.
Additionally, the wife can file for divorce on the following grounds
- Rape
- Sodomy
- Bestiality
1.3.3 Guardianship:
In concerns regarding guardianship of children in respect of their person and property, Christians in India are regulated by the principles of the Guardians and Wards Act (Central Act No 8 of 1890).
1.3.4 Marriage:
The Indian Christian Marriage Act of 1872 governs Christian marriage in India. Except for the regions that became Travancore-Cochin, Manipur, and Jammu & Kashmir immediately before November 1, 1956, the law extends to all of India. As a result, the legislation does not apply to Christian weddings solemnized in the erstwhile Travancore and Cochin, which are now part of Kerala.
1.3.5 Succession:
The Indian Succession Act of 1925 revised and unified the Indian Succession Act of 1865. However, neither Indian Succession Act of 1865 nor the Indian Succession Act of 1925 were intended to apply to Christians across India.
1.4 Parsi Personal Law
The Parsi community adheres to distinct marriage customs outlined in the Parsi Marriage and Divorce Act, 1936. This comprehensive legislation, spanning 53 sections, outlines prerequisites for Parsi marriages. It mandates the absence of kinship between marrying parties and sets minimum ages of 18 for females and 21 for males. The marriage ceremony involves a priest and requires two Parsi witnesses.
However, the Act introduces limitations on property rights for non-Parsi spouses, particularly impacting women. A Parsi woman marrying a non-Parsi forfeits ancestral property rights, and non-Parsi spouses of Parsi men receive only half of the property, sparking concerns over gender discrimination within these provisions.
Moreover, the Act addresses bigamy, deeming it punishable under the Indian Penal Code if a Parsi individual remarries without legally terminating their existing marriage under the Parsi Marriage and Divorce Act, 1936. These legal intricacies highlight the specific regulations governing Parsi marriages in India, allowing the Parsi community to maintain its distinctive traditions while assimilating into India’s social fabric. Despite parallels to Hindu and Muslim marriages, the Parsis maintain their unique identity through their customs and rituals.[7]
1.5 Jewish Personal Law
Jewish law, rooted in religious beliefs tracing back to God’s laws to Moses in the Torah, combines Mosaic and Talmudic laws. Marriage and divorce rules, shaped by customary rituals, vary among Jewish communities.
While Mosaic law forms the basis, Jewish legal systems integrate established customs with contemporary regulations. The Talmud guides marriage contracts, dissolution processes, and marital rights, maintaining monogamy and recognizing marriage as a dissoluble contract.
For marriage termination, options include court-issued divorce upon the wife’s petition, court-mandated separation for public morals, or mutual consent. Jewish law intertwines religious mandates with evolving legal norms, adapting to modern changes while adhering to ancient traditions. The case of Mozelle Robin Solomon V Lt. Col. R.J. Solomon[8], explored divorce and marriage laws among Jews, affirming a wife’s right to divorce or live separately while seeking support from her husband.[9]
2. Uniform Civil Code
UCC is a proposed law that would establish a single national law that would apply to all communities in personal concerns such as marriages, dissolution of marriages, succession, and adoption. According to Article 44 of the Constitution, the state must make every effort to provide citizens with a UCC throughout India’s territory. One of the Directive Principles of State Policy is Article 44 (DPSP).
The Uniform Civil Code is a concept to create and execute personal laws that apply to all people equally irrespective of faith, gender, race, or sexual preference. Personal laws are controlled by religious scriptures of the community. One of the contested pledges maintained by India’s governing party Bhartiya Janata Party is the implementation of an UCC across the country.[10]
In support of Shariah and religious practices, India’s political left side, conservative religious communities, and factions continue to debate this fundamental subject of secularism in Indian politics.
While Articles 25-28 of the Indian constitution ensure religious liberty to Indian residents and enable religious groups to run their own affairs, Article 44 of the constitution requires the Indian state to formulate national policies based on directive principles and legal principles for all Indian citizens.
The UCC has its origins in colonial India when the British government issued a report in 1835 emphasizing the necessity of standardization in the constitution of Indian laws pertaining to crimes, evidence, and contracts, and particularly endorsing that, personal laws of Hindus and Muslims be left out of such formalization.
During the British Raj, personal laws were initially crafted for Hindu and Muslim communities, with the British hesitating to intervene extensively due to concerns about community backlash. However, in the former Portuguese colony of Goa, the Goa Civil Code emerged, remaining as the sole unified civil code in India even after Independence. Post-Independence, the Hindu Code Acts were enacted, aiming to codify and reform personal laws across various sects within Indian religions—Buddhists, Hindus, Jains, and Sikhs—while excluding Christians, Jews, Muslims, and Parsis as distinct communities from Hindus.
In 1941, the B.N. Rau Committee was established to formalize Hindu law, responding to the increasing need for laws addressing personal matters toward the end of British rule. Acting on the committee’s recommendations, the Hindu Succession Act was passed in 1956, consolidating and codifying laws relating to intestate succession among Hindus, Buddhists, Jains, and Sikhs.
The government has raised concerns about practices like triple talaq and polygamy, citing their infringement upon women’s rights to a dignified existence. This has sparked debates regarding whether constitutional protection for religious practices should extend to those conflicting with fundamental rights. The courts have frequently said in their rulings that the state should strive toward a UCC to create consistency.
There have been many cases that have been in front of courts which have resulted in many reforms in the personal laws of both Hindus and Muslims for instance the Shayara Bano case (triple talaq), the Vineeta Sharma case (Women as coparceners in a Hindu Family), Sarla Mudgal vs. Union of India,[11](Bigamy and Existing Laws on Marriage).
3. Implementation Of Uniform Civil Code In India
There will be less opposition to the fact that the existing personal laws, whether it is Hindu or Muslim or Christian or any other religion, are discriminatory in some aspects and some sections of the society. Thus, there is a rise in the number of people who are in support of implementing a standard code in India that governs all matter relating to marriage, divorce, succession and so on.
However, some criticisms in UCC are brought up every time there is a discussion regarding this topic.
- It is generally argued that these varying laws are indicators of diversity in India and if a standard code is introduced this diversity will be threatened.[12]
- Article 25 of the Indian constitution, protects the right to exercise and propagate any religion, and if UCC is implemented then this right will be violated.[13]
- In the framework of community politics, the proposal for a uniform civil code has now been made. A significant portion of the population views it as majoritarianism disguised as social change.[14]
- India is known for its diversity in the world and to preserve this diversity in this country these personal laws need to be maintained.
- In a country like India the people will not be ready accept such a great change in the matters of their house no matter how visionary the idea is.[15]
However, provided it is implemented properly, the introduction of the Uniform Civil Code will be beneficial, all the while maintaining our country’s uniqueness.
The introduction Uniform Civil Code in India will help in protecting the vulnerable and marginalized sections of the society, for instance, women and minorities based on religion. This move will also help in strengthening the sense of unity among the population of India which, due to varying personal laws, has deteriorated. There have been a plethora of cases that have been fought for equality for women in the existing Personal laws and there still are a lot of reforms that need to be taken. If the Uniform Civil Code is enacted, then these personal laws will no longer be applicable eliminating any gender prejudices.
Moreover, the current multitude of legislation has caused a lot of complexities in personal laws due to them being applicable based on the religion of a person. The code will make the complicated regulations of civil marriages, inheritance, succession, and adoptions easier to understand and apply to everyone. All citizens, regardless of their faith, shall be subject to the same civil law.
As enshrined under the Preamble of the Indian Constitution the objective of secularism primarily means the separation of state from the religious institution. The current personal laws are in direct contradiction to the same. By formalizing the personal laws based on the religion of the individual the state in trying to get religion involved in the functioning of the country. Therefore, instead of differentiating regulations based on religious customs, a secular republic requires a common law that applies to all residents.
4. Conclusion And Suggestions
India’s diverse society embraces various religions and traditions, reflected in its legal system accommodating personal laws based on faith. Article 25 ensures religious freedom, while Article 44 advocates for a Uniform Civil Code, aiming for consistent personal laws regardless of religion. The goal of the Uniform Civil Code is to standardize personal matters like marriage, inheritance, and divorce to address existing inconsistencies and ensure equal rights for all, particularly women. However, its implementation faces opposition for potentially infringing on religious rights protected by Article 25.
Following changes in the current trend of amendments and judgments, the need for a Uniform Civil Code has been recognized and efforts made in that direction have been praised by jurists. The State of Goa can be seen as a precedent for the implementation of UCC in the entire country. To begin the implementation of such a law in India the government must work hard to create trust, but more significantly, to find common ground with social activists instead of religious conservatives. A middle ground must be achieved between societal expectations and governmental obligations.
To make the introduction of UCC easier the government can instead of taking a hard stance, can allow the implementation to be done in phases concerning characteristics. For instance, after the enforcement of CARA, the process of adoption is standardized, this can be done in case of divorces as well, where a standard law is introduced pertaining to the dissolution of marriages, which can then be extended to marriages in the future.
In addition to the above the government can also implement such laws in specific states and territories gauge the response and then move on to implement them in the remaining states and territories based on the reaction of the people affected with requisite amendments.
[1] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
[2] Hindu Minority and Guardianship Act, 1956, Section 4(b).
[3] Ibid.
[4] Mohammed Allahabad vs Mohammad Ismail (1888) ILR 10 All 290.
[5] Daniel Latif vs Union of India (2001) 7 SCC 740.
[6] Shayara Bano vs. Union of India (2017) 9 SCC 1.
[7] Parsi Personal Law, Lawsisto, available at <https://lawsisto.com/legalnewsread/NTgxMQ==/Parsi-Personal-Law> accessed on 13th December 2023.
[8] Mozelle Robin Solomon V Lt. Col. R.J. Solomon AIR 1983 Bom 263.
[9] Jewish Law of Marriage and Divorce in India, IPleaders, Available at <https://blog.ipleaders.in/jewish-law-marriage-divorce/> accessed on 14th December 2023.
[10] Jayesh Rao, Implementation of Uniform Civil Code in India, Legal Service India. Available at <https://www.legalserviceindia.com/legal/article-4743-implementation-of-uniform-civil-code-in-india.html> Accessed on 14th December 2023.
[11] Sarla Mudgal vs. Union of India AIR 1995 SC 1531.
[12] Krishnadas Rajagopal, Uniform civil code neither necessary nor desirable at this stage, says Law Commission, Times of India. Available at https://www.thehindu.com/news/national/uniform-civil-code-neither-desirable-nor-necessary-at-this-stage-says-law-commission/article61498390.ece accessed on 15th December 2023.
[13] Law Commission of India, ‘Consultation Paper on Reform of Family Law’, (Government of India, 31 August 2018).
[14] Ibid.
[15] Faizan Mustafa, An Expert Explains: The issues in uniform civil code, The Indian Express, Available at <https://indianexpress.com/article/explained/expert-explains-issues-in-uniform-civil-code-7771828/> Accessed on 16th December 2023.
Author: Raghvi Kanwal
Juris Centre 