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Thursday, May 26, 2022

How to make a Uniform Civil Code

Tahir Mahmood writes: Uniform Civil Code must be nationwide, and involve the abolition of all regressive laws

Written by Tahir Mahmood |
Updated: May 14, 2022 9:14:35 am
A state-level UCC seems to be prima facie incompatible with Article 44 of the Constitution. (Illustration: C R Sasikumar)

The reported move to frame a Uniform Civil Code in certain states is the talk of the town. A state-level UCC, however, seems to be prima facie incompatible with Article 44 of the Constitution which proclaims that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The all-India character and extent of the proposed code inherent in this phraseology is too conspicuous to be overlooked. Under the Constitution, family and succession laws are in the concurrent jurisdiction of the Centre and states, but a law to be equally applicable in the entire country can be enacted by Parliament alone. In many cases relating to minorities, the apex court has frowned on continued inaction in this regard, but the addressee of its concern has always been the Centre.

In furtherance of the constitutional goal, Parliament enacted a civil marriage law in 1954, the Special Marriage Act. Not replacing any community-specific law, it was made available to all citizens as a secular alternative. Any man and woman, whether professing the same or different religions, could opt for a civil marriage. Existing religious marriages could also be voluntarily converted into civil marriages by registration under the Act. Section 21 of the Act laid down that all couples married under its provisions and their descendants will, in regard to their properties, be governed by the religion-neutral chapter on inheritance in the Indian Succession Act of 1925. The Special Marriage Act and the Indian Succession Act together were, thus, to constitute a UCC of an optional nature for all Indians alike. The law minister of the time, C C Biswas, had called this “first step towards a UCC”.

To regulate religious marriages among the Hindus, Buddhists, Jains and Sikhs, a new law called the Hindu Marriage Act was enacted in 1955. A Hindu Succession Act came in force next year for the properties of those covered by the 1955 Act. Section 29 (4) of the Act clarified that “Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954”. The 1954 Act and the Indian Succession Act as secular laws thus remained available to those governed by Hindu law even after the enactment of the Acts of 1955-56.

The Special Marriage Act and the Indian Succession Act (attached to it) do not apply in the entire country — nor for that matter do the Hindu law Acts of 1955-56. When Goa, Daman and Diu were liberated from Portuguese rule in early 1960s, a Parliamentary law had provided for continued application of the archaic Portuguese Civil Code of 1867 in those territories “until amended or repealed” by a competent authority. That 155-year old foreign law, no more in force even in its parent country, still governs Indian citizens in these parts of India. In Puducherry — liberated even before Goa, Daman and Diu — a sizable section of citizens called Renoncants (Indians whose ancestors had during the French rule abandoned personal law) are still governed by the 218-year old French Civil Code of 1804. Provisions are found in all central family law Acts of India, excluding them from their scope.

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Continued application of anachronistic foreign laws to Indian citizens in certain parts of the country stares in the face of the constitutional goal of a UCC. Supposing that such a code can be enacted at the state-level, a beginning should be made by repealing and replacing them with the central marriage and succession laws in force everywhere else in the country. Taking this rational step should pose no problem as Goa is under the rule of the party in power at the Centre and Daman, Diu and Puducherry (as Union Territories) are also within its jurisdiction. Enforcing central family laws in these places will be all the more logical in view of the fact that in 2019, the government did extend them to Jammu, Kashmir and Ladakh, to replace their local variants — though unlike the Portuguese and French laws, they were neither of foreign origin nor antiquated.

Furthermore, the Special Marriage Act is patently discriminatory in certain matters. Its list of prohibited degrees in marriage (relatives one cannot marry) is a copy of that under the Hindu Marriage Act but, unlike that Act, it does not recognise the rule prohibiting marriages within the limits of sapinda relationship (covering distant cousins). So, a Hindu can freely marry a second cousin under the Act, though his religion prohibits it, but a Muslim cannot marry under it a first cousin which his religion allows and is a common practice in the community. To make things worse, under the Hindu Marriage Act, the rule of prohibited degrees can be relaxed on the basis of custom but not under the Special Marriage Act.

During the Emergency days, the Special Marriage Act was amended to provide that if both parties marrying under it were Hindu their properties would be governed — not by the Indian Succession Act as originally provided — but by the Hindu Succession Act. This retrograde step has never been questioned by any court. On the contrary, the objection raised to it in the Maneka Gandhi case (1985) was met by a Delhi High Court judge with spirited defence.

There is nothing wrong in placing the whole nation under a single law of family rights and succession. This must be done in compliance with the constitutional guarantees for equality before the law and equal protection of laws. The provision of the Special Marriage Act relating to prohibited degrees in marriage should be suitably amended, and its 1976 amendment restricting the applicability of the Indian Succession Act must be set aside. The Act, so amended, should be extended to every part of the country. The day this is done, the constitutional promise of a “uniform civil code for the citizens throughout the territory of India” will stand duly fulfilled.

The writer is a Professor of Law & Ex-Member, Law Commission of India

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