Madhya Pradesh High Court on Uniform Civil Code

 

Recently, while deciding a matter relating to Triple Talaq and Muslim Women (Protection of Rights on Marriage) Act, 2019, Single Bench of Hon’ble High Court of Madhya Pradesh, Bench at Indore, presided over by Hon’ble Shri Justice Anil Verma, made some pertinent observations relating to Triple Talaq and Uniform Civil Code in its Order dated 16.07.2024 passed in M.Cr.C. No. 57067 of 2021. In words of the Hon’ble High Court: -

 

“…. At this juncture, it would be apposite to observe that the Act of 2019 is a serious and much needed move towards ensuring equality and social balance. The Act of 2019 was long due, and it is resplendent that the lawmakers as well as the interpreters of law realized the unconstitutional and illegal nature of talaq-e-biddat.

 

There are a lot of other deprecating, fundamentalist, superstitious and ultra-conservative practices prevalent in the society that are clothed in the name of faith and belief. Though the Constitution of India already encapsulates Article 44 that advocates a uniform civil code for the citizens, yet the same needs to become a reality not just on paper. A well-drafted uniform civil code could serve as a check on such superstitious and evil practices and would strengthen the integrity of the nation.”

 

I concur with the above-stated observations and strongly feel that Uniform Civil Code is something that needs to be seriously debated in our society. Most of the times, the discussions on Uniform Civil Code seem to be either politically motivated or involve a myopic vision of state of affairs. Such an approach has done great disservice to not only the institution of marriage in our country but also to other aspects of familial life involving devolution of property and other similar issues.

 

As observed by the Hon’ble High Court, Article 44 of the Constitution of India indeed captures the concept of Uniform Civil Code. It provides for as follows: - 

 

“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

 

In order to understand the context in which it was incorporated in the Constitution of India, it would be appropriate to refer to the Constituent Assembly Debates. On 23.11.1948, while discussing about the pros and cons of having a Uniform Civil Code before the Constituent Assembly, Shri K.M. Munshi, a great Freedom Fighter and a Member of Constituent Assembly, observed as under: -

 

“Now look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mithakshara in others; and we have the law-Dayabagha in Bengal. In this way even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question for minorities but it also affects the majority.

 

I know there are many among Hindus who do not like a uniform Civil Code, because they take the same view as the honourable Muslim Members who spoke last. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India.”

 

Thus, Shri K.M. Munshi was of the view that if there is no Uniform Civil Code in India, then the problem of discrimination of women could never be stopped. A uniform civil code throughout the territory of India would be helpful in alleviating the position of women to that of men. Though Shri K.M. Munshi made those remarks with respect to Hindu Women, yet his prophetic words could find a place in the recently enacted Muslim Women (Protection of Rights on Marriage) Act, 2019. Such law has definitely alleviated the position of Muslim women in the society.

 

Following the remarks of Shri K.M. Munshi, Shri Alladi Krishnaswami Ayyar, another stalwart of Indian Freedom Struggle and a great Advocate, also made the following remarks relating to the uniform civil code: -

 

“A Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the States shall endeavour to secure a uniform civil code throughout the territory of India?

 

The second objection was that religion was in danger, that communities cannot live in amity if there is to be a uniform civil code. The article actually aims at amity. It does not destroy amity. The idea is that differential systems of inheritance and other matters are some of the factors which contribute to the differences among the different peoples of India. What it aims at is to try to arrive at a common measure of agreement in regard to these matters. It is not as if one legal system is not influencing or being influenced by another legal system. In very many matters today the sponsors of the Hindu Code have taken a lead not from Hindu Law alone, but from other systems also. Similarly, the Succession Act has drawn upon both the Roman and the English systems. Therefore, no system can be self-contained, if it is to have in it the elements of growth. Our ancients did not think of a unified nation to be welded together into a democratic whole. There is no use clinging always to the past. We are departing from the past in regard to an important particular, namely, we want the whole of India to be welded and united together as a single nation. Are we helping those factors which help the welding together into a single nation, or is this country to be kept up always as a series of competing communities? That is the question at issue.”

 

The above-stated remarks are quite helpful in understanding the scope of uniform civil code that the makers of our constitution espoused in their though process. The uniform civil code is not only to cover the personal religious practices relating to marriage and succession but also the law of property, the law of contracts and every department of civil relations. According to Shri Alladi Krishnasway Ayyar, the idea behind a uniform civil code is to arrive at a common measure of agreement between the differential systems of inheritance and to promote amity in the nation.

 

Following such remarks, Dr. B.R. Ambedkar also provided his opinion to the Constituent Assembly on uniform civil code in following terms: -

 

“My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”

 

As can be seen, even Dr. B.R. Ambedkar was a staunch supporter of the idea of a uniform civil code. He said in unequivocal terms that in our country, we already have uniform criminal laws, uniform procedural laws and most of the civil laws like the Negotiable Instruments Act and Transfer of Property Act are also uniform in their nature and applicability. The only domain of civil law where there is no uniformity is the marriage and succession laws and to bring about a change in these aspects of civil law, it is important to have a uniform civil code.

 

In my humble opinion, as stated by the Hon’ble High Court, a well-drafted uniform civil code is the need of the hour and if such a law comes into effect, it would act as a great leveler in promoting gender parity. Today, even in Hindu Law, the rights of women are being recognized. Slowly, the old patriarchal notions are taking a back seat and in order to remove confusion in this aspect, a uniform civil could definitely act as a step forward.