International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawjournals.org
Volume 3; Issue 4; July 2017; Page No. 08-13

Uniform civil code and conflict of personal laws

Saksham Solanki, Shaivya Manaktala
Student (B.A. LLB), Amity Law School, GGSIP University, Delhi, India

Abstract
India is the World’s largest democracy, diverse with million communities and traditions with a secular fabric attached to her
Constitution making her a diverse and tolerant nation with respect of guaranteeing its citizens under Part III Article 25 and 26,
Fundamental Right to Freedom of Religion, but on the other hand, a growing need and controversy of implementing the Uniform
Civil Code under Part IV (Directive Principle of State) Article 44 for bringing and clubbing the personal laws has stoked a conflict
with Personal Law Boards still vehemently active in our politics making the time still immature for it to be in practice in a nation
where polarization along the religious lines is still active in our society. This paper proposes to bring out the actual socio-political
issues including literacy, religious and social mobility which are far more urgent for a well thought out and careful implementation
of Uniformity in personal laws, ensuring integrity, unity and equality between genders, communities rather than forcing a still
maturing democracy into further complications of intolerance and homogeneity. The framers of Constitution were convinced that
certain amount of modernization is required as immediate enactment can affect the sentiments and religious freedom leading to
insecurity and distrust among communities. Although the Apexhas emphasized upon the need of Uniform civil code to settle the
ambiguity which has arisen due to the different interpretations of various personal laws and through various judgments in Shah
Bano’s case and recently the Vallamattam Case have unified inclination towards the enactment of the Code, but the unity of
Tamilians in the context of Jallikattu against the order of SC has well justified the fact that nothing can be above the PEOPLE OF
INDIA. With a heterogeneous population consisting of Hindus (79.8%), Muslims (14.2%), Christian (2.3%), Sikhs (1.7%) and so
on, it is very well important for the unity and integrity of the nation to keep in mind the history, composite culture, as well as the
current social political dynamics before enacting and implementing of the Uniform Civil Code.

Keywords: uniform civil code, directive principles, constitution, secular, democratic

Introduction  Muslim Personal Law (Shariat) Application Act, 1937

Personal Laws in India (making Shariat laws applicable to Indian Muslims),
India is a nation consisting of varied customs and communities.  The Parsi Marriage and Divorce Act, 1937
Many famous religions and cultures of the world are found in  Hindu Marriage Act, 1955 (applicable to not merely
India. Religion has been an important part of the country’s Hindus, Buddhists and Jains but also to any person who is
culture throughout India’s history. Religious diversity and not a Muslim, Christian, Parsi or Jew, and who is not
tolerance are both established in the country by the law and governed by any other law).
custom. A country that has secularism enshrined in its
Constitution yet there is a contradiction in this whole concept Conflict between Personal Laws and Part-Iii of the Indian
of secularism, particularly when it is interpreted in comparison Constitution
to the personal laws of its citizens. It has become a confusing Two scenarios arise which are to be discussed to determine the
melting pot when Hindus, Muslims, Christians and Parsees conflict: -
have different personal laws pertaining to marriage, adoption, a. Personal laws, codified, customary in practice coming in
guardianship, divorce, succession and so on. Almost all conflict with the provisions of Part-III of the Indian
communities in India have their own personal laws in matters constitution.
of marriage and divorce. These religious communities co-exist b. Conflict of personal laws, which aims at reforming existing
as part of one country yet the family laws in India differs from laws found to be arbitrary, unconstitutional with Article 25
one religion to another. The reason is that the customs, social of the Indian Constitution.
usage and religious interpretation of these communities as The Indian Judiciary, ever since the inception of the Indian
practiced in their personal lives depend hugely on the religion Constitution, has been facing a dilemma in deciding the inter-
they were born in and that which they practice in the Indian relation of Personal Laws and Part III of the Indian
society. Some of the codified personal laws relating to Constitution.
marriage, divorce, property and inheritance are: One of the landmark and important judgment in this
 The Indian Christian Marriage Act of 1872 (applicable to connection, which throw some light on this dilemma is the
whole of India except areas of erstwhile Travancore- Narasu Appa Mali case.
Cochin, Manipur and Jammu & Kashmir),
 Cochin Christian Civil Marriage Act of 1920 (applicable State of Bombay v. Narasu Appa Mali
for Travancore-Cochin areas), Relating to the “Bombay Prohibition of Bigamous Marriage
 For Sikh marriages, the Anand Marriage Act, 1909, Act, 1946, the validity of which was challenged on the basis of
8
International Journal of Law

Article 14, 15 & 25 of the Constitution of India, Major issues outside the scope of its power. Although the Court had held in
involving the case were: an earlier case that personal laws also had to be consistent with
a. Whether the Personal laws of Hindus, is “Law” within the the fundamental rights, it has thought fit not to make such
meaning of Article 13 (3) (b) and Article 372 (3), sweeping reforms in personal law through judicial process.
Explanation 1? So this judgment shows that the court wanted to convey that in
b. Whether an alteration of the personal law of one religious such cases remedy lies before Parliament. It is for the
community, without a similar alteration in that of others, Parliament to take the steps to reform the personal law. In this
violates equality under law? connection, it is pertinent to note that Shah Bano case and
It was held by the court that: Ahmedabad Women’s Action Group case are two different
c. Personal laws are not included in the “law” referred to in corners of the same thread. They represent two different
Article 13 (3) and are not the “law in force” referred to Art. approaches of the judicial attitude towards personal law. Shah
372 (3). Bombay Prevention of Hindu Bigamous Marriage Bano case, where Court has taken extremist approach and look
Act, 1946 was found not to be violative of Article 14 as the at the case of Ahmedabad women’s Action Group, where court
State was free to bring in social reforms in stages. did not undertake to reform personal laws through judicial
2. If religious practices are opposed to public order, morality or process. Court has thought it prudent to leave major reforms
a policy of social welfare, duty of which is upon the State, then causing social change to be brought about through legislative
the good of the people of the State as a whole will be preferred process.
over religious practices.
UCC and Gender Equality
Constitutionality of Personal Laws With Respect To It is a known fact that gender injustice is inbuilt in the personal
Judicial Review laws of all the communities. The socio- economic conditions
The Judicial review doctrine is explicitly reflected in Article 13 are supposed to be the result under which the personal laws are
of the Constitution of India. Laws enacted by the State found to evolved. This is the reason there is a need to reform the
be inconsistent with that of provisions of Part III of the personal laws or bring about a uniform civil code to ensure not
Constitution of India can be declared as ultra vires by the only equality between men and women but also to bring about
Supreme Court of India. gender justice. Women of our country undergo many
Issues such as Monogamy, Restitution of Conjugal Rights, difficulties and experience severe trauma in matters concerning
Discriminatory grounds of divorce, Maintenance are always a day to day matters including marriage, divorce and inheritance.
challenge for the judiciary to strike a balance between personal Polygamy, desertion, triple divorces are just a few instances to
laws based on religion and concerns of gender justice, equality show the possibilities of harassing women. Indian women are
and fairness of law. legally granted equality in political rights by the Indian
Constitution. But due to the difference in the personal laws,
Watershed Point of Judicial Review in Personal Laws- The women generally experience inequality, deprivation and
Episode of Shah Bano violence. Within the family, their position is pitiable. The
This is the case where the Apex court of India had to go against question of women’s rights as humans is completely ignored.
the existing personal laws to take into consideration certain The personal laws are designed and formulated to keep the
temporal, social and secular aspects, the landmark in the women always under the control of men. Even though the
journey of development of personal laws. Constitution of India gives equality to women in legal and
Supreme Court of India in Md. Ahmed Khan v. Shah Bano social areas, they are not effective enough to ensure them real
Begum ruled against the tenets of Muslim persona law by equality. The Supreme Court in a few judgments has opted for
providing maintenance claim to a Muslim divorced lady under a legislation on common civil code as enshrined in Article 44
Section 125 of Cr.P.C.52, despite prohibition under Muslim of India’s Constitution. It said so in Shah Bano’s Case in 1985,
personal law giving a thought and a direction towards the in Sarla Mudgal Case in 1995 and in Vallamattam case in
concept of “One nation, one law”, the Uniform Civil Code. 2003. A critical look at the constitutional debate, legislative
There are number of such cases including Sarla Mudgal v. enactments and judicial decisions very clearly indicate the lack
Union of India where personal laws and legal provisions of seriousness in ensuring justice to women. Gender issues
pertaining to personal laws were challenged in relation to the need to be addressed very seriously. A uniform civil code is,
above mentioned issues. In some cases, Courts, without therefore, foremost a matter of gender justice. If it is
indulging into the question of constitutionality of personal implemented it will lay the foundation for women to overcome
laws, made it point to recommend to the Union of India to many social evils like dowry system, bigamy etc which makes
bring UCC as a part of the legal system. a woman feel inferior and degraded. Some instances like: -
 In Hindus, sons, and not daughters, can inherit the property
Judicial Restraint – Ahemedabad Women’s Action Group till recently. And a wife has fewer rights than her in-laws
(Awag) V. Union of India over her husband's property, but on the other hand, a
Well, this case is the classic example of exercise of judicial husband has more rights than his in-laws over his wife's
restraint when it comes to dealing with or deciding a question property.
in relation to personal law and Part III of Indian Constitution.  In Christian law, a husband can get divorce on adultery
In this case Muslim personal law regarding polygamy and oral ground, whereas a wife has to prove adultery and cruelty.
divorce by uttering the word ‘talaq’ thrice, which is popularly  Even in Punjab, it is a common practice that all brothers
known as triple talaq, were challenged on the ground that they marry one woman so that their property is not divided, and
violated the fundamental right to equality. The Court held that it is till now permissible by the Indian constitution.
the since the petition raised questions of social policy, this fell
9
International Journal of Law

The Law Commission has also proposed for the unification of talaq and once it is pronounced it becomes effective from that
Indian Divorce Act and Indian Christian Marriage Act for the particular moment only, which cannot be taken back and no
purpose of National Integration. justification of this arbitrary power is required to be given.
Reconciliation with the help of both the sides is the linchpin of
Triple Talaq verse 35 which is absent in triple talaq and talaq is not effective
The procedure of talaq as mentioned in the Holy Quran is an without the interference by the arbitrators for reconciliation. If
elaborated procedure which includes reconciliation as quoted the husband want to take back the talaq he cannot take it back
in Surah IV verse 35 “ And if you fear dissension between the once it is pronounced as it becomes effective the moment it is
two, send an arbitrator from his people and an arbitrator from pronounced and there is no option if reconciliation left with
her people. If they both desire reconciliation, Allah will cause them, even though both want the reconciliation on realising
it between them. Indeed, Allah is ever Knowing and Acquainted that he pronounced it in heat of anger and not intentionally.
[with all things]”[1], which means Allah wants reconciliation They can only get back together in a status of husband and wife
between the husband and wife via mode of arbitrators if the after following a very long procedure where the women has to
divorce is given by the husband in anger so that he can take it go under the pratice of Nikah Halala, where the women has to
back within the Iddat period if he desires. Triple Talaq is marry again to some other person and has to consummate the
irrevocable form of talaq where there is no possibility of marriage with him, after the consummation of marriage when
reconciliation between the parties therefore it is also called her husband will give talaq she need to maintain her iddat
Talaq-i-Bid'ah which means innovative (or sinful) form of period and after the Iddat period expires then she is entitled to
divorce, which was no here during the time of Muhammad. In marry him again. The practice of marrying the new husband is
this form of divorce, the husband under his arbitrary power called nikah halala. The procedure of re-marriage with the
pronounces talaq thrice in one sitting when the wife is in the same person is very lengthy because of that reconciliation with
period of purity (tuhr) and it becomes effective as soon as the the help of arbitrator as law was given by Allah so that if any
words are pronounced, i-e when man says: I divorce thee, I of the decision was taken in anger or sudden provocation
divorce thee, I divorce thee, or in one sentence saying: “I without thinking they might have a option of thinking over it
divorce thee thrice, or “I pronounce my first, second and third again with calm mind and choose wisely to separate from each
talaq.” This mode of talaq is not permissible under Ashari and other, therefore it can be said that laws of Allah are above the
Fatimi laws but it is permissible under Hanafi law although it is sayings of any Caliph so the ongoing practice of triple talaq
legal under this law but also considered sinful. should be quashed down.
Justice R.C. Lahoti in Shamim Ara v. State of U.P [2], referred
Factors challenging triple talaq to the observation of eminent judge and jurist V.R. Krishna
According to Ameer Ali this mode of talaq was post-prophet Iyer, J. in case A. Yousuf Rawther v. Sowramma [3] where it
innovation by Omayyad Monarchs after the death of was observed that it is a disbelief that muslim man has an
Muhammad as the escape lane from the restrictions imposed by absolute power to liquidate the marriage as and when they want
the prophet because they found the checks in the Prophet’s under Quranic law and instant divorce does not accord with
formula of talaq inconvenient and endeavoured to find an Islamic injunction.the Holy Quran forbids to divorce his wife
escape from the strictness of law and was not there during the till she remains faithful to him. He supported his argument by
life time of first two caliphs i-e caliph Abu Bakr and caliph quoting the Surah 4 verse 34 of the Holy Quran which says
Umar ibn al-Khattab. Holy Quran is the words given by god “But if they obey you [once more], seek no means against them
[4]
and must be followed but no reference of triple talaq in one Holy Quran clearly mentions the duty of the husband to to
sitting or instant talaq is mentioned in the quran.Holy Quran take care of the wife and not to give her divorce if she is loyal
had emphasized on the reconciliation between the two so that to you and obeys you, if u will giver her an arbitrary divorce
them can take time and help of arbitrators for their than it will be a sin and will be considered as an spiritual
reconciliation and take the right decision with calm mind, not offense. Divorce in Islam is permissible only in cases of
in sudden and grave anger. Triple Talaq is alien to the Holy extreme emergency, when all efforts for effecting a
Quran and is a misinterpreted law, which has been innovated reconciliation have failed. Commentators on the Quran clearly
and molded according to their own convenience with time. specifies the duty of the husband to satisfy the court about the
Aristoltle is his book “politics” quoted that “The habit of lightly reasons for divorce and now this rule is administered in some
changing the laws is an evil… for the law has no power to Muslim countries where the husband has to prove that the wife
command obedience except that of habit, which can only be is unable to carry out duties of a wife by her indocility or her
given by time, so that a readiness to change from old to new bad character renders the married life unhappy.
laws enfeebles the power of the law.” The interpretation by In Asha Bibi v. Kadir Ibrahim Rowthar [5] observed that “an
Omayyad Monarchs was against the Holy Quran as per surah 4 arbitrary or unreasonable exercise of the rights to dissolve the
verse 35 which clearly defines the reconciliation which is marriage is strongly condemned in the Quran and in the
absent in triple talaq and challenges the validity of triple talaq reported sayings of the Prohet (Hadith) and is treated as a
because no words of Caliph is above the orders of Allah i-e spiritual offence.” Nikha is described as “Misaqan Ghaliza”
Holy Quran which means a strong bond, how and with whom one can
SURAH 4 verse 35- create this strong bond and this bond cannot be dissolved
This verse clearly defines the importance of appointment of without proper reason and method. This clearly indicates that
two arbitrators, one from the husband’s family and the other marriage is a sacred contract which cannot be broken easily
from wife’s family so that they can help them in reconciliation without justifiable reason and in extreme emergency with
if they wish to do so. In triple talaq there is no opportunity for proper method to be followed in breaking this special bond.
reconciliation between the parties as it is a irrevocable form of The method of reconciliation is of utmost importance in
10
International Journal of Law

breaking of the bond which is absent in triple talaq. It is termed separated couple can remarry at a future date, decisively why
as an spiritual offense because this as a marriage in Muslims is this talaq is called Ahsan. A talaq is called Hasan (great) when
considered as a sacred contract so as in any contract if there is the spouse separates his better half a moment time, taking after
a breach of contract then it will be termed as offense, so the a similar strategy received in the main occurrence. At the end
same principal of breach applies in this case where there is a of the day, the spouse is allowed to pull back the talaq before
sacred contract and breach of that contract will automatically the time of iddat lapses. At the end of the day, the separated
result to sacred offense and Allah always commanded for couple can remarry later on should they so wish. In any case, a
reconciliation between the two so as to preserve this sacred talaq given the third time breaks down the marriage forthwith.
bond between them, with providing talaq in extreme There is no holding up period, no space for compromise, and
emergency only. the separation is unalterable. The separated couple can remarry
Verse 229-230 of the Holy Quran starts with “Al-talaqum just if the lady weds another man and who in this manner
marratam” which means divorce may be pronounced twice and separates her. This arrangement of a mediating marriage before
Marratam implies gap between the two pronouncements. This the triply separated couple can remarry each other is called
implies that command of Allah clearly signifies that there must Halala. The Halala framework is regularly misused to conquer
be enough time gap between the pronouncements and with this the Islamic remedy denying couples from remarrying after they
word of Allah triple talaq does not stand in any power. In triple have been separated thrice. Commonly, the stratagem includes
talaq there no time gap between the two pronouncements and is the triply separated couple going into an underhand
opposed to the words of Allah. It can be explained like- if I concurrence with another man who weds the lady and
have been to some place twice that means two times with some separations her from there on. She is then lawfully allowed to
reasonable time gap in between the two and it cannot be wed the man who had separated her thrice already. It may
interpreted like I have been to that place and again to that place appear to be entertaining that a lady would wish to wed the
without any reasonable time gap and I count it twice. Triple spouse who has separated her thrice, yet this is accurately
talaq never stand according to the rule of Holy quran so must where the brutality of the method which has the husband
be quashed down as it is alien to the quran and laws of Allah articulate talaq thrice in one sitting is brought out distinctively.
are above of the sayings of any caliph. Called Talaq-ul-Biddat, it is maybe as old as Islam itself.
Under Talaq-ul-Biddat, the spouse includes "triple" to the word
International Validity talaq, or basic rehearses three circumstances accordingly, "I am
The All-India Muslim Personal Law Board is opposing the giving you talaq, I am giving you talaq, I am giving you talaq."
abolishment of triple talaq, which is a procedure a Muslim This has an indistinguishable results from an irreversible
adopts to divorce his wife by pronouncing talaq three times in separation and the marriage is broken up quickly. The couple
one sitting. Most recently, the AIMPLB has expressed can re-wed just through the arrangement of halala.
ignorance over a petition requesting the Supreme Court to Incomprehensibly, Talaq-ul-Biddat is regarded "evil however
determine the constitutional validity of triple talaq. The compelling." Usually, the speediest way a spouse can
position taken by AIMPLB is in sharp contrast and against to irreversibly separate his significant other is to articulate talaq in
the dominant trend adopted worldwide. As many as 22 Muslim three progressive tuhrs, or sans menses time.
countries – including Pakistan and Bangladesh – and their
provinces have taken measures for abolishing triple talaq either Survey of 177 people on Application of Uniform Civil Code
explicitly or implicitly. The list even includes Turkey, Cyprus, in India
Tunisia, Algeria and the Malaysian state of Sarawak which
have adopted secular family laws which do not recognise a
divorce pronounced outside a court of law; and Iran, where
triple talaq doesn’t have validity under its Shia law. It has often
been argued in India that religious minorities of any country
are relatively suspicious to change. They fear any alteration in
their practices could lead to them losing their religious identity
although this apprehension doesn’t affect the Muslims of Sri
Lanka, where they constitute a little less than 10% of the
population.

The Core Issue

Regardless of whether Sunni Muslims in India can or ought to
change triple talaq has involved extraordinarily in the group for
almost a century. Even the law specialists trust that the Ahsan Author’s compilation
(best) technique for separation requires the spouse to give a Fig 1
talaq to his better half in her tuhr, or without menses time. He
can pull back the talaq amid the iddat, or holding up period, The survey was responded to by 83% (majority) of Hindus,
which is of around three months. Should he not do the same followed by 11% of Muslims, 5% Christians and 1% others.
separation kicks in after the expiry of the iddat but the

11
International Journal of Law

Author’s compilation Author’s compilation

Fig: 2 Fig: 5

42% of the respondents were in the age bracket of 18-25 which Again, a majority of 69% feel that Triple Talaq should be
shows that the result of the survey is the voice of the youth. abolished in totality, although a smaller section of 17% still
feel that is can be retained with sustainable amendments.

Author’s compilation Author’s compilation

Fig: 3 Fig: 6

33% of respondents feel that personal laws and customary Here, a whooping majority of 70% respondents feel that
practices should be codified to bring them in line with the Polygamy should be banned.
fundamental rights and not totally be codified.

Author’s compilation Author’s compilation

Fig: 4 Fig: 7

A majority of the respondents (69%) in this question, feel that a But, in the end, 68% people still feel that India is not ready for
uniform code will ensure and enhance gender equality and give a Uniform Code since it will infringe an individual’s right to
more power to women. freedom of religion, which clearly conveys the mind of the
respondents without any doubt.

12
International Journal of Law

Conclusion
As a conclusion it would be right to conclude that a secular
India needs a uniform civil code but urgent need to force any
uniform civil code on a population resistant to change is not
necessary. Most people are not truly ready to adopt secular
laws different from religious customs. The Uniform Civil Code
can be successfully introduced only once we achieve improved
levels of literacy, awareness on several socio-political issues,
enlightened and legitimate discussions and increased social and
religious mobility. The ultimate aim of reforming uniform civil
code should be for ensuring equality, unity and integrity of the
nation and justice both men and women.
While implementing the UCC throughout the country we will
have to take into light the consideration of the fact that the
problems of the minority religious groups should be properly
addressed including insecurity, disenfranchisement, of
complete loss of identity and marginalization within Indian
society. It is because a uniform civil law cannot be successfully
implemented until and unless it gets support and acceptance
from all the concerned stakeholders and communities. At the
same time while enacting the UCC only modern laws should be
incorporated in it regulating the loggerheads of Triple Talaq,
Polygamy and same.

References
1. https://quran.com › Al-Baqarah
2. corpus.quran.com/translation.jsp?chapter=2&verse=229
3. http://indiatoday.intoday.in/story/triple-talaq-uniform-
civil-code-womens-rights-centre-
secularism/1/783051.html
4. http://barandbench.com/wp-
content/uploads/2016/09/Counter-affidavit-in-Shayaro-
bano.pdf
5. https://quran.com/4/35
6. http://www.islamicstudies.info/tafheem.php?sura=4&verse
=34
7. https://en.wikipedia.org/wiki/An-Nisa,_34
8. http://www.supremecourtcases.com/index2.php?option=co
m_content&itemid=1&do_pdf=1&id=6766
9. http://www.supremecourtjudgements.in/judgment?jid=141
602
10. http://www.thehindu.com/todays-paper/Uniform-civil-
code-evokes-mixed-response/article14470231.ece
11. https://indiankanoon.org/doc/1743680/
12. https://scroll.in/article/806299/if-pakistan-and-21-other-
counties-have-abolished-triple-talaq-why-shouldnt-india
13. Maulana 'Umar Ahmad 'Usmani and Women's Rights in
The Qur'an, Women and Modern Society, Asghar Ali
Engineer, Select Books, India, 1999
14. http://www.irfi.org/articles/articles_151_200/triple__talaq.
htm
15. http://lawmin.nic.in/olwing/coi/coi-english/coi-
4March2016.pdf

13