A brief history of uniform civil code, and why the idea wouldn't go away

Chief Minister Pushkar Singh Dhami on Thursday (March 24) said his government would implement a uniform civil code (UCC) in Uttarakhand. The announcement came a day after he was sworn in for a second term.

“The cabinet unanimously approved that a committee [of experts] will be constituted at the earliest and it [UCC] will implemented be in the state. This will be the first state to do so,” he said.

A UCC was one of the key campaign pledges of Dhami in the run-up to the Assembly election. It would provide for equal laws on subjects such as marriage, divorce, land, property, and inheritance for people, irrespective of their faith and religion, he had said.

“Soon after our oath-taking ceremony, the upcoming BJP government will form a committee of those with knowledge of the legal system, retired employees, prominent people from society, and other stakeholders. This committee will prepare a draft of the UCC for the people of Uttarakhand. This UCC will be for equal laws on subjects such as marriage, divorce, land, property and inheritance issues for people of all religions,” Dhami had said.

Uniform civil code: A brief history

The UCC is a proposal to formulate and implement personal laws that apply on all citizens equally. Article 44 of the Constitution says the State shall endeavour to secure a UCC for the citizens throughout the territory of India.

Currently, personal laws of various communities are governed by their religious scriptures. Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.  

Meanwhile, Articles 25-28 of the Constitution guarantee the right to freedom of religion to not only individuals but also religious groups. It expects the State to apply directive principles and common law while formulating national policies.

Personal laws were first framed during the Raj, mainly for Hindus and Muslims. But fearing opposition from community leaders, the British refrained from further interfering in this sphere. Following Independence, bills were introduced that largely codified and reformed personal laws for Buddhists, Hindus, Jains and Sikhs. They, however, exempted Muslims, Christians and Parsis.

Shah Bano Case

In 1985, the demand for UCC came to the fore in the judgment pronounced in Mohd Ahmad Khan vs Shah Bano Begum & Ors, one of the legal milestones in battle for protection of rights of Muslim women.

Shah Bano had moved the SC seeking maintenance after Khan divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the ‘iddat’ period. ‘Iddat’ is the waiting period a woman must observe after the death of her husband or divorce before she can marry another man. Khan’s argument was supported by the All India Muslim Personal Law Board. The SC upheld the decision of the high court that gave orders for maintenance to Shah Bano under CrPC. For its part, the apex court increased the maintenance sum. The then Rajiv Gandhi government, however, brought in a new law and overturned the verdict.

The Goa Civil Code

Dhami claimed that Uttarakhand would be the first state to implement the UCC. Goa, however, has its own ‘civil code’, although it differs significantly from what is commonly understood to be a UCC.

The Goa Civil Code was introduced after Portuguese Goa and Damaon were elevated from being mere colonies to the status of Overseas Possession in 1869. It is an Indianised variant of Portuguese legal system that draws largely from the Code Napoleon, a legal system common in Continental Europe. Indian laws derive mostly from English common law.

The code has specific provisions for certain communities. For example: Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits bigamy.

For Hindus, divorce is permitted only on the grounds of adultery by the wife.

Catholics can solemnise their marriages in church after obtaining an NOC from the civil registrar. For others, only a civil registration of the marriage is accepted as a proof of marriage. Catholics marrying in church are excluded from divorce provisions under the civil law.