When it comes to family laws, the current situation in India is a peculiar one. Different people are governed by different laws enacted by the parliament on the grounds of the community, religion or region they belong to. In fact, the situation is such that there is no act to govern the family laws of Muslims in India, and instead they are only governed by their customary laws.
One of the biggest challenges that the absence of Uniform Civil Code (UCC) poses for the country is the uncertainty in applicability of personal laws. The present legislations are many times not specific as to what law is applicable over which community creating a lot of confusion among people. This is evident in the case of Sarla Mudgal Vs Union of India, where the court held that the second marriage of a Hindu husband, after conversion to Islam, is not valid if the first marriage (which happened before conversion) still subsists.
The judiciary too depicts a mixed approach towards these issues. In cases like Krishna Singh v. Mathura Ahir, Maharshi Avdhesh v. Union of India and Ahmedabad Women Action Group & Ors. v. Union of India; the Supreme Court has held that personal laws are not susceptible to the Chapter on fundamental rights and cannot be voided on the touchstone of Part III of the Constitution. While in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, the Supreme Court held that personal laws are void to the extent that they are in violation of the fundamental rights.
Further, bringing about social reforms for benefit of a certain class also becomes difficult due to the multiplicity of laws as a certain community might consider it as an attack on their religion. An example of this can be the practice of polygamy among Muslims which is considered as oppressive towards women. Even after doing away with the practice among Hindus for a while now, it is still legally allowed among Muslims as abolition of the same is not possible without bringing a legislative change that is often opposed by the Muslims.
Even many of the recent developments like the recent beef ban controversy, Rajasthan HC judgment on practice of santhara, repetitive communal riots like the 2013 incident in Muzaffarnagar and many others raise the question whether we really have a Right to Freedom of Religion. Such is the condition that the MHA Annual Report 2014-15 states that there have been a total of 1,467 communal incidents reported in the country in the past 2 two years itself. As a result of these incidents, a total of 228 people died while another 4,190 were injured. This all happens in the country despite of the Preamble clearly claiming India to be a “Secular” country, with additional safeguards through Fundamental Rights under Articles 15 (prohibition of discrimination on grounds of religion…) and 25 (freedom of…free profession, practice and propagation of religion) of the constitution.
The protection of religious freedom provided in India is very different to that practiced by majority of countries in the world. We have a system that considers religion as the basic unit of society and prefers religious identity over a national identity. The laws themselves tend to divide people, in a way, on the basis of their religion by following different laws for different religions. That, in itself, is a violation of Article 15 of the constitution as there is a discrimination on the basis of religion for the law applicable on that particular community of people.
Article 25 of the constitution starts with the words “Subject to public order, morality and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” These words prescribe for limitations on right to freedom of religion, even before mentioning the rights available to the people. It provides the government an incentive to bring about uniform laws in the matters of family laws.
Article 44 of the Constitution puts a responsibility on the state/government to make and implement a Uniform Civil Code in India. However, unlike Fundamental Rights, it is not included in Part III of the constitution but is instead present in Part IV (Directive Principles of State Policy) and is therefore not enforceable by any court. It only acts as principle for better governance of the country that shall be followed by the state without any binding obligation to do so.
Even the attempts of courts to apply uniform laws across all religions by exercising their powers are nullified by the legislature. The 1985 case of Mohd. Ahmed Khan vs Shah Bano Begum (Shah Bano case) is an example of the same scenario where the S. 125 of CrPC (relating to maintenance) was held by the Supreme Court to be applicable on Muslim women too. However, the same was nullified by the then government by enacting the The Muslim Women (Protection of Rights on Divorce) Act the very next year. It was only after the Supreme Court’s judgment in the case of Lily Thomas Vs. Union of India (2000), that the same could be made possible again, thus giving the Muslims some relief when it came to maintenance.
All religions have their own customs and practices and while the constitution provides for security of these rights, there is no denying that the existing system of legal pluralism in personal laws does not do the intended work of unifying the country. The barrier of religious identity that has gripped our country for far too long and has caused innumerable number of incidents of communal violence is only furthered by this principle of legal pluralism in personal laws.
Instead of subscribing to the national identity, people subscribe to the religious identities and the present structure also does not change the situation in any way by making different laws for different religions. Therefore, the legislatures must now act to bring about a much needed UCC in the country due to all the current social aspects and also subscribing to the fundamentals of the constitution that puts a positive but non enforceable obligation on the government to bring about a UCC in the country.
By Mayank Goyal