DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
SESSION 2017-18

SUBJECT – BASICS OF CASE LAW

TOPIC – CRITICAL ANALYSIS OF SHAH

BANO CASE IN THE CONTEXT OF
UNIFORM CIVIL CODE

SUBMITTED TO SUBMITTED BY

BHANU PRATAP SINGH NEHA GUPTA

ASSTT. PROF. (LAW) ROLL NO. 085
Section - A
Ist Year
IST SEMESTER
B.A.L.LB(Hons.)
 Uniform Civil Code

ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher for the subject Bhanu Pratap Singh

for giving me such a challenging topic and also for his exemplary guidance, monitoring

and constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the

college for their cordial support, valuable information and guidance, which helped me in

completing this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and

valuable information provided by them in their respective fields. I am grateful for their

cooperation during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without

which this assignment would not have been possible.

Thanking You All

Neha Gupta

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TABLE OF CONTENT

 ACKNOWLEDGEMENT………………………………………………………..2

 TABLE OF CONTENT………………………………………………………….3

 INTRODUCTION……………………………………………………………….4

 OBJECTIVE OF THE STUDY……………………………………………………7

 RESEARCH METHODOLODY…………………………………………………..7

 HYPOTHESIS………………………………………………………………..8

 RESEARCH QUESTIONS………………………………………………………8

 FACTS ISSUES AND JUDGEMENT OF THE

CASE…………………………………8

 MEANING OF UNIFORM CIVIL CODE…………………………………………11

 NEED OF UNIFORM CIVIL CODE………………………………………….....13

 MERITS OF UNIFORM CIVIL CODE……………………………………………15

 PROBLEMS IN IMPLEMENTING UCC IN

INDIA…………………………………17

 SECULARISM V UNIFORM CIVIL CODE……………………………………......20

 ENACTMENT OF AN ACT AFTER THE JUDGEMENT OF SHAH BANO

CASE………….23

 CONCLUSION …………………………………………………………….......24

 BIBLIOGRAPHY………………………………………………………………

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 Uniform Civil Code

INTRODUCTION

Uniform Civil Code, a common code that connotes the idea of similar set of civil rules

regardless of their religion, caste, sex etc. has now- a- days propounded a high-powered

controversy in India. Uniform Civil Code (UCC) is the manifestation of contemporary

progressive nation, which shows that the nation has been elevated from religion, race, caste

and sex and birth discrimination.

UCC entreats to replace the personal laws based on customs of each religion with a common

set governing each citizen. Such laws address four broad areas: Marriage, Divorce, and

Maintenance & Succession. In India even after 69 years of independence people are still

being dominated by the personal laws of their respective communities. The framers of the

constitution with a view to achieve uniformity of law incorporated Article 44 that runs as

follows: “The State shall endeavor to secure for all citizens a uniform civil code throughout

the territory of India.”1

The Supreme Court first directed the Parliament to frame a UCC in the year 1985 in the case

of Mohammad Ahmed Khan v. Shah Bano Begum2, popularly known as the Shah Bano case.

In this case, a penurious Muslim woman claimed for maintenance from her husband under

Section 125 of the Code of Criminal Procedure after she was given triple talaq from him.

The Supreme Court held that the Muslim woman have a right to get maintenance from her

husband under Section 125. The Court also held that Article 44 of the Constitution has

remained a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that,

1
VN SHUKLA, THE CONSTITUTION OF INDIA 308(2001).
2
Mohd. Ahmad Khan v Shah Bano Begum 1985 SCR (3) 844, (Supreme Court of India).

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"A common civil code will help the cause of national integration by removing disparate

loyalties to law which have conflicting ideologies"

After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv

Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women

(Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for

maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for

implementing this Act was that the Supreme Court had merely made an observation for

enacting the UCC, not binding on the government or the Parliament and that there should be

no interference with the personal laws unless the demand comes from within the society.

To consolidate a community, it becomes important to take into consideration the benefits

which may accrue to the whole community and not to the customs of a part of it. If we look at

the countries in Europe, which have a Civil Code, everyone who goes there forms a part of

the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to

the minorities."3

Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be

created in which all sections feel secure enough to sit together and cull out the most

progressive of their personal laws. But this can be answered by an example of Hindu law.

When the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious

denominations of Hindus, was notified, there was a lot of protest. And the then Law Minister,

Dr. Ambedkar, had said that for India’s unity, the country needs a codified law. In a similar

fashion, the UCC can be implemented, which will cover all the religions, whether major or

minor, practiced in India and any person who comes to India has to abide by the Code.

3
Constitutional Assembly Debates Volume VII pg. 547.

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Not many know that a UCC exists in the small state of Goa accepted by all communities. The

Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese

colonial rulers through various legislations in the 19th and 20th centuries. After the liberation

of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws

to the territory but made the exception of retaining the Family Laws because all the

communities in Goa wanted it. The most significant provision in this law is the pre nuptial

Public Deed regarding the disposal of immovable and movable property in the event of

divorce or death. During matrimony, both parents have a common right over the estate, but

on dissolution, the property has to be divided equally; son and daughters have the equal right

on the property. As the procedure involves compulsory registration of marriage, this

effectively checks child and bigamous marriage.

Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief

Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken

the rest of bigoted India."4

UCC is now being opposed by taking the plea of Articles 25 and 26 guarantee right to

freedom of religion. Article 25 guarantees to every person the freedom of conscience and the

right to profess, practice and propagate religion. But this right is subject to public order,

morality and health and to the other provisions of Part III of the Constitution. Article 25 also

empowers the State to regulate or restrict any economic, financial, political or other secular

activity, which may be associated with religious practice and also to provide for social

welfare and reforms. The protection of Articles 25 and 26 is not limited to matters of doctrine

of belief. It extends to acts done in pursuance of religion and, therefore, contains a guarantee

4
Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 94, (Supreme Court of India).

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for ritual and observations, ceremonies and modes of worship, which are the integral parts of

religion.5

OBJECTIVE OF THE STUDY

The aim and the objective of this study is to make a sincere attempt to show the importance

and urgency for adopting a Uniform Civil Code and to find out the problems which arises

when one thinks of enacting and implementing Uniform Civil Code in India. The landmark

judgement Shah Bano Begum v. Mohd. Ahmed Khan is of immense importance in studying

the relevance and urgency of Uniform Civil Code in India.

RESEARCH METHODOLOGY

The research that I will be taking is Doctrinal in nature. I will be going through legal

literature and making deductions on my topic. Use of internet also become relevant to find

out the most updated , important and appropriate information which helped me in exploring

the subject from various dimension.

HYPOTHESIS

5
Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4 SCC 522.

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After a preliminary reading of the literature available on the topic , I am drawing a conclusion

that the implementation of Uniform Civil Code is necessary to reduce the complication and

problem which a person faces in seeking remedy as there will be a common set of rules for

every citizen of the country.

RESEARCH QUESTIONS

This project will seek to answer the following questions:

 What is the need of a set of civil rules for the citizen which govern in the matter

pertaining to marriage, adoption, inheritance etc.

 Is Uniform Civil Code can be implemented in India, a country of diverse culture and

different religion.

 What will happen when judiciary try to implement uniform civil code in case

legislature become unable to pass any law regarding it.

FACTS, ISSUES RAISED AND

JUDGEMENT OF SHAH BANO
CASE

FACTS:

1. An application was made under Section 125 in regards to maintenance granted to a

wife who is unable to maintain herself. Wife includes a women who has been

divorced or has obtained divorce and not remarried.

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2. The Appellant was a advocate by Profession married to Respondent in 1932. They

begot 3 sons and 2 daughters out of the Marriage.

3. In 1975 the appellant drove the respondent out of the home. In 1978 respondent filed

a petition under Section 125 of Crpc, in JMFC Indore for maintenance.

4. In 1978 the appellant divorced the respondent by irrevocable Talak and took up the

defence that since she is no more a wife he has no obligation to provide maintenance

to her as he has already paid Rs.200 per month for 2 years in a manner of Dower

during the period of Iddat.

5. In 1979 the Magistrate directed to pay a sum of Rs.25 per month to the respondent by

way of maintenance.

6. The High Court of Madhya Pradesh enhanced the amount to Rs.179.20 per month.

7. The Husband made a special writ petition to Supreme Court.

ISSUES RAISED:

 Whether section 125 of CrPC applies to muslims.

 Whether the payment of Mehr by the husband on divorce is sufficient enough to rid

him of any duty to pay maintenance to the wife.

JUDGEMENT :

 It was held that Section 125 of the code is truly secular in character. It was enacted to

provide quick and summary remedy to the class of persons who are unable to

maintain themselves

 Irrespective of the person being of any religion sec125 of the code is applicable

because it is a part of criminal Procedure Code and not civil laws.

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 Neglect by a person of sufficient means to not give maintenance to any dependants

leads to invoking of sec 125.

 The rights conferred by section 125 can be exercised irrespective of Personal Law of

the Parties.

 In this case Husband Liabilities to provide maintenance does not get limited into the

foundation of time period of Iddat but as long as the wife is unable to maintain

herself or remarried even though Iddat period is over.6

“Wife” in clause (b) of explanation to section 125 (1) means a wife as defined, irrespective of

the religion professed by her or by her husband. Therefore, a divorced muslim woman so

long as she has not remarried, is a ‘wife’ for the purpose of sec 125. The statutory right

available to her under that section 125 is unaffected by the provisions of the personal law

applicable to her.

The Supreme Court refused to accept that Sec 125 could be struck down by sec 127 only for

mere fact that husband had made payment at the time of divorce because it is her

consideration money (Mehr) for her marriage not as divorced money. The Court held that it

was only paid on divorce but the meaning of it was rather different and ‘Mehr’ was no bar in

awarding maintenance. The Court used the Quran during its interpretation that husbands were

bound by the duty to maintain their wives.

There was absolutely no conflict between the Shah Bano case and the Muslim Personal Law.

Personal Laws are essentially of civil nature, whereas the Shah Bano case was decided under

section 125 of Criminal Procedure Code which deals with the prevention of social vagrancy

6
Aditya Mishra ‘Mohd. Ahmad Khan v Shah Bano Begum’,[ 2016] <lawmantra.co.in/case-name-mohd-ahmed-
khan-vs-shahbano-begum/>.

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and destitution. The law of social justice steps in where the normal laws are found

inadequate.

Section 125 does not deal with marital rights or right of maintenance. It deals with cases

where someone has deserted a close dependent like father, mother, son, daughter or wife and

the deserted person has no means to sustain herself. The law provides that such deserted

person can approach the court and court may order a small amount as maintenance

allowance. The words are important, it is not maintenance, which is decided in accordance

with one’s financial standing. Instead, it is maintenance allowance which is a bare minimum

amount that is essential to keep her body and soul together.7

MEANING OF UCC

Uniform civil code was first raised as a demand in the 1930s by the All India Women's

Conference, seeking equal rights for women, irrespective of religion, in marriage, inheritance,

divorce, adoption and succession.

While the Constituent Assembly and Parliament considered such a Uniform Civil Code

desirable, they did not want to force it upon any religious community in a time of strife and

insecurity. They left it as a Directive Principle of the Constitution, hoping it would be enacted

when the time was right.

Article 44 of constitution of India lays down an important directive principle of state policy,

namely, that the state shall endeavour to secure for its citizens, a uniform civil code

throughout the territory of India. However, as clarified by Article 37 that directive principles

are not enforceable by any court, although they are fundamental in the governance of a
7
Namita Kohli ‘‘Rajiv was pressured by Narasimha Rao, Najma Heptulla during Shah Bano’ [2016],
www.hindustantimes.com/...shah-bano/story-N3or1pJErtJkSUmqGX96FP.html accessed on 20 Oct 2017.

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country. The Constitution was made in 1950, and 66 years have passed since it was

promulgated, but Article 44 has still now been totally ignored, obviously for vote bank

politics.

Today, citizens of India are governed by different personal laws, based on their religion,

caste, community, etc. A uniform civil code would ensure that all citizens of India are

governed by the same sect of secular civil laws in matters of marriage, divorce, maintenance,

adoption, inheritance, etc. Under the present set of laws, Hindus are bound by law to practice

monogamy, whereas muslims are not. Similarly, where Hindus have a comprehensive

enactment on adoption, this concept is not recognized by personal laws of Christians and

Parsees. If a uniform civil code is enacted, all citizens of India would be governed by the

same law in all such matters.

The objective underlying a uniform civil code is to enhance national integration by

elimination contradictions based on religious ideologies. All communities in India would then

stand on a common platform on civil matters like marriage and divorce, which are currently

governed by diverse personal laws. The pertinent that poses itself is:

If the same law of Contract of Torts applies to a Hindu and Muslim, why not the same law

of marriage?

Uniform Civil Code has its roots from the concept of Civil Law Code. A civil code is a

systematic collection of laws designed to comprehensive deal with the core areas of private

law such as for dealing with business and negligence lawsuits and practices. The purpose

concealed in the uniform civil code is to eliminate the contradictions based on religious

ideologies and promote the concept of national integration. All communities in the country

would then be judged on a similar platform in civil matters and would not be governed by

diverse personal laws.

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It was said in Sarla Mudgal v Union of India by Justice R.M. Sahai that

"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even

the slightest of deviation shakes the social fibre. But religious practices, violative of human

rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are

not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of

the oppressed and for promotion of national unity and solidarity.8

All Indian citizens are already equal before the court of law as the criminal laws and other

civil laws (except personal laws) are same for all. With the implementation of Uniform Civil

Code, all citizens will share the same set of personal laws. There will be no scope of

politicization of issues of the discrimination or concessions or special privileges enjoyed by a

particular community on the basis of their particular religious personal laws.9

The Uniform civil code is the application of one national vivil irrespective of their religion.

Uniform Civil Code covers various areas like marriage, divorce, inheritance, adoption. As

these matters are secular in nature, so that it can be enacted through a uniform law. In other

words these can termed as personal law. Although some are describing this as the

government’s infringe in to personal freedom, the uniform civil code has certain advantages

also.

NEED FOR UNIFORM CIVIL CODE

Almost all the countries of the world have a common civil code for all their citizens. The

basic idea behind the formulation of a uniform civil code is to end discriminations based on

religions. Personal law of nearly all the religions have acted as a tool of oppression of the

8
Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
9
‘Uniform Civil Code (UCC): Pros and Cons in a nutshell’ < www.clearias.com/uniform-civil-code-ucc/>
accessed on 22Oct 2017.

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women through which they are suppressed most of the times citing religious and social

obligations. Personal laws have always played a big role in causing the rise of gender

discrimination. Uniform civil code guaranteed by the constitution has also become a very

sensitive and controversial issue which has always been communalized by people having

vested interests.

In a country like India where the principle of equality of all citizens is enshrined in the

constitution, different sets of personal laws for different religious communities go against this

very principle of the constitution.

The uniform civil code will contain uniform provisions applicable to everyone and based on

social justice and gender equality in family matter. Its provisions will be fair and equitable so

that every member of the society may have a feeling of equality of social status from major

social change and will thus create a national identification.

Different rules of civil law go against the secular credentials of the republic and also

challenge the concept of unity in diversity. In a diverse society like India the laws needed to

deal with the disputes related to the issues of marriage, divorce, custody, adoption,

inheritance need to be same for all irrespective of religion, caste or sect. At a time when

reforms for strengthening the position of women in the society are being given the utmost

significance and attention, there is an urgent need for a new civil code to eliminate

discrimination against women in the society.

A Uniform Civil Code administers the same set of secular civil laws to govern different

people belonging to different religions and regions. This does away with the right of citizens

to be governed under different personal laws based on their religion or ethnicity. Uniform

Civil Code will in the long run ensure equality.

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It is necessary that law be divorced from religion. With the enactment of a uniform code,

secularism will be strengthened; much of the present day separation and divisiveness between

various religious groups in the country will disappear, and India will emerge as a much more

cohesive and integrated nation.

The crusade for the implementation of the uniform civil code should get the support of all

progressive and right thinking citizens of the country. It is the need of the hour. There is also

need for a political consensus to implement the uniform civil code. In a nutshell, uniform

civil code is necessary to effect an integration of a country as diversified as India by bringing

all the communities into a common platform which do not form the essence of a single

particular religion. A uniform civil code will also enforce the idea of secularism enshrined in

the Indian constitution more forcefully.

MERITS OF UNIFORM CIVIL CODE

 GENDER EQUALITY

By the implementation of a Uniform Civil Code across the nation will enable to abolish

gender discrimination from the nation. For example, according to various religions,

inheritance, marriages etc are male dominated. After seven decades of independence also

women are battling for equality.A uniform civil code will also help in improving the

condition of women in India.Our society is extremely patriarchal and misogynistic and by

allowing old religious rules to continue to govern the family life we are condemning all

Indian women to subjugation and mistreatment. It will help in changing these old traditions

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that have no place in today’s society where we do understand that women should be treated

fairly and given equal rights.

 A BOOST TO NATIONAL INTEGRITY

The formation of UCC will boost the national integrity. Even though our country have

diverse cultural values, a unified personal law irrespective of gender, caste, creed etc will

boost the national unity. The various personal laws are basically a loophole to be exploited by

those who have the power. By allowing personal laws we have constituted an alternate

judicial system that still operates on thousands of years old values. By bringing UCC, we can

change it. It will help in integrating India more than it has ever since independence. A lot of

animosity is caused by preferential treatment by the law of certain religious communities and

this can be avoided by a uniform civil code. It will help in bringing every Indian, despite his

caste, religion or tribe, under one national civil code of conduct.

 CORNERSTONE OF SECULARISM

The preamble of our constitution clearly states that India is a Sovereign, Socialist, secular

state. But it is high time to think that whether citizens of India will enjoy real secularism

without the implementation of UCC. Even after decades of independence also different

personal laws are in existence for different religions. What we have right now in India is

selective secularism which means that in some areas we are secular and in others are not. A

Uniform Civil Code does not limit the freedom of people to follow their religion, it just

means that every person will be treated the same. That is the real secularism.

 SOCIAL REFORMS

A Uniform Civil Code is the sign of modern progressive nation. It is a sign that nation has

moved away from caste and religious politics. While our economic growth has been the

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highest in the world whereas our social growth has not happened at all. In fact it might be

right to say that socially and culturally we have degraded to a point where we are neither

modern nor traditional. Once the UCC is formulated across the nation, India will undergo

another social reform in this century. For instance, in Indian context, Muslim women are

denied with personal laws in relation to marriage, divorce etc. On contrary, In various

Muslim nations like Pakistan, Bangladesh, Turkey, Morocco etc, women enjoy codified

personal laws. So after the implementation of UCC Indian women will also enjoy a codified

personal law. Therefore, a stepping stone towards another social reform across the country.

 REDUCING VOTE BANK POLITICS

A uniform civil code will also help in reducing vote bank politics that most political

parties indulge in during every election. If all religions are covered under the same laws,

the politicians will have less to offer to certain minorities in exchange of their vote. Not

having a uniform civil code is detrimental to true democracy and that has to change.

PROBLEMS IN IMPLEMENTING
UCC IN INDIA

Currently, there is Hindu Marriage Act, a Muslim Personal Law (Shariat) Application

Act,1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage

Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion. There is also a

special marriage Act, 1954 under which people can perform marriage irrespective of the

religion followed by either person. These laws deal with the matters involving marriage,

divorce, inheritance, adoption, and maintainence of the respective religions. Having a

Uniform Civil Code will mean that all these laws will be replaced by a new law which will be

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applicable for all irrespective of their religions. India’s diversity itself is an obstacle in the

path of implementing UCC. Those who opposes the implementation of UCC in India argue

that-

The Hindu Marriage Act was passed in 1955 to bring uniformity in law for all sections of

Hindus but these laws have special considerations for Hindus living in different geographical

regions, and belonging to different castes and ethnic groups. For example, in some

communities in southern India, marriage between and uncle and a niece is allowed and such

unions are preferred. On the other hand, such marriages are proscribed and viewed as

incestuous by Hindus in north India. How does one apply UCC in such situations?

Another example is that of the inheritance laws. Mitakshara and Dayabagh are the two

different methods that the Hindu inheritance Laws provides. People can choose either of the

two methods to bestow inheritance. However, the Mitakshara law does not apply in Bengal

and Assam. There is no explanation of exceptions given to Hindus of Bengal and Assam.

 NAGA COMMUNITY

The naga minority community is also reportedly upset by the implementation of UCC. The

Nagaland Bar Association has markedly warned that the implementation of UCC would bring

clear trouble for the culture and dignity of the naga people.

They, in a letter addressed to the Prime minister stated that,

“It will cause social disorder, and if a Uniform Civil Code is introduced covering the entire

country, it shall cause so much hardship and social disorder to the Nagas as the personal

and social life of the Nagas are quite distinct from rest of the people in the country.”

 MUSLIM COMMUNITY

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About the questionnaire taken out by the law commission, there has been clear and evident

rejection by the muslim community as the All India Muslim Personal Law Board completely

disregarded the law commission’s questionnaire on the UCC and decided to boycott it.

They said that “Uniform Civil Code is divisive and will lead to social unrest, and that it is

against the spirit of the constitution, which safeguards the right of citizens to practice their

culture and religion.”

This community vehemently opposes the move by saying that UCC would violate their

personal laws gravely and would thus result in irreversible damage to their religion and the

laws therein and also argue that the very idea of assimilating all the personal laws into a

uniform code will infringe the constituents of personal laws of their religion.

 FEW POLITICAL PARTIES

Some political parties are also against the move of the implementation of UCC. They also

support the minority issues by saying that it is a clear violation of the minority rights and put

forth very important points towards the impossibility of the implementation of UCC. The

main issues lies in the fact that its implementation of a country of diverse cultural diversity

would be virtually impossible.

During the debate in the Constituent Assembly on Art. 44, several Muslim members had

expressed the fear that implementation of Art. 44 would abrogate their personal law. Persons,

who oppose the code, argue that, India has been declared to be a secular state and according

to Articles 25 to 29 there is freedom of religion.

It even extends “to manage its own affairs in matter of religion”; such people strongly

oppose implementation of uniform civil code and say that the code is unconstitutional to their

freedom of religion. They oppose the code, because of the existence of conservatism among

certain sections of the Indian population, and Governments defer to these sentiments because
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of political considerations; political parties, (Legislature) oppose this code because of their

selfish interest; they do not interfere in the personal laws of Muslim or minority population

because if they give support to uniform civil code, it becomes dangerous to their vote bank

thus because of their personal interest, they oppose the code and it becomes extremely

difficult to have any progressive measure in the area of family law.

For example sometime back, the Government introduced in Parliament the Adoption of

Children Bill, 1972; seeking to add a secular and uniform law of adoption to govern all

adoptions irrespective of religion of the parties involved.

It would have repeated the Hindu Adoption Act. For the Hindus, the proposed law would

have secularized the law of adoption based on the legal friction having a religious and

sacrament basis. But, even this permissive and optional law was opposed by orthodox

people.10

SECULARISM V/S UNIFORM CIVIL

CODE:

The spine of controversy revolving around UCC has been secularism and the freedom of

religion enumerated in the Constitution of India. The preamble of the Constitution states that

India is a "secular democratic republic" This means that there is no State religion. A secular

State shall not discriminate against anyone on the ground of religion. A State is only

concerned with the relation between man and man. It is not concerned with the relation of

Pragati Ghosh ‘Essay on the Importance of Uniform Civil Code in India ’

10

www.shareyouressays.com/.../essay-on-the-importance-of-uniform-civil-code-in-india accessed on 29 Sep 2017.

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man with God. It does not mean allowing all religions to be practiced. It means that religion

should not interfere with the mundane life of an individual.

In S.R. Bommai v. Union of India as11 per Justice Jeevan Reddy, it was held that religion is

the matter of individual faith and cannot be mixed with secular activities. Secular activities

can be regulated by the State by enacting a law.

In India, there exist a concept of "positive secularism" as distinguished from doctrine of

secularism accepted by America and some European states i.e. there is a wall of separation

between religion and State. In India, positive secularism separates spiritualism with

individual faith. The reason is that America and the European countries went through the

stages of renaissance, reformation and enlightenment and thus they can enact a law stating

that State shall not interfere with religion. On the contrary, India has not gone through these

stages and thus the responsibility lies on the State to interfere in the matters of religion so as

to remove the impediments in the governance of the State.

Articles 25 and 26 guarantee right to freedom of religion. Article 25 guarantees to every

person the freedom of conscience and the right to profess, practice and propagate religion.

But this right is subject to public order, morality and health and to the other provisions of Part

III of the Constitution. Article 25 also empowers the State to regulate or restrict any

economic, financial, political or other secular activity, which may be associated with

religious practice and also to provide for social welfare and reforms. The protection of

Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in

pursuance of religion and, therefore, contains a guarantee for ritual and observations,

ceremonies and modes of worship, which are the integral parts of religion.12

11
SR Bommai v Union of India (1994)3 SCC 1
12
Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4 SCC 522.

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UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on

the concept that there is no necessary connection between religion and personal law in a

civilised society. Marriage, succession and like matters are of secular nature and, therefore,

law can regulate them. No religion permits deliberate distortion. The UCC will not and shall

not result in interference of one’s religious beliefs relating, mainly to maintenance,

succession and inheritance. This means that under the UCC a Hindu will not be compelled to

perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance,

right to property, maintenance and succession, there will be a common law.

Justice Khare in the case of John Vallamattom v. Union of India said that-

"It is no matter of doubt that marriage, succession and the like matters of secular character

cannot be brought within the guarantee enshrined under Articles 25 and 26 of the

Constitution.”

This also becomes clear from the judgment given by Justice R.M. Sahai. He said,

"Ours is a secular democratic republic. Freedom of religion is the core of our culture.

Even the slightest of deviation shakes the social fibre. But religious practices, violative of

human rights and dignity and sacerdotal suffocation of essentially civil and material

freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for

protection of the oppressed and for promotion of national unity and solidarity.13

Therefore, it is wrong to say that bringing of uniform civil code will destroy the secular

nature of our country.

13
Sarla Mudgal v. Union of India, AIR 1995 SC 1531.

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ENACTMENT OF AN ACT BECAUSE

OF THE JUDGEMENT GIVEN IN
SHAH BANO CASE

After the judgement given by Supreme Court in Shah Bano Case, the Rajiv Gandhi

government made a great show of opposing the Shah Bano judgment in order to appeasing

conservative Muslims. As a legislative response, it passed the Muslim Women (Protection of

Rights on Divorce) Act, 1986, which was marketed as a roll back of the Shah bano

judgement.

Gandhi had made a big show of turning back the Shah Bano judgment by passing the Muslim

Women Act. But he had also cunningly (in a good way) inserted section 3(1)(a) which spoke

of “a reasonable and fair provision and maintenance to be made and paid” by a Muslim

husband to his divorced wife. In effect, the act did not nullify the concept of alimony

and upheld the Shah Bano judgment. In fact, the act actually strengthened the position of

Muslim women, since unlike the secular alimony law, which had a ceiling of Rs 500 per

month, the Muslim Women Act had no upper limit, thus making men liable to potentially

even higher maintenance payments than they would have if they had been subject to India’s

secular alimony law.

After the case of Shah Bano, came the landmark judgment of Danial Latifi and Anr.

v. Union of India,14which challenged the constitutionality of the Muslim Women (Right to

Protection on Divorce) Act, 1986. The Solicitor general supported the Act by saying that

personal law was a legitimate basis for discrimination, and that therefore does not offend

article 14 of the Constitution. The All India Muslim Personal Law Board, as an intervener,

14
Danial Latifi and Anr. v. Union of India, AIR 2001 SC 3948.

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defended the 1986 Act and stated that Section 4 of the said Act was good enough to take care

of avoiding vagrancy of a divorced Muslim woman, and that she need be dependent on her

husband (as she can claim maintenance from family, relatives & State Wakf Boards). The

National Commission for Woman submitted that the court should adopt a broad interpretation

of ‘reasonable and fair maintenance’, failing which Constitutional guarantees maybe

violated.15

CONCLUSION

Article 44 of the Constitution of India requires the state to secure for the citizens of India a

Uniform Civil Code throughout the territory of India. As has been noticed above, India is a

unique blend and merger of codified personal laws of Hindus, Muslims, Christians, Parsis.

However, there exists no uniform family related law in a single statutory book for all Indians

which is acceptable to all religious communities who co-exist in India. The question is not of

minority protection, or even of national unity, it is simply one of treating each human person

with the dignity that he deserves; something which personal laws have so far failed to do.

The principle is to treat each person equally and everyone be protected by just, fair and

predictable laws.

Times have changed, societies have changed and it is high time that laws change. Education,

economic prosperity, agricultural improvements, cross border migration and western

influence has spread its hand over every nook and corner of Urban India. On the flip side,

rural settlements are still struggling with adherence to customary and superstitious beliefs in

15
Vijay Pal Singh ‘Shah Bano Case and after’ Indian Constitutional Law Review,< www.iclrq.in/edition-
1/shah-bano-begum-after/> accessed on 15 Oct 2017.

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family matters. A uniform civil code will not only change the entire perception of how

families are governed but also change the lives of millions by filling the lacunas in various

religious laws. As Justice Y.V. Chandrachud, rightly remarked, a common civil code will

also help in strengthening the cause of national integration by removing conflicting interests.

The section of the nation against the implementation of UCC contends that in ideal times, in

an ideal State, a UCC would be an ideal safeguard of citizens’ rights. But India has moved

much further from ideal than when the Constitution was written 50 years ago.

But to conclude, I would like to say that citizens belonging to different religions and

denominations follow different property and matrimonial laws which is not only an affront to

the nation’s unity, but also makes one wonder whether we are a sovereign secular republic or

a loose confederation of feudal states, where people live at the whims and fancies of mullahs,

bishops and pundits.

It is necessary that law be divorced from religion. With the enactment of a uniform code,

secularism will be strengthened; much of the present day separation and divisiveness between

various religious groups in the country will disappear, and India will emerge as a much more

cohesive and integrated nation.

The crusade for the implementation of the uniform civil code should get the support of all

progressive and right thinking citizens of the country. It is the need of the hour. There is also

need for a political consensus to implement the uniform civil code. In a nutshell, uniform

civil code is necessary to effect an integration of a country as diversified as India by bringing

all the communities into a common platform which do not form the essence of a single

particular religion. A uniform civil code will also enforce the idea of secularism enshrined in

the Indian constitution more forcefully.

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BIBLIOGRAPHY

PRIMARY SOURCES
 Constitution of India
 Code of Criminal Procedure,1973

CASES
 Mohd. Ahmad Khan v. Shah Bano Begum 1985 SCR (3) 844.
 Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984)4
SCC 522.
 Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
 SR Bommai v Union of India (1994)3 SCC 1.
 Danial Latifi and Anr. v. Union of India, AIR 2001 SC 3948.

ARTICLES
.
 Namita Kohli ‘‘Rajiv was pressured by Narasimha Rao, Najma Heptulla during Shah
Bano’ [2016], www.hindustantimes.com/...shah-bano/story-
N3or1pJErtJkSUmqGX96FP.html accessed on 20 Oct 2017

.
 ‘Uniform Civil Code (UCC): Pros and Cons in a nutshell’ <
www.clearias.com/uniform-civil-code-ucc/> accessed on 22Oct 2017.

 Vijay Pal Singh ‘Shah Bano Case and after’ Indian Constitutional Law Review,<
www.iclrq.in/edition-1/shah-bano-begum-after/> accessed on 15 Oct 2017.

 Aditya Mishra ‘Mohd. Ahmad Khan v Shah Bano Begum’, [2016]

<lawmantra.co.in/case-name-mohd-ahmed-khan-vs-shahbano-begum/>

WEB SOURCES

 https://www.lawctopus.com/academike/need-uniform-civil-code-india/
 www.legalserviceindia.com/articles/ucc.htm
 www.mbauniverse.com/group-discussion/.../india-needs-a-uniform-civil-code.php
 hillpost.in/2013/08/top-7-reasons-why-india-needs-a-uniform-civil-code/95038/

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 https://www.lawfarm.in/.../the-uniform-civil-code-in-india--analysis-of-the-pros-and-
c
 https://en.wikipedia.org/wiki/Uniform_civil_code
 www.livelaw.in/towards-uniform-equality-draft-progressive-uniform-civil-code-
place...
1.

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