UNIFORM CIVIL CODE: A SUGGESTION

Author(s): D. C. Manooja
Source: Journal of the Indian Law Institute, Vol. 42, No. 2/4, Constitutional Law Special
Issue (April-December 2000), pp. 448-457
Published by: Indian Law Institute
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 UNIFORM CIVIL CODE: A SUGGESTION

I Introduction

THE SUPREME Court of India, in a historic case of Sarla Mudgal 1 has on

again stressed the need for a uniform civil code for all Indians in personal law
matters. The apex court has reminded the Government of India of its imperati
duty to implement uniform civil code for both protection of the oppressed an
promotion of national unity and integration. The decision has sent shock wav
into the camps of power monger politicians and religious fundamentalis
Since the commencement of the Constitution in 1950, no government at the
centre ever had any guts to enforce Uniform civil code for all the citizens of
India in matters of marriage, succession, inheritance, adoption, etc. Article 4
of the Constitution of India seeks to introduce a uniform civil code for all the
citizens of India. It reads as:

The state shall endeavour to secure for the citizens a Uniform Civil
Code throughout the territory of India.

This article is one of the directive principles of state policy. It imposes a

positive obligation on the state to establish a uniform civil code for all the
Indians throughout the territory of India. Though not enforceable through the
courts of law, yet it is fundamental in the governance of the country. No time
limit has been laid for the implementation of the directive principles of state
policy by the makers of the Constitution. This was provided because the
members wanted the wounds of partition to heal up and the country be prepared
for a change in the personal laws.

The Government of India has so far not applied its mind to fulfil this
positive obligation laid down upon it by the Constitution of India because of
the fact that article 44 is not a mandate to it. This fact itself is a hindrance in its
being implemented. Another hindrance is large power, both with the Parliament
of India and state legislatures, to legislate upon most of the topics which may
be included in the uniform civil code2. And the main hindrance being the
different religious sects having different personal laws which are very dear to

1. Sarla Mudgal, President Kalyani v. Union of India, AIR 1995 SC 1531.

2. For instance, divorce, which is one of the subjects of uniform civil code, is included in entry
5, list III of the 7th schedule to the Constitution.

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2000] UNIFORM CIVIL CODE: A SUGGESTION 449

them and they do not like that any outside agency

Nonetheless the objectives set by article 44 of the
earnest attention of the state and an endeavour to
one big code on all the spheres of marriage, d
etc., with one stroke of pen may cause immense d
old traditions and customs of the people as a who
provide change in the habits and traditions of the
Instead of making one civil code, covering all the t
be better if piecemeal uniform legislation is m
like adoption, maintenance, divorce, marriage, in

II Historical background

. Before the British period i.e. prior to 1612, Mu

During the Mughal regime, justice was adminis
applying Muslim law to Muslims but there was no
litigation concerning Hindus were concerned. On
land was Muslim criminal law applicable to
administered by Qazis and Muftis under Mugha

During the British period, the Mughal system

was more or less continued till 1772. Warren Hast
plan of 1772 provided uniform courts of law on t
area of Bengal, Bihar and Orissa adjoining Cal
population without discrimination between H
Regarding law to be applied, on civil side the cour
laws of the different religious communities i.e. H
law for the Muslims; Christian law for the Christi
and Jewish law for the Jews. On criminal side, it
amended by regulations from time to time, whic
the religious communities in India. In the mo
functioned and legal training was not a pre-requisi
in the court. After 1781, supreme court estab
Presidency under the Regulating Act, 1773 came t
and no others viz. Hindu law, Muslim law, and
applied on civil side Hindu law for Hindus and
for the rest of the religious communities Engl
doctrine of justice, equity and good conscience
exercise jurisdiction within the presidency town an
in the mofussil area beyond the presidency tow

3. Mofussil area was the area adjoining the Presidency tow

4. M.P. Jain, Indian Legal History. See also, Supra note 1 a

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450 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

Orissa. On criminal side, it applied so much of the English law

to the local conditions prevailing in India.

The 1772 Regulations of Warren Hastings were followed by th

of 1781 where it was prescribed that either community was to
its 'personal' law in matters relating to inheritance, marriage, r
and instiťutions. So far as the criminal justice was concern
gradually superseded the Muslim criminal law by the Engli
Lord Cornwallis, the Governor General of Calcutta, introduc
improving administration of criminal justice and introduce
measures in the area of criminal law and procedure5. By 1832 c
was governed by the English common law. Finally the Indian Pe
enacted in 1860. This broad policy continued throughout the
until independence and the territory of India was partitioned b
rulers into two states on the basis of religion. Those who preferr
India after the partition fully knew that the Indian leaders did
two-nation or three-nation theory. And that in the Indian repub
be only one nation - India - and no community could claim to re
entity on the basis of religion. It would be necessary to emp
respective personal laws were permitted by the British to gove
relating to inheritance, marriage, etc. only under the regulation
by Warren Hastings. The legislation - not religion - being the a
which personal law was permitted to operate and is continuing
same can be superseded/supplemented by introducing a uniform
this view of the matter no community can oppose the introduct
civil code for all the citizens in the territory of India6.

In 1 835, the First Law Commission was appointed under the

of Lord McCauley. The Commission submitted that there is no
of the land for non-Hindus and non-Muslims. The two majo
and Muslims, have their laws mixed with their religion. T
referred to the uniformity of law and so pointed out that India
lex loci7. Even today India is without any lex loci in the person
us examine the personal law applicable to various communiti

-Before independence, Hindus were governed by the law

and Dayabhaga. Even Mitakshara law8 was not applied unif
result was that four different sub schools came into existen
Hindus were having separate personal laws applicable to them. M
provinces and states had started making separate Hindu law
Similarly, Muslims were divided into two major sects viz .

5. Id at 164.
6. See, Supra note 1 at 1539.
7. M.P. Jain, Outlines of Indian Legal History 516-17(1 976).
8. Mitakshara school was divided into sub schools namely: Mithila, Bombay, Madras and Be

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2000] UNIFORM CIVIL CODE: A SUGGESTION 45 1

Though Muslim personal law is derived from one sou

yet these two communities differ from each other r
personal law to them. Furthermore Sunnies are divi
while Shiasi0 are divided into three sub schools. In 1
Marriages Act was passed which authorised the M
through court. The same is the position of Christian
major groups viz . Catholics and Protestants. Their p
the form of Christian Marriage Act, 1 827 and Indian
too have their separate personal law applicable to
any uniform civil code for Indians in their personal

India has five major religious communities

Christians, Parsees and Jews. And each religious com
of its own. Not only this, among each of these comm
divergence in laws based on sex, sect, domicile an
undergone. Besides these, there are still prevailing a l
laws applicable to different communities.

The merger of the union territory of Goa, Daman

union territory of Pondichery12 in 1962 resulted in
foreign legal systems13 in the already existing com
laws. In Goa, Daman and Dieu, the general law applic
is the Portuguese Civil Code, 1867 which is base
1880, however, the Portuguese had protected some H
of the Gentile Hindus of Goa. Laws were enacted for Hindus of Daman and
Dieu as well. The legal position in this respect remains unchanged till the
present day. In Pondichery, it is the French Civil Code, 1 802 which is applicable
to all the inhabitants. After independence, Indian Parliament in 1955-56 codified
the personal law of Hindus to some extent and changed the old law. The personal
laws of other communities were not touched except the Special Marriage Act,
1954 which was equally applied to other religious communities.

Ill The Constituent Assembly and the uniform civil code

The idea of a uniform civil code was mooted in the Constituent Assembly
in 1947. The sub committee on fundamental rights had desired to include
uniform civil code as one of the directive principles of state policy.14 Clause

9. Sunni's four sub schools are: Hanafi, Hanbal, Maliki and Shafìi.
10. Shia's three sub schools are: Ithna Ishari, Ismaili, Zyadia.
11. Goa, Daman and Dieu were merged in the Union of India on 20. 12.61.
12. Pondicherry merged in the Union of India on 16.8.62.
13. Portugese Civil Code, 1867 was applicable in Goa, Daman & Dieu and French Civil Code,
1 804 was applicable in Pondicherry.
14. Three members of the sub committee recorded their dissent in unequivocal words. See, Shiva
Rao, "Select Documents" The framing of Indian Constitution (Vol. II) 206.

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452 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

3915 of the draft of directive principles of state policy read: "T

endeavour to secure for the citizens Uniform Civil Code."

Even though clause 39 (present art. 44) was amongst the directive principle
of state policy, it was strongly opposed16 . Two objections were raised against
the making of a uniform civil code for whole of India in the constituent assembly
Wz.:

• It will violate the freedom of religion ensured in article 25 of the

Constitution of India, and

• It will amount to tyranny to the minorities17.

The first objection is not proper as the directive contained in article 44,
in no way, infringes the freedom of religion guaranteed by article 25 of the
Constitution of India. Clause (2) of article 2518 specifically saves secular
activities associated with religious practices. The reply to the second objection
given by Shri K.M. Munshi, member of the drafting committee, in the
constituent assembly is worth noting. He said19 :

Nowhere in advanced Muslim countries the personal law of each

minority has been recognised as so sacrosanct as to prevent the
enactment of a civil code. Take for instance Turkey or Egypt. No
minority in these countries is permitted to have such rights. But I go
further when the Shariat Act, 1937 was passed, or when certain laws
were passed in the central legislature in the old regime, the Khojas
and Cutchi Memons were highly dissatisfied.

Khojas and Cutchi Memons followed certain Hindu customs since their
conversion to Islam. They most hesitatingly accepted Shariat Act because certain
Muslim members in the central legislature wanted that Shariat law be applied
to the whole community. Rights of the minorities were not taken into
consideration because a uniform law was required to apply. This is not
amounting to tyranny of the majority on the minority. The European countries
where civil code has been applied, it is equally applicable to all the minorities
and to anyone who goes in those countries from any part of the world.

15. Presently art. 44, Constitution of India.

16. Constituent Assembly Debates vol. VIII 543.
17. V.N.Shukla, Constitution of India 307.
18. Art. 25(2): Nothing in this article shall affect the operation of any existing law or prevent the
State from making any law-
a. Regulating or restricting any economic, financial, political or secular activity which may be
associated with religious practice.
b. Providing for social welfare and reform or the throwing open of Hindu religious institutions
of public character to all classes and sections of Hindus.
19. S«pranotel7.

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2000] UNIFORM CIVIL CODE: A SUGGESTION 453

Mr. Munshi felt that a uniform civil code was essential if we wanted a
unified and secular country. Dr. Ambedkar said that he was surprised to hear
that India was too vast a country to have one law. He pointed out that India had
a uniform code in 11 matters namely: contract, transfer of property, sale of
goods, partnership, companies, negotiable instruments, civil procedure,
arbitration and limitation, crimes, criminal procedure and a host of other
statutory laws save those of marriage, succession, adoption and maintenance.

Dr. Ambedkar pointed out that it was wrong to say that Muslim law was
immutable and uniform throughout India till 1935. The Shariat law did not
apply to North West Frontier provinces, which followed Hindu law for
succession and other matters. In 1939 Shariat law was applied to them.

Similarly, Hindu law of succession was applicable to Muslims in various

parts of united provinces, central provinces and Bombay. In North Malabar
and Marumakkathayam, both Hindus and Muslims were governed by
matriarchal law of succession. Dr. Ambedkar concluded by saying: 20

It is therefore no use making a categorical statement that the Muslim

law has been an immutable law which they have been following from
ancient times. That law as such was not applicable in certain parts
and it had been made applicable ten years ago. Therefore, if it was
found necessary that for the purpose of evolving a single civil code
to all citizens irrespective of their religion, certain portion of the Hindu
Law, not because they were found to be most suitable were
incorporated into the new Civil code projected by Art. 35. 1 am quite
certain that it would not be open to any Muslim to say that the framers
of the civil code had done great violence to the sentiments of the
Muslim community.

Parliament may provide that in the initial stage, the application of the
uniform civil code may be purely voluntary as was done in the case of Shariat
Act, 1937.

IV Uniform civil code and independent India

After independence, the process of codifying Hindu law was started under
the guidance of India's first law minister, Dr. Ambedkar, who was in favour of
enacting comprehensive Hindu Code. Dr. Rajinder Prasad, the first President
of India, opposed the enactment of a comprehensive Hindu Code and
consequently the Hindu law had to be enacted in the form of piecemeal
legislation namely Hindu Marriage Act 1955; Hindu Adoption and Maintenance
Act, 1 956; Hindu Minority and Guardianship Act, 1 956 and Hindu Succession
Act, 1956. Dr. Ambedkar resigned as a law minister in the cabinet because of

20. Ibid.

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454 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

a stiff opposition by Dr. Rajinder Prasad for a uniform code21. Pa

Nehru, while introducing the Hindu Code Bill instead of uniform
the Parliament in 1954, said: 22

I do not think that at the present moment the time is ripe in

me to try to push it through.

It appears that even in 2001, the new millennium, the rulers o

not think that the time is ripe for uniform civil code for a
governments - which have come and gone - have so far faile
effort towards unified personal law for all Indians. In 1955-56 H
codified to some extent which have replaced the traditional H
on different schools 'of thoùght and scriptural laws. When mor
the citizens have already been brought under the codified perso
no justification whatsoever to keep in abeyance, any more, the
uniform civil code for all the Indians in the territory of India.

No other personal law was codified until 1986 when the Musl
(Protection of Rights on Divorce) Act was passed superseding Sh
which permitted a Muslim wife to claim maintenance under sec
C, 1974 till death or the re-marriage and not for a period of idd

After independence, only one Act was passed by Indian Parli

applied to family relations of all Indians irrespective of their re
was the Special Marriage Act, 1954. The Act permitted the parties
other without renouncing their religion. For purposes of succes
Succession Act, 1925, governed them. The Special Marriage Act,
in consonance with the marriage and succession laws of the
Muslims, yet no objection was raised and no exemptions were de

However, when the Indian Adoption Bill was introduced

Sabha in 1972, the debate on uniform civil code came to life aga
the bill, the law minister remarked that it was the first step to
civil code. Even though the bill permitted all Indians to adppt any
reference to the religion of the child or the adoptive parents, yet
this bill could not be passed as an Act25. The Adoption Bill was on
legislation and compelled no one to adopt a child. As regards the
an Indian child by a foreigner is concerned, Indian law is silent.
Pandey v. Union of India26, the Supreme Court of Ind

21. N.R. Madhava Menon (ed.), National Convention on Uniform Civil Code
(1986).
22. Supra note 1 .
23. (1973)1 SCC 717.
24. Supra note 21 at 9.
25. Ibid.
26. AIR 1984 SC 469, AIR 1986 SC 272, AIR 1987 SC 232.

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2000] UNIFORM CIVIL CODE: A SUGGESTION 455

comprehensive guidelines to regulate future adop

to any religious community in India. The court p
procedures to be followed in the case of an adopt
foreigner parents^7.

Most unfortunately, the uniform civil code has

in the Indian mind with opposition by the Muslim
in the Constituent Assembly that not all Hindus
civil code. They felt that the personal law of in
really a part of their religion. If that were so, Ind
equality with men which is enshrined in art.14 of
provides that the state shall not discriminate aga
only of religion, race, caste, sex, place of birth o
law, you find discrimination against women ev
Hindus is a part of Hindu religion, equality can n
and women. Religion must be restricted to religion
attached to the religion must be regulated, unifie
and consolidated nation28. The present Muslim law
to Muslim women - if personal law is considered
elevate the position of Indian women and provide
in need of a uniform civil code for all Indians.

An apprehension that has been expressed - genuinely by some and

mischievously by others - that a uniform civil code means the imposition of
the law of Hindus on minorities. Facts relating to partial codification of the
Hindu law in 1955-56 demonstrate the falsity of the fear. The amendment of
the Hindu Marriage Act in 1976 introduced the Muslim law principle of
"option of puberty"29.

Former Chief Justice of India, Mr. Justice Gajendragadkar has observed

that, "in any event, the non implementation of the provision contained in Art
44 amounts to a grave failure of Indian democracy and the sooner we take
suitable action in that behalf, the better", and that "in the process of evolving a
new secular social order, a common civil code is a must"30.

Mr. Justice K.S. Hegde also said that, "religion oriented personal laws
were a concept of medieval times - alien to modern societies which are secular
as well as cosmopolitan", and that "so long as our laws are religion oriented,
we can hardly build up a homogeneous nation." 31

27. D.C. Manooja, Adoption Law and Practice 78-79 (1903).

28. V.N. Shukla, Constitution of India 308-09. See also, Constituent Assembly Debates vol. VII
547-48.
29. S. 13(2)(iv), Hindu Marriage Act, 1955.
30. Gajendragadkar, Secularism and the Constitution of India 126 (1971).
31 . K.S. Hedge, Islamic Law In Modern India (Ed. Tahir Mahmood) 3 (1972).

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456 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

V Discrimination in various personal laws

We can enlist the discrimination in various personal laws as u

1. The Muslims law allows polygamy, but the Hindu, Christ

laws do not.

2. Definition of marriage under Muslim law indicates that the f

is not equivalent to male witness.
3. Marriage under Muslim law is a civil contract while und
even today marriage is regarded as sacramental union, t
partially.
4. Muslim males are allowed extra judicial divorce but the Hindu, Christian
and Parsee, males as well as females, can affect divorce only through the
court.

5 . Muslim females can get divorce only through the court of law on specified
grounds. The same is the position of Hindu, Christian and Parsee females.
6. Under Muslim law, husband's apostasy from Islam results in automatic
dissolution of a Muslim marriage though wife's apostasy does not. Under
Hindu law, a spouse converting to another religion confers on the other
spouse a right to sue for divorce. The same is the position under Parsee law.
Under Christian law, apostasy does not affect the marriage but where the
apostate husband has married again, the wife gets a right to sue for divorce.
7. Under Muslim law, a divorced wife is not entitled to any maintenance,
except for iddat period. The Hindu, Christian and Parsee law permits
maintenance for divorced wife till her death or remarriage.
8. Under Muslim law a divorced wife cannot marry her previous husband
without her being remarried to some other man who has pronounced
divorce on her or has died after consummation of marriage. No such
condition is there under Hindu, Christian and Parsee law.
9. Under Muslim law, a daughter inherits half of the share of a son.
10. Under the Muslim law, a person cannot dispose of moře than 1/3 share of
his property by will, but the other personal laws do not impose any such
limitation. In case of joint family property among Hindus, one can only
dispose of his share by will and not the whole of the joint family property.
11. A female under Mitakshara law is not a coparcener. Coparcenary consists
of only male members. Such a system is not available in other personal
laws. Even after passing of Hindu Succession Act, 1956 i.e. at the present
time, the concept of coparcenary is retained.32

32. State of Kerala abolished the Mitakshara joint family system in 1 975 and state of A.P. did the
same thing in 1986 and adopted Dayabhaga joint family system, where brother and sister are entitled to
equal share in the joint family property.

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2000] UNIFORM CIVIL CODE: A SUGGESTION 457

12. Muslim law recognizes acknowledgement of

legitimacy of the child, while others do not reco
13. Muslim law, Christian law and Parsee law do
child while Hindu law permits adoption.
14. Under Muslim law, a child born is deemed to be
a particular period of separation of spouses (afte
which varies from 10 months to 4 years. The co
to recognize the Hanafi law, which permits t
Shafi law, which permits four years separation, a
natural course of events. Hindu, Christian and P
legitimacy if the separation period is more than

VI Conclusions

A sharp distinction must be drawn between religious faith and belief and
religious practices. What the state protects is religious faith and belief.
religious practices turn counter to public order, morality or health or a polic
of social welfare upon which the state has embarked, then the religious practic
must give way for the good of the people of the state as whole. The state is
empowered to legislate with regard to social reform under article 25(2) (
notwithstanding the fact that it may interfere with the right of citizens to freely
profess, practice and propagate religion. Therefore, this legislation does n
contravene article 25(i) of the Constitution33.

Uniform civil code amounts to equal laws for all sections of our society.
All the people of India must be governed by one set of laws. For national unit
and for secularism, uniform civil code is necessary. The plurality of laws in
personal law matters is a blow and direct threat to national integrity an
solidarity. It is worth mentioning the name of a few countries where a uniform
civil code has been functioning successfully viz . Germany, France, ¿Spain
Canada, Japan, Turkey and Portugal.

If the British could enact a few uniform personal laws in India like
Guardians and Wards Act, 1890; Indian Succession Act, 1925 and Child
Marriage Restraint Act, 1929, why the present government of India representin
all the religious communities cannot enact a uniform civil code for all th
Indians. So the government of India should take initiative for enacting a uniform
civil code, which should contain the best elements of different civil laws of th
various religious communities of the country and thus fulfil its positi
obligations imposed upon it by article 44 of the Constitution of India.

D.C. Manooja

33. State of Bombay v. Narasu Appa, AIR 1952 SC 84.

* Reader, Law Department, Guru Nanak Dev University, Regional Campus, Jalandhar.

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