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  Uniform civil code & national integration
THE ISSUE of the uniform civil code has been shaken out of its dormancy by the Supreme Court once again. Last month, in the course of striking down as unconstitutional sec.118 of the Indian Succession Act, 1925, Chief Justice V.N. Khare observed that it was "a matter of regret that Article 44 of the Constitution has not been given effect to." It is surprising that such statements should emanate from the highest court of the country when it is well known that the prerogative of deciding what laws are good for the country rests with the executive.
Article 37 of the Constitution makes it very clear that the provisions contained in the Directive Principles of State Policy are not enforceable by any court of law and therefore, the courts have no jurisdiction over them.
Emboldened by the pronouncements of the Supreme Court, the BJP has called for a national debate on a uniform civil code. It wants the Law Commission to "identify fair and equitable ingredients" from the personal laws of the Hindus, Muslims, Christians and Parsis and formulate a common code. Assuming a common code is possible, the competence of the Law Commission to frame such a code can be questioned on the basis of it not being represented by members from the minority communities who are also acknowledged experts in their respective personal laws.
The talk of a uniform civil code, in the absence of uniformity in most of the other laws prevailing in the country, is absurd. It may be surprising to know that even the Criminal Procedure Code and the Civil Procedure Code are not uniform throughout the country as they have been amended and modified by various State Governments. To quote another example, sec.118 of the Indian Succession Act, 1925 was struck down by the Supreme Court as unconstitutional for being unfair to the Christians. Yet Hindu Undivided Families continue to enjoy tax benefits in India which are not available to the other communities. Why don't the supporters of a uniform civil code call for a uniform fiscal code?
Sheer diversity
A comparative study of the personal laws of the Hindus, Muslims and other minorities will reveal that the sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permit uniformity of any sort. In fact, the heterogeneity of the Hindu law itself is such that even the possibility of a uniform Hindu code is ruled out. Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a `Hindu.' For instance, according to the saptapadi form of marriage, followed mostly in northern India, the marriage is complete and binding when the bridegroom and the bride take seven steps in front of the sacred fire.
On the other hand in the south suyamariyathai and seerthiruththaforms of marriage are followed. Under these forms a marriage is valid if the parties to the marriage declare in the presence of relatives that they are marrying each other or if they garland each other or if they put a ring on each other's finger or if the bridegroom ties a thaliaround the neck of the bride. Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh the marriage is void (See Sakuntala v Nilakantha 1972, Mah LR 31).
In so far as the Muslim law is concerned though there are no elaborate rites or ceremonies, there exist some differences between the Sunni and Shia marriages. Under the Sunni law the proposal(ijab) of marriage and it acceptance (qubool) should be made in the presence of two witnesses along with a nikahnama in which the terms of marriage such as dower and its mode of payment, etc., are incorporated. But under the Shia law no witnesses are required to solemnise a marriage. The Shia law also allows a temporary marriage called muta, whereas for the Sunnis muta is strictly prohibited.
Therefore, it has to be asked if it is possible to reconcile these divergent laws of the Hindus and Muslims and formulate a uniform code that is acceptable to both the communities to say nothing about the Christians and the Parsis. Let alone the minorities, the first to oppose such a common code will be the Hindus. Nevertheless, one wonders how the unity and integrity of the country will be affected if Hindus, Muslims, Christians and Parsis or for that matter any other people marry, divorce and inherit in accordance with their respective personal laws.
The fact is, neither does India require nor is it possible or practicable to have a uniform civil code governing all the communities. India already has optional civil code in the form of the Special Marriages Act, 1954. This Act read with other similar Acts such as the Indian Succession Act, 1925 provides an excellent legal framework for all matters of marriage, divorce, maintenance and succession for those who wish to avoid religion-based laws.
A. FAIZUR RAHMAN
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