Uniform Civil Code - Analysing The Discrepancies In Marriage Pertaining To Hindu And Muslim Personal Law
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Category: Family & Personal Law
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UNIFORM CIVIL CODE: ANALYSING THE
DISCREPANCIES IN MARRIAGE PERTAINING TO HINDU
AND MUSLIM PERSONAL LAW
Aman Kapoor & Samridh Chaturvedi, Christ University, Bangalore
ABSTRACT
Article 44 of the Indian Constitution states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. ” UCC aims to bring changes in primarily three areas of personal laws i. e. ; marriage, property rights and inheritance, this paper intends to clear the perplexity regarding changes UCC would bring in personal laws. This paper employs a comprehensive and multidisciplinary approach, incorporating legal and social perspective to contextualise the discrepancies in personal law through a qualitative analysis of the conundrum the government may encounter while implementing Uniform Civil Code (UCC). It is important to note that Uniform Civil Code will not affect the customary practices of different religions rather it aims to thwart regressive religious practices.
This paper starts by introducing UCC from perspective of different stakeholders including the 21st Law Commission report while highlighting the rationale behind their views and its relevance in the present scenario. The objective of this paper is to highlight the major discrepancies relating to marriage under Hindu and Muslim personal laws on subject matters like sapinda relationships and polygynous marriages. For instance, Hindu Marriage Act (1955) does not permit marriage under Sapinda relationships while the Muslim law permits marriage with first cousin. Further, this paper intends to give solution to the conundrum that the government would face while implementing UCC in order to balance the ambiguities. Keywords: Uniform Civil Code, Uniformity, Personal Laws, Discrepancies, Implementation
Introduction Uniform Civil Code as stated under Article 44 of the Constitution provides for bringing uniformity in personal laws that will be applied to all the citizens of the country. Framers of the Indian Constitution incorporated the idea of Uniform Civil Code in order to promote unity and reduce prevalent disparities amongst different religious groups. B. R Ambedkar was of the opinion that major aspects of human relationship were already being governed by a uniform code of law, we have a uniform and comprehensive Criminal Code operating throughout the nation, which is contained in the Indian Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations, and which is operative throughout the country.
the only area which lacks a uniform code of law is child adoption, marriage and succession, Hence, debating whether we should embark on implementing a uniform Civil Code in our country seems somewhat irrelevant because in reality, we have already addressed the major aspects covered by such a code. Therefore, questioning the feasibility of doing so now is belated. The role and responsibility of interpreting the provisions of the constitution has been vested with the courts in India. Since its advent, Supreme Court of India has time and again reiterated and emphasised on the significance of Uniform Civil Code. The Apex court has highlighted on state’s legislative competence to bring the idea of Uniform Civil Code in action through its interpretation of article 44 under several case laws. In the landmark case of Mohd.
Ahmad Khan Vs Shah Bano Begum & OR’s1, the apex court held that “It is also a matter of regret that Article 44 of the Constitution has remained a dead letter” elaborating that it has largely remained unimplemented. It also emphasised on the fact that how a common civil code will facilitate the objective of national integration. Further, while delivering the judgement in the infamous “Triple Talaq” case the court stated the need of a Uniform Civil Code in the pretext of certain ambiguities prevalent in personal laws, these ambiguities refer to the discrepancies found in majorly two of the religious personal laws i. e.
, Hindu personal laws and Muslim personal laws for example under section 32 of Hindu marriage act (1995) marriage under sapinda relationship is prohibited while In Surat al-Ahzab (33:50), Allah mentioned to the Prophet that he may marry the daughters of his uncles and aunts from the father’s side or the mother’s side. It is the consensus of the jurists that this permission was not only for the Prophet, but it is also a permission for other believers. Muslims have practiced
1 Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR SC 945
2 Hindu Marriage Act, 1955, § 3, No.25, Acts of Parliament,1955 (India)
marriages between first cousins in all countries since the time of the Prophet3, The Concept of Marriage itself has several connotations in different personal laws of the country, Marriage is considered to be as a sacred tradition and an institution in itself under the Hindu Law whereas it is seen as a contract between two individuals or parties under the Islamic law. So, if the state were to be implementing a uniform code these conundrums must be balanced with considering both the majority and minority point of view. Jawaharlal Nehru in his book ‘Discovery of India’4 mentions about ‘unity in diversity’, Uniform civil code is on the same lines as the concept of unity in diversity as it essentially aims to unite the diversities while integrating the personal laws and bringing uniformity in issues like marriage, property rights and inheritance.
Analysing viewpoints of different stakeholder’s The story of UCC goes back to the pre-independence era, Even though the colonial left our country 76 years ago the 'colonisation of mind’5 is still evident in the contemporary world , Colonial policy of divide and rule is an example of ‘colonisation of mind’ which is evident in dissent against UCC as until 1935 the north west Frontier province and various other parts of India was governed by Hindu law, it was in 1939 that the central legislature abrogated the application of Hindu law to Muslims in North West Frontier province so the fear that UCC would be against the Muslim in this country is due to the scars left by the divide and rule policy. The constituent assembly didn’t have a unanimous view on UCC, in the submissions of Ambedkar, K.
M Munshi and Minoo Masani, we find provisions that call for adoption of a uniform civil code while the Muslim members of the house like Nazzirudin Ahmad, Ismail Sahab and Pocker sahib bahadur apposed the implementation of UCC. The argument put forward by the Muslim members were
1. The UCC violated the freedom of religion.
2. They feared that introduction of a uniform code would create disharmony within Muslim
population and would impose a majoritarian perspective on them
3. They demanded that no interference must take place in the personal law without the approval
3 ISLAM ONLINE, https://fiqh.islamonline.net/en/islamic-view-on-marrying-cousins/ (oct.4 2023)
4 Jawaharlal Nehru, Discovery of India ( Signet Press, Kolkata 1946)
5 Ngũgĩ wa Thiong’o, Decolonising the Mind: The Politics of Language in African Literature (James Currey Ltd / Heinemann June 26, 1986)
of religious communities. They took the recourse that the British had not touched the religious laws and questioned the need for Independent India to tamper with the personal laws, but the British rationale for not touching religious laws to propagate their policy of ‘divide and rule’ and not to bring changes in the inherent differences in religious laws which prevented Indians from identifying as a single entity. The Muslim members were majorly concerned with protection of personal laws from state interventions they relied on precedents from European countries. Yugoslavia for instance that is, the kingdom of Serbs, Croats and Slovenes, is obliged under treaty obligation to provide rights to minorities. K. M Munshi, Alladi Krishnaswamy and Ambedkar gave counter-arguments in the debate and defended the uniform civil code, K.
M Munshi argued that it up until now the argument was around the Muslim sentiment but even the Hindus were insecure about this provision so deeming this to be a majoritarian propaganda would be erroneous, according to munshi UCC was necessary for national integration. Alladi Krishnaswamy responded to the argument that UCC would bring disharmony among the communities but infact UCC aimed at bringing amity between communities He further asked if India should be welded together as a single nation or always kept up as a series of competing communities6. At this point, Ambedkar came into the debate He emphasised Alladi’s point that there was nothing new about the uniform civil code.
There already existed a common civil code in the country except for the areas of marriage, inheritance – which are the main targets for the uniform civil code in the Draft Constitution, soon after Ambedkar’s speech the draft was put to vote and the article that would eventually become Article 44 of the Indian Constitution was adopted by the Constituent Assembly. The 21st Law Commission on Uniform Civil Code submitted its report titled “Reform of Family Law” in the year 2018. The Law Commission set out to undertake the task to review the family laws of the country, identify the regressive religious practices prevalent and analyse the need of ‘Uniform Civil Code’ in India. It drafted a questionnaire and put forth the same in public domain in order to consider the views of general public on reformation needed in family laws of the country.
The response from the public indicated to the direction of reforms. The 6 Lekshmi Parameswaran, Debates in the Constituent Assembly and thereafter on Uniform Civil Code, India Policy Foundation, (2020), https://www. ipf. org. in/encyc/2020/11/13/2_02_30_42_Debates-in-the- Constituent-Assembly-and-thereafter-on-Uniform-Civil-Code-Papers_1. pdf
Law Commission primarily focused on aspects like Marriage & Divorce, Adoption & Maintenance, Succession & Inheritance etc. Marriage and certain aspects of marriage for example, valid age of marriage, grounds for divorce, adultery etc. have been thoroughly analysed in the report. Adultery for instance has been a ground for divorce under various personal laws, like Muslim Law, Section 13 of Hindu Marriage Act, Parsi Act and Christian Act. The offence of Adultery excludes a woman from the ambit of punishment and punishable offence just for a male husband. According to the commission “By presuming, that only women can be victims, the law takes a patronising attitude towards women”7. But, the commission refrains from making any recommendations to the Adultery law. This highlights committee’s cautious stand on such a sensitive issue but tends to ignore the need of the hour i. e.
; making the adultery law gender neutral or removing such a provision from the IPC. In 2007, the National Commission of Women rejected the proposal of the Malimath Committee to make adultery a gender-neutral provision but in 2015 Report on status of Women recommended the complete removal of this provision8. The Law Commission also dealt with question of valid age of marriage in the country i. e. ; wherein the age of marriage in Hindu law is 18 and 21 years and on the other hand age of marriage in Muslim law is age of puberty. According to the report of the commission the age of marriage should be equal for both the genders as there was no rationale behind the different age of marriages between man and woman. The Law Commission also dealt with question of valid age of marriage in the country i. e.
; wherein the age of marriage in Hindu law is 18 and 21 years and on the other hand age of marriage in Muslim law is age of puberty. According to the report of the commission the age of marriage should be equal for both the genders as there was no rationale behind the different age of marriages between man and woman. The identification made pointed towards more progressive solutions to discrepancies under family laws. Article 3269 defines legal age for voting which is the same for all citizens and the definition of a major is the same as given under Majority Act so, it is desirable to have a more pragmatic approach while deciding valid age for marriage.
7 Law Commission of India, Reform of Family Law, 21 Press Information Bureau 1, 2018
https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf
8 Law Commission of India, Reform of Family Law, 20 Press Information Bureau 1, 2018
https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf
9 PM Bakshi, The Constitution of India 381, (Lexis Nexis 2020)
The 21st Law Commission was successful in identifying the loophole in certain aspects of family law but, it lacked some substance when it came to the solutions to the existing problems. Hence, Law Commission was of the view that UCC was not desirable and necessary in today’s time rather the state should work on to resolve prevalent regressive practices existing under family laws of India. Marriage under Hindu law & Muslim Law, analysis of the discrepancy In Hindu Law: Marriage as a social institution is considered to be very holy. It is not just a bond between two people but it is a bond between two families. The main goal of marriage, according to Manu smriti is fulfilling the four stages of life: Dharma, Artha, Kama, Moksha. Generally, the goal of getting married is to have a family, bear and raise children.
Sort of expanding your family, marriage in Hindu law is considered as a sacrament while in Muslim law it is considered as a Contract with mahr as a consideration to the contract. Hindu community is not as homogeneous as it might seems the main objective of the Hindu marriage act (1995) was to bring uniformity of laws for all sections of Hindu community. Several provisions of this statute are inconsistent with not just personal laws of other religion but they are inconsistent within the Hindu law itself, in order for the government to provide for a uniform civil code these inconsistencies must be resolved or balanced. Analysing the discrepancy in marriage under Hindu law
1. Section 510of the Hindu marriage act states the conditions required for a Hindu marriage under
sub clause 5, the acts prohibit marriage of individuals in sapinda relationship, the bar to wed a sapinda implies that no marriage is substantial in the event that it is made between parties who are related to each other as sapindas, unless such marriage is authorized by utilization or custom overseeing both the parties. Moreover, section 3 (f) defines Sapinda relationship: 3(f)(i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the
10 Hindu Marriage Act, 1955, § 5, No.25, Acts of Parliament,1955 (India)
line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation11; (ii) Two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant that is within the limits of sapinda relationship with reference to each of them; While Hindu marriage act (1955) prohibits marriages with sapindas, but Hindu marriage act alone doesn’t govern marriages in India, The Special Marriage Act, 1954 is an Indian legal provision that allows people of different religions and backgrounds to marry each other without necessarily converting to the religion of their spouse. The Special Marriage Act, 1954 lays down “degrees of prohibited relationship” in the Schedule in two Parts.
A careful analysis will show that here also, the degrees are not beyond three generations in the line of ascent. Section 212, which defines the degrees of prohibited relationship proclaims that marriage of individuals under such relationship is prohibited. However, there is a provision that reads that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized. National Family Health Survey 5(1) data shows that the prevalence of consanguineous marriage, or marriage with cousins within the family is about 11% across India while at the same time the prevalence of such marriage in major states of south India like- Karnataka, Tamil Nadu, Andhra Pradesh and Telangana is about 2.
5 times more, North India follows the Aryan culture hence marriages with cousins are prohibited while south Indian follows the Dravidian culture which allows them to marry their cousins. So, most of the marriages in south India supersedes the provisions of both the Hindu marriage act (1955) and Special marriage act (1954), this shows the inconsistencies exists not just in the practices of marriage of different religions majorly Hinduism and Islam, but there are inconsistencies in practices of marriage of amongst Hindu population and the laws governing those marriage. Polygamy is also one such practice which has been the centre of debate, in spite of the fact that there are laws against it, polygamy has long existed in Indian society and is still practiced in some areas. Although polygamy was frowned upon by Hindu law even in antiquity and was only permitted under specific conditions.
While it is permitted by Muslim law for a man to have four wives,
11 Id. at 5
12 The Special Marriage Act, 1954 § 2, No.43, Acts of Parliament,1954 (India)
but in the case of Javed & Others v State of Haryana & Others the supreme court held that polygamy is not a mandatory practice in Islam. Section 17(1) of the Hindu Marriage Act, 1955 states that any marriage between two Hindus will be void if it is solemnized at a date when either party has a husband or wife living. This section further states that the provisions of sections 494 and 495 of IPC shall apply accordingly. The study from third (2005-06), fourth (2015-16) and fifth (2019-21) rounds of the National Family Health Survey (NFHS) shows that In India, polygynous marriage decreased from 1. 9% to 1. 4% from 2005-06 to 2019-2113. Religion was one of the most important factors in polygyny. The latest data (NFHS-V) shows that polygynous marriage was the higher among Muslims (1. 9%).
A comprehensive analysis of the data shows that polygamy does not just exists amongst Muslims but even amongst Hindus though at a very small scale, hence indicating the inconsistency in law and practice. In Muslim Law: Marriage of Muslims in India derives its essence from Muslim Personal Law (Shariat) Application Act 193714 or the Sharia Law. The concept of marriage in Islam differs from that of Hindu ideal of marriage as latter considers marriage to be sacrament. Wilson defines Muslim Marriage as "a contract for the purpose of legalizing sexual intercourse and the procreation of children15. There are certain essentials that decide the validity of marriage in Islam that are: Competence of both the Parties, Acceptance & Offer as required in a contract and no legal disability of any of the parties. Under Muslim Law, wife is considered as a property which is subject to ‘Dower’.
Dower also known as ‘Mehr’ means “money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. ”16 Further, Marriage encompasses certain rights and duties of both husband and wife, like Entitlement of wife to receive dower, Maintenance to be provided by the husband, Wife to observe fidelity etc. The other significant feature of Muslim law for marriage is valid age for marriage ie; after attaining puberty. As mentioned earlier in this paper, age of puberty differs according to different schools of thought. It depends upon several factors such as societal upbringing, genes, diet, region etc. A Minor is considered as 13 Prof. K. S. James, Prof. T. V. Sekhar , Dr. Dipti Govil, Dr. M. V. Vaithilingam, Ms.
Irin Anna Solomon, Polygyny in India: Levels and Differentials, International Institute for Population Sciences (IIPS), 1 (2022), https://www. iipsindia. ac. in/sites/default/files/Research_Brief_No21_Polygyny. pdf
14 Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Act of Parliament, 1937 (India)
15 Aligarh Muslim University, Concept of Marriage in Islam, Aligarh Muslim University 1, 69
https://old.amu.ac.in/emp/studym/99995934.pdf
16 Rakesh Kumar Singh, Law of dower (Mahr) in India, Taylor & Francis Online ( Nov.24, 2010)
https://www.tandfonline.com/doi/abs/10.1080/1528817X.2010.528594
incompetent to consent for marriage so, the guardians of minor can give their consent. The marriage through consent of the guardians is voidable at the option of minor ones he attains the age of puberty and before marriage is performed. The basic idea underlying the doctrine of option of puberty is to protect a minor from an unscrupulous or undesirable exercise of authority by his or her guardian for marriage. Polygamy is another aspect under Muslim personal laws as opposed to other personal laws, it is recognised as a religious practice hence, not prohibited under Muslim law. Polygamy is the practice of having more than one spouse. The Practice of Polygamy has led to misuse of certain provisions related to it. People from other religious community convert themselves to Islam in order to have more than one spouse.
A Supreme court judgment in February 2015 stated that "Polygamy was neither an integral nor the fundamental part of the Muslim religion, and monogamy is a reform within the power of the State under Article 25 of the Indian Constitution. Marriage between first cousins or blood relations is also permitted under Muslim Law whereas Marriage among first cousins is prohibited under Hindu Marriage Act. Section 5 of Hindu Marriage Act prohibits marriage between siblings. Special Marriage Act also provides for “degree of prohibited relationship” under section 2(b)17. All marriages involving first cousins including maternal and paternal are prohibited under Special Marriage Act. Thus, provision of Special Marriage Act is in accordance with Hindu Marriage Act. Here, arises a conflict of laws between the Muslim and Hindu law.
Suggestive measure for state to “Balance the conundrum” Uniform Civil Code is an issue that has been debated and talked about since the time of independence. Implementation of UCC in India is a complex and sensitive issue that involves harmonizing personal laws related to certain matters like marriage, adoption etc. There have been several occasions where the judiciary and other stakeholders have identified and recognised the need for a ‘Uniform Civil Code’. But the issue that is ignored is despite all the talk around UCC we don’t know in what form or structure UCC will be implemented. The purpose of highlighting certain discrepancies and ambiguities under personal or family laws has been to identify the concerning issue i. e. ; how will the state implement UCC while taking into consideration these discrepancies.
Taking specific issues like the inconsistencies in marriages under sapinda relationship, if the state introduces a uniform code such discrepancies
17 Special Marriage Act, 1954, S.2, No.43, Act of Parliament,1954 (India)
would have to addressed while take into consideration the minority view and the aim while addressing such issues would be National integration. The above texts provide credible evidences of prevalence of consanguineous marriages in India, while the Hindu laws provide provisions prohibiting such practice on the other hand the Muslim law allows such marriages to some extent. The state could balance such a conundrum by taking into account of how the Habsburg Dynasty declined, the bloodline of the Habsburgs, a German-Austrian ruling family whose territory stretched from Portugal to Transylvania, is involved, the Habsburgs engaged in strategic marriages to secure power, marriages similar in nature to the eventual fall of the empire.
The researchers, led by geneticist Román Vilas from the University of Santiago de Compostela in Spain, found that, on average, about 9% of Habsburg genes they studied were identical due to coming from the same ancestor, as indicated by an inbreeding coefficient of
0.093. Several reports on marriages with cousins shows that such marriages lead to high infant
mortality rate and physical deformities. So here to balance the inconsistencies in issue of sapinda relationship the state shall have a provision in the UCC which prohibits the practice of individuals marrying their cousins as such practice would negatively affect the people in a long run. (further research) Polygamy is another such issue which needs reconciliation, as previously stated, Muslim law permits polygyny, and to some extent, Hindus have followed suit, despite marriage laws prohibiting such relationships. Major aim of the UCC is to curb the regressive practices of personal laws and this view is also substantiated by various judgements by the apex court pertaining to regressive practices in personal laws. Polygamy is indeed a regressive practice and for the benefit of all individuals UCC should have a provision prohibiting such practice.
Conclusion Despite several debates and discussions, the vision of UCC has been recognised by the constituent assembly members, members of the judiciary and other luminaries from the legal field. The intention behind incorporating UCC into ‘Directive Principles of State Policy’ under Part IV of constitution was ensuring that governments in the future consider implementing and enforcing it. The choice of bringing the idea of UCC in action was left to governments in order to ensure uniform civil law’s orderly development. The importance of having a common civil code has been reiterated by several judicial pronouncements. In Sarla Mudgal & others v.
Union of India18, court emphasised on the need of enforcing Article 44 in light of discrepancies under personal laws. The aim of implementing Uniform Civil Code is to avoid subversion of minority practices and unite every individual and community under a single umbrella to prevent discrimination and promote national integration. The idea of a Uniform Civil code is not to diminish the values of secularism that India espouses but to uphold the secular character and ensure India can become secular in real sense. The paper overall highlights the significance of Uniform Civil Code with respect to the inconsistencies prevalent in personal or family laws of the country. The implementation of a Uniform Civil Code requires a careful consideration, involving comprehensive public discourse, political consensus etc. that is subject to Indian constitution.
The task of implementing UCC may be complex and daunting but in a longer run, it has the potential of transcending beyond religious lines and ensure an egalitarian society.
18 Smt. Sarla Mudgal, President, Kalyani & Ors vs Union of India & Ors, AIR 1995 SCC (3) 635