UNIFORM CIVIL CODE

SEMINAR COURSE REPORT ON “INDIA NEEDS UNIFORM CIVIL CODE”
SEMINAR COURSE REPORT
ON
“AN ANALYSIS OF INDIA NEEDS UNIFORM CIVIL CODE”
SUBMITTED TO
SCHOOL OF LAW
SCHOLAR: SUPERVISOR:
Name: ANAND PRATAP SINGH NAME: Mrs Shalu Sinha
Class: BBA LLB Designation: Assistant Professor
Batch: (2013-2018) School of Law, Sharda University
REPORT BY: ANAND PRATAP SINGH, BBA LLB 3rd
year, Batch (2013-2018)

ACKNOWLELDGEMENT
With profound sentiments of gratitude, I acknowledge the
guidance, suggestion and encouragement given by my
guide Mrs Shalu Sinha because of whom I was able to
complete the task of writing this Seminar course report
work successfully.
I am also grateful to other faculty members for their timely
guidance and relevant knowledge regarding various
aspects relating to this topic. Also, I will fail in my duty if
I don’t thanks the Library staff of Sharda University, who
have warmly facilitated the task by providing various
books & journals, leading to successful completion of the
task.
Regards
Scholar’s Name:Anand Pratap Singh
Class:BBA LLB
Batch:2013-2018
SOL, Sharda University.
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CERTIFICATE
This is to certify that this work incorporated in this
SEMINAR COURSE REPORT on the topic “An
UNIFORM CIVIL CODE” submitted by Mr/Name
ANAND PRATAP SINGH of class BBA LLB,Batch
2013-2018 is a bonafide work of him& was carried
out sincerely & honestly under my guidance &
supervision.
Name-Shalu Sinha
Supervisor
Assistant Professor
Sharda University
Greater Noida
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OBJECTIVE OF THE TOPIC
The proponents of a uniform civil code have been campaigning for it even before the
independence of India. India has always been a place of many colors and spices and before
independence in 1947 it would have been hard to point out what constituted India.
It was known even at that time that to further unite India and make it a truly secular nation we
would need a uniform civil code. But even after 69 years of independence we haven’t been able
to do this.
The reasons for why this has not been done are complex and a different topic on its own but it all
boils down to political will. Politicians have always found it beneficial to play vote bank politics
and try to appease different castes and groups instead of attempting to integrate our nation.
Instead of focusing on the negative let’s focus on the positive and talk about the reasons why we
do need a uniform civil code.In article 44, our constitution clearly specifies this: "The State shall
endeavor to secure the citizen a uniform civil code throughout the territory of India".
The main objective of this report is to bring harmony in India by bringing all different religion
under the uniform civil code which is at present governed by the personal law.
Different law for different community in one country is not good for the development and for the
unity of any country.
Now time has arrived to think and to take action against old inconsistent personal law of
different religion and to think beyond politics.
India is a secular country but the question is how a country can become a secular country when
they have different personnel law for different community.A uniform civil code means that all
citizens of India have to follow the same laws whether they are Hindus or Muslims or Christians
or Sikhs.
This sounds fair and secular to me. A uniform civil code doesn’t mean it will limit the freedom
of people to follow their religion, it just means that every person will be treated the same. That’s
real secularism.
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INTRODUCTION
Uniform civil code is the proposal to replace the personal laws based on the scriptures and
customs of each major religious community in the country with a common set governing every
citizen.
These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption
and maintenance. Article 44 of the Directive Principles in India sets its implementation as duty
of the State.
Apart from being an important issue regarding secularism in India, it became one of the most
controversial topics in contemporary politics during the Shah Bano case in 1985.
The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law
and remains unreformed since 1937, permitting unilateral divorce and polygamy in the country.
The Bano case made it a politicised public issue focused on identity politics—by means of
attacking specific religious minorities versus protecting its cultural identity.
In contemporary politics, the Hindu right-wing Bharatiya Janta Party and the Left support it
while the Congress Party and All India Muslim Personal Law Board oppose it.
Goa has a common family law, thus being the only Indian state to have a uniform civil code. The
Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any
specific religious personal law.
Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
The British feared opposition from community leaders and refrained from further interfering
within this domestic sphere.
The demand for a uniform civil code was first put forward by women activists in the beginning
of the twentieth century, with the objective of women's rights, equality and secularism.
Till Independence in 1947, a few law reforms were passed to improve the condition of women,
especially Hindu widows.
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In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a
demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters
and women activists, they had to finally accept the compromise of it being added to the Directive
Principles because of heavy opposition.
Uniform Civil Code – a common code which is applicable to all the communities irrespective of
their religion, race, caste, creed etc. is now-a-days posing one of the biggest challenges for a
country like India.
If implemented in its letter and spirit, then these three words are sufficient enough to divide India
politically, religiously and socially. It might be the reason due to which the framers of our
constitution decided to include uniform civil code in the directive principles of state policy and
not in fundamental rights.
Now under the Constitution Article 44 provides that State shall endeavour to secure for its
citizens a uniform civil code throughout the territory of India. Regarding the implementation of
uniform civil code, India re-learnt an ancient lesson about demanding the impossible, culturally
envisaged as asking for the moon.
In the ancient story, the child God Krishna asks his mother Yashoda to give him the moon as a
toy and the clever mother hands him a mirror with a reflection of moon. Similarly though now,
uniform civil code is not included in Fundamental Rights Chapters, but in post modern India,
quick footed thinking of this kind has now resulted in well considered production of a mirror
image of the desired object of the uniform civil code in the form of harmonised personal law
system.1
A motherly central state along with arts core institutions, an activist and powerful Supreme Court
have taken well- choreographed steps to achieve this particular outcome.
The term civil code is used to cover the entire body of laws governing rights relating to property
and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
1
Werner Menski, 'The Uniform Civil Code Debate in Indian Law: New Development And Changing Agenda' (2008) 9
(4) German Law Journal at 212-213
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The demand for a uniform civil code essentially means unifying all these personal laws to have
one set of secular laws dealing with these aspects that will apply to all citizens of India
irrespective of the community they belong to.
Though the exact contours of such a uniform code have not been spelt out, it should presumably
incorporate the most modern and progressive aspects of all existing personal laws while
discarding those which are retrograde.2
The spine of controversy revolving around Uniform Civil Code 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 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.
Rebecca J. Cook rightly points out that although the Indian Constitution contains articles
mandating equality and non discrimination on the grounds of sex, strangely however, several
laws exist that apparently violate these principles and continue to be there especially in personal
laws of certain communities with provisions that are highly discriminatory against women.
The situation is further criticized when it pointed out that, “The Indian State has, however, made
no effort to change these laws or introduce new legislation in conformity with Constitutional
principles.
In fact Indian Government seems to have chosen to ignore these principles completely and acts
as if they did not exist.
The Indian Constitution expressly stands for gender equality. For example, Article 44 of the
Constitution envisages a Uniform Civil Code for all citizens and lays down that, “The State shall
endeavor to secure for the citizen a Uniform Civil Code through out the territory of India.
2
http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, visited on 5-11-2013.
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However, even after half a century from the framing of the Constitution, the ideal of Uniform
Civil Code is yet to be achieved.
Women, who make up nearly a half of India, continue to clamour for a gender just code to enjoy
equality and justice irrespective of the community to which they belong.
The Uniform Civil Code is required not only to ensure (a) uniformity of laws between
communities, but also (b) uniformity of laws within communities ensuring equalities between the
rights of men and women3
One of the major problems that has provoked exciting polemics and aggravated majority
pressures is the enactment of a uniform civil code for the citizens throughout the territory of
India, as desiderated in Article 44.
The provision is cautiously worded and calls upon the State to `endeavour' to secure such a code.
It is neither time-bound nor carries a compulsive urgency. But the Hindu fundamentalists make it
a militant demand as if Hindu law should be made the national family law.
There is apprehensi
on in the mind of the Muslim minority that the Quran is in danger, that its sacred family law will
be jettisoned. In the Shah Bano case in 1986, the Supreme Court expressed displeasure at the
delay in framing a uniform civil code, which was regarded as a secular imperative. Raging
controversy demanding the uniform code followed and was resisted in full fury by the Muslim
minority, with distinguished exceptions.
Attempts have been made from time to time for enacting a Uniform Civil Code after
independence and the Supreme Court in various cases has been giving directions to the
government for implementing Article 44 of the Constitution and to reform the personal laws
specially those relating to the minorities and to remove gender bias therein.
While a uniform civil code is not particularly high on the national agenda, value-based
progressive changes, preserving the separate identity of each religious group, is a feasible project
avoiding insult and injury to any minority.
3
F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” XXX (50) Economic and Political Weekly 32 (1995); B.
Karat, “Uniformity v. Equality” Frontline 17 Nov, 1995
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This may be a preliminary step to pave the way for a common code. Mobilization of Muslim,
Christian and Parsi opinion in this direction is sure to yield salutary results and reduce
fundamentalist resistance.
Maybe, to facilitate a national debate, a facultative common code may be drawn up at a non-
governmental level. It will be purely optional for minorities to accept or reject those provisions.
Our founding fathers have been cautious in their phraseology while drafting Article 44 and
therefore in a situation where the nation is in the grip of communal tension hurry must make way
to moderation.
Initially the idea of Uniform Civil Code was raised in the Constituent Assembly in 1947 and it
was incorporated as one of the directive principles of the State policy by the sub-committee on
Fundamental Rights and clause 39 of the draft directive principles of the state policy provided
that the State shall endeavor to secure for the citizen a Uniform Civil Code.
The arguments put forward was that different personal laws of communities based on religion,
“kept India back from advancing to nationhood” and it was suggested that a Uniform Civil Code
“should be guaranteed to Indian people within a period of five to ten years”4
The Chairman of
the drafting committee of the Constitution, Dr. B.R. Ambedkar, said that, “We have in this
country uniform code of laws covering almost every aspect of human relationship. We have a
uniform and complete criminal code operating throughout the country which is contained in the
Indian Penal Code and the Criminal Procedure Code.
The only province the civil law has not been able to invade so far as the marriage and succession
……. and it is the intention of those who desire to have Article 35 as a part of Constitution so as
to bring about the change.” Though Ambedkar was supported by Gopalaswamy Ayyangar and
others but Jawarharlal Nehru intervened in the debate.
Nehru said in 1954 in the Parliament, “I do not think at the present time the time is ripe for me to
try to push it (Uniform Civil Code) through.” Since the Uniform Civil Code was a politically
sensitive issue, the founding fathers of the Constitution arrived at an honorable compromise by
placing it under Article 44 as a directive principle of state policy.
4
B. Shiv Rao (ed.), The Framing of India’s Constitution: Select Documents Vol. II, The Indian Institute of Public
Administration (IIPA), New Delhi, 1968. Debates of 14, 17-20 April 1947
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HISTORY
When the Indian government ratified CEDAW (Convention of the Elimination of all forms of
Discrimination Against Women) in 1993, it inserted a reservation regarding the minimum
marriage ages and compulsory registration of marriage stating that “it is not practical in a vast
country like India with its variety of customs, religions and level of literacy.”
This frank comment explains the root problem of India, namely its plethora of customs, diversity
of faiths, and large numbers of people. The largest democracy in the world, India at the same time
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encompasses an almost incomprehensibly complicated history, one that to this day has made it
impossible to reconcile certain problems in its secular legal system.
The modern state of India and its cumbersome legal system is rooted in its past history of a largely
Hindu populace living under Muslim and British rule.
The Indian constitution cannot escape this, and its framers did not intend that it would. Enshrined
in its basic laws are references to “the wearing and carrying of Kirpans shall be deemed to be
included in the profession of the Sikh religion” and others mentioned specific to the nature of
India. These group-specific reservations are a result of the fear that the exclusion of any one
group’s mention might mean the fragmentation of the subcontinent.
Nowhere is this more clear than in the struggle secular India has had to reconcile with its large and
assertive Muslim community. The Congress party, which dominated Indian politics from
independence through the 1990s, saw fit to placate Muslim voters through non-interference with
Islamic Personal Law as it stood in India.
This policy, which was in direct opposition to the Constitution's call for a “uniform civil code
throughout the territory of India”, has led to much debate and some monumental court cases and
legislation in the last 50 years of Indian history.
With the passage of time, the Muslim Personal Law has been under assault from many directions,
and it is important to examine how this legal principle of a separate religious law has survived in a
country whose constitution is modeled after the secular liberal states of the west
Muslim Personal Law 1100-1950
The Islamic Personal Law system of India has its roots in the past, primarily in British rule. Islam
arrived in India in the 11th century and grew steadily until under the Mughals it encompassed
most of the subcontinent.
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This was the situation the British found, and it was in this light that the English structured their
Anglo-Muhammadan legal system, one intended not to offend or cause rebellion among the newly
acquired Islamic subjects.
The downside of this was that “In their search for effective and inexpensive modalities of rule, the
British came to rely upon the devices of translation, textbook, and codification, to adapt
indigenous arrangements to the dictates of colonial control.” This had the result of codifying a law
that hitherto in India had not been codified, and the result was a homogenization of the law not
only along western lines but also among Muslims themselves.
In the 19th century, there were a plethora of different Muslim groups within India, many with their
own customs. The Anglo-Muhammadan laws extended Hanafi Sunni law to much of the
subcontinent, with exceptions made only for those areas where Shia law differed substantially
from Sunni practice.
Indian Muslim communities that relied heavily on costumes that were non-Islamic in origin were
forcibly brought into the fold. This was the cause of the Mapilla Succession Act (1918) and the
Cutchi Memons Act (1920). By law, the British authorities decided that “In order to bring about
uniformity it is highly desirable that the entire Cutchi Memon Community be governed by
Muhammadan law.”
The Muslim community was also consulted and in many cases agreed wholeheartedly with
extending Islamic law to these Muslim communities who were engaging in un-Islamic activities.
The Jumiat al-Ulama explained in 1925 that it “regards as an insult to the Shari’a the adherence by
certain Muslims to non-Islamic laws based on customs.” Other Muslim minority communities
including the Shias—who in India included both Ismaili and Ithna Ashari legal practices—retained
some of their specific practices such as the Muta(temporary) marriage.
Prior to 1900, the British contended themselves with finding an accommodation with the Islamic
community, based on the principles of the Warren Hastings judicial plan of 1772 whereby “In
suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of
the Koran with respect to Mohammedans…will be adhered to.”
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However, the 19th century brought about the abolition of slavery (1843), and the British replaced
Islamic criminal codes and brought the use of evidence in courts into line with British practice by
the 1870s. In general, these reforms can be understood if one accepts that the British understood
that large portions of the law Muslims had been using were not based in Quran or Hadith but
rather based on the judgments handed down from civil Mughal courts.
Ziauddin Barani accepted this fact in the 14th century when he conceded that “the king should
have the power of making state laws(zawabit)”.Thus, by the late 1800s we see the beginnings of
the creation of the Muslim Personal Law system that remains alive in India today.
Most of these areas reserved to Muslims after the reforms of the 19th century have not been
significantly changed. These areas include marriage, Mahr (Dower), Divorce, Maintenance, Gifts,
Wakf, Wills, and Inheritance.
The lack of change during British rule can be principally tied to the growing independence
movement and the fact that for Muslims the agitation towards freedom from British rule resulted
from any attempts to disturb their Personal Law. We can see evidence for this in the acts passed by
the British in the first half of the 20th century.
The Shari’at act (1937) was the first compiling of the various areas of Anglo-Muhammadan law
into a single act, recognizing the importance of Islamic law to the Muslim community. For this
reason, the act was also known as the Muslim Personal Law act and it included those areas
mentioned in the previous paragraph.
The Shariat act did not mention the various Sunni schools or question who would be regarded as a
Muslim under the law. At the same time that the Shari’at act codified the body of laws regarding
Muslims, other acts were passed directly challenging the Muslim community.
The first of these is the Child Marriage Restraint Act (1929 amended 1938). This act restrained the
marriagible age of girls to 15 years and of boys to 18 years. Under Islamic law the age of marriage
is puberty and under al-Hidaya, the Sunni text in use by the British, the age of puberty is 12 for
boys and 9 for girls.
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Having dealt with the problem of Child Marriage, the British then realized that the question of
divorce needed to be reformed. The problem in question was how a women could obtain a divorce.
Since the Hanafi school adopted under the Muhammadan laws made it very hard for a woman to
obtain a divorce, the British first debated whether it might not be more proper to encourage the
Muslim community to adopt Maliki law on this subject.
Instead, the Dissolution of Muslim Marriages Act was adopted in 1939. Several items in the law
allowed a woman to obtain a divorce for reasons not existing in Hanafi law. For instance, the law
made grounds for divorce the non-maintenance of a wife, lack of cohabitation, cruelty,
disappearance or imprisonment of the husband for a time, and other reasons.
Within the law, despite its stated aim of giving Muslim women a secular way out of their
marriages, a series of provisions are aimed directly at Muslims. For instance, Article 2, clause f,
states that a ground for divorce is “if he (the husband) has more wives than one, does not treat her
equitably in accordance with the injunctions of the Quran.”
It is here we see a case where if this clause is challenged in a secular court the judges, trained in
secular law, it would be forced to interpret the Quran as to the meaning of the injunction of equal
treatment. The British use of injecting clauses such as this would later serve as a strange bases for
a country professing itself to be secular but then being forced to tinker with the religion of its
citizens.
The British tampering with Muslim Law, after having passed the Shariat Act, was protested by the
Muslim community as if it were a conspiracy to destroy Muslim ‘culture’. Thus, we can see from
the late British colonial administration the seeds of what would later become themes of the
secular-Muslim divide after independence.
These themes have remained basically the same to this day. On the one hand, one has a basic
contradiction in ‘secular’ laws that include religious provisions. On the other hand there exists a
Muslim community resistant to change and its claims that any change to its coveted personal law
will result in the destruction of Muslim ‘culture’ in India. On this topic, Mushirul Hasan writes
“The demand for reforms is interpreted as an attempt to destroy ‘Muslim identity’.”
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The last piece of this puzzle is the issue of the women’s movement in India. Since the British, as
noted, were not interested in a direct confrontation with the Muslim community in regards to
Personal Law, and since the Personal Laws left to Muslims under the Shariat Act were mostly in
regards to women’s issues, such as marriage, divorce, and maintenance, it was logical that a
women’s movement would challenge these issues.
The modern interpretation of the British rule is that it actually resulted in an ‘erosion’ of women’s
rights. When the British had arrived in India, it has been shown that Muslim women actually
possessed more rights than their Hindu counterparts.
This is due in part to the regulations in the Quran regarding Mahr, divorce, and maintenance. The
Hindu women, likewise, faced many of the inequalities of Muslim women and in some cases more
like the practice of Sati—widow sacrifice on husband’s funeral fire. The Hindu community
likewise practiced Polygamy.
Thus, Shahida Lateef writes “Muslim women’s rights to divorce, inheritance, repudiation of
marriage and dower had been eroded over time and their restitution was urged by all leaders of the
women’s movement.” Likewise, the passing of the Shariat act is seen as a way to “enable Muslim
women to regain their rights of inheritance, dower, and divorce under Muslim Personal Law.”
The idea here is that by dismantling Muslim legal courts and restricting the power of Qadis, the
British had actually caused Muslim Laws to degrade themselves upon individual communities
where backwards customs quickly dispatched with women’s rights. In 1901, the census of India
had claimed “the feeling among Muslim communities was, therefore, that due to the accretion of
customary laws the rights of Muslim women had been eroded.” If one accepts this on its face, then
it is reasonable to conclude that the Muslim women’s movement in the early part of the 20th
century was very much in favor of the Shariat Act(1937), the Child Marriage restraint act(1938),
and the Dissolution of Muslim Marriages Act(1939).
Two issues that grew up during the colonial period must be addressed in order to understand some
of the problems resulting during independence. The first issue is the positions taken by the Jamiat
al-Ulama.
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We have seen how the Ulama encouraged the British to extend a uniform law throughout India
beginning with Hastings in 1772 and ending with the enactment of the Shariat act. However, this
symbiotic relationship began to crumble with the enactment of the ‘secular’ laws on Muslim
divorce and child marriage.
In 1929, the Jumiat al-Ulama called for Muslims to participate in civil disobedience against the
Child Marriage Restraint Act. The largest protest, however, was over the fact that under the
Dissolution of Muslim Marriages Act, non-Muslim judges would be allowed to dissolve Muslim
marriages.
The Jumiyat al-Ulama declared that it “would like to make it clear that a marriage dissolved by a
non-Muslim judge is not a void marriage in the eyes of the shariah.” One Muslim leader
exclaimed “I hold it is the business off the Mussalmans themselves to make any changes in their
religion they like.” The fears among the Muslim community reached fever pitch with claims that
divorce was becoming a ‘craze’ in some communities, most likely the most educated Muslims of
the cities.
The second issue that we have evidence of from the colonial period is the acts that specifically
exempted Muslims in order to not inflame passions in that community. The Indian Succession Act
of 1925, which dealt with inheritance and succession, specifically exempted Muslims.
Originally, the law had been enacted in 1865 and had exempted Hindus as well, but the concept
seems to have been that Hindus could accept ‘modernization’ and that, since Muslims had a very
complicated inheritance system based in the Quran, therefore the law would be applied to Hindus.
The Special Marriage Act of 1872, which was essentially a secular civil marriage law, also
exempted Muslims from its purview and in fact a Muslim could not marry under the law without
renouncing his faith, so strong had the Ulama’s opposition been.
However, not all calls to exempt Muslims were accepted. The Evidence Act of 1872 included a
section 112 that related to the legitimacy of children and was later found to apply to Muslims,
regardless of the fact that it was not in line with Muslim law. This dual legal system whereby
some laws applied to Muslims but others specifically did not served as a basis for later laws
passed under the Indian government that would exempt Muslim Personal Law from their scope.
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When issues of law affecting the Muslim Personal Law were later challenged under the Indian
constitution, the question was frequently raised whether the government of India had the right to
dismantle the Personal Law. Courts looked to the previous legislation in the colonial period to
discern whether previous acts had allowed tampering with a system that had originally been
envisioned by Hastings to protect Muslim Laws.
The Shariat Act of 1937 had not made any reference to the government’s power to interfere with
it, although one might assume that since the government passed it, the government could therefore
amend it. However, the Government of India Act 1935 had “already empowered the legislatures to
make laws on subjects regulated by personal laws.”
The Constitution Personal Law triumphant 1950-1985
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The Constitution of India, passed on 26 January, 1950, contained in it a series of contradictions
that have made it difficult for the government of India to reform or dismantle Islamic personal
law. The framers of the Indian constitution, including men such as Nehru, were convinced of the
need to protect Muslim Personal Law at the present out of a fear that any assault upon it would
lead to civil war, wide-scale rioting, or perhaps the disintegration of India.
This was a rational concern coming on the backs of the events of 1948 whereby Gandhi had been
assassinated over the very issue of his work to prevent the Muslims from fleeing India to Pakistan.
Syed Abdul Latif had envisioned this problem when he wrote in 1939 a model constitution for
India that included a section “whereby the interests of Muslims, as well as other minorities, may
adequately be safeguarded.”
Under his article on the Judiciary, the lone comment was “the personal law of the Muslims should
be administered by Muslim judges.” The feeling that India might disintegrate if not given a benign
constitution was further accelerated by the dissolution of the princely states, some of which such
as Kashmir, and Hyderbad had to be taken by force. It is only in this atmosphere that one can
judge the Indian constitution and its views on minority rights.
India’s leaders at the time wanted a secular constitution on the model of a western democracy.
However, what resulted was not secularism in the western sense of the word, but rather a ‘secular’
state with religious laws for its religious groups.
Mushir ul-Haq points out that in India ‘secular’ means “non-intervening in the matter of religion.”
The religious groups in India are many, mainly consisting of a Hindu majority, a significant
Muslim minority, and smaller amounts of Buddhists, Sikhs, Jains, Christians, Jews, and tribal
peoples. On the side of creating a purely secular state, there is Article 44 which states
“The State shall endeavor to secure for citizens a uniform civil code throughout the territory of
India.” However, in response to this, there exists article 13 which guarantees the “Fundamental
Rights…(a) equality before law…prohibition of discrimination against any citizen on grounds
only of religion, race, caste, sex or place of birth…(b) religious and cultural freedom…All laws in
force in India at the time of the commencement of the constitution, if repugnant to these primary
fundamental rights, have to cease to apply in any manner whatsoever.” Article 25 reiterates this
protection in provisioning that “all persons are equally entitled to freedom of conscience and the
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right freely to profess, practice and propagate religion.” Article 372 at the same time requires that
“all the laws in force in the territory of India immediately before the commencement of this
constitution shall continue in force therein until altered or repealed or amended by a competent
legislature or other competent authority.”
There is a basic contradiction here. On the one hand, the constitution recognizes the continued
existence of Personal Law, which is why article 44 expects that India at some later date will have a
uniform civil code.
On the other hand, there exist several articles, such as 13, which guarantee equal rights. Since
personal laws for various groups are inherently unequal, since a divorcee in Muslim law is entitled
to different things than in Hindu law, therefore article 13 would seem to make personal law
unconstitutional. Furthermore, article 13 also requires non-discrimination based on “sex”, whereas
Muslim Personal Law favors the man in many cases, especially in the issue of divorce and in the
issue of polygamy. Equality before the law would essentially mean that Muslim women could take
up to four husbands. These issues remained unresolved in the constitution.
The High Courts of Bombay, Madras and Punjab all took a stab at understanding this
contradiction during early rulings in 1952 and 1968.
The conclusion in these cases, one of which involved Polygamy, was quite convoluted. On the one
hand the courts found that Muslim Personal Law was not included under article 372 as a ‘law in
force today’ since Muslim Personal Law had its roots in the Quran and therefore ‘could not be said
to been passed or made by a legislature’.
This of course ignores that fact that Anglo-Mohammedan law, the great body of which remained
in force after 1950, was not merely based on the Quran but rather the Shariat Act. Secondly, the
justices found that article 13 and its requirement of equality did not abolish personal laws, since if
it had, then personal laws would not have been mentioned elsewhere.
The conclusion was that the constitution recognized personal laws in article 44, did not void them
in article 13, and that article 372 did not apply to personal laws since they were inspired by
religious texts, not created by legislation. Thus, personal laws remained outside the scope of any
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ruling on equality. This train of judicial thought would remain in force until the 1980s and the
advent of the Shah Bano case.
Two further points must be made regarding the constitution and its importance for Muslim
Personal Law. The first is article 25 which states “nothing in this article shall affect the operation
of any existing law”. Like article 372, this was trying to get at the laws that had been passed under
British rule, many of which would remain in force after the constitution was passed. Furthermore,
article 44 expressly mandates the government to introduce a uniform civil code, which would
include such items as marriage, inheritance and divorce, which were the main protections granted
to Muslims in their personal law.
Tahir Mahmood in his excellent study, Muslim Personal Law, concludes that “article 44 does not
require the state to enforce a uniform civil code abruptly; it rather gives a latitude for the
introduction of such a code in stages…since the Muslims and other minorities were not ‘prepared
to accept and work social reform,’ enactment of an all embracing civil code could be lawfully
deferred.”
The passage of the Hindu Code Bills in the 1950s marked a turning point in the history of the
Muslim Personal Law. Until this time, Muslim Personal Law had existed side by side with similar
religious laws for Hindus and other religious groups.
The Hindu Code Bills were a series of legislations aimed at thoroughly secularizing the Hindu
community and bringing its laws up to modern times, which in essence meant the abolishment of
Hindu law and the enactment of laws based on western lines enshrining equality of men and
women and other progressive ideas.
The Hindu Marriage Act of 1955 extended to the whole of India except the state of Jammu and
Kashmir. The affect of the Hindu Marriage Act was to prohibit polygamy amongst Hindus and to
increase the right of the divorced wife to maintenance or alimony.
The act applied to everyone in India except Muslims, Christians, Parsees, and Jews. Since Jews
are a negligible minority and Parsees are as well, and since Christians were governed under an
already modern or progressive law, Muslims remained the only community with a distinct
religious law that had not been reformed to reflect modern concepts.
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The legal practice of excluding Muslims continued with the passage of the Dowry of 1961 which
specifically excluded “dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.” In 1973, on a debate over the revision of the Criminal Procedure Code, it was
pointed out in regard to Maintenance of divorced wives that in cases involving Muslims, the court
should take note as to whether the woman had received maintenance under the Personal Law.
For Muslims, this meant the period of idda or three months after the divorce. In essence, the
parliament once again set aside Muslims, while the law would apply to other divorced women,
giving them maintenance far in excess of three months. Shahida Lateed’s comments on this period
include the observation “After the passage of the Hindu Code Bill the legal inequality between the
rights of Hindu men and women was eliminated, while the marginal inequality between the rights
of Muslim women and men remained.”
While the period 1950-1985 can be summed up as one where Muslim Personal Laws were
exempted from legislation and they remained un-reformed, it can also be seen as a period where
there were secular avenues opened to Muslims, the biggest of which was the passage of the
Special Marriage Act, 1954.
The idea behind this act was to give everyone in India the ability to marry outside the personal
law, in what we would call a civil marriage.
As usual the law applied to all of India, except Jammu and Kashmir. In many respects, the act was
almost identical to the Hindu Marriage Act of 1955, which gives some idea as to how secularized
the law regarding Hindus had become.
The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections,
generally beneficial to Muslim women, that could not be found in the personal law. Under the act
polygamy was illegal, and inheritance and succession would be governed by the Indian Succession
Act, rather than the respective Muslim Personal Law.
Divorce also would be governed by the secular law, and maintenance of a divorced wife would be
along the lines set down in the civil law.
The Muslim leadership opposed this bill vehemently and the Jamiat al-Ulama claimed that “if a
Muslim marries under the act of 1954, he commits a ‘sin’ and his marriage is unlawful in the eyes
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of Islam.” By 1972, the community had gained enough political clout to cause a secular Adoption
of Children Bill to be shelved permanently.
For the Muslims, the period was one in which, although the religious leadership was not wholly
satisfied with all the governments’ legislation, it did succeed in stoning reforms.
The British colonial government, fearing antagonism, thought it fit to not interfere in the
‘religious’ matters of the ‘natives’ and thus customary personal law remained untouched.
They did, however, bring about certain enactments in the name of ‘reform’ to bring an end to
certain reprehensible practices like sati. Successive Indian governments have tended to follow the
footsteps of colonial rulers so that in the present day, India has a complex system of personal laws
governing inter-personal relationships despite a Constitutional directive to the Legislature to enact
a uniform civil code applicable to all religious groups which should govern all family relationships
such as marriage and divorce, maintenance, custody of children, guardianship of children,
inheritance and succession, adoption and the like.
This Constitutional directive has not been acted upon in more than six decades since independence
due to lack of political arising from the fear of offending electoral vote bank groups and backlash
from religious communities. The prevalence of personal laws in the country has had far-reaching
ramifications in terms of its implications on the human rights discourse.
I.Personal laws and status of women
The most significant manner in which personal laws in civil matters affect the rights
discourse is by delineating rights for women belonging to their respective religious
communities.
The ‘family’ remains one of the most contested sites of women’s rights. One of biggest
criticism working against personal laws is that these antiquated provisions are
discriminatory towards women and seek to undermine their position within the private
domain. Personal religious laws need to be tested for their conformity with principles of
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egalitarianism that are the touchstones of our Constitution as well as international
declarations/agreements to which India is a party.
There are five broad sets of family laws in India based on the religions professed by its different
communities. Hindu law governs all Hindus, as also Buddhists, Jains and Sikhs. Muslim law
applies to Muslims, Christian law governs Christians, Parsee law applies to the Parsees. Jews have
their own personal law.
Many provisions of the various Indian personal laws are notorious for being discriminatory
towards women. A brief description of how women’s rights are undermined under various
personal laws follows:
Marriage: The right of all men and women of certain to marry through free consent and
with complete freedom in the choice of a spouse is recognized internationally. However, Indian
personal laws are found wanting in this aspect.
Muslim law, for instance, appears to recognize the right of a guardian to contract his minor ward
into marriage. There is a remedy in the form of ‘option of puberty’ (right to repudiate marriage on
attaining puberty) but it is restricted for as far as women are concerned.
Under Hindu law (Hindu Marriage Act, 1955) too, it is not the mere absence of consent but the
obtaining of consent by fraud or force or vitiation of consent by proved unsoundness of mind that
renders the marriage void.
Fortunately, Special Marriage Act, 1954, possibly the most progressive piece of Indian legislation
enacted under family law, overcomes the bar or strict restrictions on inter-religious marriages
under personal law.
Polygamy is a contentious issue in today’s world where monogamy, fidelity and family welfare
are the norm.
This institution used to prevail in Hindu society previously but modern legislation (The Hindu
Marriage Act, 1956) prohibits bigamy (covering both polygamy and polyandry) the Penal Code
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makes it an offence. Muslim personal law, however, recognizes and permits the institution of
polygamy. Many scholars believe that under Indian circumstances, polygamy is largely an
anachronism from patriarchal times and that very few Indian Muslims practice it.
This view may be correct to some extent but ignores that such a practice that is the prerogative of
a select few creates fissures and religious tensions in society. There have been many instances in
the past of abuse of this practice as permitted under Islam.
Often, non-Muslims convert to Islam in order to marry more than once and while Courts examine
the intention behind such conversions to decide on the question of validity of second marriages,
such a phenomenon generates strife and also affects rights of the parties involved.
Divorce: Traditional Hindu law did not recognize the concept of divorce but modern law
provides for it under the Hindu Marriage Act, 1956, which largely provided for fault-grounds
which either spouse could avail in order to obtain a divorce.
The most remarkable, and most discriminatory, feature of Islamic law of divorce is the recognition
of the concept of unilateral divorce, wherein the husband can divorce his wife unilaterally, without
any cause, without assigning any reason, even in a jest or in a state of intoxication, and without
recourse to the court and even in the absence of the wife, by simply pronouncing the formula of
repudiation.
Muslim law also entitles the woman to ask for a divorce under certain restricted circumstances.
Modern law (The Dissolution of Muslim Marriages Act, 1939) allows a wife to obtain a divorce
through the intervention of a judge, before whom she must establish one of a limited number of
acceptable bases for divorce.
The fact that on a moral plane, divorce is reprehensible in Islam and has been denounced by
Prophet does not provide relief to women as unilateral divorce continues to be an accepted
practice in many countries including India.
Maintenance: Under Indian law, the right to maintenance is civil in nature but it is also
placed under the criminal code and can be pursued therein.
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Under Hindu law, a wife has a right to be maintained during her lifetime as per the provisions of
the Hindu Adoptions and Maintenance Act, 1956. In what can be called an attempt to reinforce the
conservative idea of a Hindu wife, an “unchaste” wife is not entitled to separate residence and
maintenance.
As far as Muslim law is concerned, many interpretations of the shari’a do not grant divorced
women a right to maintenance from their former husband’s beyond the three-month waiting period
following the divorce, called the iddat period.
In India, the Dissolution of Muslim Marriages Act, 1939 denies divorced Muslim women the right
to claim maintenance. In the famous Shah Bano judgment, the judiciary attempted to get rid of this
anomaly by explicitly bringing such Muslim women under the purview of the secular Code of
Criminal Procedure, 1973 (wherein a wife is entitled to claim maintenance against the husband on
the ground of the husband’s neglect or refusal to maintain her).
Inheritance: Under the Hindu law, the Mitakshara branch of law that primarily governs
succession amongst Hindus in the country denied to a Hindu daughter a right by birth in the joint
family estate and this flowed logically from the fact that her place in the paternal family was only
temporary as she was belonged to her husband’s family on marriage.
Modern day amendments to Hindu law of succession gave Hindu widows the right of succession
Act, 1956 excluded the daughter from coparcenary ownership of ancestral property.
In 2005 the Parliament, by an amendment, took a radical but much-awaited step towards ensuring
equality between Hindu men and women as far as succession is concerned, and conferred upon
daughters the status of coparceners in the family of their birth, thereby bringing an end to the
centuries-old rules of Hindu inheritance that have lost their relevance and justifications.
Though the full extent of implications of this amendment are yet to be observed, it is nonetheless a
commendable and desired step in the effort to check in-built biases against women in personal
laws of this country.
More importantly, this radical amendment was brought by the Parliament without facing any
resistance or impediment on the part of the Hindu community.
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Islamic law prescribes, in almost all instances, that a man’s share of the inheritance is double that
of a woman in the same degree of relationship to the deceased.
This aspect of Islamic rules is most vehemently criticized for its discrimination against women, as
it is a manifest sample of unequal treatment.
Guardianship and Adoption: A mother has been assigned a statutorily subservient
position in the matter of guardianship and custody of her children.
The father is designated the first natural and legal guardian of his minor; the mother is the natural
guardian only after the father. Under Muslim law, the father is the sole guardian of the person and
property of his minor child.
Adoption is a salient feature of Hinduism, more so because the concept is alien to Christian,
Muslim and Parsi law unless custom and usage among the above sects permit it.
The Hindu Adoptions and Maintenance Act, 1956 statutorily recognizes adoption and is applicable
to Hindus. The Act brought about significant changes to the law of adoption amongst Hindus and
has improved the position of women in this regard.
However, despite these changes, adoption is another area in family relations where a female
suffers discrimination based purely on her marital status. As with other aspects of Hindu personal
law, amendments have recently been proposed so as to give women the same rights as men to
guardianship and adoption of children irrespective of marital status.
UNIFORM CIVIL CODE AND JUDICIAL APPROACH
Part IV, of the Constitution of India contains eighteen Articles (including Articles added by
amendments) which are bracketed under the title "Directive Principles of State Policy" for the
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good governance of the coutnry. None of such directives has evoked so much reactions as the
constitutional requirement of a Uniform Civil Code for all citizens throughout the country. These
are active obligations of the state. The state shall secure a social order in which social economic
and political justice shall inform all the institutions of national life.
The Directive Principles of State Policy detailed in Articles 37 to 51 of the Constitution possesses
to characteristics. Firstly, they are not enforceable in any court and therefore if a directive is
infringed, no remedy is available to the aggrieved party by judicial proceedings. Secondly, they
are fundamental in the governance of the country and it shall be the duty of the state to apply these
principles in making laws.
In this chatper, an endeavour has been made to discuss the constitutional obligation of the state to
secure for citizens a Uniform Civil Code - throughout the territory of India and Judicial
craftmanship of the High Courts and Supreme Court.
The cases discussed in this chapter are those in which either the constitutionality of some
personal-law was challenged or the court, suo-moto, discussed the desirability of the enactment of
a Uniform Civil Court. Since the time of its incorporation in the Constitution this has been a
controversial topic and it continues to be so. Article 44, of the Indian Constitution runs as follows :
"The state shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of
India".
A. Narasuappa Mali case The first case was State of Bombay vs. Narasuappa
Mali'', where the legislative provisions modifying the old Hindu law were challenged on the
ground of being violative of Articles 14, 15 and 25 of the Constitution, the Bomaby High Court
held that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was intra vires to the
Constitution. The Act had imposed severe penalties on a Hindu for contracting a bigamous
marriage.
The validity of this Act was attacked on the ground that it violated the freedom of religion
guaranteed by Article 25 and permitted classification on religious grounds only, forbidden by
Articles 14 and 15. It was argued that "among the Hindus the institution of marriage is a sacrament
and that marriage is a part of Hindu religion which is regulated by what is laid down by Shastras.
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It was also argued that a Hindu marries not only for his association with his mate but in order to
perpetuate his family by the birth of sons. It is only when a son is born to a Hindu male that he
secures spiritual benefit by having a son when he is dead and to the spirits of his ancestors and that
there is no heavenly region for a sonless man.
The institution of polygamy was justified as a necessity of a Hindu obtaining a son for the sake of
religious efficacy. Because son has a unique position in Hindu society no other religious system
has given a such position to a son.
The above arguments were rejected by the court. Gajendra Gadkar J. was not prepared to concede
that legislative interference with the provisions as to marriage constituted an infringement of
Hindu religion or religious practice he was of the opinion that a sonless man can obtain a son not
only by a second marriage but by adoption. Chagla C.J., while upholding the validity of the
Bombay Act, cited three reasons, firstly, what the state protected was religious faith and belief, but
not all religious practices. Secondly, he claimed that polygamy was not integral part of Hindu
religion.
Finally, if the state of Bombay compels Hindus to became monogamist, and if it is a measure of
social reform then the state is empowered to legislate with regard to social reform under Article
25(2) (b), notwithstanding the fact that it may interfere with the right of a citizen freely to profess,
practice and propogate his relgion. Chief Justice Chagla relied heavily on Davis vs. Beason In this
case constitutionality of an Idhao statute of 1882, which out-lawed bigamy was challenged. It was
contended that the impugned Act infrigned Church and violated the First Amendment of the U.S.
Constitution. In those days the members of that Church used to practice polygamy as a part of
their religion.
The Supreme Court rejected the contention and observed: "However free the exercise of religion
may be it may be subordinate to the criminal laws of the country passed with reference to actions
regarded by general consent as properly the subjects of punitive legislation". Regarding the
discrimination made by the Act on religious grounds it was contended that only the Hindu
community was choosen for the purpose of legislation while Muslims were allowed to practice
polygamy.
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Gajendra Gadkar J. thought that the classification made between Hindus and Muslims for the
purpose of legislation was reasonable and did not violate the equality provision of constitution
contained in Article 14. Chagla C.J. also considered that : "Article 14 does not lay down any
legislation that the state may embark upon must necessarily be of and all embracing character.
The state may rightly decide to bring about social reform by stages, and the stages may be
territorial or they may be community wise, and that the discrimination made by the Act between
the Hindus and the Muslims does not offend the equahty provision of the Constitution.^ Chagla
C.J., further observed that : "there can be no doubt that the Muslims have been excluded from the
operation of the Act in question.
Even Section 494, Penal Code exempt them." The court, thus submitting to the wisdom and
supermacy of Legislature in a democracy kept its hand off from interfering with the prerogative of
the Legislature.
The other point which emerges from this judgement is that the religious freedom guaranteed by
Article 25 is the protection of rehgious faith and belief and not all religious practices. The third
inference which can be drawn from the judgement is that the polygamy is not an integral part of
Hindu religion.
These arguments of learned judge however, raise two questions, first, are the judges qualified to
determine what is an integral part of a religion?, and second, does the Constitution protects only
the essentials of a religion? The answer to both these question is, apparently, not in affirmative.^
The Madras High Court^ was also grappled with the question of the validity of a Madras Law
which has abolished polygamy among Hindus.
The Act in question was the Madras Hindu (Bigamy and Divorce) Act, of 1949. Challenge to the
Act was made on substantially the same grounds on which the Bomaby Law was attacked, viz.
The Act unconstitutionally interferred with the free practice of religion and permitted
discrimination against Hindus.
The arguments were not accepted by the court like the Bombay High Court the Madras High Court
pointed out that the abolition of polygamy did not interfere with religion because if a man did not
have a natural borned son, he could adopt one.
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Further, relying on the passage in Rynold v. f.," the court said that whilst - religious belief was
protected by the Constitution religious practices were subject to state regulation.' The High Court
observed : "the religious practice, therefore, may be controlled by legislation if the state think that
the in interest of the social welfare and reform it is necessary to do."'
Thus, the court took the position that in a democracy it is the Legislature which is to lay down the
policy of the state and to determine what legislation to put up on the statute book for the
advancement of the welfare of the state.
Moreover, the next inference which can be drawn is that the state way rightly decide to bring
about social change by stages and these stages may be territorial or community wise. Again in
Ram Prasad vs. State of U.P. almost identical issue was raised before the Allahabad High Court,
upholding the validity of the statutory provisions prohibiting bigamy among Hindus.
Shah Bano Case
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The next important case relating to Muslim Personal Law and Uniform Civil Code is Mohd.
Ahmad Khan vs. Shah Bano Begum.^^ The appellant, Mohd. Ahmad Khan, being an advocate by
profession at Indore, M.P. married to respondent in 1932.
In 1975 the appellant broke the matrimonial home by driving Shah Bano Begum out of
matrimonial home. During this period the respondent gave birth to three sons and two daughters.
In 1978 the respondent filed a suit under section 125 Cr.P.C. in the court of judicial magistrate 1st
class, Indore, asking for the maintenance provision at the rate of Rs. 500/- per month. On
November 6, 1978, the appellant divorced the respondent excercising the so called unilateral
power of talaaq irrevocabily.
In his defence the appellant advanced the argument that by virtue of talaaq, she seized to be his
wife, he was no more under obligation to maintain her and he had already paid maintenance to her
at the rate of Rs. 200/- per month for about two years.
He deposited Rs. 3000/- in the court in lieu of dower during the period of iddat. In August 1979,
the lower court directed the appellant to pay a sum of Rs. 25 per month by way of maintenance.
The respondent went in appeal to the Madhya Pradesh High Court in 1980 for the enhancement of
maintenance amount.
The High Court enhanced the maintenance amount to Rs. 179.20 per month. Against this order the
husband approached the highest judicial institution through special leave.
A Bench consisting of Mr. Justice Miirtaza Fazle AH and Mr. Justice A. Vardharajan were of the
opinion that these two cases were not correctly decided, hence they referred this appeal to a larger
Bench on Feb. 3, 1981 stating that : "As this case involves substantial questions of law of far
reaching consequences, we feel that the decisions of this court in Bai Tahira vs. AH Hussain
fissoly Chotia and Fazlun Bi vs. K. Khader Vali'' require reconsideration because, in our opinion
they are not only in direct contravention of the plain and the ambiguous language of section 127
(2) (b) of the Code of Criminal Procedure 1973.
The decisions also appear to us to be against the fundamental concept of divorce by the husband
and its consequences under the Muslim law which has been expressly protected by section 2 of
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Muslim Personal Law (Shariat) Apphcation Act, 1937 - An Act which was not noticed by the
aforesaid decision.
We, therefore, direct that the matter may be placed before the honourable Chief Justice for being
heard by a larger Bench consisting of more than three judges." A Constitution Bench consisting of
five judges {Chandrachud, C.J., D.A. Desai, J.O., Chenappa Reddy, J.L.S., Venkat Ramiah, J. and
Rangnath Mishra J.) heard the case. Chief Justice Chandrachud wrote and delivered the
judgement.
Technically, the case related to the maintenance of Muslim divorcee but the observations of the
court regarding Muslim Personal Law and Uniform Civil Code created a controversy in the socio-
legal and political arena.
The question of maintenance of Muslim divorcee and the applicability of section 125 of Cr.P.C.
was settled by the Supreme Court in Bai Tahira and Fuzlin Bi case. In Shah Bano case apart from
observations relating to the maintenance of Muslim divorcee the Supreme Court held that :
(i) There is no conflict between provisions of Section 125 of Criminal Procedure Code and
Muslim Personal Law in the matter of maintenance of divorcee, however, in case of any
conflict section 125 shall prevail over the Personal Law.
(ii) (ii) That a Muslim divorcee has a right to obtain maintenance till her remarriage or death
under section 125 of the code and if she is unable to maintain herself, her ex-husband has a
duty to provide for her maintenance till her remarriage or death.
(iii) (iii) That if a husband, even he be a Muslim, marries another women the wife has a right to
refuse to live with him and yet obtain maintenance from him.
(iv) (iv)Moreover, the Supreme Court has strongly criticized the Government of India for its
reluctance to enact Uniform Civil Code in view of the sensitivity of the Muslim
community. Regarding the implementation of Article 44 of the Constitution, the Court
pointed out the apathy of the Legislature that it has not been sincere enough to bring the
Uniform Civil Code into practice.
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The court further remarked that the government's in action has rendered the directive contained in
Article 44 of the Constitution of India meaningless and asked the government to take steps for
enacting a Uniform Civil Code without any regard to the Muslim reaction.
The Court felt that : "Inevitably, the role of the reformer has to be assumed by the court because, it
is beyond the endurance of sensitive mind and to allow injustice to be suffered when it is so
palpable.
But piecemeal attempts of the Court to bridge the gap between personal laws cannot take the place
of a common Civil Code. Justice to all is a far more satisfactory way of dispensing Justice than
Justice from case to case." In this case, the appellant and the interveners stressed that under
Islamic Law a husband is duty bound to maintain the wife in case of divorce till the expiry of Iddat
period only. In support of this assertion they relied on some very important text books (e.g. MuUa,
Tyebji, Paras Diwan) on law, but the court did not find any merit in the referred textual materials.
The court rejecting the above argument held that in case the divorcee was unable to maintain
herself, the period of Iddat must not come in the way and she in such case, was entitled to be
maintained by ex-husband even after the expiry of Iddat period and would continue till she had
remarried.
The court cited the two Qur'anic verses in support of this view point: "For divorced women
Maintenance (should be provided) ... on a removable scale This is a duty On the righteous."^^
"Thus doth God Makes clear his signs To you : in order that Ye may understand." "Although the
correctness of the translation was challenged by the appellant and the intervener.
All India Muslim Personal Law Board, regarding the meaning of the word "M47M" used in verse
241 of Holy Our'an but this point of dispute was not conceded and accepted by the court. The
meaning of the word "A/^Z^" meant 'provision' and not 'maintenance' was asserted by the
appellant as well as not rehed on the translation of appellant but relied on the translation of the
verses 241 and 242 by Zafarullah Khan The translation of Zafarullah Khan is thus : "For divorced
women also there shall be provision according to what is fair.
This is an obligation binding on the righteous. Thus, does Allah make his commandments clear to
you that you may understand." The translation of verses 240 to 242 in the 'meaning of the
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Qur'an'^^ was relied upon by the court. "Those of you, who shall die and leave wife behind them,
should make a will to the effect that they should be provided with a year's maintenance and should
not be turned out of their homes.
But if they leave their homes of their accord, you shall not be answerable for whatever they chose
for themselves in a fair way; Allah is all powerful, all wise. Likewise, the divorced women should
also be given something in accordance with the known fair standard. This is an obligation upon
the God fearing people." Besides the above the court cited certain other translations of the Holy
Qur'an by renowned scholars. After anlaysing the above mentioned translations of the verses 241-
242 the court held that the Qur'an imposes obligation on the husband to provide maintenance for
the divorced wife beyond the Iddat period.
When the appellant and the intervener All India Muslim Personal Law Board cited the following
statement made by Shri Ram Niwas Mirdha, the then Minsiter of State, Home Affairs on Dec. 18,
1973 in the Parliament which is as follows : "Dr. Vyas very learnedly made certain observations
that a divorced wife under a Muslim Law deserves to be treated justly and she would get what is
her equitable or legal due.
Well, I will not go into this, but say that we would not like to interfere with the customary law of
Muslims through the Criminal Procedure Code. If there is a demand for change in Muslim
Personal Law, it would actually come from the Muslim community itself and we should wait for
the Muslim public opinion on these matters to crystallise before we try to change this all, this is
hardly, the place where we could do so.
But as I tried to explain, the provision in the Bill is an advance over the previous situation.
Divorced women have been included and brought within the ambit of clasue 125, but a limitation
is being imposed by this amendment to clause 127, namely, that the maintenance order would
sieze to operate after the amounts due to her under the personal law or paid to her ... so this I think,
should satisfy honourable members that whatever advanced we have made is in the right direction
and it should be welcomed." The court ignored the legislative history of Section 125 and 127 of
Criminal Procedure Code and held that :
"The provision contained in Section 127 (3) (b) may have been introduced because of the
misconception that dower is an amount payable on divorce. But that cannot convert an amount
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payable as a mark of respect for the wife into an amount payable on divorce." The judgement has
been criticized on the following grounds :
(i) The Our'an and Shariat have been wrongly interpreted and by relying on these the Supreme
Court held that there is no conflict between the Personal law and Section 125 Cr.P.C. and
ignored the authoritative texts and unanimity of Ulema. The Supreme Court has flouted the
established principles of interpretations of Islamic Law by Muslim jurists and Ulema and
an uninterrupted practise of the Muslims of the world for the last 1400 years.
(ii) That the Muslim Personal Law {Shariat) Application Act 1937, covers maintenance if the
parties are Muslims. The Supreme Court by enunciating the prevalance of the secular laws
of social significance over the provisions of the Shariat Act has opened a way for courts to
interfere in the Muslim Personal Law.
(iii) The decision is a clear cut interference in Muslim Personal Law That the Supreme Court
in this case not only ignored legislative history and clear intent of Legislature and violated
the well established rules of harmonious construction for interpretation of statutes and for
harmonising conflicts between different parts of the same law but set itself up as a "Super
Legislature" or as a "Third Chamber of Legislature".
(iv) That the Constitution authorises to interprete the Constitution, not the Our'an and to test
the laws, enacted by competent Legislature as regard their constitutionality. The
Constitution bestows no authority on Supreme Court to reinterpret a religion or to perform
it. At the outset, in his judgement, Y.V. Chandrachud, C.J. speaking for the court, observed
that : "It is alleged that the fatal point in Islam is degradation of women.
To the Prophet (SAW) is ascribed the statement, hopefully wrongly that women was made from a
crooked rib and if you bend it straight it will break; therefore treat your wife kindly. "2-* It
showed the misconception of the learned judge about the status of women in Islam. However, the
most objectionable part of the judgement is that in which the court unncessarily assumed the
function to interpret the holy Our'an.
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The Supreme Court in this case forgetting its role of interpreter tried to give that potent impression
to the reformer of law as Legislature ignoring the scheme of "seperation of power theory" on
which ever constitution is designed.
According to Prof. Tahir Mahmood : "The Shah Bano judgement has caused great resentments in
many circles of Muslim community in India. Though we may not agree with the other opponents
of the judgement on many points that they have raised, we do strongly feel that the assumption by
the Supreme Court of function to interpret the Holy Qur'an was absolutely uncalled for.
If Justice Chandrachud was convinced (which he obviously was) that in the wake of a conflict
between the Cr.P.C. and the Islamic law the former should prevail. He should have simply so
asserted. There was no need no justification, for him to assume the role of an interpreter of the
Qur'an, for which extremely delicate and difficult task most certainly he was unqualified.
The attempt of judiciary to interpret certain verses of Qur'an and admonition to state with regard
the Uniform Civil Code definitely frustrates the well estabhshed principle of 'Judicial self restraint'
and the concept of 'Judicial Activism' surely does not permit Indian independent judiciary to do
like this.
The concept of Uniform Civil Code has become very complex issue in Indian context.
Unnecessarily and without any due relevance Supreme Court advocated for its preparation and
application. Really, this aspect of Supreme Court's observation can be respectfully submitted as
"Unwarranted" vmcalled for.
How can a Uniform Civil Code be enforced in India based on diversified languages, religion, laws
(in rare areas only) and culture?^^ It may be pointed out that such sporadic observations are bound
to create controversy and for which our government has to face and some times becomes bound to
pay a heavy cost.
The judgement as a whole caved thus be read like this : "Islam degrades women; Qur'an negates
certain popular behef; therefore all Muslims must be subjected to a Uniform Civil Code by
altogether scrapping their personal law." One may legitimately ask was it in fact necessary to say
all this to decide that the Cr.P.C. provision on divorced wife maintenance did not exclude Muslims
from its scope? Dr. Tahir Mahmood, an eminent scholar observed about this judgement:
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"The ideas expressed by the Supreme Court at the end of the judgement in respect of the legendary
Uniform Civil Code were as uncalled for as the attempt to put a new glass on a Our'anic verse.
The enthusiastic support given by the court to an extremely controversial issue in respect of which
the Muslims are - awfully sensitive, and that too in a judgement directly concerning the Islamic
personal law, is in-explicable. This 'obiter' in the judgement could have been easily avoided
without affecting in the least its 'ratio decidendi
The Shah Bano judgement did unintentionally provide inflammatory materials to Muslim bashers
of whom, also there is no dirth in the country and thereby negated its own wisdom and rationale.
In a recent book Prof. Tahir Mahmood wrote : "By mixing up the actual issue in the case with the
controversial question of a Uniform Civil Code and by trying to justify its ruling on the strength of
certain Our'anic verses as understood by the court, the judgement (opening with an uncalled for
reference to the ill founded western criticism of Islams alleged anti women stance) raised an
unhealthy controversy which unfortunately assumed communal and political overtones. This
unpleasant chapter of recent legal history of India could have been easily avoided by showing
judicial self-restraint.5
Jorden Diengdeh Case The third important case relating to the present discussion is
Jorden Diengdeh vs. S.S. Chopra which was delivered only a fortnight later than the controversial
Shah Bano case.
5
Tahir Mehmood, Statute - Law Relating to Muslims in India : A Study in Islamic and Constitutional Perspectives
(1995), also cited in Uniform Civil Code : Fictions and Facts, p. 23 (1995)
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The special leave petition in Jorden Diengdeh case, relating to Christian personal law, was decided
by a division bench of the Supreme Court on 10th May, 1985. The judgement was delivered by
Justice O. Chinappa Reddy who sat also on Shah Bano Bench. The judgement is on the same lines
as Shah Bano case and it is suppliment to Chief Justice Chandrachud's view on Uniform Civil
Code expressed in Shah Bano Case.
The facts of the case are somewhat novel and peculiar. The wife, the petitioner claims to belong to
the 'Khasi tribe' of Meghalaya who was born and brought up as a Presbytarian Christian at
Shillong.
She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married
under the Christian Marriage Act, 1872. The marriage was performed on October 14, 1975. A
petition for declaration of nullity of marriage or judicial separation was filed in 1980 under
Sections 19, 20 and 22 of the Indian Divorce Act, 1869.
The prayer for declaration of nullity of marriage was rejected by a learned single judge. The wife
filed petition for special leave to appeal against the judgement of High Court. She sought a
declaration of nullity of marriage under the Indian Divorce Act, 1969, as the marriage was
solemnised by Christian rites under the Christian Marriage Act, 1872.
The ground on which the declaration was sought in the courts below and before the Supreme
Court the ground was the impotence of the husband in that though the husband was capable of
achieving erection and, penetration, he ejaculate pre-maturely before the wife has an orgasm,
leaving the wife totally unsatisfied and frustrated.
The real problem before the court was that the marriage appeared to have broken down
irretrievably. Finding that it was not possible for the court to give the desired relief under the
Christian law, the learned judge talked of the urgent need to enact a 'Uniform Civil Code'.
He reproduced the ground of divorce and nullity under various statutes (Indian Divorce Act, 1869;
Parsi Marriage and Divorce Act, 1936; Dissolution of Muslim Marriages Act, 1939; Special
Marriage Act, 1954; Hindu Marriage Act, 1955) and concluded : "It is thus seen that the law
relating to judicial separation, divorce and nullity of marriage is, far from being uniform.
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Surely the time has now come for a complete reform of the law of marriage and make a uniform
law applicable to all people irrespective of region and caste. We suggest that the time has come for
the intervention of the Legislature in these matters to provide for a Uniform Code of marriage and
Divorce and to provide by law for a way out of the unhappy situations in which couples like the
present have found themselves.
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such
actions as they may deem fit to take.
The court did not give any relief to the victim and no one knows what finally happened to the poor
tribal lady. The Delhi High Court had, while refusing a decree of nullity allowed her a judicial
seperation keeping her irretrievably broken marriage legally intact. The Jorden Diengdeh case
involved application and interpretation of the Christian Personal Law. Yet, the Supreme Court
judgement in the case examined neither the present state of Christian Personal Law in the country
nor the response of the Christian community to the issues of Personal law reforms and Uniform
Civil Code.
Nor did it talk of the Parsi community's feelings in this matter. Paraphrasing divorce and nullity
provisions in the Christian and Parsi laws and the comparable sections of the statutes applicable to
Hindus and Muslims, Justice O. Chinappa Reddy choose only to join the chorus of groans of the
day to rebuke Muslims for their opposition to the Shah Bano ruling that in which the state had
been asked to 'act' towards enacting a Uniform Civil Code even if the majority community was not
prepared to give a 'lead' by offering repeal of its own personal law in favour of Uniform laws.'
The learned judge further held that under strict Hanafi law, there was no provision enabling a
Muslim women to obtain a decree dissolving her marriage on the failure of her husband to
maintain her or on his deserting her or maltreating her and it was the absence of such a provision
entailing 'unspeakable misery in innumerable Muslim women' that was responsible for the passing
of Dissolution of Muslim Marriages Act, 1939. He further observed : "If the Legislature could so
alter the Hanifi law, we fail to understand the hallaballo about the recent judgement of this court in
the case of Mohammad Ahmad Khan Vs. Shah Bano Begum interpreting the provisions of Section
125 of the Criminal Procedure Code of the Muslim law."'
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The learned judge while quoting from the statement of Objects and Reasons of the Dissolution of
Muslim Marriages Act, 1939 did not say that these provisions were drawn from another school of
Islamic Law itself, i.e. the Maliki School (which fact the statement of object and reasons does
explain at length) which is permissible under Hanafi law.
This appeal involved some very serious issues faced by the society other than the Uniform Civil
Code but Chenappa Reddy J. did not make any reference to those issues, it shows the intention of
the learned judge. He has unnecessarily created a serious doubts about the legitimacy of codified
law workable in India since 1950. In the opinion of Prof. Tahir Mahmood : "Neither the issue of
'Uniform Civil Code' nor that of the response to Shah Bano judgement was in question in the case
before the court. What does it mean? Can the court speak suo moto only about a 'Uniform Civil
Code' and the Muslim law and never about any other factors even if they are much more relevant
than 'Uniform Civil Code' and Muslim law in any case.
If we scrutinize Christian Marriage Act, 1872 we find that the Christian Marriage Act demands
that every marriage between a Christian and non-Christian (besides all Christian - Christian
marriages) must also take place under the provisions only. This is provided in section 4 of the said
Act.
When enacted, this provision reflected the high handedness of the then foreign rulers who
regarded their own religion as superior to all others. But no body bothered because the Act clashed
only with Muslim Law which allowed a Muslim Chrisitan marriage - Hindu law did not any
interreligious marriage at all.
Since 1954 the legal position has been very different. The Special Marriage Act, 1954 now allows
all sorts of inter religious marriages to take place freely. Can a non-Christian marry a Christian
under this Act? Of course, yes. But, then, how about the demand of Section 4 of the Christian
Marriage Act, still enforce demanding that a non-Christian's marriage to a Christian must also be
solemnised by Christian rites only.
The two Acts are apparently in conflict. People are not sure of the correct legal position and
therefore want to play safe unmindful of the possible consequence in future - by complying with
section 4 of the old Act of 1872."
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The Indian Divorce Act 1869 applies if either party to a marriage is a Christian (besides all cases
where all parties are Christians). Can a non-Christian married to a Christian, whose marriage is
governed by the Christian Marriage Act, 1872, seek or divorce under the Special Marriage Act
1954? Two High Courts have given conflicting rulings - Rajasthan saying yes, Allahab.
The Act itself is not clear on the point, though the preamble - an Act to provide an special form of
marriage in certain cases for the registration of, such and certain other marriages and for divorce -
tilts in favour of the Rajasthan ruling.
Was it not imperative case to examine all these aspects of the law? Could it not have upheld the
already available Rajasthan ruling and give the desired relief to the poor tribal girl, paving the way
for salvaging in future other women finding themselves in a similar mess. In this case nothing of
this sort was done, the only thing which was done to suggest the government to enact a Uniform
Civil Code and to admonish the Muslims for their unfavourable reactions to the Shah Bano ruling.
What the Jordan Dingdeh case, and many other judicial case have brought to the limelight for a
recodification of the Christian law in India.
Last codified in 1865-1872 on the basis of the progress made till then in Britain, statutory
Christian law is now rather outdated. It is the women who are the worst sufferers under the 19th
century Christian-law statutes of 1866 to 1872.Not only Christian women but also those non-
Christian women who are married to Christian and are therefore, again governed by those laws.
The plight of women governed by the 19th century statitutes of Christian law has been described
by the Kerela High Court in following words : "Life of a Christian wife who is compelled to live
against her will, though in name only, as the wife of the man who hates her, has cruelly treated her
and deserted her, putting an end to marital relationship irreversible, will be a sub-human life
without dignity and personal liberty which she is bound to lead till her death.''" Although Ammine
E.J. got relief from a miserable life by the Kerala High Court but Jorden Dingdeh was not given
any relief and she was left to suffer endlessly till a Uniform Civil Code is enacted.
Saria Mudgal Case The fourth important case relating to personal laws of Hindus and
Muslims and Uniform Civil Code is Sarla Mudgal v. Union oflndia Once again a very
controversial judgement was handed down by the Supreme Court of India which once again raised
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the qustion of the enactment of a Uniform Civil Code. The judgement became very controversial
due to its uncalled for 'obiter dicta The issue raised before the court were as follows :
(i) Article 44 is based on the concept that there is no necessary connection between religion
and personal laws in a 'civilized society'.
(ii) Article 25 guarantees religious, freedom whereas article 44 seems to divest religion from
social relations and personal law. Marriage, succession and like matters of secular
character cannot be brought within the guarantees enshrined under Articles 25, 26 and 27.
(iii) Article 44 is decisive step towards national integration. Justice Kuldeep Singh observed
that : "The personal laws of the Hindus, such as relating to marriage, succession and the
like have all a sacramental origin, in the same manner as in the case of the Muslims or the
Christians.
The Hindus along with Siklis, Buddhists and Jains have foresaken their sentiments in the cause of
national unity and integration, some other communities would not though, the Constitution enjoins
the establishment of a 'Common Civil Code' for the whole of India." Justice Kuldeep Singh further
observed that : "Those who preferred to remain in India after the partition, fully knew that the
Indian leaders did not believe in the two nation or three nation theory and that in the Indian
republic there was to be only one orgasm, leaving the wife totally unsatisfied and frustrated. The
real problem before the court was that the marriage appeared to have broken down irretrievably.
Finding that it was not possible for the court to give the desired relief under the Christian law, the
learned judge talked of the urgent need to enact a 'Uniform Civil Code'.
He reproduced the ground of divorce and nullity under various statutes (Indian Divorce Act, 1869;
Parsi Marriage and Divorce Act, 1936; Dissolution of Muslim Marriages Act, 1939; Special
Marriage Act, 1954; Hindu Marriage Act, 1955) and concluded : "It is thus seen that the law
relating to judicial separation, divorce and nullity of marriage is, far from being uniform.
Surely the time has now come for a complete reform of the law of marriage and make a uniform
law applicable to all people irrespective of religion and caste. We suggest that the time has come
for the intervention of the Legislature in these matters to provide for a Uniform Code of marriage
year, Batch (2013-2018)

and Divorce and to provide by law for a way out of the unhappy situations in which couples like
the present have found themselves.
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such
actions as they may deem fit to take." The court did not give any relief to the victim and no one
knows what finally happened to the poor tribal lady.
The High Court had, while refusing a decree of nullity allowed her a judicial seperation keeping
her irretrievably broken marriage legally intact. The Jorden Diengdeh case involved application
and interpretation of the Christian Personal Law.
Yet, the Supreme Court judgement in the case examined neither the present state of Christian
Personal Law in the country nor the response of the Christian community to the issues of Personal
law reforms and Uniform Civil Code.
Nor did it talk of the Parsi community's feelings in this matter. Paraphrasing divorce and nullity
provisions in the Christian and Parsi laws and the comparable sections of the statutes applicable to
Hindus and Muslims, Justice O. Chinappa Reddy choose only to join the chorus of groans of the
day to rebuke Muslims for their opposition to the Shah Bano ruling that in which the state had
been asked to 'act' towards enacting a Uniform Civil Code even if the majority community was not
prepared to give a 'lead' by offering repeal of its own personal law in favour of Uniform laws.^
The learned judge further held that under strict Hanafi law, there was no provision enabling a
Muslim women to obtain a decree dissolving her marriage on the failure of her husband to
maintain her or on his deserting her or mahreating her and it was the absence of such a provision
entailing 'unspeakable misery in innumerable Muslim women' that was responsible for the passing
of Dissolution of Muslim Marriages Act, 1939.
He further observed : "If the Legislature could so alter the Hanifi law, we fail to understand the
hallaballo about the recent judgement of this court in the case of Mohammad Ahmad Khan Vs.
Shah Bano Begum interpreting the provisions of Section 125 of the Criminal Procedure Code of
the Muslim law."
The learned judge while quoting from the statement of Objects and Reasons of the Dissolution of
Muslim Marriages Act, 1939 did not say that these provisions were drawn from another school of
year, Batch (2013-2018)

Islamic Law itself, i.e. the Maliki School (which fact the statement of object and reasons does
explain at length) which is permissible under Hanafi law.
This appeal involved some very serious issues faced by the society other than the Uniform Civil
Code but Chenappa Reddy J. did not make any reference to those issues, it shows the intention of
the learned judge. He has unnecessarily created a serious doubts about the legitimacy of codified
law workable in India since 1950.
In the opinion of Prof. Tahir Mahmood : "Neither the issue of 'Uniform Civil Code' nor that of the
response to Shah Bano judgement was in question in the case before the court. What does it mean?
Can the court speak suo moto only about 'Uniform Civil Code' and the Muslim law and never
about any other factors even if they are much more relevant than 'Uniform Civil Code' and Muslim
law in any case.- If we scrutinize Christian Marriage Act, 1872 we find that the Christian Marriage
Act demands that every marriage between a Christian and non-Christian (besides all Christian -
Christian marriages) must also take place under the provisions only.
This is provided in section 4 of the said Act. When enacted, this provision reflected the high
handedness of the then foreign rulers who regarded their own religion as superior to all others. But
no body bothered because the Act clashed only with Muslim Law which allowed a Muslim
Chrisitan marriage - Hindu law did not any interreligious marriage at all. Since 1954 the legal
position has been very different.
The Special Marriage Act, 1954 now allows all sorts of inter religious marriages to take place
freely.
Can a non-Christian marry a Christian under this Act? Of course, yes. But, then, how about the
demand of Section 4 of the Christian Marriage Act, still enforce demanding that a non-Christian's
marriage to a Christian must also be solemnised by Christian rites only. The two Acts are
apparently in conflict.
People are not sure of the correct legal position and therefore want to play safe unmindful of the
possible consequence in future - by complying with section 4 of the Act of 1872." The Indian
Divorce Act 1869 applies if either party to a marriage is a Christian (besides all cases where all
parties are Christians). Can a non-Christian married to a Christian, whose marriage is governed by
year, Batch (2013-2018)

the Christian Marriage Act, 1872, seek or divorce under the Special Marriage Act 1954? Two
High Courts have given conflicting rulings - Rajasthan saying yes, Allahabad No. The Act itself is
not clear on the point, though the preamble - an Act to provide an special form of marriage in
certain cases for the registration of, such and certain other marriages and for divorce - tilts in
favour of the Rajasthan ruling.
Was it not imperative case to examine all these aspects of the law? Could it not have upheld the
already available Rajasthan ruling and give the desired relief to the poor tribal girl, paving the way
for salvaging in future other women finding themselves in a similar mess.
In this case nothing of this sort was done, the only thing which was done to suggest the
government to enact a Uniform Civil Code and to admonish the Muslims for their unfavourable
reactions to the Shah Bano ruling. What the Jordan Dingdeh case, and many other judicial case
have brought to the limelight for a recodification of the Christian law in India.
Last codified in 1865-1872 on the basis of the progress made till then in Britain, statutory
Christian law is now rather outdated. It is the women who are the worst sufferers under the 19th
century Christian-law statutes of 1866 to 1872. Not only nation - Indian nation - and no
community could claim to remain a separate entity on the basis of religion." These observations of
the learned judge requires a close scrutiny.
If we go through the above observation than we come to the following conclusion.
(i) India was partitioned in 1947 by the protagonist of "two nation theory".
(ii) Indian leaders did not believe in that theory.
(iii) In the RepubHc of India there was to be only "one nation - the Indian nation."
(iv) In the Indian republic "No community could claim to remain a separate entity on the basis
of religion."
(v) Those who prefer to remain in India after partition "fully knew this".
Therefore, the government of India is directed to immediately enact a Uniform Civil Code by
introducing a bill in the Parliament. The above observations or the 'obiter dicta' of the judgement
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have ruined the sensible "ratio decidendi' of this case that is to hold the second marriage of a
Hindu husband after his conversion to Islam (without getting his first marriage dissolved) as void
marriage.
The observations of Justice Kuldeep Singh need close scrutiny. Firstly, we will take the
observation that the Hindus along with Sikhs, Buddhists and Jains have foresaken their sentimetns
in the cause of national unity and integrity.
The concrete issue before the court was that while the statutory Hindu law did not and the Muslim
Personal law as enforced in India did allow bigamy, could a Hindu husband circumvent the
restriction by anouncing a sham conversion to Islam? Assertively ruling that the law could not
allow him to do so, the court ascribed the problem to the plurality of the personal laws in the
country and stressed the need for a uniform of the Islamic law on bigamy - more often by non-
Muslims than by Muslims themselves - is, of course, is a growing menace.
While it does call for urgent remedial measures, seeking those measures in the terribly complex
issue of a Uniform Civil Code ignores the maxim 'Justice delayed is Justice denied'. In the opinion
of the court the delay on the part of the government in enacting a Uniform Civil Code is
attributable to "reasons too obvious to be stated."
On the one hand the court said that the reasons are too obvious to be stated and on the other hand
the court discussed those obvious reasons in full detail. It seems that the court also believes in
certain popular misconceptions in respect of personal laws and the constitutional provisions
relating to a Uniform Civil Code.
The courts ruling that majority has foresaken their personal laws for the sake of national unity is
also not correct. If we go through the legislative history of four Hindu-Law-Statutes we find that
these statutes were enacted not for the sake of national unity but for ameliorating the conditions of
Hindu women.
The legislative history of the four Hindu statutes makes it clear that a Hindu Code Bill was
inherited by independent India from the preconsitution regime. After the introduction of Article 44
it was discussed in the Parliament for about four years.
year, Batch (2013-2018)

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