Hindu also includes Sikhs, Buddhists, and Jains.
What is the “uniform Civil Code”? Let’s analyze all the 3 words.
“Code” means “Act” or “Law”.
What does Uniform mean?
School kids wear uniforms. Let’s say a school mandates red-white uniform for its kids. This means that all kids will wear dress of red and white color. But the students will have the liberty to choose the size that fits their body. The school cannot mandate a fixed size for all kids, right? So, the UCC will have an uniform structure but certain diversions shall be allowed for different religions and sects.
What does Civil mean?
It means Property, Business, Contract, Marriage, Divorce, Adoption, Guardianship, Maintenance, Succession etc.
What is the scenario today?
We have got uniform laws for Property, Business and Contract. However, in matters of marriage, divorce, adoption, guardianship, maintenance, succession different religions have their own personal laws.
Hindus have 4 laws:
- Hindu Marriage Act
- Hindu Succession Act
- Hindu Adoption and Maintenance Act
- Hindu Minority and Guardianship Act
Christian, Parsis and Jews have the following laws though inside the laws there are specific clauses for each of the religions.
- Christian Marriage Act
- Indian Divorce Act
- Parsi Marriage and Divorce Act
- Indian Succession Act
Muslims are governed by the following laws. All the laws are based on Shariat.
- Muslim Personal Law (Shariat) Application Act
- Dissolution of Muslim Marriages Act
- Muslim Women (Protection of Rights on Marriage) Act
- Muslim Women (Protection on Divorce) Act
Common laws for all
- Special Marriage Act
- Guardian and Wards Act
- Juvenile Justice (Care and Protection of Children) Act
- The Child Marriage Restraint Act, 1929
What RSS and BJP are pressing for UCC?
- What makes us a nation? One constitution, one set of laws, a single currency among many others. If we have a single set of personal laws, then there will be homogeneity and the nation will unify further.
- Islamic laws are completely based on Shariat. The problems arising of Shariat are as follows:
- Muslim Personal Law (Shariat) Application Act just says that all Muslims will be governed by Shariat. Please note, there is no single Shariat. Shias have their own version of Shariat. Among Sunnis there are multiple versions of Shariat. It could happen that a couple may be following different versions of Shariat. This makes justice delivery very murky, and courts are hesitant to take up such cases. Due to this, the justice delivery is done by Qazis and Muftis and as a result a parallel judiciary has propped up among Muslims. And Madrassas cater to the demand of Qazis and Muftis.
- Shariat gives indiscriminate and unilateral power to Muslim men to divorce their wives. Whereas in all other religions people must get a divorce decree from court for a divorce. Many a times courts also reject divorce petitions.
- After divorce, the Muslim man has no responsibility towards his wife and Children. Whereas men of all other religions need to maintain (i.e., bear their fooding, clothing, boarding, education, health expenses) their wife and Children even after a divorce.
- A Muslim man can take up to 4 wives whereas other religions are strictly monogamous. If a Hindu person remarries with his/her spouse living, then (s)he is liable to be fined and imprisoned up to 7 years.
- After divorce a Muslim woman must sleep, have sex, and get divorce from another man to remarry her Husband. This is called Nikah Halala. But all other women can marry the same man without any restrictions.
- Shariat inheritance law is extremely complex and illogical. For e.g. after a man dies 1/6th of his property will go to his father, 1/6th will go to his mother, 1/8th to his wife, 1/3 to his son if there are no daughters. If this doesn’t become 100% the remaining property will be further divided again. Whereas in case of Hindus, the property will be equally divided among his wife and Children. The Islamic succession law creates so many disputes that Qazis make a lot of money from it.
- A single law would comprise of just 300 pages, which would have been easy for a lawyer or judge to study. Many laws spanning over thousands of pages make the life of lawyers and judges tough.
- Goa is the only state in India having a UCC and is seen to be very successful. The law gives fair treatment to all religions. Women have equal property rights, Muslims cannot practice Polygamy, there is no triple-talaq etc.
- All major nations like USA, Germany, France, UK, China, Russia, Japan, and many others have a UCC. If UCC is successful in so many nations, why should India not have it?
The UCC should be based on below principles:
- Discriminatory provisions of any religion must be done away with.
- Good practices of all religions shall be applied on others.
- Long term benefits should be given importance over short term benefits.
How will the UCC look like? The UCC shall have the below chapters.
First Chapter: marriage.
Section 5 of Hindu Marriage Act prohibits marriages among “Sapindas” i.e. a person cannot marry a person as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father. Muslims mostly marry among their families. Two brothers will marry two sisters and their children will marry one another. Such practice has greatly reduced genetic diversity among Muslims. It is easy to marry among extended family as compatibility comes easily. But a society remains healthy if it is genetically diverse. So, the Hindu law to make marriages exogamous should be applied on all religions uniformly. Long term interest of our society should take precedence over short term conveniences.
Christian Marriage Act mandates every marriage to be registered. It has a concept called “Marriage Solemnizer”. The Church which is authorized by the Marriage Registrar (a Govt body) conducts marriages and issues marriage certificates and files returns of the marriages it has conducted with the Registrar. This principle can be extended to all religions and communities. State Govt will issues licenses to priests or temples or Qazi or Gurudwara to solemnize marriages and issue marriage certificates and file returns. Any non-authorized person or body solemnizing marriages shall be punished with jail or fine or both. If this were done, then Govt will know all the who is marrying whom. This will have another benefit for Hindus: why the Hindus are moving away from religion? The religious authorities have little influence on the life of Hindus. Giving the priests or temples such legal power will certainly have a great impact in keeping Hindus in sync with religion. Many Hindu couples marry at temples. In that case the Govt can give license to the temple trusts to conduct marriages and issue marriage certificates. A marriage shall be considered complete after the certificate is issued by the Church or Qazi or Priest or Temple. The couple and their families will have full freedom in choosing the nature of marriage ceremony, there shall be no mention of the nature of marriage ceremony in the UCC.
The State Govts should have liberty in:
- Determining the qualifications of Marriage Solemnizers
- Fees they can charge
- Reservations in giving licenses to Marriage Solemnizers.
- Conditions on which the license can be revoked.
- Guidelines the Solemnizers must follow before conducting a marriage and issuing the certificate.
What about inter-religion marriage? Here the marriage shall be solemnized by the marriage registrar (a Govt employee). Through rules, it should be mandated that the registrar wont solemnize the marriage unless (s)he is satisfied that the marriage is not happening by force or coercion or falsehood. Such a provision would prevent love Jihad.
The Muslims have a tradition of Bride prince (Mehr). That can be preserved as an exception for Muslims only.
All non-Muslims are prohibited from having more than one spouse. A person who takes a spouse with his/her spouse living or without a divorce decree can be jailed for up to 7 or 10 years under IPC sections 494 and 495. This should be applied on all (including Muslims).
No non-Muslim boy and girl can’t marry before the age of 21 and 18 respectively. This needs to be applied on all including Muslims.
Also the difference between the man and woman getting married should be less than 25 years for the marriage to be valid. If the gap is more than 25 years then the marriage would be null and void. This would prevent old men purchasing and marrying young girls.
With the above exceptions, UCC can draw the clauses from the Hindu marriage act. The details can be worked out by rules made by Central Govt and empowering state Govts to override them.
Second Chapter: Divorce.
The divorce laws for non-Muslims are very equitable. The person can divorce his/her spouse only under certain specified conditions (like converting to another religion, illicit sex, becoming a sanyasi etc.) and that too the divorce can be granted only by family court which typically sits with the district judge. This provision shall be extended to all.
In case of Muslims a man can unilaterally divorce his wife. The talaq-e-biddat where a man can divorce his wife his instantly is banned whereas talaq-e-sunnat where a man can divorce his wife in 3 months is still in force. Due to this, Muslim women remain in a state of constant fear. All form of unilateral divorce should be banned.
The Jewish divorce law mandates the presence of respected persons of the community to be present in all divorce proceedings. Same can be extended to all religions where respected persons of the community must be invited to attend the divorce trial. Such a procedure will prevent divorces from happening.
Nikah Halala should be criminalized under rape laws of IPC. Any couple can remarry after divorce without any restrictions as is the case with non-Muslims today.
Divorce as a practice should be strongly discouraged. Indian tradition considers marriage a samskara and a union lasting not only for this life but for next seven births. In a marriage, a couple take a vow before sacred fire, all devatas, their kula-devi or kula-devata, Vishnu-Lakshmi, and their own ancestors to fulfill their sacred worldly duties. Such a vow is not meant to be broken. How to do that? We can take a leaf from Goa Civil Code. In case a couple sues for a divorce, then the property earned by the family (husband, wife, and children) after their marriage shall be equally divided among all. In the case of minor children, their natural guardian will be the custodian of the property till they become major. Such a provision will incur huge financial costs and hence discourage divorces. Today, all non-Muslims have right to maintenance which makes it affordable for the earning partner to sue for a divorce.
Barring Muslims, the divorce laws are similar for all communities. With the above exceptions, UCC can draw the clauses related to divorce from the Hindu marriage act.
Third Chapter: Inheritance.
Inheritance is of 2 types: Testamentary (where a person dies with a will) and Intestate (where a person dies without a will).
In the case of Testamentary succession, we can take a leaf from Shariat. A person can grant only 1/3rd of his/her property through will and that too only those who are not his/her legal heirs. This ensures that no child can overly influence his/her parents to take away extra property. Also in case parents are dissatisfied, they cannot deprive their child completely. This should be applied to all with the modification: a person can give away more than one third of his/her property in form of will subject to the written consent of all closest legal heirs.
However Muslims can give property to anyone by means of “Hiba” or “Gift”. Hiba can be executed even orally and without payment of stamp duty. Here, Oral Hibas should be prohibited and stamp duty paid for any Hiba to be executed.
Today, the Testamentary succession for all non-Muslims is governed by Indian succession Act. This can be extended to all.
The Intestate inheritance is similar across all communities except Muslims. There are subtle differences across Hindu and Christian laws. For e.g., after a Christian man dies 1/3rd of his property shall go to his wife and rest divided among lineal descendants. Whereas among Hindus, if a man dies then his wife, mother and lineal descendants will get equal share.
The Hindu succession act also defines tiers of relatives. For e.g., Wife, children and their descendants belong to Class 1. Father Belong to Class 2. Brother, sister belong to next and so on. Relatives of higher entry will overrule the ones at a lower entry.
One change is needed here. First, After the death of a male, the Mother is listed as a Class I legal heir along with Wife, Children and grand children. Though it may not have happened, this could be the scope of disputes. Say a man dies leaving his mother, wife and one kid. His mother will inherit 1/3rd of the wealth. If the man has brothers and sisters then they are legal heirs will hence inherit the wealth of the deceased man. So, Mother should be listed as Class I legal heir if the man has no lineal descendants along with wife. If the man has kids or grand-kids then mother should be listed as a Class II Legal heir along with father.
The above provisions of Hindu Succession Act can be applied to all. This will benefit the Muslims the most because Shariat inheritance law is extremely complex and illogical. For e.g., after a man dies 1/6th of his property will go to his father, 1/6th will go to his mother, 1/8th to his wife, 1/3 to his son if there are no daughters. If this doesn’t become 100% the remaining property will be further divided again. Such a law will help reduce property disputes among Muslims. Also Muslim women don’t have equal inheritance rights as their brothers. Such a provision shall ensure equality between men and women.
Only Hindus can form Undivided families and that helps them to save taxes, other religions cannot. Hindu Succession Act makes provisions for the same. I would suggest refurnishing the concept “Hindu Undivided family” to “Indian undivided family” and extend it to all religions. If non-Hindus want to form one, they can do that without any restriction and can save taxes.
Shariat also has a good concept “Shufa”. Say a joint property gets partitioned among siblings. In case a sibling wants to sell his/her share, other siblings get first right to purchase. This provision will prevent outsiders from entering in to a family property without the permission of other members of the extended family. This provision can be extended to all.
Shariat inheritance also has another good feature. Once a person dies, his/her funeral expenses and loans are deducated from his/her property and then the property is divided among legal heirs. Hindu law doesn’t have this feature. So people sometimes in collusion with corrupt bank officials take loans in the names of their old parent(s) and after the parent dies banks lose their loans. Such provision can be useful in stopping such fraud and also keep banking ecosystem healthy.
People are sensitive about conversion. A person whether a Hindu, Christian, Parsi, Jew or Muslim converting to another religion can be a ground of dis-inheritance or divorce.
With the above exceptions, UCC can draw clauses from the Hindu Succession Act.
Fourth Chapter: Maintenance.
Hindu Maintenance law is liberal. A non-earning spouse, minor son, unmarried daughter, dependent parents, and non-earning daughter-in-law is eligible for maintenance. Unlike Muslims, a man cannot just dump his wife and children.
But, since we are proposing for a division of property earned after marriage equally among husband, wife and children equally, maintenance for spouse or Children is not needed.
There shall also be a provision for one time compensation which can be paid in lump sum or instalments instead of partition of property which the Court can decide.
But maintenance for old parents must be legally preserved. Son/daughter-in-law and daughter/son-in-law shall be obliged by law to maintain the old parents or in-laws equally.
With the above exceptions, UCC can draw all the clauses from the Hindu maintenance act.
Fifth Chapter: Minority and Guardianship.
UCC can draw all clauses from Hindu Minority and Guardianship Act.
Sixth Chapter: Adoption.
Many people don’t know that Hindus have a law to adopt whereas the non-Hindus had no law to adopt till passing of Juvenile Justice (Care and Protection of Children) Act, 2015. Hindus have their own adoption act.
The clauses of Juvenile Justice (Care and Protection of Children) Act can be incorporated in UCC and applied to all.
Seventh Chapter: punishments
This chapter shall contain punishments for various offences. Listing them down
- Practicing Child marriage
- A non-licensed Solemnizer solemnizing marriages (Same as Christian law)
- Practicing polygamy or polyandry
- Practicing Nikah-Halala
- Taking or demanding Dowry
- Running illegal adoption rackets.
- Others if any
Eighth Chapter: Repeals
Once UCC is in place, at least 15-16 laws can be repealed. All of them shall be listed here.
This shall consist of sample forms for issuance of marriage certificate for different religions. The central and state Govts shall be allowed to modify this though a gazette notification.
This shall consist of criteria for issuing license to marriage Solemnizers. The central and state Govts shall be allowed to modify this though a gazette notification.
What will be the benefits if a UCC as described above is implemented.
- Entire India will be ruled by one law and will further unify Indians.
- This law of maybe 300 pages will replace nearly 15 laws spanning over thousands of pages. This will improve the efficiency of judiciary greatly as a judge or lawyer must study just 300 pages.
- The best practices of all existing law codes will be applied to all.
- The discriminatory practices towards women and children especially among Muslims will be done away with.
- With the Hindu priests and temples getting legal power to solemnize marriages and issue marriage certificates, their influence on Hindus will increase. Hindus are becoming irreligious, which will reduce.
- Muslims will be freed from the python grip of Qazis and Muftis.
- Muslim women will have equal rights as men and hence Muslim community will progress.
- The Govt and Judiciary will have more control over people’s lives which is needed.
Why there is opposition?
- The Shariat Application Act, 1937 gives sweeping powers to Qazi and Muftis. Literally, the Muslims have their own parallel judiciary with Qazis at bottom, Muftis at middle and Ulema at top. Madrassas train students to become Qazis. With UCC, all the entire Qazi and Madrassa ecosystem will vanish. Hence, the major opposition is coming from the Islamic clergy. Muslims after being freed off the python grip of Qazis and Muftis will progress fast.
- Christians are opposing with the apprehension that the rights of Church to solemnize marriages will be taken away. The proposed law won’t do any of that. If they can be assured, then their opposition will stop.
- Some Hindus are opposing it just due to apprehension of losing something. Once the draft law is available their opposition will surely stop.
In nutshell UCC will benefit all sections on Indian society excepting the Mullahs, Muftis, Qazis and Ulema.
I would recommend the law commission to come up with a draft law and open it for discussion and solicit feedback. If that happens most opposition (except from Mullahs) will stop and UCC will become a reality.
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