Research Project Front Page.docx.d.docxmnj(1)

8/11/2019 Research Project Front Page.docx.d.docxmnj(1)

1/41

HIDAYATULLAH NATIONAL LAW UNIVERSITY

AARREESSEEAARRCCHHPPRROOPPOOSSAALLFFOORRDDOOCCTTRRIINNAALLRREESSEEAARRCCHH::

UUNNIIFFOORRMMCCIIVVIILLCCOODDEEAANNDDSSEECCUULLAARRIISSMM::AACCRRIITTIICCAALL

AANNAALLYYSSIISS

RREESSEEAARRCCHHMMEETTHHOODDAANNDDLLEEGGAALLWWRRIITTIINNGG

SSUUBBMMIITTTTEEDDBBYY::

DDEEVVEESSHHMMIISSHHRRAA

RROOLLLLNNOO..--1155

LLLL..MM--IITTRRIIMMEESSTTEERR((22001144--1155))

SSUUBBMMIITTTTEEDDTTOO::

DDRR..KKAAUUMMUUDDHHIICCHHAALLLLAA

ASSITANT PROFESSOR

DDAATTEEOOFFSSUUBBMMIISSSSIIOONN::3300TTHH

SSEEPPTTEEMMBBEERR,,22001133


2/41

CERTIFICATE

This is to certify that the project entitled Uniform Civil Code and seculari sm:

A Critical Analysissubmitted by Devesh Mishra is a record of the candidatesown work carried out by him under my supervision. The matter embodied in

this project is original and has not been submitted for the award of any other

degree.

DATE: (Dr. Kaumudhi Challa)

Assistant Professor


3/41

DECLARATION

I, Devesh Mishra, student of LL.M. 1st Trimester of Hidayatullah National Law

University, Raipur hereby declare that the project work entitled Uniform civil

code and secularism: A critical analysis submitted to the Hidayatullah

National Law University, Raipuris a record of an original work done by me

under the guidance of Dr. Kaumudhi Challa, Assistant Professor, Hidayatullah

National Law University, Raipur.

Date: Devesh Mishra

Roll No. 15


4/41

ACKNOWLEDGEMENT

Apart from the efforts of me, the success of this project depends largely on the

encouragement and guidelines of many others. I take this opportunity to express

my gratitude to the people who have been instrumental in the successful

completion of the project.

I would specially like to thank my teacher, mentor Dr. Kaumudhi Challa

without whose constant support and guidance this project would have been a

distant reality. Her help and support gave me the strength to complete this

project with complete understanding.

This work is an outcome of an unparallel infrastructural support that I have

received from Hidayatullah National Law University, Raipur. That is just an

umbrella under which shadow it would have been possibile to complete this

project.

It would never have been possible to complete this study without an untiring

support from my family, specially my parents.

I would like to thank my friends and well-wishers.


5/41

TABLE OF CASES


6/41

ABBREVIATIONS

AIR - All India Reporter

Del - Delhi

Edn. - Edition

i.e. - That is

No. - Number

Ors. - Others

p. - Page

s. - Section

S.C.R - Supreme Court Reporter

SC - Supreme Court

SCC - Supreme Court Cases

US - United States

UK - United Kingdom

V - Versus

Vol. - Volume

UCC - Uniform civil code

Govt. - Government

Eg - Example


7/41

TABLE OF CONTENTS

Declaration ................................................................................................................................

Certificate..................................................................................................................................

Acknowledgement...................

List of abbreviations ................................................................................................................

Introduction..

Legal research..

Research methodology

The project on Uniform civil code and secularism: A critical analysis....

Problem ...

Rationale..

Objective..

Review of literature.

Hypothesis ...

Concept

Research design

Types of data

Chapterization..

Major findings.

Contribution of the study.

Limitation.....

Bibliography.....


8/41

UNIFORM CIVIL CODE AND SECULARISM: A CRITICAL

ANALYSIS

INTRODUCTION:

The research project deals with the research about the problems arising

on unavailability of a uniform civil code. It discusses about the problems country and the

citizens facing nowadays. India is a country of multi-religions and multi languages. Number

of people is governed by their personal laws. There are different codes for different

communities like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and

Maintenance Act, Hindu Guardianship Act. Muslims and Christians are governed by their

personal laws. There are also many different sects and they are ruled by their customs,

traditions etc. These codes are based on different personal laws of different religious

communities, but this classification based on religion faces many difficulties, whenever the

question arises on matter of succession, marriage, divorce, inheritance, adoption,

maintenance, guardianship, custody of children etc.

Uniform Civil Code is not opposed to secularism and will not violate Article 25 and 26.

Article 44 is based on the concept that there is no necessary connection between religion and

personal law in a civilized society. Marriage, succession and like matters are of secular nature

and, therefore, law can regulate them. No religion permits deliberate distortion.1The UCC

will interfere only in matters of inheritance, right to property, maintenance and succession,

there will be a common law.

Uniform Civil Code:

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.

As things stand, there are different laws governing these aspects for different communities in

India. Thus, the laws governing inheritance or divorce among Hindus would be different

from those pertaining to Muslims or Christians and so on.

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


9/41

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.

Uniform civil code and Indian constitution:

Ar ticle 44, which is one of the "directive principles" laid down in the Constitution says: "The

State shall Endeavour to secure for the citizens a uniform civil code throughout the territory

of India." As Ar ticle 37of the Constitution itself makes clear, the directive principles "shall

not be enforceable by any court". Nevertheless, they are "fundamental in the governance ofthe country".This shows that although our constitution itself believes that a Uniform Civil

Code should be implemented in some manner, it does not make this implementation

mandatory. Hence, the debate on having a uniform civil code for India still continues.

Like the concept of secularism, justice , liberty, equality and fraternity all are essential and

inseparable part of Indian Constitution and along with clarity and security are also considered

as essential part of the constitution and as stated earlier prevalence of different personal laws

ruins the clarity of laws and creates apprehensions in the mind of different religions so the

very purpose of the Constitution is not fulfilled and there is a necessity for the formation of

Uniform Civil Code. Providing justice without equality to the individual will not fulfill the

very basic purpose of the Constitution. It will create such a situation in which a person have

the power to go to courts for infringement of his rights but the basis of this infringement is

equality itself which is not provided to individual.

Secularism:

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 religion is only concerned with relation of man with God. It means

that religion should be not interfering with the mundane life of an individual. The process of

secularization is intimately connected with the goal of uniform civil code like a cause and

effect. In S.R. Bommai v. Union of India2, as per Justice Jeevan Reddy, it was held that

2(1994) 3 SCC 1


10/41

religion is the matter of individual faith and cannot be mixed with secular activities can be

regulated by the State by enacting a law.

In India, there exists a concept of positive secular ism as distinguished from doctrine of

secularism accepted by America and some European Statesi.e., there is a wall of separation

between religion and State. In India, positive secularism separates spiritualism with

individual faith. The reason is that America and the European countries went through the

stages of renaissance, reformation and enl ightenmentand thus, they can enact a law stating

that State shall not interfere with religion. On the contrary, India has not gone through these

stages and thus, the responsibility lies on the State to interfere in the matters of religion so as

to remove the impediments in the governance of the State.

The word secular is not precise and has different shades in different contexts. It is opposed to

religion in the sense that the secular State cannot be a religious State. In this context, some

feel that a secular State is an anti-religious State. The State, which has no religion of its own,

does not necessarily mean an anti-religious State. It may be a State respecting all religions.

Though the term secular was added to the preamble by way of 42nd Constitutional

Amendment, secular spirit permeated every fiber of the Constitution from its very inception.

This very secular spirit formed the foundation of fundamental right to equality before law3.

Personal laws:

The personal law 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 Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the

national unity and integration, some other communities would not, though the Constitution

enjoins the establishment of a "Uniform civil Code" for the whole of India.4

The personal laws of the major religious communities had traditionally governed marital and

family relations, with the Government maintaining a policy of non interference in such laws in

the absence of a demand for change from individual religious communities5.India is a land of

diverse religions Hindus, Buddhists, Jains, Christians, Muslims, Parsees, and Sikhs form the

3art 14 of the Indian constitution: right to equalty before law.

4Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others, AIR 1995 SC 1531

5 United Nations, report of the Committee on the Elimination of Discrimination Against Women, Supp. No.

38,A/55/38,22nd Session 17 Jan -4 Feb 2000 and 23rd Session 12-30 June 2000,General Assembly Official

Records, New York,2000 at 8.Also see, Jyoti Rattan, Uniform Civil Code in India:A Binding Obligation UnderInternational and Domestic Law, 46 Journal of the Indian Law Institute 577, 577 (2004)


11/41

nation. Unity in diversity is the core feature of the Indian nation. Each community has its own

laws governing marriage and divorce, infants and minors, adoption, wills, and Succession. These

personal laws go with an individual across the states of India where they are part of the law of

the land, and the individual is entitled to have that individual's own personal law applied and not

the law which would be applied in the local territory.

Personal laws are statutory and customary laws applicable to particular religious or cultural

groups within a national jurisdiction. They govern family relations in such matters as marriage

and divorce, maintenance and succession. India is a secular country where every community is

allowed its own personal laws. Christians have the Indian Christian Marriage Act, 1872 and the

Indian Divorce Act 1869, Hindus have the Hindu Succession Act, 1925 hereinafter HSA, 1956

and the Hindu Marriage Act, 1955 hereinafter HMA, 1955] and so on. Muslim personal law,

based on the Sharia, is not codified. Since Muslims are governed by the Sharia, an Indian male

Muslim is entitled to have four wives at any time. It is interesting to note that after

independence, Pakistan Modernised its personal law and made it quite difficult for a man to

marry a second time. Tunisia and Turkey have actually abolished polygamy. In India, only

Muslim men may practice polygamy, and Hindu sons inherit greater shares of their parents'

estates than their sisters do. While one's religion determines which law will apply to him or her

regarding marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession.6

Uniform civil code hereinafter UCC of India is a term referring to the concept of an

overarching Civil Law Code in India. A uniform civil code administers the same set of

secular civil laws to govern all people, even those belonging to different religions and

regions. This supersedes the right of citizens to be governed under different personal laws

based on their religion or ethnicity. Such codes are in place in most modern nations. There is

no doubt that the idea of UCC is by and large, a child of independent India7.

Research Methodology:

The research methodology refers to a way to systematically solve the research problem. It

may be understood as a science of studying how research is done scientifically. It involves a

6

See id. at 104.7KIRAN DESTHA, UNIFORM CIVIL CODE IN RETROSPECT AND PROSPECT 2 (Deep & Deep Publication New Delhi

2002) (1995).


12/41

study of various steps and methods that a researcher needs generally to adopt in his

investigation of a research problem along with the logic behind them. It is a study of not only

of methods but also of explanation and justification for using certain research methods and of

the methods themselves. It includes in it the philosophy and practice of the whole research

process. In other words, research methodology is a set of rules of procedures about the way of

conducting research. It includes in it not just a compilation of various research methods but

also the rules for their application (in a given situation) and validity (for the research problem

at hand).

Definition:

Method is the way of doing something. Methodology is the science or study of a particular

subject. The concept of the research methodology is much wider. The method a researcher

followed in pursuing a research is called research methodology.

Research : Meaning and definition:

Research, in simple terms, can be defined as systematic investigation towards

increasing the sum of human knowledge and as a process of identifying and investigating a

fact or a problem with a view to acquiring an insight into it or finding an apt solutiontherefore. An approach becomes systematic when a researcher follows certain scientific

methods. Research means scientific and systematic re-examination of existing facts or

knowledge to ascertain whether the existing conclusion can be varied or not.

Research is original and fundamental contribution to the knowledge on any subject

on discipline leading for its advancement. It is a voyage towards truth. Investigation of every

kind which have been based on original sources of knowledge may be styled as research and

it may be said that without research no authoritative work have been written, no scientific

invention or discoveries are made, no theories of any value propounded.

According to Lundberg, research is the method sufficiently objective and

systematic to make possible classification, generalization and verification of the data

observed8.Every research has its own specific purpose, however, the purpose or objectives

of research may broadly be classified as follows:

8Dr. S. R. Myneni, Legal Research Methodology, 2

ndEd., 2003


13/41

To familiarize with a phenomenon or to acquire new insights into an existing fact;

To determine the frequency with which something occurs or with which it is

associated with something else;

To portray accurately the characteristics of a particular object, situation or group;

To test a hypothesis of a causal relationship between two objects; &

To separate fact from speculation and wish.

Importance of Research:

All progress is born of inquiry. Doubt is often better than overconfidence, for it leads

to inquiry, and inquiry leads to invention is a famous Hudson Maxim in context of which the

significance of research can well be understood. Increased amounts of research make

progress possible9. Following are the importance of research:

.

Research provides the basis for nearly all government policies in our economic

system. For instance, governments budgets rest in part on an analysis of the needs

and desires of the people and on the availability of revenues to meet these needs. The

cost of needs has to be equated to probable revenues and this is a field where research

is most needed. Through research we can devise alternative policies and can as well

examine the consequences of each of these alternatives.

Research has its special significance in solving various operational and planning

problems of business and industry. Operations research and market research, along

with motivational research, are considered crucial and their results assist, in more than

one way, in taking business decisions. Market research is the investigation of the

structure and development of a market for the purpose of formulating efficient

policies for purchasing, production and sales. Operations research refers to the

application of mathematical, logical and analytical techniques to the solution of

business problems of cost minimization or of profit maximization or what can be

termed as optimization problems. Motivational research of determining why people

behave as they do is mainly concerned with market characteristics. In other words, it

9C.R.Kothari, Research Methodology,Second Revised Ed., 2004


14/41


15/41

Dowell and Co. Ltd. v. Commercial Tax Off icer12, Justice Chinnapa Reddy presented his

investigation and analysis of cases of tax avoidance in his separate judgment. It is a research

report of tax avoidance in terms of legal methodology. Research area in law is related to pure

law or law in relation to society.13

According to J Myron Jacobstein and Roy M Mersky, Legal Research is the process of

identifying and retrieving information necessary to support legal decision making. In its

broadest sense, legal research includes each step of a course of action that begins with an

analysis of the facts of a problem and concludes with the application and communication of

the results of the investigation.14

Therefore, legal research can be said to be a research in the field of law and legal institutions.

Legal Research is helpful to understand the problems in society and the changes required.

Importance of Legal Research:

Legal Research has the following importance

Only due to legal research one gets to know about the problems in society and the

need for law to tackle them

It also helps to identify the drawbacks in law and the modifications required.

It helps the Government to formulate plans and policies to take care of the needs of

the people.

The Legislature, through legal research can take steps to make laws to take care of the

needs of the society. This is in terms of amending, modifying or making an entirely

new law.

It helps the Executive/Administrative Authority to judge the laws that will be

implemented.

It helps the students of law to enhance and develop their knowledge.

It is helpful and useful for Academicians and also it increases knowledge of law.

Socio-Legal Research :

12 (1985) ITR Vol. 154 p. 148-172

13

Supra 2, p. 1714 J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed. (Foundation Press, 2002)

p. 1.


16/41

Law is an important variable in any social investigation. Researchers cannot do

anything in sociological research if they do not know at least the basics of law, legal system

and institutions. Similarly, a legal researcher cannot do justice to the legal inquiry if he does

not know about the mechanics of social research methods.

Law is not for law sake. Law is an instrument for social control. It originates and

functions in a society and for society. The need for a new law, a change in existing law and

the difficulty that surround its implementation cannot be studied in a better manner without

the sociological enquiry.

Research Problem:

A research problem is the first step and the most important requirement in the research

process.

The term problem comes from the Greek word proballein which means anything through

forward; a question proposed for solution; a matter stated for examination.15

There are some of the definitions of the term problem given by many authors traced below:

R. S. Woodworthdefines problem as A situation for which we have a ready and successfulresponse by instinct or by previously acquired habit. We must find out what to do.16

According to Cohen and NagalA problem in simple words is some difficulty experienced

in theoretical and practical situation. The truth is to be found by studying the facts and it

guides our research and the facts which are being studied by the researcher would help to

remove the difficulty.17

John Deweystates, The need of clearing up confusion, of straightening out an ambiguity, of

overcoming obstacles, of covering the gap between the things as they are and as they may be

when transformed, is, in germ, a problem.18

Importance of Problem in research:

15Supra 2, p. 90

16

Supra 2, p. 9017Ibid

18Ibid


17/41

It gives the proper guidance to the researcher.

It helps the researcher to complete his research within the time.

It helps to motivate the researcher.

It helps the researcher to reach a conclusion

The current research project has such problem:

The problems which are there in proposed research project are as following:

confl ict between personal laws and the in terest of the communi ty at large.

Article 44of theDirective Principles in India sets its implementation as duty of the State. It

talks about interest of community at large. And on other hand Apart from being an important

issue regardingsecularism in India, it became one of the most controversial topics in

contemporary politics during theShah Bano case in 1985. The debate then focused on

theMuslim Personal Law,which is partially based on theSharia law and remains unreformed

since 1937, permittingunilateral divorce andpolygamy in the country.

There is dif fi culty in distributi on of justice; hence decisive steps were taken towards national

consolidation in form of idea of uniform civil code which was for the first time mooted

seriously in the Constituent Assembly in 1947 but the problem still remains same. There is

no unif ormi ty of l aws appli cable to marital relation though as far as uniform legislation is

concerned, we have almost covered every aspect of law except matrimonial laws. As per the

term secular used in the preamble of Indian constitution it becomes necessary to form a

uniform civil code because many laws are there but the women are dominated not by secular

laws, not by uniform civil laws, but by religious laws.

The womens rightsare not being equally protected.Research project deals with in absence

of uni form civil code uni lateral divorce and polygamy is permi tted in Muslim personal

laws.

Rationale:

Rationale is a reasoned exposition especially one defining the fundamental reasons for a

course of action or belief etc. it may also be called as the statement of reasons or principles.
http://en.wikipedia.org/wiki/Directive_Principles_in_Indiahttp://en.wikipedia.org/wiki/Secularism_in_Indiahttp://en.wikipedia.org/wiki/Shah_Bano_casehttp://en.wikipedia.org/wiki/Shah_Bano_casehttp://en.wikipedia.org/wiki/Muslim_Personal_Lawhttp://en.wikipedia.org/wiki/Sharia_lawhttp://en.wikipedia.org/wiki/Divorce_in_Islamhttp://en.wikipedia.org/wiki/Divorce_in_Islamhttp://en.wikipedia.org/wiki/Polygamy_in_Indiahttp://en.wikipedia.org/wiki/Polygamy_in_Indiahttp://en.wikipedia.org/wiki/Polygamy_in_Indiahttp://en.wikipedia.org/wiki/Divorce_in_Islamhttp://en.wikipedia.org/wiki/Sharia_lawhttp://en.wikipedia.org/wiki/Muslim_Personal_Lawhttp://en.wikipedia.org/wiki/Shah_Bano_casehttp://en.wikipedia.org/wiki/Secularism_in_Indiahttp://en.wikipedia.org/wiki/Directive_Principles_in_India


18/41

The rationale of a study explains why the study is required to be done. It provides for the

need and importance of research. A rationale is required before beginning any sort of

research project.

Rationale of the current research project:

The researcher doing research on Uniform civil code and Secularism: a critical analysis.

The main motive of doing this research is regarding unifying all the religions in a code i.e.

Uniform civil code in place of various acts and personal laws which are there related to ones

own religion. Being a multi-religious country India has many of the problems to face every

time as in the courts of India there are so many cases can be seen which are pending and

coming continuously related to marriage, divorce, adoption and maintenance etc. The samehappens with each religion. Therefore such kind of research to take the legislature in a well

set mind becomes rationale or very important to deal with the problem which are there in

India regarding personal laws.

Objectives of the research:

Meaning:

Objectives are the goals one sets to ascertain or to attain in the study. Since these

objectives inform a reader of what has been stated in the research work or what the researcher

wants to achieve through the study, it is extremely important to word them clearly and

specifically.

Objectives can begeneral or specific. The general objective of the study states what

the researcher expects to achieve in general terms. Specific objectives break down the

general objective into smaller, logically connected parts that systematically address the

various aspects of the problem. The specific objectives should specify exactly what the

researcher will do in each phase of his study, how, where, when and for what purpose. It is a

specific result that a person or system aims to achieve within a time framework.

Importance of Objectives:-

The objectives should be expressed in such a way that the wording clearly, completely and

specifically communicates to the readers their intention. There is no place for ambiguity, non-

specificity or incompleteness, either in the wordings of the objectives or in the ideas theycommunicate.


19/41

Objectives of the current research project:

The main objectivesof this research projectare:-

To find out whether there are sufficient laws giving equal protection to womens rights.

To study the personal laws of India.

As per the term secular used in the preamble of Indian constitution it becomes

necessary to form a uniform civil code because many laws are there but the women

are dominated not by secular laws, not by uniform civil laws, but by religious laws.

To know whether we ensure equality, unity and integrity of the nation.

To find whether there is justice provided to both men and women.

Review of literature:

Meaning:

Once the research problem is formulated, the researcher needs to undertake an extensive

survey of literature connected with, related to, and/or having bearing on, his research

problem. This is the process whereby the researcher locates and selects the references that are

relevant for his inquiry.

According to Fink, A literature review is a systematic, explicit and reproducible method for

identifying, evaluating and synthesizing the existing body of completed and recorded work

produced by researchers, scholars and practitioners.19

Importance of Review of Literature:-

Literature review enables the researcher to know what kind of data has been used, what

methods have been used to obtain the data, and what difficulties the earlier researchers in

collecting and analyzing the data have faced.

Review of literature regarding the current project:

The researcher while doing research got help from the following books and literatures:

19Ibid


20/41

Myneni S.R., Legal Research Methodology, Allahabad Law Agency second Edn.

Reprint2003; In this book the author has tried to explain the meaning of research,

what is a research problem, the objectives of research, what is a research problem

infact what is a legal research.

Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.

Reprint 2003; In this book the author has tried to explain the modes of legal research,

the process of research, sources of data and the rationale of research and other topics

as to what is the importance of legal research.

Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013; In

this book the author has defined the research design and how to carry a research

project and what all steps are required for doing a research project.

J.N.Pandey, M.P.Jain The constitutional Law of IndiaIn this book, the author

has explained uniform civil code through case laws as well the provisions of equality,

religious freedom etc.

J. Myron Jacob stein and Roy M. Mersky, Fundamentals of Legal Research, 8th

ed. (Foundation Press, 2002) helped me to understand what is legal research in easy

way.

Hypothesis:

It is an idea formed before the researcher.When the researcher doing research can

come to an idea that this can be a conclusion of this research.

Hypothesis is derived from two words: hypo means under, and thesis means an

idea or thought. Hence, hypothesis means idea underlying a statement or proposition

Idea which is beforehand or prior to the research is known as hypothesis.

Hence hypothesis can be defined as any supposition or mere assumption which we

make in order to endeavour to deduce conclusions in order to deduce conclusions in

accordance with the facts which are known to be real under the idea that if the conclusions to

which the hypothesis leads are known truths, the hypothesis itself either must be or likely to

be true.20

The hypothesis for a research has been defined by various authors in the following ways:-

20Ibid


21/41

The Websters International Dictionarygives the meaning of the term hypothesis

as a proposition, condition or principle which is assumed perhaps without belief, in

order to draw

out its logical consequences and by this method to test its accord with facts which are known

or may be defined.21

As per Goode and Hatt, Hypothesis is a proposition which can be put to a test to

determine its validity.22

According to Coffey, A hypothesis is an attempt at explanation, a provisional

supposition made in order to explain scientifically some facts orphenomenon.23

Cohen and Nagelsay, We cannot take a single step forward in any inquiry unless

we begin with a suggested explanation or solution of the difficulty which originated it.

Such tentative explanations are suggested to us by something in the subject matter and

by our previous knowledge. When they are formulated as propositions, they are called

hypothesis.24

Hypothesis to the current research project:

India is a republic of secular state but it has positive secularism unlike U.S.A. and other

European countries that is why the problems arising because there is no separate wall

between state and religion like America. So whenever state starts codifying uniform civil

code it has to interfere in the matter of citizens religionwhich can not be as per the concept

of secular state relies in the preamble of Indian constitution.

Actually after reviewing all the literature, judicial cases, debates and the personal laws

available to the researcher related to the proposed research project, the hypothesis is: Our

society is not up to that standard which can utilize the Uniform civil code and thus still

UCC is awaited to be done. What is the reason behind it as the researcher observed India is a

multi religion country. Allot of cultures are there and such culture, tendency and the

behaviour of the citizens is full of diversity. Though we say India offers unity in diversitybut

not in all respect otherwise uniform civil code could have been enacted long back.

Constitution makers added this clause of uniform civil code as DPSP but have not made the

21Supra 28, p. 74

22

Supra 33, p. 15623Ibid

24Supra 2, p. 96


22/41


23/41

Shri K.M. Munshi said that the whole object of this Article is that as and when the

Parliament thinks proper or rather when the majority in Parliament thinks proper an

attempt may be made to unify the personal law of the country. The Chairman of the

Drafting Committee, Mr. B.R. Ambedkar while replying to the questions on the

provision of the uniform civil code in the Constituent by the minority community it

was intended to have a code which provided for uniformity of law in matters of

marriages, divorce, succession etc. irrespective of religion, community etc.Mr. M.C.

Chagla, a former Minister while making a vehement plea for uniform civil code

wrote, Article 44 is a mandatory provision binding the government and it is

incumbent upon it to give effect to its provision. The Constitution was enacted for the

whole country, and every section and community must accept its provision and its

directives.26

The UCC has been permanently associated in the Indian mind with opposition by the

Muslims. It was rightly pointed out in the constituently assembly that mot all Hindus

were in favour of UCC .They felt that the personal law of inheritance, succession, etc.

is really a part of their religion. If that were so, Indian women can never be given

equality with a man who is enshrined in art. 14 of the Constitution. Art. 15(1)

provides that the state shall not discriminate against any citizen on grounds only of

religion, race, caste, sex, and place of birth or any of them27

Secularism: the concept in india:

The Republic of India is a Secular State

The constitution of India stands for a secular state. The state has no official religion.

Secularism pervades its provisions, which give full opportunity to all persons toprofess, practice and propagate the religion of their choice.

Components of Secularism

Equality as incorporated in Article 14.

Prohibition against discrimination on the grounds of religion, caste etc; as

incorporated under Article 15 and 16.

26

(M.C. Chagla,Plea for Uniform Civil Code, Weekly Round Table, March 25, 1973, p. 7.)27 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 904 (5th ed., Wadhwa and Company Nagpur New Delhi 2008)

(196


24/41

Freedom of speech and expression and all other important freedoms of all the

citizens are conferred under Articles 19 and 21.

Right to practice religion is conferred under Articles 25 to 28.

Fundamental duty of the state to enact uniform civil code treating all thecitizens as equal is imposed by Article 44.

Basic concept of the research project:

As per the provision of art 44 which is enumerated in directive principals of state policy: The

state shal l endeavour to secure for the citizens a uni form civi l code thr oughout the terr i tory

of india the state is required to secure for the citizens a uniform civil code.

Under the Preamble to the Constitution of India the people of India have solemnly

resolved to secure all its citizens, besides, social, economic and political justice;

equality of status and opportunity, assuring the dignity of the individual and the unity

and integrity of the nation. Article 14 (as a fundamental right) guarantees equality

before the laws and equal protection of laws. Under the Article 15 it is guaranteed that

the State shall not discriminate against any citizen on grounds of religion, caste, sex

etc. Article 13 provides that all laws in force in the territory of India before the

commencement of the constitution, so far as they are inconsistent with the provisions

of this part, shall, to the extent of such inconsistency be void. And Article 44 of the

Directive Principles of State Policy provides that the State shall endeavour or secure

for the citizens a Uniform Civil Code throughout the territory of the country. In view

of the above provisions the questions arise as to whether a Mohammedan woman

married or divorced who is a citizen of India gets equality of status and dignity,

treated equally before the laws and not discriminated only on the ground of sex, under

the Muslim Personal Law (Sha3riat) Application Act, 1937 and whether the same isnot inconsistent with the fundamental rights guaranteed under the Constitution and

not void under Article 13 of the Constitution? If so, how long should the country wait

to enact a Uniform Civil Code to secure and protect all that and the unity and the

integrity of the nation?

Research Design:

Meaning:


25/41

After the identification of a research problem the preparation of a research design follows

subsequently. It is basically prepared by the researcher after defining and formulating the

research problem, reviewing the literature and developing the working hypothesis. It is an

outline or a conceptual structure and within its limits the research work is supposed to be

carried out. The research design is prepared with an object of collecting relevant data with the

minimum efforts and with minimum expenditure, just to control wasteful expenditure.

Research design is a plan, structure and strategy of investigation conceived so as to obtain

answers to research questions and control variance.

According to Pauline V. Young, A research design is a plan of action, a plan for collecting

and analysing the data in an economic, efficient and relevant manner.

NATURE AND KIND OF RESEARCH

The legal research can mainly be divided into two types namely Doctrinal and Non-Doctrinal.

a) Doctrinal Research- This type of research involves analysis of case laws, ordering

and systematizing legal propositions and study of legal institutions, but it also createslaw and its major tool through legal reasoning or rational deductions. This kind of

research is carried on by all the Judges, lawyers and law teachers.

The essential characteristics of doctrinal research are:28- (1) the scholar organizes his

study around legal propositions; and (2) appellate court reports and other conventional

legal materials readily accessible in a law library are the principal, if not the sole sources

of data from which the scholars conclusions are drawn. The bulk of legal research is a

product of this approach.

b) Non-Doctrinal Research- As opposed to doctrinal research, this type of research is

carried on by collecting or gathering information by first hand study of the subject. It

relies on observation or experience without due regard to any theory or system and

hence is also called experimental type of research. In this type of research, the

researcher attempts to investigate the effect or impact by actual examination or

observation of the functioning of law and legal institutions in the society.

28Supra 10, p. 33


26/41

The current research topic deals with doctr inal research.

Sources of data:

Data:

Meaning:

Any research is based upon various types of information. It is not possible to conduct and

complete a research without collecting and considering different kinds of information.

Different types of researches require different types of information. Once the researcher has

decided the research and sampling designs, his next work is of collecting data.

Definition:

Collection of data is regarded as fascinating phase of research. Though the collection and

handling of information, the researcher begins to feel the actual excitement of the research.A

datum is what is observed or is manifest.

And the sources of data collection is of two type

(i) primary source

(ii) secondary source

For Doctrinal Research, there are the following sources of data:-

a) Primary Data- The Primary Sources of Law are those authoritative records of law

which are made by law-making bodies. These records include29: statutes, case laws,

precedent, judgments, codifications.

b) Secondary sources- It is also called Documentary Source of Data Collection. Such

data can be obtained from Libraries or from the Internet. These include the Text

Books of law as well as the Websites, Articles, Specialised Law Reports, Academic

Law Journals, Law Libraries, etc. referred for collecting data.

29Supra 2, p. 141


27/41

These may be: reports, government publications, journals, publication of professional

research organizations, newspapers, books, Magazines etc.

For Non-Doctrinal Research,

a) Primary Sources of datais the data collected from the field. The method for collecting

primary data is:- Interview Method, Questionnaire Method, Observation Method.

b) Secondary Sources of data collected include:- Books, Journals, Acts passed by

Parliament, Published or unpublished materials (such as Census Reports, Reports of

Governmental and/or Non-Governmental Agencies, etc.)

The current doctrinal research involves the Primary as well as Secondary Sources of

Data: wherein:

Primary sources:

Constitution of india,1950

Hindu succession act,1956

Hindu marriage act,1955

Special marriage act,1954

Muslim Women's (Protection of Rights on Divorce),1986

Criminal procedure code, 1973

Judicial decisions:

Begum Shah Bano alias Saira Bano v. A.M. Abdul Gafoor30

Mangila Biwi v. Noor Hussain31

Sarla mudugal v. union of India32

Secondary sources:


Reprint2003

Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.

Reprint 2003

Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013;

30

AIR 1987 SC 110331(AIR 1992 Cal 92)

32(1995) 3 SCC 635
http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986


28/41

J.N.Pandey, The constitutional Law of India

M.P.Jain, The constitutional Law of India

TheAll India Women's Conference (AIWC)

Hindu Code Bill

Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil

Code

Muslim law; prof. R.K.Sinha

Hindu law; Dr. Paras diwan

Chapterization:

The proposed research work has the following chapters namely:

Chapter 1: I ntroduction- The researcher has introduced the topic UNIFORM CIVIL

CODE AND SECULARISM: A CRITICAL ANALYSIS with its historical background.

Research Methodology- Researcher has given the Research Methodology (doctrinal

method of research) followed in the research.

Chapter 2: Un if orm civil code: Three stage mechanism

Chapter 3: legislative reforms-

Ef for ts made on the part of the government.

Chapter 4: A cri tical review on available laws.

Chapter 5: Judicial in terpretation wi th r espect to Uni form civil code.

Contribution of study:

The study contributes in a manner to make the people in the society aware about the problem

arising on not having a uniform civil code and its adverse impact on the right to equality of

men and women both and also provides solutions in terms of enactment of the uniform code,

etc.

Limitation:

The research is done in prospect of India only.

UNIFORM CIVIL CODE: THREE STAGE MACHANISM
http://en.wikipedia.org/wiki/All_India_Women%27s_Conferencehttp://en.wikipedia.org/wiki/Hindu_Code_Billhttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://en.wikipedia.org/wiki/Hindu_Code_Billhttp://en.wikipedia.org/wiki/All_India_Women%27s_Conference


29/41

Renaissance

Reformation

Enlightenment

In India, there exist a concept of positive secularism as distinguished from doctrine of

secularism accepted by America and some European States i.e., there is a wall of separation

between religion and State. In India, positive secularism separates spiritualism with

individual faith. The reason is that America and the European countries went through the

stages of renaissance, reformation and enlightenment and thus, they can enact a law

stating that State shall not interfere with religion. On the contrary, India has not gone through

these stages and thus, the responsibility lies on the State to interfere in the matters of religion

so as to remove the impediments in the governance of the State. The word secular is not

precise and has different shades in different contexts. It is opposed to religion in the sense

that the secular State cannot be a religious State. In this context, some feel that a secular State

is an anti-religious State. The State, which has no religion of its own, does not necessarily

mean an anti-religious State. It may be a State respecting all religions.33

Eg : a) GOA AN INSPIRATION FOR UNIFORM CIVIL CODE

A UCC exists in the small state of Goa accepted by all communities. The Goa Civil

Code collectively called Family Laws, was framed and enforced by the Portuguese colonial

rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in

1961, the Indian State scrapped all the colonial laws and extended the central laws to the

territory but made the exception of retaining the Family Laws because all the communities in

Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed

regarding the disposal of immovable and movable property in the event of divorce or death.

During matrimony, both parents have a common right over the estate, but on dissolution, the

property has to be divided equally; son and daughters have the equal right on the property. As

the procedure involves compulsory registration of marriage, this effectively checks child and

bigamous marriage. The philosophy behind the Portuguese Civil Code was to strengthen the

family as the backbone of society by inculcating a spirit of tolerance between husband and wife

and providing for inbuilt safeguard against injustice by one spouse against the other.

Commenting that the dream of a UCC in the country finds its realisation in Goa, former Chief

33http://centreright.in/2011/10/need-for-uniform-civil-code-in-india-a-human-rights-perspective/#.Uk-

X59LbSYw


30/41

Justice of India Y.V. Chandrachud had once expressed hope that it would one day "awaken the

rest of bigoted India."34

c) Even Italy has one, as do the rest of the developed world

A CRITICAL REVIEW ON AVAILABLE LAWS

A futile attempt was made in the direction of uniform civil code by the judiciary

through the Shah Bano verdict. But the Government of India went ahead in passing

the Muslim Women (Protection of Rights on Divorce) Act, 1986 making sections

125-127, Criminal Procedure Code optional to divorce, Muslim Women muted law

cant be far ahead of the society which would lack social legitimacy. And for this, the

mandate of Article 44 is that The State shall endeavor to secure which recognizes the

fact that the different personal laws do exist in the country which needs to be uniform

in its applicability. The Constitution of India in Article 44 enjoins, The State shall

endeavor to secure for the citizens a uniform civil code throughout the territory of

India. It is 60 years or more, yet we have not able to attain that level of sophistication

to accept and adopt the Constitutional mandate.

The last fifty years have been a sad waste of time. There has been no collection of

relevant information about the numberless semi-visible groups and communities, no

exposure of the masses to the idea of the UCC. There has been no draft bill of it .The

words UCC have not been considered properly. Do we want a Uniform Civil Code or

a Common Code? Are these two same? Do we want to put together a Common Code

which borrows all that is best from existing personal laws in India. We have not put

our minds to these questions.

There is no clarity in the provisions of the constitution itself as preamblemakes India

a secular state as the term secularism added by the 42 nd amendment in the

constitution and on other hand for its governance state has to interfere in the personal

laws of the citizens as being a secular state it should not do this. And further more Our

Constitution guarantees freedom of conscience and free profession, practice and

propagation of religion and freedom to manage religious affairs by Articles 25 and

26. Article 44also has been very cleverly worded in as much as it does not say that

34Mohammad Ahmed Khan v. Shah Bano Begum ,AIR 1985 SC 945.


31/41

all personal laws should be abrogated and that the proposed uniform civil code

imposed on all citizens.

There are so many controversial debate and opinions as the researcher found

regarding Uniform civil code.

The Indian society is not up to that mark which can utilize UCC.

LEGISLATIVE REFORMS:

EFFORTS MADE ON THE PART OF GOVT.

The efforts of govt by way of legislative reforms can be seen in following way:

During British period:Indian Succession Act 1865, which was also one of the first

laws to ensure women's economic security, attempted to shift the personal laws to the

realm ofcivil.The Indian Marriage Act 1864 had procedures and reforms solely for

Christian marriages. There were law reforms passed which were beneficial to women

like theHindu Widow Remarriage Act of 1856,Married Women's Property Act of

1923 and theHindu Inheritance (Removal of Disabilities) Act, 1928,

The All India Women's Conference (AIWC) expressed its disappointment with the

male-dominated legislature and Lakshmi Menon said in an AIWC conference in

1933,[9]"If we are to seek divorce in court, we are to state that we are not Hindus,

and are not guided by Hindu law. The members in the Legislative assembly who are

men will not help us in bringing any drastic changes which will be of benefit to us."

The women's organizations demanded a uniform civil code to replace the existing

personal laws, basing it on the Karachi Congress resolution which guaranteed

gender-equality.

The Special Marriage Act, which gave the Indian citizens an option of acivil

marriage,was enacted first in 1872. It had a limited application because it required

those involved to renounce their religion and was applicable only to Hindus. The

later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs

and Jains to marry either under their personal law or under the act without

renouncing their religion as well as retaining their succession rights.
http://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Hindu_Widows%27_Remarriage_Act,_1856http://en.wikipedia.org/wiki/The_Hindu_Inheritance_(Removal_of_Disabilities)_Act,_1928http://en.wikipedia.org/wiki/All_India_Women%27s_Conferencehttp://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTEChavanKidwai200683.E2.80.9386-9http://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTEChavanKidwai200683.E2.80.9386-9http://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTEChavanKidwai200683.E2.80.9386-9http://en.wikipedia.org/wiki/Civil_marriagehttp://en.wikipedia.org/wiki/Civil_marriagehttp://en.wikipedia.org/wiki/Civil_marriagehttp://en.wikipedia.org/wiki/Civil_marriagehttp://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTEChavanKidwai200683.E2.80.9386-9http://en.wikipedia.org/wiki/All_India_Women%27s_Conferencehttp://en.wikipedia.org/wiki/The_Hindu_Inheritance_(Removal_of_Disabilities)_Act,_1928http://en.wikipedia.org/wiki/Hindu_Widows%27_Remarriage_Act,_1856http://en.wikipedia.org/wiki/Civil_law_(common_law)


32/41

After British period:

Hindu code bill: The first Prime Minister of theIndian republic,Jawaharlal Nehru,

his supporters and women members wanted a uniform civil code to be implemented

by this bill. The Hindu bill itself received much criticism and the main provisions

opposed were those concerning monogamy, divorce, abolition of

coparcenaries (women inheriting a shared title) and inheritance to daughters.

The Hindu code bill failed to control the prevalent gender discrimination. The laws

on divorce were framed giving both partners equal voice but majority of its

implementation involved those initiated by men. Since the Act applied only to

Hindus, women from the other communities remained subordinated. For

instance,Muslim women, under Sharia law, could not inherit agricultural

land.[14]Nehru accepted that the bill was not complete and perfect, but was cautious

about implementing drastic changes which could stir up specific communities. He

agreed that it lacked any substantial reforms but felt it was an "outstanding

achievement" of his time.

Thus, his vision of family law uniformity was not applied and was added to the

Directive principles of theConstitution.

TheSpecial Marriage Act, 1954, provides a form of civil marriage to any citizen

irrespective of religion, thus permitting any Indian to have their marriage outside the

realm of any specific religious personal law. 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.

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 this act polygamy was illegal, and inheritance and succession

would be governed by the Indian Succession Act, rather than the respective Muslim

Personal Law.

After the passing of the Hindu Code bill, the personal laws in India had two major

areas of application: the common Indian citizens and theMuslim community,whose

laws were kept away from any reforms. The frequent conflict between secular and

religious authorities over the issue of uniform civil code eventually decreased, until
http://en.wikipedia.org/wiki/Indian_republichttp://en.wikipedia.org/wiki/Jawaharlal_Nehruhttp://en.wikipedia.org/wiki/Coparcenaryhttp://en.wikipedia.org/wiki/Women_in_Islamhttp://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTESamaddar200556.E2.80.9359-14http://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTESamaddar200556.E2.80.9359-14http://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTESamaddar200556.E2.80.9359-14http://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Special_Marriage_Act,_1954http://en.wikipedia.org/wiki/Special_Marriage_Act,_1954http://en.wikipedia.org/wiki/Special_Marriage_Act,_1954http://en.wikipedia.org/wiki/Muslims_in_Indiahttp://en.wikipedia.org/wiki/Muslims_in_Indiahttp://en.wikipedia.org/wiki/Special_Marriage_Act,_1954http://en.wikipedia.org/wiki/Constitution_of_Indiahttp://en.wikipedia.org/wiki/Uniform_civil_code_of_India#cite_note-FOOTNOTESamaddar200556.E2.80.9359-14http://en.wikipedia.org/wiki/Women_in_Islamhttp://en.wikipedia.org/wiki/Coparcenaryhttp://en.wikipedia.org/wiki/Jawaharlal_Nehruhttp://en.wikipedia.org/wiki/Indian_republic


33/41

the 1985 Shah Bano case. Bano was a 73 year old woman who sought maintenance

from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of

marriage by tripleTalaaq (saying "I divorce thee" three times) and denied her regular

maintenance; this sort of unilateral divorce was permitted under the Muslim Personal

Law. She was initially granted maintenance by the verdict of a local court in 1980.

Khan, a lawyer himself, challenged this decision, taking it to theSupreme court,

saying that he had fulfilled all his obligations under Islamic law. The Supreme court

absolved her in 1985 under the "maintenance of wives, children and parents"

provision (Section 125) of the Criminal procedure code, which applied to all citizens

irrespective of religion. It further recommended that a uniform civil code be set up.

Besides her case, two other Muslim women had previously received maintenance

under the Criminal code in 1979 and 1980.

An independent Muslim parliament member proposed a bill to protect their personal

law in the parliament. TheMuslim Women's (Protection of Rights on

Divorce)was passed in 1986, which made Section 125 of the Criminal Procedure

Code inapplicable to Muslim women.

JUDICIAL INTERPRETATION WITH RESPECT TO UNIFORM

CIVIL CODE AND SECULARISM:

Even after more the five decades from the faming of the Constitution, the ideal of UCC under

Article 44 is yet to be achieved. However, efforts in this discretion continued as reflected in

various pronouncements of the Supreme Court from time to time.

In Mohammad Ahmed Khan v. Shah Bano Begum,35 popularly known as the Shah

Banos case, the Supreme Court held that It is also a matter of regret that Article 44 of

our Constitution has remained a dead letter. Despite section 127 of Cr.P.C. 1973 (which

provides that if a woman has received an amount under personal law, she would not be

entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women

would be entitled to maintenance if amount received by her as dower under personal

35(1985) 2 SCC 556.
http://en.wikipedia.org/wiki/Divorce_in_Islamhttp://en.wikipedia.org/wiki/Divorce_in_Islamhttp://en.wikipedia.org/wiki/Supreme_court_of_Indiahttp://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/The_Muslim_Women_(Protection_of_Rights_on_Divorce)_Act_1986http://en.wikipedia.org/wiki/Supreme_court_of_Indiahttp://en.wikipedia.org/wiki/Divorce_in_Islam


34/41

law is not sufficient for her sustenance. Though the decision was highly criticized by

Muslim Fundamentalists, yet it was considered a liberal interpretation of law as required

by gender justice. Later, on under pressure from Muslim fundamentalists, the central

government passed the Muslim womens (Protection of Rights on Divorce) Act, 1986,

which denied right of maintenance to Muslim women under section 125 of Cr. P.C. The

activists rightly denounced that it was doubtless a retrograde step. That also showed

how womens rights have a low priority even for the secular state of India. Autonomy of

a religious establishment was thus made to prevail over womens rights. 36

In Sarla Mudgal (Smt.), and others v. Union of I ndia and others37,Kuldip Singh, J.,

while delivering the judgment directed the government to implement the directive of

article 44 and to file affidavit indicating the steps taken in the matter and held that

Successive governments have been wholly remiss in their duty of implementing the

Constitutional mandate under Art. 44. Therefore, the Supreme Court requested the

Government of India, through the Prime Minister of the Country to have a fresh look at

Art. 44 of the Constitution of India and endeavour to secure for its citizens a UCC

throughout the territory of India. He also suggested the appointment of a committee to

enact a Conversion of religion Act. R.M. Shahai, J., while agreeing Nwith Kuldip Singh,

J., too agreed that Ours is a Secular Democratic Republic. Freedom of religion is the

core of our culture. But religious practices, violative of human rights and dignity and

sacerdotal suffocation of essentiality civil and material freedoms, are not autonomy but

oppression.

In Lily Thomas etc. v. Union of India and others38 the Court held that:- The

desirability of UCC can hardly be doubted. But it can concretize only when social

climate is properly built up by elite of the society, statement amongst leaders who instead

of gaining personal mileage rise above and awaken the masses to accept the change.

The court further added while it was desirable to have a UCC, the time was yet not ripe

and the issue should (be) entrusted to the Law Commission which may examine the same

in consultation with minorities Commission. That is why when the court drew up the

36Virendar Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily

Thomas(2000)] 42 Journal of Indian Law Institute 315 (2000).37AIR 1995 SC 153138

AIR 2000 SC 1650 at 1668.


35/41

final order signed by both the learned judges it said, the writ petition are allowed in

terms of the answer to the questions posed in the opinion of kuldip Singh, J. These

questions we have extracted earlier and the decision was confined to conclusions reached

thereon whereas the observations on the desirability of enacting the UCC were

incidentally made.

In Danial L atifi and another v. Uni on of I ndia39, the court upheld the validity of

Sections 3 and 4 of the Muslim Women (Protection of rights on Divorce) Act, 1986, as

not being violative of articles 14, 15 and 21 of the Constitution of India. Under section 3

of the Muslim Women (Protection of rights on Divorce) Act, 1986, a Muslim husband is

liable to make reasonable and fair provision for future of divorced wife which includes

maintenance also, so she is not entitled to claim maintenance under section 125 of

Cr.P.C. Under section 4 of the Act, divorced Muslim woman unable to maintain herself

after iddat period can proceed against her relatives or wakf Board for maintenance.

Rajendra Babu, J., on behalf of a five judges bench consisting of Patnaik,Mohapatra,

Doraiswamy, Patil, JJ.. And himself observed that :- In interpreting the provisions

where matrimonial relationship is involved we have to consider the social conditions

prevalent in our society. It is a small solace to say that such a woman should be

compensated in terms of money towards her livelihood and such a relief which paratakes

basic human rights to secure gender and social justice is universally recognized by

persons belonging to all religions.

In John Vallamattom v. Union of I ndia40 the Supreme Court in a PIL by a Christian

priest, John and other citizens of Christian community, challenging the validity of the

section 118 of the Indian Succession Act, 1925, while striking down the said section as

being violative of article 14 of the Constitution, and also concerned over the

contradictions in marriage laws of various religions, in a historic judgments , emphasized

the need for a legislation by Parliament on common civil code. Stressing that there was

no necessary connection between religious and personal laws in a civilized society, a

three judge bench held that it was matter of regret that article 44 of the Constitution,

which provided for the state to endeavour to secure a UCC for its citizens throughout

India, had not been affected. The Court further observed that Parliament is still to step

39(2001) 7 SCC 740

402003 (5) SCALE 384.


36/41

in for framing a UCC in the country. A UCC will help the cause of the national

integration by removing the contradiction based on ideologies. It can be said that after

mentioning the apex court view regarding the implementation of UCC that Art. 44 needs

to be interpreted to sustain the plurastic character of the Indian community. It should be

on the gender justice rather than on uniformity. Although the Supreme Court has not yet

interpreted Art. 44. On all his decisions the Court enjoined upon the parliament to enact a

UCC without specifying what a UCC would mean. However, the word uniform should

not mean the same law for all but it should mean similar laws for all and similarly should

be regarding equality and gender justice.

In brief: Very recently, while hearing a case pertaining to whether a Christian has the

right to bequeath property to a charity, the court regretted the fact that the state had not

yet implemented a uniform civil code. This is not the first time that the apex court has

expressed itself in favour of a uniform civil code or taken a dim view of the government's

and legislature's inability to bring it into being. There have been other occasions like

during the Shah Bano case and later in the Sarla Mudgal case where too the apex

court has come out strongly in favour of the enactment of a uniform civil code. However,

none of these comments are binding on the executive or the legislature and do not

amount to orders. At best, they exert some moral pressure on the Indian state to move

towards formulating a uniform civil code.

MAJOR FINDINGS:

It is high time that India had a uniform law dealing with marriage, divorce,

succession, inheritance and maintenance. But, it must be realized that the scenario in

India is extremely complex. India has a long history of personal laws and it cannot be

given up easily. Unless a broad consensus is drawn among different communities, the

Uniform Civil Code cant do much good to the country. The reality in India is much

more complex than Western societies which have been totally secularized. The need

is to work on the existing laws in such a way that they dont go against any particular

faith or religion.

The need for uniform civil code has been felt for more than a century. The country

has already suffered a lot in the absence of a uniform code for all. It is rather a pity


37/41

that the longest and most elaborately written constitution in the history of mankind,

the Indian constitution is responsible for creation of erosion in society. The society

has been fragmented in the name of religions, sects and sex. Even at present, in India,

there are different laws governing rights related to personal matters or laws like

marriage, divorce, maintenance, adoption and inheritance for different communities.

The laws governing inheritance or divorce among Hindus are thus, very different

from those pertaining to Muslims or Christians and so on. In India, most family law is

determined by the religion of the parties concerned Hindus, Sikhs, Jains and

Buddhists come under Hindu law, whereas Muslims and Christians have their own

laws. Muslim law is based on the Shariat; in all other communities, laws are codified

by an Act of the Indian parliament. There are other sets of laws to deal with criminal

and civil cases, such as the Criminal Procedure Code (Cr.P.C) and the Indian penal

code. The multifarious castes and creeds and their sets of beliefs or practices are

bewilderingly confusing and nowhere is a scenario like in India, of various personal

laws jostling together, allowed.

India as a nation will not be truly secular unless uniformity is established in the form

of rational non-religious codified laws.

In India, secularism has come to mean non-intervening in the matter of religion.

This needs to be relooked and debated as there cannot be any discrimination in the

guise of secularism.

It is necessary that law be divorced from religion. With the enactment of a uniform

code, secularism will be strengthened; much of the present day separation and

divisiveness between various religious groups in the country will disappear, and India

will emerge as a much more cohesive and integrated nation


38/41

CONCLUSION:

The researcher after considering and reviewing all the facts, laws, debates and opinions or

efforts to enact UCC whatever have been made till now arrives to some conclusions as givenbelow:

Some provisions of constitution itself make it complicated as Art 44 of the constitution talks

about uniform civil code for the citizens and on other hand art 37 of the same says the

provisions of this part 4 shall not be enforceable to any court, but the principles therein laid

down are nevertheless fundamental in the governance of the country and it shall be the duty

of the state to apply these principles in making laws. Therefore I can say if we look more

upon art 37, the state must make uniform civil code for its citizens because its became

fundamental in the governance of the country.

If we see at the preamble of the constitution there is a term secular and the citizens are

granted freedom of religion and being a secular state , state should not interfere in matter of

individuals religion but it does in the interest of state. So inspite of doing all this things it

should ,make UCC enforceable.

As the researcher observed, there is lot of controversy, many debates are there, most of in

favour of UCC and most of them are not. Actually the law makers were very well known

about the fact that it is very difficult for India to have a uniform code thats why they put it as

one of the directive principle of state policy.

Our society is not up to that standard which can utilize the Uniform civil code and thus still

UCC is awaited to be done. What is the reason behind it as the researcher observed India is a

multi religion country. Allot of cultures are there and such culture, tendency and the

behaviour of the citizens is full of diversity. Though we say India offers unity in diversity

but not in all respect otherwise uniform civil code could have been enacted long back.

Constitution makers added this clause of uniform civil code as DPSP but have not made the

same enforceable because they knew the time has not come. Society has ignorance regarding

this.

It can be concluded by saying that the UCC amounts to equal laws for all sections of society. All

the people of India must be governed by one set of laws. For national unity and for secularism,

UCC is necessary. The plurality of laws in personal law matters is a blow and direct threat to

national integrity and solidarity. It is worth mentioning the name of a few countries where a

UCC has been functioning successfully viz. Germany, France, Spain Canada, Japan, Turkey and


39/41

Portugal. The government of India should take initiatives for enacting a UCC, which should

contain the best elements of different civil laws of the various religion communities of the

country and thus fulfil its positive obligations imposed upon it by article 44 of the Constitution

of India.

SUGGESTION:

In order to promote the spirit of uniformity of laws and accomplish the objective enshrined in

Article 44 of the Constitution, the following suggestions deserve immediate consideration:

Firstly, the constraints on the enactment of UCC which are there, should be removed by

its root. As following:1) Lack of Information among the Public with regard to the UCC in India.

2) Prejudice which arises out of ignorance.

3) No build up of Public opinion.

4) No draft Bill.

5) No Basic thinking about the structure of the UCC

Religious fundamentalism must go, social and economic justice must be madeavailable to the Muslim women and other women and their dignity and quality be

ensured, basic human rights guaranteed and there should be an end to exploitation of

Muslim women and other women as well.

A strong step should be taken in furtherance of enactment of uniform civil code.

Three stage machanism (renaissance, reformation and enlightenment) should be

followed in India like U.S.A. and other European countries.

The Government must prepare a good environment for Uniform Civil Code byexplaining the contents and significance of Article 44. It should take steps and find out

means to find out the obscurantists who oppose to move of Uniform Civil Code.

The press, radio, television and various other means of communication may be of great

help in this regard. The conservative sections of the citizens must be made to understand

the utility of uniformity of laws so that they do not stand in the way of implementation of

Article 44 of the constitution.


40/41

The State should take initiative to explain the Uniform Civil Code to the ordinary

citizens. Special ways must be devised and also special care must be taken to prevent

inflaming of the ordinary mans passions by mischievous, rabble-rousing methods.

The State should bring social reform by stages and the stages may be territorial or theymay be community wise.

The attempt should be made to enact a Uniform Civil Code embodying what is best in all

personal laws. It must be the synthesis of the good in our diverse personal laws. It should

represent one, drawn up by the constitution between the different communities in India

on the principle of give and take.

It is the duty of academicians to generate good environment for the adoption of the

Uniform Civil Code in India. It is their moral duty to promote the feelings of secularism

and explain the contents of Uniform Civil Code to the community at large so that they

are made to understand the beneficial effect of the Uniform Civil Code.


41/41

BIBLIOGRAPHY

Books:

1.


Reprint 2003

2. Tiwari, H.N., Legal Research Methodology, Allahabad Law Agency, first Edn.

Reprint 2003

3. Gupta, Mukul, PHI Learning Private Limited, Delhi second printing 2013;

4. J. N. Pandey, The constitutional Law of India

5. M. P. Jain, The constitutional Law of India

6. TheAll India Women's Conference (AIWC)

7. Hindu Code Bill

8. Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code

9. Muslim law; prof. R.K.Sinha

10.Hindu law; Dr. Paras diwan

Websites

1. http://www.webster.com

2. http://www.docstoc.com.

3. http://www.legalserviceindia.com

4. http://www.indiankanoon.com

5. http://www.lexisnexis.com.

6. http://www.jurisonline.in

7.

http://www.ssrc.in

8. http://www.legalserviceindia.com
http://en.wikipedia.org/wiki/All_India_Women%27s_Conferencehttp://en.wikipedia.org/wiki/Hindu_Code_Billhttp://en.wikipedia.org/wiki/Hindu_Code_Billhttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://www.webster.com/http://www.docstoc.com/http://www.legalserviceindia.com/http://www.indiankanoon.com/http://www.lexisnexis.com/http://www.jurisonline.in/http://www.ssrc.in/http://www.legalserviceindia.com/http://www.legalserviceindia.com/http://www.ssrc.in/http://www.jurisonline.in/http://www.lexisnexis.com/http://www.indiankanoon.com/http://www.legalserviceindia.com/http://www.docstoc.com/http://www.webster.com/http://books.google.co.in/books?id=0HNgJuBaSfkC&lpg=PP1&pg=PA11#v=onepage&q&f=falsehttp://en.wikipedia.org/wiki/Hindu_Code_Billhttp://en.wikipedia.org/wiki/All_India_Women%27s_Conference

Documents

Research Project Front Page.docx.d.docxmnj(1)