UCC AND JUDICIAL TREND

INTRODUCTION:
In the post-colonial India, the role of Judiciary in the implementation of uniform civil code is
very appreciable. In fact it is the judiciary, which through its interpretations tries to bring the
personal laws of different communities into one common mainstream and thus paved the way
towards uniform civil code. The Judges of various High Courts and Supreme Court became the
main instrument for bringing important gradual legal developments which also put its impact on
the question of uniform civil code. Today, citizens of India are governed by different personal laws,
based on their religion, caste, community, etc. A uniform civil code would ensure that all citizens of India
are governed by the same set of secular civil laws in matters of marriage, divorce, maintenance,
adoption, inheritance, etc. Under the present set of laws, Hindus are bound by law to practice
monogamy, whereas Muslims are not. Similarly, whereas Hindus have a comprehensive enactment on
adoption, this concept is not recognised by the personal laws of Christians and Parsees. If a uniform civil
code is enacted, all citizens of India would be governed by the same law in all such matters.

The objective underlying a uniform civil code is to enhance national integration by elimination
contradictions based on religious ideologies. All communities in India would then stand on a
common platform on civil matters like marriage and divorce, which are currently governed by
diverse personal laws. The pertinent question that poses itself is: If the same law of contract or
torts applies to a Hindu and a Muslim, why not the same law of marriage?
Regarding the implementation of uniform civil code, India re-learnt an ancient lesson about
demanding the impossible, culturally envisaged as asking for the moon. In the ancient story, the
child God Krishna asks his mother Yashoda to give him the moon as a toy and the clever mother
hands him a mirror with a reflection of moon. Similarly though now, uniform civil code is not
included in Fundamental Rights Chapters, but in postmodern India, quick footed thinking of this
kind has now resulted in well considered production of a mirror image of the desired object of
the uniform civil code in the form of harmonised personal law system. A motherly central state
along with arts core institutions, an activist and powerful Supreme Court have taken wellchoreographed steps to achieve this particular outcome.

Hence, with this issue of uniform civil code in hand , we will be beginning our discussion of
Uniform Civil Code and judicial trend with the most popular Shah Bano Case , which not only
brought judicial storm but also political one , further we will be discussing other cases such as
Smt. Sarla Mudgal, President, Kalyani & ors. Vs Union of India, Noor Saba Khatoon vs
Mohammed Qasim , John Vallamattom v. Union of India, Pragati Varghese vs. Cyril George
Seema kumari v Ashwani kumar. And will try to establish a link between this cases that how the
judiciary till now has taken the approach for UCC in India, what are the challenges faced and
how they were over come by our judiciary . All of this will be discussed and answered in this .

The most important case which created a lot of hue and cry among the Muslims is Mohd. Ahmed
Khan v. Shah Bano Begum. In this case the husband appealed against the judgment of the
Madhya Pradesh High Court directing him to pay to his divorced wife Rs 179 per month,
enhancing the paltry sum of Rs 25 per month originally granted by the Magistrate. The parties
had been married for 43 years before the ill and elderly wife had been thrown out of her
husband's residence. For about two years the husband paid maintenance to his wife at the rate of
Rs. 200 per month. When these payments ceased she petitioned under section 125 of Cr. P.C.
The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs 3000
as deferred mahr and further sum to cover arrears of maintenance and maintenance for the iddat
period and he sought thereafter to have the petition dismissed on the ground that she had
received the amount due to her on divorce as per the Muslim law applicable to the parties. The
important feature of the case was that the wife had managed the matrimonial home for more than
40 years and had borne reared five children and was incapable of taking up any career or
independently supporting herself. At that later stage of her life, remarriage was an impossibility
in that case. The husband a successful Advocate with an approximate income of Rs 5000 per
month provided Rs 200 per month to divorced wife, who had shared his life for half a century
and mothered his five children and was in desperate need of money to survive. Thus, the
principal question for consideration before this Court was the interpretation of Section 127(3)(b)
of Cr.P.C. that where a Muslim woman had been divorced by her husband and paid her mahr,
would it indemnify the husband form his obligation under the provisions of Section 125 of

Cr.P.C. A five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls
the proceedings in such matters and overrides the personal law of the parties. If there was a
conflict between the terms of the Code and the rights and obligations of the individuals, the
former would prevail.
This Court pointed out that mahr is more closely connected with marriage than with divorce
though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved,
whether by death or divorce. This fact is relevant in the context of Section 125 of Cr.P.C. even if
it is not relevant in the context of Section 123(3)(b) of Cr.P.C. Therefore, this Court held that it is
a sum payable on divorce within the meaning of Section 127(3)(b) of Cr.P.C and held that mahr
is such a sum which cannot ipso facto absolve the husband's liability under the Act. There was a
big uproar thereafter and Parliament enacted the Muslim Women (Protection of Rights on
Divorce) Act, 1986. Perhaps this Act was passed in a hastily manner with the intention of
making the decision in Shah Bano case ineffective. But the object of enacting the Act, as stated
in the Statement of Objects and Reasons to the Act, is that this Court, in Shah Bano case held
that Muslim law limits the husband's liability to provide for maintenance of the divorced wife to
the period of iddat, but it does not contemplate or countenance the significance. The object and
scope 125 of Cr.P.C is to prevent vagrancy by compelling those who are under an obligation to
support those who are unable to support themselves and that object being fulfilled, we find it
difficult to accept the contention urged on behalf of the petitioners. Even under the Act, the
parties agreed that the provisions of Section 125 of Cr.P.C. would still be attracted and even
otherwise, the Magistrate has been conferred with the power to make appropriate provisions for
maintenance and therefore what could be earlier granted by a Magistrate under Section 125 of
Cr.P.C. would now be granted under the very Act itself. This being the position, the Act cannot
be held to be unconstitutional.
Further,

The

then

Chief

Justice

of

India

Y.V.

Chandrachud

observed

that,

"A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies"
The Shah Bano judgment had led to a realization on the part of the Muslim religious leaders
that their religious law on divorced womens rights needed codification. A popular movement
followed and Parliament passed the Muslim Women Act providing for the enforcement of

divorced Muslim womens rights to seek their unpaid dower and bridal property from the former
husband as also maintenance from him, her own relatives and the State Wakf Board, through
speedy proceedings before the magistrates. It has been 25 years since the Supreme Court's
landmark judgment in the Shah Bano case, which ruled that a Muslim woman was entitled to
maintenance after divorce. The ruling provides hope and a solution for many Muslim women
even now." It became landmark because Shah Bano judgment held that a Muslim woman was
entitled to maintenance even after divorce and justified it both on the basis constitution and also
Muslim Personal Law.
In the case of Sarla Mudgil v. Union of India, J. Kuldip Singh also put emphasis on the need of
uniform civil code and judgement delivered by him is again a step towards uniform civil code.
The questions involved in this case are that whether a Hindu husband, married under Hindu law,
by embracing Islam can solemnize a second marriage? Whether such a marriage without having
the first marriage dissolved under law, would be a valid marriage qua the first wife who
continues to be Hindu? Whether the apostate husband would be the guilty of offence under Sec.
494 of Indian Penal Code? Supreme Court observed that a marriage celebrated under a particular
personal law cannot be dissolved by the application of another personal law to which one of the
spouse converts and the other refuses to do so. Where a marriage took place under Hindu law the
parties acquire a status and certain rights by the marriage itself under law governing the Hindu
marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a
new personal law, it would tantamount to destroying the existing rights of the other spouse who
continues to be a Hindu. We, therefore hold that under the Hindu Personal Laws as it existed
prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the
spouses converted to Islam. There was no automatic dissolution of the marriage. Thus the second
marriage performed by the husband is void marriage and he is liable for the offence of bigamy.

Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where
it is lying since 1949. The Honble Justice referred to the codification of the Hindu personal law
and held

"Where more than 80 percent of the citizens have already been brought under the codified
personal law there is no justification whatsoever to keep in abeyance, any more, the introduction
of the uniform civil code for all the citizens in the territory of India."
This judgment talked at length about the necessity of an Uniform Civil Code to be implemented
in India. It directed the Government of India to file an affidavit indicating the steps taken and
efforts made, towards securing a "uniform civil code" for its citizens. a unified code is
imperative both for protection of the oppressed and promotion of national unity and solidarity
.Basically it was observed in this case with respect of UCC is that, ours is a Secular Democratic
Republic. Freedom of religion is the core of our culture. Even the lightest deviation shakes the
social fibre. 'But religious practices, violative of human rights and dignity and sacerdotal
suffocation of essentially civil and material freedoms, are not autonomy but oppression'.
Therefore,

unified

code

is

imperative both for protection of the oppressed and promotion of national unity and solidarity.
But the first step should be to rationalise the personal law of the minorities to develop religious
and cultural amity. The Government would be well advised to entrust the responsibility to the
Law Commission which may in consultation with Minorities Commission examine the matter and
bring about the comprehensive legislation in keeping with modern day concept of human rights
for women.
Further a challenge came in the case of Noor Saba Khatoon vs Mohammed Qasim ,S. 125 of
Criminal Procedure Code 1974 states that children are entitled to maintenance until the time they
attain majority or are able to maintain themselves, whichever date is earlier, or, in the case of
female children, till they get married. This is a secular law and was applicable to all religious
communities. However, in 1986, after the controversy over the Shah Bano judgment that gave
Muslim women a right to life-long maintenance after divorce under this law, the Parliament
created a new law Muslim Women (Protection of Rights on Divorce) Act. This law sought to
nullify the effect of the Supreme Court judgment in Shah Banos judgment. The question of
maintenance to children was not considered in Shah Banos judgment. However, this 1986 Act
also contains a provision in S. 3(1)(b) stating that the woman was entitled to an additional
maintenance for taking care of her children a period of two years from their date of birth, over

and above the maintenance she claims for herself. In the present case, the Supreme Court rules
on whether children will be entitled to maintenance beyond the age of two.

However, in 1986, after the controversy over the Shah Bano judgment that gave Muslim women
a right to life-long maintenance after divorce under this law, the Parliament created a new law
Muslim Women (Protection of Rights on Divorce) Act. This law sought to nullify the effect of the
Supreme Court judgment in Shah Banos judgment. The question of maintenance to children was
not considered in Shah Banos judgment. However, this 1986 Act also contains a provision in
S. 3(1)(b) stating that the woman was entitled to an additional maintenance for taking care of
her children a period of two years from their date of birth, over and above the maintenance she
claims for herself. In the present case, the Supreme Court rules on whether children will be
entitled to maintenance beyond the age of two. A Muslim fathers duty to maintain his children
extends till they become majors or are able to maintain themselves or, in the case of female
children, till they get married. So long as the children are unable to maintain themselves and
other conditions are met, it remains his absolute obligation to provide for them.

Whereas in the case of John Vallamattom v. Union of India (AIR 2003 SC 2902), the Court
had reason once again to express its opinion on the subject of a uniform civil code. In this
instance, John Vallamattom, a Christian priest, challenged the constitutional validity of Section
118 of the Indian Succession Act, 1925, claiming that it was unfairly discriminatory against
Christians for placing unreasonable restrictions on their ability to will away land as donations for
charitable and religious purposes. A three-judge bench of the Supreme Court, comprising Chief
Justice V.N. Khare, and Justices A.R. Lakshmanan and S.B. Sinha, struck down the provision as
being violative of Article 14 of the Constitution. Chief Justice Khare commented: We would
like to State that Article 44 provides that the State shall endeavour to secure for all citizens a
uniform civil code throughout the territory of IndiaIt is a matter of great regret that Article 44
of the Constitution has not been given effect to. Parliament is still to step in for framing a
common civil code in the country. A common civil code will help the cause of national
integration by removing the contradictions based on ideologies. This case was also

acknowledged in the 209th Law Commission Report on the Proposal for the Omission of Section
213 of the Indian Succession Act, 1925. In the immediate aftermath of the ruling, the BJP called
for a national debate on a uniform civil code, and wanted the Law Commission to incorporate
fair and equitable ingredients from the personal laws of the Hindus, Muslims, Christians, and
Parsis to formulate a common code.
While discussing the constitutionality of Sec. 118 of Indian Succession Act Justice V. N. Khare,
the then Chief Justice of India reiterated the need for Uniform Civil Code and observed that Art.
44 provides that the State shall endeavour to secure for the citizens a uniform civil code
Therefore, despite the political ambivalence surrounding the issue, the Supreme Courts
consistent advocacy in favour of a uniform civil code suggests that from a legal perspective,
India may well be ready for uniform personal laws, and also that there is sufficient institutional
competence and willingness for the adjudication and administration of these new laws.
throughout the territory of India. The aforesaid provision is based on the premise that there is no
necessary connection between religious and personal law in a civilized society. Article 25 of the
Constitution confers freedom of conscience and free profession, practice and propagation of
religion. The aforesaid two provisions viz. Arts. 25 and 44 show that the former guarantees
religious freedom whereas the latter divests religion from social relations and personal law. It is
no matter of doubt that marriage, succession and the like matters of a secular character cannot be
brought within the guarantee enshrined under Arts. 25 and 26 of the Constitution. Any legislation
which brings succession and the like matters of secular character within the ambit of Arts. 25 and
26 is a suspect legislation. It is a matter of regret that Art. 44 of the Constitution has not been
given effect to. Parliament is still to step in for framing a common civil code in the country. A
common civil code will help the cause of national integration by removing the contradictions
based on ideologies.
If , we consider the case of Pragati Varghese vs. Cyril George Varghese, In this case , a suit
was filed by Christian wives for dissolution of their marriages under Section 10 of the Indian
Divorce Act, 1869 (hereinafter referred as 'the Act'). Each of them impugn the vires of the
provisions of Section 10 of the Act which provides for the grounds on which a husband and wife
can sue for dissolution of marriage. It is contended that the provisions are archaic and adversely
discriminate wives as against husbands merely on ground of sex and are, therefore, violative of

article 15 of the Constitution. It is further contended that the aforesaid provisions adversely
discriminate them vis-a-vis wives belonging to other communities. They are, therefore, denied
equality before law and hence the provisions are violative of Article 14 of the Constitution. It is
also contended that the aforesaid provisions force them to continue to live with their husbands as
wives even though they are subjected to cruelty or desertion. They are, therefore, deprived of
their right to life and personal liberty thereby violating their dignity. The provisions, therefore,
contravene Article 21 of the Constitution. Plaintiffs have also impugned certain ancillary
provisions of the Act namely Sections 17 and 20 of the Act which provide for a requirement of
confirmation of decrees for dissolution of marriage or nullity of marriage, passed by District
Judges, by the High Court and that too normally by a Bench of not less than three Judges.
The court struck down section 10 of the Indian Divorce Act under which a Christian wife had to
prove adultery along with cruelty or desertion while seeking a divorce on the ground that, it
violates the fundamental rights of a Christian woman to live with human dignity under Article 21
of the Constitution.
The court also declared sections 17 and 20 of the Act invalid which provided that an annulment
or divorce passed by a District Court was required to be confirmed by 3 Judges of the High
Court. The Court said that section 19 of the Act compels the wife to continue to live with a man
who has deserted her or treated her with cruelty; such a life is sub-human.
Court, has also observed that it is true that India has set before itself the ideal of a secular society
and in that context achievement of a uniform civil code becomes all the more desirable. Such a
code will do away with diversity in matrimonial laws, simplify the Indian legal system, and
make Indian society more homogeneous. It will delink laws from religion which is a very
desirable objective to achieve in a secular and socialist pattern of society. The uniform civil code
will contain uniform provisions applicable to everyone and based on social justice and gender
equality in family matter. Its provisions will be fair and equitable so that every member of the
society may have a feeling of equality of social status from major social change and will thus
create a national identification.

In this case of Seema kumari v Ashwani kumar , the maintenance suit was filed by one Seema
against her husband Ashwani Kumar, who had disputed her marriage with him in the absence of
any documentary proof, which she had failed to produce. The Court in its important judgment of
far reaching consequences has observed:, While the transfer petition was being heard it was
noted with concern that in large number of cases some unscrupulous persons are denying the
existence of marriage taking advantage of the situation that in most of the States there is no
official record of the marriage. It has been pointed out that compulsory registration of marriages
would be a step in the right direction for the prevention of child marriages still prevalent in many
parts of the country. In the Constitution of India, 1950, List III.
The Court in this case, observed that though most of the States have framed rules regarding
registration of marriages, registration of marriage is not compulsory in several States. If the
record of marriages is kept, to a large extent, the dispute regarding solemnization of marriages
between two persons is avoided. The marriages of all persons who are citizens of India belonging
to various religions should be made compulsorily registrable in their respective States, where the
marriage is solemnized. The Bench further directed the States and Central Government to take
steps in this respect and rules within three months. The entire gamut of existing laws on marriage
for all communities would remain intact and registration procedure and rules would be in
addition to these.
We can say that, it is a progressive action to enforce gender equality in law. Taking a suo motto
notice of the above case, The Law Commission of India in its 211th Report has proposed to enact
Marriages & Divorce Registration Act applicable for 300 all citizens of India irrespective of
their religion and personal laws and without any exceptions or exemptions. The Supreme Court
has taken exception to the states keeping non-Hindu religious groups out of the ambit of
compulsory registration of marriages. Most of the states had submitted their reports on the
compliance of the Court order on the registration of marriages, excluding those not covered
under the Hindu Marriage Act, 1955. This will bring countrywide uniformity in the substantive
law relating to marriage registration and will be helpful in effectively achieving the desired goal.
The proposed law should also provide that no judicial relief will be granted in a disputed matter
if the concerned marriage or divorce is not duly registered under its provisions.

CONCLUSION:
Careful reading of these cases, thus, teaches that the Indian Constitution with its wider social
welfare agenda would not and could not tolerate principled total exemption from social welfare
agenda when matters of Muslim personal laws were at stake. Thus, outwardly, it only appears as
though Muslim Personal law in India has remained largely uncodified Shariat law. In reality, it
has been just as much subject to the skilful combined efforts of India's Judiciary and Parliaments
to harmonise all Indian personal laws without abolishing the personal law system. So the Indian
State tiptoed slowly and carefully around the issue of legal reforms, cleverly manipulative like an
ancient Indian ruler inspired by the traditional Indian science of governance (arthasatra). Ancient
lessons about outwitting one's adversaries, here a potential inner enemy, had to be most skilfully
employed. Indian Muslim law could not be allowed to remain outside the Constitutional
umbrella, but it also could not be abolished. So it actually helped the post-modern Indian state
that Muslims, in an incautious moment, had demanded a separate statutory law for themselves.
They promptly got it, but not on their terms, as we now know.
The whole nation needs to get out of the controversy surrounding this issue of uniform civil
code. Uniform Civil Code, as dreamed by Art. 44 of the Constitution, is need of the hour. If we
are to stand as one nation, if secularism is to be honored & followed in its real sense, there is no
alternative to uniform civil code. The next question is in what way we are to implement the
same. It is true that a Uniform Civil Code for the whole of India cannot be drafted or brought
into force all at once. It should be progressive i.e. to be applied in stages and part by part, having
regard to realities.Preparing a comprehensive code through an expert body like Law Commission
in consultation with the Minorities Commission can be looked at as a long term measure. Such
code shall have due regard to the modern day concept of human rights of women. Second option
is to adopt certain immediate measures which would pave the way for a unified civil
code. Thus, the issue under Art. 44 today is not whether the provision under Art. 44 is
undesirable but only whether its implementation should be started now.