How to frame the Uniform Civil Code

Uniform Civil Code in States is the talk of the town.

Uniform Civil Code:

• Article 44: "State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India".
• Responsibility of Center: Family and succession laws to be equally applicable should be enacted by Parliament alone.
• In many cases relating to minorities, the apex court has frowned on continued inaction and addressed its concerns to the Centre.
• Parliament enacted Civil marriage law in 1954, the Special Marriage Act: Any man and woman, irrespective of their religions, could opt for a civil marriage.
• Existing religious marriages could also be voluntarily converted into civil marriages by registration under the Act,
• Section 21 of the Act laid down that all couples married under its provisions and their descendants will, in regard to their properties, be governed by the religion-neutral chapter on inheritance in the Indian Succession Act of 1925.

Regulating Religious Marriages:

• Hindu Marriage Act, 1955: regulates religious marriages among the Hindus, Buddhists, Jains and Sikhs
• Hindu Succession Act, 1956: for the properties of those covered by the 1955 Act.
• Section 29 (4) of the Act clarified that "Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954". The 1954 Act and the Indian Succession Act as secular laws thus remained available to those governed by Hindu law even after the enactment of the Acts of 1955-56.

Issue with the Special Marriage Act and the Indian Succession Act:

• Do not apply in the entire country: When Goa, Daman and Diu were liberated from Portuguese rule in early 1960s, a Parliamentary law had provided for continued application of the archaic Portuguese Civil Code of 1867 in those territories "until amended or repealed by a competent authority. That 155-year old foreign law still governs Indian citizens in these parts of India.
• Renoncants (Indians whose ancestors had during the French rule abandoned personal law) are still govemed by the 218-year old French Civil Code of 1804.
• In 2019, the government extended the provisions to Jammu, Kashmir and Ladakh, to replace their local variants - same needs to be done for Goa and Daman and Diu.
• Conflict with Religious Practices: Its list of prohibited degrees in marriage (relatives one cannot marry) but, does not recognise the rule prohibiting marriages within the limits of sapinda relationship (covering distant cousins.
• So, a Hindu can freely marry a second cousin under the Act, though his religion prohibits it, but a Muslim cannot marry under it a first cousin which his religion allows and is a common practice in the community.
• Under the Hindu Marriage Act, the rule of prohibited degrees can be relaxed on the basis of custom but not under the Special Marriage Act.
• Misgoverning the Properties: if both parties marrying under it were Hindu their properties would be governed not by the Indian Succession Act as originally provided--but by the Hindu Succession Act.
• The objection raised to it in the Maneka Gandhi case (1985) was met by a Delhi High Court judge with spirited defence,

Conclusion:

• There is nothing wrong in placing the whole nation under a single law of family rights and succession. This must be done in compliance with the constitutional guarantees for equality before the law and equal protection of laws. The provision of the Special Marriage Act relating to prohibited degrees in marriage should be suitably amended, and its 1976 amendment restricting the applicability of the Indian Succession Act must be set aside.

Exam Track

Prelims Takeaway

• Uniform CIvil code
• Special Marriage Act

Mains Track

Q. What do you understand by Uniform Civil Code? Examine its relevance for a secular country like India and challenges in its implementation.