Modern Family Law: Changing attitudes and Agendas in the Personal Laws and the Uniform Civil Code

Introduction:
In the current modern state the need for a legal centralism is required. The dominant legal model of the uniform legal system brings out the modern State and the attitude of the people. India is one of the many countries in which the uniform legal system has gained such momentum maybe not in implementation but has gained much interest in a heated political debate. Article 44 of the Constitution of India, 1950 has anticipated the eventual implementation of the uniform legal system. Article 44 in the constitution of 1950, reads,
“Uniform Civil Code for the citizens of India- the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
But the much anticipated eventuality has been a distant dream since the past 60 years. India is known for its socio-economic diversities and inequalities. India is one of the most diverse democracies of the world. India’s secularism which is enshrined in the preamble of the constitution is not an anti-religious policy but outlook to frame the country into one entity. India’s pluralism is linked with how the Hindu culture has never been mono-cultural or monotheistic. India’s democracy also aims at providing all citizens equal rights; this premise is based on treating equals equally.
There are many shifting agendas in the personal laws in India. People’s outlook towards bigamy , triple talaq, polygamy , absence of coparcenary rights for women under Hindu undivided family, etc. have received much condemnation in the present times. The increasing equal rights between men and women, societal outlook and equal protection of laws has led to the need for a uniform legal system governing the personal laws on India.
Polygamy is prohibited by law in some Muslim-majority countries that have not adopted Islamic law for marital regulations, such as Azerbaijan, Bosnia and Herzegovina, Tunisia and Turkey. Among the 22 member states of the Arab League, Tunisia alone explicitly prohibits polygamy; however, it is generally frowned upon in many of the more secularized Arab states, such as Egypt. Few other countries including Libya and Morocco require the written permission of the first wife if her husband wishes to marry a second, third, or fourth wife. Therefore, countries like Turkey have followed the West and abolished the personal law system.
Justice Krishna Iyer in a celebrated case has stated that, “It is surprising that dubious religious interpretations with values valid in a bygone age are being enforced in the current times by civil courts in our professedly secular state when those values have become mere legal superstitions, if not anathema for the community at large, out of a false sense of solicitude to a fancied section of society. The Indian Constitution directs that the State should endeavor to have a uniform civil code applicable to the entire Indian community” .
Irrespective of gender, the Indian community’s outlook is changing with the advent of time and is becoming more secular in nature. Men and women are treated equally and the right to equality under the Constitution is upheld in a very serious nature. A man’s uncontrolled freedom to contract into a bigamous marriage, the non-equitable treatment of woman in a marriage, the unfettered right of a Muslim man of Triple Talaq, Polygamy amongst Muslim men, these are being overlooked in a society where not only the constitution but the social setup is against this nature of behavior from people. The socio-legal context of the present era has shifted from the strict sense of adherence to blind religious beliefs.
But with the increasing communal distress and anti-Hindu/Muslim wars within India, the “Rule of Law” to unify the country would have its consequences. Implementing a uniform legal system might have more distress than benefits. Maybe India is not ready for the drastic change and shift from personal laws to a unified law. The modernist thought might point towards the formation a legal uniformity but the general people’s perception towards it might differ.
The history of India shows that there has been a vast diversity in the culture, customs and religious beliefs of the people in India and India might find it difficult to deal with all in one unifies legal systematic rule. We have dealt with the personal laws separately for these many years without any particular breakdown of the system.
“Voluntary or compulsory, it seems that if and when the Uniform Civil Code is introduced, there is a strong possibility of a period of deep social unrest taking place. Unless the government is prepared to ride out this period, if it then gives in to those who don’t want the uniform civil code, more damage will be done by introducing than by withholding the Uniform Civil Code”

The Uniform Civil Code: The conflicting and changing perspectives
There has been a formal readiness of the Indian Courts to at times ignore the personal law and customary truisms and adjudge in a legal uniformity in the interest of justice. The Supreme Court first directed the Parliament to frame a Uniform Civil Code in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the Shah Bano case. In this case, an impoverished Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. 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"
After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure.
The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India . In this case, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnize second marriage The Court held that a Hindu marriage solemnized under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnized after converting to Islam would be an offence under Section 494 of the Indian Penal Code.
Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949. The Hon’ble 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."

The Supreme Court’s latest reminder to the government of its Constitutional obligations to enact a Uniform Civil Code came in July 2003 when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Chief Justice Khare stated that,
"We would like to State that Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regrets 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."
Hindu culture has always augmented a diverse culture and multi-theistic forms. When such is the situation why should the court or scholars or any activists argue that the modern State should interfere with the needs and laws to dominate people’s lives down to their beliefs and faith of their lives with a uniform legal regulations. This might lead to dictatorial abuses regarding the beliefs of many people in India. When the Constitution of India itself guarantees the right to religion to every citizen no other regulation should be able to curb it. The Constitution makers intended to provide for every citizen to follow his/her religion without the State or any other form of intervention without interfering with other people’s rights.
But many practices of the Hindu, Muslim and other personal laws intervene with the modern rights of men and women. One of the features of Islamic law of divorce is the recognition of the concept of unilateral divorce, wherein the husband can divorce his wife unilaterally, without any cause, without assigning any reason, even in a jest or in a state of intoxication, and without recourse to the court and even in the absence of the wife, by simply pronouncing the formula of repudiation. This goes against the modern outlook of the society which provides and augments for the equal treatment of men and women in a society. This has been changed by the introduction of the Modern law (The Dissolution of Muslim Marriages Act, 1939) which allows a wife to obtain a divorce through the intervention of a judge, before whom she must establish one of a limited number of acceptable bases for divorce. The fact that on a moral plane, divorce is reprehensible in Islam and has been denounced by Prophet does not provide relief to women as unilateral divorce continues to be an accepted practice in many countries including India. Hence, the changing perspectives has led to the enactment of this above Act allowing Muslim women equal status in this aspect.
Under Hindu law, a wife has a right to be maintained during her lifetime as per the provisions of the Hindu Adoptions and Maintenance Act, 1956. In what can be called an attempt to reinforce the conservative idea of a Hindu wife, an “unchaste” wife is not entitled to separate residence and maintenance. As far as Muslim law is concerned, many interpretations of the shariat do not grant divorced women a right to maintenance from their former husband’s beyond the three-month waiting period following the divorce, called the iddat period. The Supreme Court, however, applied and interpreted the secular law, the Criminal Procedure Code, to grant maintenance. Though the judiciary is to be commended for giving a humane and holistic meaning while applying the relevant provisions, the judgment is often criticized for entering into a discourse of the Quran. Shah Bano case was a classic conflict situation between the secular criminal code and religious personal law.
Under the Hindu law, the Mitakshara branch of law that primarily governs succession amongst Hindus in the country denied to a Hindu daughter a right by birth in the joint family estate and this flowed logically from the fact that her place in the paternal family was only temporary as she was belonged to her husband’s family on marriage. Modern day amendments to Hindu law of succession gave Hindu widows the right of succession her husband’s estate. Till recently, Hindu law was still discriminatory in that the Hindu Succession Act, 1956 excluded the daughter from coparcenary ownership of ancestral property. In 2005 the Parliament, by an amendment, took a radical but much-awaited step towards ensuring equality between Hindu men and women as far as succession is concerned, and conferred upon daughters the status of coparceners in the family of their birth, thereby bringing an end to the centuries-old rules of Hindu inheritance that have lost their relevance and justifications.
These are a few examples which show that the Indian Courts and the society are for the changes in the certain discriminatory practices in the personal laws. The various amendments and Court rulings have led to the changes keeping in view the equality status of men and women in the modern society. The modern State has made the much needed changes from time to time to reiterate this status.
But, instead of coming up with legislations from time to time, to suit the needs of the modern Indian State. There could be a uniform law dealing with marriage, divorce, adoption etc. and there will be no discrimination on any basis to any citizen of the country that is guaranteed with the right to equality in the nation. The parallel formations of legislations and policies to harmonize the ever increasing changes in the Indian society could lead to a larger unrest amongst the people than the formation of a single changed and harmonized legislation. A common civil code will help the cause of national integration by removing the contradictions.
The theory of marrying many women in the Muslim custom came about during the conditions in Arabia when the Arabs fought several wars and a large number of men died in them, so that many women became widows and there were more men than men. To avoid the resultant contingency of immorality and destitution, the Shariath dictated that able-bodied men may have more than one wife, but limited their number to four. Before this theory came to force men had kept any number of wives . This was many hundreds of years ago and now the time have changed so has the conditions, now the women have their unique identity and do not have to depend on men to live their lives and “complete themselves”. Hence we do not have to follow the laws that were said to be a custom when clearly we have moved ahead in time culture and status of men and women in the society.
Why do we have to stick to the laws that emerged long ago that do not fit the current situation of social life is a very imperative question that has to be answered. But it has to be noticed that though the courts have constantly dealt with the personal law questions in a very practical manner by moving India towards the direction of legal uniformity, but it has not brought about the abolition of the personal law system. The most important example is the MWPRDA of 1986. This showed that the courts wanted to observe the changing modern societal needs but it kept in mind this policy need not be followed by the uniform civil code specifically. They believed that this could be achieved by harmonizing many parallel provisions in the personal law system to achieve the same. This shows that India and the Indian courts are infact moving away from the very controversial and conflicting Uniform Civil Code.

India’s effort of the Uniform Civil code:
Goa in India has enacted the uniform civil code. Here, the Portuguese uniform code is in place, in which all religions have a common law regarding marriages, divorce and adoption. Goa is the only state in India that regardless of religion has an active and enforced Uniform Civil Code (UCC) for all citizens even though India has different civil laws for different religious communities. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn't replaced after liberation.
The Uniform civil code in Goa is a progressive law that allows equal division of income and property regardless of gender between husband and wife and also between children. Every birth, death and marriage has to be compulsorily registered. For divorce there are severe provisions. Muslims that have their marriages registered in Goa cannot take more than one wife or divorce by pronouncing "talaq" thrice. During the course of marriage all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce is entitled to a half share of the property and if one dies the ownership over half of the property is retained by the other.
According to the Uniform Civil Code even if the children (both male and female) have got married and left the house, the other half has to be divided equally among them. Thus the parents cannot disinherit the children totally as they can dispose only half of the property in a will and the rest has to be compulsorily and equally shared amongst the children. This has been a very successful example of implementation of the uniform civil code in India.

Conclusion:
Article 44 seeks to divest religion from social relations. Freedom of religion is the core of our culture. Religious practices that violate human rights and dignity and suffocating civil and material freedoms are not autonomy but oppression.
In a society the law for dealing with such disputes ought to be the same for all. Also personal laws be it Hindu, Muslim, Christian or Parsi met out unfair treatment to women. Thus there might be a need to replace them with a common law that dispenses with such discrimination against women at the earliest. If the Hindu Law discriminates between genders on the issue of property a husband has unilateral and arbitrary right of triple talaq under the Muslim Law. Under the Indian Christian Marriage Act of 1872 a Christian husband can get divorce by proving his wife’s adultery but the wife has to prove her husband’s adultery along with incest, bigamy, cruelty, change of religion or any of the other mentioned criteria Parsi personal law till very recently denied converted Paris women and not converted men burial at the Tower of Silence in Bombay.
But it has to be kept in mind that there is a right enshrined in the constitution which guarantees every citizen to follow ones religion and implementing the uniform civil code might cause more unrest than the inequalities and violations cause by the personal laws. People in India have been accustomed to following their religion and their customs from time immemorial and it will cause a lot of conflicts between religions and between the State and religion in the nation. If the inequalities and infirmities can be removed without disrupting the existing system through the implementation of parallel provisions to safeguard the rights of all, as is being done at the present moment, it would probably lead to greater good than completely changing the system through unifying the legal system. The secular nature of the Constitution of India lies in the fact of looking at all religion equally and respecting all but not in abolishing all and forming a one religion State. The Indian State does not have to implement the uniform legal system because it is prevalent in the Western legal system. It can retain the Indian characteristics and beliefs and still attain the Constitutional imperatives. Divesting the core nature of the Indian State is not the solution to the present changing perspectives. Each religion and their personal laws can prevail in India but by keeping the core ideals of the Constitution instead of Western ideologies. Religious fundamentalism, social and economic equalities can be done away with by other provisions. There cannot be a formula for eradicating such fundamentalism by dictating and violating people’s rights. Such dictating legal system is far worse than inequalities caused by certain personal laws.
These are the many conflicting perspectives and changes in the modern State and the society. Family law might need more changes and amendments to meet the needs of this change and satisfy the idea of the Modern State in all perspectives. But the answer to this challenging question does not lay in the exercise of implementing the uniform civil code at once. India, as a country, its people and their ideologies, the political and social conditions is very different from many other countries which have changed and moved to implementing the uniform civil code