ARTICLE 44 – UNIFORM CIVIL CODE
Author: Lepakshi Thakur
4th year Student
ChanderPrabhu Jain College of Higher Studies
Constitution of India (also Bhartiya Samvidhana) is the supreme law of India. The article put down the framework establishing fundamental political code, structure, procedures, powers and duties of government institutions and arrays out fundamental rights, directive principles and the duties of citizens. It is the lengthiest written constitution of any country on earth.
B.R. Ambedkar, chairman of the drafting committee, is widely considered to be its main draftsman. It was adopted on 26thNovember 1949 and was became effective on 26th January 1950. Till now there have been made 103 amendments and was last amended on 12thJanuary 2019 (103rd).
It imparts constitutional assembly rather than Parliament and was accepted by its people with a demarcation in its preamble. Parliament cannot dominate the Constitution.
The Constitution proclaims India a supreme, socialist, secular democratic republic, assuring its citizens justice, equality and liberty and endeavours to promote fraternity.
ORIGIN AND HISTORY
It is essential to understand the roots of the Article, and to understand the origins behind Article 44, it is necessary to understand the history behind the concept of a “uniform civil code”
It is assumed that when the Constitution of India was written there had bee plenty of debate over the issue, but there was no actual outcome. In due course a negotiation was reached and Uniform Civil Code became only a directive principle. However, this compromise was strictly objected to by several members of Constituent Assembly such as Minoo Masani, Rajkumari Amrit Kaur, and Hansa Mehta had in fact stated that the religion-based personal laws were making divisions within the country by classifying various aspects of life and thus preventing India from becoming a nation. Later on, during the first decade of Independence, Indian Government passed Hindu Code Bill in spite of constant opposition from conservative Hindus. On the other hand, they could not do the same with Muslims since they felt that they were still recovering from the shock of Partition and thus there was no need to involve them in a negative manner and alter their personal laws.
WHAT IS UNIFORM CIVIL CODE?
It suggests the set of secular laws and civil rules for the citizens regardless of their religion, caste, etc.
It replaces right to be governed by personal laws.
It is equivalent for all religion, caste and tribe.
It covers adoption, marriage, divorce, property acquisition and property administration.
Article 44 of the Indian Constitution discuss about Uniform Civil Code. It says that, ‘the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.
Uniform Civil Code is a command upon the state under article 44 of the Constitution as directive principle of state policy.
NEED FOR UNIFORM CIVL CODE
· To sidestep discrimination in matters of marriage, divorce, inheritance etc.
· To fill the annulled spaces in the personal laws.
· Elude violence against women.
· To settle the uncertainty which has arisen due to transformed understandings of various personal laws.
· Reforming the personal laws as the society is not stagnant.
· To bridge the gap concerning the personal laws.
UNIFORM CIVIL CODE IN INDIA
· India is the world’s largest democracy and second most populated country.
· It has appeared as a major power and has a strong army. It has a major cultural impact and a fast growing and powerful economy.
· India has a federal political system, whereby power is united between the central government and the state governments.
· With its numerous languages, cultures and religions, India is greatly diverse. As mentioned in the preamble of its constitution, is a secular country.
· Religions not only have been serving as a basis of the culture of India, but have had massive effect on Indian politics and society.
· In India, religion is a means of life. It is an essential part of the entire Indian tradition. A huge majority of Indians associates themselves with a religion. Apart from the foremost religions that are followed in India, there are also various minor tribal traditions.
· It is very challenging to carry out an uniform civil code in India because of the above stated political and social problems.
UNIFORM CIVL CODE ENFORCED IN INDIA
Special Marriage Act, 1954
· In opinion, the act recognizes the independent identity of an individual and frees him/her from the traditional intimidating collectivises in the matter of marriage.
· This act was enacted with an objective of providing protection and recognizing the inter-caste and inter-religion marriages.
· In India, inter-caste and inter-religion marriages created a misperception as to under which personal law should prevail. To remove this misperception, this act was enacted.
· The act also provides certain necessities given in Section 4 of the Act which are similar to that of the requirements given under section 5 of Hindu Marriage Act. Any marriage which fails to conform with these requirements will become annulled.
· Section 125 of CrPC offers maintenance to wife.
· This provision is not precise for a woman of any specific religion or caste.
· This provision is provided for each woman of India regardless of caste and religion.
· The main objective behind this provision was to provide aid to woman who are in need of such help after the divorce.
· However many personal laws have provisions for maintenance, but the Muslim Laws do not have any such provision. So in order to provide such discharge, this enactment was made.
· Many cases are filed interrogating the validity of this provision. But in all the cases the law lords has held that this provision is in force and has a very significant role to play in our society.
ANALYSIS OF THE UNIFORM CIVIL CODE
1. Mohammed Ahmed Khan v. Shah Bano Begam
· Shah Bano, wife of Ahmed Khan, filed a petition under Section 125 of Cr.P.C for maintenance.
· While deciding this issue, the Hon’ble Supreme Court held that muslim females are eligible to claim to maintenance under section in 125 Cr.P.C as this is a secular provision and the advantage is available to every citizen regardless of their caste or religion etc.
· It was moreover held that although the Muslim law limits the husband’s liability to provide for maintenance of divorced wife to the period of Iddat, it does not anticipate or countenance the situation envisaged by section 125 of the code of criminal procedure. The court held that it would be inappropriate and unfair to extend the above principle of Muslim law to case in which the divorced wife is unable to maintain herself.
2. SARLA MUDGAL VS. UNION OF INDIA AND OTHERS
· The husband did the second marriage while converted into Islam but without dissolving the first marriage.
· It was questioned that whether such marriage is valid under Hindu Marriage Act or not.
· The Hon’ble Supreme Court has decided the issue by saying that if there is an argument between two personal laws then such law should prevail which is serving the purpose best. So, it was held that a conversion to Islam does not dissolve the marriage automatically performed under Hindu law.
· The Hon’ble Supreme Court also directed to take a new look at Article 44.
· Article 44 of the Indian Constitution is based on the concept that there is no essential connection between religion and personal law in a civilized society.
· The purpose behind this Article is to effect an integration of India by conveying all communities on the common policy on matters which are at present governed by various personal law.
· The Supreme Court in Shah Bano’s case has been apologetic, that Article 44 has so long continued as a dead letter and mentions early legislation to implement it.
· In the same case, the Supreme Court also demanded the Government of India through the Prime Minister to have a renewed look at Article 44 and Attempt to secure for the citizens a uniform civil code throughout the territory of India.