The second law commission constituted by the Government of British submitted its report in 1835 stressing the requirement for uniformity in the codification of Indian law referring to crimes, evidence, and contracts, however specifically recommending that codification should not extend to matters like the personal Hindu laws and Mohammedans laws which derive their jurisdiction from their respective religions. The decision that has been given by the commission in its report was that there must be no codification of the personal laws & the same was speculated in Queen Victoria’s declaration (was given when the British government displaced the East India Company in the wake of the 1857 revolt and took over the self-governing power of country’s administration) that there will be no interference in their religious matter.
Although UCC would correct the mistakes of a rigid society discriminating against women by divest them of their equivalent rights and bringing more equality and compassionateness into social life and therefore also recognizes the important essential that enable women to themselves and find her own identity and demonstrate herself as an individual, there were not only Hindus who were showing dissent to the promulgation of a law that was governing their integral beliefs and their customs. When these issues were been debated, some apologists even referred to the Vedas and dharmashastras, stating the rule of conduct as the highest law and emphasized the importance to respect diversity amongst the various communities and caste within the Hindu religion.
DEVELOPMENT BEFORE AND AFTER INDEPENDENCE
The developing tide of legislation involving itself into the issues that were of personal nature of simple men and women of the country generated arguments and disputation demanding a reasoned and measured response from the government.
This finally led to the setting up of the B.N. Rau Committee in 1941 whose task was to examine the compulsion of common Hindu laws. The recommendations given by the committee were of a codified Hindu law, giving equal rights to women keeping a pace with the modern curve of the society and a civil code for marriage and succession however mainly focusing on regenerating Hindu laws following the scriptures.
Later on, the committee presented 2 draft bills that focus on intestate succession and marriage in March 1942. On unable to clinch the issue, the committee was revived and recreated again in 1944 and finally sent its report (which deals with testamentary succession and intestate including maintenance, marriage, divorce, etc.) to the parliament consist with a draft Bill in February 1947. Endless discussion continued and the Hindu Code Bill lapsed and was resubmitted in 1952, after independence.
The draft Hindu Code Bill received much criticism and asked for a UCC applicable to all religions. Oppose for the Hindu Code Bill arise from members who were representing the various fractions of the Hindu majority, from the Sikh group (who begrudged being included with the Hindus), from the Muslim group (who wanted to lean the scales in their favor), and lastly from the women parliamentarians because they were under the impression that the measures were not far enough
The arguments included: the necessity to shield the hallowed Hindu traditions, the resentment arising from the very fact that the Muslim Personal Law remained untouched, the proposed measures affecting the majority of the population doesn’t ascertain popular opinion and most significantly the grant of equal property rights to women threatened the economic rights of the male within the society.
lately, the ladies members of the parliament were convinced by the contradictions that the Hindu code was going n extended way in granting them their significant rights & they feared that this could cause an additional setback to their rights and seriously damage their future attempts to realize equality with their menfolk altogether other matters. Ultimately the availability was uneven into several parts to bring smaller changes than attacking in with a full major transformation hence bringing four separate Acts namely
Hindu Marriage Act, 1955– This enactment amended and codified the laws relating to marriage and provided conditions that were necessary for the registration of Hindu marriages, the restitution of conjugal rights, judicial separation, provisions & punishments for divorces, etc. and hence brought uniformity of law. The Parliament of India allowed the Anand Marriage Amendment Bill in 2012, by amending the Anand Marriage Act of 1909, which opened the way for the attestation of Sikh traditional marriages, thus providing for compulsory registration of “Anand Karaj” marriages, with which Sikhs can now have their own personal law regarding marriage. The anomalousness mentioned concerning the Hindu Marriage Act whereby persons of certain other religions were recognized as the Hindus though they’ll not be Hindus by religion continues to be a difficulty.
The Hindu Succession Act, 1956- The Act came into action to rectify and codify the law referring to intestate or unwilled succession and lays down an identical and comprehensive system of inheritance and applies to persons governed by all schools of spiritual thought like the Mitākṣharā and Dāyabhāga schools. The Hindu woman’s limited estate was abolished by the Act because of which she’s given full power to cater to and get rid of any property possessed by her as her absolute property. Parts of this Act were amended in 2005 by the Hindu Succession (Amendment) Act, 2005, which revised rules on coparcenary property, giving daughters of the deceased equal rights with sons, and subjecting them to identical liabilities and disabilities. The amendment essentially provides equal rights between males and females within the system.
Minority and Guardianship Act, 1956– the Act was meant to boost the Guardians and Wards act of 1890. This specifically served to define guardianship relationships between adults and minors, further as between people of all ages and their respective property. Both legitimate and illegitimate minors with a minimum of one parent, be the jurisdiction of this Act.
The Adoptions and Maintenance Act, 1956– this Act dealt specifically with the legal process of adopting children by a Hindu adult, furthermore because the legal obligations of a Hindu to supply “maintenance” to numerous members of the family. a number of the illegitimate sons were also fitted into the system of sonship and those that were ignored were never denied maintenance. These ideas are reflected within the provisions of the Act. Illegitimate children also shall get the good thing about maintenance under the provisions of the Act. Moreover, if the wife isn’t a Hindu, then the husband isn’t sure to provide maintenance for her under this Act.
All these acts have been made applicable to Hindus including Buddhists, Jains & Sikhs, and Muslims, Christians, Parsis, or Jews who were excluded from this definition. the very fact remains that the separate Acts while bringing some sort of uniformity in social and spiritual customs, didn’t control the prevalent gender discrimination. the appliance of the Act to all or any these religion was initially some extent of concern and debate, and later got accepted by all the people. because the Acts applied only to Hindus, Buddhists, Jains & Sikhs, women from the opposite religions remained victims of antifeminism and other varieties of prejudices Especially the Muslim women who didn’t get the good thing about the inheritance of agricultural land. An Act that predated the above statutes, is that the Special Marriage Act, 1954. Though the Act is sort of just like the Hindu Marriage Act of 1955, it gives some idea of how secularized the law regarding marriages had become. This Act provides for marriage ceremony for any citizen no matter religion, thus permitting any Indian to own their marriage outside the boundaries of any religious personal law. The Special Marriage Act provides Muslims to marry under its provisions given and thereby retain their protections, generally beneficial to Muslim women, which couldn’t be found in their personal law. Under this Act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, instead of the respective Muslim personal law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down within the civil law. While distinct from the Hindu personal law, the Act provided the safeguards that had been considered within the statutes of the Hindu Code to the Muslim beneficiaries of the Act.
The founding fathers of the constitution faced problems to unite and integrate the different religions and to provide a secular constitution for all sections of society. A uniform law, although highly desirable may be counterproductive to the unity and integrity of the nation.
In a gesture to indicate the willingness to consider the issue of a UCC it was decided to add the implementation of a UCC in Article 44 as a Directive Principle specifying that “The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India”. A UCC Indeed is a vision of uniformity that was added as a desirable objective under the Directive Principles of the Constitution.23
To make laws or to amend them may be a slow process, and also the legislature fixes it where the requirement is felt most. All laws should equally apply to any or all people and also the disasters of default may be solved within the process of law. One such historic opportunity to form substantial changes to the position and standing of Muslim women is from the case of Mohd. Ahmed Khan v. Shah Bano Begum indicated the urgency to possess uniformity in personal laws. The questions within the case pertained to the responsibility of a Muslim husband to keep up his divorced wife beyond the amount of iddat if she was unable to try to do so. The Supreme Court held during this case that section 125 of Criminal Procedure Code, 1973 which imposes an obligation on all husbands is secular and applies to any or all religion. It applies to all or any Indian normally and overrides the non-public law just in case of conflict between the two. The court regretted that article 44 of the constitution has remained a dead letter thus far and there has been no evidence of formal work for the planning of a standard civil code for the country.
The judgement of the Shah Bano case led to the enactment of the Muslim Women (Protection of right Divorce) Act, 1986 which made Sec. 125 non-operable for Muslim women. in step with this, maintenance was payable to the divorced wife only during the iddat period (the mandatory waiting period when the divorce matters are being settled), and not thereafter.