DRAFTING A MODEL UCC: ESSENTIAL ASPECTS OF INCLUSIVITY WITH RESPECT TO MUSLIM PERSONAL LAWS

ABSTRACT:

The research paper aims to explore the concept of inclusivity within Muslim personal laws in the context of drafting a model UCC. The research draws upon various sources to evaluate the current state of Muslim personal laws in India, including their gender-unequal aspects and the motivations behind the movement for a UCC. An inclusive approach to drafting a Model UCC in India, especially concerning Muslim Personal Laws, requires sensitivity, understanding, and a commitment to preserving diversity and ensuring justice for all citizens. This research paper strives to examine how the drafting of a UCC will impact the rights and practices of the Muslim community established in India, particularly concerning marriage, divorce and inheritance, what legal and constitutional challenges might arise in the process of integrating the Muslim personal laws into a UCC and how can these challenges be addressed while upholding the principles of justice, equality, and religious freedom.

KEYWORDS:

UCC, Muslim Personal Laws, Marriage, Divorce, Inheritance, Suggestions

INTRODUCTION:

In a pluralistic society like India, the debate surrounding the implementation of a UCC¹ has been ongoing for years. A UCC aims to replace the personal laws based on religious scriptures and customs with a common set of laws governing all citizens

¹Article44,DPSP,Part-IV,ConstitutionofIndia(1950).

regardless of their religion. In the context of India, one of the significant challenges in drafting a Model UCC lies in ensuring inclusivity, especially concerning the Muslim Personal Laws. By upholding the principles of respect, equality, and consultation, it is possible to create a legal framework that is fair, just, and inclusive of all communities. Therefore, implementing a UCC in a multi-religious society like India is a complex task. This complexity is amplified in the context of Muslim Personal Laws, which are deeply rooted in religious traditions. To draft an inclusive Model UCC for Muslim Personal Laws, it is crucial to have constitutional backing. The Indian Consti. provides a framework for a UCC in Art. 44 of Indian Constitution under Part IV of the Constitution, outlines the DPSP that the State should keep in mind while formulating policies and laws. While these directive principles are not enforceable by any court, Art. 44 serves as a guiding principle for the Indian government to work towards establishing a UCC, which would replace the personal laws based on various religious traditions currently followed by different communities in India. Art. 25 (Freedom of Religion)²: This article guarantees the freedom of religion to all citizens, but it allows the state to regulate or restrict any economic, financial, or other secular activity associated with religious practices.

 REVIEW OF LITERATURE:

Mohammed Bilal (2023)³ This article states that The UCC aims to establish unified personal laws for matters like marriage and inheritance, applying to all the citizens irrespective of the religion they have, as advocated in Art. 44 of the Consti. Muslims express concerns about potential implications on Shariah-based laws, particularly regarding practices like polygamy and inheritance. Archie Bandyopadhyay (2023)⁴ The article delves into Muslim apprehensions regarding  the  Uniform  Civil  Code  (UCC),  emphasizing  uncertainties  surrounding  its

² Constitution of India (1950).

³ Mohammed Bilal, why many Muslims in India are against the UCC, www.dailyo.in/news/why-many-muslims-in-india-are-against-the-uniform-civil-code-40438, 2023.

⁴Aarchie Bandyopadhyay, Do Muslims fear UCC? The resistance to UCC,

https://www.financialexpress.com/india-news/do-muslims-fear-ucc-the-resistance-to-uniform-civil-code-explained/3 155592/, 2023.

implementation. Fathima Khan (2023)⁵, This article expressed the notion of the Muslim organizations in India that are strongly opposing the UCC (UCC), asserting that it’s not just a Muslim issue, but a matter concerning all citizens. Hilal Ahmed (2023)⁶ in his article discussed the ongoing UCC (UCC) debate stands out for its portrayal as a “Muslim issue” and highlights highlights how a multifaceted topic is simplified and manipulated within a polarized public sphere, generating “Muslim issues” through a largely unquestioned mechanism.

This research paper strives to examine how the drafting of a UCC will impact the rights and practices of the Muslim community in India, particularly concerning marriage, divorce and inheritance, what legal and constitutional challenges might arise in the process of integrating the Muslim personal laws into a UCC and how can these challenges be addressed while upholding the principles of justice, equality, and religious freedom.

METHOD:

Implementing a Model UCC (UCC) that ensures inclusivity with respect to Muslim personal laws would be advantageous for promoting equality, justice, and social harmony in India. A Model UCC would address the disparities among personal laws, including Muslim personal laws, promoting a more equitable legal framework. By establishing uniformity in marriage, divorce, inheritance, and adoption, a Model UCC would contribute to gender equality and women’s rights, eliminating discriminatory practices. It would foster inclusivity by creating a harmonious coexistence of religious diversity within the legal framework. Furthermore, implementing a Model UCC would align with the principles of secularism, equality, and justice, streamlining legal processes, reducing burden on the judicial system, and protecting the rights of individuals. The experiences of other countries suggest that a Model UCC would enhance social cohesion and reduce inter-community conflicts. Through dialogue and education, challenges and resistance can be addressed, leading to broader acceptance and support for the proposed reform.

⁵ Fathima Khan,’ Against Constitution, Freedom, Diversity’: How Muslim Bodies Are Countering UCC, https://www.thequint.com/ 2023.

⁶ Hilal Ahmed, how did UCC become a Muslim issue? There’s an invisible apparatus at work https://theprint. 2023

RESEARCH METHODOLOGY:

This research paper would present a comprehensive analysis that combines an in-depth examination of legal provisions and precedents with respect to UCC and Muslim Personal Laws. This interdisciplinary approach enables a holistic exploration of the topic and contributes to a well-rounded understanding of the essential aspects of drafting a Model UCC with respect to inclusivity and Muslim personal laws. This paper would involve qualitative research methods that would involve analyzing case law to gather in-depth insights and perspectives from various sources. Studying various articles, case laws and law commission reports would provide valuable qualitative data on the views of Muslim community, their concerns, and recommendations regarding the implementation of a Model UCC. This paper would also consist of some doctrinal research, which is centered on analyzing legal texts such as legislation, case law, treaties, and constitutional provisions. In the context of this research paper, doctrinal research would involve a comprehensive analysis of relevant legal provisions, including the Muslim Personal Law (Shariat) Application Act, 1937⁷, constitutional provisions like Article 44, and Supreme Court judgments pertaining to Muslim personal laws and UCC. This analysis would help identify legal principles, precedents, and inconsistencies within the current legal framework.

1. IMPACT OF UCC ON MUSLIM COMMUNITY IN INDIA:

The introduction of a UCC in India has sparked intense discussions and conjecture, particularly concerning its potential effects on diverse religious communities. Of particular interest in this discourse is the Muslim community, as the UCC holds the capacity to instigate substantial transformations in the domain of marriage laws. Throughout history, distinct personal laws have governed marriage customs within various religious groups, including the Muslim community. The envisaged implementation of the UCC would usher in a standardized set of laws applicable uniformly to all the citizens, transcending religious delineations. This shift carries the potential for profound implications within the Muslim community which are in India,

⁷ The MPL (Shariat) Appl. Act, 1937, Act no. 26 of 1937.

influencing long-standing practices and legal frameworks related to marriage, divorce and inheritance.

1.  MARRIAGE:

Polygamy has been a prevalent custom in Muslim law, with numerous celebrities in India converting to Islam to engage in multiple marriages. The introduction of the UCC is poised to bring in a significant transformation in Muslim law by eliminating the practice of polygamy, which is widely regarded as a social problem in India. The cessation of this practice would constitute a positive enhancement for society.

One of the primary drawbacks of polygamy is the exploitation and mistreatment of women⁸ their husbands. The UCC might introduce restrictions or modifications to the existing practices. The abolition of polygamy could be achieved by framing laws that impose limitations on the number of wives a Muslim man can have or by requiring specific conditions to be met before entering into subsequent marriages.

Contrary to common perceptions, govt. data indicates that the polygamy is not significantly more prevalent among the Muslims community compared to other communities. Acc. to the 2019-21 National Family Health (Sur. 5), approximately 1.9% of Muslim womens reported their husbands having more than one wife, slightly higher than the 1.3% of Hindu women⁹. The 2018 report from the Law Commission acknowledged polygamy as an infrequent practice among Indian Muslims. However, the report highlighted its misuse by individuals from other religions who convert to Islam solely to legally engage in polygamous marriages. Although the issue is currently under consideration by the Supreme Court, the Commission expressed opposition to bigamy, deeming the exclusive permission for men to have multiple wives as “unfair.

⁸ Shantanu Pandey, UCC and It’s Impact on Muslim Personal Law, (18^th November, 2023, 8:00PM), https://blog.ipleaders.in/ucc-in-muslim-personal-law/

⁹Jahnavi, TNM Explainer: Impact of UCC on marriage, inheritance, divorce and adoption, https://www.thenewsminute.com/news/tnm-explainer-impact-ucc-marriage-inheritance-divorce-and-adoption-17944 7

Age of consent: Since, the legal age of marriage varies for men and women under the Muslim personal law in India, The UCC has an aim to establish a uniform set of laws applicable to all citizens overall, regardless of their religious affiliations, thereby standardizing rules related to marriage.

Registration of marriage: One notable transformation anticipated with the enforcement of the UCC is the mandatory requirement for marriage registration. Under the UCC, it would become obligatory for the marrying parties to officially register their marriage. The UCC is implemented; it might include provisions mandating the registration of marriages¹⁰ for all communities, including Muslims. Registration of marriages is a common practice in many legal systems as it serves to authenticate and legally recognize the marital union. 

Marriage: no more a contractual obligation: Furthermore, in the context of Muslim marriages, they are viewed as a contractual commitment for the involved parties^. According to MPL, the  marriage is solemnized when one party proposes, and the other accepts. Marriages under this personal law are established through a contractual agreement between the parties. The introduction of the UCC could lead to discontinuation of practice of considering marriage as a contractual obligation by standardizing and unifying marriage laws across different religious communities in India.

1.2 DIVORCE

The Prophet states that “among the permissible actions by law, divorce is the most undesirable”.. When the parties in a marriage find it impossible to sustain their union with mutual affection and love, it is preferable to allow them to separate rather than force them to coexist in an environment of hatred and discord. In Islamic law, the foundation of divorce is the inability of spouses to live together, rather than any specific cause or guilt on the part of either party. 

¹⁰ Shantanu Pandey, UCC and It’s Impact on Muslim Personal Law, (18^th November, 2023, 8:00PM), https://blog.ipleaders.in/ucc-in-muslim-personal-law/

In contrast to Muslim men, Muslim women have a singular method for initiating divorce under Muslim law, known as Talaq-e-Tafweez, which represents a delegated authority granted by the husband to the wife. This mechanism resembles an agreement specifying the conditions under which the woman can seek separation from her husband. If the husband adheres to the stipulated conditions, herein the wife has the option to dissolve the marriage, or alternatively, she may approach the court under the Dissol. of Muslim Marriages Act, (1939). Conversely, Muslim men possess several methods for pronouncing talaq. A significant development for women occurred when the SC ruled in case of Shyara Bano v. UOI¹¹, declaring the practice of triple talaq or Talaq-e-bidat as invalid and prohibited. This landmark decision provided legal protection, instilling a sense of security among Muslim women by putting an end to this practice.

Maintenance:

The introduction of ancient Muslim laws brought maintenance concerns to the forefront for spouses. According to Muslim law, Muslim women have the right to claim maintenances under the Muslim Women Protect. Act of (1986). A pivotal ques. arose regarding whether Muslim women could also seek maintenance under the CRPC. The landmark case of Shah B. Begum¹² addressed this issue, affirming that a Muslim woman who is divorced by her husband is entitled to maintenance under Sec. 125 of the CRPC¹³. Notably, the court ruled that this right extends beyond the iddat period to encompass the period after its completion. In the case of Denial L. Vs. UOI¹⁴, the court has emphasized the necessity for maintenance provisions to be fair & reasonable. Additionally, the constitutional validity of the Muslim Women’s Protect. Act of (1986) was upheld.

¹¹Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC).

¹² Mohd. Ahmed Khan v. Shah Bano Begum and Ors, 1985 AIR 945, 1985 SCR (3) 844.

¹³ Code of Criminal Procedure, Section 125, Act.2 of 1974, Act of Parliament,1974 (India).

¹⁴ Danial Latifi and Another vs Union of India (2001) 7 SCC 740.

Iddat:

Iddat, a customary practice within Muslim Law, mandates that a woman must undergo a waiting period before contracting a second marriage following a divorce or the death of her husband. This waiting period, ranging from three months to one year (if pregnant), was traditionally intended to ascertain whether the woman conceived post-divorce or widowhood. However, in the contemporary technological era, the significance of adhering to Iddat has diminished. Despite its diminished relevance, the practice persists due to customary reasons, causing distress for women. The implementation of the UCC is anticipated to eradicate this outdated practice, aligning with modern societal norms and eliminating unnecessary hardships for women.

Nikah Halala:

The another immoral practice among Muslims, if a divorced woman wants to marry her husband again who has divorced her, then she has to undergo nikah (marriage) with another man and lead a marital life, then get talaq (divorce) from him to marry her previous husband. This was a custom practice for ages and with the bringing of UCC in India, Nikah Halala¹⁵ can be easily abolished as it is practiced only among Muslims community.

Triple talaq (TT):

Talaq, or divorce, within the Muslim Personal laws have been a contentious issue nationwide since the adoption of Shariat law. The matter came under scrutiny in the case of Shayara Bano and Ors vs. UOI in 2017. A Constitutional Bench of five Judges, with a majority ratio of 3:2, ruled that the practice of TT is immoral and contravenes Art. 14, 15(1), 21, and 25 of the Constitution¹⁶. Consequently, this practice was abolished in India. Despite arguments from the Respondents claiming talaq-e-bidder as age-old religious practice, the bench did not delve into the fundamental issue of whether personal laws should take precedence over the FR and the potential implementing of a UCC. 

¹⁵ Anusha C. Gudagur, Impact of UCC on Muslim personal law, https://indianlawportal.co.in/impact-of-uniform-civil-code-on-muslim-personal-law/ 2020

¹⁶ Constitution of India (1950).

3. INHERITANCE

Indian Muslims adhere to the uncodified Quranic principles of inheritance, complemented by the traditions of the Prophet, legislative statutes, and judicial decisions. The Muslim community is further divided into Shia and Sunni sects, each with its distinct laws of inheritance. In Sunni law, heirs are classified into three groups: those with the fixed shares, residuaries, & distant kindred. Distant kindred inherit when other heirs, excluding the spouse, absent, and their relation to the deceased is through female blood relations. However, under Hanafi law, females and their offspring hold a lower standing compared to males. Shia Muslims categorize heirs as sharers and residuaries. Even within the Itna-Ashari law of Shia Muslims, a childless widow lacks the right to inherit immovable property, a privilege extended to childless males whose wives have passed away. Additionally, Islamic law mandates that women of the same degree of proximity as men inherit only half of the property. Both Shia and Sunni laws allow the exclusion of a daughter, the fixed share, from inheritance based on community customs. In certain communities in Jammu and Kashmir, females inherit only in the absence of male agnates. The discriminatory nature of Muslim inheritance laws in India calls for a thorough amendment and codification to ensure conformity with the principles of equality enshrined in the FR guaranteed by the Consti. of  India.

The highlighted inheritance laws exhibit a discriminatory bias favoring men in the social structure, reflecting a patriarchal nature. To rectify this inequality, the implementation of a UCC becomes essential. The introduction of a UCC in India holds the potential to foster communal harmony by addressing conflicting ideologies and disparate loyalties to laws, as emphasized in the Sarla Mudgal case. The potential implementation of a UCC in India has sparked extensive discussions on its far-reaching consequences, particularly concerning inheritance laws governed by Muslim personal law¹⁷.

¹⁷ Yash Agarwal, The Need for UCC: Analysis of the problems within the  Personal Inheritance laws, (pg.5).

UCC would signify a departure from the personalized and religion-specific regulations, aiming to establish a unified legal framework applicable uniformly across diverse religious communities. In the context of Muslim inheritance laws, the impact of the UCC could entail revisions to the existing system, standardizing inheritance practices and introducing a more consistent approach to the distribution of assets. The introduction of the UCC would bring about significant transformations in Muslim law, including:

1. The establishment of a codified law governing rules of inheritance and succession.

2. The implementation of a structured system for determining shares in the inheritance process.

3. Recognition of the rights of illegitimate and adopted children to claim a share in their father’s property.

CASE LAWS HIGHLIGHTING THE NEED FOR UCC IN INDIA:

In the Shah B. Begum case, the court asserted that Art. 44 of the Constitution, advocating for a UCC (UCC), has remained inactive over the years, emphasizing the State’s obligation to enact such a code. The court acknowledged its role in bridging gaps but underscored that a UCC is indispensable for achieving gender and social justice in society, stating, “Justice to all is a far more satisfactory way of dispensing justice than justice from case to case¹⁸.” The court ruled that it is the duty of a Muslim husband to provide maintenance to his wife even after the period of iddat, referencing Sec. 125 of the CrPC, which is secular in nature. In Sarla Mudgal v. UOI¹⁹ case, where a man converted to Islam for the purpose of a bigamous marriage, the court recognized the necessity of a UCC to eradicate such practices, despite taking steps to abolish such acts under personal laws. The court’s decision in the Seema v. Ashwani Kumar²⁰ case emphasized the registration of marriages irrespective of religion, a significant stride towards a UCC. The case of Jose P. Coutinho vs. Maria L. Valentina Pereira²¹ reiterated the government’s inaction in implementing a UCC in India.

¹⁸ Mohd.Ahmed Khan vs. Shah Bano Begum, AIR 1985, SC 945.

¹⁹ 1995 3 SCC 635.

²⁰ AIR 2006 SC 1158.

²¹ MANU/SC/1257/2019.

SUGGESTIONS:

Addressing the legal and constitutional challenges in implementing the UCC in India while upholding the principles of justice, equality, and religious freedom requires a thorough and thoughtful approach²². Here is an elaboration on the ways in which these challenges can be addressed:

1. Constitutional Amendments: Given that the UCC would impact personal laws governed by religion, it is necessary to consider constitutional amendments that ensure the code aligns with the FR enshrined in the Constitution. Amendments should be formulated to strike a balance between protecting the rights of individuals to practice their religious customs and traditions and guaranteeing equality and justice for all citizens. This may include amendments that uphold gender & equality and eliminate discriminatory practices present in certain personal laws.
2. Stakeholder Participation: To ensure an inclusive and comprehensive approach, it is imperative to engage in extensive consultations with various stakeholders such as religious leaders, community representatives, legal experts, and policymakers. These consultations can help establish a dialogue to understand the concerns, perspectives, and aspirations of different communities. By actively involving stakeholders, it becomes possible to find common ground and address potential conflicts.
3. Opt-in Provision: To address concerns related to religious freedom, an opt-in provision can be considered. This means that individuals or communities can voluntarily choose to be governed by the UCC or continue to follow their own personal laws, as long as they do not violate the principles of justice and equality. Providing this option allows for the preservation of religious freedoms while giving individuals the choice to opt for a uniform code.

²² Possible solutions to the issues surrounding UCC, UCC: Problems and Prospects, blog.ipleaders.in/uniform-civil-code-problems-prospects

4. Gradual Implementation: Implementing the UCC in a phased manner can help mitigate resistance and challenges. Starting with areas where there is a greater consensus and gradually expanding its scope can facilitate a smoother transition and garner acceptance among various communities. This phased approach can also provide an opportunity to assess and address any unintended consequences or challenges that may arise during the implementation process.
5. Gender Justice & Equality: The primary objectives of the UCC should be to ensure gender justice & equality. It is crucial to address the discriminatory practices prevalent in certain personal laws by introducing provisions that safeguard the rights and empowerment of women. This could include provisions related to equal rights in marriage, divorce, inheritance, and custody matters. Emphasizing gender justice in the UCC will reinforce principles of equality while also addressing long-standing concerns regarding gender-based discrimination.
6. Judicial Interpretation: Given the significance of legal challenges, courts play a role in interpreting and upholding the constitutional validity of laws, including the UCC. Independent and impartial judicial intervention is vital to ensure that the code is implemented in a manner consistent with the principles of justice, equality, and religious freedom. Courts, through their judicial interpretation, can provide clarity on the legal and constitutional framework, safeguarding the rights of all individuals involved.
7. Sensitization and Public Awareness: Promoting awareness and sensitization programs about the UCC, its objectives, and underlying principles are crucial. Public awareness campaigns can play a vital role in dispelling misconceptions and addressing resistance. Educating the public about the need for a UCC, its benefits, and its alignment with principles of justice, equality, and religious freedom can foster a better understanding and acceptance of code.

CONCLUSION:

The topic of drafting a Model UCC in India with respect to Muslim Personal Laws is complex and highly contentious. The research paper focuses on the complex and contentious topic of drafting a Model UCC in India, specifically concerning Muslim Personal Laws. The paper highlights the importance of considering essential aspects of inclusivity in the drafting process. It emphasizes the need for a balanced approach that respects religious freedoms, cultural diversity, and gender equality. The current governing law, the Muslim Personal Law (Shariat) Appl. Act, 1937, requires critical evaluation and harmonization with principles of equality and justice. Inclusivity in the UCC necessitates addressing disputed aspects such as marriage, divorce, inheritance, and maintenance, while considering the rights and interests of all stakeholders. The research paper contributes to the ongoing dialogue on the need for a UCC and provides valuable insights and recommendations for policymakers, legal practitioners, and scholars. It concludes that a successful drafting of a Model UCC requires careful consideration, extensive consultations, and a commitment to upholding constitutional principles, ultimately aiming to create a harmonious and equitable society in India.

RESEARCH PAPER BY–

 NAME– RAMANI JUNEJA

COLLEGE– CPJ COLLEGE OF HIGHER STUDIES & SCHOOL OF LAW (GGSIPU)