BY
PRAVEEN DALAL*
I. Introduction
Some questions, which arise under the ordinary civil and criminal law, are of a far-reaching significance to large segments of society, which have been traditionally subjected to unjust treatment. Women are one such segment. Thus, in dealing with the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief, which partakes basic human rights to secure gender and social justice, is universally recognised by persons belonging to all religions. The solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints (1).
II. Necessity of a Uniform Civil Code
Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This societal interest mandates the enactment of a “Uniform Civil Code” (UCC) so that we can have a uniform law governing the marriages and the relationships and obligations arising out of them. Article 44 of the Constitution of India is the source for the enactment of a UCC to bring harmony between various personal laws governing the matrimonial relationships. Dr. Tahir Mahmood in his book ‘Muslim Personal Law' (1977 Edition, pages 200-202) has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community: "Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity” for their traditional personal law from the state legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India".
It is a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State, which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably, it has the legislative competence to do so. The difficulties involved in bringing persons of different faiths and persuasions on a common platform are appreciable but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case (2). One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus-governing inheritance, succession and marriage was given go-bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27 (3). Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. It is a matter of regret that Article 44 of the Constitution has not been given effect to. The 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 (4).
The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 Regula-tions followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its” personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-missed in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.
It must be noted that the legislative competence is one thing, the political will, sensitivity and courage to use that competence is quite another. Thus, unless and until the political parties unite together for the common betterment of India, the hope for a UCC will always remain a distant reality. They must sacrifice their own personal interests and work for the interest of nation at large. The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review (5). The Supreme Court provided a sound legal base in the form of guidelines for preventing sexual harassment of women at workplace in Vishaka v State of Rajasthan, (1997) 6 SCC 241 even in the absence of legislative will to fill in the vacuum. Thus, judicial law making is permissible in certain exceptional circumstances and the problem of UCC can be solved by this process. A careful perusal of the recent decisions of the Supreme Court shows that the same is happening in a systematic and phased manner, for the common betterment of society at large.
III. Judicial codification of personal law
The codification of personal laws into a UCC has remained a secluded and disgruntled reality, but the judiciary has given them a new dimension and meaning with the exercise of its legitimate and Constitutional powers of judicial activism. This is more so where Muslim personal law was involved. The object seems to be to empower Muslim women with the basic Human Rights so that they can live a dignified and respectful life. It must be appreciated that a nation which does not respect its women cannot be described as a civilised nation at all. Such a nation cannot grow and develop and will ultimately perish due to its own rudimentary and tyrannical dogma. It seems the Supreme Court has followed this philosophy without any exceptions attached to it.
In Mohd Ahmed Khan v Shah Bano Begum (6) the Supreme Court considered the application of section 125 of the Cr.P.C to Muslim women. The Court gave section 125 a humanistic and benign interpretation and observed: “ Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws, which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. According to the Explanation to the second proviso to section 125 if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is too well known that a Mohammedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section125 overrides the personal law, if there is any conflict between the two”.
In Smt. Sarla Mudgal v U.O.I (7) the Supreme Court considered the effect of conversion to another religion on marriage and observed: “The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Looked from another angle, the second marriage of an apostate-husband would be in violation of the “rules of natural justice”. The second marriage after conversion to Islam would, thus, be in “violation of the rules of natural justice” and as such would be void”.
In Danial Latifi v U.O.I (8) while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court summed up its conclusions as follows:
1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In Shamim Ara v State of U.P (9) the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.
In Savitri Pandey v Prem Chand Pandey (10) the Supreme Court held that the second marriage by a spouse during the subsistence of an appeal by the other spouse against the decree of divorce would be subject to the end result of the proceedings. The court further observed: “ There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”. The legislature accepted this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate step in the right direction.
In Amina v Hassn Koya (11) the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant Muslim female observed: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He went through the marriage. He did not raise any objection even after the marriage. He was present at the time of delivery of the child. Presumably he gave his own name as the name of the father of the child for the official record. Even thereafter, for nearly four years he went along with the marriage and brought up the child while treating the appellant as his wife. Any person, who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which the respondent did. In the present case, the facts on record show that the husband was aware of the pregnancy of the wife at the time of the marriage. Therefore, such a marriage cannot be said to be invalid”.
In B.S. Joshi & Ors v State of Haryana & Anr (12) the Supreme Court held that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. The Court observed: “ The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier”.
In K.A. Abdul Jaleel v T.A. Shahida (13) the Supreme Court held that the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. The Court observed: “The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. The Statement of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise”.
IV. Conclusion
The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that funda-mental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court (14). We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind (15). It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation (16). These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field (17). Thus, directions given by the court will operate only till the law is made by the legislature and in that sense temporary in nature. Once legislation is made, the court has to make an independent assessment of it. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure there from cannot be countenanced (18). The courts may also rely upon International treaties and conventions for the effective enforce-ment of the municipal laws provided they are not in derogation with municipal laws (19). Thus, till India has a UCC, the judiciary should continue its benign and much needed codification drive. This will provide a sound and judicious platform for the ultimate UCC enacted by the legislature, after considering and giving due credence to the observations of the highest Court of India.
© Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Delhi High Court
Contact at:
pd37@rediffmail.com/ perry4law@yahoo.com (1) Danial Latifi v U.O.I, (2001) 7 SCC 740.
(2) Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945.
(3) Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
(4) John Vallamattom and Anr v Union of India, (2003) 6 SCC 611.
(5) Praveen Dalal; “ Judicial review: Nuisance or absolute necessity”, www.naavi.org, dated: 06-0804.
(6) AIR 1985 SC 945.
(7) AIR 1995 SC 1531.
(8) (2001) 7 SCC 740.
(9) (2002) 7 SCC 518.
(10) AIR 2002 SC 591.
(11) (2003) 6 SCC 93.
(12) AIR 2003 SC 1386.
(13) AIR 2003 SC 2525.
(14) P.U.C.L v U.O.I, (2003) (3) SCALE 263
(15) Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
(16) John Vallamattom v U.O.I, (2003) 6 SCC 611.
(17) Vishaka v state of Rajasthan, (1997) 6 SCC 241.
(18) Per P.V.Reddi.J in P.U.C.L v U.O.I, 2003(3) SCALE 263: JT 2003 (2) SC 528(Para 122).
(19) Praveen Dalal, Judicial review: Nuisance or absolute necessity, www.naavi.org, dated: 06-08-04.
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