How to read this article-:
Background-: Recently, Central Government referred the question of implementing a uniform civil code across the country to Law Commission of India.
Why this article-: There is some mis-understanding about what uniform civil code is all about?
Approach of this article-: It is in the form of Frequently Asked Questions [FAQ]
Objective-:To obtain basic understanding and also to understand what it is not about.
The objective of this article is to explain what is uniform Civil Code [UCC] and also remove some myths about it.
|Q-1||If we require UCC, does this mean India does not have a civil law or India is not a civil society?|
|A-1||India is perfectly a civil society. The Constitution of India, 1950 being the highest piece of law. Even parliament cannot change the basic structure of constitution of India. Later, Code of Civil Procedures, 1908, Criminal procedure Code, 1973 and Indian Penal Code, 1860 are the three important pieces to maintain the law and order.|
|Q-2||If it is so, what is UCC about?|
|A-2||Uniform Civil Code in simple terms means Common set of law governing personal matters irrespective of religion. The personal matters include Marriage, Divorce, Guardianship, Inheritance / Succession, Adoption.|
|Q-3||Does that mean, there are no laws in India governing these aspects|
|A-3||Of course there are, rather there are plentiful of laws but they are rather divided by religion / caste etc.|
|Q-4||If there are applicable laws based on religion / caste for regulating the above matters, why there is a need for UCC?|
|A-4||First of all, all the laws are not well codified and some are not codified at all in some aspects. Secondly, these laws, by themselves do not guarantee a protection of ALL fundamental rights as envisaged in chapter III of the constitution of India.|
|Q-5||Can it be illustrated ?|
|A-5||The term “Hindu law” broadly covers
the Hindu Marriage Act (1955),
the Hindu Succession Act (1956),
the Hindu Minority and Guardianship Act (1956), and
the Hindu Adoptions and Maintenance Act (1956).
|Q-6||Can you point out any deficiency in any of the Act which needs an amendment?|
|A-6||Hon’ble High Court of Punjab and Haryana in Avtar Singh vs. Jasbir Singh, RSA No. 29/1988 (O&M), vide its decision dated 11.02.2014, identified a lacuna in the position of Hindu Women qua their property and maintenance rights under the Hindu Adoptions and Maintenance Act, 1956 in terms of section 18 and 19.
following observations with regard to legal position of Hindu wives:
“Before parting with judgment, it would be appropriate to mention that no provision has been brought to my notice by learned counsel for the parties that if husband is insane or of unsound mind, the daughter in law who is not having any source of maintenance can claim maintenance for herself. When she has to maintain her mentally ill husband, her condition is worse than being a widowed daughter in law. In such a situation, the wife should be deemed to be dependent upon the father in law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act.
Copy of this Order be sent to the Union Ministry of Law and Justice and Law Commission of India for taking appropriate measures for amendment in the Act.”
|Q-7||Does that mean, Hindu Law will be made applicable across the country irrespective of religion?|
|A-7||Of course Not. The objective to be achieved being “each of the citizen will not be deprived of any of his / her fundamental rights as envisaged in chapter IV of the Constitution of India in terms of his / her personal matters.|
|Q-8||Is there is development in this regard in the past?|
|A-8||Yes. Law commission of India has worked on various aspects of this gamut and report no 211 and 212 as submitted in October 2008 are very relevant in this regard.|
|Q-9||Whose responsibility it is to make / amend and more importantly implement these laws|
|A-9||Dual i.e. of Central government and of state governments as well.
Refer following entries in III List III (the Concurrent List) of the Seventh Schedule provides in Entries 5 and 30 as follows:
“5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
30. Vital statistics including registration of births and deaths.”
It is to be noted that vital statistics including registration of deaths and births is covered by Entry 30. The registration of marriages would come within the ambit of the expression ‘vital statistics’.
Personal Opinion of author
1. It will be a complex process as it will have to take into consideration a lot of issues. Just like GST is a big project, uniform civil code will be a project.
2. Also it will have to keep up pace with the changing times like it will have to address the issues like
3. It will be worthwhile to re-produce the findings and recommendations given in the 211th report of law commission of India. One must keep in mind that this version is of October 2008. At least 7 years have elapsed by since the report was presented.
Findings and Recommendations
We now proceed to summarize our findings based on our survey of the existing Central and State laws relating to registration of marriages:
(i) There has been, and remains, tremendous diversity of laws relating to registration of marriages. The present state of the law on the subject is indeed complicated and confusing.
(ii) The only laws which provide for any kind of registration of divorces relate to Muslims and Parsis. All other marriage registration laws do not provide for registration of divorces although it is a socially beneficial proposition.
(iii) Registration of out-of-court divorces among the Hindus,Buddhists, Jains and Sikhs – which the Hindu Marriage Act 1955recognizes – is extremely desirable.
(iv) In the Muslim society there is a system of private registration of marriages by the kazis, which needs to be streamlined and linked with registration of marriage with State Registry.
(v) Among the Muslims divorces are never registered with a kazi. In those cases where a divorce takes place with the intervention of a kazi no record of the divorce is maintained by him. The provisions of the local laws in the Eastern States for registration of divorces among the Muslims are dormant and are hardly used in practice. Absence of registration of divorces in a community whose personal law allows out-of-court divorce leaves abundant room for misuse of law and often causes great hardship to women.
(vi) In very few States all marriages irrespective of the law under which these may have been solemnized have to be compulsorily registered. The majority of States have not enacted any general law on marriage registration applicable to all communities.
(vii) In those States where there are laws for compulsory registration of all marriages, such laws are faulty and ineffective. People generally do not adhere to them, as non-registration entails only fine of a petty amount.
(viii) The administrative machinery for registration of marriages is not regulated everywhere by one and the same law. This creates a lot of confusion with registration officials as well as people wanting or required to register their marriages.
(ix) As various communities are still governed by different marriage laws, Rules for compulsory registration of all marriages in all communities cannot obviously be made under any particular community-specific law.
(x) There is a general confusion in the minds of the people that registration of a marriage solemnized as per religious rites and desired to be governed by the religion-based law of the parties will turn it into a civil marriage to be governed by the general law of civil marriages. This is a great inhibition against marriage registration which needs to be effectively removed.
(xi) Advantages of registration of marriage and disadvantages of non registration are not specified in any law or policy document and therefore there is little clarity in the mind of the people in this respect.
Under the Constitution of India family matters are in the concurrent jurisdiction of the Centre and States [List III, Entry 5]. Parliamentary legislation on compulsory registration of marriages is therefore not only possible but also highly desirable. This will bring country-wide uniformity in the substantive law relating to marriage registration and will be helpful ineffectively achieving the desired goal. Rules under the proposed Act may of course be made by the State Governments, and this will take care of the local social variations.
We therefore recommend enactment of a central law on the subject. We further recommend consequential changes in all the relevant central and local laws.
Our detailed recommendations are as follows:
(i) A “Marriage and Divorce Registration Act” [hereinafter referred to as the “proposed law”] should be enacted by Parliament, to be made applicable in the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions.
(ii) The proposed law should deal only with registration of marriages and divorces and must not touch any substantive aspect now governed by various matrimonial laws – general and community specific.
(iii) A proper and common machinery for registration of marriages and divorces, including registration offices at the district/sub-district levels should be provided for under the proposed law. The State Governments may set up such offices, appoint Marriage and Divorce Registration Officers by name or ex officio at various levels, and prescribe rules to regulate their working.
(iv) Since in all communities marriages are solemnized with a religious ceremony, the religious officials solemnizing the marriages can play a major role in respect of registration of marriage. The proposed law should make it mandatory for the “officiating priest”of every marriage to prepare and maintain proper records of all marriages in a prescribed form. The term “officiating priest” shouldfor this purpose include the following:
a) pundits, purohits and other Hindu religious officials by whatever name called who officiate at a marriage;
b) kazis and all other Muslim religious officials by whatever name called who solemnize a nikah;
c) Christian pastors and other Church officials who solemnize aChristian marriage;
d) Parsi, Jewish and Bahai religious leaders who officiate at anymarriage among these communities;
e) clerics of all other religions performing this function; and
f) any other person, whether religious official or not, who performs religious or customary rites at any marriage.
(v) It should be made mandatory for every “officiating priest”(as defined above) to transmit copies of all their records at regular intervals to the local Marriage and Divorce Registration Officer.
(vi) While transmitting his records to the Marriage and Divorce Registration Officer, the officiating priest should also send a certificate that every marriage included in the record was to the best of his knowledge and belief in accordance with the requirement of the marriage law applicable to parties.
(vii) The proposed law should amend the following Acts to insert in them the requirements stated above at paras (v) and (vi) above:
a) Indian Christian Marriage Act 1872;
b) Kazis Act 1880;
c) Parsi Marriage and Divorce Act 1936; and
d) Hindu Marriage Act 1955..
(viii) The Kazis Act 1880 should be further amended to make it applicable both to private kazis and to every person who performs the nikah ceremony at any Muslim marriage.
(ix) The Special Marriage Act 1954 should be amended to provide that Marriage Officers working under its provisions shall transmit their records at prescribed intervals to the Marriage and Divorce Registration Officer of the concerned district.
(x) The Foreign Marriage Act 1969 should be amended to provide that Indian Diplomatic Missions in all countries shall send at prescribed intervals their records to the Ministry of Foreign Affairs in Delhi for onward transmission to the State Registry of the State concerned.
(xi) The Kazis Act 1880 should be further amended to provide that every divorce among the Muslims, in whatever form it takes place, must be communicated in writing to the kazi of the area within a prescribed time. The kazis should be required to maintain proper records of all such divorces and periodically transmit their records of divorces to the Marriage and Divorce Registration Officer of the area along with marriage records.
(xii) Section 29 of the Hindu Marriage Act 1955 should be amended to provide that all customary divorces among the Hindus,Buddhists, Jains and Sikhs should be duly registered with the Marriage and Divorce Registration Officers working under the proposed law.
(xiii) The following Acts should be amended, on the pattern of the provision to this effect found in the Parsi Marriage and Divorce Act 1936, to require the registries of courts granting decrees of divorce or nullity of marriage to periodically send information about the same in a prescribed form to the local Marriage Registration Office:
(a) Indian Christian Marriage Act 1872;
(b) Parsi Marriage and Divorce Act 1936;
(c) Special Marriage Act 1954; and
(d) Hindu Marriage Act 1955.
(xiv) The proposed law should declare failure to register a marriage or divorce as required by its provisions to be an offence punishable with heavy fines and, in default of payment of fine, with imprisonment for a prescribed period.
(xv) The proposed law should also provide that no judicial relief will be granted in a disputed matter if the concerned marriage or divorce is not duly registered under its provisions.
(xvi) The proposed law should be given an overriding effect on all other laws through a non obstante clause duly inserted in it.
(xvii) The following laws should be repealed with necessary saving provisions:
a) Births, Deaths and Marriages Registration Act 1886;
b) All State laws dealing with registration of marriages in general;
c) Muslim Marriage and Divorce Registration Acts (by whatever name called) in force in West Bengal, Bihar, Jharkhand, Orissa, Assam and Meghalaya; and
d) Any provision relating to registration of marriages in any pre-existing law which comes in conflict with the provisions of the proposed law (to the extent of such conflict).
For further reading, refer below.
|Order of Supreme court dated|
|13-oct-2015||Requested learned Solicitor General to look into the issue of Uniform Civil Code. ALBERT ANTHONY VERSUS UNION OF INDIA|
|14-feb-2006||Detailed discussion on status of laws relating to registration of marriage Smt. Seema v Ashwani Kumar dated 14/02/2006|
|Reports of Law commission of India|
|259||Early childhood entitlement and legal entitlements|
|257||Reforms in guardianship and custody laws in India|
|252||Right of Hindu wife to maintenance|
|247||Indian succession Act|
|242||Prevention of interference with the freedom of matrimonial alliances [in the name of honour and tradition) a suggested legal framework|
|227||Preventing Bigamy via conversion to Islam – A proposal for giving statutory effect to supreme court rulings.|
|224||Amendment to the Divorce Act 1869|
|217||Report on irretrievable breakdown of marriage – another ground of divorce.|
|212||Law of civil marriages in India – a proposal to resolve certain conflicts|
|211||Registration and divorce of marriage|
|209||Amendment to the Indian Succession Act, 1925|
|208||Amendment to the Hindu Succession Act, 1957|
|207||Amendment to the Hindu Succession Act, 1957|
|204||Amendment to the Hindu Succession Act, 1957|
|174||Property rights of the Hindu women –issued in May 2000|