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Uniform Civil Code: What stalls its implementation?


New Delhi, Oct 13: The Supreme Court put-forth a gentle reminder to the government of India whether the Uniform Civil Code (UCC) could be implemented or not. Solicitor General, Ranjith Kumar who was before the Bench of the Supreme Court yesterday refrained from making any comment when told that the implementation of the Uniform Civil Code needs to be explored.

The UCC if implemented would replace the various personal laws of communities by way of a common legislation. Whether the government of India would take the step and implement UCC is not clear.

Supreme Court

Sucessive governments have stayed away from the implementation of the UCC fearing a backlash and it has been the Supreme Court which has stepped in several times and delivered bold verdicts as in the cases of Shah Bano, Githa Hariharan or Shamim Ara.

Can India have a Uniform Civil Code?

The Uniform Civil Code and its implementation has often been debated. However, implementing UCC is easier said than done. Governments have been worried about a possible backlash from communities. Personal laws such as marriages, succession or divorce are governed by rules that are specific to religion.

Legal experts say that the implementation of the UCC is the sole prerogative of the Union Government. The courts can only suggest or pass judgments on specific cases.

The Supreme Court has however been proactive in several cases such as Shah Bano or Shamim Ara. The Supreme Court has several times taken upon itself to tackle issues relating to personal laws relating to every community. It has very often suggested to the government the need of a Uniform Civil Code.

Judgments that made a difference:

The Shah Bano case of 1985 is probably one of the most path breaking judgments that the Supreme Court has issued. The Supreme Court upheld the decision of the lower which had directed Shah Bano's husband to pay a maintenance amount under the alimony provision of Indian law applicable to all communities.

The Muslim law only dealt did not have the concept of life long maintenance. The Supreme Court however awarded Shah Bano lifetime maintenance under the secular alimony law of India. There were protests by the Muslim community following this judgment.

In the Shamim Ara case of 2002 the Supreme Court stepped in on the issue of Triple Talaq and strengthened the position of Muslim women. Further, in the year 2007 when the Bombay High Court heard the Dilshad Pathan vs Ahmadkhan Pathan case in which it said that saying of the world talaq was not sufficient condition for divorce. The court also stated that arbitrators must be appointed in a bid to reconcile the couple.

In the Githa Hariharan vs Reserve Bank of India case of 1999 the Supreme Court of India dealt with the Hindu Minority and Guardianship Act, 1956. According to this act, the father is the natural guardian of a Hindu child. However, as per the act if the child is born out of wedlock, the mother is the natural guardian. This provision was struck down by the Supreme Court and it was held that the father cannot have a preferential right over a mother in matters of guardianship.

What is Uniform Civil Code?

A Uniform Civil Code would replace the personal laws which are based on scriptures and customs of every religious community in India. Article 44 of the Directive Principles in India sets its implementation as duty of the State. There have been several debates over the implementation of the Uniform Civil Code.

However, governments have not been successful in its implementation due to diversity and religious laws which differ from each community, caste or religion.

The BJP was in fact the first party to promise its implementation if elected. Goa incidentally is the only state which has a uniform civil code. The Goa Family Law, is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961 according to Wikipedia.

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