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LEGAL WRITING AND LEGAL LANGUAGE
Unit I. Uniform Civil Code
Syllabus
Essays
1. Uniform Civil Code – 10 Marks
Article 44 of the Constitution of India with relevant extracts from the Parliamentary
Debate on the Subject.
Various personal legislations relating to the personal; rights in adoption, marriage and
divorce, guardianship, maintenance and succession.
Desirability of Uniform Civil Code in the matter of Marriage, divorce, adoption,
succession laws appearing herein after as applicable to difference religion and
community.
a) Hindu Marriage Act 1955.
b) Divorce Act 1869.
c) Parsi Marriage and Divorce Act 1936.
d) Special Marriage Act 1954.
e) Dissolution of Muslim Marriage Act 1939.
f) Hindu Adoption and Maintenance Act 1956.
g) Indian Succession Act 1925.
h) Hindu Succession Act.
i) Law of Succession relating to Mohammedan.
Judgments of the Supreme Court of India delivered from time to time recommending
changes in personal laws to bring about uniformity amongst personal laws.
a) Ms. Jorden Diengdeh vs. S.S. Chopra AIR 1985 SC 935.
b) Mohamed Ahmed Khan vs. Shah Bano Begum and others AIR 1985 SC 945.
c) Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC
1531.
d) Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573.
e) Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc. AIR 1997 BOM
341.
2. Reservation Marks – 15 Marks
Reservation under Constitution of India
Article 14, 15, 16(4), 17, 29(2), 46, 330, 331, 332 and 335 from the Constitution of
India.
News items that have appeared and will continue to appear in the newspaper and
magazines/journals from time to time on the subject of Reservation.
Judgement of the Supreme Court of India in particular the Judgement on Reservation
after Mandal Commission Report.
Reservation of seats for women in decision making body.
Articles from the News Papers and Periodicals on this issue of Reservation.
Views expressed by the Supreme Court of India in the Judgment of Musilamani
Mudaliar vs. Idol of Sri Swaminathaswami Hirukoli (1996) 8 SCC 525.
Constitution (Eighty First Amendment) Bill 1996 for Reservation of seats for women in
the House of the People.
Reservation in Education, Employment and Promotion.
Articles from the Newspapers and Periodicals on this issue.
Views expressed by the Supreme Court of India in the following Judgments.
a) K.C. Vasanth Kumar vs. State of Karnataka 1985 Supp. SCCC 714.
b) Janaki Prasad Parimoo vs. State of J. & K. (1973) SCC 420.
c) Indra Sawhney vs. Union of India 1992 Supp. (3) SCC 217 Mandal Commission Case.
d) Chhatar Singh vs. State of Rajasthan (1996) 11 SCC 742.
e) Ashok Kumar Gupta vs. State of U.P. (1997) 5 SCC 201.
f) S. Rangrajan vs. P. Jagjivan Ram (1998) 2 SCC 574.
Syllabus Contd. 1
3. Consumer Activism – Marks 15
Introduction to the Consumer Protection Act.
The Consumer Protection Act, 1986.
Section 2 (6) Complaint
Section 2 (8) who is a Consumer
Consumers of Housing Facilities, Banking Services, Medical Services, Insurance
Services, Telephone Services and Miscellaneous Services.
Consumer Protection Movement.
Consumer, Consumerism and the Constitution of India.
4. Public Interest Litigation – Marks 15
Concept of Public Interest Litigation.
Public Interest Litigation in India.
Constitution of India, Articles in Parts III and IV.
Philosophical Basis of Public Interest in India.
Concept and Scope of Locus Standi.
Procedural Law in Public Interest Litigation.
Breach of Directive Principles of State Policy vis-à-vis Public Interest Litigation.
Socio-Economic Justice vis-à-vis Public Interest Litigation in India.
Judicial Activism to Public Interest Litigation Act.
a) Judicial Activism – Genesis and Relevance.
b) Critical Appraisal of Public Interest Litigation in India.
c) Uses of Public Interest Litigation and Abuses of Public Interest Litigation.
Role of Judiciary in enforcement of rights through Public Interest Litigation and Social
Action Litigation.
a) Atrocity over foot path dwellers.
b) Police atrocities. Some leading cases on custodial death, torture, handcuffing and
illegal detention by police.
c) Environment and Pollution.
d) Misuses of Public Property.
e) Status and Rights of women in Indian Society.
5. Introduction to the writing of eminent Jurists. – Marks 15
1. We the People. By N.A. Palkhiwala
Part III Constitutional Issues.
Chapter 9 to 14. Pages 123 to 260.
Part IV Chapter 17 Pages 337 to 356
2. The Discipline of Law. By Lord Denning
Part one, the construction of documents, Chapter 1 to 4. Pages 5 to 53
Part Three Pages 113 to 146..
3. Learning the Law. By Glanville Williams.
Chapter 1 The Division of the Law.
Chapter 2 Common of the Law.
Chapter 3 The Mechanism of Scholarship.
Chapter 4 Method of Study.
Chapter 5 Technical Terms.
Chapter 6 Case Law Techniques.
Chapter 7 The Interpretation of Statutes.
Chapter 8 Working out Problems.
Chapter 9 Answering Bookwork Question.
Chapter 10 In the Examination room.
In all the Chapters referred herein above reference to the English system of judiciary is
omitted.
Syllabus Contd. 2
6. Extracts from Important Judgments. – Marks 15
Extracts would mean ratio of the Judgment as appearing in the Head Note and
paragraphs of the Judgment wherein the law point is discussed. To also read the facts
as set out in the Judgment.
1) Additional District Magistrate, Jabalpur vs. Shivkant Shukla. AIR 1976 SC 1207. This
Judgment to be discussed from the book. We the People as also from the Judgment. To
also briefly read other Judgments referred to therein.
2) P. V. Narsimha Rao vs. State. Air 1998 SC 2120.
3) Indian Medical Association vs. V. P. Shantha. AIR 1996 SC 550.
4) S. P. Gupta vs. Union of India OR Transfer of Judge’s case. AIR 1982 SC 149. This
Judgment is discussed from the book. We the People as also from the Judgment. To
also briefly read other Judgments referred to therein.
7. Accounts of Famous Trial – Marks 15
1) Trial of Bal Gangadhar Tilak under Section 124A and 153A of the India Penal Code.
The above Trial is taken from the book.
Trial of Independence Author B. R. Agarwala. Publisher National Book Trust, India.
Trials of Tilak Author Publisher The Director, Publication Division, Ministry of
Information and Broadcasting, Government of India.
Judgment reported in AIR 1922 BOM 112.
2) Trial of Mahatma Gandhi under Section 124A of the Indian Penal Code.
The above Trial is taken from the book.
Trials of Independence Author B. R. Agarwala. Publisher National Book Trust, India.
Plea made by Mahatma Gandhi for the severest penalty upon conviction for sedation
taken from the book. The World of Law, Volume II. The Law as Literature edited by
Ephraim London at pages 459 to 466.
3) Trial of Walter Rowland.
The above Trial is from the book with the title referred herein above. It is a trial with
an introduction and edited by Henry Cecil. The entire trial as published in a book
running into 164 pages. Students were however given pages 9 to 58 which gives
relevant evidence, extract of Judgment etc. The book is published under the series
Celebrated Trials.
Uniform Civil Code - Background
• Uniform Civil Code (UCC) implies a single law for all the citizens of the country applicable to their personal matters such as
marriage, divorce, inheritance, custody and adoption etc.
• The concept and origin of the Uniform Civil Code in India can be traced back to colonial India when the British government
submitted a report in 1835 emphasizing the need of uniformity in codifying the Indian law relating to crimes, evidence, and
contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
• Before the British rule, India was made up of many principalities. Further, law across India varied widely from region to region and
from ruler to ruler.
• With the passing of the Charter Act of 1833, law-making authority was placed in the hands of the Governor-General of India.
• Indian Law Commission formed in 1834, headed by Lord Macaulay who had been appointed for codification of existing laws.
• Indian Penal Code (1860), Criminal Procedure Code (1861), and Code of Civil Procedure (1858) were enacted through efforts of
Lord Macaulay making applicable these Codes applicable throughout the entire country, thus bringing all Indians under one
umbrella of a single system of laws.
• Other Acts/laws such as Indian Contract Act 1872, Transfer of Property Act 1882, Indian Partnership Act 1932 and the Indian
Evidence Act 1872 also had uniform applicability in the country.
• Only personal laws were never made uniformly applicable. These are laws that are governing religious communities.
• Further, post the 1857 Uprising, Indian were assured non-interference and acceptance of all worships and belief in the Queen
Victoria's Proclamation at Allahabad. The British adopted hands-off policy regarding subjects related to religion and beliefs. This
resulted no uniformity in law relating to personal matters.
Personal Law - Current Situation
• As seen earlier, the British Colonial Administration stopped their
project of enforcing uniform laws post-1857 Uprising and made it their policy to not
interfere in matters regarding religion, tradition, customs, etc. of the Indians, thereby
making Indians subject of their personal laws; in the post-independence era, this situation continued.
• So currently, in India, we have personal law in matters relating to relating to marriage, divorce,
inheritance, succession, etc.
• Personal Law is defined as a law that applies to a certain class or group of people or a particular
person, based on the religions, faith, and culture.
• Thus, the law by which an individual is governed in respect of various personal matters such as,
principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession,
etc. is based on the person’s religion, faith, and/or culture.
• Example: a Muslim will be governed by Muslim Personal Law (Shariat) Application Act (1937),
Dissolution of Muslim Marriages Act (1939), Muslim Women (Protection of Rights on Marriage) Act
(2019), etc.
Various personal legislations relating to the personal; rights in
adoption, marriage and divorce, guardianship, maintenance
and succession
• Hindu Marriage Act, 1955
• Divorce Act, 1869
• Parsi Marriage and Divorce Act, 1936
• Special Marriage Act, 1954
• Dissolution of Muslim Marriage Act, 1939
• Hindu Adoption and Maintenance Act, 1956
• Indian Succession Act, 1925
• Hindu Succession Act, 1956
• Muslim Laws of Succession
• Juvenile Justice (Care and Protection of Children) Act, 2015
Uniform Civil Code: A Constitutional Mandate
Constitution of India
Part IV: Directive Principles of State Policy
Article 44. Uniform civil code for the citizens.— The State shall
endeavour to secure for the citizens a uniform civil code throughout
the territory of India.
• Object of Article 44: Enable the State to adopt the policy of a singular
law in personal matters such as marriage, divorce, adoption, etc.
Constitutional Assembly Debates
• Constituent Assembly Debates indicated that the constitution-makers disputed the concept, relevance, and
utility of the Uniform Civil Code during the constitution-making process.
• Primary opposition came from the Muslim members of the Constituent Assembly who thought that such a
provision would give a free pass to the Majority community to interfere and discriminate in the lives of the
minorities in the garb of or by means of the State structure
• Mohammad Ismail Khan of Madras Presidency proposed adding the following proviso to Article 35: "Any
group, section, or community of people shall not be obliged to give up its own personal law if it has one."
• He argued the following:
"The right of a group or a community of people to follow and adhere to its own personal law is among the
fundamental rights and this provision should really be made amongst the statutory and justiciable
fundamental rights. It is for this reason that I along with other friends have given amendments to certain other
articles going previous to this which I will move at the proper time. Now the right to follow personal law is part
of the way of life of those people who are following such laws; it is part of their religion and part of their
culture. If anything is done affecting the personal laws, it will be tantamount to interference with the way of
life of those people who have been observing these laws for generations and ages. This secular State which we
are trying to create should not do anything to interfere with the way of life and religion of the people."
Constitutional Assembly Debates Contd. 1
• Naziruddin Ahmad: “I submit, Sir, there are certain aspects of the Civil Procedure Code which
have already interfered with our personal laws and very rightly so. But during the 175 years of
British rule, they did not interfere with certain fundamental personal laws. They have enacted
the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code,
the Penal Code, the Evidence Act, the Transfer of Property Act, the Sarda Act and various other
Acts. They have been imposed gradually as occasion arose and they were intended to make the
laws uniform although they clash with the personal laws of a particular community. But take the
case of marriage practice and the laws of inheritance. They have never interfered with them. It
will be difficult at this stage of our society to ask the people to give up their ideas of marriage,
which are associated with religious institutions in many communities. The laws of inheritance
are also supposed to be the result of religious injunctions. I submit that the interference with
these matters should be gradual and must progress with the advance of time. I have no doubt
that a stage would come when the civil law would be uniform. But then that time has not yet
come. We believe that the power that has been given to the State to make the Civil Code uniform
is in advance of the time. As it is, any State would be justified under Article 35 to interfere with
the settled laws of the different communities at once."
Constitutional Assembly Debates Contd. 2
• K. M. Munshi: "The point however is this, whether we are going to consolidate and unify our personal law in
such a way that the way of life of the whole country may in course of time be unified and secular. We want
to divorce religion from personal law, from what may be called social relations or from the rights of parties
as regards inheritance or succession. What have these things got to do with religion I really fail to
understand. Take for instance the Hindu Law Draft which is before the Legislative Assembly. If one looks at
Manu and Yagnyavalkya and all the rest of them, I think most of the provisions of the new Bill will run
counter to their injunctions. But after all we are an advancing society. We are in a stage where we must
unify and consolidate the nation by every means without interfering with religious practices. If however
the religious practices in the past have been so construed as to cover the whole field of life, we have
reached a point when we must put our foot down and say that these matters are not religion, they are
purely matters for secular legislation. This is what is emphasised by this article."
• Alladi Krishnaswami Ayyar: A Civil Code, as has been pointed out, runs into every department of civil
relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage
and similar matters. How can there be any objection to the general statement here that the States shall
endeavour to secure a uniform civil code throughout the territory of India?
Constitutional Assembly Debates Contd. 3
• Dr. B. R. Ambedkar: My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it
was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess
that I was very much surprised at that statement, for the simple reason that we have in this country a
uniform code of laws covering almost every aspect of human relationship. We have a uniform and
complete Criminal Code operating throughout the country, which is contained in the Penal Code and the
Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and
which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite
innumerable enactments which would prove that this country has practically a Civil Code, uniform in its
content and applicable to the whole of the country. The only province the Civil Law has not been able to
invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so
far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about
that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat
misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which
is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether
we could do it. As I say, we have already done it.
Constitutional Assembly Debates Contd. 4
Dr. B. R. Ambedkar (Contd.):
Coming to the amendments, there are only two observations which I would like to make. My first observation would be to state
that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was
immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have
spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law.
It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature
had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and
to apply the Shari at Law to them. That is not all. I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the
Marumakkathayam Law applied to all--not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam
Law is a Matriarchal form of law and not a Patriarchal form of law... It is therefore no use making a categorical statement that the
Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in
certain parts and it has been made applicable ten years ago.
My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too
much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It
does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly
possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those
who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be
purely voluntary. Parliament may feel the ground by some such method. This is not a novel method.
Desirability of Uniform Civil Code
• It will boost the national integrity by removing all sorts of disparity in Indian setup.
• The UCC will be embarked on the footstep of the Indian Constitution, which talks about
the principle of secular state. All interactions of the citizens shall be based on
uniform secular laws, devoid of any religious element.
• The provisions of UCC will definitely going to ensure social justice under the Indian
gender-based disparity society.
• It will bring our women in the mainstream of our society under the umbrella cover of
UCC.
• It will pave way to provide for same-sex marriages and remove any discrimination based
on sexual orientation. Currently, many countries recognize such marriages, and
recognizing such foreign marriages in India is necessary to avoid any 'conflict of
laws' situations.
Further, the Supreme Court and the High Courts has time and again observed the need for
a Uniform Civil Code.
Case Laws -1
Ms. Jorden Diengdeh v. S.S. Chopra (AIR 1985 SC 935)
The petitioner belonged to the ‘Khasi’ tribe of Maghalaya and was born and brought up as a Presbytarian
Christian. She is now a member of the Indian Foreign Service. The respondent-husband is a Sikh. They were
married under the Indian Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of
nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian Divorce Act, 1869.
Held:
(1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955,
Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939,
show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
(2) Under the Hindu Marriage Act , a decree for the judicial separation may be followed by a decree for the
dissolution of marriage on the lapse of one year or upwards from date of the passing of a decree for judicial
separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision
under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain
content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period
of time.
Case Laws -1
Ms. Jorden Diengdeh vs. S.S. Chopra AIR 1985 SC 935 Contd. 1
(3) In the instant case, the marriage appears to have broken down irretrievably. If the
findings of the High Court stand, there is no way out for the couple. They will continue to
be tied to each other since neither mutual consent nor irretrievably break-down of
marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose
to be served by the continuance of a marriage which has so completely and signally broken
down. The parties are bound together by a marital tie which is better untied.
(4) Time has now come for the intervention of the legislature to provide for a uniform code
of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of
the unhappy situations in which couples find themselves in. It is necessary to introduce
irretrievably break-down of marriage, and mutual consent as grounds of divorce in all
cases.
Case Laws -2
Mohamed Ahmed Khan vs. Shah Bano Begum and
others AIR 1985 SC 945
Ms. Shah Bano Begum was married to a lawyer
named Mr. Mohd. Ahmed Khan. They lived together
for 43 years and had five children. In 1978, Mr. Khan
threw Ms. Begum out of the shared household and
Ms. Begum applied for maintenance from Mr. Khan
under Section 125 of the Criminal Procedure Code,
1973 (Cr.P.C, 1973). Pending her application, Mr. Khan
dissolved the marriage by pronouncing a triple talaq
(divorce on the triple utterance of the word “talaq”
by a Muslim husband) and paid Ms. Begum Rs. 3000
as “mahr” (money/valuable property promised to a
Muslim woman for her financial security under the
marriage contract) and a further sum of maintenance
for the “iddat” period (a period of 3 months that a
Muslim woman must observe before she can remarry
after her divorce).
Issues:
• Whether S. 125 Cr.P.C. which calls for maintenance
for wives including divorced wives, applicable to
Muslims?
• Whether under Cr.P.C. the maintenance order can
be cancelled by the Court, if a divorced wife has
received the whole amount payable to her “on
divorce”? In other words, can it be said that mahr
paid under Muslim law is maintenance payable “on
divorce”?
Case Laws -2
Maintenance law under section 125 of CrPC is a measure of social justice designed to provide
financial assistance i.e., maintenance to wife, children, and parents, to prevent them from falling into
destitution.
S. 125, Cr.P.C.
(1) If any person having sufficient means neglects or refuses to maintain--
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate as such Magistrate thinks fit and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied
that the husband of such minor female child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to pay
the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.
Explanation.--For the purposes of this Chapter,
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and expenses of proceeding, as the case
may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in
the manner provided for levying fines, and may sentence such person, for the whole or any
part of each months allowance for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until payment if
sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one
year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.
Explanation.--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.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be, from her husband under this
section if she is living in adultery, or if, without any sufficient reason, she refuses to live with
her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section in
living in adultery, or that without sufficient reason she refuses to live with her husband, or
that they are living separately by mutual consent, the Magistrate shall cancel the order.
Case Laws -2
Mohamed Ahmed Khan vs. Shah Bano Begum and others AIR 1985 SC 945 Contd.
Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the
amount due to her on divorce under the Muslim personal law. He claimed that Ms. Begum has been
terminated from being his legal wife and due to that he was not accountable to furnish her with maintenance
or alimony, except “mehr” as prescribed under Muslim personal law. The lower court granted Ms. Begum’s
claim for maintenance, which was set at Rs. 179 per month by the High Court in a revision application. This was
appealed by Mr. Khan in the Supreme Court.
Held:
The Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to
pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay
maintenance beyond the iddat period.
SC stated, “there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on
the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to
maintain herself”.
Case Laws -3
Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531
This case consisted of different writ petitions brought by: Petitioner 1 who is president of ‘Kalyani’ , an NGO working
for women in distress; 2nd Petitioner is one Ms. Meena Mathur, first wife of one Mr. Jitender Mathur; 3rd Petitioner is
one Ms. Sunita Narula a.k.a. Fatima, second wife of Mr. Jitender Mathur; and 4th Petitioner is one Ms. Geeta Rani,
whose husband married again after converting to Islam.
Meena Mathur said that she was shocked to learn that her husband had married Sunita Narula after converting to
Islam. She contended that he converted to Islam only for the purpose of marrying Sunita Narula circumventing the
provisions of S.494 of IPC (criminal provision against bigamy).
Sunita Narula stated that Jitender after marrying her, under the influence of his first wife gave an undertaking that he
had reverted to Hinduism and agreed to maintain his children and first wife. But she continues to be Muslim and has
no maintenance and protection under either of the personal laws.
Geeta Rani, who was married to one Pradeep Kumar stated that she was being harassed by her husband says that her
husband has married another girl by converting his religion to Islam.
Case Laws -3
Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531 Contd.
Issues Raised:
Whether a person married under Hindu Law, solemnize a second marriage by embracing Islam?
Whether such marriage would be a valid marriage, without having first marriage dissolved under the law and the first
wife continued to be Hindu?
Whether the apostate is guilty of bigamy under Section 494 of IPC?
Held:
1. The Court held that mere fact of conversion to Islam does not dissolve the marriage. A marriage could be dissolved
only by the decree of court. The court observed that as per Hindu Law that existed before 1955, the marriage subsists
even if one of the spouse converts to Islam. There is no automatic dissolution of marriage.
In marriages under Hindu Law, the parties acquire certain rights, and if one of the spouse converts to another religion
and enforce it, it would destroy the rights of the other spouse violating the rules of justice, equity, and good
conscience. Considering the plurality of laws and interest of both the communities, the Court stated that the Hindu
husband married under Hindu Law cannot solemnize second marriage by embracing Islam.
Case Laws -3
Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531 Contd. 2
2. In order to answer the question of validity of second marriage, the Court stated that
a. The marriage can only be dissolved by decree of divorce obtained on any of the ground enumerated in Section 13 of the Hindu
Marriage Act, and
b. A marriage which contravenes any of the conditions specified in clause (I), (iv), and (v) of S. 5 is void i.e., the marriage performed
when the spouse is living is void.
c. A divorced person can marry again on dissolution of marriage by decree of divorce and there is no right to appeal against such
decree if the time to appeal is over.
Considering the above legal propositions, the court concluded that the Hindu Marriage Act strictly enforces monogamy. The marriage
performed under Hindu Law cannot be dissolved except on the grounds available in Sec. 13. Therefore, the husband and the first wife
remain married and hence the second marriage violates the provisions of the Act. Therefore, the apostate’s second marriage would
be illegal.
3. The Hon’ble Supreme Court observed that the second marriage by Hindu husband would violate principle of justice, equity, and
good conscience and thus also attract S. 494 IPC.
Considering the above discussion, the Court held that the second marriage of Hindu husband, without dissolution of the first
marriage, would be invalid. The second marriage would violate S. 494 and therefore the husband would be guilty of bigamy.
Case Laws -4
Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573
A bunch of three Writ Petitions have been filed in this case in the form of Public
Interest Litigations seeking to challenge various aspects of Personal Laws. The first
writ petition sought to challenge the marriage, divorce and inheritance rules of
Muslim personal law as violative of Article 14 and 15 read with Article 13 of the
Constitution. Similarly, second petition sought to challenge some aspects of Hindu
Marriage Act, 1955; Hindu Succession Act, 1956 and Hindu Guardianship laws on
the touchstone of same provisions of the Constitution. That apart, the prayer
sought in the third petition was to declare Sections 10 and 34 of Indian Divorce Act
void and also to declare Sections 43 to 48 of Indian Succession Act void.
Case Laws -4
Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573
A bunch of three Writ Petitions have been filed in this case in the form of Public Interest
Litigations seeking to challenge various aspects of Personal Laws. The first writ petition
sought to challenge the marriage, divorce and inheritance rules of Muslim personal law as
violative of Article 14 and 15 read with Article 13 of the Constitution. Similarly, second
petition sought to challenge some aspects of Hindu Marriage Act, 1955; Hindu Succession
Act, 1956 and Hindu Guardianship laws on the touchstone of same provisions of the
Constitution. That apart, the prayer sought in the third petition was to declare Sections 10
and 34 of Indian Divorce Act void and also to declare Sections 43 to 48 of Indian Succession
Act void.
Against this backdrop, the issue raised was ‘whether the Court should interfere in the
matters of unification of Personal Laws or not?’
Case Laws -4
Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 Contd. 1
The Court opined that the remedy lies somewhere else and not by knocking at the doors of the courts.
On the question is whether it is necessary that the legislature should make law uniformly applicable to all
religions or charitable or public institutions and endowments established or maintained by people
professing all religions. In a pluralist society like India in which people have faith in their respective
religions, beliefs or tenets propounded by different religions or their offshoots, the founding fathers,
while making the Constitution, were confronted with problems to unify and integrate people of India
professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking
different languages and dialects in different regions and provided a secular Constitution to integrate all
sections of the society as a united Bharat. The directive principles of the Constitution themselves visualize
diversity and attempted to foster uniformity among people of different faiths.
Case Laws -4
Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 Contd. 2
A uniform law, though is might desirable, enactment thereof in one go perhaps may be counter-
productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual
progressive change and order should be brought about. Making law or amendment to a law is a slow
process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be
inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one
go. The mischief or defect which is most acute can be remedied by process of law at stages.
Thus, the Court believed that while it was desirable to have a Uniform Civil Code, the time was yet not
ripe, and the issue should be entrusted to the Law Commission which may examine the same in
consultation with the Minorities Commission.
Held:
Issues raised in this case are in nature of State Policy, and thus, the only legislature is empowered to deal
with such issues.
Case Laws -5
Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc. AIR 1997 BOM 341
In this case, the petitioner challenged the provision of Indian Divorce Act 1869, on the ground of gender
inequality i.e., violative of the equality principle.
The Bombay High Court recognized and upheld their plea and removed the defects from the Act.
Section 10 of the Act was held ultra vires and unconstitutional. The words and phrases 'incestuous' and
'adultery coupled with' used in the impugned provisions in Section 10 are severable and struck down as
ultra vires Arts. 14, 15 and 21 of the Constitution of India.
The remaining portions of the Section would in terms provide adultery, desertion and cruelty as indicated
therein as independent grounds for dissolution of marriage for Christian wives whose marriage has
irreversibly broken down as a result of desertion, cruelty and adultery committed by the husband.
By striking down the underlined portions as ultra vires, the remaining portion can by itself remain as
constitutionally valid provision along with the rest of the provisions in Section 10 of the Act. The
offending portion can easily be severed and cannot be treated as inextricably connected with the
remaining portion.
Case Laws - Summarized
a) Ms. Jorden Diengdeh vs. S.S. Chopra: Need for provision of ‘No fault divorce’ / ‘divorce
by mutual consent’ in case of irretrievable break-down of marriage
b) Mohamed Ahmed Khan vs. Shah Bano Begum and others: Provisions for maintenance
and alimony
c) Smt. Sarla Mudgar, President Kalyani and others vs. Union of India: Conversion of religion
for a second marriage is against the basic principles of justice, equity and good conscience
d) Ahmedabad Women Action Group (AWAG) vs. Union of India: Courts should not
interfere in the matters of unification of Personal Laws; only legislature is empowered to
deal with personal laws / UCC
e) Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc.: Need for Gender
neutral laws
Important Questions
Short Note / Short Answers
• What is Uniform Civil Code?
• What is bigamy?
• What is the objective of Article 44 of the
Indian Constitution?
• What is the provision for maintenance under
Section 125 of the Criminal Procedure Code (S.
125, Cr.P.C.)?
• What were the issues in the Shah Bano Case?
Long Answers
• What is the significance of Uniform Civil Code
in India in the present day? Give your
suggestions for a strong Civil Code.
• “A Uniform Civil Code should be implemented
with immediate effect.” Elaborate with the
help of case laws.
• Write a short note on “Uniform Civil Code”.
• Write an essay on the Uniform Civil Code with
the help of landmark Supreme Court
judgements.
Resources
• Constitution of India: https://legislative.gov.in/sites/default/files/COI...pdf
• Constitutional Assembly Debates: www.constitutionofindia.net/constitution_assembly_debates
• Desirability of Uniform Civil Code in India- Need of the hour: https://www.jusdicere.in/desirability-of-
uniform-civil-code-in-india-need-of-the-hour/

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LWLL Unit I - Uniform Civil Code-1.pptx

  • 1. LEGAL WRITING AND LEGAL LANGUAGE Unit I. Uniform Civil Code
  • 2. Syllabus Essays 1. Uniform Civil Code – 10 Marks Article 44 of the Constitution of India with relevant extracts from the Parliamentary Debate on the Subject. Various personal legislations relating to the personal; rights in adoption, marriage and divorce, guardianship, maintenance and succession. Desirability of Uniform Civil Code in the matter of Marriage, divorce, adoption, succession laws appearing herein after as applicable to difference religion and community. a) Hindu Marriage Act 1955. b) Divorce Act 1869. c) Parsi Marriage and Divorce Act 1936. d) Special Marriage Act 1954. e) Dissolution of Muslim Marriage Act 1939. f) Hindu Adoption and Maintenance Act 1956. g) Indian Succession Act 1925. h) Hindu Succession Act. i) Law of Succession relating to Mohammedan. Judgments of the Supreme Court of India delivered from time to time recommending changes in personal laws to bring about uniformity amongst personal laws. a) Ms. Jorden Diengdeh vs. S.S. Chopra AIR 1985 SC 935. b) Mohamed Ahmed Khan vs. Shah Bano Begum and others AIR 1985 SC 945. c) Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531. d) Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573. e) Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc. AIR 1997 BOM 341. 2. Reservation Marks – 15 Marks Reservation under Constitution of India Article 14, 15, 16(4), 17, 29(2), 46, 330, 331, 332 and 335 from the Constitution of India. News items that have appeared and will continue to appear in the newspaper and magazines/journals from time to time on the subject of Reservation. Judgement of the Supreme Court of India in particular the Judgement on Reservation after Mandal Commission Report. Reservation of seats for women in decision making body. Articles from the News Papers and Periodicals on this issue of Reservation. Views expressed by the Supreme Court of India in the Judgment of Musilamani Mudaliar vs. Idol of Sri Swaminathaswami Hirukoli (1996) 8 SCC 525. Constitution (Eighty First Amendment) Bill 1996 for Reservation of seats for women in the House of the People. Reservation in Education, Employment and Promotion. Articles from the Newspapers and Periodicals on this issue. Views expressed by the Supreme Court of India in the following Judgments. a) K.C. Vasanth Kumar vs. State of Karnataka 1985 Supp. SCCC 714. b) Janaki Prasad Parimoo vs. State of J. & K. (1973) SCC 420. c) Indra Sawhney vs. Union of India 1992 Supp. (3) SCC 217 Mandal Commission Case. d) Chhatar Singh vs. State of Rajasthan (1996) 11 SCC 742. e) Ashok Kumar Gupta vs. State of U.P. (1997) 5 SCC 201. f) S. Rangrajan vs. P. Jagjivan Ram (1998) 2 SCC 574.
  • 3. Syllabus Contd. 1 3. Consumer Activism – Marks 15 Introduction to the Consumer Protection Act. The Consumer Protection Act, 1986. Section 2 (6) Complaint Section 2 (8) who is a Consumer Consumers of Housing Facilities, Banking Services, Medical Services, Insurance Services, Telephone Services and Miscellaneous Services. Consumer Protection Movement. Consumer, Consumerism and the Constitution of India. 4. Public Interest Litigation – Marks 15 Concept of Public Interest Litigation. Public Interest Litigation in India. Constitution of India, Articles in Parts III and IV. Philosophical Basis of Public Interest in India. Concept and Scope of Locus Standi. Procedural Law in Public Interest Litigation. Breach of Directive Principles of State Policy vis-à-vis Public Interest Litigation. Socio-Economic Justice vis-à-vis Public Interest Litigation in India. Judicial Activism to Public Interest Litigation Act. a) Judicial Activism – Genesis and Relevance. b) Critical Appraisal of Public Interest Litigation in India. c) Uses of Public Interest Litigation and Abuses of Public Interest Litigation. Role of Judiciary in enforcement of rights through Public Interest Litigation and Social Action Litigation. a) Atrocity over foot path dwellers. b) Police atrocities. Some leading cases on custodial death, torture, handcuffing and illegal detention by police. c) Environment and Pollution. d) Misuses of Public Property. e) Status and Rights of women in Indian Society. 5. Introduction to the writing of eminent Jurists. – Marks 15 1. We the People. By N.A. Palkhiwala Part III Constitutional Issues. Chapter 9 to 14. Pages 123 to 260. Part IV Chapter 17 Pages 337 to 356 2. The Discipline of Law. By Lord Denning Part one, the construction of documents, Chapter 1 to 4. Pages 5 to 53 Part Three Pages 113 to 146.. 3. Learning the Law. By Glanville Williams. Chapter 1 The Division of the Law. Chapter 2 Common of the Law. Chapter 3 The Mechanism of Scholarship. Chapter 4 Method of Study. Chapter 5 Technical Terms. Chapter 6 Case Law Techniques. Chapter 7 The Interpretation of Statutes. Chapter 8 Working out Problems. Chapter 9 Answering Bookwork Question. Chapter 10 In the Examination room. In all the Chapters referred herein above reference to the English system of judiciary is omitted.
  • 4. Syllabus Contd. 2 6. Extracts from Important Judgments. – Marks 15 Extracts would mean ratio of the Judgment as appearing in the Head Note and paragraphs of the Judgment wherein the law point is discussed. To also read the facts as set out in the Judgment. 1) Additional District Magistrate, Jabalpur vs. Shivkant Shukla. AIR 1976 SC 1207. This Judgment to be discussed from the book. We the People as also from the Judgment. To also briefly read other Judgments referred to therein. 2) P. V. Narsimha Rao vs. State. Air 1998 SC 2120. 3) Indian Medical Association vs. V. P. Shantha. AIR 1996 SC 550. 4) S. P. Gupta vs. Union of India OR Transfer of Judge’s case. AIR 1982 SC 149. This Judgment is discussed from the book. We the People as also from the Judgment. To also briefly read other Judgments referred to therein. 7. Accounts of Famous Trial – Marks 15 1) Trial of Bal Gangadhar Tilak under Section 124A and 153A of the India Penal Code. The above Trial is taken from the book. Trial of Independence Author B. R. Agarwala. Publisher National Book Trust, India. Trials of Tilak Author Publisher The Director, Publication Division, Ministry of Information and Broadcasting, Government of India. Judgment reported in AIR 1922 BOM 112. 2) Trial of Mahatma Gandhi under Section 124A of the Indian Penal Code. The above Trial is taken from the book. Trials of Independence Author B. R. Agarwala. Publisher National Book Trust, India. Plea made by Mahatma Gandhi for the severest penalty upon conviction for sedation taken from the book. The World of Law, Volume II. The Law as Literature edited by Ephraim London at pages 459 to 466. 3) Trial of Walter Rowland. The above Trial is from the book with the title referred herein above. It is a trial with an introduction and edited by Henry Cecil. The entire trial as published in a book running into 164 pages. Students were however given pages 9 to 58 which gives relevant evidence, extract of Judgment etc. The book is published under the series Celebrated Trials.
  • 5. Uniform Civil Code - Background • Uniform Civil Code (UCC) implies a single law for all the citizens of the country applicable to their personal matters such as marriage, divorce, inheritance, custody and adoption etc. • The concept and origin of the Uniform Civil Code in India can be traced back to colonial India when the British government submitted a report in 1835 emphasizing the need of uniformity in codifying the Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification. • Before the British rule, India was made up of many principalities. Further, law across India varied widely from region to region and from ruler to ruler. • With the passing of the Charter Act of 1833, law-making authority was placed in the hands of the Governor-General of India. • Indian Law Commission formed in 1834, headed by Lord Macaulay who had been appointed for codification of existing laws. • Indian Penal Code (1860), Criminal Procedure Code (1861), and Code of Civil Procedure (1858) were enacted through efforts of Lord Macaulay making applicable these Codes applicable throughout the entire country, thus bringing all Indians under one umbrella of a single system of laws. • Other Acts/laws such as Indian Contract Act 1872, Transfer of Property Act 1882, Indian Partnership Act 1932 and the Indian Evidence Act 1872 also had uniform applicability in the country. • Only personal laws were never made uniformly applicable. These are laws that are governing religious communities. • Further, post the 1857 Uprising, Indian were assured non-interference and acceptance of all worships and belief in the Queen Victoria's Proclamation at Allahabad. The British adopted hands-off policy regarding subjects related to religion and beliefs. This resulted no uniformity in law relating to personal matters.
  • 6. Personal Law - Current Situation • As seen earlier, the British Colonial Administration stopped their project of enforcing uniform laws post-1857 Uprising and made it their policy to not interfere in matters regarding religion, tradition, customs, etc. of the Indians, thereby making Indians subject of their personal laws; in the post-independence era, this situation continued. • So currently, in India, we have personal law in matters relating to relating to marriage, divorce, inheritance, succession, etc. • Personal Law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture. • Thus, the law by which an individual is governed in respect of various personal matters such as, principles relating to marriage, divorce, maintenance, adoption, inheritance, guardianship, succession, etc. is based on the person’s religion, faith, and/or culture. • Example: a Muslim will be governed by Muslim Personal Law (Shariat) Application Act (1937), Dissolution of Muslim Marriages Act (1939), Muslim Women (Protection of Rights on Marriage) Act (2019), etc.
  • 7. Various personal legislations relating to the personal; rights in adoption, marriage and divorce, guardianship, maintenance and succession • Hindu Marriage Act, 1955 • Divorce Act, 1869 • Parsi Marriage and Divorce Act, 1936 • Special Marriage Act, 1954 • Dissolution of Muslim Marriage Act, 1939 • Hindu Adoption and Maintenance Act, 1956 • Indian Succession Act, 1925 • Hindu Succession Act, 1956 • Muslim Laws of Succession • Juvenile Justice (Care and Protection of Children) Act, 2015
  • 8. Uniform Civil Code: A Constitutional Mandate Constitution of India Part IV: Directive Principles of State Policy Article 44. Uniform civil code for the citizens.— The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. • Object of Article 44: Enable the State to adopt the policy of a singular law in personal matters such as marriage, divorce, adoption, etc.
  • 9. Constitutional Assembly Debates • Constituent Assembly Debates indicated that the constitution-makers disputed the concept, relevance, and utility of the Uniform Civil Code during the constitution-making process. • Primary opposition came from the Muslim members of the Constituent Assembly who thought that such a provision would give a free pass to the Majority community to interfere and discriminate in the lives of the minorities in the garb of or by means of the State structure • Mohammad Ismail Khan of Madras Presidency proposed adding the following proviso to Article 35: "Any group, section, or community of people shall not be obliged to give up its own personal law if it has one." • He argued the following: "The right of a group or a community of people to follow and adhere to its own personal law is among the fundamental rights and this provision should really be made amongst the statutory and justiciable fundamental rights. It is for this reason that I along with other friends have given amendments to certain other articles going previous to this which I will move at the proper time. Now the right to follow personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture. If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people."
  • 10. Constitutional Assembly Debates Contd. 1 • Naziruddin Ahmad: “I submit, Sir, there are certain aspects of the Civil Procedure Code which have already interfered with our personal laws and very rightly so. But during the 175 years of British rule, they did not interfere with certain fundamental personal laws. They have enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act, the Transfer of Property Act, the Sarda Act and various other Acts. They have been imposed gradually as occasion arose and they were intended to make the laws uniform although they clash with the personal laws of a particular community. But take the case of marriage practice and the laws of inheritance. They have never interfered with them. It will be difficult at this stage of our society to ask the people to give up their ideas of marriage, which are associated with religious institutions in many communities. The laws of inheritance are also supposed to be the result of religious injunctions. I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the State to make the Civil Code uniform is in advance of the time. As it is, any State would be justified under Article 35 to interfere with the settled laws of the different communities at once."
  • 11. Constitutional Assembly Debates Contd. 2 • K. M. Munshi: "The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand. Take for instance the Hindu Law Draft which is before the Legislative Assembly. If one looks at Manu and Yagnyavalkya and all the rest of them, I think most of the provisions of the new Bill will run counter to their injunctions. But after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If however the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. This is what is emphasised by this article." • Alladi Krishnaswami Ayyar: A Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the States shall endeavour to secure a uniform civil code throughout the territory of India?
  • 12. Constitutional Assembly Debates Contd. 3 • Dr. B. R. Ambedkar: My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.
  • 13. Constitutional Assembly Debates Contd. 4 Dr. B. R. Ambedkar (Contd.): Coming to the amendments, there are only two observations which I would like to make. My first observation would be to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shari at Law to them. That is not all. I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applied to all--not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal form of law and not a Patriarchal form of law... It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago. My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method.
  • 14. Desirability of Uniform Civil Code • It will boost the national integrity by removing all sorts of disparity in Indian setup. • The UCC will be embarked on the footstep of the Indian Constitution, which talks about the principle of secular state. All interactions of the citizens shall be based on uniform secular laws, devoid of any religious element. • The provisions of UCC will definitely going to ensure social justice under the Indian gender-based disparity society. • It will bring our women in the mainstream of our society under the umbrella cover of UCC. • It will pave way to provide for same-sex marriages and remove any discrimination based on sexual orientation. Currently, many countries recognize such marriages, and recognizing such foreign marriages in India is necessary to avoid any 'conflict of laws' situations. Further, the Supreme Court and the High Courts has time and again observed the need for a Uniform Civil Code.
  • 15. Case Laws -1 Ms. Jorden Diengdeh v. S.S. Chopra (AIR 1985 SC 935) The petitioner belonged to the ‘Khasi’ tribe of Maghalaya and was born and brought up as a Presbytarian Christian. She is now a member of the Indian Foreign Service. The respondent-husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under ss. 18, 19 and 22 of the Indian Divorce Act, 1869. Held: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. (2) Under the Hindu Marriage Act , a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.
  • 16. Case Laws -1 Ms. Jorden Diengdeh vs. S.S. Chopra AIR 1985 SC 935 Contd. 1 (3) In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably break-down of marriage, and mutual consent as grounds of divorce in all cases.
  • 17. Case Laws -2 Mohamed Ahmed Khan vs. Shah Bano Begum and others AIR 1985 SC 945 Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum Rs. 3000 as “mahr” (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the “iddat” period (a period of 3 months that a Muslim woman must observe before she can remarry after her divorce). Issues: • Whether S. 125 Cr.P.C. which calls for maintenance for wives including divorced wives, applicable to Muslims? • Whether under Cr.P.C. the maintenance order can be cancelled by the Court, if a divorced wife has received the whole amount payable to her “on divorce”? In other words, can it be said that mahr paid under Muslim law is maintenance payable “on divorce”?
  • 18. Case Laws -2 Maintenance law under section 125 of CrPC is a measure of social justice designed to provide financial assistance i.e., maintenance to wife, children, and parents, to prevent them from falling into destitution. S. 125, Cr.P.C. (1) If any person having sufficient means neglects or refuses to maintain-- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.--For the purposes of this Chapter, (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.--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. (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
  • 19. Case Laws -2 Mohamed Ahmed Khan vs. Shah Bano Begum and others AIR 1985 SC 945 Contd. Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. He claimed that Ms. Begum has been terminated from being his legal wife and due to that he was not accountable to furnish her with maintenance or alimony, except “mehr” as prescribed under Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at Rs. 179 per month by the High Court in a revision application. This was appealed by Mr. Khan in the Supreme Court. Held: The Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period. SC stated, “there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself”.
  • 20. Case Laws -3 Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531 This case consisted of different writ petitions brought by: Petitioner 1 who is president of ‘Kalyani’ , an NGO working for women in distress; 2nd Petitioner is one Ms. Meena Mathur, first wife of one Mr. Jitender Mathur; 3rd Petitioner is one Ms. Sunita Narula a.k.a. Fatima, second wife of Mr. Jitender Mathur; and 4th Petitioner is one Ms. Geeta Rani, whose husband married again after converting to Islam. Meena Mathur said that she was shocked to learn that her husband had married Sunita Narula after converting to Islam. She contended that he converted to Islam only for the purpose of marrying Sunita Narula circumventing the provisions of S.494 of IPC (criminal provision against bigamy). Sunita Narula stated that Jitender after marrying her, under the influence of his first wife gave an undertaking that he had reverted to Hinduism and agreed to maintain his children and first wife. But she continues to be Muslim and has no maintenance and protection under either of the personal laws. Geeta Rani, who was married to one Pradeep Kumar stated that she was being harassed by her husband says that her husband has married another girl by converting his religion to Islam.
  • 21. Case Laws -3 Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531 Contd. Issues Raised: Whether a person married under Hindu Law, solemnize a second marriage by embracing Islam? Whether such marriage would be a valid marriage, without having first marriage dissolved under the law and the first wife continued to be Hindu? Whether the apostate is guilty of bigamy under Section 494 of IPC? Held: 1. The Court held that mere fact of conversion to Islam does not dissolve the marriage. A marriage could be dissolved only by the decree of court. The court observed that as per Hindu Law that existed before 1955, the marriage subsists even if one of the spouse converts to Islam. There is no automatic dissolution of marriage. In marriages under Hindu Law, the parties acquire certain rights, and if one of the spouse converts to another religion and enforce it, it would destroy the rights of the other spouse violating the rules of justice, equity, and good conscience. Considering the plurality of laws and interest of both the communities, the Court stated that the Hindu husband married under Hindu Law cannot solemnize second marriage by embracing Islam.
  • 22. Case Laws -3 Smt. Sarla Mudgar, President Kalyani and others vs. Union of India AIR 1995 SC 1531 Contd. 2 2. In order to answer the question of validity of second marriage, the Court stated that a. The marriage can only be dissolved by decree of divorce obtained on any of the ground enumerated in Section 13 of the Hindu Marriage Act, and b. A marriage which contravenes any of the conditions specified in clause (I), (iv), and (v) of S. 5 is void i.e., the marriage performed when the spouse is living is void. c. A divorced person can marry again on dissolution of marriage by decree of divorce and there is no right to appeal against such decree if the time to appeal is over. Considering the above legal propositions, the court concluded that the Hindu Marriage Act strictly enforces monogamy. The marriage performed under Hindu Law cannot be dissolved except on the grounds available in Sec. 13. Therefore, the husband and the first wife remain married and hence the second marriage violates the provisions of the Act. Therefore, the apostate’s second marriage would be illegal. 3. The Hon’ble Supreme Court observed that the second marriage by Hindu husband would violate principle of justice, equity, and good conscience and thus also attract S. 494 IPC. Considering the above discussion, the Court held that the second marriage of Hindu husband, without dissolution of the first marriage, would be invalid. The second marriage would violate S. 494 and therefore the husband would be guilty of bigamy.
  • 23. Case Laws -4 Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 A bunch of three Writ Petitions have been filed in this case in the form of Public Interest Litigations seeking to challenge various aspects of Personal Laws. The first writ petition sought to challenge the marriage, divorce and inheritance rules of Muslim personal law as violative of Article 14 and 15 read with Article 13 of the Constitution. Similarly, second petition sought to challenge some aspects of Hindu Marriage Act, 1955; Hindu Succession Act, 1956 and Hindu Guardianship laws on the touchstone of same provisions of the Constitution. That apart, the prayer sought in the third petition was to declare Sections 10 and 34 of Indian Divorce Act void and also to declare Sections 43 to 48 of Indian Succession Act void.
  • 24. Case Laws -4 Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 A bunch of three Writ Petitions have been filed in this case in the form of Public Interest Litigations seeking to challenge various aspects of Personal Laws. The first writ petition sought to challenge the marriage, divorce and inheritance rules of Muslim personal law as violative of Article 14 and 15 read with Article 13 of the Constitution. Similarly, second petition sought to challenge some aspects of Hindu Marriage Act, 1955; Hindu Succession Act, 1956 and Hindu Guardianship laws on the touchstone of same provisions of the Constitution. That apart, the prayer sought in the third petition was to declare Sections 10 and 34 of Indian Divorce Act void and also to declare Sections 43 to 48 of Indian Succession Act void. Against this backdrop, the issue raised was ‘whether the Court should interfere in the matters of unification of Personal Laws or not?’
  • 25. Case Laws -4 Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 Contd. 1 The Court opined that the remedy lies somewhere else and not by knocking at the doors of the courts. On the question is whether it is necessary that the legislature should make law uniformly applicable to all religions or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualize diversity and attempted to foster uniformity among people of different faiths.
  • 26. Case Laws -4 Ahmedabad Women Action Group (AWAG) vs. Union of India (1997) 3 SCC 573 Contd. 2 A uniform law, though is might desirable, enactment thereof in one go perhaps may be counter- productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages. Thus, the Court believed that while it was desirable to have a Uniform Civil Code, the time was yet not ripe, and the issue should be entrusted to the Law Commission which may examine the same in consultation with the Minorities Commission. Held: Issues raised in this case are in nature of State Policy, and thus, the only legislature is empowered to deal with such issues.
  • 27. Case Laws -5 Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc. AIR 1997 BOM 341 In this case, the petitioner challenged the provision of Indian Divorce Act 1869, on the ground of gender inequality i.e., violative of the equality principle. The Bombay High Court recognized and upheld their plea and removed the defects from the Act. Section 10 of the Act was held ultra vires and unconstitutional. The words and phrases 'incestuous' and 'adultery coupled with' used in the impugned provisions in Section 10 are severable and struck down as ultra vires Arts. 14, 15 and 21 of the Constitution of India. The remaining portions of the Section would in terms provide adultery, desertion and cruelty as indicated therein as independent grounds for dissolution of marriage for Christian wives whose marriage has irreversibly broken down as a result of desertion, cruelty and adultery committed by the husband. By striking down the underlined portions as ultra vires, the remaining portion can by itself remain as constitutionally valid provision along with the rest of the provisions in Section 10 of the Act. The offending portion can easily be severed and cannot be treated as inextricably connected with the remaining portion.
  • 28. Case Laws - Summarized a) Ms. Jorden Diengdeh vs. S.S. Chopra: Need for provision of ‘No fault divorce’ / ‘divorce by mutual consent’ in case of irretrievable break-down of marriage b) Mohamed Ahmed Khan vs. Shah Bano Begum and others: Provisions for maintenance and alimony c) Smt. Sarla Mudgar, President Kalyani and others vs. Union of India: Conversion of religion for a second marriage is against the basic principles of justice, equity and good conscience d) Ahmedabad Women Action Group (AWAG) vs. Union of India: Courts should not interfere in the matters of unification of Personal Laws; only legislature is empowered to deal with personal laws / UCC e) Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc.: Need for Gender neutral laws
  • 29. Important Questions Short Note / Short Answers • What is Uniform Civil Code? • What is bigamy? • What is the objective of Article 44 of the Indian Constitution? • What is the provision for maintenance under Section 125 of the Criminal Procedure Code (S. 125, Cr.P.C.)? • What were the issues in the Shah Bano Case? Long Answers • What is the significance of Uniform Civil Code in India in the present day? Give your suggestions for a strong Civil Code. • “A Uniform Civil Code should be implemented with immediate effect.” Elaborate with the help of case laws. • Write a short note on “Uniform Civil Code”. • Write an essay on the Uniform Civil Code with the help of landmark Supreme Court judgements.
  • 30. Resources • Constitution of India: https://legislative.gov.in/sites/default/files/COI...pdf • Constitutional Assembly Debates: www.constitutionofindia.net/constitution_assembly_debates • Desirability of Uniform Civil Code in India- Need of the hour: https://www.jusdicere.in/desirability-of- uniform-civil-code-in-india-need-of-the-hour/