- Prelims: Uniform civil Code, Directive Principles of State Policy etc
- Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc
ARTICLE HIGHLIGHTS
- Government may bring in a Uniform Civil Code (UCC) by holding a special session of Parliament on September 18-22, 2023
- There is a need to think beyond polygamy and divorce and other such issues.
INSIGHTS ON THE ISSUE
Context
Uniform Civil Code:
- It provides for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
- Article 44: It lays down that the state shall endeavor to secure a UCC for the citizens throughout the territory of India.
A UCC and guardian:
- The Guardians and Wards Act, 1890 considers the welfare of the child as the prime consideration in the determination of custody.
- Section 6 of the Hindu Minority and Guardianship Act, 1956 declares the father as the natural guardian and ‘after him’ the mother;
- The mother would ordinarily have custody till the child attains five years of age.
- The person would lose custody if she/he ceases to be Hindu.
- In Githa Hariharan (1999), the SC held that the expression ‘after him’ does not necessarily mean ‘after life-time’ of the father but, instead, ‘in the absence of’.
Child custody under Islamic laws:
- Custody under Islamic law is the right of the child and not of the parents.
- The father is at number six in terms of the right to custody after the mother, mother’s mother howsoever high, paternal grandmother, sister, maternal aunt and paternal aunt.
- Under the Hanafi school, the mother does not lose custody after she ceases to be a Muslim.
- Islamic law gave custody to the mother till a boy attains seven years and a daughter till she is 17, under the Hanafi school.
- The Shafii and Hanbali schools gave custody to the mother till a daughter is married.
- Under the Maliki school, the mother gets custody of even a male child till puberty and female child till her marriage.
Case studies(about children Custody):
Bombay High Court
- The custody of a child who had already been adopted to be given to the biological father (he is accused of rape which resulted in this child being born).
- Later the 17-year-old biological mother realized that she was pregnant
- Based on a complaint by the minor mother’s father — under the
- The biological father was arrested but was granted bail later.
- The mother and child were sent to a home in Mumbai.
- In 2022, the biological mother got married to another person
- In the larger interests of the child, surrendered the boy to the Child Welfare Committee (CWC) for adoption.
- The child, under Section 38(3) of the Juvenile Justice (JJ) Act, being an unwanted child of a victim of sexual assault, was declared free for adoption by the CWS.
- He was handed over to his adoptive
- On the biological father’s habeas corpus petition, the High Court stayed the adoption proceedings and child was returned to the shelter home.
- The CWC rejected the biological father’s application for custody on the ground that:
- A biological father cannot take advantage of his own crime and giving custody to him would not be in the best interests of the child.
- The High Court handed over custody of the child to the biological father without hearing the biological mother.
- The mother was opposed to giving the child to the biological father.
Implication:
- The requirement of consent of the rapist father in such adoptions would set the wrong precedent.
- The Bombay High Court ignored that the adoption was not valid in terms of Muslim law.
- The court in the interests of the child had refused to give custody to the biological parents as the adoptive parents were given a five-day-old child
- It was only because of their care that the child recovered from jaundice.
Allahabad High Court:(Nasrin Begum (2022):
- A two-judge Bench of the Allahabad High Court gave the custody of a girl child to her biological parents in preference to the rights of the adoptive parents.
- The family court on the basis of the testimony of the child(six years old) and in the best interests of the child, had decided in favor of the adoptive parents.
- The biological parents asserted that mere custody for sometime was given to the adoptive parents.
- Section 2(2) of the JJ Act provides that adoption completely severs the ties between the biological parents and the child.
- The court concluded that children cannot be treated as the ‘chattel and property’ of their biological parents
- She should not undergo the trauma of separation from her adoptive parents
- The court gave much importance to the right of the child to know her real identity and the right of her biological parents to her custody.
- The court moved on the premise that there was no legal adoption
- Therefore, the adoptive parents have no right in respect of the child.
Article 44 of the Constitution:
- The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India’.
- The language of Article 44 reveals the unambiguous intention of the framers of the Constitution and that they felt the UCC was in the national interest.
- Article 44: It requires the state to enact a UCC that applies to all citizens cutting across faiths, practices and personal laws.
Benefits of UCC:
- UCC can protect against discrimination in matters pertaining to divorce, maintenance, adoption and succession.
- The UCC seeks to establish a common set of civil laws for all citizens, regardless of their religion and culture, thereby promoting equality and ensuring justice for all.
Judicial stand:
- Shah Bano case: “It is a matter of regret that Article 44 has remained a dead letter.”
- The Court had pointed out that a UCC would help the cause of national integration.
- In the constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III (Fundamental Rights)”.
- Sarla Mudgal (1995): Court said:
- “It appears that the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it has been lying since 1949.
- The governments have so far failed to make any effort towards unified personal law for all Indians.
- Indian Young Lawyers Association case (2018):
- In the constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III (Fundamental Rights).”
- Personal laws should be constitutionally compliant and in conformity with the norms of gender equality and the right to live with dignity.
- The supremacy of fundamental rights over customary law ensures that various freedoms guaranteed to all citizens under the Constitution are safeguarded.
Arguments in favor of UCC:
- Uniformity in cases: India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code etc
- Gender Justice: If a UCC is enacted, all personal laws will cease to exist. It will do away with gender biases in existing laws.
- Secularism: A secular nation needs a common law for all citizens rather than differentiated rules based on religious practices.
- Various communities in India: Example: All Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill.
- Shariat Act: There is no uniform applicability when it comes to the Muslim personal law or the Shariat Act 1937.
- Hindu Marriage Act of 1955: It prohibits marriages amongst close relatives but they are considered auspicious in the south of India.
- Hindu Succession Act of 1956: Wives are not coparceners(a person who shares equally with others in the inheritance of an undivided estate) nor do they have an equal share in inheritance.
Arguments against UCC:
- Plurality in already codified civil and criminal laws: So concept of ‘one nation, one law’ cannot be applied to diverse personal laws of various communities.
- Constitutional law experts: Framers did not intend total uniformity.
- Example: Personal laws were placed in Concurrent List(power to legislate being given to Parliament and State Assemblies).
- Customary laws: Many tribal groups in the country, regardless of their religion, follow their own customary laws.
- Communal Politics: The demand for a uniform civil code is considered to be framed in the context of communal politics.
- Article 25: It seeks to preserve the freedom to practice and propagate any religion.
Supreme Court judgements about implementation of UCC:
Way Forward
- UCC cannot confine itself to changing the rule of the father being the natural guardian.
- It must go beyond this and provide for, in unequivocal terms, the ‘best interests of child’ principle in all custody disputes.
- It must deny absolute rights of biological parents vis-à-vis adoptive parents.
- A progressive UCC should not overemphasize biological ties.
- It must protect the rights of adoptive parents; otherwise people would not adopt children.
- UCC should not insist on the matrimonial bond between parents and should ideally make provision of guardianship even for a single parent, surrogate parent and queer parents.
- A UCC would eliminate discriminatory practices that deprive women of their rights and provide them with equal opportunities and protections.
- Personal laws should have a two-dimensional acceptance — they should be constitutionally compliant and consistent with the norms of gender equality and the right to live with dignity.
QUESTION FOR PRACTICE
Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)
