The reported move to frame a uniform civil code in some states is the talk of the town. A state-level UCC, however, appears prima facie inconsistent with Article 44 of the Constitution which proclaims that “the state shall endeavor to secure to the citizens a uniform civil code throughout the territory of the India “. The wholly Indian character and extent of the proposed code inherent in this phraseology is too obvious to be overlooked. Under the Constitution, family and inheritance laws fall within the concurrent jurisdiction of the Center and the States, but a law applicable in the same way throughout the country can be enacted by Parliament alone. In many minority cases, the Supreme Court has frowned on continued inaction in this regard, but the recipient of its concerns has always been the Center.
In furtherance of the constitutional objective, Parliament enacted a Civil Marriage Act in 1954, the Special Marriage Act. Not replacing any community law, it was made available to all citizens as a secular alternative. Any man and any woman, whether they profess the same religion or different religions, can opt for a civil marriage. Existing religious marriages could also be voluntarily converted to civil marriages by registration under the law. Section 21 of the Act provided that all couples married under its provisions and their descendants would, in respect of their property, be governed by the non-religious inheritance chapter of the Indian Succession Act 1925. The Special Marriage Act and the Indian Succession Act together were therefore to constitute a UCC of an optional nature for all Indians. The then Minister of Justice, CC Biswas, called it “the first step towards a UCC”.
To regulate religious marriages between Hindus, Buddhists, Jains and Sikhs, a new law called the Hindu Marriage Act was enacted in 1955. A Hindu Succession Act came into force the next year for the properties of those covered by the 1955 Act. Section 29(4) of the Act states that “nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act 1954”. The 1954 Act and the Indian Succession Act as secular laws therefore remained available to those governed by Hindu law even after the enactment of the 1955-56 Acts.
The Special Marriage Act and the Indian Succession Act (attached to it) do not apply nationwide – nor do the Hindu laws of 1955-56. When Goa, Daman and Diu were liberated from Portuguese rule in the early 1960s, a parliamentary law provided for the continued application of the archaic Portuguese Civil Code of 1867 in these territories “until it be amended or repealed” by a competent authority. This 155-year-old foreign law, which is no longer in force even in its home country, still governs Indian citizens in these parts of India. In Pondicherry – liberated even before Goa, Daman and Diu – a significant portion of citizens called Renoncants (Indians whose ancestors had abandoned personal rights under French rule) are still governed by the 218-year-old French Civil Code of 1804 . Provisions are found in all central family law acts of India excluding them from their ambit.
The continued application of anachronistic foreign laws to Indian citizens in parts of the country defeats the constitutional purpose of a UCC. Assuming that such a code could be enacted at the state level, it would start with repealing them and replacing them with the central marriage and inheritance laws in force everywhere else in the country. Taking this rational step should be no problem as Goa is under the rule of the ruling Center party and Daman, Diu and Pondicherry (as union territories) are also under its jurisdiction. Applying the central family laws in these places will make all the more sense as in 2019 the government extended them to Jammu, Kashmir and Ladakh, to replace their local variants – albeit unlike the Portuguese and French, they were neither of foreign nor archaic origin.
In addition, the Special Marriage Act is manifestly discriminatory in certain areas. Its list of prohibited degrees in marriage (relatives that cannot be married) is a copy of that of the Hindu Marriage Act but, unlike that Act, it does not recognize the rule prohibiting marriages within the sapinda relationship (covering distant cousins). So, a Hindu can freely marry a first cousin under the law, although his religion prohibits it, but a Muslim cannot marry a first cousin under this law, which his religion allows and is a common practice in the community. To make matters worse, under the Hindu Marriage Act, the prohibited degree rule can be relaxed based on custom, but not under the Special Marriage Act.
During the days of emergency, the Special Marriage Act was amended to provide that if both parties marrying under it were Hindus, their properties would be governed – not by the Indian Succession Act as provided in origin – but by Hindu succession law. This retrograde approach has never been challenged by any court. On the contrary, the objection raised to him in the Maneka Gandhi case (1985) was met by a Delhi High Court judge with a fiery defence.
There is nothing wrong with bringing the whole nation under one family law and inheritance law. This must be done in accordance with the constitutional guarantees of equality before the law and equal protection of the law. The provision of the Special Marriage Act relating to prohibited degrees in marriage should be amended accordingly, and its 1976 amendment restricting the applicability of the Indian Succession Act should be revoked. The law, thus amended, should be extended to all parts of the country. When this is done, the constitutional promise of a “uniform civil code for the citizens throughout India” will be duly fulfilled.
The author is a professor of law and a former member of the Law Commission of India