市民法科学ジャーナル

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Uniform Civil Code: Whether a Directive to Promote Unity? Rhetoric and Reality

Shahnaz N

The bedrock of the present legal system of India was laid down by the Britishers. They succeeded in laying down uniform substantive and procedural laws in almost all the areas of law. In some civil laws viz, marriage, divorce, maintenance, adoption, guardianship and succession commonly known as personal laws no uniform law was laid down. The First Law Commission which was appointed in 1835 recommended that in personal matters viz, marriage, divorce, maintenance and like, the Hindu and Muslims would be governed by their respective personal laws. Same views were expressed by the second law commission which was appointed in 1853. Both commissions were asked to prepare a draft of uniform civil laws which would be applicable to all communities irrespective of religion. They doubted the wisdom of uniformity in these laws and consequently left them untouched. The second law commission even objected the codification of the Hindu and Muslim personal laws. After independence, legal position in this area was intended to undergo a change. The new Constitution which was adopted on 26th January 1950 incorporated a provision in this regard in the form of Article 44. The position did not change substantially as the provision did not create a definite obligation on the State in this regard. Consequently the personal laws continued to be administered as before. As time passed a need was felt to have a uniform civil code in order to bring unity in India. Presently even a debate is going on throughout India regarding the implementation of uniform Civil Code. The issue is not whether a uniform civil code is to be adopted or not but the real issue is whether it will bring unity? The present paper will make an attempt to peruse whether it is pragmatic to adopt such a code in heterogeneous society? The paper will also focus on the practicability of diversity in the family law and its essence in the country which is governed by the philosophy of freedom of religion in letter and spirit.