India before the discussion of the Uniform Civil Code on the Uniform Civil Code zws 70 | Saman Nagar …

Tahir Mahmood

For those who want to get married in a secular ‘registration system’, the ‘Special Marriage Act – 1954’ applies in India. However, under this law, which was changed during the Emergency, the inheritance rules would remain the same after marriage, and it would be difficult for states to enact their own ‘equal civil laws’ before the scope of the 1954 Act could be extended.

Some states have recently announced the implementation of the ‘Equal Civil Code’ for their respective states, thus resuming discussions on the same civil law in circles of jurists. At first glance, the enactment or enforcement of a state-level ‘equal civil law’ appears to be contrary to Article 44 of the Constitution. The article said that the state was working to get a uniform civil code for citizens “across Indian territory”. The nature and scope of the proposed law in this phrase is and should be all-encompassing and cannot be ignored. According to the Constitution, family and inheritance laws fall under the jurisdiction of both the Center and the States, but the law which is equally applicable across the country can only be enacted by Parliament. In many cases involving minorities, whenever the Supreme Court points out the inaction of the state machinery in enacting the same civil law, the cash of the judiciary is always with the Central Government.

As a first step towards fulfilling the constitutional objective, Parliament passed and enacted the Special Marriage Act in 1954 as the Uniform Civil Marriage Act. Instead of replacing any community-specific law, it was made available to all citizens as a secular alternative. Any man and woman, whether they belong to the same or different religions, can choose civil marriage. Existing religious marriages can also be voluntarily converted into civil marriages by registering under this Act. Article 21 of the Act states that the heirs of married couples under the provisions of the Act shall be governed by the secular issue of the Indian Inheritance Act, 1925, in respect of their property. The two laws, the Special Marriage Act and the Indian Inheritance Act, are the same for all Indians. The then Minister of Justice c. C. Biswas called it “the first step towards equal civil law.”

A new law called the ‘Hindu Marriage Act’ was enacted in 1955 to regulate the religious marriages of Hindus, Buddhists, Jains and Sikhs. The following year, the ‘Hindu Inheritance Act’ was enacted for the assets of those covered by the 1955 Act. Section 29 (4) of the Hindu Inheritance Act clarifies that “nothing contained in this Act shall affect the provisions of the Special Marriage Act, 1954”. Both the 1954 Act and the Indian Heritage Act from 1925, as secular laws, were available to the people governed by Hindu law even after the enactment of Laws 1955 and 56.

The Special Marriage Act and (attached to it) the Indian Inheritance Act do not apply to the whole country – nor do the 1955, 56 Hindu Act. When the islands of Goa, Daman and Diu were liberated from Portuguese rule in the early 1960s, Parliamentary law provided for the implementation of the old Portuguese Civil Code of 1867 “until amended or repealed by effective authority”. The 155-year-old foreign law, which does not even apply in their home country, can still apply to Indian citizens in these parts of India. In Puducherry – which was liberated before Goa, Daman and Diu – a large group of citizens known as the Renaultants (whose ancestors abandoned personal law during the French monarchy) are still governed by the 218-year-old French Civil Code, 1804. This is because, in all the Central Family Laws of India, there are provisions exempting these lands from their jurisdiction.

We have a constitutional goal of enforcing the same civil law on the one hand and applying obsolete foreign laws to Indian citizens in certain parts of the country on the other. Assuming that states can apply the same civil law on their own, at some point the same nationwide civil law must give priority to repealing the old foreign (non-British) laws in the area. That means they can start enforcing central marriages and inheritance law that apply across the country in their place. Since Goa is under the control of the ruling party at the center, there should be no difficulty in taking this logical step as Daman, Diu and Puducherry (as Union Territories) are also under their jurisdiction. The implementation of the Central Family Law in this place would be more logical, because when the Central Government reconstituted the State of Jammu and Kashmir in 2019 and created the Union Territories of Jammu and Kashmir and Ladakh, these civil laws were extended and in doing so, the laws applicable to the State of Jammu and Kashmir were repealed – this is Portuguese and French. Although not the law.

In fact, the ‘special marriage law’ that allows civil-secular marriage is clearly discriminatory in some respects. In that law, the list of prohibited subjects (relatives cannot marry each other) is a copy of the Hindu Marriage Act. Unlike the Hindu marriage law in this list, the only thing that appears in the special marriage law is to increase the limit of ‘kinship’ relations. According to the Special Marriage Act, 1954, marriages with distant relatives can be arranged through the registration method. This exemption is granted by special marriage law to a Hindu boy or girl (although their religion is forbidden), but according to Muslim law, the religion that is already permitted by his religion and a common practice in society, ‘marriage kinship’ is the current law, which is called ‘secular’. Interrupted. Also, under Hindu marriage law, a forbidden relationship can be relaxed on the basis of custom (e.g., in some Hindu groups, relatives may marry cousins ​​but sisters may marry, in some groups cousins ​​may marry), but special marriage laws may not allow an exception.

In the days of emergency, the special marriage law was amended so that if two persons in a marriage were Hindus, their property would be regulated by the Hindu Inheritance Act, not by the Indian Inheritance Act. No court has questioned this retreat. On the other hand, the Delhi High Court judge dismissed the objection raised in the Menaka Gandhi case (1985) after enthusiastically upholding this (emergency) provision.

There is nothing wrong with keeping the whole country under one law on family rights and inheritance. However, this must be done in accordance with the constitutional principle of ‘equality before the law’ and ‘constitutional guarantee of equal protection of the law’. Therefore, the provisions prohibiting marriage in the Special Marriage Act should be amended accordingly and the 1976 amendment limiting the Hindu Inheritance Act to the Indian Inheritance Act should be repealed even if Hindus are married under the Special Marriage Act. This amended law should be implemented in every part of the country. On the day of its completion, a major step will be taken to fulfill the constitutional promise of a ‘uniform civil code for all Indian citizens’.

The author is a Professor of Law and a former member of the Law Commission of India. Many of his books on law include books on Hindu and Muslim personal law.

2022-05-15 23:13:58

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