Uniform Civil Code in India: History and the Shah Bano Case

Uniform Civil Code in India

A common civil code, popularly known as the Uniform Civil Code (UCC), is a long-standing unresolved debate in independent India. This debate stems from Article 44 of the Indian Constitution, contained in Part 4 (Directive Principles of State Policy), which states the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. Here, the term Uniform Civil Code (UCC) implies a set of common laws governing marriage, divorce, adoption, inheritance, and other such familial matters which would be applicable to all Indians, irrespective of their religion. Today, the members of each religious community follow their own respective sets of civil laws based on their religious history and traditions. Whereas Hindu marriages, divorce, adoption, and inheritance are governed by the Hindu Code Bills, Muslim personal law is based on the Shariat. Christians, on the other hand, follow their own laws laid down by their respective churches. For instance, Roman Catholics are governed by the rules of the Papacy. At the time of independence, India was so divided that a pan-India civil code was impossible. Hence, our constitution makers decided to put off the creation of a UCC until conditions were more favorable. Accordingly, they incorporated the UCC as a Directive Principle of State Policy so as to emphasize upon the state the desirability of common personal laws for all religious communities.

The Shah Bano Case

The Shah Bano case (1985 AIR 945, 1985 SCC (2) 556) was a controversial divorce lawsuit in India, in which Shah Bano, a 62-year-old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 and was subsequently denied alimony. The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Rajiv Gandhi government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands. The Shah Bano case generated tremendous debate in India. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies. The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common. Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by them. The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu right, led by parties like the Jan Sangh, which had strongly opposed the reform of Hindu law in the 1950s, in its metamorphosis as the Bharatiya Janata Party, became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren't sufficiently advanced. The pressure exerted by orthodox Muslims caused women's organizations and secularists to cave in.