“Uniform Civil Code for the citizens–The State shall endeavour to secure for the citizens, a Uniform Civil Code throughout the territory of India.” So states Article 44, which is one of the 16 Articles (from Article 36 to 51) enshrined in Part IV of our Constitution under the Directive Principles of State Policy.
Article 44 was introduced in the Constituent Assembly by Dr B R Ambedkar as draft Article 35, on November 23, 1948, and was unanimously passed on the same day.
However, during the discussion, amendments were moved by a few Muslim members, that provisos should be added, namely, “Provided that any group, section or community or people shall not be obliged to give up its own personal law in case it has such a law, and, provided that the personal law of any community which is guaranteed by the statute shall not be changed except with the previous approval of the community.” Discussions on these amendments took place, lasting the whole day.
B R Ambedkar said in his reply: “I am afraid I cannot accept the amendments which have been moved to this Article. … My friend, Mr Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform code of laws for a country so vast as this. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts, and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country.”
In 1985, similar views were expressed by the former Chief Justice of India, Y V Chandrachud (father of the present CJI) in the ‘Shah Bano’ case. It was about a Muslim divorcee, Shah Bano Begum. She brought an application for maintenance under Section 125 of the Criminal Procedure Code. This was decreed in her favour.
But the husband, Mohd Ahmad Khan, appealed to the Supreme Court on the ground that Section 125 should not apply to Muslims as it is contrary to Muslim Personal Law. The Supreme Court rejected this contention, stating that Section 125 applied to all persons, irrespective of their religion or personal law, and dismissed the plea of the husband.
Chief Justice Y V Chandrachud observed in his judgment: “This appeal arising out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women; not only to women generally but, to all those who are aspiring to create an equal society of men and women.
… The appellant, who is an advocate by profession, was married. Two daughters were born of the marriage. In 1975, the appellant (Mohd. Ahmad Khan) drove the respondent (Shah Bano Begum) out of the matrimonial home. In April 1978, the respondent Shah Bano Begum filed a petition against the appellant Mohd Ahmad Khan under Section 125 of the Cr.P.C. in the court of the learned Judicial Magistrate (First Class), Indore, asking for maintenance at the rate of Rs. 500 per month.
On November 6, 1978, the appellant Mohd. Ahmad Khan divorced the respondent by an irrevocable talaq. His defence to Shah Bano’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him. … In August 1979 the learned Magistrate directed Mohd Ahmed Khan to pay a ‘princely’ sum of Rs. 25 per month to Shah Bano Begum by way of maintenance. It may be mentioned that Shah Bano Begum had alleged that Mohd Ahmed Khan earned a professional income of about Rs. 60,000 per year. In July 1980, in a revisional application filed by Shah Bano Begum, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs.179.20 per month.”
The Court, while pronouncing its judgment, drew attention to the report of the Commission on Marriage and Family Laws, which was appointed by the Government of Pakistan by a resolution dated August 4, 1955, which stated that “a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.”
The Court said that for these reasons, “we dismiss the appeal and confirm the judgment. The appellant will pay the costs of the appeal to the respondent which we quantify at rupees ten thousand”.
However, overriding the clear observations of the Supreme Court and rejecting the protests of a large section of the Muslim community, including learned scholars and a majority of Muslim women, Prime Minister Rajiv Gandhi enacted the so-called Muslim Women (Protection of Rights on Divorce) Act, 1986, which overturned and reversed this judgment completely. This was how he struck a blow at the very root of dignity and gender equality for women.
Eminent Muslim jurists like Chaudhari Hyder Husein, and M C Chagla, former Chief Justice of the Bombay High Court, also had strongly upheld Article 44 (UCC).
M Rafiq, an eminent lawyer of the Jaipur HC, strongly advocated expeditious implementation of the UCC under the caption, ‘A legalistic view of UCC’, in the Law Journal 1980 (p. 133), summing up with a query “Should we move back to the Middle Ages when a woman was treated as a living property?” Thus, implementing the UCC would be fulfilling Dr B R Ambedkar’s wishes.
Dr H V Hande
Former health minister of Tamil Nadu. Author of Ambedkar and the Making of the Indian Constitution