While dealing with a batch of petitions that were 17 in number and which were concerned with an interfaith marriage contracted by the petitioners and who sought protection from the Court, the Allahabad High Court as recently as on November 18, 2021 in an extremely commendable, courageous, cogent, composed and convincing judgment titled Mayra alias Vaishnvi Vilas Shirshikar and another vs State of UP and others and 16 connected cases in Writ – C No. – 14896 of 2021 and 16 others while underscoring that Uniform Civil Code (UCC) is long overdue called upon the Central Government to implement the mandate of Article 44 of the Constitution of India [Uniform Civil Code]. It must be apprised here that the Single Judge Bench of Hon’ble Justice Suneet Kumar minced absolutely no words to candidly say that the issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in the public domain and called for its implementation in the wake of a multiplicity of marriage and family laws in place. The Bench also underscored that uniform civil code is necessary for interfaith marriages. It is mandatorily required now. It also rightly called upon the Central Government to implement the mandate of Article 44.
Most significantly and also most remarkably, what forms the cornerstone of this brief, brilliant, bold and balanced judgment is then enunciated in para 94 wherein it is held that, “There is no evidence of any official activity for framing a uniform civil code for the country. A belief seems to have gained ground that it is for the minority community to take a lead in the matter of reforms of their personal law. That has been the consistent official stand of the Government within the country and in international forums. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. The Supreme Court speaking through Justice Kuldeep Singh [Sarla Mudgal Case (paragraph 35)] had humbly requested the Government through the Prime Minister to intervene and initiate the process of framing the UCC by appointing a committee, but after a lapse of so many decades nothing has been done.”
Equally significant and remarkable is what is then envisaged in para 95 wherein it is held that, “We have entered in the third decade of the twenty first century, the UCC is long due. It should be taken note of the fact that before HFC could see the light of the day the deliberations went on for 15 years. The Government, if decides to initiate the process by appointing a Committee/Commission for enacting the UCC, it would take considerable time. The process, therefore, should be initiated forthwith. This Court reiterates and calls upon the Government of India to initiate the process as the ‘stage’ has been reached. The UCC is a necessity and mandatorily required today. It cannot be made ‘purely voluntary’ as was observed by Dr. B.R. Ambedkar 75 years back, in view of the apprehension and fear expressed by the members of the minority community.”
It is a no-brainer that when one of the most brightest, most talented, most respected and senior lawyer of Apex Court who also practices in England as Queen Counsel and is also former Solicitor General of India – Harish Salve himself says something on any legal topic, it has to be definitely taken most seriously. Just recently, he has said that the Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion and that UCC is not against diversity but is against compelled diversity. He said that, “Diversity should spring from the heart. The Uniform Civil Code doesn’t prevent you from following your own religion, The Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion”. He cited as an example, a pending case in which he is appearing, where the question is whether a philanthropic Muslim can create a Trust. The Bombay Waqf Board argued that he cannot. If you are a Muslim, it has to be a Waqf, it cannot be a Trust, the Board argued as per Salve. “If tomorrow the law allows Muslims to create a Trust, does it mean that a devout Muslim cannot create a Waqf? Of course, he can”, he said in an interview given to Times Now. He also said that in most countries, the law of inheritance is the civil law of inheritance, which is based on General Equity. He said that in the United Kingdom there there are Solicitors who advertise on their websites that they can make a Sharia compliant Will for Muslims. “..which means you have a freedom to dispose of your property as you like, but if you are a devout Muslim and want to confirm to the Sharia, we will write your Will in a way that it follows the Muslim Law. Will the Uniform Civil Code allow that? Of course, you can write any Will you like”, Salve said.
Responding to a question about why people like Salman Khurshid and Kapil Sibil say that the UCC is against the principles enshrined in the Constitution, Salve said, “The Constitution says that the government must recognize a person’s right to live in accordance with his own religion. But it also recognizes freedom of conscience. Does the UCC take it away? No, it doesn’t. If you are a Catholic and you are steeped in the belief that Catholics do not divorce and you are in a bad marriage, the law allows you to divorce, you will not divorce. You will go to the Church and the Priest will say, don’t divorce. Do you want to follow the priest and say I will not divorce? Don’t divorce. If you say I am not going to be under the yoke of my customary law, I want to reach out and divorce, you will do it”. Salve said that he knows some very eminent Muslims who got their marriage registered, although they had a nikah years ago. He said that they had their marriage registered to bring it out of the Muslim customary law and bring it under civil law. He said that the UCC will do away with the need to do that and individuals will have the freedom to follow either the religious law or the civil law.
To say the least, Harish Salve said that Gandhiji and Ambedkar wanted uniform civil laws because it is freedom. He very rightly said that historically, religions have disempowered women and that UCC will empower women. “This is empowering those who do not want to be told what to do by the heads of their religion”, he said. He said that UCC does not take away anyone’s right to follow their religion.
Salve also said that the draft UCC may probably plainly say that the Special Marriage Act and the Indian Succession Act will apply to every Indian. While dealing with the argument that Hindus will lose the privilege of HUF, he said that the “first blow” or “first rescue” came to the Hindu Undivided Family when the English brought the Married Woman’s Right To Property Act, which meant that women got a life interest and the second in 1956 which said that when a Hindu dies and he has a daughter, his properties go by succession and not by survivorship. “That was the end of the HUF”, he said. He said that HUF only gave benefits for tax purposes, which is not a legitimate concern of people who worry about Constitutional law.
Salve said that Hindu Customs have been as oppressive as any other and that they have undergone major reform. “There were Hindus who seriously believed in Sati. Reformed that, because we said in modern society this thing has no place…. and when the Sati law was enforced, you saw the rumpus which happened. It’s not that the Hindu Customs have not been reformed. The amendments made about a decade ago to the Hindu Succession Act almost put an end to the HUF”, he said.
“As a Lawyer, I am telling you, this is the biggest myth which is being perpetrated that the Hindus have given themselves some benefit that the Muslims haven’t”, he said in the context of the HUF. On the allegation that UCC is anti-minority, Salve said, “I am a minority community. I am Christian. Why is it against me? If I want to follow the Christian rules of marriage and divorce and inheritance can I? Of course, I can. I don’t want to”.
Salve said that even in Islam the issue of Polygamy is a troublesome issue. He said that he is not a scholar of the Quran, but it doesn’t give a blanket charter to have four wives. Salve rightly pointed out that, “If you put that to one side, what prevents you from following the Quran? The Quran says don’t do certain things or the Quran says do certain things, you can do all that because what the Uniform Civil Code gives you is the freedom to follow that.”
Salve further said that if you accept that Muslim women have a right to divorce under Khula, then UCC only recognises the right and it cannot be anti-minority. He said that despite UCC, people can have matriarchal succession by Will. “What prevents me from saying everything I own will go to my wife and I will leave it to my wife to make a Will of how she wants to distribute the property. Then that becomes matriarchal. So that’s matriarchal, but that is by my choice. Not because I am born somewhere and I hate it, but I have no choice”, Harish Salve said.
On the argument that UCC will end “diversity”, the former Solicitor General said, “Compelled diversity should be ended. Diversity should spring from the heart. The strength of our diversity lies in all of us wanting to do our own thing and yet living together and having fun. No law compels us to celebrate Diwali if you are a Christian or celebrate Christmas if you are a Hindu, and yet we do it with great gusto. That is our diversity”. Salve said that when somebody starts telling you what you should do and what you should not do, that is the end of freedom of conscience.
In conclusion, there is lot of merit in which eminent lawyer and former Solicitor General Harish Salve has so very rightly pointed out. Uniform civil code will give less importance to religion and more importance to unity of the nation by not giving overbearing precedence to the personal law of any religion! All the drawbacks which are contained in the personal laws of different religions like Hindus, Muslims, Christians can be permanently removed by ushering in uniform civil code for all citizens all across the country. Hindus women will get equal right in property like men which they didn’t enjoy till 2005 and similarly all other discriminatory and derogatory practices which degrade women like polygamy that is a men marrying many women as also women being divorced by a Muslim men saying triple talaq and a Muslim women being ordered to undergo nikah halala that is after divorce with her husband if she wants to remarry him again she will have to marry another man and then obtain divorce from him which is a preposterous and most cumbersome task will end forever. Also, after divorce, a Muslim men is not bound to maintain his ex wife! All this must be rectified immediately.
My very best friend Sageer Khan pointed out in 1993 that, “When evil practices prevalent in Hindus like Sati, human sacrifice, child marriage, polygamy and polyandry can be outlawed then why not malpractices prevalent in Muslims and other religions also not be similarly outlawed? Why film actor Dharmendra had to convert to Muslim to marry again? Why when Dr Ambedkar wanted polygamy to be retained among Hindus even though it was added as a ground of divorce in his ‘The Hindu Code Bill’, 1951 did Nehru abolish it completely but did not touch Muslims? Was it not discriminatory favouring just Muslims alone? Why should law not be always applicable equally to all?”
Sageer Khan further said that, “It is beyond a straw of doubt that uniform civil code will help in ushering “religion neutral” civil courts. Also, all people from different religions and communities can come together under one roof and no one would be given a separate treatment based on religion alone. There will be no feeling of disgruntlement that by adopting a particular religion, you are free to marry more than one women or get rid of your wife so easily by just saying talaq thrice. Personal laws are not cast in stone that they can’t be changed to meet the present circumstances. Derogatory practices like triple talaq, nikah halala, polygamy, dowry etc which denigrates women to the most abysmal level must be completely abolished because they can never be justified on any ground whatsoever”!
Of course, Centre does not know who my best friend Sageer Khan is whom I met in Sagar and whose house was in Vidisha in Madhya Pradesh but Harish Salve is known all over the world for his legal prowess and his views definitely cannot be sidelined or glossed over under any circumstances!
Sanjeev Sirohi