Family laws in India are governed by personal status laws which are based on religious affiliations. While some are state-enacted statutes, others are based on customary practices or dictated by religious precepts. As these diverse laws are confusing, when India adopted its Constitution in 1950, a provision regarding the enactment of a Uniform Civil Code (UCC) to govern family laws was included in the Directive Principle of State Policy as an endeavour towards progress and development from an earlier regime of feudal and status-oriented personal laws. While the main concern was to enact a secular, civil and gender-just family law, over the last six decades, the UCC has become embroiled in the majority-minority political dynamics of the country and it has been used as a stick to beat the Muslim minority within a Hindu-majority state.
While the demand for the UCC was pushed during the 1980s and 1990s by liberal, modern and progressive intellectuals, after the communal attacks upon Muslims in the state of Gujarat in 2002, the issue was relegated to the back burner. But the debate came to centre stage again when the Supreme Court, in a judgment in October 2015, gave a call for enforcing the UCC in the context of Muslim polygamy and triple talaq (unilateral and arbitrary oral divorce), which is sanctioned under Muslim law. While there is widespread reportage about these comments, the core issue which was litigated before the Supreme Court, denial of rights to ancestral property to a Hindu woman, remained obscured.
The constant projection of only the discriminatory provisions under Muslim law by the media tends to project it as archaic and backward while the Hindu Law is perceived as progressive and gender-just. To dislodge this misconception, we need to examine the personal laws in their historical context of constitutionalism and legal pluralism; one that takes into account jurisprudential negotiations between community and state, and between codified laws and more fluid customs. For this, we must understand the system of personal laws in India before entering into a discussion on the pros and cons of the enactment of Article 44, or the Uniform Civil Code.
Personal laws