No Attempt Made To Frame Uniform Civil Code Despite Judicial Exhortation: SC
At the outset, there can be no denying that it is a matter of greatest concern that none other than the Supreme Court which is the highest court in India has just recently in a latest, landmark and extremely laudable judgment titled Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira & Anr. in Civil Appeal No. 7378 of 2010 delivered on September 13, 2019 and authored by Justice Deepak Gupta while speaking for the Bench for himself and Justice Aniruddha Bose has minced just no words to drive home the valid point that no attempt has been made yet to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations by it. Where is any doubt in this? We all know it very well but yet we see that Centre and Parliament has taken just no action in last more than seven decades to do something concrete to address it!
First and foremost, the ball is set rolling in para 1 of this notable judgment wherein it is pointed out that, ““Whether succession to the property of a Goan situated outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian Succession Act, 1925” is the question which arises for decision in this appeal.”
While narrating the facts, it is then stated in para 2 that, “One Joaquim Mariano Pereira (JMP) had three daughters viz. (1) Maria Luiza Valentina Pereira (ML), Respondent No. 1 (2) Virginia Pereira and (3) Maria Augusta Antoneita Pereira Fernandes. He also had a wife named Claudina Lacerda Pereira. He lived in Bombay and purchased a property in Bombay in the year 1955. On 06.05.1957 he bequeathed this property at Bombay to his youngest daughter, Maria Luiza Valentina Pereira, Respondent No. 1. He bequeathed Rs. 3000/- each to his other two daughters. His wife expired on 31.10.1960 when he was still alive. JMP died on 02.08.1967. The probate of the Will dated 06.05.1957 was granted by the High Court of Bombay at Goa on 12.09.1980. Both the other daughters were served notice of the probate proceedings.”
Briefly stated, it is then brought out in para 3 that, “Goa was liberated from Portuguese rule on 19.12.1961. An ordinance being The Goa, Daman and Diu (Administration) Ordinance was promulgated on 05.03.1962 and thereafter the Goa, Daman and Diu (Administration) Act, 1962 was enacted, hereinafter referred to as ‘the Act of 1962’. Both the Ordinance as well as the Act of 1962 provided that the laws applicable in Goa prior to the appointed date i.e., 20.12.1961 would continue to be in force until amended or repealed by the competent legislature or authority. Section 5 of the Act of 1962 which is relevant for our purpose reads as follows:-
“5. Continuance of existing laws and their adaptation-
(1) All laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.
(2) For the purpose of facilitating the application of any such law in relation to the administration of Goa, Daman and Diu as a Union territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may within two years from the appointed day,
by order, may (sic make) such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made.””
More importantly, it is then pointed out in para 4 that, “It is not disputed before us that the Portuguese Civil Code, 1867 (hereinafter referred to as ‘the Civil Code’) as applicable in the State of Goa before its liberation in 1962 would apply. The Civil Code is in two parts – one part deals with all substantial civil laws including laws of succession and the other part deals with procedure. As far as the present case is concerned, they are governed by the Civil Code. The main dispute is that whereas the appellant, who is one of the legal heirs of the daughters of JMP, claims that even the property of JMP in Bombay is to be dealt with under the Civil Code, the case of the respondent i.e., the daughter who was bequeathed the property in Bombay is that as far as the immovable property situated outside Goa in any other part of India is concerned, it would be the Indian Succession Act, 1925 which would apply.”
Needless to say, it is then made amply clear in para 14 that, “The Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to the domiciles of Goa only by virtue of the Ordinance and thereafter, by the Act. Therefore, the Civil Code has been enforced in Goa, Daman and Diu by an Act of the Indian Parliament and thus, becomes an Indian law. This issue is no longer res integra.”
What’s more, para 17 then further brings out that, “It is important to note that this Court held that in so far as the continuance of old laws is concerned, the new sovereign is not bound to follow the old laws. It is at liberty to adopt the old laws wholly or in part. It may totally reject the old laws and replace them with laws which apply in the other territories of the new sovereign. It is for the new sovereign to decide what action it would take with regard to the application of laws and from which date which law is to apply. As far as the present case is concerned, firstly the President by an Ordinance and later Parliament by an Act of Parliament decided that certain laws, as applicable to the territories of Goa, Daman and Diu prior to its conquest, which may be referred to as the erstwhile Portuguese laws, would continue in the territories. It was, however, made clear that these laws would continue only until amended or repealed by competent legislature or by other competent authority.”
Furthermore, it is then also made clear in para 18 that, “We are clearly of the view that these laws would not have been applicable unless recognised by the Indian Government and the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and in sum and substance, is an Indian law. It is no longer a foreign law. Goa is a territory of India; all domiciles of Goa are citizens of India; the Portuguese Civil Code is applicable only on account of the Ordinance and the Act referred to above. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case. We answer question number one accordingly.”
While making a strong pitch for uniform civil code and lamenting total inaction on this front, it is then envisaged in para 20 that, “It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano (1985) 2 SCC 556 and Sarla Mudgal & Ors. vs. Union of India & Ors. (1995) 3 SCC 635.”
It would be worthwhile to recall that in Shah Bano case of 1985, the Apex Court pulled back no punches to hold clearly and categorically that, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. 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. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
It would also be worthwhile to recall that the landmark judgment in Sarla Mudgal case which was authored by Justice Kuldip Singh began with this note: “ “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance any more, the introduction of “uniform civil code” for all citizens in the territory of India.”
Most notably, it is also observed in John Vallamattom vs Union of India (2003) by the then CJI VN Khare that, “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” Can anyone ever deny this? Certainly not!
Moving on, it is then very rightly underscored in para 21 of this latest noteworthy judgment that, “However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal heirs as legitime. This, in some ways, is akin to the concept of ‘coparcenary’ in Hindu law. However, as far as Goa is concerned this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorce.”
In other words, the Supreme Court has minced just no words to convey it loud and clear as is quite ostensible from the above discussion in this extremely landmark judgment that no attempt has been made to frame uniform civil code despite judicial exhortation. Time and again the top court has written reams and reams on the dire need of the uniform civil code in our country but Centre has repeatedly turned a blind eye to it! The top court has once again now lauded the shining example of Goa where uniform civil code is applicable to all, regardless of religion except while protecting certain rights.
The million dollar question that arises now is: Why can’t then it be extended all over India to all people of all religion equally? It can be extended provided political strong will is there which so far has been totally lacking! This is what the top court has suggested by being most vocal about framing uniform civil code and lambasting successive Central governments for not doing anything on this score despite judicial exhortation and very rightly so!
Centre must stop dishing out excuses for not framing uniform civil code in light of this latest, landmark and extremely laudable judgment and promptly act in this direction so that no one feels that just one community or religion is getting special privileges at the cost of the other! When polygamy can be banned among Hindus in 1955 then why after more than 64 years can it not be banned among Muslims also? It cannot be also lightly dismissed that many Muslim women are battling this out also in litigation as they feel that women is inexorably suffering the most because of it!
Most importantly: Why evil practices like triple talaq, nikah halala and polygamy have been allowed to continue for so long since 1947 till 2019 which has made the life of a woman worse than that of animal? Why triple talaq has been banned after such a long time? Why nikah halala which makes a complete mockery of women has not been banned even now? Same holds true for polygamy!
To summarize, Supreme Court has in a catena of leading cases time and again forcefully argued in favour of uniform civil code but what an unbeatable irony that even after more than 72 years of independence, the idea of uniform civil code still remains just a pipedream! Centre must act right now by boldly acting on what the Supreme Court has directed now so remarkably in this leading case just like it has done in so many cases earlier also! Unquestionably, it is our national interests that will gain most and this must be uppermost in Centre’s priority list at all cost!
By Sanjeev Sirohi