Comparison of Hindu and Muslim Law with UCC
Author: Mr. Raj Aryan, Lloyd Law College.
Both the personal laws i.e. Hindu and Muslim law has their significance based on the belief of that particular community on the particular religion. UCC stands for uniform civil code as is defined under article 44 of the Indian Constitution which states that ‘The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India’. So, there has been a debate between both the personal, Hindu and Muslim, laws concerning the Uniform Civil Code. Like, should the provisions have given under the constitution be applied in the case of both the personal laws, if not then why not because it will be like going against our constitution. And if article 44 of the Constitution of India will be applied in the case of personal laws, what will be the result, outcome, and impact of it.
Hindu law is of the primitive and most ancient law still prevailing in today’s era. It is known to be governed by the Hindu Succession Act, 1956. The Hindu law has various acts and provisions applied in the case of Divorce, Marriage, Adoption, Property, Rights of the son, Minority, and many others.
Guardianship of minor children under Hindu law has been reformed, codified, and even defined under the Hindu Minority and Guardianship Act, 1956. Like under this act, if a couple (a boy and an unmarried girl) has a child, then the first guardian would be considered as a father and then the mother will be considered as the second guardian. But if a child of fewer than 5 years, the mother will be considered as his/her first guardian. Moreover, if the couple conceived a daughter, and she late married to a man then the guardian will be his married husband. The courts have the power to remove any guardian according to Section 13 of the Hindu Minority and Guardianship Act, 1956.
Adoption under Hindu law can be done either through country adoption or intercountry adoption. Intercountry adoption is done by the Juvenile Justice Act. In the case of Laxmikant Pandey v. Union of India (1984), adoption rules and regulation got a kind of new dimension that changed the earlier methods which were being followed.
Divorce under Hindu law is done according to the Hindu Marriage Act. The rights of women to give divorce to their husbands of grounds like adultery, bigamy, desertion, etc is given under Section 10 of Indian Divorce Act, 1869. Section 11-18 deals with the matter related to the nullity of marriage. Divorce concept has established after 1956, as earlier there was no provision regarding divorce and evil practice of Sati system; but this act has made many changes and changed the rituals being followed long ago.
Muslim law is a personal and not a codified law governed by Shariat of 1937 and can be applied in the case of Divorce, Maintenance, inheritance, etc. The source of Muslim law is the Quran and the Muslim community is differentiated mainly into 2 groups, that is, Shia and Sunni community. Both these communities are governed by their laws but mainly governed by the Quran only. Quran’s word relates to the name of God. Every Muslim follows this law.
Islamic law doesn’t have a similar concept of adoption as like in Hindu law. In the case of Mohammed Ahhahabad v. Mohammad Ismail, the court held that there is no similar concept of adoption under Muslim law as under the Hindu law; but the Muslim law acknowledges the concept of paternity. Basic difference between the two in case of adoption is that the person who is adopted is called as son of another person, while in case of paternity the essentials of acknowledgment are that, the acknowledge must not be known as the son of another.
For the adoption of a child by an individual, he needs to follow the guardianship and wards act, 1980 along with the orders of the court. Muslim law does not follow the concept of separate property. There exists only one property with the same general rules (like the rule of representation, exclusion, etc) for both female and male succession. If an individual (Muslim) dies without making a will, his property will be distributed among legal heirs after deducting some expenses also known as Heritable Property. Muslim law for succession constitutes as Quran, Ijma, Sunna, and Qiya.
Divorce under Muslim law is governed by Muslim Marriages act, 1939. The divorce under this act can take place under two circumstances, my wife and my husband. When a wife wants the divorce, she can do the same in three ways, namely, Talaq-i tafweez, Lian, Dissolution of Muslim marriage act, also known as the Judicial Divorce. When the husband wants divorce, he can do the same in various ways, like, Talaq-i-Sunnat, Talaqi-Biddat, Talaq-i-Husan, Talaq-i-Ahasan, Ila, and Zihar, as known as Extra Judicial Divorce.
Need for the establishment of both the Laws:
The purpose of making the laws is not to force something on the society; its main function is to regulate the social, political, cultural behavior of the society for better functioning and working of the society. Both the Hindu and Muslim laws are essential in the better working of the society. This is just a matter of belief on own religion, which makes one law different from the other in a matter of working. It just makes society diverse and we get to see different rituals, practices, and many other things in society. Belief is very heart touching, if one even tries to dissolve or enter and dissolve an individual’s beliefs, the matter is going to be worse. Just consider a situation, when a person (people call him/her atheist) come and try to come and tries to convince you that God doesn’t exist, don’t believe in them. I need not tell, what further the person is going to do. So, we should respect the belief of others to get respect for our beliefs.
Hindu and Muslim law are different in the law that, Hindu law doesn’t allow the practice of polygamy and has abolished it, but at the same time, Muslim law allows polygamy and is even in the present practice. Hindu law allows adoption whereas at the same time Muslim law doesn’t. Hindu law is a codified law but Muslim law is not a codified law. Under the Hindu law, there lies a concept of the separate and ancestral property whereas, under the Muslim law, there is a concept of only joint and single property. Hindu law is governed by the Hindu Succession Act, 1956, whereas Muslim law is governed by the Muslim Shariat Law Act, 1937.
Meaning of UCC under Article 44 of the Indian Constitution:
Article 44 of the Indian Constitution states that “The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. People get to understand this provision as all the citizens of the country should be governed with a common set of rules and to replace the personal laws, like Hindu and Muslim law, with a common rule which will be followed by every citizen. This misconception has created a vast debate over this provision. The time has come to amend and make it clear the real meaning of this provision. This provision means that people from the same religion, culture, or same varieties or belonging to the same place or common diversity should be treated equally in some cases, or the same type of people should be treated in an equal sense. This provision doesn’t say all the Muslims or even all the Hindus to follow other religions. It will be then as same as giving a treatment of cancer to a diabetes patient, which will seriously be a bullshit idea. So, goes the same in this case of provisions of Article 44 of the Indian Constitution. It tells to treat the particular type of people in a particular war, just that much.
Implementation of UCC in both the Hindu and Muslim law:
So far, we have discussed the Hindu and Muslim law, its need, about UCC and now come the final and conclusion part. As we have already discussed the meaning of UCC saying to treat a particular type of people in a particular way so that it doesn’t hinder the right of anyone and also helps in the better functioning of the society. And personal laws like Hindu and Muslim law is based on personal belief. So, if Uniform Civil Code is applied here, it will just mean that people belonging to a particular religion or having the same belief and faith which don’t hinder the belief and rights of another should be treated similarly and no difference should be made on manmade differences. And UCC don’t even force the people of one religion to change their religion and behave in a particular way. Yes, the provision stated under Article 44 indeed needs to be amended so as it could clarify the thing stated above. So that it doesn’t create any confusion or chaos ahead. After the implementation of UCC in both the personal laws, people belonging to a particular religion and following a particular law would be treated alike.