NEW DELHI: With the debate over a uniform civil code remerging at the highest court in India, Justice Vikramjit Sen, a judge of the Supreme Court and a former Chief Justice of Karnataka High Court has expressed deep concern over the erosion of the secular fabric of the country because of the growing influence of religion on social issues.
During the hearing on a PIL seeking recognition for Christian courts set up under its personal law, he said, “It is a secular country but I don’t know how long it will remain so.
Speaking in favour of a uniform civil code, Justice Sen said law should not be compelled to recognise dictates of personal law in civil and family matters like divorce, marriage and adoption. Justice C Nagappan, who was also on the bench, said courts should not go into the area as every religion then would say that the law should incorporate their personal law. “We have to stamp religion out of civil matters,” he observed.
The Supreme Court of India has granted four weeks time to the Centre to file a reply on the petition which said ‘Canon Law’ was the personal law of Indian Christians and that a decree of dissolution of marriage granted by an ecclesiastical court should be held valid and binding.
The debate for a uniform civil code in India dates back to its colonial past. It is the debate to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen. Although a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
Article 44 of the Directive Principles in India sets its implementation as duty of the State. Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce and polygamy in the country.
In the current context, Clarence Pais, a former president of the Catholic Association of Dakshina Kannada in Karnataka, filed a petition before the apex court, saying many Catholics, who married after getting divorce from Christian courts, faced criminal charges of bigamy as such divorces were not recognised by the courts. He said ‘Canon Law’ had to be applied and enforced by a criminal court while deciding a case under Section 494 (bigamy) of the IPC.
“It is reasonable that when the courts in India recognise dissolution of marriage (by pronouncing the word talaq three times) under Mohammedan law which is the personal law of Muslims, the courts should also recognise for the purpose of dissolution of marriage Canon Law as the personal law of Indian Catholics,” the petition said.
Canon Law says that Catholics are required to marry in a Catholic church and enjoins that they seek nullity of marriage in the canonical court also under the code of canon law. Otherwise, the marriage and the dissolution are not recognised by the Catholic church.
“If criminal courts, while considering prosecution under Section 494 IPC, reject the application of Canon Law as the personal law of Catholics, a very serious result will follow and hundreds of spouses under the second marriage will have to face prosecution, jail and fine,” the petitioner said.
Under British rule, the Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. According to their understanding of religious divisions in India, the British separated this sphere which would be governed by religious scriptures and customs of the various communities (Hindus, Muslims, Christians and later Parsis). These laws were applied by the local courts or panchayats when dealing with regular cases involving civil disputes between people of the same religion; the State would only intervene in exceptional cases.
In the post-colonial period, under the Special Marriage Act, 1954, the legal framework provided a form of civil marriage to any Indian citizen irrespective of religion, thus permitting any Indian to marry outside the realm of any specific religious personal law. The law applies to all of India, except Jammu and Kashmir. In many respects, the provisions of the act are almost identical to the Hindu Marriage Act of 1955, which indicates how secularised the law regarding Hindus had become. The Special Marriage Act allows Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women, that could not be found in the personal law. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law.
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