‘UCC is long due; can’t be made voluntary’: Allahabad HC calls upon Central government to implement the mandate of Article 44

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.

To start with, the ball is set rolling in this learned, laudable, latest and landmark judgment authored by a Single Judge Bench of Justice Suneet Kumar by first and foremost putting forth in para 4 that, “Petitions are being decided finally at the admission stage, as per Rules, on the consent of the parties.”

While elaborating on the facts, the Bench then states in para 5 that, “The batch of petitions (17 in number), pertain to interfaith marriage contracted by the petitioners. Petitioners, herein, claim to be major and one of the party to the marriage has converted to the religion/faith of his/her partner. The petitioners apprehend threat to their life, liberty and wellbeing. Hence the instant writ petitions seeking protection.”

To put things in perspective, the Bench then envisages in para 6 that, “In the leading writ petition (14896 of 2021) (Marya @ Vaishnvi Vilas Shirshikar and another vs. State of U.P. and others), it is pleaded that both the petitioners are medical professionals. The first petitioner (Vaishnavi), a Hindu, after conversion accepted Islam, thereafter, she married the second petitioner according to Muslim customs. The petitioners have applied for registration of their marriage. It is specifically pleaded that since they belong to different faiths, they eloped and got married on their free will. They apprehend threat to their life and liberty as the contesting private respondent, father of the first petitioner, is opposing the interfaith marriage. The first petitioner converted to Islam on 5 January 2021 and the Nikahnama is dated 23 January 2021. It is also pleaded that the first petitioner belongs to Maharashtra and the second petitioner is from Bijnor, Uttar Pradesh. The conversion and marriage had taken place in the State of Maharashtra. The registration of the marriage has been applied before the Marriage Registrar/Officer at Bijnore.”

As we see, the Bench then points out in para 23 that, “The common thread running through all the petitions is that the petitioners have contracted interfaith marriage upon conversion; petitioners are major. It is pleaded that the conversion is on free will; some petitioners are highly qualified i.e. professionals, graduates and some appear to have not passed secondary examinations. They apprehend threat to their life and liberty at the hands of their parents, relatives and other family members in connivance of the State machinery. Some of the petitioners have approached the District Police seeking protection.”

Truth be told, the Bench then remarks in para 24 that, “The petitioners are before this Court, under Article 226 of the Constitution of India, seeking protection of their life, liberty and privacy guaranteed under Article 21, to live independently as man and woman without the interference of the private respondents.”

To be sure, the Bench then candidly concedes in para 55 that, “Having regard to the rigour of the enactments governing conversion, marriage and registration of marriage, the parties in the backdrop of the opposition of the family members, as is the case with the petitioners, are compelled to take recourse, either, under the Arya Marriage Validation Act or Muslim Personal Law (Shariyat) Application Act i.e. instant conversion followed by marriage. In other words, the legal system, particularly secular laws, governing marriage and registration, as it exists on date, compels and coerces a party to interfaith marriage to compulsorily convert. The conversion of faith may appear voluntary, but, at the same time it could in all probability be a case of going against one’s conscience, thus, unwillingly violating the freedom of conscience guaranteed to the individual under Article 25 of the Constitution.”

Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”

Needless to state, the Bench then specifies in para 57 that, “The issue of UCC, though Constitutional, rakes political overturns whenever raised or debated in public domain.”

As it turned out, the Bench then concedes in para 58 that, “In the midst of all this clamour, the Law Commission 21st Report dated August 31, 2018 struck a wary note. In its report, the Commission observed:

“While diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has, therefore, dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage ….. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy. (emphasis supplied).””

Having said this, the Bench then pulls back no punches to make it absolutely clear in para 59 that, “The single sentence/observation by the Commission that ‘uniform civil code is neither necessary nor desirable at this stage’ has been flagged by the opponents of UCC as their anchor sheet to oppose the enactment of UCC. The entire report of the Commission neither discusses nor points out the merit or demerit of UCC for the citizen. The observation is probably confined to the discrimination noted in the personal laws of various religious groups. On having detailed the discrimination with regard to family laws within the personal laws of Hindus, Muslims, Christians and Parsis, the Commission recommended their removal, in the first instance, to make the personal laws equitable with regard to marriage, divorce, guardianship, succession and adoption. In doing so, probably the ‘stage’ for enacting UCC would be facilitated, therefore, the Commission opined that the stage for enacting UCC has not reached. The desirability, and/or, non desirability of UCC, in the backdrop of differences/discrimination of various personal laws has not been considered by the Commission so as to keep the directive of Article 44 in abeyance. The bald observation of the Law Commission is of no assistance to the opponents of UCC.”

It cannot be glossed over that the Bench then remarks in para 60 that, “Supreme Court, very recently (2019), in Jose Paul Coutinho vs Maria Luiza (Civil Appeal 7378 of 2010 delivered on September 13, 2019), as against the view of the Commission, observed 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.””

It also has to be taken note of that the Bench then observes in para 61 that, “The observation of the Supreme Court that till date no action has been taken with regard to UCC comes within a year, in contradiction to the observation of the Law Commission. In other words, the Supreme Court desires that UCC should be enacted as ‘the stage’ has reached the citizens of the country.”

Be it noted, the Bench then minces no words to underscore most commendably in para 82 that, “The 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. The Court has its limitations and cannot embark the activist role of providing a civil code. The Parliament has to step in and initiate the process of enacting the UCC by appointing a committee, and/or, making a reference to the Law Commission (Shah Bano case).”

Briefly stated, the Bench then stipulates in para 92 that, “To put it in a nutshell, the HFC as a uniform civil code has integrated the citizens into an integrated and united Hindu citizenry, on terms that is equal and uniform, insofar as the law regulating family law is concerned. The impact of HFC on Hindu society has been phenomenal.”

It is worth noting that the Bench then observes in para 93 that, “The area that immediately demands attention of the Parliament is with regard to the interfaith relationships. The answer to regulating such relations is through legislative intervention by enacting the UCC. The Court since Shah Bano (1986) opined that enactment of UCC is necessary for the unification and national unity of the country. This has been reiterated by the Supreme Court time and again until recently. By national unity, the Court meant to say that by enacting UCC, the legislature would create an environment based on uniform law pertaining to family that would foster creation of an Indian citizenry where citizens of the country, irrespective of their religion, culture can interact on equal terms without the intervention of religious texts, priest, customs and dogmas of personal law.”

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.”

Finally, the Bench then concludes by holding in para 107 that, “The writ petitions are allowed by passing the following orders:

(i) The State respondents and the private respondents are restrained from interfering with the life, liberty and privacy of the petitioners to live as man and woman;

(ii) The police authorities of the respective districts shall ensure the safety of the petitioners and provide protection to them, if demanded or needed;

(iii) The Marriage Registrar/Officer of respective districts are directed to forthwith register the marriage of the petitioners, without, insisting/awaiting approval of the competent district authority with regard to conversion of faith;

(iv) It will be open to the aggrieved party, in the event of fraud and misrepresentation, to take recourse of law, both – criminal and civil, including, annulment of marriage before the competent forum;

(v) The Government of India to consider the constitution of a Committee/Commission for implementing the mandate of Article 44, as directed by the Supreme Court;

(vi) The State Government to issue appropriate Government Order to the Marriage Registrar/Officer, District Authority, to comply and implement this order;

(vii) It will be open to the private respondents to seek modification/recall of this order in the event of being affected by the order;

(viii) The Registrar General of this Court is directed to supply copy of this order to –

(a) Department of Justice, Ministry of Law and Justice, Government of India, New Delhi.

(b) The Chief Secretary, Government of Uttar Pradesh, Lucknow.”

In conclusion, I cannot find one single reason to differ with what Hon’ble Justice Suneet Kumar has held so remarkably in this notable judgment. He has ably cited the relevant case laws and so also advanced valid reasons for holding that uniform civil code should be now ushered in promptly. He also made it clear that UCC is long due and it can’t be made voluntarily and is mandatorily required. He also made it crystal clear that government has to bring it, not any community or court. As we are nearing 75 years of independence, I can’t see any other way better to celebrate it other than to ensure that uniform civil code is enacted by the Centre at the earliest as we are a democratic country! What Hon’ble Justice Suneet Kumar has stated must be implemented by the Centre forthwith! No denying it!

Quite significantly, the Bench then without mincing any words clearly states in para 56 that, “The stage has reached that the Parliament should intervene and examine, as to whether, the country requires multiplicity of marriage and registration laws or the parties to a marriage should be brought under the umbrella of single Family Code. Marriage is just an association of two persons, recognized by law. There is nothing ‘special’ about marriage to subject it under different laws for various communities, thus, erecting barriers in the free intermingling of the citizens. The petitioners, herein, cannot be hounded as criminals. Their crime, if any, is that they have succumbed to the dictates of their heart for each other.”

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