The Allahabad High Court on Thursday exhorted the Central government to implement the Uniform Civil Code (UCC) observing that it was "long due". The high court's observation came on a batch of pleas—17 in all—filed by interfaith couples seeking protection from their family wherein one-half of the couple converted before getting married.
We have entered the third decade of the 21st Century, and a UCC is long due, Justice Suneet Kumar said. "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," Justice Kumar noted in his 40-page order.
"One of the issues governing marriage and registration is the multiplicity of marriage and registration laws," the court observed underscoring the need for a common set of laws. "The existence of multifarious personal laws cannot be a valid defense when personal laws across the board violate fundamental rights," the court added.
"Interfaith marriage, per se, is not prohibited under the Unlawful Conversion Act, 2021, but the parties undergoing interfaith marriage can be subjected to harassment," the court said.
The court further pointed out that 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," the court added underscoring the need for uniform laws.
Justice Kumar observed that there was "nothing 'special' about marriage" to subject it under different personal laws, thus "erecting barriers in the free intermingling of the citizens".
The court said the petitioners in the instant case "cannot be hounded as criminals" when their crime, if any, "is that they have succumbed to the dictates of their heart for each other."
Also Read: Explained: What is the Uniform Civil Code?
UCC will help the cause of national integration
The Allahabad High Court on Thursday held that the UCC would help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies.
The UCC refers to a common set of laws that will govern personal laws like marriages, divorce, adoption, and inheritance irrespective of a person's religion or faith. Presently, personal laws drawn from scriptures and faith govern the manner in which we may marry, divorce, adopt or gain inheritance.
Justice Kumar pointed out that Indian society has transformed since we achieved independence seven decades ago. "Many customs and practices have evolved/received acceptance of the people which could never have been thought of or imagined a few decades back," he said.
He was referring to the limited recognition of rights accorded to the LGBTQIA+ community; 'live in' relationships; legitimacy of children borne from such relationship; surrogacy; right of adoption by enacting secular law; right to maintenance irrespective of personal law; recognizing single-parent family; right of persons with disability among other.
"Constitution is not cast in stone to make it rigid beyond change," the court observed. It is fluid and responds to the changing times of society.
"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," Justice Kumar added.
"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," the court said.
Parliament needs to pay immediate attention to interfaith relationships
The parliament needs to pay immediate attention with regards to interfaith relationships, the court said. The answer to regulating such relations is through legislative intervention by enacting the UCC, the court added.
There has been a steep rise in intercommunity, inter-caste and interfaith marriage/relationship, which has exploded specially in the last few decades. The society since 1950 (when the Constitution was adopted) has considerably evolved and the relationships, be it interfaith, inter culture, coupled with the rise in the number of single women requires a comprehensive Family Code which is in conformity with the changing times," Justice Kumar said.
The judge observed that the Special Marriage Act, 1954—a secular enactment providing for a civil marriage—does not subscribe to, or meet the changing attitudes, of a transformed society.
The law needs to keep evolving to serve the society as per its requirements, and the Special Marriage Act miserably falls short of its objective and is surely not responsive to the changed circumstances with the massive rise in interfaith marriage," the court added.
The court observed that the UCC could regulate interfaith marriages just like the Hindu Family Code (HFC) which has "integrated and united Hindu citizenry".
The HFC are personal laws that cover Hindus along with Sikhs, Buddhists, and Jains—who have been included within the definition of Hindus
"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," the order read.
Justice Kumar said the Centre must take the initiative on this issue since "no community is likely to bell the cat…".
State's duty to safeguard personal liberty
The high court reiterated that it was the state's duty to safeguard personal liberty. "Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived," the court said.
An individual must be entrusted to make the best decisions for themselves. They are continuously shaped by the social milieu in which individuals exist," the court observed. "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters," it added
Justice Kumar reiterated observations made by the supreme court and several high courts: The consent of the family or the community or the clan or the State or Executive is not necessary, once the two adult individuals agree to enter into wedlock which is lawful and legal. Their consent has to be piously given primacy, with grace and dignity.
"The duty of the State is to safeguard the ability of the individuals to take decisions, the autonomy of the individual and not to dictate those decisions," the court said. "In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters," it added.