GENDER JUSTICE FOR UNIFORM CIVIL CODE ESSAY COMPETITION[1].pdf

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1. GENDER JUSTICE FOR UNIFORM CIVIL CODE
ESSAY WRITING COMPETITION













By:
D. NITHYA PRAKASH(BALLB)HONS
PRESIDENCY UNIVERSITY, BANGALORE .

2. GENDER JUSTICE FOR UNIFORM CIVIL CODE

ABSTRACT

The present paper is aimed at explaining the conception of “Livery Civil law towards Gender
Justice”. A civil law may be a set of laws which governs the rights concerning to property also
as in particular matters like divorce, marriage, relinquishment, heritage etc. Composition 44
of the Indian Constitution authorizations perpetration of invariant civil laws for particular
laws. While the enactment of this civil law is confined by virtue of it being anon-binding
Directive Principle of State Policy and the jealous resistance of critics who cite the concession
of religious individualities of non-ages. This leads to overlooking neutrality and pragmatism
during hot reflections on the law. The main issue of securing justice and equivalency to women
is getting confined in numerous other recent issues like religion, denomination and freedom.
still, gender issues in this respect needed to be addressed more seriously. Though the Indian
Judiciary has also done a lot but it's ground reality that there are some restrictions on bar and
it can’t take over the functions of other organs of the state. This paper is an attempt toco-relate
the question of gender justice and equivalency to the issue of the relinquishment of invariant
civil law, its need and applicability for enactment throughout the home of India.

Keywords: Justice, Equality, Secularism.


“Our right of interference is limited entirely to giving education. Women must be put into a
position to solve their own way. No one can or ought to do this for them. And our Indian
Women are capable of doing it as any in the world.”
- Swami Vivekananda

3. INTRODUCTION:
The Indian popular society, which is governed by the rule of law, in which it's prognosticated
that all citizen is equal before law and entitled to get equal protection of law, irrespective of
their estate, creed, religion, race and coitus etc. In the pillar of humanity women are jeopardized
in numerous ways and impel to face numerous problems of varied nature only because of being
a woman. For their protection, no fruitful result is handed by any indigenous and statutory
protection and safeguards. still, the Indian Judiciary has also done lot but in reality, there are
some restrictions on governance of bar and it can’t handle the functions of other organs of the
State. In this connection, the Uniform Civil Code, an indigenous accreditation, is staying the
mercy of Indian Legislature to take the form of law to give equal status to women, who are
victims of diversities in particular laws. In India, it's harsh fact that women at the first case,
aren't women rather they're Hindu, Muslim, Christian, Jew or Parsi. This type of intelligence
is the root cause of our backwardness, demarcation and colourful social immoralities. It's
necessary to understand the mileage of Uniform Civil Code which the prominent tool to
harmonize the diversities of laws in particular matters which will eventually achieve the thing
incorporated in the gender justice. Indian Prime Minister Mr. Narendra Modi stated that in
moment’s world, it's more important that women get equivalency, independence and the right
to take life’s decisions. However, we should also feel the air of 21st century in similar matters,2
if we're keeping pace with the time s in other effects. After all it's important that the ideas and
traditions of one specific class or existent should not be assessed on another specific class or
existent. The main issue of icing justice and equivalency to women is getting trapped in
numerous other contemporary issues like religion, denomination and freedom. Women
commission in central areas like social status, gender bias, health, security and commission are
of pivotal prerequisite. Composition 44 expects from the state to secure a Uniform Civil Code
for all citizens in India. There's no Uniform Civil Code in India but a Uniform Criminal Code
subsists. The Felonious law is inversely applicable to all without any religious cooperation.
Though, in the case of civil law particularly in the matter of particular laws there's no
uniformity.



1. Student of Presidency University, Bangalore, India

4. I.CONCEPT OF UNIFORM CIVIL CODE:
The Uniform Civil Code synchronizes the analogous type of temporal laws to supervise all
people inversely irrespective of their religion, estate and lineage. It restores the right of the
citizens who are governed under different particular laws grounded on their religion or estate.
The major areas which take place under civil law includes the accession and administration of
property, marriage, divorce and relinquishment. It's incorporated as Directive Principles of
State Policy in Article 44 under Indian Constitution, but unfortunately later all these problems
it can’t be executed by courts it's regarded as non-judiciary rights.
This expression is combination of three terms i.e., Uniform, Civil, Code. Livery means
‘remaining the same in all cases at all times’ or ‘a form of effects which differs from common’;
Civil deduced from Latin word ‘civils’ means ‘citizen’; Further the term law has been deduced
from the Latin word ‘codex’ which means ‘codified laws’ or ‘a book conforming firstly of
rustic tables covered with wax and latterly of wastes of diploma of papyrus’3. The Uniform
Civil Code is considered as a part of secularization of particular laws without casting any
religious individualities. Livery Civil law of India is a term pertaining to the conception of an
overreaching Civil Law Code in India, de facto the conception of ‘UCC’ has two aspects
originally to give and apply the invariant law for all communities; secondly, to have analogous
and equal laws as well as uniformity within communities viz. between men and women and for
all regarding equivalency and gender justice.








2Narendra Modi: Uniform Civil Code does not mean a Uniform Civil Code, (May 07th, 2014), https://.com/news/report/ls-
election-interview-slide-show-1-the-narendra-modi-interview-we-will- empower-minorities-with-education/20140506.htm
(Last visited on Apr 27th, 2020)
3 Rd. P.K. Pandey, Gender Justice and Uniform Civil Code: An Overview, Chapter 2, SSRN 17, Sep (2)

5. II. CONCEPT OF GENDER JUSTICE:
Gender Justice is usually deals with independent exertion to set up choice for women and to
promote women’s birthrights through legit changes and the participation of women in
gregarious and profitable procedure. Any substance definition of gender justice is constructed
on an exclusive political corroboration, a group of persuasions about what is ‘right’ and ‘good’
in mortal connections, and how these prudent effects may be attained. “Gender Justice is around
farther than exclusively querying the relationship between men and women. It includes drafting
strategies for proper action toward converting society as an entire to make it more precisely
and equal and it means ‘a position in which women and men can be treated as wholly mortal’.
also, it implicates moving down from arbitrary to well- reasoned, justifiable and clearheaded
that is, fair- gregarious dealings”. Gender Justice is an instrument to reduce inequalities
between women and men due to which women’s subordination to men. It shows consequence
of gender justice and also helps in secerning between what is to be achieved and how is to be
achieved.

III.GENDER JUSTICE ON THE CONSTITUTIONAL BEDROCK :
The preamble of the Indian Constitution commences “We the people of India” which comprises
men and women of all gentries, persuasions. it persuades ‘quality of individualities’ which also
comprises quality of women. tallying to this frame, several showy enactments have been
format, pertaining to every turn of life, blood, race, custodianship and employment which
directs at swinging the guarding status, birthrights and quality of women. Our compassionate
Constitution, the root head of ordinances, is gender conscious. It not only allows equivalency
to women but also empowers the country to borrow system of positive demarcation in Favor
of women for nullifying the aggregate socio profitable, instruction and political disadvantages
passed by them. There are certain indigenous vittles’ which plays showy part in the field of
women commission. Composition 15(3) empowers the country to make special qualification
for women commission. Composition 39(a) requires country to channelize its procedure
towards keeping that the subjects (involving women also) inversely have the birthright to an
acceptable means of livelihood. Composition 39(d) requires that State shall channelize its
procedure towards keeping equal pay envelope for equal work. This Composition draws it
support from Composition 14 & 16 and the main end is to make a weal society and an

6. equalitarian gregarious order for both men and women in the Indian Union. It also imposes a
duty on country to make vittles’ for keeping precisely and sympathetic conditions for work and
to give motherliness relief for all womanish employees. Under Composition 243D (3) (4), 243T
(3) (4) reservations are handed to warrant women in political field. In Val Samma Paul v Cochin
University & Ors5, it has been held that mortal birthright of women encompasses gender justice
and it's also responsible to the Convention for Elimination of All Forms of Demarcation Against
Women. Mortal birthrights for women comprising girl child are inalienable, native and an
inseparable portion of adaptable mortal birthrights. In Karac Singh v State of Uttar Pradesh &
Ors5 the court has honoured that under Composition 21 the person has comprehensive
birthrights of control over his body organs. It also includes the absolute birthright of a woman
over her reproductive organs. In Vishakha v State of Rajasthan6, the court throws light on the
adding imminence of sexual importunity and observed “Each episode of sexual importunity of
woman at plant in violation of her abecedarian birthrights of Gender Equality and the Right to
life and choice”. Composition 44 of Constitution recommends that the country shall travail to
secure for subjects an invariant civil law throughout the home of India. This composition was
formed as a recommendation so as to permit the country any time to incorporate and unite the
country after Independence before moving to civil reforms. All the familiar premises covered
by a civil law comprises ordinances connected to accession and administration of property,
conjugality, divorce and relinquishment. The below conversations usually establishes that the
framers of the constitution were apprehensive of the gender injustice and sexual inequality of
women and incorporated in Composition 44 hoping that it be legislated and acquainted in future
at the applicable time.







4 (1996) 3SCC545: 1996 SCC (L&S) 772
5 AIR 1963 SC1295
6 AIR 1997 SC 301

7. IV.GENDER DISCRIMINATION UNDER PERSONAL LAWS:
It's a well- known reality that in the particular ordinances of all communities’ gender injustice
is essential. This is due to the result of socio- profitable condition under which they evolved.
therefore, there's a critical demand for invariant civil law to solace not only equivalency
between men and women but also to bring around gender justice. Women whose entire life is
dedicated for men in colourful forms like mama, woman, family, son etc., are discerned in
particular law. In some special community women are discerned in the matters of conjugality,
divorce, heritage, relinquishment, conservation. and this is workable to all particular
ordinances. Some exemplifications are-
A. UNDER HINDU LAW - Till the codification of Hindu Law in 1955 and 1956 the Hindu
Women did not enjoy equal birthrights along with Hindu men. Before 1955 polygamy was
common or garden among Hindus. The Hindu women could not hold any property as its
absolute proprietor except in the case of Stridhan.J.L. Nehru spoke, “The British procedure of
non-interference with particular ordinances and mechanical interpretation or perpetuation of
Hindu tricks stopped the natural excrescency of Hindu tricks stopped the natural excrescency
of Hindu law and give ascent to petrified regulations” 7. The indigenous courts have led
emphasis on numerous generalities and interpreted the qualification to determine the status of
women and to warrant them. The mama ca not be natural guardian of her children during the
continuance of her husband8 when the conclusion relating to mama as natural guardian was
disputed, the court held that deportation of mama to inferior situation to portray as natural
guardian is a lawbreaking’s of Composition 14 and15. In Gita Hariharan9 case, it was held that
the custodianship birthright of women has experienced some variations by this interpretation.
Again, in Sarla Mudgal v Union of India10, a division judge of Supreme Court supported the
preface of Uniform Civil Code in India. In this present-day case it was held that transformation
of a Hindu joker to Islam only for the purpose of constricting bigamous dealings. Under Section
494 of Indian Penal Code similar matches are declared as bigamous and void by the court. The
court after representing to colourful precedents on that matter, categorically held that till
invariant civil law is acquired for all the subjects there would be a persuading to a Hindu hubby
who wants to enter in to alternate conjugality is breathing to come Muslim. Then the court
throws light on the injustice to the fairly matched first woman. It was also reflected by the
judge that there's failure of consecutive governments, to apply the indigenous decree under
Composition 44 and also alluded that the particular ordinances of the non-ages should be
accounted to develop religious and artistic cordiality rather by entrusting the responsibility to

8. the Law Commission and non -ages Commission. In Lily Thomas v Union of India11, while
dealing with the validity of alternate conjugality performed by Hindu hubby after his
transformation to Islam, the Apex Court purified that the court hadn't issued any guidelines for
the codification of Common Civil Code and that the judges constituting the nonidentical
benches had only ventilated their views in the data and portions under the case. It shows that
the Apex Court in India which have great judicial activism originally with appreciation to
invariant civil law has taken a backward step with this explanation.
B. UNDER MUSLIM LAW - In there-Islamic Arabia, the women delighted a supplemental
status in all premises when assimilated to men. The arrival of Islam has attributed important
for the amelioration of Muslim women and mitigation of their cases. The Holy Quran provides
equal birthrights to men and women and places and women in respectable situation. The
Muslim law allows polygamy (four women at a time) to Muslim manly but woman do not have
same option. A Muslim hubby can enunciate unilateral divorce but woman to marry same
hubby has to go through ‘halala’ 12process is veritably inhuman and discriminative, her status
is inferior in standard divorce also as in all forms divorce depends on her hubby concurrence.
In the matter of conservation also the separated Muslim woman isn't needed to be maintained
beyond ‘Iddat’ period. The Criminal Procedure Code imposes duty on a hubby to conserve his
woman involving separated woman until she maintains herself is a temporal law and is
workable to all. In case of Danial Latifv. Union of India13, it was held by the Constitution
judge of Supreme Court that “where the indigenous validity of the Act of 1986 was challenged,
and upheld that a Muslim hubby is responsible to make reasonable and fair qualification for
the future of the separated woman which obviously includes her conservation as well indeed
beyond the Iddat period must be made during the Iddat period under Section 3(1) (a) of the
Act. It was thus held that the incommodity of a Muslim hubby to his separated woman arising
under section 3(1) (a) of the Act to pay conservation isn't confined to the Iddat period. In Shah
Bano case14, the Supreme Court held that Section 125 of the Code of Criminal Procedure
(CrPC), 1973, being a temporal qualification was workable to all and thus in agreement with it
the hubby was bound to conserve his woman consequently long as she does not marry. The
Court remorse that the council had casualness towards Composition 44.
7 P. Ishwara Bhatt, Directive principles of State Policy and Social Change with reference to Uniform Civil Code vol.25,
Banaras Law Journal 1989 pp. 75-96 at 76
8Sec 6, Hindu Minority and Guardianship Act, 1956
9AIR 1999 SC 1149
10IR 1995 3SCC 635
11 AIR 2000 SC 1650

9. The Supreme court applied the doctrine of symphonious construction and construed the
enactment veritably much in line with its Shah Bano judgment15. The situation, thus, is that a
Muslim woman is entitled to reasonable and fair conservation under Section 125 of the CrPC
consequently long as she remains unattached after the divorce. numerous other sets like
Christian, Parsi and Jews also have vittles’ of discriminates like transformation is ground for
divorce among Christians for Convertor under Convert’s Conjugality Dissolution Act 1866; A
Christian hubby can disjoin woman on ground of infidelity but woman has to establish further
premises in lieu of infidelity on her hubby’s side to gain divorce. While gender biasness affects
under all breathing particular ordinances a collaborative bias is apparent indeed in allegedly
temporal Special Marriage Act 1954. still a correction to SMA in 1978, with the primary end
of conserving property accruing to Hindu correction in the avowedly temporal law, on
contracting a civil conjugality, a Muslim, Christian, Parsi or Jew no further has path to her or
his particular law of race. They're governed by the Indian Succession Act, 1925. But a Hindu,
Buddhist, Jain or Sikh shall, hold on his or her particular law of race.
V.OBSTACLES TO UNIFORM CIVIL CODE:
There's major three expostulations expressed for executions of Uniform Civil Code in India are
as follows- originally, Composition 44 of the Indian Constitution must be cancelled because
particular ordinances are sacrosanct and inflexible and no council can amend it Such an
expostulation is unwarranted, illogical and fallacious because there's nobody godly about
particular ordinances. The qualification in Composition 44 is nobody but an important
perpetration of the ideal of ‘fraternity, confinity and veracity of the Nation’, which isn't only
given away in the preamble to the Constitution, but also in the Abecedarian Duties in
Composition 51 A(c) and(e). Secondly, Uniform Civil Code is in opposition to Fundamental
Right guaranteed under Composition 25 & 26. Both the papers are still subject to public order,
probity and health and to the valuations elevated in all other abecedarian birthrights similar
equivalency and gregarious justice. Chief Justice in John Vallenato case16reminded that ‘there
is no necessary connection between religious and particular law in a cultivated society. Thirdly,
UCC is in opposition of abecedarian right contained in Composition 29. A fresh protection
taken against Art. 44 is of Art. 29 that guarantees right as to cultivation. It's contended that
particular law builds a portion of cultivation. A peril is revealed that if Composition 44 is
enforced, it would drive down the insulate identity of non-age communities. This peril is
completely foundation less as there are papers 25- 27 to cover one’s own persuasion, religious
beliefs & sentiments.

10. VI.CONCLUSION:
Livery Civil law is a showy device to achieve the thing cleansed in the Constitution of India,
has come only disputable conclusion and our Indian Legislature, due to absence of devotion,
did nobody to legislate the UCC preferably this bulletin of State, to get vantages in general
choices, has tried to inhibit the path of UCC which has been eased by Judiciary from time to
time. De facto, it's negligence on the portion of council which can be no way spoke in interest
of public veracity and confinity. an invariant civil law is a pivotal for the security of the
bedevilled, creation of public confinity and solidarity, for safe protecting the mortal birthrights
of women in India irrespective of the religious community they attach and, also, to upbring the
public ordinances in conformity with the fairly shackling vittles of transnational law in the
shape of colourful transnational mortal birthrights instruments formerly ratified by India.











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12 AIR 2000 SC 1650
13 ‘Halala’ means ‘The divorced Muslim wife has to marry another person and get the marriage consummated.
Thereafter she has to take divorce from second husband and then she can be able to marry the first divorced
husband.’
14 (2001) 7 SCC 740
15 Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945
16JohnVallamattonandanotherv.UnionofIndia(20035SCALE38