Re: [IAC#RG] DRAFT response for UCC questionaire

I tend to agree with the views expressed by Shri Dalvi. Am adding a few points not in any order. The questionnaire does not even begin to address certain basic issues.

1. At the outset, there seems to be to be a doubt in the usage of the words Uniform and Common. The good judge uses both terms for the UCC. In fact, a UCC does not have to be common to all citizens. It should apply uniformly across the land but can codify laws of different religions. For example, the Vedic marriage and Nikah can remain legal as also the option of a civil or registered marriage. The best and accepted practices of all religions and existing laws can be incorporated. If there can be a Hindu Undivided Family then there can also be Muslim or Christian Undivided family and so on.

2. On triple talaq, there is a need to differentiate between instant triple talaq and triple talaq given over a period of three months. The prior has already been invalidated by the Supreme Court in 2002. Please see Shamim Ara vs State of UP. An aggrieved muslim woman can approach any court for restitution of rights or grant of maintenance or enhanced maintenance. In case of violence or threat thereof, the provisions of the Domestic Violence Act apply to all women. The legal remedy already exists. Women may be unaware or hesitate to approach a court. This is where civil society must step in. As far as triple talaq given after an attempt at reconciliation, this is sanctioned by the Koran and any change in this would in my view be against the right to practice and propagate religion which is a fundamental right. The current petition seems superfluous. Let the muslim community discuss polygamy and halala.

3. The Supreme Court has appreciated the role of Muslim Family or Sharia Courts which relieve the load on an already overloaded legal system. A petition to ban such courts was disallowed. The beauty of the existing system is that if either party is aggrieved by the decision, they can approach a family court. A UCC would exclude arbitration by communities and all cases would enter the formal legal system. Parsis have the parsi panchayat and so on. Every family dispute does not have to go to court. Criminal, civil and taxation laws are already common so there is no urgency to codify a common law for marriage, divorce, adoption or inheritance except to make the existing law gender neutral.

4. The state can continue to endeavour for a UCC for another 70 years. In a country as diverse as India, the laws should evolve as indeed they are doing. Has the incidence of rape reduced after the change in the law? Even Justice Verma had stated that existing laws were adequate.

5. The issue needs a serious rethink and should be shelved as also the questionnaire.

Col Pavan Nair (Retd)