The Preamble of the Constitution of India declares India a secular republic and promises to secure to all its citizen social, economic and political justice, and equality of status. India is a secular republic, it means that state shall not discriminate against any religion; it shall treat all religions alike. The Constitution of India promises to secure economic justice to all its citizens. It means that state shall see that economic justice is made available to every citizen irrespective of his/her religion and sex. It further grants equality of status to all its citizens. It means no citizen shall be discriminated against on the basis of sex or religion. Article 14 of the Constitution says that State shall not deny to any person equality before law or the equal protection of laws. It means that all citizens shall be subject to one set of laws which shall apply to all citizens irrespective of sex and religion.
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Article 44 of the Constitution in the Directive Principles of State Policy says that the State shall Endeavour to secure for all the citizens a uniform civil code throughout the territory of India. It means that the State shall have one single set of civil laws for all the citizens of India irrespective of their sex and religion. All these provisions of the Constitution make it amply clear that the makers of the Constitution believed in the equality of all citizens (both men and women) whatever may be their religion. There is no indication that they thought of separate civil codes for the Hindus and the Muslims. The laws relating to and governing the practices of marriage, divorce, maintenance, custody of children, succession and inheritance are collectively called civil code.
In fact we find that no serious efforts have been made by government to formulate a uniform civil code for all the citizens of India. It is unfortunate that one of the two major communities of India are not governed by the laws passed by our sovereign Parliament. The Muslims have their own personal law for marriage and divorce. It was long ago with a single stroke of pen the law of monogamy for Hindus was passed and enforced. Why should this law not apply to all the citizens of our country? The personal law of Muslims permits them the right to marry four women at a time. As a result of this the condition of Muslim women continues to be pitiable. Why should at all such a law, whether personal law or otherwise be allowed to exist which condemns divorced Muslim women to indignity, subjugation, misery and economic deprivation? There is no justification for assigning a divorced Muslim woman a status of second class (grade) citizen by keeping her outside the jurisdiction of the existing law regarding marriage and divorce as passed by our own Parliament. Should we not protect our citizens (divorced Muslim woman) for leading a life of economic distress? These are the points to be considered by government and also by those who still wants to cling to the traditional irrational customs. We know that in many Islamic states legislations have been passed bringing emancipation to their women folk form the age-old shackles and outmoded customs and nations like Egypt, Iran, Turkey and Indonesia are on the vanguard.
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Now it cannot be argued that Government does not want to interfere with the Muslim personal law. It has already made certain provisions in the Muslim women (Protection of Rights on Divorce) Bill 1986 which are new and do not find a place in the Muslim Personal Law. Why can it or should it not go one step further and declare the polygamy as null and void and provide for application of the same law of marriage and divorce to Muslim women as are applicable to Hindu women? Once the right of Parliament to enact law in the area of Muslim personal law has been acceded to, what is needed is the political will to do away with the justice being done to Muslim women in India.
The problem of having a common civil code for all the citizens of India need not be viewed from religious angle. It is purely a human problem. Its economic and social implications are not less important. We talk of taking the country to 21st century; we condemn apartheid; we profess to be against all such things which are repugnant to human dignity; we believe in human equality. If that is true, why should we not act. Having two sets of laws both for the men and the women of the two communities does give rise to social tensions. Just imagine the feelings of an Indian woman (human being) not entitled to protections guaranteed by a law passed by Indian Parliament. Is she not being discriminated against? Is injustice not being done to her? Such a situation is a great hindrance to the fulfillment of our goal of economic emancipation of woman. Therefore earlier we adopt a common civil code the better it would be. Let us not fail in securing what is due to a section of our society.