British India (1858–1947) The Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in
codification of Indian law, relating to crimes, evidences and contract but it recommended that
personal laws of Hindus and Muslims should be kept outside such codification. According to their understanding of religious divisions in India, the British separated this sphere which would be governed by religious scriptures and customs of the various communities (Hindus, Muslims, Christians and later
Parsis). These laws were applied by the local courts or
panchayats when dealing with regular cases involving civil disputes between people of the same religion; the State would only intervene in exceptional cases. Thus, the British let the Indian public have the benefit of self-government in their own domestic matters with the Queen's 1859 Proclamation promising absolute non-interference in religious matters. The personal laws involved inheritance, succession, marriage and religious ceremonies. The public sphere was governed by the British and Anglo-Indian law in terms of crime, land relations, laws of contract and evidence—all this applied equally to every citizen irrespective of religion. Throughout the country, there was a variation in preference for scriptural or customary laws because in many Hindu and Muslim communities, these were sometimes at conflict; such instances were present in communities like the
Jats and the
Dravidians. The
Shudras, for instance, allowed widow remarriage—completely contrary to the scriptural
Hindu law. The Hindu laws got preference because of their relative ease in implementation, preference for such a
Brahminical system by both British and Indian judges and their fear of opposition from the high caste Hindus. The difficulty in investigating each specific practice of any community, case-by-case, made customary laws harder to implement. Towards the end of the nineteenth century, favouring local opinion, the recognition of individual customs and traditions increased. The Muslim Personal law (based on
Sharia law), was not strictly enforced as compared to the Hindu law. It had no uniformity in its application at lower courts and was severely restricted because of bureaucratic procedures. This led to the customary law, which was often more discriminatory against women, to be applied over it. Women, mainly in northern and western India, often were restrained from property inheritance and
dowry settlements, both of which the Sharia provides. Due to pressure from the Muslim elite, the Shariat law of 1937 was passed which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance.
Legislative reforms Certain Hindu customs prevalent at the time discriminated against women by depriving them of inheritance, remarriage and divorce. Their condition, especially that of
Hindu widows and daughters, was poor due to this and other prevalent customs. The British and social reformers like
Ishwar Chandra Vidyasagar were instrumental in outlawing such customs by getting reforms passed through
legislative processes. Since the British feared opposition from orthodox community leaders, only the Indian Succession Act 1865, which was also one of the first laws to ensure women's economic security, attempted to shift the personal laws to the realm of
civil. The Indian Marriage Act 1864 had procedures and reforms solely for Christian marriages. There were law reforms passed which were beneficial to women like the
Hindu Widow Remarriage Act of 1856, Married Women's Property Act of 1923 and the
Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman's right to property. The call for
equal rights for women was only at its initial stages in India at that time and the reluctance of the British government further deterred the passing of such reforms. The
All India Women's Conference (AIWC) expressed its disappointment with the male-dominated legislature and Lakshmi Menon said in an AIWC conference in 1933, "If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us." The women's organisations demanded a uniform civil code to replace the existing personal laws, basing it on the Karachi Congress resolution which guaranteed gender-equality. The passing of the Hindu Women's right to Property Act of 1937, also known as the Deshmukh bill, led to the formation of the
B. N. Rau committee, which was set up to determine the necessity of common Hindu laws. The committee concluded that it was time of a uniform civil code, which would give equal rights to women keeping with the modern trends of society but their focus was primarily on reforming the Hindu law in accordance with the scriptures. The committee reviewed the 1937 Act and recommended a
civil code of marriage and succession; it was set up again in 1944 and send its report to the
Indian Parliament in 1947. The Special Marriage Act, which gave the Indian citizens an option of a
civil marriage, was first enacted in 1872. It had a limited application because it required those involved to renounce their religion and was applicable mostly to non-Hindus. The later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights.
Post-colonial (1947–1985) Hindu Code Bill and addition to the Directive Principles supported a uniform civil code but he had to face opposition from other leaders The Indian Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. The first Prime Minister of the
Indian republic,
Jawaharlal Nehru, his supporters and women members wanted a uniform civil code to be implemented. As
Law Minister,
B. R. Ambedkar was in charge of presenting the details of this bill. It was found that the orthodox Hindu laws were pertaining only to a specific school and tradition because monogamy, divorce and the widow's right to inherit property were present in the
Shashtras. A Civil Code of western inspiration was recommended by Ambedkar. Ambedkar's frequent attack on the Hindu laws and dislike for the upper castes made him unpopular in the parliament. He had done research on the religious texts and considered the Hindu society structure flawed. According to him, only law reforms could save it and the Code bill was this opportunity. He thus faced severe criticism from the opposition. Nehru later supported Ambedkar's reforms but did not share his negative view on Hindu society. The Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce, abolition of
coparcenaries (women inheriting a shared title) and inheritance to daughters. The first President of the country,
Rajendra Prasad, opposed these reforms; others included the
Congress party president
Vallabhbhai Patel, a few senior members and the Hindu fundamentalists within Indian National Congress. The women members of the parliament, who previously supported this, in a significant political move reversed their position and backed the Hindu law reform; they feared allying with the fundamentalists would cause a further setback to their rights. Thus, a lesser version of this bill was passed by the parliament in 1956, in the form of four separate acts, the
Hindu Marriage Act,
Succession Act,
Minority and Guardianship Act and
Adoptions and Maintenance Act. It was decided to add the implementation of a uniform civil code in Article 44 of the
Directive principles of the Constitution specifying, "The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India." This was opposed by women members like
Rajkumari Amrit Kaur and
Hansa Mehta. According to academic Paula Banerjee, this move was to make sure it would never be addressed. Aparna Mahanta writes, "failure of the Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the modern state's accommodation of the traditional interests of a patriarchal society".
Later years and Special Marriage Act The Hindu code bill failed to control the prevalent gender discrimination. The law on divorce were framed giving both partners equal voice but majority of its implementation involved those initiated by men. Since the Act applied only to Hindus, women from the other communities remained subordinated. For instance,
Muslim women, under the Muslim Personal Law, could not inherit agricultural land. Nehru accepted that the bill was not complete and perfect, but was cautious about implementing drastic changes which could stir up specific communities. He agreed that it lacked any substantial reforms but felt it was an "outstanding achievement" of his time. He had a significant role in getting the Hindu Code bill passed and laid down women-equality as an ideal to be pursued in Indian politics, which was eventually accepted by the previous critics of the bill. Uniform civil code, for him, was a necessity for the whole country but he did not want it to forced upon any community, especially if they were not ready for such a reform. According to him, such a lack of uniformity was preferable since it would be ineffective if implemented. Thus, his vision of family law uniformity was not applied and was added to the Directive principles of the
Constitution. The
Special Marriage Act, 1954, provides a form of civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law. == Significance of Shah Bano case ==