Broadly speaking: IMBALANCE BETWEEN PERSONAL LAWS AND INTERNATIONAL MIGRANTS IN INDIA

Profile of the Author: Abhijit Mohanty is a fourth-year student of Amity University, Rajasthan who is pursing B.B.A LL.B (Hons.) integrated course with a specialization in International Trade Law.

PERSONAL LAWS IN INDIA

Personal laws are those laws that are largely influenced by the religious customs of native communities. It regulates Indian citizens’ marriage, divorce, maintenance, succession and inheritance. The personal laws in India apply to all groups and classes of people belonging to different caste and religion. Therefore, personal laws are meant for all the communities prevailing in India like Hindu, Muslim, Christian, etc. Nevertheless, these laws have been criticized for perpetuating gender inequality and inherent discrimination. Consequentially, there has been a demand for the Uniform Civil Code since the case of Mohammad Ahmed Khan v. Shah Bano Begum, [1] however, no such implementation or consideration for the same has taken by the parliament due to the constitutional challenges. Another reason for the conflict is the codification of the personal laws; the Hindu personal laws were codified by the parliament, in 1956 but the Muslim personal laws are still uncodified and traditional in their approach.

INTERNATIONAL MIGRANTS

Immigration in its sense is the movement of the people from one state boundary to another, where they are not the citizens. The migrants reside in the particular host state for a long-term period. Immigration is classified as a pull and push factor. The migration due to attractive incentives is called a pull factor and the migration due to political, religious and personal compelling factors is called the push factors. The United Nations International Covenant on Civil and Political Rights regulates the immigration law concerning the citizens of a country. The objective of this law is to gain nationality and citizenship in a different country. In India, it is governed by the Constitution of India.

APPLICABILITY OF HINDU MARRIAGE ACT TO NON-CITIZENS

In the case of R.Sridharan v. R.Sukanya, [2] R. Sukanya married to Sridharan in the US, where Sridharan was a domicile of the US. They had their marriage in accordance with the Hindu Marriage Act, 1956 in 2002. In 2003, she flew back to India and never returned to the US. Thereafter she filed a divorce case against Sridharan in India to which Sridharan plead by challenging the matrimonial proceedings on the ground that he could not be subjected to Indian laws. The court held that to apply the provisions of the Hindu Marriage Act,1956 both have to be the domicile of the country and it was not enough that only one of them was a domicile of India. Since he was a US citizen, he cannot be subjected to Indian jurisdiction and face proceedings that were not maintainable in law.

GOA CIVIL CODE

The court has set Goa as an outstanding illustration regarding the application of the Uniform Civil Code which applies to all irrespective of religion. As of now in Goa, the concept of polygamy is not practised and the Muslim who have registered their marriage in the state cannot practice the same, the shares of the married couple in the property are equal and the assets are apportioned equally among the man and the woman after the divorce. Even the rights of succession and inheritance in respect to properties of a Goan domicile are governed under the uniform code. This attracts the maximum of the international migrants to go to Goa as it does not operate like the rest of the states in India.

CONCLUSION

To irradiate all the confusing problems, it is better to adopt the Uniform Civil Code in India. Under this, common personal law can be governed and it can administer the same set of secular civil laws to govern all people, even those belonging to different religion and regions. This would supersede the right of being governed under different personal laws based on their ethnicity. Through this, the international migrants coming to India would not face many problems present under the personal laws with regard to their religion. Since the migrants are not domicile of the country, they find it difficult to even adjust to the personal laws set by our country. Nonetheless, by the adoption of UCC, they could be governed under a Uniform Civil Law Code prescribed under Article 44 of the Indian Constitution.

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FAQs

Q1. Is UCC mentioned in the Constitution of India

A1. UCC is mentioned under Article 44, Part IV-A of the Constitution that provides for Directive Principles of State Policy which states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. DPSPs are only guidelines that can be implemented according to the circumstances.

References

[1] 1985 AIR 945, 1985 SCR (3) 844.

[2] C.R.P. (PD) No.284 of 2011.