Critically assess the role of social legislation in bringing about basic structural changes in marriage, family and property in India. What are the main obstacles in evolving a common Civil Code? (1990)
The load-bearing phrase is “basic structural”. Social legislation has certainly altered the legal structure of marriage, family and property. Whether it has altered the social structure — the distribution of authority and assets between men and women, and between communities — is a weaker claim. The unfinished business of that reform is what makes a common civil code so difficult.
What legislation did change
Monogamy, a minimum age, consent and judicial divorce reconstituted Hindu marriage as a dissoluble civil status; the Hindu Succession Act 1956 admitted daughters as Class I heirs; the Hindu Succession (Amendment) Act 2005, read retroactively in Vineeta Sharma (2020), made the daughter a coparcener by birth, ending the Mitakshara coparcenary’s male monopoly. The Protection of Women from Domestic Violence Act 2005 created a right to reside in the shared household, prising open the family’s claim to privacy.
The critical assessment
- The gap between right and realisation. Bina Agarwal (A Field of One’s Own, 1994) argued that women’s security depends on independent land rights, not maintenance. Her later nine-state work found women to be only about 14 per cent of landowners, most having received land as widows rather than daughters. NFHS-5 records 8.3 per cent of women owning land in their own right.
- Reform was asymmetric. The Hindu Code Acts codified one community’s law while leaving Muslim, Christian and Parsi personal laws largely untouched — which now supplies both the majoritarian argument for uniformity and the minority’s suspicion of it.
- The agenda carried an upper-caste bias. It universalised a Brahmanical, sacramental model of marriage, extinguishing divorce and widow-remarriage customs many lower castes and tribes already practised.
Obstacles to a common civil code
- Constitutional placement. Article 44 is a non-justiciable Directive Principle. In the Constituent Assembly debate of November 1948, Mohammad Ismail and Naziruddin Ahmad sought a saving clause for personal law; K. M. Munshi and Alladi Krishnaswami Ayyar argued uniformity served unity and women’s reform; B. R. Ambedkar defended the provision but conceded it was permissive. The compromise deferred the conflict.
- Minority apprehension that a uniform code means the majority’s code under a universal name, sharpened by Shah Bano (1985) and the Muslim Women (Protection of Rights on Divorce) Act 1986 that reversed it.
- Diversity. Hindu law is itself not uniform — Mitakshara and Dayabhaga, matrilineal Kerala, southern cross-cousin marriage. Tribal customary law is the hardest case, protected by the Sixth Schedule and Article 371. The Uttarakhand Uniform Civil Code, in force from 27 January 2025, exempts Scheduled Tribes — conceding the point in the act of legislating.
- Political weaponisation and the absence of a draft. The 21st Law Commission’s 2018 consultation paper held a uniform civil code “neither necessary nor desirable at this stage”, recommending reform within each personal law instead; the 22nd Law Commission reopened consultation in 2023. No agreed text exists.
Conclusion
Sarla Mudgal (1995) and Shayara Bano (2017) show courts advancing gender justice case by case, without uniformity — the realistic route. Legislation has changed the legal architecture of marriage, family and property, but basic structural change needs the material base — land, employment, education — that law alone cannot deliver; and a code imposed before consent is built would buy uniformity at the cost of the pluralism it claims to transcend.