Is It Not Time for a Uniform Civil Code, Asks Delhi HC Amid Conflict in Islamic and Criminal Law

The Delhi High Court has asked whether it is not time for India to move towards a Uniform Civil Code (UCC), stressing the need for a single legal framework where personal or customary laws do not override national legislation.

Justice Arun Monga’s observations came while reflecting on the recurring conflict between Islamic personal law and statutory law, noting that “under Islamic law, a minor girl attaining puberty may lawfully marry, but under Indian criminal law such a marriage renders the husband an offender under the BNS and/or POCSO or both.”

“This raises a stark dilemma viz. should society be criminalized for adhering to long-standing personal laws ? Is it not the time to move towards a Uniform Civil Code (UCC), ensuring a single framework where personal or customary law does not override national legislation?” the judge observed.

Underlining that such conflicts between personal and criminal law demand urgent legislative clarity, the Court said: “Before parting, it would be apposite to observe that this conflict warrants legislative clarity. The Legislature must decide whether to continue criminalizing entire communities or to promote peace and harmony through legal certainty.”

While acknowledging that opponents of a UCC fear it may erode religious freedom guaranteed under the Constitution, Justice Monga emphasized that such freedom cannot extend to practices that expose individuals to criminal liability.

These remarks were made while the Court was hearing the bail application of Hamid Raza, 24, arrested in connection with an FIR registered at P.S. Khyala under Sections 363, 376 IPC and Section 6 of the POCSO Act. The FIR was lodged by the prosecutrix’s stepfather, alleging that Raza had married a minor girl.

According to the prosecution, the girl’s school and birth records show her date of birth as February 5, 2011, making her about 14 years old at the relevant time. However, the prosecutrix herself claimed she was 20 years old when she married Raza in June 2024 under Islamic law. She has consistently supported the accused, stating that she left her parental home voluntarily and married him of her own free will.

The prosecutrix also disclosed in her statement that she had earlier been subjected to repeated sexual assault by her stepfather, which resulted in a pregnancy and the birth of a child in 2023. That child was later given up for adoption. The stepfather is currently facing prosecution in a separate FIR for sexual assault and remains in judicial custody.

She later married Hamid Raza under Islamic law, and the couple now has a child from their wedlock. Raza was arrested on October 6, 2024, and remained in custody for nearly 11 months before moving the present bail application.

After examining the case, the Court noted that under Muslim personal law, puberty, which is presumed at 15 years unless proved otherwise, is considered the marriageable age for girls. Courts have in the past upheld Islamic marriages of girls aged 15 plus as valid under Shariat, though such marriages may still conflict with statutory provisions under the POCSO Act and BNS.

“Be that as it may, whether it is a case of precocious puberty, or genuinely the prosecutrix was of the age of consent, or it is a case of valid Islamic marriage, cannot possibly be adjudicated in bail proceedings herein. Position of law clearly is that Muslim personal law cannot override POCSO Act and/or BNS,” the Court clarified.

Justice Monga further reasoned that even if the marriage were to be treated as invalid under statutory law, the relationship between the applicant and the prosecutrix was “consensual and akin to that of live-in partners.” Both being adults now, 24 and 20 years old, their relationship could not be criminalized in the present circumstances.

Court further added, "It is debatable that, both of them being Muslims, they would be fully within their rights to practice their religion, which is a fundamental right under the Constitution of India, and since their religion and custom, as per the prevalent Islamic law, permits marriage, the same would be valid in their personal law, though it may be in contravention of the age of consent prescribed under the law enacted by the Legislature.”

Justice Monga suggested that a pragmatic middle path could be to standardize core protections, such as prohibiting child marriages with penal consequences across all communities, while leaving less contentious personal matters to evolve gradually. “The decision is best left to the wisdom of the lawmakers of the country. But a lasting solution must soon come from the Legislature/Parliament,” he observed.

Ultimately, bail was allowed owing to the prosecutrix’s unequivocal support for the accused, the absence of criminal antecedents, and the questionable bona fides of the FIR.

“I am of the opinion that, de hors the controversy i.e. whether it is a valid marriage or not, even otherwise, taking a wholesome view, it is a fit case for bail,” the Court said.

“In light of the above factors taken cumulatively … further incarceration of the applicant pending trial is unwarranted,” the Court concluded, directing that Hamid Raza be released on regular bail subject to conditions imposed by the trial court.

Case Title: Hamid Raza v. State of NCT of Delhi

Bench:  Justice Arun Monga

Date of Judgment: 23rd September, 202