Tag: UNIFORM CIVIL CODE

Uniform Civil Code

Reading time : 8 minutes

Table of Contents

  1. Introduction
  2. Development of Uniform Civil Code in Colonial Times
  3. Post-colonial era
  4. Uniform civil code through Constituent assembly debates
  5. Article 44
  6. HINDU CODE Bill
  7. Shah Bano Case
  8. Personal laws and Article 13 
  9. UCC and Gender Equality
  10. UCC in Goa
  11. Conclusion  

Introduction

India is a diverse country. From north to south and east to west the diversity is very prevalent. With 6 major religions and a number of castes and sub-casts. Ours is the most diverse country on the planet. Each religion stems from different roots and ancient scriptures. These customs and usages have been ever evolving and, in the process, have taken form of laws. These laws are termed as personal laws. The Hindus, the Mohammedans, the Christians, the Parsis all possessing their own personal laws dealing with the issues arising within their communities.  Apart from the broader religious distinctions in personal laws the laws also differ from caste to caste and even from one geographical territory to another.  There is no one set of rules governing all even though all live in one country. That’s the Unity in Diversity Nehru talked about in his book. [[1]]

Talking about preserving the Diversity in India the Supreme court of India in Navtej Singh Johar v. UOI [[2]] said ‘vision is to accommodate all differences of culture, ideology and orientation’.

Even when we talk about protecting this diversity, the Uniform civil code has always been a point of contention right from the constitution of this nation, in fact even before that. The Uniform Civil Code seeks to bring all personal laws under one common framework governing all these diverse religious and cultural communities. Hence creating “one rule for all”. It was the vision of the Framers of the constitution to eventually establish a common code for all in the pursuit of achieving oneness and integrity [[3]]. But it’s been 75 years since the inception of this Republic and the Uniform Civil Code (hereinafter referred to as UCC) still remains a vision to be sought. With the election manifesto of the current government promising the implementation of UCC across India and many state Chief ministers too talking about working towards the same the discussion on this topic cannot be any more relevant.

But before we come to the current scenario lets look into the history and development of UCC in this country.

  • Development of Uniform Civil Code in Colonial Times

The debate over the UCC dates back to the 19th Century when India was a British colony and the administration legal, legislative and executive was managed by the colonizers. The Lex Loci report of 1840 though talked about the unification and codification of Indian laws relating to crimes, evidence and contracts, it deliberately kept out of its realm the personal laws. Some attribute this to the British policy of Divide and rule. Some attribute it to the fear of backlash from the orthodox religious communities taking lessons from the Mutiny of 1857. The Queens Proclamation of 1858 declared nonintervention in matters of religious beliefs in British India.

Still the Crown did not completely abstain itself from legislating on religious matters. As stated earlier there were discrepancies even within the religious laws for example the Shudras allowed widow remarriage contrary to Hindu law.  There was conflict in customs governing communities like Jats and Dravidians. The Hindu Widow Remarriage Act 1856, The Married Women’s Property Act 1923 and the Hindu Inheritance (removal of disabilities) Act 1937 may be seen as some of the instances where the British Raj tried to bring reforms in the personal laws.

 Even the sharia law was enforced for Muslims across the country as there were differences as to the local laws as many of the converts still continued to abide by their local customs and usages. All of this created a lot of issues in delivering justice. In 1866 the Judicial committee of the Privy Council placed the Shariat over all the local customary laws. In the following years the High courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customs. However, the Judicial Committee of 1913 decided that customary laws play an important role in Muslim law and hence allowed them.

It also needs to be noted that only the Hindu and more so the Muslim communities were feared in the sense of legislating on them. The Indian Christian Marriage Act 1872 brought major reforms and procedural changes in regard to Christian marriages.

  • Post-colonial era

As seen above even after a number of legislations there still existed large scale discrepancies in personal laws. The B.N Rau committee which was set up to study the need for common Hindu laws concluded that it was time to move towards a Uniform Civil Code in order to get past the discrepancies and unequal treatment of women. This committee only focused on Hindu laws.

Implementation of common code was also the intention of the constitutional framers and thus Article 44 was inserted in the Constitution.

  • Uniform civil code through Constituent assembly debates [[4]]

There was a lot of contention over the UCC in the constituent assembly. There was a division over whether or not to include UCC in the Fundamental Rights Chapter.  There was backlash pre-dominantly from the Muslim members.

 Kazi Kamaruddin argued that local laws and customs are very significant part of Muslim personal law and there was not a single Muslim who wanted change in the personal laws. So, the state should not interfere. 

Hasrat Mohani contended that the Muslims derived their personal laws from the holy Quran and they are interpreted therein. No human agency has ever interfered in these personal laws. Any interference will lead to a significant backlash from the Muslim community.

Naziruddin Ahmed was of the view that there was no doubt that there would be a common civil code in this country. But the state should not be in a hurry. What the Britishers couldn’t do in 175 years what even the Muslim rules did not do over 500 years the state should not at once. That the state should work with caution and all the communities that are to effected by any such legislation should be comprehensively consulted. Another member called the article tyrannous to the minorities.

 In support of the article KM Munshi (Bombay General) argued that the submission that it would be tyrannous to the minorities is farfetched and unreasonable. He also stated that many modern Islamic nations do not recognize the local customs of minorities. He also submitted that “When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?”

He also said that if there is no Civil code it would be disadvantageous not only to the minority but also to the majority. Hindus have different schools of thoughts Mitakshara,, Dayabhaga etc all with different sets of rules. How come in a unified nation a same religion be governed by different laws. Addressing the opposition of Hindus to the Civil Code Munshi said “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.

DR. B. R. Ambedkar while addressing the issue whether it was desirable or possible to have a common code stated that there was already a uniform criminal code in Indian Penal Code, there is Transfer of Property Act and Indian Contract act for certain civil matters and various other examples proving that there is a Uniform Code in the country except for the matters of marriage and succession. That only a little corner was left untouched and Article 35 [ UCC was Article 35 in the original draft] was intended to bring about that change. He too like Munshi reiterated that many Muslim communities were already governed by Hindu derived laws due to their conversion and it was only recently after Shariat was made mandatory that they came to be governed by it. He stated that “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into  the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.

But Ambedkar also clarified that the article was not a compulsion on the state to enact a Uniform Code as soon as the constituent comes into being, rather it was more of an advisory. So, the citizens should not be apprehensive that the parliament will immediately proceed to implement a code found objectionable by them.

B.N. Rau the advisor to the Constituent Assembly stated that the Directive Principles were intended as moral precepts for the authorities of the state and that they have at least an educative value.

The issue whether to include UCC in Fundamental rights was settled by a 5:4 majority. The fundamental rights sub- committee led by Sardar Vallabhai Patel held it to be of less importance than freedom of religion and outside the scope of Fundamental Rights.

  • Article 44

Article 44 included in Part 4 of the Constitution states that – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

The very fact that it was included under Directive Principles of state policy and not under Fundamental Rights highlights its advisory nature and lack of enforceability. Article 37 makes it very clear that none of the directive principles will be enforceable by any court, but the principles are fundamental in governance of the country and it shall be the duty of the state to apply these in making laws.

Also read: LEGALITY OF MARITAL RAPE

It is also interesting to observe the language used in the Articles of Part 4 in most of the articles the language is the state shall in particular thrive, shall be the obligation of the state, shall in particular direct its policy, shall endeavour by suitable legislation etc while in the case of article 44 merely says that the state shall endeavour which seems to give it less of a priority.

The Supreme Court in Minerva Mills 1980 [[5]]  that the Indian Constitution was founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles). To give supremacy to one over the other was to disturb the harmony of the Constitution.

But still in reality there is no contention that Fundamental rights take precedence over Directive Principles.

  • HINDU CODE Bill

As mentioned above [post-Colonial era] The B.N. Rau committee’s report directed the creation of a uniform code for all Hindus. The report received wide publicity and in 1944 the Hindu Commission was revived under the chairmanship of Rau and a draft code including Succession, Maintenance, Marriage, Minority Guardiandship and Adoption was prepared. The Law Ministry revised the first draft in 1948 and made some changes to it, making it more suitable for discussion in the Constituent Assembly, where it was then introduced. It was referred to a select committee under the chairmanship of Dr Babasaheb Ambedkar, and the committee made a number of important changes in the Bill. The bill when introduced faced major backlash, the major opposition came from Sardar Vallabhai Patel, Pattabhi Sitaramaiya, M A Ayyangar, M M Malviya and Kailash Nath Katju. The then President Dr Rajendra Prasad threatened to use his powers of sending the bill back to the parliament or vetoing it. Ambedkar resigned over the bill not being passed. Nehru agreed to divide the bill in parts and dilute several provisions and eventually 4 different acts were passed namely, The Hindu Succession Act, Hindu Marriage Act, Minority & Guardianship Act and Hindu Adoption &Maintenance Act.

  • Shah Bano case

The UCC debate again came in the limelight during the Shah Bano Case [[6]] The case highlighted the conflict between secularism, UCC and freedom of religion. Islamic groups sighted the judgment as an attack on their religious freedom and right to their personal laws. Western concept of secularism -non-interference by the state in religious matters – was used to mobilize support against the judgment. A question whether secularism, freedom of religion are in conflict with UCC was raised. The doctrine of secularism adopted by us did not mean absolute non-interference but principled distance from the religion. Thus, implementation of Article 44 was under the provision of secularism. Article 44 being based on the concept that there is no necessary connection between religion and personal law, Marriage, succession and like matters are of secular nature so law can regulate them.                                     

The whole debate can be summarized by the judgment given by Justice R.M. Sahai. He said that Ours is a democratic republic that is secular. Religious liberty is at the heart of our civilization. The social fabric is shattered by even the tiniest departure from it. However, religious activities that violate human rights and dignity, as well as sacerdotal smothering of fundamental civil and material liberties, constitute oppression, not liberty. As a result, a uniform law is required to safeguard the downtrodden as well as to promote national unity.

  • Personal laws and Article 13

Article 13 of the Constitution addresses Laws inconsistent with or in derogation of fundamental rights.

In Narasu Appa Mali [[7]] the court held that Personal laws are not Laws for the purpose of Article 13.

As per Article 13 (3) a law includes customs and usage, but Justice Chagla in this case differentiated personal laws from customs and usages stating that personal laws are derived from scriptures and texts, while customs and usages are more specific to practices that deviated from personal law. Hence both of them being different personal laws were not part of law under Article 13.

Justice Chagla further consolidated this stand saying that if keeping personal laws out of the ambit of Article 13 weren’t the intention of the framers then they wouldn’t have included article 17(abolition of untouchability), article 25 (Freedom of conscience and free profession, practice and propagation of religion), article 26 (Freedom to manage religious affairs) and article 372 (Continuance in force of existing laws and their adaptation) as it would leave these articles redundant.

After this judgement a number of similar as well as diverging judgements have been pronounced by the court.

In cases like Krishna Singh v. Mathura Ahir 1980, Reynold Rajamani & Anr. v. UOI 1982 and Pannalal Bansilal & Ors. v. state of A.P 1996 the court held that personal laws are not affected by Fundamental Rights i.e Part 3 of the Constitution and shying away from the matter declared that it was on the legislature to examine this nexus.

However, a three-Judge Bench of the Supreme Court in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil 1996 has taken a contrary view and has held that personal laws to the extent that they are in violation of the fundamental rights are void.

In John Vallamotham v. UOI 2003 while considering the validity of S. 118 of the Indian Succession Act 1925, struck it down as being violative of Article 14 of the Indian Constitution. The court held that in any case, even if a provision wasn’t really unconstitutional the day it was got enacted or the Constitution entered into operation, it may be deemed unconstitutional as a result of circumstances that emerge later.”

The right of women to equality, compared to men is universally recognised and that

discriminating against a woman on the basis of her gender is immoral.  It was also said that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. And any legislation that brought succession and the like matters of secular character within the ambit of Articles 25 and 26 was suspect legislation.

In the recent Sabrimala judgement [[8]] too the court differed from the view taken in the Narasu Appa case. Justice D.Y. Chandrachud observed that “Customs, usages and personal laws have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the Constitution.” 

In Shayra Bano v. UOI 2017, a constitutional bench with a 3:2 majority held that triple talaq was unconstitutional being violative of Part 3 of the constitution. The court also opined that there was a need to reconsider the views expressed in Narasu Appa.

Increasingly more and more judgements have differed from the view taken in the Narasu Appa Mali case. If the implementation of a Uniform Civil Code is to be achieved the courts need to further deviate from it and work towards bringing personal laws in the ambit of Article 13.

  • UCC and Gender Equality

A plea has been filed in the Supreme court just 2 months back seeking issuance of direction for constitution of a High-level Judicial Committee for preparing a UCC for ensuring gender equality, justice and dignity of women. Let us examine how implementation of UCC relates to achieving gender equality. Personal laws though amended are still very derogatory towards women. May it be polygamy or refusal of maintenance in Islamic law, or may it be refusing women the right of primary guardianship in Hindu Minority and Guardianship Act. In Parsi law a Parsi woman marrying a non- Parsi man loses the property rights and rights to practice religion but the same is not true if the situation is reversed. These are only a few examples but the are many more that make it very clear how personal laws look down at women. Article 51 (A) e which calls to renounce practices derogatory to the dignity of women should be kept in mind by the state while framing laws. In Sarla Mudgal v. UOI [[9]] the court held that converting to Islam only for the purpose of entering into a second marriage is circumvents Section 494 of IPC [[10]] and cannot be allowed. The court was highlighting the injustice done to the first wife. The court also pointed out that it was the failure of the Governments to implement the UCC mentioned in Article 44 of constitution. But some doubts can also be raised as to the effectiveness of UCC in countering gender discrimination. Considering the Goa UCC, the code is not applicable to Catholics and other communities in the same manner. Also, the code allows Hindu Men to enter into Bigamous marriage in certain situations, like when the wife is not able to bare a son. All these doubts need to be addressed.

  • UCC in Goa

Goa is today the only state in India that has uniform civil code regardless of religion, gender, caste. In Goa Hindu, Muslim, Christians are governed by the same law with regards to marriage, divorce and succession. When Goa became the part of union of India in 1961 by the virtue of the Goa Daman and Diu administration act 1962 the parliament authorized the Portuguese civil code of 1867 to Goa which shall be amended and repealed by competent legislature.
In Goa marriage is a contract between two people of different sex with the purpose of living together and constitute the legitimate family which is registered before the office of civil registrar. And the particular rules and regulations have to be followed by the parties after that they can live together and start their life. But there are certain limitations according to which these categories of people are prohibited to perform marriage for example: any spouse convicted of committing or abetting the murder of other spouse shall not marry. Also, a Muslim man cannot commit polygamy, husband and wife have equal share in property, assets are apportioned equally in case of divorce. 

Even the former CJI SA Bobde lauded the UCC in goa and termed Goa as a shining example of UCC. But there are certain criticisms of the Goa model like the religious ceremonies of marriage given more importance than the compulsory registration, provisions of bigamy for Hindu male in certain cases, no separation of church from the state as the church laws are used for solemnizing the marriage, the church even has authority to annul the marriage.

  • Conclusion

Like the framers of the Constitution dreamed working towards the implementation of UCC should be the aim of the government.  India is a unique blend to various communities and their personal laws. These different laws create various problems and pose an unnecessary challenge to the integrity and unity of this country. The contentions raised in the Constituent assembly Debates need to be examined deeply as the issues and counters raised there remain relevant even today. The framers were reluctant to implement a Common Code at the time of independence because it was seen that the nation isn’t ready for it. But times have changed. No doubt the government has worked towards achieving neutrality through various legislations by making women coparcenary in fathers’ estate in case of Hindus, the triple talaq bill, the raising of legal marrying age of women to 21 placing both men and women at an equal pedestal. But there still seems to be a long journey to be travelled to reach the goal.

[1] The Discovery of India, 1946

[2] Navtej Singh Johar v. Union of India 2018 WP (criminal) No. 76 of 2016

[3] Article 44, Constitution of India

[4] Constituent Assembly Debate on 23rd November 1948, Indian Kanoon

[5] Minerva Mills v. Union of India 1980 AIR 1789 

[6] Mohammed Ahmed Khan v. Shah Bano Begum 1985 AIR 945 SC 945

[7] The State of Bombay v. Narasu Appa Mali AIR 1952 ILR 1951 BOM 775

[8] The Young Lawyers Association v. The State of Kerala 2018 WP (civil) No. 373 of 2006

[9] Smt. Sarla Mudgal, President …. V. Union of India & Ors. 1995 AIR 1531, SCC (3) 635

[10] Section 494 IPC – Marrying again during the lifetime of husband or wife.

Author: Yogesh Naidu, Shri. Navalmal Firodia Law College, Pune.

Editor: Kanishka Vaish, Senior Editor, LexLife India

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UNIFORM CIVIL CODE: A STEP TOWARDS EQUALITY

Reading time : 8 minutes

Abstract:

This article talks about Uniform Civil Code that says about making and implementing equal     personal laws to all the citizens of this country. Recently, the talks about how the Uniform Civil Code can be passed in the upcoming monsoon session, how the government will tackle the criticism etc. Personal laws are about marriage, divorce, inheritance, adoption and maintenance. India, a country, has always been secular when it comes to the practice of religion and cultures. In Part IV of our Indian Constitution, Article 44 of the Directive Principles of the State Policy (DPSP) instructs the state to make a Uniform Civil Code for all the citizens. As we go further with the article, this article discusses the History of the Uniform Civil Code, Implementation, Problems with UCC, Suggestions etc.

  1. Introduction:

India, a secular nation, believes that all religions should be treated equally with respect. It also says that the government will not ask any particular religion about any decision made. All religions peacefully live in our country and that is the biggest thing which makes our country democratic. We, as a country, are one of the fastest growing nations of the world and we are progressing towards becoming a superpower like the USA. Our culture is being seen as the world’s largest culture and is being respected.

Religion has always been a hot topic when it comes to Indian Politics2. All the political parties try to please the religions for their vote bank. But, in reality no one talks about development, equal protection of all citizens etc. Uniform Civil Code is a Code which makes all the personal laws of our country equal for all. All the citizens of our country will have the same marriage, divorce, succession, adoption rights irrespective of religion, caste, gender etc3. There has been a debate about Uniform Civil Code for a long time. Some say it will be helpful for India to have equal civil laws and some say that equal personal laws will disturb their cultural practices. Various Supreme Court Judgments have asked the Centre for formulating UCC but still it has not been implemented. Goa, is the only Indian State to have Uniform Civil Code. Still, Uniform Civil Code is a debatable topic on whether this will disturb the Secular fabric or not. Uniform Civil Code has been in talks since the British Period where the Viceroys wanted that an equal law should be there but they didn’t bring it because it could lead to unrest. Uniform Civil Code has several aspects which confuse the public whether this law will really bring equality among citizens or it will disturb the practices.

  1. History of Uniform Civil Code:

The movement for Uniform Civil Code started from the 19th Century when some people had asked for equal laws among all the citizens of the country. But, since our country has so many cultures, specific personal laws were created in the British Raj so that every religion is satisfied. The British Raj tried not to interfere in their religious matters. In the 19th Century, the British codified these laws so that it doesn’t become hap-hazard. The British Government in 1835 said in a report that there is a need for uniform laws and regulations regarding civil and criminal laws4. Pandit Jawaharlal Nehru, Our first Prime Minister of India while supporting the Hindu Code Bill instead of UCC in Parliament said that in 1954, said “I don’t think at the present moment the time is ripe in India for me to try to push.5” When article 44 was drafted, major protests took place saying that the Government is trying to interfere in their religious practices for political purposes. They said that their Right to Religion in Article 25 is being violated. But, even after so many years, still India is not accepting a common law for all the citizens. The Supreme Court had said in a Judgment in Mohd. Ahmed Khan Vs Shah Bano Begum6 that “Article 44 of our constitution has remained a dead letter. There is no official activity for framing a common civil code for the country. A common Civil Code will help the cause of National Integration by removing disparate loyalties to laws which have conflicting ideologies. It is the state in charge with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the constitution is to have any meaning. Justice for all is far better than Justice from case to case7.”This piece from the Observation by the Judges shows how justice can be done by bringing Uniform Civil Code to all the citizens rather than giving justice to the cases. Several times, the government had tried to bring UCC but due to unrest, they didn’t bring. Many eminent scholars say that UCC will bring equality but it will create unrest in religious institutions because in every religion, culture comes first.      

  • Implementation of Uniform Civil Code:

The Government of India will have to do a lot of work while implementing Uniform Civil Code. They have to talk to various religious institutions and political parties. They need to explain about how Uniform Civil Code will help the citizens of India as well as the legal structure. Several Political Parties have denied implementing UCC because they think it is not secular and will hamper the cultures of the religious institutions. The Government needs to explain to the people about how this code will simplify the complex laws governing marriage, divorce, succession and adoption and will make them one. The Government also need to look about how Goa where UCC is in force is working and take ideas so that it will help in enforcing the Uniform Civil Code nationwide. Religious institutions should also come up and explain to their people at large about the Code after due consultation with the Government so that the Code is being passed. Courts should also come up and try to support the people who wants Uniform Civil Code. Many Judgments have shown that how The Indian Judiciary is so concerned with the different personal laws enforced in this country and how they want Uniform Civil Code. Recently, the Former Chief Justice of India, Sharad Arvind Bobde had appreciated the UCC in Goa and said “Goa has what Constitutional framers envisaged for India – a Uniform Civil Code. And I have had the great privilege of administering justice under that Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation. I have heard a lot of academic talk about the Uniform Civil Code. I would request all those intellectuals to simply come here and learn the administration of justice to know what it turns out to be”8. This clearly shows the opinion of the Judiciary on the implementation of Uniform Civil Code. This act’s main objective should be establishing a homogenous society where division of caste and religion is not there.

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Everybody needs to understand that Uniform Civil Code is huge exercise and will take time to settle it with people. The main objective of this law is to make a homogenous society where people are not seen on the basis of caste, religion, gender or any race etc. We must agree to the fact that our country has many religions and cultures. But as we are in the 21st Century and as we are progressing towards a developed India, it is important to have equal and neutral laws for every citizen of this country to ensure that nobody is being discriminated.

  • Criticism and Problems with Uniform Civil Code

Our country is known for its cultures and religions. India has one of the largest numbers of religions in the world. Tolerance in religion is both recognized by law as well as custom. In the 42nd amendment of the Constitution in 1976, Our Preamble recognized India as a secular nation9. In India, people take their religion and custom more seriously than anything else. For example, dowry was a custom which was practiced blindly by the people that they didn’t cared about the bride about how she suffered through it. Similarly, All the religions have their own Personal Laws and they are very much possessive about it. The family laws are so much taken seriously that a small change might ignite anger and insecurity in a particular religious community. Here are some the codified Family Laws which are still being practiced today:

  1. Hindu Marriage Act, 1955
  2. Muslim Personal Law, 1937
  3. Christian Marriage Act, 1872
  4. The Parsi Marriage and Divorce Act, 1937
  5. Anand Marriage Act, 1909 (Sikhs)

The conflict arises when one religious community feels endangered that their freedom to practice their religion is not taken seriously. This leads to insecurity among people of a specific religion or community. The problem of the people is that they keep their faith above all, even above our constitution which lead to these problems. In Hindu, people have no problem in accepting UCC except some of them who says that UCC will disturb their age-old practices. In Muslims, there are 2 opinions which have been seen. First, Muslim Scholars says that Muslim Personal Law needs reforms. They are ready to reform the Muslim Personal Law but deny having UCC. Perhaps, they know that UCC is right but if they support the Code, they might face consequences. Secondly, some Muslim religious leaders have even threatened the Government to not to bring UCC. They say that Islam doesn’t permit them to change or abandon practices. It is to be seen that no comments have been received from Christian and Parsi Community. Perhaps, they are waiting the Bill to come so that they can see whether it is good for them or not. People demanding for UCC is a complex problem. It is the duty of the Government to fully explain the Bill to all religious leaders before presenting them in the House. The Government should make a feedback box to know about the people’s opinion about UCC and about how they can do changes and make UCC ‘People Friendly’.

  • Suggestions for UCC

The debate over UCC has came back and speculations are there that the present NDA Government can bring this law in the Parliament. But, effective implementation and necessary knowledge about the bill to the people is very important. Here are some of the points which I feel the Government should follow before enforcing Uniform Civil Code.

  • A committee should be formed by the government in which various religious leaders, scholars etc. are members. The Govt. should discuss the bill with them and take feedback from them so that it will be easy for the Govt. to understand the needs of the people and what is the opinion of the people towards Uniform Civil Code.
  • The Govt. should introduce a portal for the public so that they get to know their grievances. Recently, the UP Law Commission had introduced the Population Control Bill to the public and asked for opinions and feedback from the public10. The Centre can use this method.
  • The Government should also discuss with the Opposition Parties about this matter. Many political parties have expressed their opinion on this matter and it is very important for the Government to hold talks with Political Parties.
  • The Government should also make an advisory board to discuss about the UCC and to give ideas about how better this Code can be implemented.
  • Courts should also back Centre in the case of UCC. Supreme Court must intervene and co-ordinate with Centre to ensure timely implementation.
  • State Governments must be consulted and Centre should direct states to keep a vigil on law and order situation.
  • Lawyers, academicians should also come forward and write articles, papers on UCC in newspapers etc. so that it goes to public at large.
  • Media should come forward as one and should give correct facts about the law so that people doesn’t get confused.

It is true that even after these steps, some people will still criticize. But it is the responsibility of the Government to ensure that this Code is made Neutral on every religion and to be made gender-neutral so that this code will be beneficial for the people of this country. It is also to be seen about how the existing legislations like The Hindu Code, Dissolution of Muslim Marriage Act and Dowry Prohibition Act is ineffective and it should be investigated. Hence, all these tasks will help in easy implementation of the Uniform Civil Code.

  • Conclusion

It is very unfortunate that even after so many years of independence, UCC hasn’t being brought by the Government. So many judgments of the Supreme Court and other High Courts were delivered, ordering the government to make a law about UCC, still it is not being done. It is the High time that the central government should work out and bring this law so that it will be helpful for this generation as well the future generations. But before that, the Centre should take steps, as mentioned in Point 5 of this Article so that the implementation of UCC is done peacefully and with everybody’s support.  The Government also needs to see whether the religious minority’s problems are being taken seriously or not and to take steps to solve them. The Main Aim of the Uniform Civil Code should be a society where everybody has equal rights for men and women and ensuring unity and integrity of the Nation without disturbing the secular fabric of the Nation. UCC shouldn’t be politicized but it must be supported by all the political parties, regardless of their ideology. Uniform Civil Code will only work perfectly when all the groups of the society support it and agree to it. Our Nation is one of the most democratic nations of the world. We are proud of our fore-fathers who have fought for India’s independence without even seeing religion, gender, caste etc. We are proud of those who have made the Constitution of India which gave the citizens of India fundamental rights. I wish that in the coming years, Uniform Civil Code will come and the People of India will be highly benefitted with the Bill. It is very important for the people of this country to understand that equal rights to all is one of the most important movement which the citizens have to fight in order to have Equality in our country, which our fore-fathers have dreamt of.

2 Krishna K. Tummala (1993) Religion and politics in India, Asian Journal of Political Science, available at https://doi.org/10.1080/02185379308434025

3 Debidatta Mahapatra (2021)Uniform Civil Code is the imperative now, Times of India, available at https://timesofindia.indiatimes.com/blogs/periscope/uniform-civil-code-is-the-imperative-now/

4  Ahmed, S., & Ahmed, S. (2006). UNIFORM CIVIL CODE (ARTICLE 44 OF THE CONSTITUTION) A DEAD LETTER. The Indian Journal of Political Science, 67(3), 545-552. Retrieved July 10, 2021, from http://www.jstor.org/stable/41856241

5   Som, R. (1994). Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance? Modern Asian Studies, 28(1), 165-194. Retrieved July 10, 2021, from http://www.jstor.org/stable/312925

6  Mohd. Ahmed Khan vs Shah Bano Begum and Ors. (AIR 1985 SC 844)

7 Mohd. Ahmed Khan vs Shah Bano Begum and Ors. (AIR 1985 SC 844) and Sarla Mudgal & Ors. Vs Union of India (AIR 1995 SC 1531)

8   Express News Service (2021) Chief Justice of India S A Bobde lauds Uniform Civil Code in Goa, available at https://indianexpress.com/elections/chief-justice-of-india-s-a-bobde-lauds-uniform-civil-code-in-goa-7248631/

9   Wikipedia, the free encyclopedia Secularism in India, available at    https://en.wikipedia.org/wiki/Secularism_in_India

10 Times Now Bureau (July 2021) Uttar Pradesh Law Commission releases population control draft, invites public opinion, available at https://www.timesnownews.com/india/article/uttar-pradesh-law-commission-releases-population-control-draft-invites-public-opinion-all-you-need-to-know/782941

Author: Siddhant Dutta, MIT WPU Pune, India

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Constitutional validity of Uniform civil code

Reading time: 8 minutes

Introduction

 India is land of diversity with 6 main religions existing and around 19,500 languages spoken. It is famously said that, “culture of India changes after every half kilometer.” Every religion has its own set of customs and rituals which is followed. In Hindus, normally it is not allowed to eat non veg food during Ganesh Chaturthi whereas in Christians, it is allowed to consume meat and alcohol during Christmas. The above statements are made to differentiate between the different norms followed during two different festivals. Despite of so much diversity the women have to suffer a lot to live a life with dignity and respect irrespective of the religion they belong. They are becoming victims in the hands of society socially, politically, economically and morally. There are a number of cases related to violation of rights of women which are recorded but not much is done by the administration to curb the number of cases. The constitution of India guarantee fundamental rights which is mentioned in part 3 and is available to citizens of India irrespective of caste, class, creed, religion, gender etc and enforceable in the court of law in case of violation of any right. The constitution of India directs the parliament to not enact any law which is in contravention to the fundamental rights and in discrimination on the mentioned grounds. The parliament has the power to amend any part of the constitution of India except the basic structure. Justice Sikri held that along with supremacy of constitution, republican and democratic form of government, separation of powers, federal character of constitution, secular character of the constitution is also a part of basic structure of the constitution held in this case. [1]Secularism means equal respect to all the religions in India with respect to practice and propagation of their religion in the case of. Every religion has a freedom to manage his/her as per article 26 of the constitution of India which means practicing the religion but it has to be subject to public order, health and morality. Every religion has the freedom to make laws with respect to marriage, divorce, adoption, guardianship etc these laws are known as personal laws of religion[2]. Option is available to citizens either to bound by the personal laws for each religion or to opt for secular laws which is available to all the citizens irrespective of caste or religion for instance a male Hindu can adopt a child either by the provision of Hindu adoption and maintenance act 1956 or by the provisions of guardians and wards act 1872. There is no hard and fast rule as such that he/she has to bound by the religious law only or secular law only. Uniform civil code is mentioned under article 44 of the Indian constitution which states that “every state shall endeavor to its citizen uniform civil code throughout the territory of India” this means that it is the duty of state to ensure there be equal laws for all citizens through out the country. It is important to note that uniform civil code is a part of directive principles of state policy in the Indian constitution which means that the state has to take into consideration while implementing any law or while formulating any policy. Unlike fundamental rights, directive principles is not enforceable in the court in case of its violation because these are just directions which the state has to keep in mind.

Impact of uniform civil code

 India under British rule has witnessed many amendments made by British in laws of India such as Indian penal code, contract act etc. the main motive behind implementing laws was to end discrimination in punishment while depriving away all the religious, cultural aspects. It was seen that law related to contact was very similar in comparison to law of contract which existed in England. This is because the law itself was formulated by Britishers in India and that is the reason why law of contract and many other laws were similar to law of contract in England. The laws related to every religion in India was not amended or formulated by the Britishers this is because there were many religions in India so each and every religion has its own religious norms in matter related to marriage, divorce, succession, adoption, guardianship etc and in England there was primarily Christianity which existed so that’s why the British couldn’t amend the personal laws of India. They were strongly in agreement of such above mentioned matters should be governed as per the laws of each religion. Article 44 of the constitution of India was added with an intention that when our country will be ready to accept it and the social acceptance of UCC could be made. It doesn’t look like that our country is ready to accept UCC because there are different religion in India having their personal laws which is very different from each other. On one hand there is only one marriage permitted in Hindu law subject to death and divorce of the husband/wife but in Muslim law more than one marriage is allowed so implementation of uniform civil code will definitely bring unrest among the people of various religions because then there will be only one uniform law applicable on different religions. The first situation of where Uniform civil code was in question in which Mohamed Ahmed khan, in the form on triple talaq gave talaq to shah bano begum after talaq till the period of Iddat he was entitled to provide maintenance and not after that. The adverse impact of this provision was that husband can defeat the claim of the wife for maintenance by pronouncing triple talaq to her.[3] In order to remove this anomalous situation, parliament introduced a new criminal procedure 1973 in which under section 125 of the criminal procedure code it was stated that the wife could seek maintenance until she gets remarried to another person and is unable to maintain herself. There was a huge opposition from the Muslim members in the parliament as well outside the parliament because according to them there is an intervention in their personal laws by the government which is unacceptable for them. In order to control the huge opposition section 127 was included which provided for cancellation of order of maintenance on payment of sum which under any customary or personal law applicable to the parties was payable on such divorce.

In the above case, we can clearly see that there was a conflict between personal laws and secular case because as soon as there was intervention with the religious law we saw huge opposition from public. In this case, if we keep the aspect of religion aside the main aspect is violation of rights of women as she became the victim as section 127 will deny her maintenance on the payment of sum during divorce. According to me, there shouldn’t be any interference in personal laws but if it is in conflict with violation of rights of women then it has been struck down by the authorities. There was another instance when the personal laws came in conflict with human rights and then the judiciary to a brave step to struck it down. In Muslim personal law, there are two types of talaq namely talaq-i-sunnat and talaq-i-biddat. In talaq-i-biddat, the talaq can be given by husband to wife in triple declaration of talaq during period of purity either in one sentence or in three. The other form is a single irrevocable pronouncement of divorce made in the period of Tuhur or even otherwise. This form of talaq is prohibited in Shias. Many Islamic countries have also banned this form of talaq Shayra bano was married to Rizwan ahmed. In 2016, he divorced her through the form of triple talaq. She filed a writ petition before the supreme court of India pleading to hold practice of talaq e biddat as unconstitutional as it is against article 14,15,21,25 of the Indian constitution. The majority judgment held that triple talaq is unconstitutional under article 14 of Indian constitution read will article 13(1). an action that is arbitrary must also involve negation of equality and determined as triple talaq provides that the material tie can be broken capriciously without any attempt at reconciliation so as to save it” this arbitrariness violates article 14.[4] Implementation of uniform civil code will lead to gender justice and integrity of nation because then the laws for all the religions will be same and every one will be treated equally especially women. In Parsi law, a widow wife can adopt a child on the fourth day of her husband’s death for purpose of performing of certain religious ceremonies. Whereas in Hindu law, the widow wife can adopt a child by following all the requirements mentioned in section 5 to 7 of the Hindu adoption and maintenance act 1956. The form of adoption is totally different in the above two religions whereas in the concept of adoption is secular and the purpose of the same is to get an heir who can carry the adopter’s name[5]

Constitutional assembly debates on uniform civil code

 In order to understand the essence and thinking of any constitutional provision we refer to the constitutional assembly debates while the provision was debated in the assembly. This helps us to understand the thinking of the members of parliament and reason behind implementing or not implementing a particular law. Similarly, the debate on uniform civil code was one of the most heated one. The entire debate was divided into ideologies firstly members who affirmed the utilization of legal power to alter the religious customs and promote equal respect for all religion and unity among people of all religions and secondly constitution should not interfere with the essence of nation and should not put restrictions on the religion. These are some arguments which were put forward by members of parliament while uniform civil code was in debate:

  • Mr KM Munshi believed that there should be some limitations on religion in order to bring togetherness and integration the basis of civic national identity.
  • Mr Kazi Karimuddin believed that the laws related to Muslims are an integral part of Muslim law and he has not seen a single individual who is demanding for an alteration in the personal laws of Muslims and in case, if there is an individual then that person is not a Muslim. In case, the protection of the rights of minorities has to be taken into consideration then it should not be case that people have no religion and if minorities believe in such a way then personal laws deserve protection.

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  • Mr Hasrat Mohani believed that anyone has no right to intervene with the religious laws. Specifically, Muslim law. There are 3 main aspects of personal laws is namely, religion, language which have not been created by parliament. Laws related to divorce, marriage, and inheritance have been in picture due to quran as its mentioned there. If anyone tries to intervene with personal laws then its consequence will be very fatal. People belonging to Muslim religion will not accept any intervention in their religious laws and they will have to face opposition.
  • Mr Naziruddin Ahmad believes that the approval from the community of people has to obtained who will be affected by the implementation of uniform civil code. Further he went on to say that there will be a time in the future when there will be uniformity in the personal laws of every religion but this time has not come. The authority which is in the hands of the state to make uniformity in personal laws is before time. Power shouldn’t be in the hands of the state with respect to personal laws.
  • Dr Bhimrao Ambedkar believed that the state has no duty to interfere with the religious laws. There is no need to be aggressive on the fact that state has the power and they will utilize this power which is in contravention to the personal laws of every religion including Muslims.
  • Sir B N Rau, the constitutional advisor to the constitution of India believed that uniform civil code is a part of directive principles which is just direction to the state to make laws and directive principles have least educative power.

[6]

Impact of uniform civil code on fundamental rights

Fundamental rights are very important part of the Indian constitution because this provision protects the civil rights of the citizens of India. If there is any violation of any fundamental rights then that person whose right is violated can approach the courts. Equality before law and equal protection before law, freedom of speech and expression, religious and cultural freedom, freedom to form assembly, practice religion and right of constitutional remedies in the form of writs. This means that everyone is equal in the eyes of law be it king or a slave. Our country has mainly six religions and also secularism was added in the constitution through 42nd amendment 1976. There is freedom to propagate religion mentioned from article 25 to 28 which provides freedom to practice and profess religion. Due to the freedom to practice and profess religion the personal laws such as Hindu marriage act 1955, Hindu succession act 1956, Hindu adoption and maintenance act etc. the word if custom permits is really a significant term because on one side law’s support is seen to be significant but on the other hand it is permitting people to follow their own customary practices by adding the term if custom permits. This brings us to a conclusion that any provision of the law will be side lined if it is against the customary practice of any religion. Article 14 prohibits class legislation but reasonable classification is allowed but it paved the way for making personal laws as per one’s whims and fancies under the grab of cultural freedoms given under Art.25-28. It draws a conflicting opinion that under one guaranteed freedom, we are allowed to frame and regulate our personal laws at the same time leading to conflicts to the other fundamental right guaranteed in Articles 14-15. Therefore it is a high time to judge what is reasonable classification? I strongly feel that under the grip of religious culture and customs framing personal law in such a manner keeping the female gender to suppression and torture is clear cut violation of our fundamental right as guaranteed under Article 14 and again keeping those laws beyond judicial review is abhorrent.


Every religion or community may be at liberty to preserve their most essential integral part of their custom. But it should not extend to complete area covering it under propagation of their religion by encroaching upon with one’s fundamental rights. Article 25 though provides fundamental freedom to practice and propagate one’s religion however that should not go against the concepts of equality and dignity which are fundamental rights and the courts do have the power to adjudicate practices which are against the fundamental rights or not. the marriage with second wife will not automatically end the ties with first wife just by mere conversion from one religion to another emphasized on the enforcement of uniform civil code in India and it also emphasized an instance when laws of different religions were in contravention to one another. Under Hindu law marriage there should not be more than one marriage at a time and in Muslim laws more than one marriage is allowed. In Hindu marriage act 1955, if the person marries more than once at the same time he will be held liable under section 494 of the Indian penal code 1860 which is bigamy means more than one marriage at same time whereas it will not attract the punishment when it comes to Muslim law because as the custom of Muslim law allows more than one marriage. Under Hindu law adoption is recognized but this is not case in Muslim law.[7]

Conclusion

 In the end i would like to conclude by saying that the time has arrived where we will have to bring uniformity in personal laws without thinking about religious discrimination. Women have suffered a lot due to non-uniformity in personal laws as we have seen in shah bano case and also shayra bano case and the judiciary did a commendable job to give priority to the rights of women and I feel that human rights should be given a high priority as compared to any religious norm. uniform civil code is just a part of directory principle provided in the constitution. Time has come to make this directory principle into legislative law but keeping in mind the religious laws of every religion and then making a common code which will be favorable to almost everyone and there shouldn’t be bias for any religion. One country one uniform legislation will be more effective as compared to one country multiple legislations.

[1] Keshavanand Bharti Vs State of kerela and ano 4 SCC 225; AIR 1973 SC 1461

[2] State of Rajasthan And Ors. v. Vijay Shanti Educational Trust, RLW 2003 (4)

[3] Mohd. Ahmed Khan v. Shah Bano Begum [1985 SCALE 767 = 1985 SCR 844 = 1985 SCC 556 = AIR 1985 SC 945]

[4] Shayra Bano vs union of india and Ors 2017 9 SCC

[5] Bal gangadhar tilak vs shriniwas pandit (1915) 17 BOMLR 527

[6] What did the constituent assembly say on the uniform civil code available at https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-code/ (Visited on 18th July 2021)

[7] Sarla Mudgal vs Union of India 1995 SC 1531

Author: Rachit Singh

Editor: Kanishka Vaish, Senior Editor, LexLife India.

UNIFORM CIVIL CODE FOR SUCCESSION AND INHERITANCE

Reading time : 12 minutes

Uniform Civil Code (UCC) has been a source of contention and debate since the beginning of time, dating back to the debates held in the constituent assembly while drafting the constitution and continuing to this day, where opinions differ on whether or not India needs to implement Uniform Civil Code, it has been at the heart of political debates. In India, criminal laws apply to all citizens without discrimination; however, there is some discrimination in the applicability of civil laws; most civil laws are similar, but some personal laws vary from community to community due to the fact that India is a religiously diverse nation, and personal laws govern interpersonal relationships and related matters within various religious communities.

A uniform civil code is a single piece of legislation that applies to all Indian citizens in personal laws such as marriage, divorce, custody, adoption, and inheritance. The primary goal of the UCC is to replace the existing system of personal laws and to create uniformity in the applicability of civil laws. Personal laws have been administered in India since the establishment of the first Court in Calcutta during the British period. After Independence, India continued to administer personal laws owing to the fact that India is a secular country and personal laws are an essential part of the Indian framework.

Uniform Civil Code has been in the spotlight since the Supreme Court issued a landmark decision in the case Sarla Mudgal v. Union of India[1], in which the Supreme Court stated that bigamy, which is permissible under Muslim Personal Law, is in conflict with the laws governing other communities, and emphasised the importance of a UCC in matters of marriage, divorce, inheritance, Succession, and so on. The decision to provide a UCC is based on provisions in the constitution that are part of the Directive Principle of State Policy. The fact that the framers of the constitution devoted an entire article to it demonstrates the importance of the Uniform Civil Code. According to Article 44 of Part IV of the Indian constitution, “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” It imposes a positive obligation on the State to develop a uniform civil code for all Indians throughout India’s territory. The only State in India with a UCC is Goa; however, the UCC applicable in Goa cannot be used as an example for other states because it has certain fundamental flaws and may not be the best model to follow given India’s diversity.

The main reason for a UCC is that the current personal laws are biassed and may conflict with other laws enshrined in the constitution. In Mohd. Ahmad Khan v. Shah Bano Begum[2], the issue of a Muslim woman’s right to maintenance after the divorce was raised. According to Muslim Personal Law, the husband was not required to pay alimony after divorce. This was challenged before the Court, and the Court ruled that a husband must provide maintenance for a divorced wife who has no source of income. Similarly, the Court has expressed a desire for secular laws in various instances, as evidenced by the case of John Vallamattom v. Union of India[3], in which the Court ruled that section 118 of the Indian Succession Act 1925, which prohibits Christians from bequeathing their property for religious and charitable purposes by will, was unconstitutional and was repealed. It, therefore, can be asserted that Uniform Civil Code will constitute many secular and egalitarian laws for the citizens. In recent years, India has seen many changes in the framework of personal laws, ranging from declaring Triple Talaq unconstitutional to changes to the Hindu Succession Act. It is possible to say that the country is moving in the direction of removing discrimination from personal laws. However, a UCC for all personal matters is still a long way off.

HISTORICAL BACKGROUND

Before the British invasion of India, during the Mughal rule, justice was administered to Muslims based on Muslim Law; however, there were differences in the application of the same in civil matters involving Hindus. On the criminal front, Muslim criminal law was applied uniformly to all, with no discrimination based on personal laws. Until 1772, the Mughal system of justice administration was continued into the British period as well. In 1772, the then Governor-General of India, Warren Hastings, proposed a Judicial (administration) plan that called for the establishment of uniform courts of law in the presidencies of Bengal, Bihar, and Orissa. In matters of civil disputes, personal laws were applicable, i.e. Hindu laws for Hindus, Muslim laws for Muslims, Parsi law for Parsees, and so on. In terms of criminal law, the Muslim criminal laws were applicable, with amendments made to the laws from time to time, and these laws were applicable to all without any religious discrimination.

Following the establishment of a Supreme Court in Calcutta in 1774, the various personal laws were abolished, and three legal systems became applicable, Hindu Law, Muslim Law, and English Law, in accordance with the provisions of the Regulation Act of 1773. The Supreme Court administered Hindu Laws for Hindus, Muslim Laws for Muslims and English Laws for the other religious communities under the doctrine of justice, equity and good conscience, and in criminal matters, the English Law became applicable. By 1832, British India was subjected to English law. Later, in 1860, the India Penal Code was enacted, and it remained in effect until India gained independence from the British. Following independence, India became a more secular and democratic nation, where the laws took precedence over personal laws, and no community could claim to be a separate entity based on religion. The First Law Commission was appointed in 1835 under the chairmanship of Lord McCauley, and his report stated that there is no Lex Loci (Law of the Land) in India because the two major religious communities, Hindus and Muslims, have mixed up their personal laws with that of the other civil laws, and this is true even today as the personal laws still govern certain aspects of the community.   

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Prior to independence, Hindus were governed by the Mitakshara and Dayabhaga school of thought, and there was some discrimination in the applicability of these laws; moreover, the Mitakshara law was not applied uniformly to all the members, and this lead to the creation of four different sub-schools of thought and most communities had started making separate laws for themselves, similarly though Muslim personal law is derived from a single source the Holy Quran, yet the Muslims are divided into two sects the Sunni Muslims, and the Shia Muslims and these two communities differ in the matter of the application of personal law. Christians are divided into two groups as well the Catholics and the Protestants, and their personal law is codified into Christian Marriage Act and India Divorce Act. Parsees have their own personal law, and hence it can be stated that India does not have a uniform civil code that is applicable for all Indians.

As previously stated, Goa, Daman and Diu, and Puducherry have a composite system of personal laws that apply to all residents “the Portuguese Civil Code”. There is a uniform civil code in these Union territories due to the influence of foreign law systems as Goa was once a colony ruled by the Portugals.

UNIFORM CIVIL CODE AND INDIA

Following independence, the idea of a Uniform Civil Code was presented to the Constituent Assembly, which was extensively debated and met with much opposition[4]. Finally, the members added UCC as one of the Directive Principles of State Policy, hoping that the country would one day implement UCC in matters of personal laws. The constituent assembly’s two main concerns were that a UCC would violate Article 25 Freedom of Religion, and the second is that it would amount to tyranny for the minority community. It is critical to understand that the framers of the Constituent Assembly intended to codify the various personal laws so that they would be applicable to all members of that community without discrimination, but due to the objections, they left it up to the State to implement UCC when the State saw fit.

Under the direction of the first Law Minister, Dr. Ambedkar, the process of codifying Hindu laws began. Dr. Ambedkar was in favour of enacting a comprehensive Hindu code, but this was met with opposition from the first President of India, Dr. Rajendra Prasad, and many other members, and the Hindu law was enacted in the form of piecemeal legislation, namely the Hindu Marriage Act 1955; Hindu Adoption and Maintenance Act, 1956; Hindu Minority and Guardianship Act, 1956 and Hindu Succession Act, 1956. Aside from Hindu personal laws, no other personal laws were codified until 1986, when the Supreme Court in the Shah Bano case allowed Muslim wives to claim maintenance until death or re-marriage rather than just for the period of Iddat.

The Special Marriage Act of 1954 is the only Act that applies to all family relationships for all Indians, regardless of religion. This Act allowed the parties to marry without renouncing their religious beliefs, and the Indian Succession Act of 1925 was applicable for succession purposes. Apart from the Special Marriage Act, the subsequent legislation that was taken toward a uniform civil code was the Indian Adoption Bill, which was introduced in the parliament in 1972, and the Law Minister stated while introducing the bill that this is the first step toward a uniform civil code, where the bill permitted Indians to adopt any child regardless of the child or the adoptive parents, but the bill never saw the light of day because it was not passed.  

The Uniform Civil Code has always been criticised by society because some people believe that personal laws such as marriage, Succession, and so on are part of their religion and that a uniform civil code would mean that Hindu laws would be applied to minorities; however, the uniform civil code that the members of the constituent assembly envisioned was that a particular law to be applicable to all members of that religious community without any discrimination, i.e. a uniform succession law to all the Hindus based on the Hindu succession laws similarly a uniform succession law to all the Muslims based on the Muslim personal laws.

The Law Commission of India has submitted a Consultation Paper on Reform of Family Law 2018, stating that a uniform civil code “is neither necessary nor desirable at this stage”[5] in the country. The former Supreme Court Judge Justice B.S. Chauhan said, “cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the Nation”. A unified nation did not necessarily need to have “uniformity”. “Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights,” the Commission stated.

Aside from admitting petitions for UCC in divorce, maintenance, and alimony; uniform grounds for adoption and guardianship; and uniformity for marriage age, the Supreme Court recently admitted a petition for UCC in Succession and inheritance and is awaiting the Government’s response. 

INHERITANCE AND SUCCESSION

In India, succession law is both gender and religiously biased. The recent PIL filed seeks a uniform succession law that ensures there is no discrimination in succession laws. The Supreme Court has favoured the same and has sought the opinion of the Government for a civil code that is gender and religion-neutral.

Inheritance is the act of receiving property, whereas Succession is the acquisition of rights or titles to the property received through inheritance[6]. There are two types of Succession – Intestate Succession and Testamentary Succession. Intestate Succession is the process of inheriting property according to the law of Succession of the deceased person’s religion. This happens when a person dies without having made a will. Testamentary Succession, on the other hand, is the process of inheriting according to the will of the deceased written before his death. In cases of intestate Succession, Hindus follow the Hindu Succession Act, Muslims follow their personal laws, and Christians and Parsis follow the provisions of the Indian Succession Act.

There are two prominent schools of thought in Hindu Law that guide personal laws. The first is the Dayabhaga School of Thought, which is applicable in Bengal and Assam, and the second is the Mithakshara School of Thought, which is applicable throughout India. These two schools of thought provide a legal framework for property devolution and are regarded as the traditional system under Hindu Personal Law. The main difference between the two schools is that the Dayabhaga school traditionally bases its laws of Succession on the principle of “spiritual benefit,” implying that those who could bestow the most spiritual benefit to the deceased would succeed, whereas the Mitakshara school bases its laws of Succession on the principle of propinquity, implying that those closest in blood relationship would succeed.

Coparcenary is a concept that is unique to the Hindu law[7]. Coparcenary rights can be asserted only over ancestral property. A Hindu male had the absolute right to his separate property[8], but his right to ancestral property was subject to the coparceners’ claims. Coparcenary is a legal concept that cannot be created by parties.  

Under traditional Mitakshara inheritance law, the coparcenary could only consist of males, whereas Dayabhaga law allowed females to be a part of the coparcenary as well. Mitakshara law shifted the balance of power in favour of sons over daughters, and sons could request property partition during the father’s lifetime. Such property is devolved under the rule of survivorship rather than the rule of Succession. The Dayabhaga law, on the other hand, created no such interest, and the property would devolve only through Succession after the father’s death. The Mitakshara Laws traditionally did not allow for the testamentary disposition of property, and this provision was made possible by Section 30 of the Hindu Succession Act, 1956. 

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It can be stated that as per the current statutory law, the Succession Act, the distinction between the two schools is removed, as it presents a uniform law system of inheritance applicable to all Hindus, regardless of which school or sub-school they belong to.

The recent Supreme Court decision[9] on the right of Hindu daughters to ancestral property in relation to the 2005 amendment to the Hindu Succession Act resolves the issue of the daughters’ coparcener rights. The issue was whether the coparcenary right of the daughters applied only if the father through whom they claimed the right was alive on the day the amendment came into effect, and the Supreme Court ruled that the right of the daughters stems from birth, not from other factors such as the father’s death and that this amendment applies not only to the daughters of coparceners who are still alive but also to the daughters of the coparceners who are not alive.

Furthermore, the 2005 amendment act added agricultural land to section 6, which provides that the daughters shall be coparceners in agricultural land in addition to the other coparcener property. The Bombay High Court in Tukaram Genba Jadhav &Ors. v. Laxman Genba Jadhav &Anr.,[10] based its decision on the Supreme Court Judgement in the Accountants and Secretarial Services Pvt. Ltd. v. Union of India[11] case and observed that Section 4(2) of the Hindu Succession Act of 1956 stated that except for fragmentation of agricultural holdings, fixation of ceilings, or devolution of tenancy rights of agricultural holdings, the Court observed that the Hindu Succession Act of 1956 shall be applicable to agricultural lands as well until and unless there is a law dealing with the specific provision of the Act, in which case such State law or local law shall be applicable.

However, the High Court misinterpreted the judgement, as the Supreme Court held that any subject matter involving the transfer or alienation of any property other than agricultural land, or the devolution of any property other than agricultural land, would fall under the Concurrent List rather than the State List and that prior to the amendment, tenancy rights to agricultural land were devolved in accordance with the respective State laws, which has now been resolved by the repeal of section 4(2) of the Succession Act, 1956. The Court has granted the daughter equal status as a coparcener in the same way that the son has the right to be a coparcener in agricultural land and has stated that this right is acquired by birth. 

According to the Hindu Succession Act, if a Hindu male dies intestate, the property is devolved based on close relatives who come under class I heirs, which include the deceased wife, children, parents, and so on, and if none of the legal heirs are alive or have expressed in writing that they do not wish to inherit, then it is devolved to class II heirs. If none of the class II heirs are alive or interested, it is devolved to class II heirs. In comparison, if a Hindu female dies, the property passes to the husband and children, and in their absence, it passes to the legal heir of the husband, and it can be seen that the female’s parents and siblings do not have the same devolution rights as the male because her husband’s heirs have a prior claim over the property compared to her own parents or siblings in case of self-acquired property. In the case of property acquired by her through her natal family, it will pass to her father’s heirs and, in their absence, to her husband’s heirs.

Equal property rights for Hindu women will remain a pipe dream until the legislature changes the succession scheme outlined in the Succession Act of 1956. There is no reason to have separate succession plans for men and women. While claiming to be progressive in terms of coparcenary rights, the Succession Act of 2005 has overlooked the fact that the primary scheme of Succession under the Act is discriminatory in and of itself.

Section 30 of the Succession Act of 1956 addresses testamentary Succession among Hindus. It states that any Hindu is free to dispose of any property, whether acquired by himself or through his undivided interest in a coparcener. This also states that any widow, unmarried daughter, or other dependants (as defined in section 21 of the Hindu Adoption and Maintenance Act, 1956) (HAMA)[12] who lack the means to support themselves may be deprived of their share by will, and the entire property may be assigned to a son or anyone the testator chooses, this puts the dependant with no means of sustenance in an inequitable situation.

While a widow may claim maintenance from a dependent who has inherited from the testator through a will, there is no charge created on the estate of the deceased husband under section 22 of HAMA (unless it has been created in the manner so provided under section 27 of HAMA). Where there is no charge created, the widow would have no recourse against a transferee for consideration, and without notice of the right (section 39 of the Transfer of Property Act, 1882), the transferee has no obligation to maintain her under HAMA or under CrPC, 1973.

While it is argued that a person should have an absolute right to dispose of their self-acquired property, it is also argued that, in the interests of social and economic justice as well as equity, it can be said that the law needs to take into consideration the other factors which may affect the persons who are dependent.

Muslim inheritance and succession law is based on the Holy Quran, though there are two sects of Muslims, the Sunni Muslim and the Shia Muslim. The Mohammedan law of succession is founded on pre-Islamic customary succession law and the patriarchal family structure.[13] The Sunni and Shia systems of inheritance differ significantly, with the Shia system prioritising the deceased’s immediate family and excluding the concept of Agnatic heirs who trace their descent through either male or female lines.[14] Under the Shia system, no relative is barred solely on the basis of gender; both males and females inherit together even if males generally receive twice the share of females. The Quranic Laws have been interpreted differently by Sunni Muslims and Shia Muslims. Sunni law prioritises male agnatic heirs, whereas Shia Muslims adhere to the principle of proximity.[15] For Sunnis, Quranic rules substantiate traditional tribal inheritance rules, but for Shias, they constitute the fundamental principles of Succession. In addition, a childless widow receives one-fourth of the deceased husband’s property, while a Muslim widow with children and grandchildren receives one-eighth of the deceased husband’s property. Furthermore, agricultural land is not included in the purview of the Muslim personal laws.

The Indian Succession Act of 1925 governs the Christian and Parsi communities. It is also the primary legislative measure dealing with the machinery of Succession in relation to such persons’ testamentary and intestate Succession. The general provisions of the Act 1925 relating to intestate Succession are based on English law, with the following notable features: (1) there is no sex discrimination among heirs, (2) there is no discrimination between persons related by full blood and those related by half-blood, and (3) adoption relations are not recognised. It is possible to own both movable and immovable property that could be inherited under the Act 1925 by kindred. The term “kindred” in the context of the Act refers to relations based only on blood and relations established through lawful wedlock.

It can be seen that, despite the fact that India is a secular country, Succession and inheritance laws do not apply equally to all, and as such, BJP leader Ashwini Upadhyay has filed a PIL for Uniform Succession Laws requesting that the Law Commission review the laws relating to inheritance and Succession and to provide a report on ‘uniform grounds of succession and inheritance’ for all citizens, ensuring that justice, equality, and dignity for women are upheld.

The plea states that the gender-biased, religion-biased succession and inheritance laws are unconstitutional and are against all values of gender equality and gender justice. It is also against the dignity of women, and under Article 21 of the Constitution of India, it does not comply with the guarantee of life and liberty.

Though Article 14,15,21 and 44 of the Constitution guarantees gender-neutral and religion-neutral laws to be implemented. The Centre has failed to comply, even after 73 years of independence. Gender-biased and religiously biased succession laws violate women’s equal rights and contradict the values upheld in India’s Constitution.

Three additional PIL were filed before the Supreme Court, and it was agreed that the law of the land should adopt a Uniform Civil Code in order to secure equal rights in matters of inheritance and Succession for all citizens across the country’s territory.

[1] AIR 1995 SC1531

[2] AIR 1985 SC 945

[3] AIR 2003 SC 2902

[4] The Constituent Assembly of India, (Legislative) Debates Vol. VI 1949 Part II

[5] Law Commission of India Consultation paper on Reform of Family Law 31 August 2018

[6] Ibid.

[7] Mulla Hindu Law

[8] Ibid

[9] Review of Hindu Succession Amendment Act 2005.

[10] (1994) 96 Bom LR 227.

[11] AIR 1988 SC 1708

[12] See Sadhu Singh v. Gurdwara Sahib Narike&Ors., AIR 2006 SC 3282.

[13] Mulla , Commentary on Mohammedan Law

[14] Noel J. Coulson, A History of Islamic Law

[15]  Richard Kimber, The Quranic Law of Inheritance.

Author: Sloka Balakrishna, BMS College of Law

Editor: Kanishka Vaish, Senior Editor, LexLife India.