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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.
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.
Lexlife India 