This article has been written by Avantika Chavan, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

In this article, the objective is to introduce the importance of a Uniform Civil Code (UCC) in protecting the interests of women belonging to the diverse religious communities residing in India in matters pertaining to the right of inheritance and succession. The current personal laws are gender-biassed and patriarchal and do not consider women worthy of an equal share of immovable property. The Apex Court has often emphasised the feasibility of implementing a uniform code for everyone, which is also backed by the spirit of the Indian Constitution, in order to eliminate the current gender imbalances.

What is Uniform Civil Code

There has been an increasing uproar regarding the Uniform Civil Code (UCC)- a common personal code for all that would replace the religious personal laws of various communities in India that surround the domains of marriage, divorce, adoption, maintenance, succession, and the right to inheritance. In recent news, the Law Commission of India has reopened talks regarding UCC, understanding the growing significance of the subject and its impact on various stakeholders at large. Thus, the 22nd Law Commission of India has decided to solicit the views and ideas of the public at large and recognised religious organisations about the Uniform Civil Code. Just after this, Prime Minister Narendra Modi made a pitch for the Uniform Civil Code (UCC) and hit out at the opposition parties for inciting minority communities against it. After Ram Mandir’s construction and abrogation of Article 370, UCC is the BJP’s third major poll promise. Throughout the media, an exchange of comments and retaliatory remarks from the opposition and ruling government have been seen regarding UCC, along with the concerns raised by the tribal regions of the country.

Keeping aside politics for a moment, there is a growing need of the hour to consider whether the UCC, which speaks of providing a common law that would govern the myriad religious customs and, most importantly, its impact on the inheritance laws of various communities, could be of any relief to the female members of any given family. Property like land, a home, etc. gives a person a sense of security and is considered to be a substantial asset that increases in value over time and is handed on through inheritance to the next generation. Throughout the realm of personal laws, women across communities have been denied their rightful share of property. The purpose of this paper is to forward the notion that, if adopted, UCC would ensure that both sexes are equally entitled to inheritance. We will shed light on the gender disparity in the current personal laws, the evolution of the code and the significant Supreme Court decisions that place emphasis on the adoption of a single civil code.

UCC and the ‘rigid’ personal laws

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. Many of the existing personal laws in our country are inherently patriarchal in nature and are gender discriminatory in the sense that women are not entitled to a fair share of their share when it comes to inheritance. From times immemorial, the framing of laws has been such that it is exclusive prerogative of men, which they used to their advantage and extracted unquestioned subservience from women. Consider the Hindu Joint Family (HJF), where property is jointly owned by the family and each member has some claim to it. The Hindu Succession Act of 1956, codifies the prevailing law of inheritance for HJFs. Originally, only the male coparceners up to the third generation were considered the ‘legal heirs’ to the joint family property and daughters were disregarded. The rationale being- “Upon marriage, a daughter ceases to belong to the father’s joint family and becomes part of her husband’s joint family as his wife.” Under classical law, no female could be a coparcener and consequently, the owner of the coparcenary property and her rights over the joint family property were therefore reduced to the right to maintenance. The 2005 revision to Section 6 of HSA legislation, which accorded girls coparcenery rights to joint family property equal to those of a son, ended this gender discrimination. The same was reaffirmed in the historic decision of Vineeta Sharma vs. Rakesh Sharma (2020), where it was held by the Supreme Court that “there is no dispute with the proposition that a coparcenary right accrued to males under the prevalent law by birth or adoption; in the same manner a right is accrued by birth to daughters under the provisions of Section 6, the claim based on birth is distinguishable and is different from modes of succession.”

One of the primary issues with the HSA is that only daughters have become coparceners (either married or unmarried), so only “partially” granting gender equality with regard to inheritance. What about the other female members of the family, like the mother and daughter-in-law? Their right to inheritance is nowhere mentioned in the Act unless either of them becomes a ‘widow’. The 2005 Amendment Act has nothing in store for female heirs who enter the family through marriage and are such Class I female heirs’ shares have dwindled as the available property of the male Hindu is now divided between the daughters and sons.

Now, if we look at the Muslim Sharia laws and their practise of inheritance, the gender bias becomes more prominent. The Shia and Sunni religions have various kinds of heirs where partition is done in accordance with Quranic principles; however, Muslims do not subscribe to this idea. There are several loopholes through which children, wife and other family members can be denied their justified property rights. Under the Ithna- Ashari law of Shia Muslims, a childless widow is not entitled to inherit immovable property, such as the land of her husband, whereas on the death of a woman, the childless husband does not suffer from such a disability. Due to the uncodified nature of these personal laws and their inherent practise throughout the community, nothing substantial has been done to alleviate the condition of Muslim women. A similar situation for Christians is seen under the Indian Succession Act of 1925. Section 33 of the Act talks about devolution of property when an intestate has left a widow; clauses (a) and (b) clearly put a great limit on her share of the property in the presence of lineal descendants and kindred of the late husband. Therefore, hypothetically speaking, it could be that any far-fetched distant relative of the primary family that has nothing to do with them could rightfully ask for a share. The widow only then gets the full property of her husband when both kindred and lineal descendants are absent.

It becomes fairly clear to us that the present personal laws are arbitrary in the sense that all of them are patriarchal in nature with zero disregard for the female members of the family. The gender gap would be eliminated, and all family members would have equal access to inheritance and property, thanks to the necessity of a uniform civil code. In the next section, we shall see what the Supreme Court has to say in this area.

The Supreme Court and UCC implementation

In our Constitution, there is an Article 44 that states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Ever since this, many debates have been seen in the Constituent Assembly after independence. While only a few, like Dr. B.R. Ambedkar, supported the UCC, many were against this code for being violative of the secular nature of the country and not being considerate of minorities like the tribal communities who follow a matrilineal inheritance. 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 law. But it has been many years since UCC found mention in DPSP yet no hopes of its implementation have been seen in India apart from Goa and the recent talks of it being showcased in the state of Uttarakhand. Highlighting this aspect, the Supreme Court on Friday frowned on the failure of governments to heed Article 44 of the Constitution to promulgate a UCC for the entire country, despite it being 63 years since the codification of Hindu law in 1956. In various instances, the SC has stressed the implementation of the UCC. In the case of Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985), the SC lamented the fact that the state is currently doing nothing for the framing of a common civil code for the country. It reiterated that- “a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”

Additionally, in Smt. Sarla Mudgal, President, … vs. Union of India & Ors. (1995), where the husband converted to Islam in order to marry a second time and was penalised for bigamy, the Supreme Court stated that Article 44 is based on the concept that there is no necessary connection between religion and personal laws in civilised society. With the codification of Hindu laws under which a substantial Indian population is considered, why is there a delay in the introduction of a UCC that would clearly benefit the citizens of the territory? is an open question thrown by the SC. Yet again, in Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira and Anr. (2019), which dealt with the properties of Goan domicile situated outside Goa and the Portuguese Civil Code, 1867, the SC, while praising Goa as a shining example of UCC applicable to all regardless of religion, indicated the state’s inactivity for UCC implementation throughout the territories of India.

Inheritance of immovable property remains deeply gender unequal, especially in practise but also in law; removing gender anomalies within existing personal laws is quite feasible. Once the UCC is implemented, it would drastically affect the inheritance and succession laws of various communities, providing an even ground where women have equal access to property, which, in the light of the views of the Supreme Court, would be appreciated as it reduces gender discrimination. A modern UCC will inculcate the best practises from all religions and create a non-biased and equality driven form of personal law that concurs with the spirit of the Constitution. Inheritance laws, which currently vary across religious communities, would be unified under the UCC; this would foster a sense of social cohesion.

Is UCC part of the Indian Constitution

Yes, the UCC has always been a part of the Indian Constitution. Part 4 of the Indian Constitution states that “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This clearly denotes that the framers of the Constitution always had the notion of a uniform set of laws for every religion and to remove the personnel laws with regard to inheritance, adoption, marriage and divorce because personnel laws often lead to ideological conflicts. UCC is a part of DPSP, which can’t be enforced in court but is foundational for the country’s proper governance. 

Suggestions

Suggestions for the implementation of UCC are:

• Consulting people of every religion: The makers of the policy must consult with the people of every religion, their legal experts/scholars. Taking diverse perspectives is crucial before  the implementation of the UCC to properly craft each and every provision that respects cultural and religious diversity.
• Gender equality: The UCC must make gender neutral laws to promote gender equality and also protect the rights of women. Gender centric laws must be abolished from personnel as well as common laws.
• Partial implementation: The UCC must be brought about in phases; first, the makers  must start where consensus is more easily achievable. This approach should be staged rather than bringing about the changes altogether.
• Public awareness camps: Awareness programmes must be launched to educate people and make them understand the objectives and benefits of the UCC. Talking to the public and addressing their questions and misunderstandings is a vital factor in gaining public support.
• Considering the international perspective: Researching and evaluating the outcomes of other nations that have implemented similar reforms. Learning from other countries and addressing the potential problems and threats is important before implementing UCC in India.

Conclusion

At present, debates circling around UCC have been immensely growing, with the emphasis that it would break the diverse culture of our nation, which the code does not intend to do. In essence, the UCC would provide us with a common framework for how personal laws should operate where citizens are still free to practise their religion. It would streamline the process of legal disputes and provide a codified version of the law for communities that did not have access to it earlier. Most importantly, in matters pertaining to inheritance, it would guarantee equality for all genders and have a reforming tendency towards the patriarchal aspect that various personal laws have.

References

• https://ebin.pub/redefining-family-law-in-india-0415449065-9780415449069.html
• https://ebin.pub/child-rights-in-india-law-policy-and-practice-0199470715-9780199470716.html
• https://www.indiatoday.in/law/story/law-panel-starts-fresh-consultation-on-uniform-civil-code-seeks-public-feedback-2393070-2023-06-14
• https://www.indiatoday.in/law/story/uniform-civil-code-challenges-and-debates-over-the-years-2393239-2023-06-15
• https://lexlife.in/2021/07/03/uniform-civil-code-for-succession-and-inheritance/
• https://www.magicbricks.com/blog/uniform-civil-code/132416.html

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