“Where more then 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.”
– Justice Kuldip Singh in Sarla Mudgal v. Union of India1
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”
– Former Chief Justice of India Y.V. Chandrachud in Mohammad Ahmed Khan v. Shah Bano Begum 2
Decoding the Antiquarian Personal Laws And the Implicit Lacuna : An Analysis of the Lucrativeness Extracted from the Uniform Civil Code For Succession Provisions
Within the realm of the Hindu laws governing the Hindu citizenry, residing within the territorial extents of the nation, several branches of laws have been formulated, so as to condition the myriad factors relating to the Joint Hindu family, and thereby, also impart an efficient regulation as to such conduct projected by the members.Such laws are founded upon the philosophies upheld and entrenched by the makers, that had extended the antiquarian norms, guided by the cultural considerations, and thereby, framed a body of rules to determine the code of conduct to be executed.
The matter as concerns to succession, as incorporated within a Hindu undivided family, is attributed to the Mitakshara law, which indeed enlists the norms conditioning the decisions as to resolving issues pertaining to the matter.The Mitakshara rules are regarded as being entrenching a rather conservative stance towards a plethora of issues associated with the Hindu undivided family, and also tend to stipulate such guidelines that are deprived of the element of modernity to efficiently deal with the situation of the current existence and of a divergent progenation.
It recognizes and constitutes the circumstances conditioning the period when the production of the same were duly undertaken, and thereby, has been subject to the infliction of several criticisms and suggestions towards requisite amendments being incorporated.
An orthodox stance, as comprised within the rules, was projected by the virtue of the stipulation, that, the Hindu daughter was granted with the deprivation as concerns to her right to a share in the joint family estate, by the reason of her birth within the joint family framework.This stands as a position creating adverse distinction, by the way of the element that seeks to entrench a right of this sort to the son instead, while aiming to leave the daughter on a flimsy ground.
Thereby, the Hindu laws have been associated with several instances of discriminatory norms comprised, and a positive change in that regard has only been of a recent making, that is, when the Hindu Succession Act was imparted with the voraciously demanded for amendment in 2005, to instill greater egalitarianism concerning the rights as to the Hindu populace.
Therefore, several amendments were instituted within the realm of the Hindu Succession Act,all seeking a progenation of equal rights as the two sex camps with regards to several matters of significance and of a prominent operation. Such amendments, as established under the Hindu Succession(Amendment) Act, 2005, in relation to the status of the female Hindu, are listed as follows :
- The daughter is a coparcener by birth, in the same way as the son and, enjoys the same rights in the coparcenery property as the son. [Section 6 (a) and (b)]
- The daughter is also subjected to the same liabilities in respect of the coparcenery property, as the son. [Section 6 (c)]
- The property acquired by the female Hindu, whether before or after the commencement of the Act, becomes her absolute property. [Section 14]
- Any property that the female Hindu is entitled, by the virtue of Section 6(1) of the Act, is capable of being disposed by her through testamentary succession. [Section 6 (2)]
- The daughter and other females also exercise the power to bequeath their own share in the coparcenery, as per the change instituted under the Section 30 of the Act.
- On the instance of the death o the Hindu, after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest as to the property in the Joint Hindu Family, which is governed by Mitakshara law, devolved by testamentary or intestate succession and not by survivorship.
However, despite the initiation of several efforts in undertaking the establishment of a positive change, an implementation is rather significant in this regard, and the dearth of the same shall not inculcate within the social sphere, the development sought to be so instituted.
On the other hand, the discriminatory aspects also project an existence in myriad numbers within the context constituting the Islamic laws.Under the norms constituted, it has been duly prescribed that the share of a man shall stand to be of a nature that is double the possible share that can be attributed to the woman who comprises the same degree of relationship to the deceased.An aspect of this sort, epitomizes the tendency of undertaking the norms relating to an adverse distinction , and thereby, a reform is significantly needful for any advancement intended.
For the said reasons, the Indian Judiciary has also entrenched a supportive stance towards the ideologies of establishing a Uniform Civil Code, especially, as regards to the matters relating to succession and property – as such had been deemed as a significant move towards eradicating the lacunae that has been so inflicted upon the codified norms.
Such a Uniform Civil Code, if put into force, shall accelerate the process of development, by introducing the factors, elucidated upon, as follows –
- There shall be no instance of discrimination on the ground of sex, in the matters relating to inheritance. In this regard, the provisions embedded in the Hindu Succession (Amendment) Act, can be imparted an emphasis to, in extracting the egalitarian principles in consonance with the modern prevailing circumstances and needs extended.
- There shall be the institution of a stipulation permitting the inheritance of the property , in possession of the mother – whether self – acquired or otherwise procured from relatives et al.
- The stipulations concerning the formulation of will, shall be in agreement to the notions conditioning equity and the person shall be allowed in undertaking the requisite ranging to any extent, sans a limitation. The limitation as to the persons in favour of whom the bequest can be triggered or the donation of property under a will for religion and charitable purposes, shall all be qua.
- The essential ingredients as to a valid will and the other requisite provisions relating to its execution and registration, shall be well entrenched and clarified. The limitations on the provision of gifts can be allowed to be eradicated, although imposition of conditions attributed to a gift rendered is not invalid, and indeed a requisite.
Uniform Civil Code And The Succession Based Stipulations Adorning Personal Laws: A Judicial Opinion
The Judiciary has also manifested it’s approval towards the establishment of the Uniform Civil Code, realizing the dire requirement of the same, concerning the dimensions of succession and property – related matters.Such a support is implicit from the decided case laws.
In the case of Smt. Gurdial v. Mangal Singh3, a critical matter was put forth, by the way of decided case laws.The case comprised of the situation, constituting the question, in relation to a stipulation of the customs executed by the Jats in Patiala district. Such a custom imposed several discriminative tendencies.
Another challenge inflicted, was that in relation to the Hindu Succession Act,1956, whose certain stipulations were weighed as being controversial and demanding eradication from the statute. However, the bench held that – if there is an argument which advocates the validity of the infliction of discriminative position, with regard to the considerations as caste, creed etc., then, it entails difficulty in upholding the personal laws which instill various matters conditioned with discriminative elements to be constitutional.
In another case of Mohammad Abu Zafar v. Israr Ahmad and others4 , the poignant question was concerning the status of a Bhumidars under the UP Zamindari Abolition and Land Reforms Act, 1951, and whether such a person is incapacitated in formulating a valid Waqf of his Bhumidar rights in the land.
The Court, in order to render the decision, undertook a critical analysis of the myriad of stipulations concerning the zamindari and the land reform laws.The Court, thereby, upheld it’s stance in entrenching that, the personal laws shall not be imparted with a significance of a superlative degree, and such notions shall not pose as the guiding principles for the initiatives undertaken as to various relevant matters of importance.The Court held, that, the transfer of property, by the virtue of a Waqf, in the favour of a mosque, shall be understood from the prism of the essence of such a transfer undertaken, which indeed encompasses a religious purpose.
In this regard, Justice Krishna Iyer opined, that, the personal laws shall be duly interpreted only with regard to undertaking a corresponding analysis of its possible inclination towards avoiding the provisions enshrined under the Constitution, and the laws intending to inflict an abridgement are tainted with invalidity.Further, an important provision constituting the case, was the clarification about the duty entrusted upon the Judiciary, to undertake a comprehension of the stipulations instituted within the expansive realm of the personal laws, only with the due considerations of the operating circumstances and the changing needs of the era wherein such laws are to be executed.The personal laws shall not be devoid of being imparted with an interpretation that is mandated by the Constitution as being valid, and the institution of emphasis upon the interpretation of such laws being done, within the context of Article 44, is incumbent.
Another significant case in this direction is that of, John Vallamattom v. Union of India5 , wherein, Justice Khare noted –
“It is no matter of doubt that marriage, succession and the like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.”
It has been observed by the means of the aforementioned, that, the requirement of inculcating a Uniform Civil Code in the society, is indeed in the direction of imparting positive changes as to the social sphere and accelerating the process of the execution of the nation’s dream in undertaking development and, thereby, uplifting the status attributed.
However, opinions of dissent have emerged within the realm constituting various sections of the populace, flinging a challenging stance towards the concept and addressing the possible lacunae that might inculcate prominence, by the virtue of such operation of the Code. The proposal for the establishment of the Code, has posed as the stimulus towards opinions demanding a deterrence towards the shunning of the the antiquarian religious norms, that have commanded obeisance since times immemorial.
Though the Judiciary had indeed entrenched support towards the incumbent need in establishing the Code, the actual requisite within the context of the complicated mosaic of newly emerging changes, is that – a balance between the protection of the fundamental rights and the religious dogmas treasured by the people shall be established.
If at all the Code is to ever be implemented, the same shall be proper and just as per the understanding of a reasonable man of ordinary prudence, and shall not have an inclination towards malicious political or other religion – based ideologies, that is – it shall be deprived of any possible tint of biasness.
I advocate the institution of the Uniform Civil Code, as it shall aid in removing the discrepant elements among the personal laws, which indeed are of an unfavorable nature.The Code progenates the hope towards the eradication of such antiquarian discriminative tendencies, and as opined by the former Chief Justice of India, Y.V. Chandrachud,I n Mohammad Ahmed Khan v. Shah Bano Begum2 AIR 1985 SC 945 it serves the hope to cause to “awaken the rest of bigoted India.”
By: Devina Das
- Modern Hindu Law (Tenth Edition), U.P.D. Kesari, Central Law Publications
- Uniform Civil Code: Profusion of Personal Laws and Acknowledgement of Secularism in India, Dhruvraj Tomar, Journal of Legal Studies and Research, Issue 1, Volume 2
Access at : www.jlsr.thelawbrigade.com
- Uniform Civil Code, Women Empowerment And Gender Justice, Saroj Bohra, South Asian Journal of Multidisciplinary Studies (SAJMS), Issue 2, Volume 3
Access at : www.sajms.com
- Uniform Civil Code: In the Context of Secularism, Shivani Garg, Social Science Electronic Publishing, Inc. (October, 2013)
Access at : www.papers.ssrn.com
- Uniform Civil Code, Gauri Kulkarni
1AIR 1995 SC 153
2AIR 1985 SC 945
3AIR 1968 P H 396
4AIR 1971 All 366
5AIR 2003 SC 2902