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Family Law II

PROJECT

Uniform civil code:


the need of today

Date of Submission: 20 March, 2014.

Submitted to: Submitted by:


Mr. Sushil Goswami Rajat Arora, Roll No. 11B109

Professor of Law Prachi Shah, R. No. 11B131

Family Law II VIth Semester, B.A. LL.B. (Hons.)

GUJARAT NATIONAL LAW UNIVERSITY


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TABLE OF CONTENTS

I. Why is the UCC the Need of the Hour?............................ 3

II. Divorce ……………..7

III. Matters of Property and Intestate Succession …………………..13

IV. Judicial Position …………………………21

V. Conclusion Proposed Components of the UCC……………..25

VI. Bibliography…………………………….28
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WHY IS THE UCC THE NEED OF THE


HOUR?

Article 44 of the Indian Constitution speaks of the responsibility of the state to


endeavour to provide a Uniform Civil Code for all citizens throughout this country. Despite more
than 57 years of Indian independence we have failed to implement this directive principle. India
unlike other nations is an amalgamation of diverse people who follow their own distinct faiths,
religions, customs and traditions. The framers of the Constitution realized that the unity of the
nation could be threatened if they introduced the Uniform Civil Code soon after independence.
But that was a different period just after the communal riots of 1948. Even to this day, several
enactments remain which are unfavourable to the minorities and against the principles of natural
justice and equality read under Articles 21 and 14 respectively. Without a Uniform Civil Code
we will not be able to justify our tag of the world’s greatest democracy.1

‘Uniform Civil Code,’ this phrase once uttered opens up a Pandora’s Box and a plethora
of emotions. The nation either starts wailing or bursts into hysterical jubilation. There are three
aspects of this issue: political, social or religious. Politically the nation is divided into two
factions, on the one hand the BJP and RSS that strongly crusades for the Uniform Civil Code2
and on the other spectrum the Congress,3 which though it has been in power for over forty years
has shockingly failed to do so.4 Socially, the common masses that fluctuate from one point to

1
'Now again there are Muslims and there are Hindus, there are Catholics, there are Christians, there are
Jews, in different European countries. I should like to know whether different personal laws are
perpetuated in France, in Germany, in Italy and in all the continental countries of Europe.' [Alladi
Krishnaswami Ayyar in Constituent Assembly Debates Vol. VII, pgs.549-50.]
2
Surprisingly as they are considered to be based on a conservative Hindutva ideology
3
So called secular party.
4
Hereinafter referred as the UCC.
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another, unsure of the benefits of a system in a diverse polity that is India. Religiously, the divide
between the majority Hindus and the minorities dominated by the Muslims.

The NCRWC5 in its periodic recommendations to the government doesn’t seem to be advocating
the dire urgency to implement the Constitutional provision of a uniform civil code for the
country that is increasingly witnessing a dangerously widening schism between the majority
Hindus and the minority communities, mostly Muslims. A divide promoted solely on the basis of
political agendas of various parties.

What are the benefits of the UCC? Will it help in national integration or further alienate the
minority interests? These are two of the numerous doubts raised at the post implementation
phase of the UCC. It has to be said here that no law is bad in itself. There are numerous good
laws in this country that promote equality and socialism; however there still exists a gap between
the rich and the poor. In the same way a UCC too needs to be implemented efficiently. Its
benefits are far too great to be ignored.

Way back at the time of the framing of the Constitution, it was observed by the constituent
assembly:

"When you want to consolidate a community, you have to take into


consideration the benefits which may accrue to the whole community and not
to the customs of a part of it. If you look at the countries in Europe, which have
a Civil Code, everyone who goes there forms a part of the world and every
minority has to submit to that Civil Code. It is not felt to be tyrannical to the
minorities."6

Other legal experts argue that though the UCC is needed, a favourable atmosphere needs to be
created before it is implemented. It should be brought to their notice that even at the time of
codification of Hindu law, which brought Hindus, Jains, Buddhists, Sikhs and other
denominations of the Hindus under the same umbrella, there was a lot of protest. This ultimately

5
National Commission to Review the Working of the Constitution.
6
Constitutional Assembly Debates Volume VII pg. 547
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died down as the masses realized that it was beneficial to them in the long run. The then Law
Minister, Dr. Ambedkar himself displayed his foresight when he said that for India’s unity, the
country needs a codified law. In a similar fashion, the UCC can be implemented, which will
cover all the religions, whether major or minor, practiced in India and any person who comes to
India has to abide by the Code. Besides, the framers of the Constitution believed that a suitable
atmosphere would be created within 5 to 10 years of the commencement of the Constitution.7

We should take the state of Goa as an example. There exists a common civil code in Goa for all
communities. The Portuguese colonists framed this code 8 way back in 19th and 20th century
through various legislations. After the liberation of Goa in 1961, the nation scrapped all the
colonial laws in the country. However it allowed the aforesaid law to continue. The main
provision of this law related to the issue of divorce. In case of dissolution of marriage the
property is to be divided equally between the sons and daughters. In order to prove the above, it
necessitated the compulsory registration of marriages. Thus it had the effect of killing two birds
with one stone, as registration also brought down bigamous and polygamous marriages.

We strongly support the need for implementation of the UCC and the homogenising of
personal laws throughout the country. Thus far there has been unequal progress of different
communities. The fears that a UCC will favour the dominant community are baseless. We should
not let petty politics come in the way of national integration. For India to be respected as a global
democratic power there has to be a concerted and unified approach of the intelligentsia. It is
hoped that through this project we will be able to convey the urgency of the same.

In the first chapter, the important Supreme Court decisions supporting the implementation of the
UCC have been cited and analyzed. Further more the misplaced fears that a common code would

7
'One of the factors that has kept India back from advancing to nationhood has been the existence of
personal laws based on religion which keep the nation divided into watertight compartments in many
aspects of life. We are of the view that a Uniform Civil Code should be guaranteed to the Indian people
within a period of five or 10 years.' [Note of M R Masani, Hansa Mehta and Rajkumari Amrit Kaur, cited
in SHIVA RAO, B., MENON, V. K. N., KASHYAP, S. C., & IYENGAR, N. K. N. (1966). The Framing
Of India's Constitution. New Delhi, Indian Institute of Public Administration; [distributors: N. M.
Tripathi, Bombay. Vol II, pg. 177.]
8
The Goan Civil Code, collectively called ‘Family Laws’.
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be violative of the various provisions of the Constitution have been put to rest. In the latter
chapters the various anomalies in the personal laws of different religions regarding marriage,
divorce and property have been criticized. Finally in our conclusion we have enlisted what we
feel should be the proposed components of an ideal uniform civil code for our country.
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DIVORCE
This section can be dealt with in two parts:
 The discrepancies in the grounds for seeking divorce among the various legislations that
govern divorce
 The problems arising out of divorce for Muslim women

I. GROUNDS FOR SEEKING DIVORCE:

Legislations like the Indian Divorce Act, 1869, the Hindu Marriage Act, 1955. the Special
Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936, preside over divorce and
lay down various grounds on the basis of which divorce can be sought by parties. These include
adultery, cruelty, desertion and mutual consent among others. However the problem creeps in
when we read the wordings of the concerned sections in these laws where in some there are
restrictions or pre-conditions that need to be fulfilled before divorce on that particular ground can
be granted and these are not uniform which creates problems for those being governed by that
particular law for no other reason than them professing that faith.

One of the best examples of this is Section 32(e)9 of the Parsi Marriage and Divorce Act
which states that if one of the parties to the marriage has a venereal disease, the plaintiff can only
seek a divorce in this ground after being infected with the disease and the petition should not be
9
The Parsi Marriage and Divorce Act, 1936, “Section 32- Grounds for Divorce
Any married person may sue for divorce on any one or more of the following grounds, namely:-
…………
(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has
infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife
to submit herself to prostitution;
Provided that divorce shall not be granted on this ground, if the suit has been filed more than two
years (i) after the infliction of the grievous hurt, or (ii) after the plaintiff came to know of the infection, or
(iii) after the last act of compulsory prostitution.”
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filed later than two years of knowledge. Now this section leaves scope for serious injustice.
Supposing the husband gets infected with HIV through an infected needle after the marriage, the
wife can only file for divorce only if she herself turns HIV positive. This section is outrageously
unfair as it grants relief only on the condition that the plaintiff knowingly gets infected with a life
threatening and possibly fatal disease.

Another such example is Section 10(i) (5)10 of the Indian Divorce Act which states that incase
of a venereal disease, the disease must be communicable and the respondent must not be
suffering for less than two years. Here again there is requirement of waiting for two years,
possibly putting oneself in the danger of contracting the disease before getting any relief. This
requirement of waiting for two years in not present in the other personal laws.

Apart from venereal diseases, there is also the ground of imprisonment which suffers from
discrepancies in the personal laws.

Section 32(f)11 of the Parsi Marriage and Divorce Act states one of the grounds of divorce to
be that if the defendant is undergoing a sentence of imprisonment for seven years or more for an
offence as defined in the Indian Penal Code, divorce can be granted provided that divorce shall
not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at
least one year’s imprisonment out of the said period. This proviso makes little sense as there is
no valid reason for the party to wait for a year before starting divorce proceedings. Under the

10
The Parsi Marriage and Divorce Act, 1936, “Section 32- Grounds for Divorce
Any married person may sue for divorce on any one or more of the following grounds, namely:-
…………
(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code:
Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing
of the suit undergone at least one year’s imprisonment out of the said period”
11
The Indian Divorce Act, 1869 "Section 10. Grounds for dissolution of marriage.-(1) Any marriage
solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act,
2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolve
on the ground that since the solemnization of the marriage, the respondent -
………..
(v) has, for a period of not less than two years immediately preceding the presentation of the petition,
been suffering from venereal disease in a communicable form..”
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Special Marriage Act12, it is a ground for judicial separation as well as divorce and even in there,
there is a illogical requirement for waiting for three years before beginning the proceedings.

In fact for Christians and Hindus, it is neither a ground to seek divorce nor judicial separation.
This has obvious repercussions as it leads to a scenario where a party cannot seek divorce from
the other even while the other is in jail.

Another area where there is a lot of incongruity is in divorce by mutual consent.

Under the Indian personal laws, divorce by mutual consent is recognized under the Hindu
Marriage Act, 195513, Special Marriage Act, 195414, the Parsi Marriage and Divorce Act,
193615 and the Indian Divorce Act, 186916.

There are certain conditions that need to be fulfilled before a divorce decree on the grounds of
mutual consent is granted by the court and this includes that the concerned couple should be
living apart for at least a year. However under the Indian Divorce Act the requirement in
increased to two years which is unfair. Under Hindu and Christian law there is also a waiting
period of 6 months at least before the divorce decree is passed by the court but under Parsi law,
the courts grant immediate relief which is again a cause of difference.

Thus through the abovementioned examples, it is clear that there is a lot discordance, contrariety
and variance among the provisions regarding the grounds for divorce in personal laws which
highlight again a need for a common code governing them.

12
The Special Marriage Act, 1954, “Section 27 Divorce. - Subject to the provisions of this Act and to the
rules made thereunder, a petition for divorce may be presented to the district court either by the husband
or the wife on the ground that the respondent -
……
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the
Indian Penal Code (Act XLV of 1860)
Provided that divorce shall not be granted on this ground, unless the respondent has prior to the
presentation of the petition undergone at least three years' imprisonment out of the said period of seven
years”
13
Section 13B
14
Section 28
15
Section 32B
16
After the 2001 amendment as Section 10A
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In addition, there is a requirement to incorporate ‘irretrievable breakdown of marriage’ as a


separate, distinct, legislative ground for divorce as it is even recognized by the judiciary that
there can be instances when the marriage is beyond any repair and it is pure torture for the couple
to stay together17.

II. PROBLEMS ARISING OUT OF DIVORCE FOR MUSLIM WOMEN:

‘Triple Talaq’ is the biggest curse inflicted upon a woman professing Islam in India which has
lead to several protests18 and debates but to no avail as the legislature refuses to bring itself to
prohibit it due to political pressure exerted by the Muslim Clerics who are old and bigoted. In
fact the July, 2004 meeting of the All India Muslim Personal Law Board (AIMPLB) at
Kanpur had raised considerable expectations that the ulema associated with it, who exercise a
powerful influence on Muslim opinion, would finally declare the obnoxious practice of triple
talaq in one sitting to be null and void and therefore illegal. This, however, was not to be. In fact,
it so transpires that the question of banning the practice of triple talaq was not even on the
agenda of the ulema gathered at Kanpur. Leading Deobandi and Barelvi scholars, whose schools
represent the majority among the Indian ulema, see the practice as Islamically valid and as an
integral part of the Shari’ah. Hence, they insist, the practice cannot be scrapped, as that would
allegedly be tantamount to interfering with divinely revealed laws. This opinion appears to be
widely shared among the ulema associated with the AIMPLB, which explains the refusal of the
Board to ban the practice despite considerable public pressure to do so.19

Divorce by pronouncing talaq thrice at one go is prohibited in several Islamic nations, including
Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, Pakistan and Bangladesh 20. In fact in Pakistan,
divorce can be sought only after the reconciliatory efforts under the supervision of Government

17
Jaya V.S., Irretrievable Breakdown of Marriage as an Additional Ground for Divorce, 48 JILI (2006),
p.439
18
http://news.bbc.co.uk/2/hi/south_asia/3530608.stm, last visited on 09-03-14
19
Yoginder Sikand, Triple talaq: counter–perspective, Communalism Combat, Year 10-No. 99, July
2004, http://www.sabrang.com/cc/archive/2004/july04/cover10.html, last visited on 09-03-2014
20
“Instant talaq banned in many Islamic countries: NCW”, published on December 12, 2004,
http://www.rediff.com/news/2004/dec/12talaq.htm, last visited on 09-03-2014
http://www.irfi.org/articles/articles_151_200/triple__talaq.htm 09-03-2014
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officials fail, in the form of a written announcement and uttering the word talaq thrice is not
sufficient.21

An instance of how the practice is rigidly followed in our country is in 2006, when a man
muttered ‘talaq’ in his sleep three times and his wife happened to have heard him. She later went
and told her friends about it and somehow the news spread and the local Islamic clerics and
leaders heard of it. They forced the couple who had been married for eleven years and with three
children to separate and enforced the triple talaq law. 22 This ludicrous and farcical incident
clearly indicates the disastrous proportions of this problem. Instant Talaq is thus a Damocles’
sword hanging on the heads of all married muslim women India who can be abandoned by their
husbands on their whims and fancies and be left to fend for themselves as the Muslim Women
(Rights on Divorce) Act, 1986 which overruled the Shah Bano judgment23 reduces their right to
maintenance to a mere formality.

For long Christian women too had the law loaded against them. A Christian man could obtain a
divorce on the basis of adultery; a woman had to establish an additional charge like desertion or
cruelty under the Indian Divorce Act 1869. But in 1997, cruelty, physical and mental torture
were made ground enough for a Christian woman to obtain a divorce, with the Bombay High
Court recognizing cruelty and desertion as independent grounds for the dissolution of a Christian
marriage24. This was further cemented in the 2001 amendment.

However the case of Muslim Women is still the same so much so that in March 2008, the All
India Muslim Women's Personal Law Board drafted a new marriage contract to be used in
place of the ‘nikaahnama’ which stipulates the conjugal rights, obligations, duties of the parties,
the procedure for divorce and maintenance25. It excludes the right of triple divorce for men. This
contract has found some takers since its inception but to what extent it can be effectively
implemented is yet to be seen.

21
Id
22
‘Indian Man Divorces Wife in Sleep’, http://www.msnbc.msn.com/id/12038469/, (March 27, 2006), last
visited on 09-03-2014.
23
Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
24
Pragati Verghese v. Cyril George Verghese, AIR 1997 Bom 349.
25
http://www.womensenews.org/article.cfm/dyn/aid/3692/context/archive
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In addition to the triple talaq, there are also other practices followed in Islam which cause so
much prejudice to the women that the legislation of a uniform code is the only resort left.

Divorce by Ila, is one such method. It is a species of constructive divorce which is effected by
abstinence from sexual intercourse for the period of not less than four months pursuant to a
vow.26

It is evident that the position of women under Islamic law in India is very deprived,
disadvantaged and suppressed. They are at the mercy of their husbands and with the lack of
education, rampant illiteracy, poverty which is prevalent in the concerned section; the few rights
that are even available to them cannot be exercised. Consequently, the need for a uniform civil
code which stipulates their rights and an effective way to enforce them is required to bring them
at par.

26
M. Hidayatullah & Arshad Hidayatullah (eds.), Mulla’s Principles of Mahomedan Law, 19th Edn.,
Lexis Nexis Butterworths, New Delhi, 2005 (13th Reprint), Section 317, p. 265
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Matters of Property and Intestate


Succession

The concept of property is very basic and essential for the Legal Scheme governing family
matters. It is seen that despite few legislative enactments the scheme of inheritance and
succession is quite different under different religions. In this chapter it would be tried to see the
major points of differences and anomalies between the dominant religions and sects in India and
to answer the question that whether a Uniform Code is possible for them. The focus of the
chapter shall be intestate succession.

I. HINDU LAW:

Earlier when the law in relation to this matter was not codified and equalized the scheme of
succession under Hindu Law was very haphazard in different parts of Countries and suffered
many anomalies. But after the enactment of Hindu Succession Act, 1956 the situation has
improved to large extent.

A settled scheme of succession has been evolved by the Act. The Act has an express provision to
the effect that the Act shall override the contrary customs and practices 27. So the Act has the
conclusive characteristic in cases of Succession. The Act does not deal with testamentary

27
Over-riding effect of Act. –
(1) Save as otherwise expressly provided in this Act,-
(a) Any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act;
(b) Any other law in force immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
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succession or partition. Therefore Partition is still subject to customary laws and Testamentary
Succession is been left to Indian Succession Act, 192528.

Matters of succession are within dominance of State as well as Union and therefore in Hindu
Succession Act, 1956 certain state amendments have also been made with the assent of
President.

I.I Male intestate Succession: -

A comprehensive method of inheritance in case of intestate death has been provided by the Act
for males as well as females. S. 8 onwards Male intestate succession has been dealt with. The act
divides the heirs and possible relatives in Class I and Class II. On the basis of nearness of
relation either by blood or marriage, the scheme has been framed.

The provisions of Hindu Succession Act, 1956 are very systematic at least in relation to males.
Class I heirs are given preference over Class II. Section 10 provides for the general scheme of
allotment of share from the property. Widow, mother, sons and daughters are given one and
equal share each and in their absence the property reaches to next Class.

Further also the scheme for male intestate is quite satisfactory and well planned.

I.II Position of females: -

In light of the latest developments and the recent amendments daughters are been made
Coparceners in the family property, giving them an equal right to take the property on time of
intestate succession or partition. The amendment made in year 2005 has radically altered the
character of a Mitakshara Coparcenary. Before the Central Amendment to this effect 4 States had
brought this change in their legislations29. According to S. 6 –

In a joint family governed by the Mitakshara Law, the daughter of a Coparcener shall –

i) By birth becomes a Coparcener in her own right in the same manner as the son,

28
Part IV of the Act deals with testamentary succession through wills and other instruments.
29
Dr. Poonam Pradhan Saxena, Family Law Lectures, Family Law II, (Lexis Nexis Butterworths, New
Delhi, 2nd edn. 2008). Pg. 142.
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ii) Have the same right over the property as a son.


iii) Be subject to same liabilities in respect of the said Comparcenar Property as that of a
son.

So this amendment brings an end to a major source of discrimination prevailing in the Hindu
System of intestate succession. Now both the genders are given equal status.

Further the Act deals with matters of female succession as well in comprehensive manner giving
categories for the heirs and giving absolute right over the property to them by virtue of S. 14.

I.III Discrimination on basis of marital status: -

S. 15(2) which relates to intestate succession in case of females is the biggest flaw in the scheme
according to many opinions. On one hand Females are given absolute rights regarding their
property empowering them to dispose it off by any means to any one, but this concept is
completely diluted when it comes to intestate death.

Section provides that property inherited from Father’s side or as father’s heir shall go back to
father’s side (in absence of children or children of pre-deceased children) and same in case of
property inherited from husband or father-in-law’s side.

This provision is absolute bad on basis of irrational discrimination and arbitrary classification.
The provision was under challenge in Bombay High Court in Somu Bai Yashwant Jadeo v.
Balagovinda Yadav30 on above grounds. The Court ruled in favour of the legislation holding that
Rule of reversion had an holy objective of continuing the family unity. The property should
remain in the family and not go outside.

But the reasoning sounds frivolous in light of argument that only under Hindu Law different
schemes are provided for Males and Females. Many communities are been governed by single
scheme of succession and still they are able to preserver the unity. Section makes clear
discrimination on basis of heirs of her husband, of her father and of her mother, showing that the
legislature does not treat woman as an independent individual, and does not define her
relationship with her heirs, in terms of her own blood, but ascertained them with respect to the

30
AIR 1983 Bom. 156.
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heads of the family in which she was a member. Her brother is not her heir in that capacity but
can succeed as her father’s heir. Also the property inherited from mother goes to father’s heirs
again, rendering the argument about unity of family, futile.

I.IV Conclusion in light of Current Position: -

In light of the recent developments and looking at the high rationality of gender bias in case of
intestate death of female, the legislature should take a lesson from the fact that only Hindu Law
is one, having different schemes of succession for males and females in case of intestate death.
Now when the females are also given absolute right regarding the property and they are also
coparceners – there is no reason a new single scheme should be evolved covering all Hindu
intestate deaths. There are many communities having single scheme of intestate succession and
still able to maintain their unity and it is high time Hindu Community also becomes one of them.

II. MUSLIM LAW

The scheme of Muslim Law of succession is really complicated and it is not possible to analyze
the whole scheme due to shortage of time and space. In this part of the chapter it will be tried to
point out certain anomalies prevailing on basis of the few common grounds with other religions.
Few features of the muslim law of succession are as following -

1. Nature of Property no distinction made: - No distinction is made between movable or


immovable property, joint or separate property. This causes a problem sometimes because a
distinction in the property on the grounds i) how it was acquired – whether by joint efforts or
by single; and ii) whether it is movable or immovable; is necessary sometimes. The Doctrine
of Survivorship is not known to Muhammadan Law, the shares of each Muslim heir are
definite and known before actual partition. Therefore the rules relating to partial partition as
applicable to Hindu Coparcenaries are not applicable to Muslims31. The concept of property
is simple and it comprises of all forms of property and includes both corpus and usufruct32.
2. Birth Right, (Spes Successionis) not recognized – This is major flaw in the Islamic Law of
succession. Islamic law neither recognizes a birth right, nor it has a spes successionis any

31
Khazir Bhat v. Ahmad Dar AIR 1960 J & K 57.
32
Sardar Nawazish Ali Khan’s case.
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value. Rights of inheritance arise only on the death of a certain person33. Hence the question
of the devolution of inheritance rests entirely upon the exact point of time when the person
through whom the heir claims died – the order of deaths being the sole guide.
3. Relinquishment of Share, Release not allowed: - The relinquishment of a contingent right of
inheritance (itself a nullity in law), by a Muslim heir is generally void in Muhammadan
Law34; but if it is supported by good, and not necessarily valuable, consideration, and forms
part of a valid family settlement, it is perfectly valid35. This is again an anomaly in case of
Muslim Law as it restricts the right of disposing off the property according wish. This is a
major restriction on general right to property and inconsistent with the jurisprudential
concept of “ownership” which holds right of disposing off property as per wish a necessary
part of it.
4. Representation – Not recognized: - This is sometimes claimed as the biggest flaw in the
scheme of Muslim Succession and proves itself most unjust principles. The principle of
representation is not recognized. If A dies leaving a son, B and a predeceased son’s son C.
The rule is that the nearer excludes the more remote and there being no ‘representation’, C is
entirely excluded by B, and B is the sole heir. This principle prevails in both sunni as well as
Shia law. The son of a person deceased shall not represent such person, if he died before his
father. He shall not stand in the same place as the deceased would have done had he been
living, but shall be excluded from inheritance if he have a paternal uncle.
5. Rights of Females - Restricted: - Males and females do not have equal rights over the
property. The share of a son is double than a daughter. For example, a Muslim dies leaving a
son and a daughter. The property will be divided into three equal shares, the son will inherit 2
shares and the daughter will be entitles to one share.
6. A line of succession unknown to Muhammadan Law can not be created: - A muslim JS
executed a deed of settlement where he gave all his properties to his son MS and directed that
he and his heris should give a certain quantity of rice to his two daughters Kulsumbi and
Jainabi, and after them absolutely to their male children. It was held that in so far as the

33
Razia Begum v. Anwar Begum [1958] SCR 1111, at 1137.( Imam J.)
34
Abdul Kafoor v. Abdul Razack (1958) II M.L.J. 492.
35
Kochunni Kochu v. Kunju Pillai AIR 1956 Trav. – Cochin 217; Qamar Din v. Alisha Bi, PLD 1956
(W.P.) Lahore 795.
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dispositions could be regarded as an attempt to limit the succession of male heirs and thus to
create a line of succession unknown to Muhammadan Law, the deed was bad36. Therefore it
is another big flaw in the Islamic Law as no freedom is given regarding testamentary
instruments. A person has to strictly follow the scheme of intestate succession and if the
vasiyat created goes against any rule then it is held to be void again vitally infringing the
right to property as generally understood.
7.
III. CHRISTIAN LAW
The main legislation governing succession under Christian Law is Indian Succession Act,
1925.

III.I Main anomaly not the laws but the diversity: -


To see anomalies under Christian law one need not approach the intricacies of the scheme
and of the provisions. The diversity in application and multiplicity of governing factors are
themselves the flaws in the Christian Scheme. Domicile is a criteria for determining the
application of law. Travancore Christians following Marumakka and Avakashi system,
Roman Catholics who follow the latin rites37 and the Protestants Christians living in the five
talluks have their separate customary laws. Similarly European Christians, Anglo Indians,
Parangi communities of Cochin and the Tamil Christians of Chittur taluk of Cochin are
governed by their distinct customary laws38. Further, Christians in Goa and Union Territory
of Daman and Diu are governed by the Portuguese Civil Code, 1867 39 while those in
Pondicherry adhere to any of the following laws –
i) Customary Hindu Laws40.
ii) Indian Succession Act, 1925
iii) The French Civil Code 180441.

36
Imam Saheb v. Ameer Sahib AIR 1955 Mad. 621.
37
Abdurahiman v. Joseph AIR 1952 TC 176.
38
Anthony Swamy v. Chinnaswamy (1969) 1 SCC 18.
39
Art. 5 of the Code.
40
Pauline v. Jerome AIR 1977 Mad. 270, Marri Louis v. Sandanaswamy AIR 1984 Mad. 271.
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The scheme of succession provided under Indian Succession Act, 1925 is systematic and free
from the flaws which arise out of usual incination of such laws towards religion. The Act makes
proper provisions dealing with each and every kind of situation. Chapter II of the Act, extending
from S. 32 to 49 deals with Christian intestate succession taking into account myriad kinds of
situations.

III.II Few small disparities: -

Widows are given some preference when they are entitled straight away to 1/3 or 1/2 of the share
from the property regardless of no. of children left behind by the intestate. Also the Act
overlooks the situation when there are more than one widow. Another anomaly is visible that the
widow of a pre-deceased son gets no share, but the children whether born or in the womb at the
time of the death would be entitled to equal shares42. Where there are no lineal descendants, after
having deducted the widow’s share, the remaining property devolves to the father of the intestate
in the first instance. Only in case the father of the intestate is dead but mother and brothers and
sisters are alive, they all would share equally43.

Therefore it can be seen that although Christian Law does not suffer much anomalies still few
discrepancies regarding gender inequality are present which needs attention and to be dealt with.
Otherwise the Act deals with matter in an apt and comprehensive manner.

IV. CONCLUSION

In this way we can analyze the different schemes of succession under three most dominant and
most populated personal law fields in case of India. It is really necessary and desirable to
introduce a Common Scheme of Succession in order to maintain the unified legal system. With so
much differences in law regarding property, social equity and justice can never be attained. The
first step towards social equity should be making sure that Rahul, Ramzan or Rose whoever
inherits in same way and same proportion of property. This will help in unification of country as

41
According to treaty of Cession, individuals of the UT of Pondicherry were given an option to follow
Indian Law or continue with French law. Certain part of population chose to continue with French Code –
called “Reconants”.
42
Section 39 and 40.
43
“Property Rights of Indian Women”- http://www.wlce.co.za/conference_2005/Shruti_Pandey.pdf
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well as making sure in today’s developing and globalized word that our property laws are not
ancient customs based.
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JUDICIAL POSITION
The Indian judiciary has time and again through various judgments directed the
parliament to display urgency in the implementation of a common civil code. The landmark case
in this regard, where the first of the many observations was made was the case of Mohammad
Ahmed Khan v. Shah Bano Begum44, popularly known as the Shah Bano case.

In brief, the facts of this case dealt with a penurious Muslim woman, Shah Bano Begum
who was given triple talaq by her husband. She thereafter claimed for maintenance from her
husband under Section 125 of the Code of Criminal Procedure45. The Supreme Court held that
the Muslim woman had a right to get maintenance from her husband under Section 125. The
Court also held that Article 4446 of the Constitution has remained a dead letter. The then Chief
Justice of India Y.V. Chandrachud observed that,

"A common civil code will help the cause of national integration by
removing disparate loyalties to law which have conflicting ideologies."

44
AIR 1985 SC 945
45
"(1) If any person having a sufficient means neglects or refuses to maintain- a) his wife, unable to
maintain herself, or b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or c) His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury unable to
maintain itself, or d) his father or mother, unable to maintain himself or herself, a magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate
may from time to time direct: Provided that the Magistrate may order the father of a minor female child
refereed to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of sufficient means."
46
"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India."
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The aftermath of this decision was one of widespread shock, political agitations, strikes
and meetings. It seemed that this decision was ahead of its time. Rajiv Gandhi, the then Prime
Minister of our country, instead of lauding the Apex Court for its forward outlook, submitted to
the political appeasement of the minority Muslims. 47 His party overturned the verdict in
Parliament by enacting the Muslim Women (Right to Protection on Divorce) Act, 1986, which
curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of
Criminal Procedure. The reason given was that the SC merely made a passing comment, an
obiter dictum that was not binding in any way. Personal laws should not be tampered with unless
the people themselves demanded for it from within. A golden opportunity for reformation was
lost, and Shah Bano’s bravery did not yield the hoped results.

The second instance in which the Supreme Court again directed the government on
Article 44 was in the case of Sarla Mudgal v. Union of India.48 In this case a Hindu husband
was married under Hindu law. In order to solemnise a second marriage, he converted to Islam 49
in order to circumvent section 494 of the I.P.C. The question posed before the court was whether
this man on conversion can solemnise the second marriage. The Court held that a Hindu
marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified
under the Hindu Marriage Act, 1955. Conversion to Islam and marrying again would not, by
itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnised after
converting to Islam would be an offence under Section 494 50 of the Indian Penal Code.

Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage
where it is lying since 1949. The Hon’ble Justice referred to the words of Pandit Jawahar Lal
Nehru who defended the introduction of the Hindu Code Bill instead of a uniform civil code, in
the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India
for me to try to push it through".

47
The Congress feared that inaction would threaten their image of a minority party.
48
AIR 1995 SC 153
49
Under Islamic Personal Law a Muslim man can have four wives.
50
"Whoever, having a husband or wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to fine."
23 | P a g e

The utmost that has been done is the codification of Hindu law:

"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."

The latest instance where the Supreme Court brought the government to task for the
inordinate delay in bringing the UCC into force was the case of John Vallamattom v. Union of
India51. In this case Mr. John Vallamattom, a Christian Priest challenged the Constitutional
validity of section 11852 of the Indian Succession Act. This writ petition filed in 1997 claimed
that the above section was discriminatory against the Christians as it prevented them from
bequeathing property for religious and other charitable purposes. This restriction was not
applicable for citizens of other religions including the Parsis. The three judge bench through the
then Chief Justice of India V.N Khare concluded that there was no justifiable reason to hold that
the classification made is either based on intelligible differentia or the same has any nexus with
the object sought to be achieved. It was thus held that Section 118 was anomalous,
discriminatory and violative of Articles 14, 15, 25 and 26 of the Constitution and hence should
be struck down. With regard to Article 44, Chief Justice Khare stated that,

"We would like to State that Article 44 provides that the State shall endeavour
to secure for all citizens a uniform civil code throughout the territory of India It is a
matter of great regrets that Article 44 of the Constitution has not been given effect to.
Parliament is still to step in for framing a common civil code in the country. A
common civil code will help the cause of national integration by removing the
contradictions based on ideologies."

51
AIR 2003 SC 2902
52
"No man having a nephew or a niece or any nearer relative shall have power to bequeath any property
to religious or charitable uses, except by a Will executed not less than twelve months before his death,
and deposited within six months from its execution in some place provided by law for the sake of custody
of the Will of living persons."
24 | P a g e

Thus, as seen above, the apex court has on several instances directed the government to
realise the directive principle enshrined in our Constitution and the urgency to do so can be
inferred from the same.

However this progressive shift towards striking down discriminatory provisions and
moving towards implementation of the UCC was dealt a severe blow in the case of Ahmedabad
Women’s Action Group v. Union of India 53 . In this PIL, it was pleaded that the various
provisions in Muslim personal law allowing triple talaq, polygamy, and discrimination in
inheritance laws against females regarding their share, is violative of Articles 14 and 15. Thus
such laws should be declared void by the courts. Unfortunately the honourable judges refused to
even dispose the writ petitions on merits. They concluded that personal laws are matter of State
policies with which Court do not have any concern.

53
AIR 1997 SC 3614
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CONCLUSION & PROPOSED


COMPONENTS OF UCC

Thus based on the above understanding, the following are our proposed components of
our model uniform civil code:

I. Marriage and divorce:

Marriage is the very foundation of the civilised society. The relation once formed, the law steps
in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution
in the maintenance of which the public at large is deeply interested. It is the foundation of the
family and in turn of the society without which no civilisation can exist.

The personal laws of each religion contain different essentials of a valid marriage. The time has
come for codifying the laws relating to marriage and divorce.54 The new code should have the
basic essentials of valid marriage, which shall include:

(i) The minimum age limit of a male should be 21 years and for the female it should be made
18. This is vital in a country like India. Firstly it would drastically bring done Child marriages in
the country. Moreover it would ensure the safety of the woman and child. For, Girls marrying
below the age of 18, their physiques are not adequately developed to assure safe bearing and
birth of the child. This would also curb over population. Severe punishments should be imposed
to ensure a deterrent effect.

54
'Surely the time has now come for a complete reform of the law of marriage and make a uniform law
applicable to all people irrespective of religion or caste…We suggest the time has come for the
intervention of the legislature in these matters to provide for a uniform code of marriage and divorce.'
[Justice O Chinappa Reddy in Ms Jorden Diengedh v S S Chopra AIR 1985 SC 934, 940.]
26 | P a g e

(ii) Monogamy should be made compulsory among all religions. The allowances given to men
to have upto four wives are draconian and medieval in its outlook. Bigamy or polygamy is
punishable in most of the developed, thinking nations around the world. It has been conclusively
proven to hinder the life and liberty of a woman under Article 21 of the Constitution, besides
being violative of her equality rights under Articles 14 and 15.

(iii) Registration of marriage should be made compulsory. Every religion has its own unique
rituals. A valid marriage will be said to have solemnised when the man and the woman sign their
declaration of eligibility before a registrar. This will do away with all sorts of confusion in the
family on either side regarding the eligibility of marriage. This would also help the family courts
to a great extent in conclusively and efficiently deciding cases that appear before it. Also in case
of a divorce the wife would be assured of alimony given to her by her husband as she can rebut
her husband’s claim that there was no marriage in the first place.

(iv) With respect to divorce, its grounds must be laid down uniformly for couples of all
religions. The Muslim divorce concept of triple talaq has been severely criticized by various
women and other groups as violative of a woman’s right to equality. A drunken husband can, and
has after getting drunk come home and after a minor fight with his wife uttered the fateful words
thrice. In many of these cases the husband and wife don’t even want to separate, but are
compelled to by the AIMPLB55 and other such religious organisations.

II. Succession and inheritance:

This sphere throws up even more intractable problems. With regards to the institution of family,
Hindu law creates a distinction between a joint family property56 and self acquired property. On
the other hand, this distinction is non-existent in Muslim law, where limitations are imposed on

55
All India Muslim Personal Law Board constituted to adopt suitable strategies for the protection and
continued applicability of Muslim Personal Law in India. The AIMPLB was launched as a direct result of
the 1978 Shah Bano case. The orthodox Muslims in India felt threatened by what they perceived as an
encroachment of the Muslim Personal Law, and protested loudly at the judgment.
56
Hindu Undivided Family (HUF) is a term used to run household businesses and enterprises.
27 | P a g e

the extent of property that can be bequeathed by will. Considering all these, the UCC should
include:

(i) With regard to inheritance, there should be no discrimination based on sex. The property
should be shared equally amongst the sons and daughters as the case may be. The provisions of
the Hindu Succession (Maharashtra Amendment) Act, 199457 can be taken as guiding principles
wherein the daughter of a coparcener58 shall by birth have the same right to the property as the
son and be subject to the same liabilities as him.

(ii) The provisions relating to the will can therefore be understood to be in consonance with the
equity principles. There should be no limitations imposed on the extent of property that can be
bequeathed. 59 Also property should be allowed to be bequeathed for religious and other
charitable purposes, and thus furthering the judgment of John Vallamattom.60

(iii) Provisions for equitable inheritance of the property obtained by the mother either by means
of divorce and death of husband.

(iv) The essentials of a valid will and the appropriate authority for its registration should be
provided for.

57
Discussed in paragraph 18 in the case of Radhabai Balasaheb Shirke (since deceased, through her heirs
and L.Rs Sau. Kanchan Pralhad Shinde and Ors.) v. Keshav Ramchandra Jadhav MANU/MH/0087/2007
(as no equivalent citation was available): “This Act, without any reservation, confers equal coparcenary
right on the daughter as the son or any other male member has in a joint Hindu family governed by
Mitakshara law.”
58
Joint heir to a property.
59
As has been mentioned above with regard to Muslims.
60
Supra at page 6
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BIBLIOGRAPHY
Books referred:
1. Shiva Rao, B., Menon, V. K. N., Kashyap, S. C., & Iyengar, N. K. N. (1966). The Framing Of
India's Constitution. New Delhi, Indian Institute of Public Administration; [distributors: N. M.
Tripathi, Bombay. Vol II, pg. 177].
2. D. D Basu, Shorter Constitution of India, (Wadhwa & Company Law Publishers, Nagpur, 13th
edn., 2006) pp. 456, 457
3. Arvind P Datar, Commentary On The Constitution Of India, Volume 1, second edition
(Wadhwa & Wadhwa, Nagpur, 2007) p. 594
4. Henry Mayne, Treatise on Hindu Law and Usage (Revised by Justice Ranganath Mishra,
Bharat Law House, New Delhi, 15th edn., 1996)
5. Paras Diwan, Hindu Law (Orient Publishing Company, Delhi, 2nd edn., 2002)
6. Satyajeet A. Desai, Mulla Hindu Law (Butterworths, New Delhi, 18th edn., vol.1, 2001)
7. Constituent Assembly Debates (4-11-1048 to 8-1-1949), (Lok Sabha Secretariat, Vol. III,
New Delhi).
8. M. Hidayatullah & Arshad Hidayatullah (eds.), Mulla’s Principles of Mahomedan Law, 19th
Edn., Lexis Nexis Butterworths, New Delhi, 2005 (13th Reprint)
9. Dr. Poonam Pradhan Saxena, Family Law Lectures, Family Law II, (Lexis Nexis Butterworths,
New Delhi, 2nd edn. 2008).

Articles referred:
i. Kusum, Matrimonial Adjudication under Hindu Law in S.K. Verma & Kusum,
(eds.), Fifty Years of the Supreme Court of India (OUP, New Delhi, 2003) p. 231
ii. Daniel Lafiti, Muslim Law, in S.K. Verma & Kusum, (eds.), Fifty Years of the
Supreme Court of India (OUP, New Delhi, 2003) p.269
iii. B. Sovaramayya, Gender injustice in S.K. Verma & Kusum, (eds.), Fifty Years of
the Supreme Court of India (OUP, New Delhi, 2003) p.290
29 | P a g e

iv. Yoginder Sikand, Triple talaq: counter–perspective, Communalism Combat, Year


10-No. 99, July 2004
v. Jyoti Rattan, UCC in India: A Binding Obligation under Domestic and International
Law, 46 JILI (2004), p.577
vi. Virendra Kumar, UCC Revisited: A Juridical Analysis of John Vallamattom, 45 JILI
(2003), p. 315
vii. Naseem Akhtar & Kusum, Family Law on Divorce & Judicial Separation, 47 JILI
(2005), p. 244
viii. Jaya V.S., Irretrievable Breakdown of Marriage as an Additional Ground for Divorce,
48 JILI (2006), p.439

Cases referred:
1. John Vallamattom v. Union of India AIR 2003 SC 2902
2. Ahmedabad Women’s Action Group v. Union Of India (1997) 3 SCC 573
3. Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
4. Sarla Mudgal v. Union of India AIR 1995 SC 1531.
5. S.R. Bommai v. Union of India (1994) 3 SCC 1.
6. Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta (1984) 4 SCC 522.
7. Lily Thomas v. Union of India, AIR 2000 SC 1650 at 1668.
8. Pannalal Bansilal Pitti v. State of A.P. AIR 1996 SC 1023.
9. Danial Latif and another v. Union of India (2001) 7 SCC 740.
10. Vishakha v. State of Rajasthan, (1997) 6 SC 241.
11. Swapana Ghosh v. Sadananda Ghosh, AIR 1989 Cal 1
12. Ammini E. J. v. Union of India, AIR 1995 Ker 252.
13. Pragati Verghese v. Cyril George Verghese, AIR 1997 Bom 349.
14. Khazir Bhat v. Ahmad Dar AIR 1960 J & K 57.
15. Sardar Nawazish Ali Khan’s case.
16. Razia Begum v. Anwar Begum [1958] SCR 1111, at 1137.( Imam J.)
17. Abdul Kafoor v. Abdul Razack (1958) II M.L.J. 492.
18. Kochunni Kochu v. Kunju Pillai AIR 1956 Trav. – Cochin 217
30 | P a g e

19. Qamar Din v. Alisha Bi, PLD 1956 (W.P.) Lahore 795.
20. Imam Saheb v. Ameer Sahib AIR 1955 Mad. 621.
21. Abdurahiman v. Joseph AIR 1952 TC 176.
22. Anthony Swamy v. Chinnaswamy (1969) 1 SCC 18.
23. Pauline v. Jerome AIR 1977 Mad. 270,
24. Marri Louis v. Sandanaswamy AIR 1984 Mad. 271.
25. Ahmedabad Women’s Action Group v. Union of India AIR 1997 SC 3614
26. Radhabai Balasaheb Shirke (since deceased, through her heirs and L.Rs Sau. Kanchan Pralhad
Shinde and Ors.) v. Keshav Ramchandra Jadhav MANU/MH/0087/2007

Websites referred:
 www.manupatra.com
 www.legalserviceindia.com
 www.judis.openarchive.in.
 www.google.com
 www.cili.in/article/viewFile/1767/1151
 www.answers.com
 http://news.bbc.co.uk/2/hi/south_asia/3530608.stm
 http://www.sabrang.com/cc/archive/2004/july04/cover10.html
 http://www.rediff.com/news/2004/dec/12talaq.htm
 http://www.irfi.org/articles/articles_151_200/triple__talaq.htm
 http://www.womensenews.org/article.cfm/dyn/aid/3692/context/archive
 http://www.msnbc.msn.com/id/12038469/