By Dishari Chakrabarti, School of Law, KIIT University.
Politics of our nation has become so ingrained in pacification with specific sections of the society that our fundamental right of free speech and expression cannot be protected by the State. As a consequence of this appeasement the level of tolerance has reduced and which resulted in complete disregard for the law of the country.
Uniform Civil Code of India is a term which refers to a concept of encompassing Civil Law Code in India. A uniform civil code is said to administer same set of civil laws which will be applicable to all irrespective of their religion, caste, gender, and tribes etc. This code will supersede all the personal laws which depend upon religion, caste and tribes. Such a uniform codes are there in most of the Modern Nations.
Article 44 of the Constitution recommends a uniform civil code which the State shall endeavor to secure the security of the citizens. This recommendation was given to the State to allow the State to integrate and unite itself after independence before having a uniform civil code. It was apprehended by the framers of the Constitution that an iron fist approach for enforcement of a uniform civil code would result in widespread religious unrest which can lead to the disintegration of the fragile union.
The common areas which are covered by a civil code are acquisition and accommodation of property, adoption, marriage and divorce.
Dissolution of Marriage
The personal laws in India are based on the religion of the person, thereby making its application selective in nature. But law should not be selective rather it should be uniform. There has been a lot of debate as to whether Section 125 of Cr.P.C is applicable to Muslim women or not. The decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano answered this very question. The Court held that Sec 125 is applicable to all irrespective of their religion. After this very judgment our legislature passed an enacted called Muslim Women (Protection of Rights) Act, 1986. The constitutionality of this law was challenged in Daniel Latifi v. Union of India. The Supreme Court while applying the doctrine of harmonious construction and construed the enactment to be in compliance with the judgmentof Shah Bano. The present position of Muslim women is that they are entitled to fair and reasonable maintenance under Section 125 of the CrPC so long as she remains unmarried after the divorce.
The Muslim Women (Protection of Rights) Act, 1986 went through a lot of criticism because non-Muslims believed it to be political stunt for elections. The Shah Bano case reflected how much personal laws are influenced by religion and politics. The Supreme Court even after many petitions for uniform civil code has denied interfering in the area of legislature but has reminded the parliament time and again about the presence of Article 44 of the Constitution.
The Indian Succession Act, 1925 is the general law on succession and inheritance in India but this is not mandatorily applicable to all because different religious groups are governed by their own personal laws on inheritance and succession like Hindus, Sikhs, Jains, Buddhists and Muslims. For those persons who have different faiths than Hindu and Muslim, the Indian Succession Act, 1925 applies.
There is very clear demarcation between the laws of succession and inheritance applicable to Hindus, Sikhs, Jains and Buddhist and Parsi, Christians and Jews with that of Muslims and with persons of inter faith marriages.
The properties of a Hindu male dying intestate devolve equally amongst his sons, daughter, widow and mother according to the Hindu Succession Act, 1956. However, the deceased husband, if he so desires, can write a Will and exclude his wife, which makes the provision of section 30 questionable in nature. The Will made by the deceased may contain bequeath of all his properties and no means of support to the widow this suggests that the gender inequalities in succession law proliferate extensively.
The joint family property of a Mitakshara Coparcenery devolves by survivorship upon the surviving members of the coparcenery and not in accordance with this Act. This concept however takes a different route when the Mitakshara coparcener dies leaving behind a female relative claiming the property and in such an instance this undivided interest instead of devolving by survivorship devolves as provided under the Hindu Succession Act, 1956. This unequal treatment with female child has existed since ages and the amendment in 2005 attempted to reduce this inequality. The right of the daughter to demand a partition of the coparcenery property after the 2005 amendment is absolute and not subjected to any rider. The right of a daughter to demand partition of coparcenery property cannot be defeated even if she is converted to Muslim religion after her marriage. As far as her succession rights are concerned they are relatable only to the separate property of her father for which she has to wait till his death. The coparcener gets a right by birth in the coparcenery property and the death of the father is not a prerequisite for right to seek partition and demarcation of their shares. A daughter cannot ask for partition till the death of her father is not only wrong but appears to be against the spirit of the newly created coparcenery rights in favour of the daughter.
The Muslim Personal Law (Shariat) Application Act, 1937 governs the Muslims and Muslim women in India. The Shariat is regarded as the Custom or Usage for the purposes of division of all properties, except agricultural land. Previously Muslims were governed by their local customs, laws and practices depending upon their domicile which ran contrary to the Shariat. The customary laws were highly discriminatory and it excluded daughters and widow from inheritance or succession which was contrary to the Shariat which provided daughters and widow the right to inheritance and succession but the shares of the daughters and widows were lower than a man. Therefore we can say that the Muslim laws are more discriminatory and provided least scope to the women to have a share in her husband’s or father’s property.
In the case of the Parsi community, a daughter gets equal share as that of the son and it is the same even for the widow. For the Parsi the question of gender equality seems irrelevant.
So by drawing reference from the above discussion we can conclude that the Hindu Law has tried to mend the inequalities prevailing between the opposite sex related to inheritance and succession. As far as Parsi law is concerned there never existed any inequality between sons and daughters for the share of their father’s property. But the Muslim law is still predominantly in favour of males for the right to inheritance and succession.
General people have a wrong notion of civil code as being anti- religion. Civil code does not aim at removing the rituals and ceremonies attached to a particular religion; it only focuses on the rights while keeping intact the ceremonies. It tries to bring about a secular system reforming the existing personal laws based on religions which grossly discriminate women. But the superior sex and superior religion battle does not seem to agree with this very concept. The first women Chief Justice, Leila Seth, argued in favour of the uniform civil code by stating that it would help to break the shackles of unfair customary practices harmful to women and would provide them with individual identity. She also addressed the fear that such code might imperil religious freedom by saying that uniform civil code will not take away the right to perform religious ceremonies and rituals rather it would provide the women with equal rights relating to property and would protect her against polygamy and arbitrary divorce.