ABSTRACT: -

Article 44 of the Indian Constitution aims at providing the nation with a Uniform Civil Code.
A Uniform Civil Code is one that proposes the same set of personal laws for all of the
population living within the boundaries of the Indian State, diluting the separations caused Page | 1
between religion, caste, gender, sexes etc. However, the proposition of the whole concept of a
Uniform Civil Code has been mired in controversy since the very beginning due to the varying
interpretations that have been given to it. This paper is divided into two broad sections. The
first Section deals with clarifying the original stance of the purpose of a Uniform Civil Code.
It then goes on to critic various interpretations and analyses offered by different stakeholders
in the issue, the major one being the Hindu Right in the country. It analyses the pros and cons
of enacting a Uniform Civil Code, and particularly deals with the problem of gender inequality
in personal laws currently in existence. Further, it moves on to analyse how the possibility of
a Uniform Civil Code would actually mitigate this problem. The second Section of this paper
analyses a possible model for inheritance laws in a paradigm of Uniform Civil Code. It takes
into consideration various inheritance laws under various religions such as Hinduism, Islam,
Christianity and Jewism, to understand the best possible model for inheritance laws to be in
existence, and concludes with a proposition of one such model.
 LITERATURE REVIEW:
1) Kumkum Sangari, Gender Lines: Personal Laws, Uniform Laws, Conversion:

This paper analyses the debate of having a Uniform Civil Code in the country, and analyses
Page | 2
the same in great detail. It further criticises the means used to justify the Uniform Civil
Code by the Hindu Right as a means of Majoritarian rule, in the sense that it uses to push
the majority’s ideology into the nation instead of hearing out everyone’s ideologies. It
moves on to analyse the feminist agendas behind a uniform civil code, and speaks about
the inalienable rights that need to be given to every member of the society without there
being any bias based on the sex of the person. It discusses in great detail the ideas of
conversion and how they have been misused in the past between people of different
religions, and how the judgements on these cases have been used by the majority as weapon
to push their own personal laws agendas.

2) Prof. Sumita Parmar, Women’s Right to Succession and Inheritance under Muslim,
Christian, Jews and Parsi Law:
This paper analyses in detail, the inheritance laws under various religions such as Islam,
Christianity, Jews and Parsis. It begins by analysing in general, the presence of the vast
number of inheritance laws that are religion specific, and their needs in various religions.
It then analyses Islamic Inheritance Laws. It starts off by understanding the Sunni and the
Shia laws of inheritance, and then draws out distinctions between the same. The next
Section in the paper deals with Christian and Jewish inheritance laws, and discusses the
various controversies that have arisen in history about the mere interpretation of these laws,
through various case laws. It concludes with an analysis of how a Uniform Civil Code
should work in these conditions.

3) Leila Seth, A Uniform Civil Code, Towards Gender Justice:

This paper deals with the major tenets of gender inequalities that are prevalent in the
personal laws under various religions. The paper analyses each of these personal laws
individually, and then goes on to analyse why there needs to be a Uniform Civil Code in the
first place to remove these inherent inequalities that are present, to further the basic ideals
of democracy, namely justice, equity and good conscience.

4) Reena Patel, Hindu Women's Property Rights in India: A Critical Appraisal:

This paper addresses the need to critically define the bases and contours of 'rights' as created
by law. Taking the example of changes in Hindu women s position in relation to property
through the rights generated by statutory and constitutional provisions, the article critically
evaluates the potential for such a 'rights regime' to enable Hindu women's greater access to
property. It argues that the idea underlying a particular claim, its legitimacy and therefore
Page | 3
effectiveness within a legal framework must be critically evaluated. The legitimacy of
claims presumptively conferred within a legal framework must be interrogated in the light
of legal, historical, political and cultural contexts. Such a contextual and critical analysis is
crucial for effective protection of rights claims through law. To the extent that legal regimes
reflect and substantiate wider social relations, their potential for bringing about substantive
change in the lives of women can only be realised through ongoing critical analyses of
gender, law and society
 INTRODUCTION:
India has a large number of vastly different family laws. For example, the Christians have the
Christian Marriage Act 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925.
Page | 4
The Jews have their uncodified customary marriage law and, in their succession, matters they are
governed by the Succession Act of 1925. The Parsis have their own Parsi Marriage and Divorce
Act, 1936, and their own separate law of inheritance contained in the Succession Act which is
somewhat different from the rest of the Succession Act. Hindus and Muslims have their own
separate laws which are different from the rest of the Succession Act. Hindus and Muslims have
their own separate persona laws. Hindus law has by and large been secularized and modernized by
statutory enactments. On the other hand, Muslim law is still primarily unmodified and traditional
in its content and approach. Therefore, personal laws are mostly communal in nature, considering
the fact that every community, or religion has its own set of laws governing its domestic relations
including marriage, divorce, succession, adoption, guardianship, etc. With a view to achieve
uniformity in the laws in the country, along with a view to make them non-discriminatory and
equitable, the Constitution makes provisions for a Uniform Civil Code, under Article 44, which
states as follows: "The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India"1.

As aforementioned, Article 44 of the Constitution requires the State to strive to secure for its
citizens, a uniform civil code throughout the nation. The major aim of having a uniform civil code,
apart from equity, is to separate religion form personal laws such as inheritance laws. It needs to
be noted that activities such as inheritance and adoption are secular activities, and therefore
separating it from religion would only promote a single national identity and the only consequence
that this would have is the promotion of national unity. However, this connection can only be drawn
in an ideal situation and in a society that is only cooperative and is acceptive of all ideals of every
community. The existence of a uniform civil code would lead to every community giving up certain
customs or practices that exist in their religion, in exchange for laws that have an inherent sense of
justice, equity and good conscience. These laws would in turn convert a plethora of laws that are
discriminatory and opposed to public policy, into laws that are in support of the principles stated
before.

1
Constitution of India, Article 44 (1950).
 THE DEBATE; CLARIFICATIONS:
Communalism breeds discrimination, inequality and violence between people, on two major
grounds: 1) difference in religion; (2) difference in sexes2. This is a dangerous effect that a uniform
Page | 5
civil code aims to neutralise as a priority in the first instance.

The primary question that needs to be answered in this debate, is whether a personal law should be
based on specific religions or not. This debate tends back to the time of the beginning of nationalist
and feminist ideologies in the early 1940s and 1950s. Since this fraught beginning, the concept of
a gender equality has not yet been included into the free will of the law. Moreover, this debate
continues to be a controversial one, because of the interpretation of the basic idea of a uniform civil
code. Therefore, after drawing the boundaries at the outset, of what an introduction of a uniform
civil code would encompass and what it would mean, it becomes necessary to analyse the
demarcations of religious boundaries in a State like India.

The demarcation of religious boundaries in a society that entails itself to be a civil one, is a process
that is not only difficult, but also complex. Law is one such field wherein there is an intersection
of state and a civil society, and inherently there are administrative, political and ideological linkages
on the questions of religions and patriarchies that exist here. However, there are major differences
between the theoretical interpretation of a state and community, but these get lost in the practical
world where there are interlinking connections between the same.3 Therefore, when there is any
modification that needs to be made to reform the personal laws in existence at a particular time, or
make common laws with an agenda that is primarily feminist, then there is going to be a manifest
effect on both, the state, and the community; insofar as this discussion is concerned, the
communities being referred to, are religious communities.

Trying to encompass the relation of the state to its women, it can be broadly contended that this
relation has been patriarchal, undemocratic and class differentiated wherein, the state has
persistently defined the female population in relation to the male population. It further made
employment fit into various shelves, failed to recognise the anvils of domestic labour, and
authorised the patriarchy to govern all things, including land relations and distribution of resources,
further the rules of property in various ways unjust to women, and reproduced the final consequence
of female dependence on males. Therefore, a triangular relation can be sought between personal

2
Kumkum Sangari, Gender Lines: Personal Laws, Uniform Laws, Conversion, 27 Social Scientist 17-61 (1999).
3
Kumkum Sangari, Politics of Diversity: Religious Communities and Multiple Patriarchies, 30 Economic and
Political Weekly (1995).
laws, ‘representatives’ of a community, and the state.4 Not only did the government accept religio-
political leaders as the sole spokesmen for the entire 'community' but the state has been party to the
construction of the shariat as immutable. This acted as a major dilution in the clear demarcations
of state, religion and community, deeming them all affected when there was a minor change in one
Page | 6
of the fields. The situation only worsened when the State was called upon to perform the function
of protecting the religious sentiments of the people. There were two major ways in which the state
was called upon to deal with the same. One was religious segregation, that were proposed by the
various minorities in their attempt to protect their individual community benefits. The second, and
more persistently called out method was the uniform civil code, that was proposed by the Hindu
majority in the country. The reason for this proposition of the Hindu Majority, has an end goal if
self-protectionism, which basically means that the Hindu community in order to protect its own
ideals and religion, proposed this mechanism. This was further proved in a 1995 judgement on
bigamy. The Hindu right's demand for a uniform civil code in the past decade, as for instance
following on a bigamy/conversion judgement in 19955, can also be seen as an attempt to
discontinue personal laws so that Hindus cannot convert and thereby gain access to Muslim
personal law. Its primary target is not bigamy as a patriarchal practice prevalent among Hindus,
but Hindu men gaining legal access to multiple marriage through conversion. In other words, the
Hindu right objects to Hindus choosing to become Muslims; it wants to save itself from ideological
embarrassment; and it wishes to equalize male privileges. Hindu opposition to Muslim personal
law has most frequently been made (in the past as well as now by the Hindu right) on a competitive
patriarchal ground of equivalence of male 'rights'- either the state should encroach on the patriarchal
privileges or 'religious rights' of all men or on none- and is suffused with male jealousy. This
argument was proved by the judgement in the very saame case, where the judge chose to state:

“...till the time we achieve the goal -- Uniform Civil Code for all the citizens
of India -- there is an open inducement to a Hindu husband, who wants to enter into a second
marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law
for Hindus and the Muslim law permits as many as four wives in India, an errant Hindu embraces
Islam to circumvent the provisions of Hindu law and to escape from penal consequence”.

Therefore, it has been sufficiently established the biases that exist in the formation of a uniform
civil code, but the necessity of one given the status of women being escalated significantly under
one, if it were enacted.

4
Archana Parashar, Women and family law reform in India (1992).

5
Smt. Sarla Mudgal, President, ... vs Union of India & Ors, 1995 AIR 1531
 PROS AND CONS OF A UNIFORM CIVIL CODE:

The argument that presents national integrity as the rationale for a Uniform Civil Code along with
its conflation with "women's rights" is unacceptable because of its implicit homogenizing thrust.
Page | 7
To begin with, it is wrong to assume that while Hindus have willingly accepted reform, "other"
communities continue to cling to diverse and retrogressive anti-women laws and threaten the
integrity of the nation-state. It is misleading to claim that Hindu Personal Law was reformed: it was
merely codified6. Laws intended to overhaul marriage and inheritance were dropped from
consideration in parliament in response to pressure from conservatives in the Congress party on the
eve of the first general election. Eventually, in 1955-1956, Prime Minister Nehru did push through
four pieces of legislation: the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority
and Guardianship Act, and the Hindu Adoption and Maintenance Act. What these laws achieved
was the codification of the vast and heterogeneous practices of all communities that were neither
Muslim, Parsi, nor Christian, bringing them into conformity with what were assumed to be "Hindu"
norms, but what were, in fact, North Indian, upper-caste practices. Other practices that did not
match these norms were explicitly dismissed during the debates in parliament as being "un-Indian."
These mid-1950s laws were by no means an unqualified advance for women's rights. On the
contrary, codification put an end to the diversity of Hindu laws practiced in different regions, in
the process destroying existing and often more liberal customary provisions.

Conversely, there are features of Muslim Personal Law that are more advantageous for women than
Hindu Personal Law: the Muslim marriage-as-contract protects women better in cases of divorce
than the Hindu marriage as sacrament; the Muslim law of inheritance protects women's rights better
than Hindu law; and the mehr (bride-price) is the exclusive property of the wife. Also, Muslim men
who marry more than once are legally bound to fulfil responsibilities toward all their wives,
whereas Hindu men who contract polygamous relationships (illegal since the 1955 Hindu Marriage
Act) escape this responsibility in their second or third marriages. For instance, mehr cannot be
introduced into Hindu marriages, nor can the Hindu marriage sacrament be made into a contract,
although both of these are positive aspects of Muslim law vis-à-vis Hindu law.

Another problem with the national integrity argument is that this imagined national integrity is
constructed through the marginalization and exclusion of a multiplicity of other interests and
identities, and therefore it is not a value that feminists can espouse. At the same time, feminists
cannot accept unqualified claims of minority religious communities to their unreformed personal

6
Kumkum Sangari, Gender Lines: Personal Laws, Uniform Laws, Conversion, 27 Social Scientist 17-61 (1999)
laws in the name of cultural identity. For one thing, the cultural identity contained within personal
laws that is claimed today as "natural" and prior to all other identities is no more primordial than
the nation. Here, it is important to keep in mind the genesis of personal laws: the British colonial
government, in consultation with self-styled community leaders, simplified vastly heterogeneous
family and property arrangements within the ambit of four major religions: Hindu, Muslim, Page | 8
Christian, and Parsi. The resultant personal laws of each of these religions that are being defended
today in the name of tradition and religious freedom are, thus, colonial constructions of the late
nineteenth and early twentieth centuries. Feminists reject the notion of a religious community
exerting rights over women through their personal laws because the gender discriminatory
provisions of the personal laws are based on the same logic of exclusions that characterize the
coming-into-being of the Indian nation itself.

The women's movement in India opposes the imposition of majoritarian uniformity, while it
simultaneously supports initiatives within religious communities to bring about reforms.
Heterogeneous practices need not be inherently inegalitarian, nor does a uniform law necessarily
mean the opposite. The women's movement seeks to ensure that the rights of women do not become
a casualty of minority communities' fear that reforming their personal laws is a pretext for eroding
their identity. When a minority community is threatened with annihilation, the obvious response is
to close ranks. It is when a community is confident that it can afford to be self-critical.

A final question of women's equal rights to property- may need to be reformulated radically at this
stage of the Uniform Civil Code debate. The personal laws on succession and property represent a
point of conflict between the imperatives of the state and those of the family. On the one hand, the
modern state requires legibility in order to mobilize resources toward capitalist industrialization;
that is, it must be able to see and organize different forms of property. To this end, the institution
of individual rights to property is crucial for the state. All forms of property must become
completely alienable and transparent for the ongoing capitalist transformation of the economy. The
family, on the other hand, has its own imperatives of controlling name, descent, and passing on of
property, a project disrupted by individual property rights. In light of this tension, we must view
the state's gradual granting of property rights to women under Hindu law - the most recent
amendment in 2005 giving women rights to ancestral property- as more than a simple triumph of
feminist demands. It also represents the establishment of a bourgeois regime of property for the
Hindu community, at least in principle, which makes land completely alienable by every separate
individual owner. In the current climate of widespread resistance to land acquisition by the state,
this is a considerable achievement for the state as it always easier to pressure or tempt individual
owners, rather than communities, to sell land. Should the larger question of land rights and land
acquisition by the state be set aside while discussing individual women's rights to property? Clearly,
the feminist debate over the Uniform Civil Code has reached a new stage of complexity, and
conversations have begun afresh.

FORMATION OF A UNIFORM CODE: INHERITANCE Page | 9

LAWS, A STUDY:

After an exhaustive analysis of the pros and cons of having a Uniform Civil Code, and critically
analysing the evolution of this debate of the need of a Uniform Civil Code, and the various gender-
neutral laws it proposes, it becomes imperative to analyse the actual formation of such a law, and
analyse its working. For the benefit of this paper, it is considered that the formation of a Uniform
Civil Code in the country is completely neutral, without having any negative political motive or
agenda fixed behind the same, solely for the purposes it originally aimed to suffice, i.e. national
integration, gender neutrality, non-discrimination, and for all the other positive connotations that
are supposedly attached to it in the original proposition for a Uniform Civil Code under Article 44
of the Indian Constitution. An interesting model that would need to be discussed is that of having
a uniform set of inheritance laws. A uniform set of inheritance laws cutting across all biases means
that there would be laws that are the same across all religions, castes, creeds, and most importantly,
sexes. This would mean a striking down of all those laws, that put a man on a higher pedestal than
a woman, or vice versa.

However, in order to understand what a perfect picture of neutral inheritance laws would
encapsulate, one must be aware of the various inheritance laws that are in existence under the vast
number of personal laws. An analysis of the same is the next section of this paper.

MUSLIM LAWS:

The first set of inheritance that would be analysed fall under the Islamic Personal Laws in existence
in India under various laws, customs, and sects of Muslims. At this instance, let it be noted that the
Islamic Personal Laws governing Muslims in India are majorly in accordance with the laws
specified for the Sunni sect of Muslims. However, for a situation wherein there would be a uniform
civil code, all the laws need to be considered before making a contention as to which one would be
the most advantageous one, in support of the basic tenets of democracy and equality.

Laws of inheritance under Muslim law are derived from the customs and usages prevalent among
the tribes of Arabia before the revelations of Quran, as supplemented and modified further by the
Quranic principles and the Hadis of the Prophet. Contrary to popular belief, Quranic revelations
were not the starting point of Muslim law. It was in existence even prior to that, but it was
systematised, concretised and modified by the revelations and the traditions of the Prophet. The
Indian Muslims are governed by the un-codified Muslim Law of Inheritance. The Muslim Personal
Law (Shariat) Application Act, 1937 expressly directs courts in India to apply the Muslim law of
Page | 10
inheritance to all Muslims. This Statue had the effect of abrogating all customs relating to personal
law and inheritance, which were at variance with the Quranic law. This was required since, most
of the converts to Islam in India, continued to follow their customary law of inheritance even after
conversion. However, the Muslim law of inheritance in succession is not applied to the property of
a Muslim, if he gets married to a Muslim or a non-Muslim under the Special Marriage Act, 1954,
in such cases succession to the property of the parties to the marriage and also to the issue of such
marriage would be governed by the general provisions of inheritance available under the Indian
Succession Act, 1925 and not in accordance with the provisions of the Muslim law. Under the
customary laws of Arabia male agnates were given paramount importance and the nearest male
agnate’s successes to the entire estate. With respect to other agnates, descendants were preferred to
ascendants, which in turn were preferred to collaterals. Females and cognates were excluded from
inheritance. With the revelation of the Holy Quran, the basic principle of comradeship in arms was
substituted for blood ties.7

Under Sunni Law, the heirs are divided into three basic categories: sharers, residuaries and distant
kindred. These groups of people are primarily blood relatives except the surviving spouse of the
deceased. Furthermore, five primary heirs exist, namely, surviving spouse, son, daughter, mother/
father, who if alive, cannot be excluded from gaining their respective shares in the property. The
primary heirs are the sharers, who gain a fixed amount of property from the estate of the deceased,
and of anything is left over, it passes on to the residuaries and then to the kindred. Where the
surviving spouse is the widower or the husband of the deceased woman, he takes one-fourth of her
property in presence of a child or the child of a son, and in their absence, it is half of the total
property. In case a man dies, his widow takes one-fourth of his property in absence of a child or
child of a son, and in their absence, it is one-eighth, share. Where more than one widow is present
all of them collectively will take one-fourth or one-eighth as the case may be and will divide it
equally among them. A daughter inherits as a sharer only in absence of a son. An only daughter
takes one-half share in the property, and if there are two or more daughters they would together
take two third of the property. In the absence of the son she does not inherit as a sharer but becomes
a residuary along with him and takes a share equal to half of his share. Mother’s share is fixed one-
sixth in presence of a child or child of a son or when there are two or more brothers and sisters or

7
Dinshah Fardunji Mulla, M Hidayatullah & Munir Ahmed Khan, Mulla's principles of Mahommedan law (2008).
even one brother and one sister, irrespective of whether they were related to the deceased by full
blood, consanguine or uterine relationship and her share is enhanced to one-third in the absence of
child or child of a son or where only one brother or sister may or may not be present.

Shias divide the entire group of heirs into sharers and residuaries. There is no corresponding Page | 11
category to distant kindred under Shia law. There are nine sharers three of them are males and six
are females. Under Shia law a daughter in the absence of a son inherits as a sharer. If there is only
one daughter or only one descendant of such daughter, she will take half of the property and if there
are more than two daughters or their descendants they take two-third of the property. With the son,
a daughter inherits as a residuary and takes a share that is equal to half of his share. The son inherits
as residuary. Though women are awarded a share, their entitlement is half that of the male heirs in
the same category. For example, the daughter’s share is half that of son’s share. This principle is
more along the basis of the tenets of equity rather than equality. A Muslim man therefore, cannot
deprive his wife or daughter of their rightful share either by forming a Hindu undivided family or
through a Will which will deprive women if their share in property. This is viewed as a positive
feature unique to Muslim law.

CHRISTIAN AND JEWISH LAWS:

In the matters of succession, the Christians and Jews initially being the subjects of British India
were governed either by the provisions Indian Succession Act of 1865 or their own customary laws.
The Indian Succession Act was re-enacted in 1925. It applies to all communities except Hindu,
Buddhists, Jains, Sikhs and Muslims. However, for Parsi’s separate scheme of succession is given
under the Act. A mother is not allowed to inherit property along with the father of the intestate, but
the mother can inherit property along with the brothers and sisters. However, it grants equal status
to daughters and sons in the inheritance of property, and is therefore a pretty progressive piece of
legislation. However, a majority of the people following these religions are people who converted
form other religions, and therefore, a lot of people continued to follow pre-conversion succession
laws as a part of their families. A huge confusion ensued in the colonial era courts in India with
regards to the legislation that these people would have to follow. Before the enactment of the first
Indian Succession Act 1865, the case of Abraham v Abraham8, held that a joint family property in
accordance with the principles of Hindu Laws would in fact remain a joint family property post the
enactment of the law. Then, after the enactment of the Indian Succession Act 1865, the Privy
Council, in the case of Tellis v Saldanha9 held that, post the enactment of the law, all Christian

8
Abraham v Abraham, (1863) 9 MIA 195
9
Tellis v Saldanha, (1886) ILR 10 Mad 69
Converts would be held liable under the law. However, the controversy arose again when in the
case of Francis Ghosal v. Gabri Ghosal10, the court held that Christian Converts were in fact
governed by the law of Hindu coparcenary.

The law of Cochin and Travancore was particularly discriminatory against the daughters. Under Page | 12
the Travancore Christian Succession Act, 1910, the right of daughters was limited to one-fourth of
the share of the son or Rs. 5000/-, whichever was less. Similarly, under the Cochin Christian
Succession Act, 192211, the share of daughters was one third of the son or Rs. 5000/-, whichever
was less. Property in excess to this would be inherited by sons and if there were no sons, then the
nearest male relatives. In 1957, the Cochin and Travancore High Court affirmed that Christians in
the region are not governed by the India Succession Act and the discriminatory statutes enacted by
the princely states apply to them. In 1974, a single judge of the Madras High court in Solomon v.
Muttiah,12adopted a progressive stand and ruled that the Travancore Succession Act stood repealed
after the Independence and Christians in the region are not governed by this discriminatory statute,
but by the Indian Succession Act, 1925, which was later overruled by Madras High Court in D.
Chelliah Nadar v. Lalitha Bai,13 which reaffirmed that Christians in Tamil Nadu are governed
neither by the Progressive provisions of Indian Succession Act nor by the Hindu Succession Act,
but by the un-codified Hindu customary law and under this law, the son was the sole heir to the
father’s property to the exclusion of the daughter.

CONCLUSION:
Therefore, a good mechanism to introduce a uniform code for inheritance laws would be as follows:
The Indian Succession Act should incorporate restrictions on the right of testation, similar to that
prevailing under Muslim Law. Further, Legislative measures to bring Christian women of Kerala
under the Indian Succession Act should be taken with immediate effect. Moreover, on divorce or
separation, the wife should be entitled for at least one-third of the assets acquired at the time of and
during the marriage. Lastly, mother should be treated as a co-heir along with the father. As seen in
this model, the uniform code does not encroach into any religion’s sentiments. What is does, is
borrow from every religion, its positives, and creates a situation where there exists a solidified
mitigation of all forms of discrimination, including gender bias.

10
Francis Ghosal v. Gabri Ghosal, (1907) 31 Bom. 25, High Court of Bombay
11
THE CHRISTIAN SUCCESSION ACT, 1097 (COCHIN), (1921).
12
Solomon v. Muttiah, (1974) 1 MLJ 53,
13
in D. Chelliah Nadar v. Lalitha Bai, AIR 1978 Mad 66,