The Law Commission on Wednesday initiated a fresh consultation process on uniform civil code by seeking views from stakeholders, including public and recognised religious organisations, on the politically sensitive issue. Earlier, the 21st Law Commission, whose term ended in August 2018, had examined the issue and solicited the views of all stakeholders on two occasions. Subsequently, a consultation paper on “Reforms of Family Law” was issued in 2018.
“Since more than three years have lapsed from the date of issuance of the said consultation paper, bearing in mind the relevance and importance of the subject and also the various court orders on the subject, the 22nd Law Commission of India considered it expedient to deliberate afresh over the subject,” the panel said in a ‘public notice’.
The 22nd Law Commission, which recently got a three-year extension, has accordingly begun examining issues related to UCC on a reference sent by the Ministry of Law and Justice in June 2016. “Accordingly, the 22nd Law Commission of India decided again to solicit views and ideas of the public at large and recognised religious organisations about the Uniform Civil Code,” the statement said.
Those who are interested and willing can present their views within a period of 30 days from the date of notice to the Law Commission. If need be, Commission may call upon any individual or organisation for a personal hearing or discussion, it said. In its consultation paper issued on August 31, 2018, the 21st Law Commission headed by Justice B S Chauhan (retd) had said that while the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be “dis-privileged” in the process. It said the Commission dealt with laws that are discriminatory rather than providing a uniform civil code “which is neither necessary nor desirable at this stage”.
The consultation paper said most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a robust democracy. In short, a uniform civil code means having a common law for all citizens of the country that is not based on religion. Personal laws and laws related to inheritance, adoption and succession are likely to be covered by a common code.
Let’s understand personal laws better:
Personal laws, also known as family laws, are a set of legal provisions that govern matters related to marriage, divorce, inheritance, adoption, guardianship, maintenance, and other familial issues. These laws vary based on an individual’s religious beliefs or community and are derived from religious texts, customs, and traditions.
In India, personal laws have been codified into separate legislations applicable to different religious communities. For example, Hindu personal laws are governed by the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and others. Similarly, Muslim personal laws are derived from the Quran and Hadith and are governed by the Muslim Personal Law (Shariat) Application Act. There are also separate laws for Christians, Parsis, and other religious communities.
MARRIAGE:
Hindu Marriage Act, 1955
The Hindu Marriage Act of 1955 was introduced to protect the rights of Hindu brides and grooms. It applies to individuals who identify as Hindus, including Virashaivas, Lingayats, and followers of the Brahmo, Prarthana, or Arya Samaj movements. Additionally, the act extends its application to Buddhists, Sikhs, and Jains, according to a report in Outlook.
The Hindu Marriage Act is one of the significant legislations passed as part of the Hindu Code Bills. The other acts included in this code are the Hindu Succession Act of 1956, the Hindu Minority and Guardianship Act of 1956, and the Hindu Adoptions and Maintenance Act of 1956. These acts collectively address matters related to succession, guardianship, and adoption within the Hindu community.
It’s important to note that the Hindu Marriage Act does not apply to Christians, Muslims, Parsis, or Jews, as their personal laws govern marriage and related matters within their respective religious communities.
Indian Christian Marriage Act, 1872
Regarding the Indian Christian Marriage Act of 1872, it consolidates and amends the laws pertaining to the solemnization of marriages among Christians in India.
Under the provisions of the Christian Marriage Act, specific grounds for divorce are defined. For instance, a husband can seek divorce on the grounds of adultery committed by his wife. On the other hand, the wife can seek divorce based on her conversion to another religion, as well as in cases of incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy, or bestiality, as per the Outlook report.
Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act of 1936 governs the matrimonial relations of Parsis or Parsi Zoroastrians, as defined within the Act. This legislation specifically applies to the Parsi community and is racially significant. It allows for monogamous marriages only, prohibiting polygamy.
In 2001, the law was amended to align its provisions with those of the Hindu Marriage Act. One notable amendment related to divorce, stating that an application for alimony pendent lite (temporary maintenance) or maintenance and education of minor children should be resolved within 60 days from the date of serving notice to the wife or husband, depending on the case.
Muslim Marriage in India
Regarding Muslim marriage law in India, it differs from the Hindu Marriage Act in that it is not codified. Instead, it is based on Muslim personal law derived from Islamic religious texts and traditions. Over time, the Parliament has passed various revisions and acts to address issues related to consent, age, divorce, inheritance, and other aspects within Muslim marriages.
The Dissolution of Muslim Marriage Act was enacted in 1939 to grant Muslim wives the right to seek dissolution of their marriages on grounds such as the husband’s imprisonment for seven or more years, his unknown whereabouts for four years, non-maintenance for two years, failure to fulfill marital obligations, impotency, cruelty, leprosy or venereal disease, and if the marriage occurred when the wife was under 15 years of age and was not consummated, the report says.
In addition to these acts, personal laws in India encompass other legislations such as the Indian Divorce Act of 1869, the Child Marriage Restraint Act of 1929, the Foreign Marriage Act of 1969, the Kazis Act of 1880, the Indian Succession Act of 1925, and the Anand Marriage Act of 1909. These laws address various aspects of marriage, divorce, succession, and other related matters for specific religious communities or general application.
INHERITANCE:
Hindu Succession
The Hindu Succession Act of 1956 is a significant codified law enacted by the Parliament of India to govern intestate (unwilled) property and regulate both intestate and testamentary succession under Hindu law.
Sections 5-29 of the Hindu Succession Act deal with intestate succession, which involves the distribution of property when a person dies without leaving a valid will. It covers various aspects such as the concept of women as coparceners (individuals who share equally in inherited land) under Sections 6 and 7, the order of succession for male intestate individuals (Sections 8-13), the order of succession for female intestate individuals (Sections 14-16), and other relationships and their rights (such as half-blood, full-blood, and children in the womb) under Sections 17-29, as per a report by iPleaders.
Part VI of the Indian Succession Act, 1925, specifically Section 57 onwards, recognizes the right of a Hindu to dispose of their property through a valid will (testamentary succession). Schedule III of the Indian Succession Act provides sections that are applicable to wills and codicils under Hindu law, subject to certain restrictions.
Earlier, women in Hindu law were not treated as equals to men and did not have the same rights in property and inheritance. However, significant changes were made through the amendment of 2005 to the Hindu Succession Act, which brought about a more egalitarian approach.
After the amendment, women are now treated as equals and possess the same rights as men in matters of property and inheritance. They can also become either a Karta (head of a family) or a coparcener (someone who shares equally in inherited property), which was not previously possible for them.
Inheritance in Muslims
Muslim law, also known as Sharia law, governs the legal framework for Muslims. Unlike some other legal systems, Muslim law does not recognize the concept of separate property. Instead, there is one unified property with general rules that apply to both male and female succession. If a Muslim individual dies without leaving a will, their property is distributed among the legal heirs after deducting expenses and liabilities. This property distribution is known as the Heritable Property.
The sources of Muslim law include the Quran, Ijma (consensus of Islamic scholars), Sunna (practices and traditions of Prophet Muhammad), and Qiya (analogical reasoning).
Under Muslim law, there are two schools of thought: Shia and Sunni. In Shia law, the property of the deceased person is divided per strip, which means the quantum of inheritance depends on the branch of the family and the number of people in that branch. In Sunni law, the heritable property is divided per capita, meaning each heir receives an equal share of the property.
If a Muslim individual wishes to make a will regarding their separate property, they can only will one-third of the property, and the remaining two-thirds will go to the legal heirs. To will more than one-third of the property, the consent of other legal heirs is required. If the consent is not obtained and more than one-third of the property is willed, the person who received the property will only be entitled to one-third, the report explains.
In Sunni law, inheritance is categorized into three groups: Sharers, Residuaries, and distant kindred. Sharers are directly entitled to a certain share of the property, followed by residuaries. If any property remains after the residuaries have taken their shares, it goes back to the sharers. Distant kindred receive the property only if there are no sharers or residuaries alive.
Under Shia law, the order of succession includes heirs by consanguinity and heirs by special case. The heirs are divided into groups based on their relationship to the deceased, such as parents, children, grandparents, siblings, aunts, and uncles.
The Doctrine of Aul and Radd comes into play when the total shares of the sharers exceed the heritable property. In such cases, the shares are decreased proportionately. If the share of sharers is less than the heritable property, the remaining part goes to the residuary. If there is no residuary, it passes on to distant kindred.
PTI contributed to this report
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