Common code conversations

• There is a clamour to replace diverse personal laws with a Uniform Civil Code (UCC), applicable to all Indians, irrespective of religion, gender or caste.
• Some states (for example, Uttarakhand) are already drafting one. Yet no one seems to be addressing critical questions on how such a Code would be defined.

Major areas which are talked under UCC

• The UCC discussion has focused largely on marriage, eliding the intricate issue of inheritance.
• The commonly cited issue, polygyny, is a red herring since a few Indians practise it anyway.
• The figures are: 1.3 per cent Hindus, 1.9 per cent Muslims, and 1.6 per cent others (NFHS-5, 2019-21).
• The complexity lies in divergent social and kinship rules that specify whom one can marry.

Inheritance laws present a deeper Confusion

• Laws in place for Marriage
  • Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA);
  • Muslims by the Muslim Personal Law (Shariat) Application Act, 1937;
  • Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently),
  • Tribal groups are still subject to custom.
• Major points of divergence
  • Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction.
  • Within Hindu law itself, states diverge.
    • Kerala abolished joint family property altogether in 1976, but other states retained it,
    • Matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus.
  • The right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property;
    • Sunni and Shia Muslims differ on who can get such property and with whose consent.
  • While the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically.
  • Land is treated differently from other property in some personal laws but not others.
    • The HSAA 2005, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact.

How to tackle these differences

• Encourage each religious community to pursue its own reform for gender equality.
• Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood.
• Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom.

Conclusion

• For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately.
• On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality.