Does India need Uniform Civil Code? Part-II | In view of Muslim, Christian and Parsi Personal Laws



Muslim law

The provisions of inheritance and Succession in Muslim Law are found to be founded from the Quran.[1] It is divided into Shia (disregarded the agnate system of inheritance) and Sunni system (It accepted the pre-Islamic system of agnate succession).[2] Now, there are also some provisions of the Muslim law which can be contented in the modern world and are discussed below: 

i. Proximity to the deceased in place of preference to agnates (male) heirs

In the contemporary r times, it is hard to cognise the significance of the pre-Islamic Arabian tribal system where nuclear families are getting more preference. To avoid male agnatic preference, the Muslims have started to transfer their property to their close relatives by way of gifts. However, it has some drawbacks as still after the gifting the property the heirs can claim on that property by showing the transfer was invalid. And also, it is difficult to give the gift of revenue-generating property as the transfer is irrevocable. 

Thus, it is preferable to have an heirs classification system based upon the proximity of the relationship with the deceased’s heirs. 

ii. in the absence of any Code, the following suggestions can be adopted:

a. Preference to Spouse Relict

In Tunisia, the doctrine of ‘radd’ extended to the spouse relict based on an equal footing to protect the rights of the nuclear family. Also, they provide for the exclusion of collateral for daughter and son’s daughter. 

b. Closer heirs’ Bequest

Reform has been brought up in Egypt,[3] Sudan[4] and Iraq to provide the testator with the right to do a complete bequest towards his heirs, especially for the Sunni schools (within the 1/3rd parameter). Such provision makes it possible for a man to bequeath 1/3 of his property favouring his wife, daughter or any member of his nuclear family. 

c. Rights to representation to the orphaned grandchildren

The principle of nearer in degree leads to the exclusion of the orphaned grandchildren dependent upon their grandchildren. In these situations, the right of representation gives the grandchildren the power to step into the shoes of the deceased parents. Egypt, Tunisia and Pakistan have already allowed the grandson and granddaughter to get the estate by following the right to representation. 

d. Childless Widow’s Rights

Under the Shia law, a childless widow cannot take share from her husband’s immovable property.[5] However, she can only claim her share over the movable property, which leads to hardship for the women, especially in rural areas, in view of the agricultural land transfer. In 2009, Iran brought up an amendment that allows the widow with the right over the immovable property. Therefore, it is suggestive that irrespective of childless or not, a widow must inherit the property of the deceased being a class I heir. 

Christian law

It is suggested that the Part V of the Indian Succession act 1925, must be amended to incorporate a mechanism of three class (as per the suggestions mentioned for the Muslim law) for the Succession of Christian. The reason behind it is to ensure that the deceased interstate’s proximal relationships are to inherit the property. Only in the absence of these relationships, the property should be devolved to distant kindred. This will also be gender-neutral, which works as a boon for the standing mechanism where the position of the widow and the deceased inter state’s mother is unfair. 

However, if the above suggestion cannot be incorporated, then the following issues are needed to be addressed: 

i. § 33

As per this section, even if just one person is there as lineal descendant apart from the widow will get only 1/3rd share while that descendant will get 2/3rd share, which is evidently unfair. Moreover, the UK has already amended its law by noting down this point of fallacy.[6] So, it is suggestive that § 33 is an amendment to laid down such provision so that widow and lineal descendant will get an equal share.[7]

ii. § 33 A

This section gives a statutory legacy to the Christian spouses in the absence of the lineal descendant to inherit the property. However, as per the standing interpretation, this section does not apply to Indian Christian as clause (b) of the §33 A (5) is an independent clause, [8] this interpretation is also in contrast with the intention of the legislature with a larger objective to achieve. So, there is a requirement of redrafting to remove the ambiguity and make this law applies to the whole Indian Christian community. 

Moreover, the mention monetary amount of statutory legacy is five thousand with the four per cent interest until payment. However, the Law Commission in its 110th report has already laid down to increase the sum to thirty-five thousand and the interest of nine per cent per annum. So, it is vital to incorporate these changes to decrease the rupee value since 1926. 


LJCS: Legal Journal for Contemporary Society

iii. § 42, 43, 44, 45 and 46

§ 42 lays down that in the absence of lineal descendant, in case the interstate’s father is alive, he gets the rights over the property, which is evidently discriminatory. So, the word father must be replaced by parent, which is also suggested by the 247 the law Commission Report on Indian Succession Act in view of the Administration of Estates Act, 1935. Moreover, the same alteration should also be brought up in the § 43 so that the surviving parent will inherit the property in case of survival of one parent of the interstate. Again, § 44 and § 45 should be altered by changing the word father with the parent. Such changes will automatically abolish § 46. 

iv. § 47 and 48

§ 47 needed to be altered by adding the phrase “but has left a sister or brother” after the phrase “nor mother” to work only in case one sister or brother survives the death of the interstate.[9]

§ 48 which lays down the distribution as per capita. However, the distribution would not transfer upon the descendants of the deceased issue's descendants, which is contrary to § 47, which have distribution as per stripes. Thus, it is vital to explain in § 48, as per the 110the and 247th Repost of the Law Commission. 

v. Property disposition by Testament (§ 59)

It is vital to restrict some portion of the property from the scope of disposition (like in case of Hindu and Muslim law) to maintain and welfare of widow of testator, minor children, elder parents. It would also lead to the judicious procedure under § 125 of the CrPC when the claim for the maintenance made without relying upon the judicial system. 


Parsi Law

In India, the § 50 to 56 of the Indian Succession act deals with Parsis’ interstate Succession. Historically, these sections are gender discriminatory per se, however, due to some recent amendments (1991) the situation has changed and now, these sections are somewhat more neutral. 

However, the standing discrimination can be understood because the law does not allow a Parsi woman to sustain her religion after marrying to a non-Parsi and the child born from their relation cannot be granted the status of Parsi. On the other hand, a Parsi man can marry a non-Parsi if they profess and admit the Zoroastrian religion. So, this part needs to be changed, and Parsi women must be allowed to retain her Parsi identity even after marrying non-Parsi. 

Moreover, in terms of testamentary disposition, Parsis’ are also governed under § 59 of the Act; so, it needs to be altered. 

Note: This series on Uniform Civil Code will continue in our subsequent posts.

References

[1] Mulla, Commentary on Mohammedan Law 784, 785 (2006). 

[2] Norman Anderson, Law Reform in the Muslim World, 147 (1976). 

[3] The Law of Testamentary Dispositions, 1946, Article 37. 

[4] Judicial Circular, 1945, No. 53. 

[5] Asaf A.A Fyzee, Outlines of Mohammedan Law, Chapter VI Guardianship, 446 (2018). 

[6] Administration of Estates Act, 1925, § 46(1) (A), (B) and (C). 

[7] B. Sivaramayya, The Indian Succession Act, 1925, 2 Social Legislation in India 89 (2011), at 496. 

[8] Arulayi v. Antonimuthu, AIR 1945 Mad 47. 

[9] Law Commission of India, Indian Succession Act, Report No. 110, (1985); Law Commission of India, Indian Succession Act, Report No. 247 (2014).

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