While Article 44 of the Constitution envisages an intent in having a uniform civil code applicable throughout India, the Constitution itself when it gives/gave concurrent power both to the Parliament and to the States to deal with different aspects of personal laws (Entry 5 in the Concurrent List of the Seventh Schedule of the Constitution dealing with marriage and divorce, adoption, succession, and all matters subject to personal law immediately before the commencement of the Constitution)

A Uniform Civil Code (UCC) is intended to replace personal laws and bring out one common law applicable to people of all faiths. Women, fifty per cent of the Indian population would prefer to see a gender just code related to family laws. If a UCC is at all enforced, it would be, in theory at least, able to fix the minimum legal age for marriage, abolish bigamy and resolve issues around interfaith marriages.

Prime Minister Narendra Modi, recently batting for the creation of a Uniform Civil Code (UCC), has once again opened the floodgates for the debate among different cultural and religious groups concerned on how it will impact their personal laws. This articulation by the far, Hindutva right is mired in fallacious notions of parity in ‘uniformity’ and little concerned with abolition of privilege, be it male or majoritarian.

A gender just code, if that were the aim, not “uniformity” would enable some streamlining of present laws related to marriage, divorce, adoption, inheritance, succession, and guardianship. A minimum legal age for marriage may be possible, bigamy abolished at least in law.

Adivasis across central India (Jharkand, UP and Chhattisgarh) and those from the states in India’s north-east where Schedule VI of the Constitution applies see this as an attempt to deleteriously impact their distinct cultural rights that also impact birth, marriage, custim and inheritance.

What has been less debated however is how Hindu laws still prevalent in India (inspite and despite the codification in the 1950s) will be impacted, if at all the exercise is to be non-partisan, inclusive, democratic, gender just and fair.

This article will look at this focus.

The unique legal entity, Hindu Undivided Family (HUF)

A HUF is a (legally permissible) legal entity bearing the same name as the traditional family which consists of all persons lineally descended from a common male ancestor. It consists of the karta, who is typically the eldest person or head of the family, while other family members are coparceners.  Even Jain, Buddhist, and Sikh families can have HUFs.

Income Tax Benefits and the HUF

A HUF account is very similar to an individual account. “The HUF as a tax unit is not of recent origin. This was already there in the Income Tax Act, 1922, the predecessor of the present Income Tax Act of 1961, under which also it has been continued,” said Tax and investment expert Balwant Jain.

Being a separate tax unit, it enjoys a separate tax exemption limit in addition to the various tax breaks under Sections like 80 C, 80 D, 80 DDB, 112A, etc, Jain added.

The income tax slab for HUF is the same as that for an individual, with an exemption limit of ₹2.5 lakh, in the case of the old tax regime. The HUF also qualifies for all the tax benefits under relevant sections of the Income Tax Act and enjoys exemptions with respect to capital gains. However, in the case of the new income tax regime, the exemption limit for HUF is ₹3 lakh.

Impact on HUF after implementation of UCC

If the UCC is ultimately implemented, the legal concept (and privilege enjoyed by) of HUF will have to go. According to Balwant Jain, an expert on tax, doing away with the HUF privilege may need an amendment in the Income Tax Act if no specific provisions in the UCC on the similar line as contained in the “Kerala Joint Hindu Family System (Abolition) Act, 1975″ are included. So if this union government, by no means not non-partisan effects a new “UCC” without requisite amendments to the HUF, the financial privilege enjoyed by the majority remains!  Jain also claims that once the law comes into effect, no Hindu will be entitled to claim any interest in ancestral property due to his birth in the family.

As per Balwant Jain, not only the provisions about the rights of persons taking birth after coming into force of UCC but also provisions about the existing joint family will have to be made either under the UCC or under the Income Tax Laws. Hence, if implemented, UCC is likely to affect crores of Hindu families.

So key is the question of whether the government will do away with the concept of the Hindu Undivided Family or not.

How Personal Laws Control property inheritance in India?

The Uniform Civil Code, if truly “uniform”, intends to dissolve the personal laws practised by different religions in India and replace them with common laws.

Some of the personal laws practised in India are as follows-

Hindu Personal Law: The Hindu personal laws are based on ancient customs and scriptures. While the Hindu Marriage Act 1955 governs the aspects related to marriage, the Hindu Succession Act controls the matters related to property inheritance.

Under the Hindu Succession Act of 1956, Hindu women have been given equal inheritance rights on their parents’ property. Hindu Women have equal inheritance rights on their parent’s property. The property rights of Buddhists, Sikh and Jain communities are also governed by this law.

Coparcenary

Coparcenary refers to a concept in Hindu joint family law where certain family members, typically sons, have equal rights in the ancestral property. Abolishing coparcenary would mean changing or eliminating this legal provision, which could have various impacts on Hindus, particularly those who are part of joint families or own ancestral property.

Some potential impacts that could arise from abolishing the concept/entity of Coparcenary:

Inheritance and Property Rights: Coparcenary rights provide equal inheritance rights to all male descendants of a family. Abolishing coparcenary might lead to changes in how ancestral property is inherited. This could impact the distribution of assets within families and might have social and financial implications.

Gender Equality: Historically, coparcenary rights have been limited to male descendants. Abolishing coparcenary could potentially lead to a more gender-friendly (neutral) approach to property rights and inheritance, ensuring equal rights for daughters and other female family members.

Family Dynamics: Joint family structures and property ownership patterns could undergo changes. Without coparcenary, there might be shifts in decision-making processes within families and potential fragmentation of property ownership.

Legal and Financial Planning: Individuals and families might need to reconsider their estate planning and financial strategies in the absence of coparcenary rights. This could involve creating new legal documents, wills, and trusts to manage property distribution.

Litigation and Disputes: Changes in property rights can sometimes lead to legal disputes and conflicts within families. Disagreements over property distribution might increase if coparcenary is abolished.

Social and Cultural Impact: Coparcenary is deeply rooted in Hindu family traditions and customs. Abolishing it could lead to discussions and debates about the preservation of cultural heritage versus the need for modern legal reforms.

Economic Implications: The impact on the economy could be indirect but significant. Changes in property ownership and inheritance could influence investment patterns, property markets, and wealth distribution.

It’s important to recognize that any changes to legal provisions like coparcenary would likely involve careful consideration by lawmakers, legal experts, and stakeholders, taking into account social, cultural, and economic factors. The specific impacts would depend on the details of the legal changes, the societal context, and the manner in which they are implemented.

A gender just UCC

In the wake of the Law Commission of India’s call for views on the Uniform Civil Code (UCC) from the public at large, advocacy in favour of the UCC has centred on three distinct premises:

1. a) A critique/bashing of Muslim family law, and by extension, the Muslim community as regressive, conservative, orthodox, patriarchal and resistant to change;
2. b) A projection of Hindu family law as progressive, inclusive, and gender-just, which must be emulated and extended to all communities in India; and
3. c) The UCC as an imperative for national integration and women’s equal rights in family law.

The Law Commission, in its Consultation Paper of 2018, had debunked all three premises.

In fact, the 2018 Law Commission Reeport, highlighted some positive aspects of Muslim law such as the concept of Mehr and a one-third limit for willing away property, which ensures that some property is available to the legal heirs, including daughters and other women, by succession.

The 18^th Law Commission also elaborately discussed the discriminatory aspects that continue to irk Hindu family law, and even called for the abolition of Hindu Undivided Family and the Hindu coparcenary with its right by birth in ancestral property.

The Law Commission categorically stated that secularism cannot be contradictory to pluralism and that national integration cannot be advanced through the UCC when “cultural difference informs people’s identity, and its preservation guarantees the territorial integrity of the nation.”

It prioritised gender equality within each religious community, rather than between communities, as discrimination, not difference, lies at the roots of inequality.

Given the constitutional protection and autonomy given to tribal communities in Sixth Schedule states, it also found it necessary to preserve their distinct family law systems and introduce gender-just reforms from within rather than from above.

Keeping key principles such as equality, non-discrimination, personal autonomy and agency, inclusivity, fairness and secularism at the centrality of a potential UCC, here are some aspects that a gender-just UCC could ensure.

Gender inclusivity and diversity in marriage

All family laws speak in gender binaries – man, woman, husband, wife, bridegroom, bride and so on.

Those who identify themselves beyond these binaries, within the spectrum of trans and queer identities, are excluded from the pale of current family laws. They are deprived of a legal recognition of marriage and protection of their matrimonial rights, should they choose to be governed by such laws.

In a landmark judgment in 2019, the Madurai bench of the Madras high court directed the marriage registrar to register a marriage between a cis man and a transwoman, concluding that the term ‘bride’ in the Hindu Marriage Act connotes not only cis women but also trans women. Judgments such as in the Naz Foundation and Navtej Singh Johar cases have foregrounded the importance of self-determination of gender identity.

The bundle of petitions asking for same sex marriages to be recognised in family laws of India have had their final hearings in the Supreme Court and are awaiting judgment.

In May this year, the Supreme Court of Nepal directed the government to register same sex marriages. India could take inspiration from its neighbour.

Broader definition of family

According to family laws in India, a ‘family’ consists of a couple and their minor or dependent children, towards whom they have responsibilities. In cases of a married woman, her husband’s parents are recognised as her family.

However, a heteronormative, monogamous family is a colonial concept that is highly incongruent with the varied forms of family and kinship that have traditionally and are currently in existence in India. These include maitri karaar in Gujarat, nata in Rajasthan, sambandham in Kerala, kareva or chaddar andazi in Haryana, dhuku in Jharkhand, Hijra gharanas, live-in relationships, chosen families and polyamory.

Thus ‘family’ needs to be broadened in tandem with ground realities.

Age of marriage

The statutory age of marriage maybe set at 18 (on par with the age criteria for voting, and the recognised age of majority). The moot point is the consequence of violation of the age criteria. Given that a few years ago, it was reported that 84% of 12 million married children under 10 are Hindus, if all underaged marriages are declared void or legally invalid, such a move will have adverse consequences for all children and their rights within such marriages, particularly from the Hindu community.

Conversely, the concept of ‘option of puberty’ – originating from Muslim law and now incorporated in other laws – provides agency to the underaged party to the marriage to refuse to accept the marriage upon becoming a major.

Agency in marriage and live-in relationships

Inter-religious, inter-caste, inter-class and same sex relationships are –among some– frowned upon and disapproved by the natal family; in many instances, there is collusion between the family, community leaders and vigilante groups, leading to “honour” crimes.

The law must recognise the agency and decisional autonomy of parties to marriage who have attained majority, without the need for any parental permission. The judiciary, through judgments in the cases of Arumugam Servai, Lata Singh, Shafin Jahan and Shakti Vahini, has reiterated the same.

Live-in relationships have been recognised by the Protection of Women from Domestic Violence Act (PWDVA), 2005. Partners deciding to live together without the stamp of the law is a democratic exercise that state ought not to intervene with, using the ruse of Shraddha Walkar and Nikki Yadav cases.

Status of children

There ought to be no differences in rights attributed to children born within a marriage or prolonged live-in relationships (considered legitimate), children born through transient relationships (considered illegitimate), adopted and surrogate children.

Children born in inter-caste, inter-religious or inter-class marriages should suffer no discrimination, in law or in reality.

As suggested by the Law Commission in 2018, all children must be considered legitimate and entitled to inherit property from their parents.

Guardianship and adoption

Where both parents are alive, they must both be given equal status as natural guardians, unlike the Hindu Minority and Guardianship Act, 1956, that recognises the father as the natural guardian, and after him, the mother. All parties must have an equal right to adoption. The right of single persons and persons in same sex relationships to adopt a child must be recognised, in tandem with the submission of the Delhi Commission for Protection of Child Rights to the Supreme Court.  This is because parenting depends on the capacity to and quality of care, not the gender or sexual orientation of the caregiver.

Responsibilities towards parents

All children – biological, adopted and surrogate – irrespective of their gender – must have equal responsibilities towards ensuring the physical, financial and emotional well-being of parents, recognised in law.

Grounds of divorce

Fault grounds of divorce such as cruelty, desertion and adultery, as well as a divorce by mutual consent ought to be equally available to all parties to the marriage.

In May 2023, the Supreme Court stated that it had the discretion to terminate a marriage that had broken down irretrievably, under Article 142(1) of the Indian constitution to do ‘complete justice’ to the parties. However, such a ground must be invoked with caution, after the issue of matrimonial property is settled and the wife’s economic interests secured.

Maintenance and alimony

Even though women must be encouraged to remain financially independent during the subsistence of marriage and upon its divorce, maintenance and alimony must be provided to the financially vulnerable party to the marriage or its dissolution.

Women’s unpaid housework and care work should be attributed a financial value and must be incorporated into the ascertainment of quantum of maintenance and alimony.

Abolition of restitution of conjugal rights (RCR)

The RCR is a matrimonial remedy that compels parties to marriage to live together, in recognition of the aggrieved party’s conjugal rights. This remedy, of colonial origin, was incorporated into Hindu Marriage Act and found its way into family laws governing varied communities, though it was abolished in England in 1970. Though superficially, it applies equally to the parties to marriage, it has disproportionate and adverse consequences for women who may be at the receiving end of violence, raped and unwanted pregnancies.

As stated by Andhra Pradesh high court in T.Sareetha, the woman is stripped of bodily control and autonomy through a court order of RCR. A petition challenging the constitutional validity of this remedy remains pending before the Supreme Court, but the government, in its wisdom, ought to exclude this provision in any proposed UCC, as it is inconsistent with the constitutionally guaranteed fundamental right to life with dignity.

Recognition of concept of matrimonial property

Upon the divorce or death of a party to marriage, an equitable distribution of assets acquired by parties during the subsistence of the marriage, is of prime importance. Such property maybe in the name of the earning party to the marriage, but the theory of social reproduction tells us that the contribution of non-earning party to the home facilitates such an acquisition.

No family law squarely addresses this issue, except in Goa, where too, the rights on paper are at variance with lived experiences of women. If the government is committed to gender equality within the family, it must make provisions for a matrimonial property regime.

Transfer of property by a will

In many northern and western societies, daughters are routinely compelled to sign away their ancestral property rights in favour of their brothers, through relinquishment deeds (referred to as ‘haq tyaag’ in Punjab, Haryana and Rajasthan). Such patriarchal social norms neutralise and defeat legal provisions of equal property rights to daughters.

Taking a leaf from Muslim law, which prescribes that not more than one-third of the property can be willed away, the Law Commission, in 2018, recommended that all family laws prescribe a portion that must be kept aside for dependants of the deceased person, and that the entire property cannot be willed away. The Commission also noted that persons with disabilities, especially women, are denied right to inheritance directly (excluded from wills) or indirectly (not given their share of property), which must be countered by law.

Distribution of property when there is no will

The scheme of intestate succession (when a person owns property and dies without making a valid will) is vastly different under each family law. As suggested by the LCI in 2018, based on the rule of proximity (nearness) in relation to the deceased, the scheme could be classified as follows:

Class 1 – spouse, children, children of pre-deceased children and parents of the deceased.

Class 2 – siblings, children of siblings (if the sibling is not alive) and grandparents.

Class 3 – other relatives.

All surviving Class 1 heirs would take the property entirely among them with one share each; the property would devolve on Class 2 heirs only if no Class 1 heir exists. And on Class 3 if no Class 2 heirs are alive.  This scheme should be gender neutral, and treat biological, adopted and surrogate children on par, and make no distinction between legitimate and illegitimate children.

The above list is not exhaustive, but indicative.

If we are to believe that the government has finally woken up from its slumber (just in time for the 2024 general elections), and is now determined to enact a UCC, we are in a position to decide on supporting it only when we know its contents.

While it is not easy to believe in the bona fides of a government that ignored the Law Commission’s call for gender-just reforms in family laws for five long years (2018-2023), a wish list of what a gender-just UCC could consist of has the potential to concretise and ground the discussions on UCC.

We have the responsibility to analyse the Uttarakhand UCC Bill that has just been announced (on June 30, 2023), and determine what course corrections are required for a national one, if at all.

Hindu Code Bill

Secularism, in the Nehruvian context, does not mean the separation of religion from the state but rather benevolent neutrality towards all religions, which are treated equably. However, this universalist position exists alongside effort to reduce the ascendancy of religion in society. The1950 Constitution strongly influenced by Nehru, did not recognise religious communities but only individuals, to whom it guaranteed in Article 25 ‘freedom of conscience and the right freely to profess, practice and propagate religion’. This ideal concept of religion as a private matter implied a reduction in its sphere of influence through the impact of state in its capacity as the agent of ‘modernisation’. Nehru’s principal achievement in this voluntarist perspective was undoubtedly the Hindu Code Bill.

The Hindu Code Bill was intended to provide a Civil Code in place of the body of Hindu personal law, which had been amended to only a limited extent by the British authorities. The bill was presented to the Constituent Assembly on April 9, 1948 but it caused a great deal of controversy and was subsequently broken down to three more specialised bills which came before the Lok Sabha in its 1952-7 term. The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter caste marriages and divorce procedures; the Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which till then had been little practised (or accepted); the Hindu Succession Bill placed daughters on the same footing as widows and sons where the inheritance of family property was concerned.

These bills aroused strong opposition from the Hindu nationalists. In Parliament N.C. Chatterjee, the Hindu Mahasabha leader, and S.P. Mookerjee protested vehemently against what they took to be a threat to file stability and integrity of traditional forms of marriage and the family in Hindu society. However, one of the most vehement critics of the government’s proposals was Swami Karpatriji, a sanyasi who belonged to the Dandis, one of the orders founded by Shankara. He had won respect for his knowledge of Sanskrit texts, his asceticism (he had spent long periods in solitude in the Himalayas) and for his skill as an orator. It was a measure of his authority that he had been involved in the selection of the four major Shankarachryas. In 1940 he had founded the Dharma Sangh (Association of Dharma), a cultural association for the defence of traditional Hinduism. In 1941 he founded a daily paper Sanmarg. After 1948 he turned towards politics and established the Ram Rajya Parishad (Council of the Kingdom of Ram) to serve as a political party. This body organised numerous demonstrations against the Hindu Code Bill; 15,000 people, including personalities such as the Princess of Dewas Senior (a former princely state in Central India), attended a week- long conference in Delhi at the beginning of 1949.

Hindu nationalists, for their part, were particularly exasperated that the civil law reform concerned only Hindus, whereas the Constitution enjoined (in article 44 of the Directive Principles) the State to give India a uniform Civil Code: hence Mookerjee’s declaration that the “government did not dare to touch the Muslim community.” Nehru’s secularism suffered here from a certain ambiguity or at least a lacuna, doubtless due to his concern to reassure the Muslims who had chosen to remain in India. He was prepared to condone the right of civil courts to apply Muslim personal law in cases affecting Muslims.

In his view, the majority community had duties towards the minorities. As S. Gopal points out: “He urged incessantly the importance of generous treatment of the minorities so that they would feel that they were Indians, and be completely at home.’ Such an attitude could be denounced as an anti-Hindu bias while the RSS later described it as ‘pseudo-secularism’. In the early 1950s, however, the campaigns undertaken in this direction succeeded in having the Hindu Code Bill amended and the parliamentary vote delayed but failed to mobilise widespread support or even win that of the traditionalists in Congress. Rajendra Prasad, who was elected President of the Republic in 1950, was distressed by a project whose ‘new concepts and new ideas…. are not only foreign to Hindu Law but may cause disruption in every family’. He argued that the proposal for reform should first be included in the party’s election manifesto and placed before the voters before any discussion in Parliament.

Nehru had to make many concessions to the bill’s critics, including Rajendra Prasad. Although the bills which were adopted by the new Parliament in the mid-1950s were thus less far-reaching in scope than Nehru had originally intended, they were a solid testimony to his ability to impose his views on others and to defy the Hindu traditionalists.

Reforms in enactments of Hindu Law

1. Hindu Marriage Act, 1955

The aforementioned enactment itself is proof of evolution in the orthodoxy of Indian society. Marriage is considered a ‘Sanskara’ by Hindus and it cannot dissolve. The dissolution of marriage was considered an initiative against the custom.

But, section 13 in the act brought everlasting reforms and combated a persisting inequality. In 2010, the legislature attempted to bring several other changes by including sections 13C(1), 13D, and 13E in the act to make it more gender neutral and circumvent the way of patriarchy.

The bill was passed in the upper house but lapsed in the Lok Sabha. Moreover, divorce with mutual consent enshrined in section 13B of the act is an epitome of the evolution in the law.

2. The Hindu Adoption and Maintenance Act, 1956

The Personal Laws (Amendment) Act of 2010 eradicated gender bias and made a neutral provision by substituting section 8 and amending section 9 of the existing act. Subsequently, the amendment of 2010 made the concept of giving a child in adoption equivalent for both males and females.

3. The Hindu Succession Act, 1956

Hindu Succession Act of 1956 contains provisions for inheritance and succession in the coparcenary property and the self-acquired property.

Section 23 of the act contained a special provision regarding the dwelling house. The said provision disentitled a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. And, she did not possess a share in the coparcenary property. The section was repealed by the Hindu Succession (Amendment) Act, 2005.

The aftermath of the amendment was still a bone of contention as various courts interpreted the amendment’s applicability in diverted directions. Few courts considered that the act does not have a retrospective nature and hence it will only be applicable to daughters born after 2005 or whose fathers are dying by leaving a property after 2005. In Prakash vs. Phulwati  (2 SCC 38 2016), the apex court declared that the amendment of 2005 is not retrospective in nature. And, the same interpretation was reiterated in Danamma vs Amar in 2018  (3 SCC 343 2018).

Nonetheless, the apex court considered a matter of the same issue in Arunanchala Gounder (Dead) vs. Ponnuswamy and declared that the amendment of 2005 has retrospective effect. And, the Court also re-interpreted the intent of the legislature by stating that self-acquired property of males subject to Hindu religion dying intestate would devolve by inheritance instead of succession.

Moreover, reforms in daughter’s equal coparcenary right as a male heir in joint Hindu family property were brought in the case of Vineeta Sharma vs. Rakesh Sharma (4), at least judicially.

(The article has been researched by Rishi Singh an intern with the organisation)

[1] https://thewire.in/law/what-a-gender-just-uniform-civil-code-could-look-like

https://www.livemint.com/money/personal-finance/income-tax-how-uniform-civil-code-ucc-in-india-will-impact-huf-hindu-undivided-families-tax-outgo-11688106451209.html

https://www.magicbricks.com/blog/uniform-civil-code/132416.html

https://www.outlookindia.com/website/story/nehru-and-the-hindu-code-bill/221000

https://adjuvalegal.com/indian-laws/equality-reforms-in-hindu-personal-law/

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