On Wednesday, the Supreme Court sought the Union government’s stand on the need for a gender and religion neutral uniform law conferring succession and inheritance rights on citizens while entertaining a PIL, the fourth in the last three months on issues which together constitute the spectrum to be covered by a uniform civil code (UCC).
All four PILs have been filed by advocate Ashwini Upadhyay. With this, the SC has moved closer to adjudicating whether the time has come for the country to adopt a UCC in keeping with Article 44 of the Constitution which says, “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Three of the PILs filed by Upadhyay deal with the issues of uniform adoption laws; uniform divorce, maintenance and alimony law; and succession and inheritance rights. The fourth one seeks transfer of petitions from various high courts to the SC on the issue of uniform minimum age for marriage for all religious communities.
In its famous Shah Bano judgment in 1985, the SC had said, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.
” A decade later, in the Sarla Mudgal case, it had said, “Where more than 80% of citizens have already been brought under codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of uniform civil code for all citizens in India.” In its 2003 judgment in Vallamattom case, the SC had highlighted the desirability of achieving the goal set by Article 44 of the Constitution.
Upadhyay’s counsel, senior advocate Geeta Luthra, told a bench of Chief Justice S A Bobde and Justice A S Bopanna and Justice V Ramasubramanian that the SC could not remain a mute spectator to discrimination of women on the basis of gender and religion in getting equal succession and inheritance rights.
The denial of these basic rights even 70 years after the Constitution came into force showed the failure of successive governments to enforce the right to equality and right against discrimination guaranteed by the Constitution under the fundamental rights chapter, she argued.
The petitioner also sought to do away with the three different categories of inheritors prescribed under the Hindu Succession Act, which through the 2005 amendment allowed daughters to be coparceners. In Muslim personal law, the petitioner said, the share of a female heir was half of the male heir.
“A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, but a widow who has children or grandchildren is entitled to one-eighth of the husband’s property,” he said, demanding uniformity in inheritance rights for all women irrespective of the religious community they belonged to. The petitioner recalled that in the Jose Paulo Coutinho judgment in September 2019, the SC had regretted the failure of the government to promulgate a UCC.
“It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with Directive Principles of State Policy had hoped and expected that the state shall endeavour to secure for the citizens a uniform civil code throughout the territories of India, till date no action has been taken in this regard,” he said.
In the Coutinho case from Goa, the SC had said the small state was a shining example of practising UCC as no one could practice polygamy there, irrespective of the religion they professed. It had said,
“Though Hindu laws were codified in the year 1956, there has been no attempt to frame a uniform civil code applicable to all citizens of the country despite exhortations of the Supreme Court in the cases of Shah Bano and Sarla Mudgal.”
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