Secularism v. It's Indian approach
- Lawschole
- Jul 21, 2020
- 6 min read
AUTHOR-ASHUTOSH GUPTA, ICFAI LAW SCHOOL, HYDERABAD.
Need of uniformity in the personal laws governed by the religious communities subjecting to Succession and inheritance
Why India should adopt uniformity in matters ruled by the personal laws of the religious communities!!!
Abstract
By the above text you might have already understood that what are we gonna discuss today to elaborate,this research is carried out to provide an insight about the need of the hour for strict implementation of uniform civil code in India.Until now religion was the sole factor obstructing the government for implementing it even after its presence in the directive principles of state policy.Secularism is the non-interference of the state in the religious matters of its people which in India has a different meaning as the state not only interferes in the religious matters but also made some laws keeping in view the religious and customary practices of different communities.But after the Shah Bano and the Ayodhya verdict the supreme court made if clear to the world that India is ready for a good change.
Key words: Secularism, Uniform civil code, Succession, Inheritance, intestatory
Introduction
Uniform civil code as been provided under article-44 of the Indian constitution confers the power upon the Government to set common rules and regulations governing the citizens;irrespective of their caste,creed,culture or religious beliefs and practices;concerning marriage,divorce,maintenance,custody,adoption and also succession,inheritance etc.It not only inculcate a true value of common brotherhood but also smoothens the administration governing the above said subjects.[1]
Succession can be defined as the right of one person to inherit the property of now one deceased as being related either by way of blood relation or genetic connection to the deceased.Succession is based upon either testament or the personal religious laws of the land.[2]
Different Laws for Different religions
The laws of the Hindu Succession Act, 1956 applies only to Hindus, Sikhs, Jains and Buddhists for the non-testamentary or intestate succession and inheritance. Whereas, sections 50 to 56 of the Indian Succession Act, 1925 merely looks after the intestamentary Succession of the Parsis.And when specially speaking about the succession policies applicable to Christians and Jews sections 31-49 of the Indian succession Act,1925 comes into motion.Muslim Personal Law (Shariat) Application Act, 1937 governs Muslims for non-testamentary succession,which are in addition to further divided for varied sects and subsects. For instance, rules applicable to Sunnis differ from those applicable to Shias, and even among Shias, the principles applicable to Bohris may differ from those applicable to Cutchi Memons. When a Muslim dies testate the issue is looked after upon by the rules of the Indian Succession Act, 1925.Special Marriage Act, 1954 is applicable just in case of interfaith marriages done by either of the religions herein mentioned above regulating their successionary activities. [1]
Not having a Will: a big deal!!
It is worth noting that all the above mentioned provisions with regard to successions are only applicable to those assets for which the owner does not make a Will.By not having a will or an improper one the owner not only increases the problems of his family and loved ones by making them spend an extra minute or penny but also himself digs lot of hardships and sufferage for his heirs to get the right on their own predecessor's property.Wherein cases the children of the deceased are minors the court needs to hire a custodian for them to loook after their belongings. Sometimes this small looking issue can even lead to the distribution of family members and their relations creating an imbalance in the house.
legal yet undesirable...
Whenever, a person dies intestate i.e. without making a valid will, his/her assets are then distributed among his/her legal heirs with accord to the due procedure established by the personal religious laws of the land. And as being a homeage to diversified religions and communities every religion differentiates itslef from the other, in a way or so for dividing the property among the individuals.
For instance, If a Hindu male passes on intestate, his property will go to Class I beneficiaries. In the event that these don't exist, it will go to Class II beneficiaries. On the off chance that these too don't exist, it will go to Agnates, and in their nonattendance, to Cognates. In the event that these too are not there, the bequest goes to the government.And then again Muslim law perceives two sorts of beneficiaries for example Sharers and Residuaries. Sharers are qualified for a specific offer in the expired's property once after the satisfaction of the last rides of the perished. Residuaries take up the offer in the property that is left over after sharers have taken their part.When it goes to the Indian succession act it searches for the house of the individual biting the dust intestate for example the last spot of his/her citizenship.The law is likewise particularly customary when it happens upon an ill-conceived youngster who will have the habitation of his mom and not the dad to take up his offer in the property.
But sometimes this cannot be desirable and can lead to litigation and heated arguments in the family might this be the reason behind the clogging of our judicial system amounting for about total 66% of matters reported are family property related. One might be attached to a certain asset saying a Abode or a particular building and might end up fighting for it making it more important for a will to be prepared.
"Goa the only Indian state to have uniformity in its civil laws pertaining to Succession and inheritance"
Kashmir had its special status under article-370 until now but the fact that Goa is having its own uniform civil code inspired by its Portugese history as being one of the territories belonging to Portugal till 1961 even after independence makes this state even more special.This uniform civil code in Goa regulates the subjects of inheritance and successions of its residents irrespective of their personal religious laws and beliefs solely on the basis of domicile rule i.e. one being a native of Goa for a stipulated period of time or have been born there.This law is restricted only till the territorial region of Goa and only to it's residents.[1]
John Vallamattom v. Union of India [2]
It was after this case where the then Chief Justice of India expressed the utmost need of uniform civil code in our country. When Mr.John Vallamattom, a priest from Kerala, filed a writ petition seeking justice by want of declaring the section-118 of the Indian succession act,1925 to be void as the same disallows Christians to donate a part of their property for religious or charitable purpose by way of will as it imposes some unreasonable restrictions. A three judge bench consisting of the the then Chief Justice V.V.khare, Justice S.B.sinha and Justice A.R.lakshamanan strucked down the validity of this section by giving some really great reasonings.
Justice Khare while strucking down the section stated that;“Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies”.
Conclusion
By having a common law system for its administration the nation not only portrays modernization but also sets an example before the world that even after having a varied class of people as it's citizens it is capable of handling them with such ease.It increases sense of fraternity which paves the way for a brighter and better future.By heading every individual under a common name the government will also promote and develop a sense of equality among those tribes and sects of people who are lower in ratio comparitvely,it would basically denote inclusion of every individual and will to respect their culture.
References
● Hindu Succession Act,1956
● Indian Succession Act,1925
● Muslim Personal Law (Shariat) Application Act, 1937
● Special Marriage Act,1954
[1] [1]Gaur, Viraj. “Uniform Civil Code: What It Is & Why It Matters.” Quintype, 23 Nov. 2019, www.thequint.com/amp/story/explainers%2Funiform-civil-code-explained-what-it-is-and-why-it-matters. [2]“Property Inheritance & Succession Laws in India.” Legal Help NRI, 8 July 2019, http://legalhelpnri.com/inheritance-and-succession/#:~:text=Property%20Law%20in%20India%20%E2%80%93%20Inheritance,the%20death%20of%20a%20person.&text=Succession%20rules%20apply%20differently%20to%20different%20communities [2][1]https://www.google.com/url?sa=t&source=web&rct=j&url=https://en.m.wikipedia.org/wiki/Goa_civil_code&ved=2ahUKEwjVkab51bjqAhVvyjgGHQVMCboQFjAKegQIAhAB&usg=AOvVaw2bsW1ofMF7xXo5RzeAUmkh&cshid=1594040297083 [2]Writ Petition (civil) 242 of 1997) ,SC,21 July 2003 Link to full case: http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=19152
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