What The Uniform Civil Code Could Mean For Women’s Right To Property
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
WHAT THE UNIFORM CIVIL CODE COULD MEAN FOR
WOMEN’S RIGHT TO PROPERTY
Moksha Pancholi, BBA LLB. (Hons.) O.P Jindal Global University
ABSTRACT
The introduction and implementation of a Uniform Civil Code in India shall be a reformative step towards women’s property rights. At present, inheritance and succession rights are different across religious communities, frequently leading women to discrimination and disadvantages to the patriarchal mindset of customary laws. The country awaits for a standardised legal framework that stands with constitutional principles of gender equality, providing equitable rights to own, inherit, and manage property irrespective of customary laws. This paper aims to examine the implications of the Uniform Civil Code on women’s property rights, studying the historical perspective with reformative actions and evaluating them with current ground realities. The study shall also understand the gender disparities in personal laws, such as Hindu Law, Muslim Law, Christian Law and Tribal/Customary Laws.
This paper shall critically examine the probable impact that uniformity in laws shall bring, highlighting various socio-political challenges. Further, various judicial precedents are discussed, which suggests achieving a balanced approach that harmonises gender justice with social inclusivity. Keywords: Uniform Civil Code, Women’s property rights, social justice
INTRODUCTION
There has been a long debate about the “Uniform Civil Code” in India, which serves as a systematic collection of rules, conduct, and regulations. The primary goal of the “Uniform Civil Code” is to bring a uniform or the same civil law for each citizen regardless of the religion or region they belong to. However, it is both a challenge and an opportunity for India’s diversity. While discussing the “Uniform Civil Code”, the major focus area is equality, especially, for women’s rights. Women have faced discrimination when it comes to equal property rights because of systematic male dominance and discriminatory personal laws. This disparity is still present in the personal laws. The “Uniform Civil Code” is essential to remove this disparity and ensure that women receive equality of rights.
Hence, this article aims to analyze the influence of the “Uniform Civil Code” on women’s property rights. It will examine the historical aspects of women's property rights, the conflict between constitutional ideals and religious traditions, the influence of the UCC on women's rights to property, the obstacles to their implementation from a judicial perspective, and finally, the prospects for gender justice in India.
WOMEN’S RIGHT TO PROPERTY IN INDIA
1. Historical Context of UCC and Women’s Rights However, previously, all the matters regarding contracts, property, transfers, family relations and commercial transactions were governed by the own personal laws of the parties. In this system of laws, the British used to face a lot of trouble, and most of the personal laws were in contradiction to the British. Because of such constant contradictions, the Britishers unified the laws and brought in the criminal codes, i.e. the “Indian Penal Code”1 and the “Criminal Procedure Code”2. During the colonial period, there were a few attempts to frame a uniform legal framework in India; for instance, Warren Hasting’s Plan of 17723, this scheme established a separate civil court, which allowed Hindus and Muslims to enforce their own personal laws in civil matters. 1The Indian Penal Code, No. 45 of 1860 2The Code of Criminal Procedure, No. 2 of 1974
3 S. Jain, Warren Hastings Plan of 1772—Development of Adalat System, Law Column (Nov. 30,
2020), https://lawcolumn.in/warren-hastings-plan-of-1772-adalat-system/
This scheme sounds good and practical, but it ended up enforcing strict religious identities and became rigid in matters of property4. Mostly, the women did not get any rights on the ancestral or inherited property. While drafting the Indian Constitution, there were many debates on this matter. However, the members belonging to Muslim community were against the inception of the “"Uniform Civil Code"”. Finally, the “Constituent Assembly” decided to keep the “"Uniform Civil Code"” under “Article 44”, which is a part of the “Directive Principle of State Policy”. The vision of the assembly behind putting it under the “Directive Principle of State Policy” was that the country at that point in time was not ready to adopt a “"Uniform Civil Code"”, but it was directed to the Indian Government to implement them in due course of time5. 2.
Reformative actions Till then, the personal laws were uncodified; finally, the “Hindu Succession Act, 1956”,6 was codified, which deals with the inheritance laws for the Hindus. This law was brought to eradicate inequality between daughters and sons. But, still, the problem remains unchanged; the preference was given to sons over daughters. A major reform was brought with the “Hindu Succession (Amendment) Act, 2005”7. It
provided daughters with equal rights to ancestral property. This amendment doesn’t differentiate between the rights of daughters and sons, both are made coparceners in the joint family or ancestral property. This was further clarified by the Apex Court in the case of “Vineeta Sharma vs. Rakesh Sharma”8 that regardless of the fact that whether the father was alive or dead when the law came into force, the daughters possess equal rights to the ancestral property after this amendment. Discussing Muslim women's rights, women may receive half of what the brother receives, but in reality, the same is not given. In the landmark case of “Mary Roy vs. the State of Kerala”9, the Supreme Court of India said that Christian women are entitled to equal shares in their father’s property as per the “Indian Succession Act”. 4 P. Kulkarni, Uniform Civil Code, 4 J. L. & Pub.
Pol’y 66 (2017), https://ceerapub. nls. ac. in/wpcontent/uploads/2019/05/JLPP-2017Vol-4-. pdf S.
Mehta, Concept of Uniform Civil Code, Int’l J.
Advanced Legal Res. (2020), https://articles.manupatra.com/pdf/d65a48e3-b51f-4612-8c2a-489259eb65b6.pdf
6 The Hindu Succession Act, No. 30 of 1956
7 The Protection of Women from Domestic Violence Act, No. 39 of 2005
8 Vineeta Sharma v. Rakesh Sharma, AIR 2020 SC 3717, AIRONLINE 2020 SC 676
9 Mary Roy v. State of Kerala, AIR 1986 SC 1011, (1986) 1 SCR 371, (1986) 2 SCC 209, (1986) 1 SCALE 250
Time and again, there are many instances that point towards the urgent need to implement the “Uniform Civil Code” in the country to provide equal property rights for women. 3. Current reality On January 27, 2025, the “Uniform Civil Code” was fully implemented in the State of Uttarakhand, with this, it has become the first Indian state to ensure equal rights for women and promote gender equality10. Before this, Goa was the sole state to have an operational "Uniform Civil Code"; this was a legacy of Portuguese colonial rule.
GENDER DISPARITIES IN PERSONAL LAWS FOR WOMEN’S RIGHTS
In order to understand the impact and significance that the “Uniform Civil Code” shall bring to women’s rights, it is important to under the current differences in women’s property rights. Aspect Hindu Law Muslim Law Christian Law Tribal/Customary Laws Inheritance After the “Hindu Succession Act” was changed in 2005, daughters and sons were given the same rights to their ancestors' property. Daughters inherit half the share of sons under Sunni law; under Shia law, daughters inherit, but sons receive double. Equal rights of inheritance for women and men under the “Indian Succession Act, 1925”11. Varies by community; many tribal laws deny women inheritance rights, especially to land.
Widow’s Rights
A
widow is entitled to inherit an equal share of her husband’s property and children. A widow inherits
1/8th share if children exist; 1/4th share if no children.
A
widow inherits equally with children and other heirs under the Indian Succession Act. In many tribes, widows are excluded from inheriting land or property. Daughter’s Rights Daughters possess equal rights to parental property (in case of both self-acquired and ancestral) as sons. Daughters inherit but are considered “residuaries,” receiving half of the son’s share. Daughters inherit equally with sons under the Indian Succession Act. Daughters are usually excluded from inheriting any ancestral property in the patriarchal tribal systems. Matrimonial Property No automatic division of marital property; property belongs to the individual owner unless agreed otherwise. Women are entitled to Mehr (dower) as part of the marriage contract but have limited claims to marital property. Women have no specific rights to marital property; division is based on ownership.
Customary norms apply, often excluding women from claims over marital property.
Agricultural Property Daughters can inherit agricultural land in some states; other states restrict inheritance to male heirs. Agricultural property is governed by state laws, with no uniformity in women’s inheritance rights. Equal inheritance of agricultural property under the “Indian Succession Act”. Women are generally barred from inheriting agricultural land due to customary practices.
IMPACT OF UCC ON WOMEN’S PROPERTY RIGHTS
The facets such as inheritance, divorce, and marriage are to be made uniform, providing equal treatment for women. Let’s understand it with some practical examples: When the subject is related to the inheritance of property: As per the Hindu Succession Act, the daughters shall become equal co-parceners in the ancestor's property. (This is after the Amendment Act of 2005). As per the Muslim laws, the daughters shall get only half of their male sibling’s share. Now, in case the property is inherited once, the civil laws are unified, and there lies no instance of discrimination based on the gender of the parties. Both the sons and daughters shall be given an equal share in the ancestor’s property regardless of their religion.
When the property is claimed by widows and unmarried women: In many communal and customary practices, the right to inherit the deceased husband’s property is denied to women. However, if the widow is Hindu, then she shall inherit the property of the deceased husband. These practices of discrimination shall be eliminated by the "Uniform Civil Code"; the women, regardless of their community, custom or religion, shall possess the right to inherit their deceased husband’s property. The above-mentioned two situations clearly reflect the difference and impact of the “"Uniform Civil Code"” on women’s property rights. The “"Uniform Civil Code"” shall provide a stand for women against unequal property laws under various religions and customs. The following are the impacts of the "Uniform Civil Code" on women’s property rights:
● Gender-neutral inheritance laws: One of the most important improvements and impacts that the “"Uniform Civil Code"” shall create is the removal of discriminatory inheritance practices. The daughters and sons would have equal shares in the ancestor’s property, which promotes gender justice12. In the case of “C. B. Muthamma vs. Union of India (1979)”,13, the Supreme Court of India said that there was a need to uphold gender equality in every aspect of the law while dealing with gender-based discrimination in government employment schemes. The court also emphasized that systemic gender biases should be eliminated by equal inheritance rights under the "Uniform Civil Code". ● Empower women: Till today, in various parts of India, women are denied inheritance rights in the name of preserving cultural traditions.
Mostly, in the rural and tribal regions of India, women are denied the right to inherit agricultural land due to the customary laws of that area14. The "Uniform Civil Code" shall restrict such practices which are also pointed out in the case of “Maharashtra State Board of Secondary and Higher Secondary Education vs. K. S. Gandhi (1991)”15, while addressing constitutional questions, that laws must reflect the rights of equality and justice, which can be applied to reform the tribal property laws under the “Uniform Civil Code”. Additionally, the “Uniform Civil Code” shall help women in achieving greater economic position and autonomy. This empowers women by providing financial security and independence.
CHALLENGES TO UNIFORMITY
1. Conflict with secular principles
India, in its Preamble itself, makes it amply clear that India shall be a secular country, which means that it will recognize and respect religious differences for its citizens. Basically, the nation shall not have its own religion but shall allow its people to profess, practice, and 12 M. Ali, Personal Law and Gender Justice and Its Controversy: Perspective of Uniform Civil Code in India, 6 Int’l J. Pol. Sci. & Governance 255 (2024), https://doi.org/10.33545/26646021.2024.v6.i1d.332
13 C.B. Muthamma v. Union of India, AIR 1979 SC 1868, (1980) 1 SCR 668
14 M. Rai & S. Paul, Women and Uniform Civil Code in India, ResearchGate (Sept. 13,
2020), https://doi.org/10.1007/978-3-319-70060-1_71-1
15 Maharashtra State Bd. of Secondary & Higher Secondary Educ. v. K.S. Gandhi, (1991) 1 SCALE 187
propagate the religion of their own choice. These personal laws are governed on the basis of religious customs. The "Uniform Civil Code" might infringe on this right to religious freedom given under “Article 25” of the ‘Constitution of India”. Here, there is a contradiction found because, as per certain critics, it infringes on the right to freedom to profess, practice, and propagate religion, but on the other hand, some believe that it shall ensure the right to equality across all religions and among the citizens. While this matter was raised before the “Supreme Court of India” in the case of “S. R. Bommai vs. Union of India (1994)”16, the court stated that fundamental rights must not be violated; instead, a balanced approach needs to be adopted by the state while implementing the principle of the “Uniform Civil Code”.
The court emphasized that the secular nature of the “Indian Constitution” involves equal respect for each and every religion in India.
2. Customary laws in tribal regions
“Article 244” of the “Constitution of India”, read with the “Fifth” and “Sixth Schedules”, makes special provisions for protecting the traditions and customs of tribal areas. It recognizes the autonomy of tribal areas and protects its unique cultural identity. This is considered a major challenge while implementing the "Uniform Civil Code". The framing policy for the "Uniform Civil Code" maintaining tribal identities needs special attention. The same was discussed in “Madhu Kishwar vs. the State of Bihar (1996)”17, the Supreme Court observed that it is important to maintain tribal customs and gender equality at the same time.
3. Political and judicial hurdles
In the case of “Mohd. Ahmed Khan vs. Shah Bano Begum (1985)”18 the Supreme Court made “Section 125” applicable to women regardless of religion. This decision of the court was nullified by the “Muslim Women (Protection of Rights on Divorce) Act, 1986”, because of the high political pressure and religious politics.
16 S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1
17 Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864, (1996) 5 SCC 125, JT 1996 (4) 379, (1996) 3 SCALE 18 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, (1985) 3 SCR 844, (1985) 2 SCC 556, (1985) 1
SCALE 767
This case perfectly demonstrates the tug-of-war between the political and judicial struggles, political interference makes implementation of reforms difficult.
JUDICIAL PERSPECTIVE
There are various instances when the judiciary steps in to correct the discriminatory practices and provisions given in the personal laws. Many a time, the Supreme Court of India and various High Courts have pointed out the urgency to bring the “Uniform Civil Code”. In 1995, the case of “Smt. Sarla Mudgal vs. Union of India”19, the court was dealing with the issue of bigamy. Many Hindus used to change their religion and would convert to Islam only to save themselves from the punishments of bigamy. Here, the ratio decedent of the case was that the marriage under the Hindu laws cannot be dissolved except on the grounds under Section 13, and performing a second marriage would be deemed a criminal act under “Section 494” of the “Indian Penal Code”. The court emphasized the urgent requirement for the “Uniform Civil Code” in this instance. One of the historical judgments came in “Mary Roy vs.
State of Kerala (1986)”20, where the Supreme Court struck down the “Travancore Christian Succession Act” for Christian women and ensured that the daughters were given equal rights to inherit property. The verdict was welcomed by the women, who were now subject to the “Indian Succession Act of 1925”. The Supreme Court, in the case of “Madhu Kishwar vs. the State of Bihar (1996)”, refrained from striking down the customary laws and emphasized legislative intervention to achieve gender justice for tribal women. The court had faced challenges in balancing customary practices with constitutional principles. The most reformative judgement by the Supreme Court was given in “Shayara Bano vs. Union of India (2017)”21, regarding triple talaq; here, the constitutional principles of equality and justice were given priority over personal laws. After that in “Danamma Suman Surpur & Anr. vs.
Amar & Ors. (2018)”22, the Supreme Court made the “Hindu Succession (Amendment) Act, 2005”, applicable retrospectively. The daughters shall have equal rights by 19 Sarla Mudgal v. Union of India, AIR 1995 SC 1531, (1995) 3 SCC 635, JT 1995 (4) 331, (1995) 3 SCALE 286 20 Mary Roy v. State of Kerala, AIR 1986 SC 1011, (1986) 1 SCR 371, (1986) 2 SCC 209, (1986) 1 SCALE 250
21 Shayara Bano v. Union of India, AIR 2017 SC 4609, AIR 2018 SC (CIVIL) 1169.
22 Danamma @ Suman Surpur v. Amar, Civil Appeal Nos. 188-189 of 2018 (@ SLP(C) Nos. 10638-10639 of
2013)
birth in coparcenary property despite the fact that the father was deceased at the time of the amendment. These judicial decisions point out the inequalities and a need for the “Uniform Civil Code”. The court has intervened time and again to correct the differences, but these changes are not enough to ensure women’s rights to property.
CONCLUSION
“True democracy is measured by the degree of equality enjoyed by women. ” - Justice Krishna Lyer Despite the continuous efforts and progressive reforms from the judicial end, the situation for women’s rights and social status has remained unchanged. This change can only be achieved if constitutional protections and religious sentiments are well-balanced with women’s rights. It is important to deliver to the people that the "Uniform Civil Code" does not overpower women or is just for women; instead, it is to provide equal status to both men and women, removing disparities in personal legislation. The "Uniform Civil Code" is essential to bring equality to its true meaning by creating a space which does not discriminate on the basis of gender. This is also a call for society to grow out of the patriarchal mindset and political agenda.
The UCC can only be a success when political, legislative and societies become a union. A direct call to prove our “Unity in Diversity”.
Bibliography
1. The Indian Penal Code, No. 45 of 1860.
2. The Code of Criminal Procedure, No. 2 of 1974.
3. S. Jain, Warren Hastings Plan of 1772—Development of Adalat System, Law Column
(Nov. 30, 2020), https://lawcolumn.in/warren-hastings-plan-of-1772-adalat-system/.
4. P.
Kulkarni, "Uniform Civil Code", J.L.
& Pub. Pol’y (2017), https://ceerapub.nls.ac.in/wp-content/uploads/2019/05/JLPP-2017Vol-4-.pdf.
5. S. Mehta, Concept of "Uniform Civil Code", Int’l J. Advanced Legal Res.
(2020), https://articles.manupatra.com/pdf/d65a48e3-b51f-4612-8c2a- 489259eb65b6.pdf.
6. The Hindu Succession Act, No. 30 of 1956.
7. The Protection of Women from Domestic Violence Act, No. 39 of 2005.
8. Vineeta Sharma v. Rakesh Sharma, AIR 2020 SC 3717, AIRONLINE 2020 SC 676.
9. Mary Roy v. State of Kerala, AIR 1986 SC 1011, (1986) 1 SCR 371, (1986) 2 SCC 209,
(1986) 1 SCALE 250.
10. HT News Desk, "Uniform Civil Code" to Be Implemented Today in Uttarakhand: All
We Know So Far, Hindustan Times (Jan. 27, 2025), https://www.hindustantimes.com/india-news/uniform-civil-code-to-beimplemented-on-january-27-in-uttarakhand-all-we-know-so-far- 101737936531132.html.
11. The Indian Succession Act, No. 39 of 1925.
12. M. Ali, Personal Law and Gender Justice and Its Controversy: Perspective of "Uniform
Civil Code" in India, Int’l J.
Pol. Sci. & Governance (2024), https://doi.org/10.33545/26646021.2024.v6.i1d.332.
13. C.B. Muthamma v. Union of India, AIR 1979 SC 1868, (1980) 1 SCR 668.
14. M. Rai & S. Paul, Women and "Uniform Civil Code" in India, ResearchGate (Sept. 13,
2020), https://doi.org/10.1007/978-3-319-70060-1_71-1.
15. Maharashtra State Bd. of Secondary & Higher Secondary Educ. v. K.S. Gandhi, (1991)
1 SCALE 187.
16. S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1.
17. Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864, (1996) 5 SCC 125, JT 1996 (4)
379, (1996) 3 SCALE 640.
18. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, (1985) 3 SCR 844, (1985)
2 SCC 556, (1985) 1 SCALE 767.
19. Sarla Mudgal v. Union of India, AIR 1995 SC 1531, (1995) 3 SCC 635, JT 1995 (4)
331, (1995) 3 SCALE 286.
20. Mary Roy v. State of Kerala, AIR 1986 SC 1011, (1986) 1 SCR 371, (1986) 2 SCC 209,
(1986) 1 SCALE 250.
21. Shayara Bano v. Union of India, AIR 2017 SC 4609, AIR 2018 SC (CIVIL) 1169.
22. Danamma @ Suman Surpur v. Amar, Civil Appeal Nos. 188-189 of 2018 (@ SLP(C)
Nos. 10638-10639 of 2013).