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Conceptual Study on Uniform Civil Code, Will, Gift and Wakf

Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. A will is made for disposition of property according to the wishes of the testator, after his death. Gift consists in the relinquishment without consideration, of one's own right of property and the creation of the right of another.

Uniform Civil Code

Uniform civil code is the point of debate in India since the formulation of the Constitution. Its main point is to replace the personal laws based on the scriptures and customs of every religious community in India with a common set of rules governing every citizen. Uniform civil code means a code or rule for individual's personal right, for every citizen of India. This code is related to a fair law which has no relation with any religion. At present, citizens are regulated by their personal laws. There are number of different personal laws for Hindus and Muslims, which cover laws related to property, marriage and divorce, inheritance and succession.

Present Status of Personal Laws in India

In the Concurrent List of Seventh Schedule of the Constitution, personal law subjects like marriage, divorce, inheritance etc. are enumerated.
Hindu personal laws have been by and large, secularized and modernized by statutory enactments, as given below:
  1. The Hindu personal laws have been codified by the Parliament in 1956. This Code Bill has been split into four different parts, which are as follows:
    1. The Hindu Marriage Act, 1955
    2. The Hindu Succession Act, 1956
    3. The Hindu Adoption and Maintenance Act, 1956
    4. The Hindu Minority and Guardianship Act, 1956
Whereas in case of Muslim, personal laws are unmodified and traditional in their content and approach.

Shariat Law of 1937 states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration based on his interpretation of the Quran and the Hadith.

Similarly, other religions like Christian, Parsi, and Jews are also governed by different personal laws.

Political Agenda of Uniform Civil Code

Uniform Civil Code got the heat in Indian politics in 1985 during the Shah Bano case, when Supreme Court held that she should get alimony from her ex-spouse. In the context of the above judgment, Supreme Court said that uniform personal laws were first framed during the British era, especially for the Hindu and Muslim community.

In the beginning of the 20th century, the demand for uniform civil code was first put forward by women activists. Their objectives were women's rights, equality and secularism. Then, after Independence in 1947, there were various reforms in law for the betterment of the condition of women in country, like Hindu Widows Act, Hindu Code Bill, 1956 etc.

The basic issue of ensuring justice and equality to women is getting trapped in many other contemporary issues like religion, secularism and freedom. In this situation, gender issues need to be taken care very seriously. It is co-related to the issue of the adoption of Uniform Civil Code throughout the Territory of India.

Discrimination Against the Women and their Personal Laws

When we analyse our society and the personal laws of women, it becomes obvious that the women have been conferred an inferior status in most of the personal matters as compared to the male members.

Hindu Female Personal Law

In the Hindu law 1955 and 1956, the Hindu women did not enjoy equal rights along with the Hindu men. In Hindu law, polygamy was allowed before 1955. In fact, Hindu female could not hold any property as its absolute Owner, except in the case of Stridhana. She had only limited estate which was passed on to the heirs of the last full male owner called reversionary on her death.

In the matter of adoption, a Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life of her husband.

These examples are only illustrative in nature and not exhaustive. Some of the Hindu laws have been discriminatory in nature. For example, a Hindu woman is not a coparcener (a person who shares equally with others in the inheritance of an undivided estate or in the rights to it) in Hindu coparceners except in a few States like Andhra Pradesh, Maharashtra, Kamataka and Tamil Nadu. As a result, she is not entitled to claim a share in the coparcenary. Similarly, she has no right to partition of a dwelling house even though she is a legal heir. So, it is common that the codification of personal law of Hindus has not succeeded completely in eradicating the gender inequality.

Muslim Women Personal Law

In the pre-Islamic Arabia, the Muslim women got the status of secondary in each and every respect as compared to Muslim men. The advent of Islam has contributed much for the improvement of Muslim women and alleviation of their problems. The Holy Koran gives equal rights to men and women. However, there are few aspects in Islam that render the position of Muslim women, especially the wives, insecure and inferior, which are as follows:

In Case of Polygamy:

A Muslim male is permitted conditionally to marry as many as four wives at a time. Polygamy is allowed in Muslim law but not compulsory.

In Case of Shia Muslim:

A Shia Muslim male can contract muta marriages for an agreed period of time. There is no ceiling on the number of muta marriages that may be contracted by a Muslim male.

In Case of Divorce:

In case of divorce matters, the position of Muslim women is worst, inferior and insecure as compared to the women of other religions and the Muslim male as well. Particularly the method of divorcing the wife by the husband by pronouncing Triple Talaq is highly discriminatory. This is in spite of the clear message of Holy Quran.

In Case of Succession:

In case of succession matters, Muslim women are discriminated against, despite the assertion of certain Muslim scholars that the Islam in this regard is more progressive and liberal. The legal position is that when two scholars or residuary of opposite sex but of the same degree, inherit the property of the deceased, the Muslim male gets twice the share of the female. For example, if brother and sister inherit the property as successors, the brother gets two shares whereas the sister gets only one share.

Maintenance Right:

In this matter, the divorced Muslim wife is not required to be maintained beyond the 'Iddat' period. The 'Criminal Procedure Code', which imposes an obligation on a husband to maintain his wife including divorced wife until she maintains herself is a secular law and is applicable to all. There is a controversy as to whether a Muslim husband can be directed to maintain his divorced wife even beyond the Iddat period under the provisions of Section 125 of Cr.PC. In the famous case of the Supreme Court speaking through Y.V. Chandrachud, the then Chief Justice held that Section 125 of Cr.PC is also applicable to the Muslims and that even a Muslim husband is also liable to maintain his divorced wife beyond Iddat period.

Because of the controversy, the Parliament has passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to overrule the judgment in Shah Bano case. The effect of this Act is that a Muslim husband is not liable to maintain his divorced wife beyond the Iddat period, unless both the spouses submit to the court, at the appropriate time, that they would like to be governed by CrPC. Similarly, among the Christians, Parsi, Jews and other religion also, women got secondary status in case of personal laws.

Constitution of India and Uniform Civil Code

The Indian Constitution has provision related to Uniform Civil Code in Part IV, Article 44 as Directive Principles of State Policy which states that the State shall endeavor to secure for the citizens, a uniform civil code throughout the Territory of India. So, it cannot be enforced by the Court as it is the prerogative of the State to introduce uniform civil code. Our Constitution framers stated that it should be applicable in whole of the country. Some of the other members predicted that a stage would come when the civil code would be uniform and stated that power given to the State to make the civil code uniform is in advance of the time.

There are some important cases related to uniform civil code:

MS Jordan Diengdeh V. S S Chopra

In this case, a single judge of the High Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of cruelty.

Sarala Mudgal V. Union of India

Supreme Court in 1995 laid down the principles against the practice of solemnizing second marriage by conversion to Islam, with first marriage not being dissolved. It is considered a landmark decision that highlighted the need for Uniform Civil Code.

Need of Uniform Civil Code

Different personal laws promote communalism and is leads to discrimination in two conditions:
  1. When people belongs to different religions.
  2. When people are of two different sexes.

Uniform civil code will provide women with the right to equality and justice in courts of law, irrespective of their religion in matters pertaining to marriage, divorce, adoption, etc. The Supreme Court, for the first time, directed the Parliament to frame a Universal Civil Code in the year 1985 in the case of Md. Ahmed Khan V. Shah Bano Begum. Also, in 2017, Supreme Court, in Shayara Bano case, had declared the practice of Triple Talaq (talaq-e-bidat) as unconstitutional.

It promotes secularism in true sense. All citizens of India should be treated same. They should have same marriage, family and land related laws. To improve the condition of women by providing more rights to them. Every progressive nation has this right.

Challenges for Uniform Civil Code

There are various constitutional challenges associated with it, like freedom of religion gets into conflict with the right to equality. For example, Article 14, 15 in conflict with Article 25, 26(b) and 29. More freedom of religion subject to public order, health and morality. Also, some socio-political challenges are involved with it. Like, in the name of uniformity, the minorities are in a fear that the culture of majority will suppress their culture. Bringing uniformity in such a huge culturally diverse country is the biggest challenge.

Merits of Uniform Civil Code

It will help in national integration. It provides protection to the vulnerable section of the society. It will remove the confusion and simplify the laws which automatically speedily the judicial system, as more laws leads to delayed justice. It will liberate women from patriarchal domination and provide them with the right to equality and liberty. The country would emerge with new force and power to face any odds, defeating the communal and the divisionism forces.

Will

A will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. In case, an individual dies intestate (when no will is made), the laws of succession comes into existence.

Will under Indian Succession Act, 1925

A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925.

Important Provisions related to will Under the Act

Person Who can Make a Will

  1. Every person, who is of sound mind and is not a minor, can make a will.
  2. A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
  3. A deaf, dumb or blind person can also make a will.
  4. No person can make a will while he is in such a state of mind, whether arising from intoxication or illness or any other reason, that he does not know what is he going to do.

Execution of a Will

  1. He shall sign or fix his mark to the will and it shall be signed by some other person in his presence.
  2. The signature should be clear and placed in such place that intended to give effect to the writing of a will.
  3. It shall be attested by two or more witnesses.

Beneficiary of a Will

Any person capable of holding property can be devisee under a will and therefore a minor, lunatic, a corporation, a Hindu deity or any other juristic person can be a devisee.

Loss of a Will

If a will is lost, it will be presumed to be revoked. If the will was seen with the testator, but could not be found after the death of testator, it will be presumed that the same has been revoked by the testator by destroying the same.

Will under Muslim Law

A Muslim is not allowed to bequeath more than a third of his property with a view to not affect the shares of those who are enjoined by the Koran to inherit the property of the deceased. The will of Muslim is governed by the Muslim law. The provisions of the testamentary succession laid down in the Succession Act, 1925 affect the Muslim wills.

Important Provisions related to Will Under Muslim Law

Person Who can Make Will

  1. Every person, who is of sound mind and of the age of majority, which is regulated by the Indian Majority Act, can make a will.
  2. Under Shia law, a will made by a person who has taken poison, or has wounded himself with a view to committing suicide, is invalid. But a will made by a person, who commits suicide, is valid.
  3. A will made by a person under coercion, undue influence or fraud is invalid. Also, the court will scrutinize the will of a pardanasheen lady very carefully before admitting it.

Subject Matter of Will

Any property immovable, corporeal or incorporeal which is capable of being transferred is the subject-matter of the bequest. The bequest may consist of the corpus. A testator may give corpus to one person and usufruct to another.

The testamentary power of a Muslim is limited to bequeath able one-third means of estate of a testator which is left after the payment of his funeral expenses, debts and other charges.

Construction of Will

A Muslim Will is to be constructed in accordance with the rules of construction of the will laid down in the Muslim law, the language used by the tester and the circumstances. Its common rule of construction is that unless a different intention appears, a will speaks from the death of the testator and the bequest, contained in it accordingly.

Revocation of Will

A testator may revoke his will or any part of it at any time, either expressly or by implication. Similarly, a testator is also free to make any additions to his will. But if the addition to the subject of the bequest is such that the subject of the bequest cannot be delivered with the addition, then the bequest stands revoked.

Gifts

In Hindu law, gifts have been an important aspect from the beginning. The subject has been dealt with by our sages under the title 'Resumption of Gifts', which is one of the 18 titles of law. Hindus make gifts of property for Ishta and Pushta which are recognised as a religious act.

As per Section 122 of Transfer of Property Act, 1882, a gift is the transfer of certain existing movable and immovable property made voluntarily without any consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee.

According to the Mitakshara, a gift is defined as Gift consists in the relinquishment without consideration, of one's own right of property and the creation of the right of another. The creation of another man's right is completed on that other's acceptance of the gift, but not otherwise.

Gift to an Unborn Person

Hindu law did not recognized gift to an unborn person. But a Union Law Hindu Disposition of Property Act, 1960 has been made applicable to the whole of India. Further, the person making the gift falling under Chapter II of Transfer of Property Act, 1882 and its provisions, must satisfy the following conditions:
  1. if a gift to an unborn person is proceeded by a prior disposition, the gift must be of the whole of the remaining interest of the transferor in the property.
  2. the gift should not offend the rule against perpetuity.
  3. if the gift to a class of persons, with regard to some of them is void as offending first two points, the gift fails in regard to those persons only and not in regard to the whole classes, and
  4. if a gift to an unborn person is void under first two points, any gift intended to take effect is also void.

Hiba (Gifts)

The gifts in India are generally governed by the Transfer of Property Act, 1882. But the provisions of gifts in the Transfer of Property Act do not apply to the Muslims. In case of Muslims, gift is called as 'Hiba' and the same is governed by respective Muslim law.

Meaning of Hiba

Hiba term has a narrow meaning. According to the Durr-ul-Mukhtar, hiba is a transfer of the right of property in substance by one person to another without any consideration in return. The Hanafi Lawyers defined hiba as an act of bounty by which a right of property is conferred in something specific without an exchange.

The Shia holds that hiba is an obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the donor part.

Muslin law recognizes certain institutions which appear to be similar to hiba, though they are clearly distinguishable from it. These are

Aariat, Sadaqa, Wakt, Hiba Bil-Iwaz And Hiba-Ba-Shart-Ul Iwaz.


Essentials of a Hiba:
  1. Fornalities of hiba
  2. Capacity to make the hiba
  3. The donee, and
  4. The subject-matter of the gift


Gifts with Certain Conditions

Contingent gifts are the gifts which are made dependent for their operation upon the occurrence of a contingency. It is a possibility, a chance, an event, which may or may not happen, Under Muslim law, conditional gifts are void.

For example, if gift is made by a person in favour of the mother for life, and in event of his death without leaving a male issue to X, the gift is contingent with respect to X. e.g. In Case of

 Jameela Begum V. Controller of Estate Duty.

Revocation of Gifts

A tradition which indicates that the Prophet was against the revocation of gifts, it is a well established rule of Muslim law that all voluntary transactions, including gifts are revocable. All gifts except those which are made by one spouse to another or to a person related to the donor within the degrees of prohibited relationship, are revocable. The Muslim law texts lay down a long list of gifts which are irrevocable. The Muslim law givers also classify gifts from the point of view of revocability, under the following two heads:
  1. Revocation of gifts before the delivery of possession and
  2. Revocation of gifts after the delivery of possession. However, in this case, the revocation can be done only by a decree of the court.

Person Who can Challenge a Gift

A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of possession has been made.

In Y.S. Chen V. Batubai case, gift was made to a person by her mother of a house and tenants were paying rent to her, the court held that the tenants had no locus standi to challenge her title on the ground that no possession of the house was given to her.

Wakf

The origin of wakfs is traced to an utterance of the Prophet. The rules relating to Wakfs were developed later on by Ijma (consensus).

Meaning and Definition of Wakf

The word wakf means detention. When a Muslim, who works for a charitable purpose under religious faith and sentiments and for the benefit and upliftment of the society, donates his property in the name of Allah, it is called Wakf.

Up to the time of Abu Hanifa, it was not clear as in whom did the ownership of the wakf property exists. Abu Hanifa defined wakf as the tying up of the substance of a property in the ownership of the wakf and the devotion of its usufruct, amounting to an aryia, or commodate loan, for some charitable purpose. It means the ownership in the wakf property continued to be vested in the owner.

There are three important elements:
  1. The usufruct of the property is used for the benefit of mankind.
  2. The property vests in the ownership of God perpetually and irrevocably.
  3. The ownership of the founder or the wakif is extinguished.

In Shia Law, according to Sharia-ul-Islam, a contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free, is known as wakf. There are two important elements:
  1. The use of the usufruct for the benefit of mankind.
  2. Tying up or immobilization of the corpus, the subject-matter of the wakf.

Objects of Wakf

There are various objects of Wakf under Muslim law, that are given below:
  1. Mosque and provisions for Imamas to conduct worship.
  2. Celebrating the birth of Ali Murtaza.
  3. Repairs of Imambaras.
  4. Maintenance of khankahs
  5. Reading the koran in public places and also at private houses.
  6. Maintenance of poor relations and dependant.
  7. Payment of money to fakirs.
  8. Grant to an Idgah
  9. Grant to the college and provisions for professors to teach in colleges.
  10. Distribution of alms to poor persons, and assistance to the poor to enable them to perform pilgrimage to Mecca.
  11. Keeping Tazias in the month of Moharram, and provisions for camels and Duldul for religious processions during Moharram.
  12. Performance of ceremonies known as Kadam Sharif.
  13. Performing the annual Fateha of the members of his family.

Purpose of Wakf

As per the Mussalman Wakf Validating Act, 1913, the purpose of the wakf must be one recognised by Muslim law as religious, pious or charitable. The Wakf Act, 1954 also uses it. Some of the purposes are given below:
  1. a wakf by user,
  2. Mushrut-ul-khidmat,
  3. A wakf for alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law.

Wakf Void if Purpose Uncertain

It is an unaccepted doctrine of the English law of trusts that a trust is void if the object of the trust is not certain. This doctrine has been applied by the Indian courts to trust, Hindu endowments and Muslim wakfs.

Some of the relevant important cases are:
  1. Md. Yusuf V. Azimuddin
  2. Hashim Ali V. Iffat Ara Hamidi
  3. Garib Da V. M.A. Hamid
  4. Abdul Karim V. Rahimat Bai


Doctrine of Cypres

This doctrine is applicable to wakf. It means 'as near as possible'. It lays down that if a charitable intention has been expressed by the dedicator, a wakf will not be allowed to fail because the objects if specified happen to fail, then the income will be for the benefit of poor or to objects as near as possible to the objects which failed.

Central Wakf Council

Central Wakf Council is a statutory body established in 1964 by the Government of India under Wakf Act, 1954, for the purpose of advising it on matters pertaining to working of the State. Wakf Boards and proper administration of the Wakf in the country.

Wakf is a permanent dedication of movable or immovable properties for religious, pious or charitable purposes as recognised by Muslim law, given by philanthropists. The grant is known as mushrut-ul-khidmat, while a person making such dedication is known as Wakif. The council is headed by a chairperson, who is the Union Minister in charge of Wakfs and there are maximum 20 other members, appointed by the Government of India as stipulated in the Wakf Act.

Functions of Wakf Boards
  1. To give directions for the administration of the wakfs.
  2. To ensure that the income and other property of wakfs are applied to the objects and for the purpose for which wakfs are created.
  3. To scrutinize and approve the budget for the auditing of the accounts of the wakf.
  4. To take measures for the recovery of lost properties of the wakf.
  5. To institute and defend suits and proceedings in a court of law relating to wakfs.
  6. To administer the wakf fund.
  7. Do all such acts as may be necessary for the due control, maintenance and administration of wakfs.

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