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:
- 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
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Adoption and Maintenance Act, 1956
- 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
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
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
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.
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
Constitution of India and Uniform Civil Code
The Indian Constitution has provision related to Uniform Civil Code
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
- When people belongs to different religions.
- 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
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.
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
- Every person, who is of sound mind and is not a minor, can make a will.
- A person who is ordinarily insane may make a will during an interval in
which he is of sound mind.
- A deaf, dumb or blind person can also make a will.
- 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
- He shall sign or fix his mark to the will and it shall be signed by some
other person in his presence.
- The signature should be clear and placed in such place that intended to
give effect to the writing of a will.
- 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
- 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.
- 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.
- 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
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:
- 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
- the gift should not offend the rule against perpetuity.
- 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
- if a gift to an unborn person is void under first two points, any gift
intended to take effect is also void.
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
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
Wakt, Hiba Bil-Iwaz And Hiba-Ba-Shart-Ul Iwaz.
Essentials of a Hiba:
- Fornalities of hiba
- Capacity to make the hiba
- The donee, and
- The subject-matter of the gift
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.
Gifts with Certain Conditions
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 GiftsA 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:
- Revocation of gifts before the delivery of possession and
- 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.
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
There are three important elements:
- The usufruct of the property is used for the benefit of mankind.
- The property vests in the ownership of God perpetually and irrevocably.
- 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:
- The use of the usufruct for the benefit of mankind.
- Tying up or immobilization of the corpus, the subject-matter of the
Objects of Wakf
There are various objects of Wakf under Muslim law, that are given below:
- Mosque and provisions for Imamas to conduct worship.
- Celebrating the birth of Ali Murtaza.
- Repairs of Imambaras.
- Maintenance of khankahs
- Reading the koran in public places and also at private houses.
- Maintenance of poor relations and dependant.
- Payment of money to fakirs.
- Grant to an Idgah
- Grant to the college and provisions for professors to teach in colleges.
- Distribution of alms to poor persons, and assistance to the poor to
enable them to perform pilgrimage to Mecca.
- Keeping Tazias in the month of Moharram, and provisions for camels and
Duldul for religious processions during Moharram.
- Performance of ceremonies known as Kadam Sharif.
- 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:
- a wakf by user,
- 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:
- Md. Yusuf V. Azimuddin
- Hashim Ali V. Iffat Ara Hamidi
- Garib Da V. M.A. Hamid
- Abdul Karim V. Rahimat Bai
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.
Doctrine of Cypres
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
- To give directions for the administration of the wakfs.
- To ensure that the income and other property of wakfs are applied to the
objects and for the purpose for which wakfs are created.
- To scrutinize and approve the budget for the auditing of the accounts of
- To take measures for the recovery of lost properties of the wakf.
- To institute and defend suits and proceedings in a court of law relating
- To administer the wakf fund.
- Do all such acts as may be necessary for the due control, maintenance
and administration of wakfs.