Uniform Civil Code may leave Muslim women worse off

A truly effective UCC would be one that incorporates the best pro-women provisions from all personal laws

The Uniform Civil Code (UCC) has once again moved to the centre of public debate — driven by the Supreme Court (SC) rather than the government, even though Article 44 places it within the domain of policy. In the latest petition, the Court was asked to strike down the Muslim Shariat (Application) Act, 1937, which permits the application of Muslim Personal Law (MPL) in matters of succession and inheritance. A three-judge bench, led by Chief Justice Surya Kant, made pertinent observations while advocating a UCC to remove discriminatory provisions in MPL. The Chief Justice observed that “in our over-anxiety for reforms, we may end up depriving them, and they might end up getting less than what they are already getting”.

The Jamiat Ulama-i-Hind has now challenged the newly enacted Gujarat UCC on the changes it has made to inheritance law. Merely providing equal shares in succession law to sons and daughters does not ensure equality in inheritance if the same law grants absolute testamentary powers — allowing a person to will away their entire property to anyone he chooses. Neither the Hindu Succession Act, 1956, nor the Indian Succession Act, 1925, nor even the Uttarakhand UCC, 2024, imposes restrictions on such testamentary powers.

In contrast, under the Shariat Act, as per MPL rules, a Muslim person cannot will away more than one-third of their property, nor can they make a will in favour of an heir without the consent of other heirs. Any UCC that does not restrict testamentary powers may do more harm than good to Muslim women in matters of inheritance.

The Shariat Act was enacted because many Muslim communities, in the name of custom, were denying daughters any share in their father’s property. Section 2 of the Shariat Act states that MPL shall apply in certain personal matters where the parties are Muslims. MPL is often mistakenly regarded as purely customary law. In reality, it is partly codified through statutes such as the 1937 Act, enacted by a secular legislature. Judicial decisions also form part of MPL. Therefore, it is a jurist-made law based on scholarly opinions.

In Shayara Bano (2017), SC declared instant triple talaq void because it was not found in the Qur’an. However, in matters of inheritance — where the Qur’an itself specifies shares — it would be difficult to argue that such provisions are not part of essential religious practice. The Sabarimala review judgment, for instance, could overrule the essentiality test itself.

The Shariat Act does not extend to agricultural property, denying Muslim women rights over landed assets. Several state land laws are even more regressive. While MPL grants daughters at least half the share of sons, some land laws have completely excluded daughters when sons exist. The UP Revenue Code, 2006, introduced some improvement by granting shares to unmarried daughters. However, distinguishing between married and unmarried daughters is arbitrary and violates Article 14 of the Constitution. In certain respects, MPL is more women-friendly than even the Hindu Code or the Uttarakhand UCC. The CJI’s observations require serious consideration by those who view the UCC as a panacea for Muslim women.

Under MPL, the consent of the bride is essential for marriage, and there is no equivalence of kanyadaan. She can insist on the inclusion of any condition in the nikahnama or marriage contract. Unlike dowry, mehar (dower) is paid by the husband and is a necessary condition for a valid marriage. Marriage in Islam is treated as a civil contract rather than a sacrament, and the Shariat Act recognises several forms of divorce that a woman can initiate. For example, khula is a no-fault divorce available to a Muslim wife. Within two years of the Shariat Act, the Dissolution of Muslim Marriages Act, 1939, was enacted as a progressive reform. Under this Act, a woman can seek judicial divorce (faskh) on several grounds, including failure to perform marital obligations; insanity or diseases; and cruelty, including the taking of a second wife.

This author has consistently advocated for the enactment of a UCC in a gradual, piecemeal manner, emphasising that a just code is more important than a merely uniform one. The Hindu Code has already incorporated several principles from Islamic law. In the broader civilisational journey, such borrowings should be appreciated rather than dismissed. A truly effective UCC would be one that incorporates the best pro-women provisions from all personal laws.

The author is vice-chancellor, Chanakya National Law University, Patna. Views are personal