Forget UCC for now, amend succession act: Kerala Muslim women’s forum
NISA, a progressive Muslim women’s forum in Kerala has come up with a proposal to amend the Indian Succession Act ‘to consolidate and state the law applicable to intestate and testamentary succession for Muslims (Mohammadans) in India, in tune with the equality provisions under the Indian Constitution’. According to the association, this will be sufficient for the time being, instead of bringing in a Uniform Civil Code.
The draft bill has been submitted to the National Law Commission and the state government as well. NISA is one of the organisations that has approached the Supreme Court of India against the Kerala HC order on Muslim women’s right to succession.
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“It took nearly 15 years from the formation of the Hindu Code Committee and eight years after India became an independent state, for the Hindu Code to be made a reality and nearly 40 years for the Hindu Succession Act to be made gender just,” said VP Suhara, president of NISA. “It has to be kept in mind that it took nearly 55 years for the Hindu Succession Act to impart minimum equality to Hindu women who are being governed by the Mitakshara system of Law.”
“It is in this backdrop that we need to consider the uncodified Indian Muslim Family Law. It is not codified even after 76 years of India becoming an independent country and seventy-three years after it became a Republic, with a constitution which prohibits discrimination in the name of religion, caste, sex, etc.… and governments after governments have not made any attempts to codify the Muslim Personal Law,” argued Suhara. “As this is the case, I am afraid that an immediate move to go for Uniform Civil Code instead of codification of all the personal laws to make them gender just, will not be properly appreciated.”
Suggestions from NISA
In its submission to the National Law Commission, NISA has suggested that the various aspects of Muslim Personal Law be codified as follows:
The Law of Inheritance is to be codified by amending the Indian Succession Act and inserting a Chapter in it for Intestate Succession among all the Indian Muslims, in line with the Christian Intestate Succession, by avoiding all the complexities and incorporating all the suggestions made by the Law Commission in its various reports on Indian Succession Act to render it gender just.
By making Divorce Act applicable to Muslims, divorce and other matrimonial remedies can be made available to Muslims.
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By making the Guardians and Wards Act applicable to Muslims minor children after making necessary amendments to it, as suggested by various Law Commissions, if any, the protection of the body and property of the minor children can be ensured (after considering the rights of LGBTQIA+ community, and making sufficient amendments to it, to render it more inclusive and gender just).
By Making Juvenile Justice (Care & Protection) Act Applicable to Muslims, they will be able to adopt children.
Fundamental rights of Muslim women
With these changes the fundamental rights of Muslim women and children as ensured by the Constitution of India can be ensured. This will be sufficient for the time being, instead of making initiative for bringing in a Uniform Civil Code, reiterated Suhara.
The draft amendment prepared by legal experts TG Agitha and CV Kumaran proposes that the act may be called the Indian Succession Act (Amendment) Act, 2023 and the word “Muhammadan” be omitted from S. 29 (1) – in Part V, Chapter I, Section 29 (1) of the Act.
‘The discussions on Uniform Civil Code have created insecurity and fear among several communities. That’s why we have proposed this as an alternative. The Law Commission itself had stated that the UCC was not needed in the present circumstance back in 2017. By amending a bunch of existing laws, we can get all the religions and communities into the ambit of a secular code, opines Dr T G Agitha. The constitution of Indian assures everyone the right to equality and right to live with dignity, added Dr Agitha.
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The proposal calls for an insertion of a chapter (IIA) after Chapter II, which should include 17 additional sections with two sub sections ranging from devolution of property to rights of the widower.
Amendment proposals
The amendment proposes that, the property of an intestate should devolve upon the wife or husband, or upon those who are of the kindred of the deceased. If the deceased (is a male and he) has more than one wife, the share of the wife shall be divided equally among all the wives and the share of child shall be equally divided equally among all his children.
Where the intestate has left a widow and any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants. Where the intestate has left a widow, if he has left no lineal descendant, but has only left persons who are of kindred to him, his entire property shall belong to his widow.
A husband surviving his wife has the same rights in respect of her property, if she dies intestate – as does a widow in respect of her husband’s property, if he dies intestate. Where intestate’s father and mother are living — if the intestate’s father and mother are living, both of them shall succeed to the property taking equal shares.
In 2008, Kozhikode-based Quran Sunnath Society approached Kerala High Court with a writ petition to declare that the Muslim’s inheritance practices are in contravention with the principles of the Constitution. High Court bench headed by the then chief justice, Ashok Bhushan, ruled that it cannot decide the petition, and left it to the legislature to weigh options and frame a new law.
Now the case is under consideration by the Supreme Court as the petitioner filed an SLP challenging the high court’s order. Anakkayam Saidu Muhammed for the Humanist center, V P Suhara for NISA, M C Rabia and C V Abdul Salam have also impleaded in the case.
