Agnates, cognates, half-bloods and full-bloods: The real challenge in drafting a Uniform Civil Code

A particular Act in Indian law defines these two relatively unfamiliar words.

* “agnate” – one person is said to be an agnate of another if the two are related by blood or adoption wholly through males.

* “cognate” – one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males.

Why, you might wonder, would the law care to define these terms? In fact, the same Act goes on to define the terms “full blood”, “half blood” and “uterine blood”, which probably only adds to the mystery. But leave those three aside. Why “agnate” and “cognate”?

I’ll return to that. In the meantime, I want you to think about a scenario I’m going to sketch.

You are the patriarch of your family. You have a daughter and a son. Both are happily married. Each has given you a charming grandson. One Diwali, the whole family travels to Coorg for what promises to be a happy, relaxed vacation. Only, there’s a terrible accident when you visit Tala Kaveri one rainy morning. Both your son and your daughter slip off the steps leading up the hill and fall to their deaths.

Naturally, you are torn apart by this sudden tragedy, as is everyone else in the family. Only weeks later, you have a heart attack and die.

I realise this is a somewhat morbid scenario. Still, indulge me. Your two charming grandsons are now your only heirs. You own two flats and have reasonable investments. In other words, you have a decent estate. Unfortunately, you have died intestate – you never wrote up your will. How are your two grandsons going to share your estate?

It might come as a surprise to know that the answer to that question depends on your religion. If you were Parsi or Christian, it’s simple: both grandsons get an equal share of your estate – probably one flat each and the investments split down the middle.

But if you’re Hindu or Muslim, it’s just as simple, though in a different way. For inheritance purposes, both faiths consider the kind of relationship you have with those who will inherit. The question asked is, are they related to you through males, or through females?
Now you know why I mentioned those two words above. The Act I referred to is the Hindu Succession Act of 1956. It does indeed define “agnate” and “cognate” in Section 3.

In this particular morbid scenario, both your grandsons will inherit equally. But as an aside, if you had no other direct heirs, Section 8 in the Act has these lines:

“The property of a male Hindu dying intestate shall devolve ... upon the agnates of the deceased [and] if there is no agnate, then upon the cognates of the deceased.”

So if you are an intestate Hindu with no direct heirs, your agnates will be entitled to your entire estate (it “devolves” on them). Your cognates, nothing.

This gender distinction also applies if you are Muslim. If you are Muslim, the law “recognises two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuaries would take up the share in the property that is left over after the sharers have taken their part”.

No mention of cognate or agnate here, but then there’s this: “If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.”

Put simply: as an intestate Muslim, your daughter’s son gets a smaller share than your son’s son.

If you’ve wrapped your mind around those religious distinctions, let me say up-front that this is not an attempt to rank them in any sense. No, I’m just interested in these arcane distinctions, and there are plenty more. Consider one more tragic scenario I’ll sketch for you.

You are married to a charming man and you both have produced a daughter and a son. You are the only daughter of your aging parents. You have invested substantially and wisely. All in all, you are part of a close-knit, happy family.

One morning, you’re out for a walk. Inadvertently, you step on a sleeping cobra, which rears up and bites you on the thigh. Your desperate husband rushes you to the hospital, but you’re dead before he can get you there.

Unfortunately, you have left no will. Who inherits your estate?

No doubt you’ve guessed: it depends on your faith. In the Indian Succession Act of 1925, the section on “Intestate Succession” starts by stating that it will not apply to “the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina”. (Thus the separate laws above.) What’s more, the section is divided into two subsections – one for Christians, one for Parsis.

Thus, if you’re Parsi (and your husband is too), the estate will be divided into four parts: one each for your husband and two children, and the fourth to be divided between your parents.

If you’re Christian, a third of your estate goes to each of your husband, daughter and son. Your parents get nothing (they are “excluded” from inheriting). Though as an aside, if you didn’t have children, your husband and father would get half your estate each – your poor mother still gets nothing.

If you’re Hindu, your husband and children inherit one-third each, with your parents excluded. Again as an aside, your parents would inherit only if you were a childless widow, and even then, only if your husband had no heirs.

If you’re Muslim, your husband takes one-fourth of the estate. Your son gets double what your daughter gets, and your parents are also entitled to a share. Once more, had you been childless, your husband would get half the estate, and the rest would be divided between your parents.

(Caveat: I’m no expert in inheritance or personal laws. These conclusions are based on my reading of the laws.)

So what’s my point here? Again, I hardly mean to suggest that the laws pertaining to one or the other religion are “better” than the others in some sense. I do mean to suggest that these personal laws by religion are intricate and complex. The distinctions go on and on, through every aspect of inheritance law. Adoption, marriage and divorce, the other themes personal laws address, are every bit as intricate as well.

Why is this so? Because all kinds of traditions are followed in our country, and we’ve encoded those. The result is the fierce knot of rules and exceptions that we call our personal laws. So, if this knot is ever to be untied, or even sliced through, in pursuit of a Uniform Civil Code, we might ask: what can “uniform” possibly mean here? What can it mean, when the rules for one religion are diametrically different from the rules for another, and both are different from the rules for a third and fourth?

Just choose the “best” rules, you say? Well, take just my second example above. Who will choose between those inheritance rules? Christians and Hindus exclude parents, Parsis and Muslims don’t. What’s the “best” course? Or take my first example. Parsis and Christians make no gender distinctions, Hindus and Muslims weigh agnate against cognate, but in different ways. What’s the “best”?

Answer: it’s impossible to say.

The task, then, is to examine the personal laws in the light of Constitutional guarantees to every Indian: equality, justice, right to life. Throw out the ones that violate those guarantees. That’s the spirit in which a Uniform Civil Code will emerge. Some years ago, a group in Pune tried to do just this. The man who led their work, SP Sathe, wrote an article about their experience with this interesting reflection: a UCC need not be “a common law, but different personal laws based on uniform principles of equality of sexes and liberty for the individual”.

Sounds A-OK to me. Because even if the law defines it for me, I really don’t care what “agnate” is. Nor that it is distinct from “cognate”.

Dilip D’Souza’s most recent book is The Deoliwallahs, co-authored with Joy Ma.

Corrections and clarifications: This article has been updated to correct an interpretation in the Hindu Succession Act.