The Uttarakhand Uniform Civil Code Bill 2024 has been presented as a template for a nationwide exercise. But is it actually ‘uniform’, and on whom does it impose uniformity? The abiding promise of the Uniform Civil Code has been to establish uniform laws for all communities, irrespective of their religious or cultural identity. However, an examination of Uttarakhand’s UCC Bill reveals that it fails to uphold this principle.
To begin with, the Bill excludes Scheduled Tribes from its purview, even though many such groups follow gender-unjust practices. Also worth noting is the insidious manner in which it outlaws Muslim personal law norms, while preserving those pertaining to Hindus, particularly in matters of succession and maintenance—an often-overlooked but crucial facet of family law.
The most concerning aspect of the Bill, however, is its selective use of criminalisation of Muslim personal law practices pertaining to marriage and divorce. This raises the question of whether the UCC Bill is indeed about family law reform, or a means to other ends.
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A missed opportunity
The UCC Bill repeals existing laws, customs, and practices “only to the extent of inconsistency”. This allows personal laws and customs to continue applying in cases where there is no conflict with the provisions of the UCC Bill.
For instance, the UCC Bill is silent on adoption. Currently, Hindus, Buddhists, Jains, and Sikhs can adopt under the Hindu Adoptions and Maintenance Act 1956 (HAMA). Since other religions (Muslims, Christians, Jews, and Parsis) either do not have personal laws governing adoption or don’t permit it, persons from these communities can only adopt under the secular Juvenile Justice Act, 2015 (JJ Act). Thus, disparate regimes for adoption will continue to apply for Hindus and persons of other communities.
This represents a missed opportunity to apply a single progressive adoption law across the board. There have been demands for reforming HAMA as the absence of registration requirements and institutional oversight leaves room for misuse such as trafficking of children. The JJ Act, on the other hand, provides sufficient safeguards to protect the safety and best interests of the child being adopted. Instituting its application in all communities, therefore, would have protected the interests of children across religions.
Inheritance rights
One of the major promises of the UCC Bill is equal inheritance rights for all, irrespective of gender. However, legislation alone may not be sufficient for changing individual behaviour. Parental resistance to giving women immovable property in India’s patrilineal communities is well-documented, and people may use wills to deny women their rightful share in inheritance. Therefore, protective mechanisms against disinheritance are imperative. However, in the case of the Muslim community, one such mechanism has been eliminated.
Under Muslim law, a person can only bequeath 1/3rd of their property through a will. The rest passes through the prescribed scheme of succession. Since a limit on testamentary succession is absent in the UCC Bill, it leaves vulnerable groups, such as women and queer persons, without protections from disinheritance.
For Hindus, HAMA allows dependents of the deceased to apply to court for maintenance if a will or the succession scheme does not adequately take care of their needs, especially if they are unable to support themselves. The amount and form of maintenance has been left to the discretion of the court. Since the Bill does not contain any provisions for the maintenance of heirs, this protective measure will remain available to Hindus but not to people of other religions.
The impact of the UCC on the status of coparcenary property—ancestral property that is held by male and female lineal descendants up to the third generation—and Hindu Undivided Families (HUFs) has been a central concern. For years now, commentators have been calling for a categorical take on these issues and the concomitant benefits.
However, the Bill contains no mention of coparcenary property. Given that the Bill only repeals existing laws in case of conflict, certain provisions regarding coparcenary property from the Hindu Succession Act 1956 (HSA) will likely survive. This would mean that coparcenaries will continue to come into existence and operate per the HSA. Once the joint property is partitioned under the HSA and the deceased person’s share is separated, this share will be subject to the succession scheme in the UCC Bill.
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Selective targeting, HUF to criminalisation
The Bill’s complete silence on the status of Hindu Undivided Families (HUF) is one of its most egregious aspects. HUFs are treated as a separate entity for the purposes of taxation and enjoy certain exemptions, a benefit available solely to Hindus. In a 2018 report on family law reform, the Law Commission had noted that this exemption is not conducive for the tax regime and may be used for avoiding taxes. An exercise in achieving true uniformity would necessitate either abolishing the HUF system or extending it to all religious communities.
In contrast to this silence, the UCC Bill does not only outlaw several personal practices of Muslims but also relies on criminalisation for enforcement, such as by penalising extrajudicial modes of divorce. As only Muslim personal law provides for extrajudicial modes of divorce, the intention behind such a provision is clear. It specifically targets Muslim practices such as khula (divorce initiated by the wife) and mubarat (divorce by mutual consent).
Singling out a particular community’s practices for criminalisation while permitting ancient relics such as the coparcenary system to continue indicates that the principle of uniformity has been applied selectively.
The UCC Bill has failed to achieve its intended goal of uniformity. Instead, it is an exercise in shoddy replication of existing laws and selective criminalisation. This raises legitimate concerns about its suitability as a template for similar legislation across the country.
Rakshita Goyal and Namrata Mukherjee are part of the Vidhi Centre for Legal Policy. Views are personal.
(Edited by Asavari Singh)
It is unfortunate that a committee headed by a retired judge could not really come up with an impartial and equity based bill which we have to proclaim to be progressive and forward looking, if the party in power is to be believed. While regularising live-in relationships can be proclaimed as acceptance of a practice prevalent, perhaps much higher than the statistics reveal, as an alternative to Hindu marriage tradition, not showing that acceptance and compassion for other religions is truly surprising.