Before going into the preamble and the 392 sections of Uttarakhand’s Uniform Civil Code law, it is important to note that the pronouncement of the Supreme Court and the Law Commission of India have been at variance on this subject.
While the SC took a positive stance on the UCC in cases like Shah Bano (1985), Sarla Mudgal (1995), John Vallamattom (2003), and Jose Paulo Coutinho (2019), the 21st Law Commission, led by Justice Balbir Singh Chauhan, stated in 2018 that a uniform civil code wasn’t necessary or desirable at this stage, emphasising the coexistence of secularism with the country’s plurality.
It instead recommended amending the discriminatory practices within existing personal laws.
The next Law Commission, under Justice Rituraj Awasthi, sought suggestions from various stakeholders, including the public and religious organisations, on the matter of the UCC. Over one crore representations were received, but the final recommendation is still awaited. It shows that this is indeed an issue where individuals, institutions, and organisations have very clear and pronounced views, which are, more often than not, at complete variance from each other.
Marriage and divorce
Let us now examine the Uttarakhand Uniform Civil Code Act which has four parts, each dealing with laws relating to marriage and divorce (Part 1), succession (Part 2), live-in relationships (Part 3), and miscellaneous (Part 4). Some of the salient features include prohibition of practices like polygamy, Halala, Iddat, Triple Talaq, and child marriage across all religious communities. There is a uniform age of marriage for both men and women at 21 and 18 years, respectively. The solemnisation of marriages can be done as per the ceremonies or rituals applicable to the parties involved, thereby ensuring that individuals can uphold their traditions while adhering to the principles of the UCC. Marriages can be conducted between a man and a woman according to their religious customs, rites, and ceremonies, such as ‘saptapadi’, ‘ashirvad’, ‘nikah’, ‘holy union’ and ‘anand karaj’, as specified in laws like The Anand Marriage Act of 1909, Special Marriage Act of 1954, and the Arya Marriage Validation Act of 1937, among others.
With regard to divorce, the UCC brings in provisions that penalise extrajudicial divorce modes—including talaq-us-sunnat, talaq-i-biddat, khula, maba’arat, and zihar. Practices that are not prescribed under the UCC, including customary divorce deeds or panchayat divorces, are penalised and punishable with imprisonment. Also, any custom imposing conditions on remarriage between divorced spouses stands criminalised. As a concession to the Muslim cultural practices, mehr and dower are acknowledged as payable in addition to any maintenance under the UCC.
Also read: Excluding STs from Uttarakhand UCC exposes a fundamental problem in its concept
Succession and inheritance
The UCC aims to provide equal property rights to women—including Muslim women—previously entitled to only a 25 per cent share under personal laws. But with regard to guardianship and custody, prevailing positions under personal laws have been retained. The father is designated as the guardian, while the mother is the custodian, with the custody of children up to the age of five ordinarily granted to the mother.
The Hindu Adoptions and Maintenance Act 1956 and the Juvenile Justice Act 2015 will continue to be applicable. However, the UCC is silent about the status of Hindu Undivided Families (HUFs), which are treated as a legal entity of lineal descendants jointly owning property, managed by a karta (leader). This offers distinct tax advantages to HUFs that are not available to members of other religions.
Also read: Uttarakhand UCC Bill does a lot of things. Achieving true ‘uniformity’ is not one of them
Live-in relationships
However, the most interesting, innovative, and controversial section of the UCC is on the registration of live-in relationships. Although some protection was already available to women in live-in relationships under the Protection of Women from Domestic Violence Act 2005, the UCC gives live-in relationships the status of quasi-marriage. On the positive side, it ensures that no offspring from such relationships is considered illegitimate. It is also an acknowledgement that young men and women are opting to stay together in explicit sexual union outside the domain of scriptural sanction. It is an acceptance of sexual liberation among the youth.
But certain provisions like compulsory registration and that parents of live-in couples aged between 18 and 21 years must be informed of their relationship, infantilises this relationship. The requirement for mandatory registration of live-in relationships is a significant intrusion into individuals’ privacy and autonomy. Those who fail to comply, including providing false information, can be punished with imprisonment or a fine of up to Rs 25,000, or both.
Additionally, Section 386 of the UCC allows third-party complaints and intrusive surveillance to perpetuate moral policing and violate individuals’ privacy rights, particularly affecting women in inter-faith relationships. The legislation poses significant challenges for these couples, potentially preventing them from renting accommodations without providing their registration documents to landlords.
Also read: Uttarakhand UCC delivers status quo for wives & mothers, while promising ‘gender justice’
Restitution of conjugal rights
Another serious critique of the UCC is the retention of restitution of conjugal rights. Dr Saumya Uma, a professor at OP Jindal Global University, in an opinion piece, wrote that the constitutional validity of this provision has been challenged in the Supreme Court. She pointed out that “Clause 21 of the Bill is a copy paste of section 9 of the Hindu Marriage Act and section 22 of the Special Marriage Act”.
“This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of cohabitation, consortium, companionship and conjugality. Though on the face of it, it is a gender neutral provision, it has disproportionate and adverse ramifications for the wife who may be subjected to rape and forcible pregnancy by the husband,” she added.
It also takes away the woman’s agency to walk out of a brutal and harsh marriage.
Unwittingly, this provision will now be applicable to women of all faiths in Uttarakhand. Mercifully, this cannot be invoked on a partner in a live-in relationship.
Last, but not the least, the UCC is silent about all matters relating to persons who identify themselves as LGBTQ+, as if they do not exist. In 2023, the Supreme Court held the view that framing a new law to recognise LGBTQ+ can be done by either making all marriage and family related laws—including those of adoption—gender neutral, or by creating a Special Marriage Act–like statute in gender neutral terms. It is surprising that in a state where the exploits of Mahabharat’s Arjun living as a eunuch during his exile are legend, the LGBTQ+ community’s very existence has been extinguished from the canons of legal jurisprudence.
This is the second in a 2-part series about the Uttarakhand UCC.
Sanjeev Chopra is a former IAS officer and Festival Director of Valley of Words. Until recently, he was director, Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.
(Edited by Aamaan Alam Khan)