INTRODUCTION
Article 44 of the Constitution of India states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The term “state” encompasses various legislative bodies such as Parliament, state legislatures, and other authorities, including entities like LIC. Consequently, the state holds the authority to promulgate a uniform civil code applicable across the entirety of India. The usage of the term “state” implies diversity rather than uniformity, indicating that laws may vary within different jurisdictions. However, the term “uniform” denotes consistency within a particular class or category, rather than being universally applicable to all. In this context, “uniform” signifies a lesser degree of similarity compared to the term “common.” Furthermore, the term “endeavour” suggests that the state would make efforts towards enacting such a law, without explicitly stating its enforceability.
However, the Uttarakhand Government has got the approval of the final Draft of the Uniform Civil Code of Uttarakhand, 2024, which has been passed by the State Legislative Assembly on 7th February, 2024. The draft is prepared by a panel formed by the government of Uttarakhand led by the Retired Supreme Court of India Judge Ranjana Prakash Desai. While the panel comprises retired judge Justice Pramod Kohli, social worker Manu Gaur (heading Taxpayers Association of Bharat), retired IAS officer Shatrughan Singh and Vice Chancellor of Doon University Surekha Dangwal which again lacks the expertise of the different personal laws scholars for a draft which is primarily for the personal laws.
The Uniform Civil Code of Uttarakhand, 2024 governs and regulates the laws relating to marriage and divorce, succession, Live-in relationship and matters related thereto. The Chief Minister of Uttarakhand claims that it will wash away injustice towards women and bring in equality amongst all religions but let’s dive into it and see how fundamentally violative the Code is in the name of Uniformity for the different religious communities and genders.
This UCC is applicable on all the residents of Uttarakhand and also to those residing outside the territories of Uttarakhand which is mentioned in section 1(3) of the code which is fundamentally contrary to the Article 245 of the constitution which states that a states legislature can enact law for its geographical region and not beyond. Further, the exception to the applicability of this Code are the members of any scheduled tribe as mentioned in section 2 of the UCC Bill which itself defies the idea of “UNIFORM” civil code.
The Code has prescribed certain uniformities in the conditions of marriage and divorce irrespective of the religion of the residents of the Uttarakhand which overlooks the rich tapestry of cultural and religious practices in India and impose a singular standard that may not be appropriate or acceptable to all communities. Furthermore, the personal laws are deeply rooted in religious and cultural traditions and are often viewed as integral to the identity of certain communities. Imposing a uniform civil code without considering the sentiments and beliefs of these communities is an infringement on their fundamental rights and autonomy.
BRIEF SUMMARY
Part 1, Chapter 1, Section 4 of the Code talks about the Condition for Solemnizing or Contracting Marriage which includes the minimum age for a man to be 21 years and a woman to be minimum of 18 years at the time of the marriage. The man and woman should be of sane mind and should be capable of giving their consent.
The changes the Code will bring in the present practice will significantly be in the personal laws of the muslim to an extent that bigamy or polygamy which was legal for men to have up to four wives is made illegal and all the residents of Uttarakhand irrespective of their religion shall be bound by the Uniform Civil Code and no more to their personal laws.
Further, earlier unobjectionable customs that allowed marriage within certain relationships which now as per the new code will be subject to public policy and morality, wherein the term morality has nowhere been defined in the Code. An attempt to regularise this for all individuals irrespective of their beliefs and traditions is an outright breach of their autonomy.
Chapter 2 of the code prescribes the procedure for registration of the marriage solemnised prior to the commencement of the code, the marriages already registered under the Uttarakhand Compulsory Registration of Marriage Act, 2010 either or both of the parties to the marriage shall have to file a declaration of registration of marriage before the sub-registrar within six months of the commencement of this code.
The limitation period for the appeal to the jurisdictional registrar in case of rejection of the registration of marriage by the sub registrar shall be within 30 days from the date of receipt of the rejection.
There is also a prescribed fine of up to Rs 25,000/- on the sub-registrar`s willful failure to perform their duty as per section 19 of the code.
It is also to be noted that section 20 explicitly states that no marriage shall be invalidated merely on the grounds of non-registration.
Section 25 further prescribes that any woman including muslim women who could earlier not file for a divorce on the ground that her husband had more than one wife from marriages solemnised or contracted before the commencement of this code, can now do so.
Part 2 Chapter 1 of the Code prescribes the order of preference and distribution of shares in case of intestate succession that is when a person dies without writing a will. The Code completely scrapes out the personal law of succession wherein earlier in case of interstate success only the mother was entitled to the right in the property, now equal shares will be given to the children, wife who has not remarried and living parents as per section 51 of the Code.
Which seemingly progressive law is actually regressive in nature.The Hindu Succession Amendment Act of 2005 granted equal rights by birth to both son and daughter in the ancestral property while the father still had the right to will away the separate property. But with the advent of U-UCC all the properties including separate and the joint can be willed away by the father which will further take away the limited protection the daughter had owing to the biases towards the daughter that still prevails in the society.
Further, as per the HMAA, 2005 the class 1 heir included son, daughter, widow and the mother as they all got equal share but with the the new law in U-UCC the father of the deceased is also added in the class one heir and a joint share is prescribed to the father and the mother which directly reduces the share that the mother as per HMAA was earlier entitled to by half. The code also prescribes that a the widow or the widower shall lose the right to inherit on remarriage which is outrightly unfair and regressive to those who would have contributed to the purchase of the property but will be disentitled merely on the ground of remarriage.
The Succession Law in the Code is not only regressive towards hindu women but also towards the Christians and Muslims.
As per the christian law the christian widows were entitled to half the intestate property which has been reduced by the UCC. Also, The Muslim women are assured of a certain level of protection and property as per the Sharia Law which the UCC has left unacknowledged which is concerning as with the advent of the UCC all the personal laws will be rendered ineffective.
Part 3 of the Code talks about Live-in Relationship and section 380(3) prohibits a married person from being in a live-in relationship with another person.
The Code has recognised the live-in relationship and defined it as a relationship between man and a woman of a legal age that is standardised as 21 years for both men and women irrespective of their religion, living in a shared household just like married couples for the purpose of registration of live-in relationship.
The code further mandates registration of Live-in Relationship whether resident of Uttarakhand or not, through a jointly signed statement mentioning that a man and a woman are either living or intend to live together in a shared household. Further the joint statement must be submitted to the registrar in a prescribed manner for the registration procedure to be fulfilled.
Any unmarried couple living together in a shared household for more than a month without a certificate of registration shall be liable for imprisonment up to 3 months or fine up to Rs. 10,000/- or both by a Judicial Magistrate as per section 287(1) of the Code which will further increase to up to Rs. 25,000/- as fine or up to 6 months of imprisonment or both in case of non registration despite the notice by the registrar.
Section 388 further gives the power to a woman living in a registered live-in relationship to claim for maintenance from her live-in partner on desertion through a competent court.
These provisions on live-in relationships are violative of the fundamental principles of a free society. For two consenting adults living together without a registration certification being construed as a crime as per UCC and being penalised in arbitrary. Bringing in the legislative and the judiciary with provision prescribing the procedure for the registrar to be informing the local police station about the live-in couple is moral policing and violation of both article 14 and 21 in the guise of regulation and safety of women.
Further, the UCC empowers the registrar to conduct an enquiry procedure while the code does not prescribe any procedure for enquiry which in itself is arbitrarily empowering the registrar.
Yet another problematic aspect of the code is no prescription of the provision of appeal on denial of the registration of the live-in relationship by the registrar. The code further prescribes that for adults between the age of 18 to 21 to get into a live-in relationship will be subject to the information of the same being delivered to their parents by the registrar, thus absolutely lacking the rational nexus.
A COMPARISON WITH LAWS IN EXISTENCE PRIOR TO THE UCC RELATING TO MARRIAGE REGISTRATION
Under the provisions of the Uttarakhand Compulsory Registration of Marriage Act, 2010 which is , Section 3 mandates that all marriages conducted subsequent to the enactment of this legislation must be registered within a period of 90 days from the commencement of the Act while the marriage could be registered under, the Special Marriage Act , 1954, for the interfaith couples marriages of any couples who wished to register under the SMA Act and personal laws that include the Hindu Marriage Act, 1955, the Indian Christian Marriages Act, 1872, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, and uncodified (Shariat) and codified Muslim law through the Dissolution of Muslim Marriages Act, the Muslim Women (Protection of Rights on Marriage) Act, 2019, and the Muslim Women (Protection of Rights on Divorce) Act, 1986. While Clause 2 of the aforementioned section stipulates that the obligation for registration primarily rests upon the husband, unless circumstances such as the husband being under the age of 18, mentally incapacitated, serving in the armed forces, or incapacitated due to illness, or unable to procure leave for registration, in which case, the responsibility shifts to the wife. Additionally, Sub-Clause 2 of Clause 2 acknowledges marriages involving women below the age of 18, specifying that in such instances, the legal guardian or parents of the bride are tasked with solemnising the marriage.
Whereas in the new Code secularity aspect of marriage has been absolutely abrogated as the marriage registration which was earlier a choice has now become a mandate with a fine of up to Rs. 10,000/- for non- registration.
Further, the new act contradicts its own words in such a manner that section 5 of the Act says
“Ceremonies for marriage – Marriage may be solemnised/contracted between a man and a woman in accordance with the religious beliefs, practices, customary rites and ceremonies including but not limited to “Saptapadi, “Ashirvad”, “Nikah”, “Holy Union”, “Anand Karaj’’ under The Anand Marriage Act 1909 as well as under, but not limited to, The Special Marriage Act, 1954 and Arya Marriage Validation Act, 1937.
Thus though section 5. Indicates that it is inclusive of the customs of the other personal laws it has outrightly discarded the customs of muslim marriage as illegal under this code.
HOW WILL THIS UCC MAKE A DIFFERENCE TO THE ALREADY EXISTING CUSTOMS AND PRACTICES IN UTTRAKHAND?
The UCC act will primarily bring in new changes to the already existing customs and practices, especially in Muslim community because the provisions of the UCC have majorly been replication from the Indian Succession Act and the Hindu Succession Act and Foreign Marriage Act, Special Marriage Act with Protection of Women for Domestic Violence Act for the definition of Shared Household completely ignoring the provisions that could have been adopted from the Sharia Laws.
As per the Muslim personal law that is dissolution of Muslim marriage act, 1939, when divorce is concerned, there are different kinds of divorce, first by the husband, which are of 3 types and then the divorce by wife, further divorce by mutual consent, which includes: Mubarak and Kula. But with the advent of the new code, all these types of divorce will be considered invalid and the only way to divorce a person would be through a uniform procedure established by the act.
Thus, it is observed that even though the aim of uniform civil code should be to bring an inclusive beauty and respect for all cultures and religions. The uniform civil code seems to have failed to do so as having a comparative study of the UCC and the previous corresponding act. It is found that the majority of the sections have been picked from either Hindu succession act, Hindu marriage act, special marriage act or Indian succession act with very few to no consideration of the Muslim personal laws while framing the new uniform civil code. Therefore, the implementation of uniform civil code has the potential of violating the fundamental rights granted by the Constitution under article 29, which states the right to have a distinct culture and article 25 which is the freedom to profess and practise one religion.
AMBIGUITY IN THE LAW LAID DOWN BY THE UCC FOR LIVE-IN RELATIONSHIPS
The Uniform Civil Code of Uttarakhand, particularly Part Three, delineates regulations concerning the mandatory registration of live-in relationships, defining such relationships as cohabitation between a man and a woman of legal age within a shared residence. It prescribes the compulsory registration of such relationships at a designated registrar’s office.
During a discussion with students from a university in Uttarakhand, it was observed that the region hosts several universities of national importance and surrounding residential areas where students of opposite sexes opt to reside together as flatmates instead of utilising their college hostels. With the implementation of this law, the practice of cohabitation has been significantly impeded, as the Uniform Civil Code effectively proscribes unregistered cohabitation between a man and a woman for a period exceeding one month under the guise of a live-in relationship. This has posed considerable challenges for both resident and non-resident students of Uttarakhand who engage in cohabitation arrangements as flatmates across various districts of the state.
One student queries,
“How will we demonstrate that we are simply flatmates and not engaged in a relationship in the nature of marriage, to the authorities?
Will the male partner also be entitled to claim maintenance in case of desertion by the female partner?
How will the Registrar find out if for instance my partner is living with me in my house without registration?”
Consequently, it becomes imperative to assess whether the legislation pertaining to live-in relationships contradicts the fundamental rights of citizens, particularly concerning the registration process that confers authority upon registrars to summon individuals associated or pertinent to the partners for the verification of the live-in relationship. Such summons may extend to or involve notifying parents, which could infringe upon the fundamental rights of adults who opt not to disclose their relationship status to their parents, thereby compromising their right to autonomy and privacy.
The Uniform Civil Code, purportedly aimed at empowering and safeguarding women, has endeavoured to enforce administrative protocols and governmental oversight over consenting adults intending to cohabit in a consensual relationship within a shared residence. Additionally, the stipulated age limit for both men and women to enter into a live-in relationship is set at 21 years, which directly contradicts the eligibility of women between the ages of 18 to 20 years to marry under the Uniform Civil Code, yet disallows them from residing in a shared household with a partner of their choice.
Section 21 of Part One, Chapter Three of the Uniform Civil Code pertains to the restitution of conjugal rights. Despite its ostensibly gender-neutral appearance, this provision has often been challenged in courts due to its potential to subject women to significant violations of their dignity and bodily autonomy. In cases where a husband invokes this law in court to compel his wife to cohabit with him despite her objections based on his cruelty, it can lead to a situation where the wife’s fundamental rights, including her right to bodily integrity and reproductive autonomy, are infringed upon.
Furthermore, the criminalization of polygamy, ostensibly framed as a measure to empower women, can paradoxically lead to the deprivation of rights for certain women. Despite the Hindu law criminalising bigamy, there exists a notable percentage of Hindu men engaging in bigamous relationships, often at the expense of the rights of their first wives who may lack the means or education to seek legal recourse. In contrast, Muslim law, which permits polygamy, imposes the obligation upon husbands to treat all wives equally and fulfil their responsibilities towards each wife. Therefore, criminalising polygamy risks exacerbating the plight of second or third wives in Muslim marriages, potentially subjecting them to circumstances akin to those faced by Hindu second wives.
Despite the Supreme Court, in the case of Supriyo v. Union of India, 2023 as observed:
“The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage. This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws. The transgender community consists of inter alia transgender men and transgender women. A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry. Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution”
Thus emphasising the distinction between gender and sexuality and affirming the right of transgender individuals to enter into heterosexual marriages, the Uniform Civil Code of Uttarakhand appears to overlook the rights of queer and transgender persons. The Supreme Court’s stance elucidated that transgender individuals, like cisgender individuals, have the right to marry under existing marriage laws, regardless of their gender identity or the gender identity of their partner. The failure of the Uniform Civil Code to acknowledge and protect the rights of queer and transgender individuals, despite various high court judgments safeguarding the fundamental rights of these communities, raises concerns regarding the code’s inclusivity and compliance with constitutional provisions and the Transgender Persons Act.
CONCLUSION
The implementation of a uniform civil code will jeopardise the secular and diverse fabric integral to India’s cultural heritage. It`s implementation would impinge upon the freedom to practise and profess religion, potentially undermining individuals’ autonomy in making significant life decisions such as marriage, adoption, and inheritance and to live with a partner of their choice owing to the arbitrary power granted in the hands for the registrar in the course of registration procedure. More concerning issue is regarding the erosion of jurisdiction traditionally held by religious authorities and leaders whether it be the Pastors in the Protestant Church or the Imams in the Mosques.
Quoting section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, it is noted that certain personal laws, such as those pertaining to maintenance provisions, can be financially advantageous. Ambedkar’s assertion that “The profession of a particular religion carries with it the personal law of that person” is invoked to underscore the inherent connection between religious affiliation and personal legal frameworks.
Additionally, national unity and solidarity ought to arise organically and cannot be legislated. The inefficacy of Article 17 in eliminating certain practices is evidence that legal mandates alone cannot foster a sense of national integration. Thus, legislative interventions are not requisite for the cultivation of such unity.
While common civil laws govern contracts, partnerships, and other aspects, their inability to foster unity suggests that introducing a singular civil code for personal laws may not achieve unification. Therefore, the implementation of a single civil code does not possess inherent unifying capabilities.
Authored by Advocate Riya Raj and Advocate Shatakshi Mathur