By - King Stubb & Kasiva on February 28, 2024
On February 7, 2024, the Uniform Civil Code (UCC),[1] Uttarakhand Bill of the year achieved a significant legal milestone. This triumph in legislation aims to standardize laws regarding marriage, divorce and successions.[2] Furthermore, it recognises live-in relationships thus establishing an inclusive common legal framework that surpasses religious boundaries. Under retired Supreme Court Judge Justice (retd) Ranjana P Desai's guidance, a state-appointed committee delivered its conclusive report on February 2nd, 2024, thereby propelling Uttarakhand as potentially being India's pioneer state for implementing such far-reaching statute law.
The ambit of the UCC stretches wide, encompassing aspects such as marriage, divorce, adoption, inheritance and even live-in relationships. Yet a critical exclusion to note is the tribal community that make up 2.9% of our state's population. Consistently expressing reluctance towards the UCC remains an attitude held by this community. The code explicitly excludes its application to Scheduled Tribes and those protected under Part XXI of the Constitution, as stated in the Section 2.
Uttarakhand distinguishes itself from other states through its unique move; it is the first to pass specific legislation, whereas Goa operates under a UCC via the Portuguese Civil Code. Interestingly, Madhya Pradesh and Gujarat also ponder similar bills; this suggests a broader nationwide shift towards legal uniformity.
The UCC originates from Article 44 of the Constitution, a Directive Principle of State Policy advocating for a uniform civil code - this forms its constitutional foundation. Its adoption date is November 23, 1948. However, since then it has continually provoked debates over its potential effects on religious minority rights and cultural diversity in India.
During the debates in the Constituent Assembly, members like Naziruddin Ahmad emphasized concerns about diluting the rights of religious minorities. They highlighted that a Universal Civil Code (UCC) could potentially conflict with the freedom of religion guaranteed under our Draft Constitution. M. K.M. However, arguing the non-infringement of a UCC upon religious freedom, Munshi emphasized the necessity for legislation with a secular focus.
Dr. B.R. Ambedkar, a pivotal architect of the Constitution, maintained an ambivalent stance. His position, neither fully endorsing nor outright rejecting, reflected inherent complexities in this issue. Ambedkar duly acknowledged the desirability of a Uniform Civil Code (UCC) yet insisted on its voluntary nature at first. His emphasis, through the words "The State shall endeavour...", sought to safeguard the interests of these concerned communities.
The UCC ushering in sweeping changes, confronts contentious issues within Muslim personal law. It evolves its provisions, a process that involves raising the minimum age of marriage for Muslim women to 18.[3] Further amendments extend monogamy to the Muslim community and criminalize specific practices such as Iddat, talaq, and Nikah Halala.
The proposed UCC significantly reforms the institution of marriage. Specifically for Muslims, it elevates the minimum age at marriage to align with both the Muslim Marriage Act, 1955[4] and the Special Marriage Act, 1954:[5] women can now marry at 18; men have a minimum age requirement of 21. This adjustment sparked debate due to traditional allowances in Muslim law that presume puberty occurs around thirteen years old, permitting marriages from this young age onwards. In December 2022, the National Commission for Women[6] challenged the practice of allowing minors to marry, highlighting a legal clash between Muslim marriage practices and child protection laws. This case is currently before a bench led by CJI DY Chandrachud, emphasizing India's evolving nature in formulating its marriage laws.
it extends the rule of monogamy to the Muslim community, a significant departure from current practices. The Hindu Marriage Act of 1955, already incorporating this provision—"neither party should have a living spouse at the time of the marriage" has been more progressive in its approach. However, under Muslim personal law, men are permitted multiple marriages with up to four wives. This change signifies not only an advancement but also emphasizes harmonization within our diverse religious communities when considering marital norms.
The proposed law intriguingly maintains the provision that permits custom and usage as an exception to prohibiting marriage within certain degrees of relationship. Nevertheless, a stipulation is introduced: these customs must not contravene public policy or morality. This calibrated approach recognizes and respects the myriad practices prevalent in religious communities; simultaneously, it guarantees their conformance with overarching societal norms.
The UCC mandates the registration of marriages within 60 days of solemnization: this edict applies to both in-state and out-of-territory unions, provided that at least one party is a resident of Uttarakhand. Non-registration, although not rendering the marriage invalid, may incur a penalty; specifically, parties who neglect this process could face fines up to ₹10,000.
Additionally, providing inaccurate information during the registration of marriage can result in a three-month imprisonment and a monetary penalty of ₹25,000.
The law specifically outlines several statutes, including The Anand Marriage Act, 1909;[7] Arya Marriage Validation Act, 1937,[8] and The Special Marriage Act, 1954, among others. This provision permits marriage ceremonies to be performed in accordance with the religious and customary practices prescribed by these legislations. This provision serves a dual purpose; on the one hand preserving the cultural diversity inherent in nuptial traditions tied to different religions or customs while also ensuring an across-the-board legal framework is available for their recognition.
The UCC implements significant alterations in the process of divorce, especially for Muslims. It criminalizes specific practices within Muslim marriages, although without explicit mention, signifying a progressive emphasis on individual rights. Section 30 addresses an individual's right to remarry after undergoing a divorce. The UCC asserts the right to exercise this action without any additional conditions, including marrying a third person before such marriage. This rule directly tackles the practice of halala under Muslim personal law. Moreover, Section 32 imposes punishment on individuals who compel, abet or induce someone to fulfill these prerequisites. A conviction under Section 32 carries a potential punishment: imprisonment for a maximum of three years, and an accompanying fine of Rs.1 lakh.
No marriage can be dissolved without a court order, a provision that potentially circumvents unilateral and instantaneous divorces. While grounds for divorce encompass religious conversion, notably absent from the UCC is the concept of "irretrievable breakdown of marriage"; this notion receives recognition in several Supreme Court judgments.
The UCC, in Section 28, forbids the commencement of divorce proceedings until a year has passed since the marriage date. Nevertheless: exceptions apply where "exceptional hardship" occurs or if one spouse demonstrates "exceptional depravity." Specifically empowering women, the UCC allows them to seek divorce under certain circumstances; these include instances when their husband is found guilty of rape or any form of unnatural sexual offense and situations where he maintains multiple wives. After a divorce, the mother holds custody of a child up to five years. This arrangement underscores the primary focus on ensuring the child's welfare in scenarios involving divorce.
The Uniform Civil Code (UCC) enacts substantial alterations in testamentary and intestate succession, fundamentally transforming both Muslim and Hindu communities' inheritance laws. Specifically for Muslims, the nature of their testamentary succession, passing on wealth via a will and intestate succession i.e., when there is no will present, undergoes a radical metamorphosis.
The existing legal framework permits Muslims to bequeath a maximum of one-third their property through a will; the Quran and Hadith dictate distribution for remaining wealth. However, this restriction is eliminated by the UCC–it allows unrestricted property inheritance drawing significantly from the Indian Succession Act, 1925. Regarding intestate succession: The UCC adheres strictly to an heir hierarchy where Class 1 heirs, comprising children, widows or widowers, parents among others, are first in line for receiving properties in cases without valid wills. In the absence of Class 1 heirs, property transfers to Class 2 beneficiaries: these include siblings; nieces and nephews - along with grandparents among others.
The Unified Civil Code (UCC) eliminates the differentiation between ancestral and self-acquired property for Hindus, specifically those in joint Hindu families under Mitakshara law; this has significant repercussions. Within these households, they consider sons, daughters, grandsons and granddaughters as co-owners of ancestral assets from birth onwards. The UCC lifts limitations on a father's power to dispose of self-acquired wealth - an adjustment that harmonizes with evolving dynamics of property ownership within collective family units.
The UCC, in a notable departure from current Hindu law that designates only the mother as a Class 1 heir, regards both parents - mother and father - as such for intestate succession. This change aligns with Shariat law and potentially alters how property is distributed among Hindu family members on the legal landscape.
The UCC implements a thorough structure to govern live-in relationships, which have garnered significant acknowledgement and importance in modern society as an aspect of personal affiliations. The Bill enforces all heterosexual couples - regardless of their residence in Uttarakhand – to register their live-in relationships. They are required for this registration by submitting a "statement" directly with the relevant Registrar.
He frames the registration of live-in relationships as a safety valve, designed to deter heinous crimes typically committed within these partnerships. This act carries mental significance if one partner harbors 'bad intentions.' Section 378 of the UCC enforces partners in live-in relationships to submit a statement. Residents of Uttarakhand, as well as non-residents, must submit a statement to the Registrar within their jurisdiction, they have no choice in this matter.
When terminating a live-in relationship, one must inform the Registrar by submitting a termination statement; this rule applies even if either partner is under 21 years old. The provision intends to engage families in decisions concerning their younger members and confirm that all involved parties have reached legal adulthood.
Following that, the Registrar undertakes a "summary inquiry" to verify whether the live-in relationship falls within any of the categories explicitly prohibited by Section 380. These include instances where one partner is already married or committed to another relationship, if they are still a minor; alternatively: if obtained under "coercion, fraud, or misrepresentation," their consent was given.
Within 30 days, the Registrar holds the power to decide; if they refuse registration, he must convey reasons in writing. This provision bestows significant authority upon Registrars for managing registrations and keeping relevant registers up-to-date.
It establishes legal consequences for couples failing to register their live-in relationships may face these. Deserted women, akin to provisions for married counterparts, can claim maintenance through a competent court; non-registration draws penalties & the most severe being a potential jail term of up to three months or maximum fine: ₹10 000 – possibly both. The partners face the possibility of an escalated penalty – a higher fine reaching ₹25,000 or even imprisonment – if they make any false statements during the registration process.
The UCC intriguingly and progressively abolishes the concept of "illegitimate children." It extends legal recognition to children born in void and voidable marriages, as well as those from live-in relationships. In doing so, it not only aligns with evolving societal norms but also confronts traditional notions of legitimacy within family structures.
The UCC's provisions on compulsory registration of live-in relationships provoke constitutional concerns, chiefly anchored in privacy and personal liberty: critics contend that this mandated registration is not only intrusive but also breaches the fundamental right to privacy - it compels couples into submitting intimate details to governmental bodies. Further, by equating heterosexual live-in arrangements with marriage status, this aspect challenges individuals' autonomy; they may choose not to marry yet still face comparable legal obligations under these laws.
Chief Justice of India, D.Y. Chandrachud, while leading a Constitution Bench in the Supriyo Vs. Union of India (same-sex marriage case)[9] underscored that it is crucial for the state not to encroach upon adults' freedom in forming lawful intimate associations. He asserted: "The right to intimate associations falls within Article 19(c) ambit; this represents our constitutionally guaranteed fundamental right: free speech and expression." Acknowledging the right to privacy, as established in previous judgments,[10] this becomes a pivotal factor: evaluating the constitutionality of UCC's provisions is an essential task for the court.
The UCC notably incorporates provisions for the maintenance of women in live-in relationships, paralleling the rights accorded to married women. Section 388 explicitly stipulates that should a woman experience desertion by her partner, she holds an entitlement to claim maintenance from him via competent court procedures. This provision reflects existing legal regulations concerning marital desertion cases, thus expanding equivalent privileges towards non-marital cohabitation scenarios for female partners.
Live-in relationships, although law does not explicitly prohibit them,[11] garner recognition through judicial pronouncements: The Supreme Court ruled in the case of S. Khushboo Vs. Kanniammal (28.04.2010)[12] that live-in relationships fall under the purview of Article 21: the right to life of our Constitution; this highlights its legal recognition and linkage to fundamental rights. Notably acknowledging personal relationships' dynamic evolution was an integral part of their decision, an insight into how courts consider societal transformations when interpreting laws on individual liberties and obligations: a powerful demonstration indeed!
The Domestic Violence Act, 2005[13] traditionally accounts for live-in relationships as "domestic relationships"; however, it provides provisions for maintenance and recognizes relationships 'akin to marriage' when women report domestic violence. The explicit recognition of live-in relationships by the UCC through a dedicated chapter signifies an acknowledgement and regulation shift within the broader legal framework.
The court in Velusamy Vs. Patchaiammal (2010),[14] addressing the Domestic Violence Act, emphasized: spending weekends together or engaging in a one-night stand does not amount to a "domestic relationship." This underscores UCC provisions; these stipulate compulsory registration and prescribe legal ramifications for non-compliance – an approach specifically designed to promulgate clarity when defining and acknowledging live-in relationships.
The Supreme Court, a key player in UCC deliberations over the years, has engaged with this topic through numerous judgments. However, it consistently refrains from issuing directives to the government and emphasizes that lawmaking indeed falls exclusively within Parliament's domain.
The 1985 Shah Bano Begum case[15] witnessed the court expressing regret over inaction regarding Article 44, specifically calling for its implementation. Further down the line, cases like Sarla Mudgal Vs Union of India (1995)[16] and John Vallamattom versus Union of India[17] (2003) echoed this demand for a UCC.
Six petitions, filed in the Supreme Court between 2021-2022, sought uniformity in divorce and alimony laws - reviving the need for a UCC. Yet; it was not until March 2023 that these pressing matters drew attention again: a Bench led by CJI D.Y. Chandrachud dismissed all six of these petitions, asserting their fallibility within Parliament's exclusive domain.
Anoop Baranwal Vs. Union of India: On January 9, 2023, the Supreme Court dismissed a petition; it challenged the Uttarakhand government's decision to establish an expert committee on the UCC. The court underscored that such actions are permissible under Article 162, which declares "the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws." This ruling not only reinforced but emphatically asserted, within its constitutional validity, the right accorded states in progressing towards Universal Civil Code within their respective jurisdictions.
A pivotal actor in addressing the complexities surrounding the UCC, undertook an imperative task assigned by the center in 2016. This role involved formulating a uniform code despite diverse personal laws existing within our country; indeed – it was no small feat.
Former Supreme Court judge Justice Balbir Singh Chauhan, leading the 21st Law Commission in August 2018, presented a consultation paper on "Reforms of Family Law." The commission at that time asserted: A Universal Civil Code (UCC) formulation is not necessary, nor desirable; it underscored the importance of rectifying discriminatory practices embedded within current personal laws.
The 22nd Law Commission, led by Justice (Retd) Rituraj Awasthi, however, taking a proactive stance on June 14th, 2023, issued an elicitation notification: it sought perspectives from diverse stakeholders including public and religious organizations regarding the UCC. This strategic move not only signifies renewed engagement with the concept of a UCC; but also hints at potential evolution within our legal landscape.
The 22nd Law Commission's anticipated report is eagerly awaited as it is projected to offer not only invaluable insights but also critical recommendations; these may profoundly shape future deliberations on the UCC.
Uttarakhand's passage of the Uniform Civil Code (UCC) represents a momentous stride towards legal uniformity in India. This comprehensive legislation addresses an extensive spectrum of personal and familial matters. Its impact transcends religious affiliations; all citizens are subject to its provisions. The reforms in marriage, divorce, inheritance and recognition of live-in relationships exemplify a nuanced approach: they strive for balance between uniformity and India's diverse cultural and religious practices.
The UCC's provisions for compulsory registration and legal consequences for non-compliance, despite raising constitutional privacy concerns, signal a proactive effort to regulate shifting societal norms: an intriguing development in the ongoing discourse. Indeed, with The Supreme Court consistently asserting Parliament's exclusive domain over legislation coupled with Law Commission engagement; complexities deepen at each turn of conversation about this Unifrom Civil Code (UCC).
The evolving legal landscape in Uttarakhand positions its Uniform Civil Code (UCC) as a catalyst: it sparks broader conversations on three crucial facets – the need for legal uniformity, protection of individual rights, and preservation of cultural diversity within constitutional frameworks. Yet only time can reveal this landmark legislation's full implications. Furthermore, it remains to be seen how Indian family laws will shape their future trajectory under these influences.
[1] Uniform Civil Code (UCC), Uttarakhand, Bill 2024
[2] The Indian Succession Act, 1925, No. 39, Acts of Parliament, 1925 (India).
[3] The Prevention of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2007 (India).
[4] The Muslim Marriage Act, 1955, No. 30, Acts of Parliament, 1955 (India).
[5] The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).
[6] National Commission for Women (NCW)
[7] The Anand Marriage Act, 1909, No. 7, Acts of Parliament, 1909 (India).
[8] The Arya Marriage Validation Act, 1937, No. 19, Acts of Parliament, 1937 (India).
[9] (Supriyo v. Union of India, 17 October 2023)
[10] Justice K.S. Puttaswamy (RETD.) and Anr v. Union of India and Ors., (2017) 10 SCC 1
[11] Naz Foundation v. Govt. of NCT of Delhi, (2009)
[12] S. Khushboo v. Kanniammal, (28.04.2010) (3 Judges Bench)
[13] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).
[14] Velusamy v. Patchaiammal, (2010) (SC)
[15] Shah Bano Begum v. Mohammed Ahmed Khan, AIR 1985 SC 945
[16] Sarla Mudgal v. Union of India, AIR 1995 SC 1531
[17] John Vallamattom v. Union of India, (2003) 6 SCC 611
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