The Uniform Civil Code (UCC) bill, which the Uttarakhand government introduced in the House on Tuesday, will be the first of its kind to be implemented in a state following independence if it is passed.
The proposed law, called the Uniform Civil Code (UCC), Uttarakhand, 2024, conveyed the Pushkar Singh Dhami government’s resolve to put in place an overarching legal regime for governing personal matters, including marriage, divorce, live-in relationships, and succession, regardless of religion.
The bill contemplates an official mechanism under the state government for compulsory registration of marriages, besides providing for the first time a legal recognition to live-in relationships that can be registered as well as dissolved under the proposed legislation. Intriguingly, the bill also criminalises staying in a live-in relationship for more than a month without registering it and the offence can lead to a jail term of up to three months.
Under the proposed law, the practice of polygamy and marriage on attainment of puberty – otherwise allowed under the Muslim personal law — have been sought to be done away with, whereas seeking divorce through different forms of ‘talaq’ would be a penal offence that can entail up to three years in jail.
The 192-page bill contains a variety of new provisions that the state government has envisaged for applying to the residents of the state irrespective of their religion. An analysis of the bill while juxtaposing it with the concept of UCC becomes relevant to analyse how Uttarakhand has tried to navigate through the muzzle of personal laws and whether the bill can withstand a constitutional validity test, should it be challenged in court. Such an exercise is also important given that several other states have already indicated their predisposition to a similar law.
UCC and the Constitution:
A Uniform Civil Code basically means a common set of laws that all people of the nation, regardless of their religion, must follow when it comes to personal matters such as marriage, divorce, adoption, inheritance, and succession.
At present, different religious communities in India are governed by personal laws, which have been codified over the years through various pieces of legislation. Some examples of such laws are: Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act. However, Muslim personal laws are not codified and are based on their religious texts, although certain aspects of these are expressly recognised through laws such as the Shariat Application Act and Dissolution of Muslim Marriages Act.
Article 44 of the Indian Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Directive Principles, as Article 37 makes clear, are not enforceable by any court but nevertheless fundamental in the governance of the country, and it shall be the duty of the State to apply these principles in making laws.
A body of judicial precedents, including the famous Minerva Mills Case (1980), have held that the harmony and balance between Fundamental Rights and Directive Principles of State Policy was an essential feature of the basic structure of the Constitution. “The Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles,” held this judgment. Similarly, in Dalmia Cement Case (1996), the apex court held that the preamble to the constitution, fundamental rights, and directive principles– the trinity – were the conscience of the Constitution. Several such judgments have maintained that directive principles were fundamental in the governance of the country, and the State shall strive towards fulfilling obligations laid therein.
The statement of object and reasons of Uttarakhand’s UCC refer to Article 44, saying that the statute was being framed in compliance with the constitutional provision to ascertain citizens residing in the state are regulated by a common set of laws.
Marriage and Divorce under UCC, Uttarakhand:
The proposed law presents a uniform legal framework allowing girls and boys to marry at the age of 18 and 21 years respectively, which is on par with the Hindu Marriage Act, Special Marriage Act, Indian Christian Marriage Act or the Parsi Marriage and Divorce Act.
Muslim personal laws, however, allow girls to get married on attaining puberty, i.e.15 years of age. UCC not only prohibits it but also provides under Section 32 that those involved in a marriage where either of the couple or both are below the legal age of marriage will be sentenced to jail for a term up to six months, besides a fine. The same punishment will be for marrying someone within the degree of prohibited relationship. The bill lists 37 such relationships, related by blood or otherwise, that come under the definition of prohibited relationships.
The bill declares a second marriage to be void, ending polygamy regardless of religion. While polygamy has been outlawed under personal laws regulating Hindus, Sikhs, Jains, Buddists, Christians and Parsis, the Shariat Act of 1937 still allows a Muslim man to have four wives.
While a marriage may be solemnised in accordance with the religious beliefs and customs, it must be registered in Uttarakhand if one of the parties to a marriage has been a “resident” of the state. As Uttarakhand already has a law on compulsory registration of marriages since 2010, those couples that have already registered their marriage under the old law require to submit a declaration of their previous registration. The UCC bill defines a “resident” as someone who has been residing in the state for at least a year or is either a permanent employee or a beneficiary of a scheme under the Centre or state government.
Within 60 days of marriage, a couple has to jointly prepare and sign a memorandum, as prescribed under the proposed law, and submit it with the sub-registrar, who in turn, in the next 15 days will issue a certificate of marriage or inform the parties about reasons for rejecting their registration. While a failure by the sub-registrar to revert will amount to deemed registration of marriage, a rejection can be challenged before the registrar general, who will be secretary-level officer in the state. The same process has been contemplated in cases of couples seeking divorce. Making a false statement at the time of seeking registration of marriage or divorce has been made a penal offence under UCC, fetching an imprisonment up to three months.
To be sure, the bill makes it clear that non-registration of a marriage will not invalidate a marriage although it will result in imposition of fine by the sub-registrar of marriages and other consequences.
UCC further lays down that a marriage can be dissolved only through a court order, thereby outlawing different forms of “talaq“ allowed under the Muslim personal law. The bill invalidates all extra-judicial forms of divorce, including talaq-e-hasan, talaq-e-ashan, talaq-e-tafweez and khula, that are recognised under the Muslim personal law. Section 32 of UCC goes on to hold that a dissolution of marriage without a court order would invite a punishment of up to three years in jail along with a monetary penalty.
Both men and woman will be entitled for alimony under the bill, on the lines of Section 24 of the Hindu Marriage Act that provides for gender-neutral provision of maintenance. All orders relating to marriage, divorce and alimony are to be challenged directly before the state high court.
While most of the provisions relating to succession and inheritance are on par with Hindu laws, they importantly add “father” as a class I heir in cases of intestate succession — when someone dies leaving behind no will or testament. Under the Hindu laws, only mothers are entitled to equal share in property along with sons, daughters and widows, the Uttarakhand UCC includes fathers too in the primary list of successors in such cases.
Legal recognition of live-in relationship:
The proposed law defines “live-in relationship” as a relationship where a man and a woman cohabit under a relationship that is in the nature of marriage.
UCC obligates all persons in live-in relationships residing in the state, regardless of whether they are residents of Uttarakhand or not, to submit a statement of their relationship to the registrar concerned. Though living outside, residents of Uttarakhand have also been mandated to submit a statement of their live-in relationships to the registrar of their ordinary place of residence.
The registrar will then conduct a summary enquiry into the relationship to ascertain both are major, unmarried and not within the degrees of prohibited relationship. The bill empowers the registrar to summon the couple or any other person before taking a call on registration of a live-in relationship.
A live-in relationship can also be dissolved under UCC after either or both parties submit a statement of termination to the registrar.
The bill prescribes that the registration of live-in relationships “shall be only for the purposes of record” even as it casts a duty on the registrar to forward such statements to the local police station and also inform the parents of the partner who is less than 21 years of age. Parents of such a partner will be informed again upon termination of a live-in relationship.
The proposed law also makes it compulsory for couples to register their live-in relationships within a month of their relationship, and failure to do so or furnishing false information can land them in jail for a period up to three months, along with a fine of ₹10,000. Not submitting a statement of relationship after being put on notice by the registrar can extend the jail term by another three months. The registrar can issue a notice on his own motion or upon receipt of information from a third party complaining about a couple failing to submit the statement of such relationship.
A child born out of a live-in relationship will be a legitimate child of the couple, states the bill, adding it will be for the court where the couple last cohabited to exercise its jurisdiction in pertinent matters, including provision of maintenance to the woman partner who was deserted.
Even as no other state in the country has accorded legal recognition to live-in relationships, an array of Supreme Court judgments has granted judicial sanctity to such relationships, along with ancillary rights of maintenance, inheritance and legitimacy of children.
“Two individuals cohabiting and staying in a live-in relationship are not criminal offenders,” said the top court in Payal Sharma Vs Nari Niketan, (2001). In Lata Singh Vs State of Uttar Pradesh (2006), the Supreme Court held live-in relationships to be legal by referring to Article 21 (right to life and personal liberty) of the Constitution. The court declared that for two consenting adults of heterogenic sex to live together is part of their right to life and it does not amount to a “criminal offence” even though it may be viewed as immoral by a section of the society.
Supreme Court’s views on UCC so far:
Since deciding the Shah Bano Case in 1985, the Supreme Court has focussed on UCC in a number of its rulings. Even as it has consistently advocated a move in the direction of uniformity in the spirit of Article 44, the apex court has refrained from issuing any order, underlining that law-making is the exclusive right of Parliament.
In Shah Bano, the court lamented: “It is a matter of regret that Article 44 has remained a dead letter…Common civil code will help the cause of national integration by removing desperate loyalties to laws, which have conflicting ideologies.” Again, in the Sarla Mudgal case (1995), which dealt with issues of bigamy and conflict between the personal laws existing on matters of marriage, the court highlighted the need for UCC, saying until a common law was enacted, there will be always a loophole because different faiths had different beliefs. It requested the Prime Minister of India to have a fresh look at Article 44 and endeavour to secure for the citizens a UCC.
However, the Supreme Court’s subsequent orders in Ahmedabad Women Action Group Case (1997) and Lily Thomas Case (2000) clarified that no direction was issued to the government for enactment of UCC in the Sarla Mudgal case.
The year 2015 witnessed the top court divided over the subject once again. In September-October 2015, the apex court revived the debate over the common law when it asked the Central government whether it was willing to bring UCC since there was, it said, “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance across different religions. But in December 2015, another bench of the Supreme Court turned down a petition for UCC, saying the apex court’s observations for enacting a common law could only be in the “realm of hope and expectations” but a mandamus (directive) could not be issued to the government.
Beginning December 16, 2020, advocate Ashwini Upadhyay succeeded in drawing the top court’s attention to as many as five petitions that he filed pressing for uniformity in personal laws across religions. These petitions separately asked for religion-neutral laws on legal age to marry, divorce, alimony, adoption and guardianship, and succession and inheritance. These petitions are pending before the top court.
In June 2016, the Union ministry of law and justice made a reference to the Law Commission of India for examining all matters relating to the implementation of UCC. The Commission, however, did not submit a final report on the issue and rather furnished a consultation paper on “Reform of Family Law” in August 2018. This consultation paper stated that UCC was “neither necessary nor desirable at this stage” and recommended that existing family laws across religions required to be amended and codified to tackle discrimination and inequality in personal laws.
Deciding to revisit the issue, the Law Commission in June 2023 set about to examine the feasibility of UCC afresh and solicited views on it from the public and recognised religious organisations. The Commission has however not released its final report on UCC till date.
Implementation of UCC has been part of election manifestos of BJP, that has often cited the example of Goa, which has a common law called the Goa Civil Code.
Prime Minister Narendra Modi has also expressed his support for UCC. In an interview to Urdu weekly Nai Duniya published in May 2014, he acknowledged that the Constitution said the government will make efforts to implement UCC while adding that a common law did not mean thrusting of Hindu code on all citizens. While addressing BJP workers in Bhopal in June 2023, the PM again made a strong push for it. Asking how the country can function with dual laws that govern personal matters, Modi accused the Opposition of using UCC issue to “mislead and provoke” the Muslim community.
One of the most frequently used arguments against the implementation of UCC is that it will represent a tyranny of the majority and greatly increase social division in India by eradicating and marginalising the country’s minorities and robbing them of their identity, which is largely preserved by the existence of personal laws. Those in favour of UCC, however, argue that unification of personal laws will generate a more coherent regime and efficient administration of laws.
Uttarakhand may just be the test case for examining not only the sanctity of the objective behind UCC but also the constitutionality of a bundle of provisions that can arguably be tested on the anvils of freedom to practice religious beliefs, right to privacy and most importantly, right to autonomy in personal matters.