Uttarakhand Chief Minister Pushkar Singh Dhami on Tuesday tabled the Uniform Civil Code (UCC) Bill in the State Assembly three days after a state-appointed panel submitted its final report. If passed by the Assembly, Uttarakhand will be the first State in India to implement such a legislation after Independence.
The introduction of a UCC was a key poll promise of the BJP in the run-up to the 2014 general elections and was reiterated before the 2022 Legislative Assembly elections in Uttarakhand. Following the BJP’s electoral victory on May 27, 2022, the Uttarakhand government announced the constitution of a five-member committee led by former Supreme Court judge Justice Ranjana Prakash Desai to draft the legislation.
While exempting the tribal community from its purview, the Bill proposes a common law on marriage, divorce, inheritance of property, and live-in relationships for all citizens, irrespective of their religion.
This stems from Article 44 of the Constitution, which mandates that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The provision is a part of the Directive Principles of State Policy (Part IV of the Constitution), which although not enforceable, play a pivotal role in the country’s governance.
Following Uttarakhand’s footsteps, two other BJP-ruled States — Madhya Pradesh and Gujarat — have appointed committees to initiate the formulation of a UCC.
Here are some of the key features of the Bill:
Also read: Uttarakhand’s Uniform Civil Code: What it means and what lies ahead? | Explained
Tribal communities exempted
The tribal communities which comprise 2.9 per cent of Uttarakhand’s population have been exempted from the application of the Bill. Section 2 stipulates — “Nothing contained in this code shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 read with Article 142 of the Constitution of India and the persons and group of persons whose customary rights are protected under Part XXI of the Constitution of India.”
Given their unique customary practices, tribal communities have been averse to a UCC from the very beginning. Pritam Singh, one of the two Scheduled Tribe (ST) MLAs of the State pointed out earlier that the community had not consented to the UCC. The Van Gujjar tribe, a Muslim nomadic tribe with a population of around 60,000, had also expressed apprehensions over the law.
Procedure for registration of live-in relationships
The Bill aims to regulate live-in relationships by imposing an obligation to register them. A live-in relationship has been defined as a “relationship between a man and a woman who cohabit in a shared household through a relationship in the nature of marriage.”
Section 378 makes it mandatory for partners in a live-in relationship within the State (irrespective of whether they are residents of Uttarakhand or not) to submit a “statement of live-in relationship” to the concerned Registrar within whose jurisdiction they are residing. Even if such a relationship is terminated, the Registrar has to be kept informed.
Such a statement will then be forwarded to the officer-in-charge of the local police station for maintaining records. In case either of the partners is less than 21 years of age, a copy of the declaration will also be sent to their parents or guardians.
Subsequently, the Registrar will conduct a “summary inquiry” to ensure that the relationship does not fall under any of the prohibited categories mentioned under Section 380 — if a partner is married or in another relationship, if he or she is a minor, and if his or her consent was obtained by “coercion, fraud or misrepresentation”.
Such prohibitions will, however, not apply to persons whose customs permit the relationship, provided that they are “not against public policy or morality”.
Following the enquiry, the Registrar will have to take a decision on the registration within 30 days of receiving the couple’s statement. Should registration be refused, reasons have to be conveyed in writing.
Notably, a woman is also eligible to claim maintenance in case she is “deserted” by her live-in partner.
In March last year, the Supreme Court dismissed a petition seeking a direction to the Centre to frame rules and guidelines to register live-in partnerships. Expressing strong disapproval towards the relief sought, a bench led by Chief Justice of India D.Y. Chandrachud called it a “hare-brained idea” while underscoring that costs should be imposed on such petitions.
Penalty for non-registration of live-in relationships
In case, couples in a live-in relationship do not submit their statement, they will be served a notice following which criminal prosecution can be initiated against them.
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If they have spent a month without submitting such a statement, they can face a jail term of up to three months or a maximum fine of Rs 10,000, or both. Any false statement by the couple will also attract the same jail term, but a higher fine amount of Rs 25,000, or both.
Upon being issued a notice by the Registrar, if a partner still does not submit the statement of the live-in relationship, he or she may face six months of imprisonment or a fine of Rs. 25,000 or both.
Legal recognition of children born out of wedlock
In a progressive move, the Bill abolishes the concept of “illegitimate children”. Existing personal laws especially those pertaining to inheritance and maintenance, discriminate against children born out of wedlock by deeming them illegitimate and not granting them rights at par with children born within wedlock.
The new law extends legal recognition to children born in void and voidable marriages, as well as children born in live-in relationships.
Prohibition of bigamy or polygamy
Section 4 of the Bill lists five conditions for marriage one of them being — “neither party has a spouse living at the time of the marriage”, thus prohibiting bigamy or polygamy. Other conditions include the minimum age for marriage which has remained the same, i.e. 18 years for women and 21 years for men.
The Bill retains the “custom” exception from the Hindu Marriage Act for married couples who fall within the “degrees of prohibited relationships”. Two persons are said to be within the “degrees of prohibited relationship” if they share a common ancestry or if they are the wife/husband of a common ancestor.
Registration of marriages
Marriages that occur after the enactment of the Bill have to be compulsorily registered regardless of any other existing laws or customs. The registration will have to be done within 60 days from the date of the marriage. It applies to marriages solemnised within the State or outside its territory, provided that at least one party to the marriage is a resident of the State.
Although non-registration of marriage will not invalidate it, parties can attract a penalty of up to Rs 10,000. A three-month jail term and fine of Rs 25,000 will be also awarded in case false information is intentionally rendered during marriage registration.
Marriage ceremonies can be conducted in accordance with prevailing religious beliefs, customary rites, and practices envisaged under legislations such as The Anand Marriage Act 1909, The Special Marriage Act 1954, and the Arya Marriage Validation Act 1937, among others.
No marriage can be dissolved without a court order or else it can attract imprisonment up to 3 years.
Divorce proceedings
Men and women have been accorded similar rights with respect to divorce. Grounds for divorce include — adultery, cruelty, desertion, conversion to another religion, mental disorder, incurable venereal disease, renunciation of the world, absence for seven years, bigamy, and failure to comply with maintenance orders. It allows for judicial separation in certain cases and divorce on mutual consent.
However, “irretrievable breakdown of marriage” has not been included as a ground for divorce despite being recognised in several Supreme Court judgments. Prevalant personal laws are built predominantly on “assigning fault” on one or the other partner.
Further, “voidable” marriages can be annulled on grounds such as non-consummation, contravention of marriage conditions, force or coercion in obtaining consent, or pregnancy by someone other than the spouse.
Notably, Section 28 prohibits the initiation of divorce proceedings unless one year has elapsed since the date of marriage. However, an exception can be made if the petitioner has suffered “exceptional hardship” or if the respondent has exhibited “exceptional depravity”.
Women have special rights to seek divorce under the Bill only under two circumstances — if the husband has been found guilty of rape or any kind of unnatural sexual offence; or if the husband has more than one wife.
In case of divorce, the custody of a child up to 5 years of age remains with the mother but it is unclear whether the mother will also be an equal legal guardian. The Guardians and Wards Act, 1890 — a secular legislation, will continue to govern court-appointed guardianship.
Criminalisation of muslim personal law practices
Existing Muslim personal law practices governing marriage and divorce such as nikah halala, iddat, and triple talaq have been criminalised under the Bill without explicitly naming them. For instance, Section 30(1) stipulates that the right of a person to remarry the divorced spouse can only be exercised without any condition, such as marrying a third person before such a marriage. This therefore prohibits the practice of nikah halala.
Section 32 further provides that anyone who “compels, abets or induces” to observe any such condition before remarriage will be punished with imprisonment up to three years and also be liable to pay a fine of Rs 1 lakh.
Inheritance
The Bill extends equal property rights for sons and daughters across all classes. Illegitimate children, adopted children, and children born through surrogacy or through assisted reproductive technology are also considered to be at par with biological children.
A distinct feature of the Bill is that it abolishes the coparcenary system governing ancestral property under the Hindu Succession Act, 1956. Four generations of Hindus hold ancestral property as coparceners. After a person’s demise, his or her share in the coparcenary property forms a part of the property pool again. Thus, under the new law, the same scheme of succession will now apply to both ancestral and self-acquired property for Hindus.
In case of intestate succession i.e. when a person dies without leaving behind a registered will, the Bill guarantees equal property rights for the spouse, children, and parents— a departure from existing personal laws that limit such rights. If there is no immediate family, the property will be equally divided among second-line relatives — first cousins from the paternal side. Others can also stake a claim if no eligible claimants are found.
Queer relationships not recognised
The Bill leaves out members of the LGBTQIA+ community from its ambit and applies only to heterosexual relationships. While it uses gender-neutral terms like “partners”, it defines a live-in relationship specifically as a “relationship between a man and a woman” who cohabit in a shared household through a relationship in the nature of marriage.
This is a missed opportunity since the Supreme Court in its marriage equality verdict recognised the legislature to be the competent forum for imparting rights to queer couples.
- The introduction of a UCC was a key poll promise of the BJP in the run-up to the 2014 general elections and was reiterated before the 2022 Legislative Assembly elections in Uttarakhand.
- The tribal communities which comprise 2.9 per cent of Uttarakhand’s population have been exempted from the application of the Bill.
- The Bill aims to regulate live-in relationships by imposing an obligation to register them.
