Legally Speaking | The quest for equality, which is at the heart of the Uttarakhand UCC bill, is flawed
The lure of a common civil code has for long attracted lawmakers. A new civil law, like the UCC, is an opportunity to reflect changed social mores — does it?
Uttarakhand's Uniform Civil Code (UCC) bill, recently passed by the state assembly session, has been a subject of intense discussion. What is its legality? Let's dive in.
The idea of having a common personal law for all citizens can be traced back to the constituent assembly debates in 1947. UCC was introduced as one of the directive principles of the state policy and its concept, relevance and utility were discussed extensively. Despite vehement opposition from some of the constituent assembly members, UCC became part of the directive principle of the state policy under Article 44 of the Constitution of India.
While criminal laws apply to all Indian citizens without regard to religion, caste, race, or creed, distinct religious communities are governed by independent religious laws known as personal laws in case of civil matters such as marriage, divorce, maintenance, guardianship, succession, and inheritance. The Special Marriage Act (1954) offers an exception.
Legally and politically, the UCC has long been upheld as the vehicle for gender justice. The argument goes that personal laws permit cultural prejudices and patriarchal notions to find a place in the law.
For example, till the codification of Hindu Law in 1955 and 1956, Hindu women didn't enjoy equal rights. Before 1955, polygamy was legal among Hindus. Before the Hindu Succession Amendment Act, 2005, Hindu women were excluded from being coparceners, i.e. they could not own and manage joint family property in a Hindu Undivided Family (HUF). However, the amendment permits Hindu women to have a share only in their father’s property and not their husband’s property. Further, a Hindu male can will away his entire property without providing for maintenance of his widow and there are no rules regarding the property of the wife bought at the time of the marriage.
Muslim personal laws also offer examples of discriminatory practices. Previously, there was no compulsion to provide for the wife's maintenance after divorce beyond the 'Iddat' period, in the case of Mohd. Ahmed Khan vs. Shah Bano Begum (1985), the Supreme Court upheld the right of a divorced Muslim woman for post-divorce maintenance under Section 125 of the Code of Criminal Procedure. However, due to the pressure from the Muslim orthodoxy, to undo the verdict, The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted. In Danial Latifi & Anr vs Union Of India (2001) the Supreme Court held that the divorced Muslim woman is entitled to receive maintenance from her former husband not just till the completion of the ‘Iddat’ period, but for the rest of her life until she remarries. In 2019, the Muslim Women (Protection of Rights on Marriage) Act was passed and triple talaq was made illegal. The Muslim personal laws also permit polygamy to Muslim males.
Similarly, Christian personal laws and Parsi personal laws were amended in the Indian Divorce Act in 2001 and The Parsi Marriage and Divorce Act in 1988, respectively.
Thus, as we can see, personal laws have been amended too to make them more equitable and just. Such laws draw from religious texts and beliefs, and will always be patriarchal, inconsistent with modern constitutional laws of the land. Thus reform has its limitations.
What does the bill prescribe?
The UCC bill passed by the Uttarakhand government offers a complete ban on polygamy and child marriage, a standardised marriageable age (21 years for men and 18 years for women) across all faiths, compulsory registration of marriage and a uniform process for divorce. It also proposes the registration of live-in relationships under a month from the date of entering such a relationship, and penal action is prescribed for non-compliance. The UCC bill also proposes granting equal property rights for sons and daughters, elimination of distinctions between legitimate and illegitimate children, and equal treatment for adopted and biologically born children etc.
But the UCC bill doesn't consider contemporary modes of living — it undermines the personal liberty and privacy of the citizens — this is evident from its requirement to register live-in relationships and its erasure of same-sex couples and relationships involving trans persons by using binary gender (man-woman) language. The provision for registration of live-in relationships will likely be challenged in court. Already tribal communities are left outside the ambit of the UCC to honour their tribal practices.
A case for UCC is made by holding it up as a paragon of secularism and national unity. In the Shah Bano case and later in Sarla Mudgal v. Union of India (1995), the Supreme Court emphasised the need for UCC to promote national integration. "In Sarla Mudgal (1995), it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect. Parliament is still to step in to frame a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies," Justice Khare of the Supreme Court stated in John Vallamattom and Anr. v. Union of India (2003).
However, detractors argue that a UCC would encroach on religious freedom — Articles 25 to 28 of the Indian Constitution guarantees freedom of religion and the right to practise various faiths — which is the foundation for diverse personal laws.
It is argued that if a certain set of rules or laws are implied on the people that breach their own religious laws, it would be against their fundamental rights.
Let's assume a UCC is indeed made that applies to the entire country; it would be short-sighted of us to assume that it will remain the exact same piece of legislation some years down the road. The principles of social justice might remain the same, but as the ambit of people seeking justice increases, the law must expand and become more inclusive.
The Uttarakhand UCC had an opportunity in its hands. But it doesn't take into account contemporary modes of living. This is evident from its requirement to register live-in relationships and its erasure of same-sex couples and relationships involving trans persons by using binary gender (man-woman) language.
Prashant Bhaware, a lawyer and researcher, writes about the finer legal points of a case that's making news this week. The views expressed are personal
Recommended Topics