Uttarakhand UCC Bill is a missed opportunity
It could have served as a model code for all states. Instead, an incomplete and deficient draft of a uniform family law has been presented in the assembly
The Constitution of independent India had mandated the custodians of State authority to “endeavour to secure a uniform civil code for the citizens throughout the territory of India”. Where do we stand in this regard on the eve of its 75th anniversary? Have any “endeavours” been made in any form in terms of this non-justiciable Directive Principle of State Policy?
The nation has so far maintained the pre-Independence two-tier system of family law consisting of community-specific laws and those of general application. Besides enacting new personal laws for some religious groups and amending those of others, Parliament has enacted several new laws of a non-exclusive nature. The option of a civil marriage was made available to all communities under the Special Marriage Act, 1954, both for intra-religious and inter-religious alliances. Dowry practices were penalised for all communities by an Act of 1961. The Prohibition of Child Marriage Act, 2006 does not exempt any community from its purview. Registration of all marriages is now compulsory under local Acts enacted in compliance with an apex court directive of 2006. Maintenance law under the Criminal Procedure Code, 1973 continues to apply equally to all communities, including Muslims (as ruled by the top court). Live-in relationships were recognised by the Protection of Women from Domestic Violence Act, 2005 and the related case law. Amended versions of the old Guardians and Wards Act, 1890 and the Indian Succession Act, 1925 are meant for all faith groups. So is the senior citizens’ law of 2007.
By consolidating all these laws into a single comprehensive law and extending it to the whole of India, superseding all personal and regional laws, Parliament could have conveniently given to the nation what Article 44 of the Constitution calls “a uniform civil code for the citizens throughout the territory of India”. It is inexplicable why the votaries of such a code — lawyers, judges and the Law Commission included — never suggested the adoption of such a simple measure. Whether this course of action can be initiated at the state level in any part of federal India is debatable. Going by the words of Article 44 of the Constitution, such a move will not answer its call. Yet, if an attempt to draft a uniform family code is officially made anywhere, it may at least produce a preliminary model that lawmakers at the Centre — to whom the constitutional mandate in this regard is addressed — may make use of, should they ever be ready to follow suit.
This is exactly what has been done, though partially and in certain matters illogically, by the Uniform Civil Code Bill of Uttarakhand. It is a voluminous document containing 392 sections and seven schedules. Opening with three sections of a routine nature, the proposed code contains three parts — one each dealing with matrimonial relations, succession and live-in relationships. It ends with a fourth part containing three concluding sections relating, like in any other statute, to repeals and savings and the government’s power to make rules and remove difficulties.
Part I of the proposed code containing matrimonial law is more or less the same as under the Special Marriage Act and the Hindu Marriage Act of 1954-55, including their shared list of prohibited degrees in marriage (which conflicts with personal laws of communities not governed by the latter Act). Like those Acts, the proposed code does allow contrary customs, but it remains to be seen if personal law rules in this regard will be seen as customs defined in the Bill. For the solemnisation of marriages, the Bill recognises religious rites prevalent among all communities, as also the procedure prescribed for civil marriages under the Special Marriage Act, 1954. The elaborate chapter on the registration of marriages in this part reproduces provisions of the local Act of 2010 on the subject, which it specifically repeals.
The law of divorce under this part of the code is also more or less the same as under the two Acts of 1954-55 mentioned above. Following the Hindu Marriage Act, it recognises a change of religion as a ground for divorce (which is not so under the Special Marriage Act). By saying that no marriage shall henceforth be dissolved except in accordance with its own provisions, and declaring the violation of this mandate to be an offence, Sections 29 and 32 of the Bill impliedly make inapplicable in the state the Indian Divorce Act 1869, Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriages Act 1939 and the Muslim law on extrajudicial divorce.
The inheritance law under Part II of the proposed code seems to be a simplified version of its parallel under the Hindu Succession Act. It makes ineffective the inheritance rules of the Indian Succession Act, 1925 meant for Christians and Parsis, as well as the uncodified Muslim law of inheritance. There is no provision in the Bill for joint families and coparcenary property — and since there is no non-obstante clause here, the related provisions of the Hindu Succession Act (including their 2005 amendment) may continue to benefit those who are within the purview of the said Act. The major portion of this Part — 307 out of the 392 sections of the Bill in all — is devoted to intestate succession; and it conspicuously seems to be a revised version of parallel provisions under the Indian Succession Act, 1925. Thus, while matrimonial relations and inheritance rights have been dealt with concisely, the focus of the Bill is on the law of wills and its administrative aspects.
While there are no chapters in the Bill on the adoption of children and maintenance rights, that on live-in relationship is rather an overdose of reform. Non-registration of such relations is an offence, while that of a marriage is not — and this is rather startling.
The UCC Bill of Uttarakhand, on the whole, offers an incomplete and deficient draft of a uniform family law. It needs to be referred for closer scrutiny from a constitutional angle by a wide-based committee of legal experts.
Tahir Mahmood is professor of law and former member, Law Commission of India. The views expressed are personal
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