Not just live-in clause, Uttarakhand UCC is full of glaring inequities

This robust criticism has, however, perhaps unwittingly, served another purpose too. It has diluted the immediate public scrutiny that the code’s provisions to harmonise pre-existing personal laws ought to have attracted.

UCC and Hindutva

The avowed goal of bringing the UCC, among the oldest poll promises of the Bharatiya Janata Party (BJP), was to have one set of codified civil laws to govern all citizens, irrespective of their faith, caste and gender, on matters of marriage, divorce, maintenance, succession and inheritance. Such a code would subsume all existing and constitutionally-protected personal laws and, per the BJP, unite the country under one law to ensure a society that is egalitarian and gender-just.

That many saw a nefarious design in the BJP’s UCC push was because of the party’s divisive Hindutva ideology, rooted within which is an insatiable hunger to rob Indian Muslims of much more than just their personal laws. The obstinate refusal of India’s Islamic clergy and political leadership to weed out oppressive and regressive practices legitimised under the Shariat – talaq-e-biddat (instant triple talaq; outlawed by the Supreme Court in 2017 and criminalised by Parliament subsequently), polygamy and nikah halala, to name some – only allowed the BJP’s pitch for a UCC to gain acceptance beyond the wider Sangh Parivar ecosystem.

Key provisions

Yet, for decades, the UCC remained a chimera – a beast many feared without having ever seen its shape or form. The Uttarakhand UCC, brought by the BJP’s Pushkar Singh Dhami-led government and now expected to be replicated in other states where the party is in power, finally defines the contours of that beast – and yes, there are ample reasons to fear the mayhem it can cause.

Limitations of brevity prevent a detailed analysis of the bulky code that includes 392 Sections. As such, let us examine some of the key provisions of the code and also whether the new law delivers on the BJP’s promise of achieving uniformity in civil laws, ensuring gender justice by strengthening women’s legal rights and eliminating oppressive practices. It needs to be made clear that the so-called Uttarakhand Uniform Civil Code does not apply uniformly to all citizens of the state. Section 2 explicitly states that the law will not apply to Scheduled Tribes “within the meaning of clause 25 of Article 366 read with Article 342 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”. Thus, the Uttarakhand code starts with excluding from its ambit an estimated three percent of the state’s population that identifies itself as Jaunsari, Bhotiya, Thari, Buksa, Raji or any other community identified as ST.

Further, the code, by a clever chicanery of silence, leaves out people living in what is legally identified as a Hindu Undivided Family (HUF). By not identifying HUF as a category, the code allows such units to continue enjoying taxation benefits different from other family units while also curtailing rights of daughters in matters of succession and inheritance.

LGBTQ community

The most glaring inequity in the code on the touchstone of gender parity and gender justice, however, is its regressive approach of not identifying the LGBTQ+ community at all. In doing so, it further perpetuates the injustice meted out to the LGBTQ+ community last year by the Supreme Court, which refused to give legal sanctity to same-sex unions.

The same SC verdict had simultaneously called for legislative initiative for granting such marital rights to the LGBTQ+ community. The BJP’s Uttarakhand government could have used this to frame a truly progressive law but refused to do so. In fact, the hill state decided to go one step backwards.

Regulating live-ins

While the Supreme Court decriminalised consensual same-sex relations way back in 2018, the Uttarakhand code, in 2024, stamps out even the possibility of same-sex couples legally living in by bringing outlandish provisions that will, henceforth, regulate live-in relationships in the state.

The code does achieve uniformity among personal laws on the subject of legal marriageable age by imposing conditions of the Hindu Marriage Act and the Special Marriage Act – both prescribe marriageable age for men and women to be 21 years and 18 years respectively – on all citizens. This provision, laid down in Section 4 (iii) of the code, thus, invalidates the Islamic Shariat’s sanction for marriage of a minor upon attaining puberty. However, the code still keeps a lower legal marriageable age for women than men.

Divorce, polygamy and polyandry

The BJP and other voices that have spoken in favour of the UCC have, to justify the plaudits, highlighted that the code bans and criminalises polygamy, polyandry, nikah halala while also scrapping all forms of divorce – talaq-e-biddat (already banned since 2017), talaq-ul-sunnat, khula, zihar, muba’rat – sanctioned under the Shariat. The Code doesn’t specifically mention any of these practices but its sections, while invalidating such formats, refer to what some of these entailed. For instance, under Section 4, the code bans polyandry and polygamy by stating that a marriage may be solemnized “between a man and a woman” only if “neither party has a spouse living at the time of the marriage”.

Similarly, without mentioning nikah halala the code bans the practice under Section 30 (2) which grants the “right to remarry the divorced spouse without any condition, such as marrying a third person before such remarriage”. The law further criminalises nikah halala by stating in Section 32 (1) (iii) that anyone who “compels, abets or induces a person to observe any condition as is referred to in sub-section 2 of Section 30 before remarriage” shall be punishable with a jail term of up to three years and be liable to a Rs 1 lakh fine, and in default of fine, to undergo further imprisonment of up to six months.

Illegitimate child

There can be no doubt or debate on the merits of outlawing practices such as polygamy, polyandry and nikah halala; and to this extent, the code has brought in much needed reform. Likewise, the code and its framers, including a five-member expert panel headed by retired Supreme Court judge, Justice Ranjana Desai, deserve praise for doing away with the construct of an “illegitimate child”. The code recognises children, be they born in void or voidable marriages or in legally recognised live-in relationships, as legitimate.

What should be worrisome, though, are the provisions that the code outlines – or doesn’t – in various matters. Among the several other ways in which it seeks to grant the State unnecessary rights of interference and punitive powers in and over personal lives, the most blatant of which are manifested in the rules laid down for live-in relationships, is the provision for “compulsory registration” within a period ranging from 60 days to six months (for different categories outlined under the code) of both marriage and divorce, wherein one of the parties is a resident of the state.

Marriage registration

Though the code states that non-registration of marriage will not invalidate the union, it imposes a fine ranging from Rs 10,000 to Rs 25,000 on individuals who fail to register their marriage or divorce within the prescribed time limit. Even more ludicrous is the code’s stipulation in Section 15 that “registers of marriage and divorce” will be open for “inspection by any person” and that any person can also seek certified extracts of marriage/divorce registration upon submitting an application and payment of a prescribed fee.

That inter-caste and, more particularly, inter-faith marriages in India have attracted unwarranted interference and harassment by the moral police in recent years is widely documented. It is not difficult to discern how mandatory registration of all marriages and keeping such records open to public scrutiny can be misused by bigoted vigilantes and political workers of a certain ideology while putting the lives of couples in such marriages at great risk.

Inviting harassment

Similar scope for harassment is offered in the code against individuals who simply wish to be in a live-in relationship. The code requires live-in couples not just within Uttarakhand but even an Uttarakhand resident living-in outside the state to register such a relationship “upon completion of one month” of such an arrangement. A register of live-in relationships is also to be maintained, as per the code.

If this by itself is a bizarre precept, the code gets even more preposterous in envisaging the role of the State as a peeping tom in the bedroom. The code grants the Registrar power to register or refuse to register a live-in relationship and to also conduct a summary inquiry into the relationship by summoning not just the partners entering into such arrangement but also “any other person” for verification. It further requires the Registrar to inform the jurisdictional police station about a live-in relationship and to inform the parents or guardians of the live-in partners if either of them is between 18 and 21 years of age.

Lack of uniformity

And this is not all. The failure to register a live-in relationship within the prescribed time can attract an imprisonment of three months or a fine of Rs 10,000, or both, while concealing or falsifying any fact regarding such a relationship can land the live-in partners in jail for three months, attract a penalty of Rs 25,000 or both. The code also requires registration of termination of a live-in relationship.

A lack of uniformity is also evident in the stipulations laid down for providing maintenance to a partner in a live-in relationship. Though in cases of divorce, the code grants equal right to both wife and husband to seek maintenance from either party, in a live-in relationship that the code elevates to the status of a marriage in all aspects but name, such right is reserved, albeit in a vague sense, only for the woman if she “gets deserted by her live-in partner”.

Patriarchal provisions

Another obvious lapse in the code is its failure to do away with utterly patriarchal provisions in pre-existing marital and divorce laws regarding restitution of conjugal rights. Section 21 allows an aggrieved party to petition a court seeking restitution of conjugal rights when “either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other”. Clearly, the notion of bodily autonomy remains alien to the framers and backers of the UCC, as does marital rape which, again, has been excluded from the new law.

The code also does little to grant a wife parity with her husband on the issue of guardianship of a child. Though the new law, under Section 35 (2), states that the custody of a child aged below five years “shall ordinarily be with the mother”, the code doesn’t identify the mother of a minor child as a “guardian”; a legal right that is bestowed only on the father as per the Guardians and Wards Act (GWA), 1890. In lay terms, under the new code that supposedly ushers in gender justice, while the father will continue to enjoy powers, vested through GWA, 1890 to make decisions for a minor child and on matters relating to the child’s property, the mother can, at best, hope to function as a custodian or caretaker.