At a recent conclave, I was asked to speak on the issue of Uniform Civil Code (UCC). My first response was “what do we speak about? What exactly was the government proposing? In the absence of a working draft, was it not all simply in the air?”
I clarified that “if by UCC we mean making laws more just and facilitating gender justice, I was all for it. However, if by it we mean artificially constructing a ‘majority’ community and obliterating the diversity and nuances of India, history compels me to dissent.”
I reminded them that the last time rulers of this great land tried to artificially create a ‘homogenous community with a common law,' it proved to be a total disaster leading to the eventual partition of India. Yes, I was referring to the period when the Imperial government of British India, singed by the Congress party’s Swadesi and Satyagraha, was shamelessly promoting its bete noir - the Muslim League.
To create a united constituency for the supplicant League, the British introduced the Application of Shariat Act, 1937, which, by one fell swoop obliterated all the local customary laws which India’s Muslims had followed for generations. For example, the Maplah Muslims followed the Matrilineal Marumakathayam Hindu laws of Kerala, the Kutchi Memons of Gujarat followed the local Hindu laws of succession and inheritance. Yet, the new law uniformly applied the Shariat to all Indian Muslims, further fuelling Jinnah’s contrived one “Muslim Nation” Theory.
Now, I have to revise my response, as on February 6, 2024, we finally have the first “draft” UCC which the State of Uttarakhand intends to pass during its strategically-timed special session of the state assembly.
I have speed read the UCC of Uttarakhand, 2024. An honest appraisal would require a more in-depth study. At first glance, however, it is apparent that the only uniformity it brings is that most provisions of the Special Marriage Act (SMA), 1954 and the Indian Succession Act, 1956 have been cut and pasted into a single body governing Part 1-Marriage and Divorce, Part 2-Succession and Part 3 Live-In Relationship.
Of course, it has been strategically tweaked. For instance, Section 25(1)(iv) of the UCC makes religious conversion a ground for divorce, which though a ground under the Hindu law, was not a ground under the SMA.
The bizarre provisions of Part-3 on “Live In Relationship” compel me to pen these thoughts without awaiting a full study of all the other provisions of the Code!
Section 378 of the UCC makes it “obligatory” for partners in a live-in relationship, whether residents of the State or not, to submit a “statement of live-in relationship” to the jurisdictional registrar.
Bizarrely, the law also requires Uttarakhand residents who were “staying in a live in relationship” outside the State to submit such statement before the registrar “within whose jurisdiction such resident(s) ordinarily resides.”
If the shoddy drafting is momentarily overlooked, given that one state law cannot impose an obligation on officers of another state, perhaps the intention is to refer to the registrar within whose jurisdiction the permanent home of the non-resident is located.
However, the law does not address the situation when the resident does not “ordinarily” reside in Uttarakhand at all. This is an issue which will already generate much bread and butter for lawyers in the coming times. Keep in mind that a “resident” is defined by the UCC as a:
Person eligible for permanent residency
Permanent employee of the State government or its undertakings
Permanent employee of the Central government employed withing the State
Resident of the State for not less than one year
Beneficiary of a State scheme or a Central scheme applicable to the State.
Thus, a resident of Delhi, if permanently employed by the Uttarakhand Bhawan in the national capital, would, by this definition, be deemed a “resident” and have the UCC made applicable to her even if she has never set foot in the State!
Similarly, if a member of the paramilitary force or the armed forces or the central intelligence is posted or stationed in Uttarakhand, even if the spouse is away in his or her home state, such person would be covered by such an open-ended definition! The period of such deployment is irrelevant as it is not linked to the one-year residence in the state, which by itself is an independent factor to be categorized as a “resident”.
On a positive note, Section 379 of the UCC stipulates that the child of a live-in relationship shall be considered “legitimate”. Section 380 of the UCC, however, denies the right to register a live-in relationship where:
Partners are within prohibited degrees
One of the partners is married or in another live-in
One of the partners is minor
Where the consent of one partner is vitiated
Section 381 of the UCC sets out the elaborate procedure for the compulsory registration of the live-in relationship. The registrar is empowered to even conduct a “summary inquiry” to satisfy himself as to whether the couple qualifies for registration. Section 381(3) permits the registrar to not only summon the couple, but also “other persons” in respect of the inquiry. After inquiry, within 30 days, the registrar may enter the names in the register or refuse to register the same.
What is the consequence of refusal to register? What is the procedure for appeal against a such a decision? After all, Section 382 of the UCC states that the registration is only for the purpose of record. Section 384 of the UCC provides that the couple jointly or unilaterally can terminate the live-in relationship and submit a “statement of termination” to the registrar.
Section 387 of the UCC makes it a criminal offence to stay in a live-in relationship for more than one month without submitting a statement to the registrar.
Inexplicably, while Section 4 of the UCC states that a girl can marry at the age of 18, Section 385 of the same law compels the registrar to notify the parents and the local police station should one of the live-in partners be less than 21 years of age! Such intimation to the parents/guardians is also provided in respect of a break up involving a partner less than 21 years of age.
Again, on a positive note, Section 388 of the UCC provides that a woman “deserted by her live in partner” would be entitled to claim maintenance.
They say that the road to hell is paved with good intentions. While it is laudatory to ensure “maintenance” and “child legitimacy” in the context of a live-in relationship, the system as proposed is not only impractical, but also open to abuse.
Couples, especially inter-faith couples, often opt for a live-in relationship until they are able to prevail upon their respective families or complete the notice formalities associated with a civil marriage. This intrusive system where any relationship beyond a month has to be disclosed at the pain of punishment and then be subject to an intrusive inquiry process which may involve parents and third persons could seriously impact the privacy and dignity rights of people.
The table below offers a comparison of the UCC and existing laws:
Sanjoy Ghose is a Senior Advocate of the Delhi High Court.
Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of Bar and Bench.