Before the 22nd Law Commission of India submits its recommendations on the question of a Uniform Civil Code (UCC), it ought to take a real hard look at how the Uttarakhand avatar of the law is playing out. The Uttarakhand code that was passed in the legislative assembly on February 7, ironically the first day of Valentine's week, stirred up a hornet's nest by entering into the individual privacy domain of live-in relationships.
It became the first state in the country to comprehensively regulate such arrangements. The bill describes a live-in relationship as one between a man and a woman who cohabit in a shared household in the nature of marriage. Civil rights activists claim its formulations are troubling at multiple levels like the mandatory registration of partners; penalty or imprisonment on failing to do so; and intimation to parents if a partner is under 21.
Chief Justice of India D Y Chandrachud in a LGBTQ+ rights case last year had advised states not to interfere with the freedom of consenting adults to form legitimate “intimate associations”. And a different bench of the Supreme Court in a case in 2018 had held that the choice of a partner lies within the exclusive domain of each individual's core zone of privacy, which is inviolable. Yet, the Uttarakhand code stipulates that anyone in a live-in relationship for more than a month without registration will face punishment with imprisonment up to three months or a fine of up to Rs 10,000 or both. And live-in couples who fail to get their relationship registered within a month of being served a notice by the registrar to do so will be punished on conviction by a judicial magistrate with a prison term up to six months or a fine of up to Rs 25,000 or both.The Uttarakhand code is at present awaiting presidential assent.
Enquiry by registrar
More intrusive is Section 381 of the code, which empowers the registrar to examine the statement submitted by prospective live-in partners, conduct a summary enquiry to check if the relationship is in order and summon them for questioning if required. The stated purpose is to find out if the consent of a partner was obtained by force, coercion, undue influence, misrepresentation or fraud.
The code gives the registrar 30 days to accept the statement of the live-in partners, record it and issue a registration certificate - or spike it. A similar exercise would follow for termination. If the registrar concludes that the relationship is not kosher, he would alert the police to take necessary action. After creating all that anxiety, the code says, the purpose of registration is just to maintain records. It goes on to mandate that no live-in relationship with a minor can be registered. And if any of the partners is under the age of 21, the registrar will inform their parents or guardians. For its part, the government claims the primary objective of the bill is to safeguard women's rights.
Legitimate offspring
On the positive side, children born of such relationships will be considered legitimate. Also, deserted women will be entitled to maintenance from their partners as their relationship is treated as marriage. While the point about registration being tied to safety and benefits is well taken, what is lost in the process is individual privacy. The burden of registration could shoo off unmarried partners who otherwise want to cohabit.
A public interest litigation on the violation of fundamental rights may not be too far away. Besides, bringing the police into play in the case of non-registration of live-ins is a double-edged weapon that could do more harm than good.
Privacy concerns
Reacting to the code, a Hindu couple in a live-in arrangement in a posh locality in Dehradun for a year said they were appalled at the regulation. The partner who works at a private college, told this newspaper, "Within my social sphere, our cohabitation is common knowledge, yet this new legislation encroaches upon our privacy.
Mandating compliance with this statute represents a clear violation of both my and my partner's fundamental rights to privacy." That worry appears quite widespread. But advocate Nadim Uddin, author of several books on marriage laws in Dehradun, has a different take. He opines that "the new code could potentially harm the institution of the traditional Indian marriage and put the future of children born from such relationships at risk. For, the code has made divorce or separation for all religions arduous." So, more couples could go for live-in arrangements as they are comparatively easier to build and break up, he argued.
The bill mandates that all live-in couples in Uttarakhand get themselves registered whether or not they hail from the state. It also makes it mandatory for people hailing from Uttarakhand but living elsewhere to register their live-in arrangement with the registrar within whose jurisdiction the person ordinarily resides. But Yogesh Sethi, an advocate dealing with matrimonial and civil law cases, says: "As per Article 245 of the Constitution, a state's legislature can enact laws for its geographical region and not beyond. Yet, Section 1(3) of the code extends its provisions to residents of Uttarakhand residing beyond the state borders," which may not be enforceable.
In her pushback, BJP spokesperson Sunita Borai says, "This bill focuses specifically on matters related to marriage, divorce, inheritance, adoption and live-in relationships. The detailed provisions, especially those related to marriage procedures, have been carefully crafted to honour and preserve the distinct traditions and practices of all castes, religions and beliefs without any imposition."
Mandatory marriage registration
The bill makes the registrations of marriage and decree of divorce compulsory. Upon registration, the Register of Marriages would be open for public inspection. While the legislative intent could be to prevent bigamy and fraudulent marriages, civil rights activists contend it could disproportionately affect inter-caste and inter-faith couples by making them vulnerable to surveillance.
Failure to register a marriage can attract monetary penalty but not arrest unlike in the case of live-ins. Also, not registering a marriage would not legally annul the union.
Changes in Hindu succession law
Of the 392 sections in the code, as many as 328 deal with succession, Chief Minister Pushkar Singh Dhami said in his reply to the debate in the assembly before it was put to vote. The code has introduced substantial changes to the law of inheritance and made it applicable to everyone irrespective of religion.
Section 390 gives the code an overriding effect on all personal laws in force in the state. In the Hindu succession law, it removes the distinction between ancestral property and self-acquired property. It also elevates the father to a Class I heir. Till now, the Hindu law on intestate (death without writing a will) succession places children, the widow, mother and other lineal descendants of the deceased man in the Class I legal heir basket entitled to inherit the property. In other words, the father is a Class II heir. The new code in its explanation (a) to Section 49 adds the father to the Class I heir list.
Muslims can bequeath entire property
Mahomedan Law gives Muslims the option to bequeath up to one-third of their property to any individual of their preference through a Will. The rest is distributed as per the prescription of the Quran and Hadith. But Section 91 of the UCC removes limitations on the percentage of property or to whom they can bequeath it.
Polygamy
The code specifies that a marriage between a man and a woman can be solemnised if neither party has a spouse living at the time of marriage. In other words, it bans polygamy and polyandry.
It also gives partners the right to remarry after divorce or the nullification of any marriage if there is no pending appeal. Banning the Muslim practice of 'halala' without saying it upfront, the code gives the partner 'the right to marry the divorced spouse without any condition, such as marrying a third person before such remarriage'.
Expert committee
The BJP had promised the UCC in the run-up to the 2022 assembly polls in Uttarakhand. Shortly after winning the mandate with a thumping majority - 47 seats in the 70-member House - Dhami on May 27 that year appointed a five-member panel headed by Justice Ranjana Desai, a retired Supreme Court judge, to work on the UCC draft. Its members were retired Delhi High Court judge Pramod Kohli, social activist Manu Gaur, former Chief Secretary Shatrughan Singh and Doon University Vice Chancellor Surekha Dangwal. They submitted their report on February 2 and authored the draft bill.
Regulations panel
The state government on Saturday constituted a nine-member committee headed by former chief secretary Shatrughan Singh to draft the regulations for the Uniform Civil Code for its smooth rollout after presidential assent. No-go area The code allows marriages when the couple are ‘not within the degrees of prohibited relationship’. But it makes an exemption to ‘custom or usage’ that permits such marriages ‘provided they are not against ‘public policy and morality’.
Key features
Total bar on second marriage irrespective of religion while the husband and wife are alive
Minimum age of marriage for all religions is 21 for boys and 18 for girls
If a spouse after marriage converts to a different religion without the consent of the partner, the latter has the right to get a divorce and claim alimony
In cases of divorce or domestic disputes between spouses, it is common for the custody of a child under the age of 5 to be awarded to the mother
Both husband and wife have equal right to seek divorce in all religions Equal rights for daughters to inherit property in all religious communities, regardless of social class
Elimination of the Islamic practices of Halala and Iddat
No distinction between legitimate and illegitimate children in terms of property rights
If a partner dies, both the spouse and children are entitled to equal share of the estate. Parents of the deceased hold an equal stake in the inheritance. The legislation also safeguards the property rights of an unborn children
A child born during a live-in relationship will be considered legitimate, will receive all the rights of a biological offspring
