With the pride of being the melting pot of the world’s cultures comes a challenge that is unique to India’s cultural and religious tapestry; ensuring equal rights and protection for all citizens while balancing personal laws. As a Directive Principle of State Policy, the Indian policy framework must strive to secure a pan-India Uniform Civil Code (UCC). The Uttarakhand government was the first to introduce a UCC for the state. While it is a largely progressive Code, there are a few hits and misses.
As per the provisions of the Code, a marriage may be solemnised only between a man who has attained the age of 21, and a woman who has attained the age of 18; must be mandatorily registered, with registrations for marriages being solemnised from March 26, 2010. While some criticise that the Code falls short of recognising same sex marriages, it has gone a long way in terms of ensuring equality between the spouses.
Restitution of Conjugal Rights, Dissolution of Marriage (or, divorce), and Maintenance may be initiated by either spouse, having same responsibilities in this regard, thus ending a differential and gendered standard of rights and responsibilities within a marriage. For instance, Section 34 of the Code implies that the provision for maintenance is gender neutral, i.e., both spouses can claim maintenance on dissolution of marriage. However, no divorce proceedings can be initiated within the first year of the marriage; which is being seen as intrusion into personal life and space. At last, children born out of void and voidable marriages shall be considered legitimate.
Perhaps the most revolutionary changes have been introduced in the laws governing intestate succession. When a person dies without a will—intestate—their estate was divided based on the provisions of various personal laws, depending on applicability. UCC changes this with a common mode of intestate succession across genders and religions.
For the purposes of intestate succession, the heirs have been divided into classes in order of preference. On death, the estate will be divided equally and simultaneously among the heirs, in an order of preference—Class I Heirs, followed by Class II Heirs. The details of the heirs are provided for in Schedule II of the Code.
A major miss in the provisions is the lack of equality between the intestate’s mother and father’s side of the family. Paternal relatives have been given priority over maternal relatives. Keeping maternal and paternal sides of the family on equal footing would have gone a long way towards establishing equality in a deeply patriarchal society.
Evident that with time and tide, the government also changes and broadens its horizons, the Code recognises Live-In Relationships and treats it on par with marriage, in terms of the rights, duties, responsibilities and protections granted to the partners.
Within one month of entering into and dissolving a Live-In Relationship, the partners would be required to submit a statement to the registrar, who may conduct a summary inquiry. This runs parallelly with the requirement of registering a marriage and obtaining a decree of divorce. In case either of the partner is less than 21 years of age, a copy of the statement shall be provided to the parents or guardians of the partners, as the case may be, and the local police.
The provisions surrounding Live-In Relationships are not balanced and require more work. Women have the right to claim maintenance for ‘desertion’, but men do not. While the state has been given unprecedented access to the private sphere of a Live-In Relationship, no mechanisms for protection have been devised. While children born out of Live-In Relationships are legitimate and women can claim maintenance, there are no provisions governing circumstances of a breakdown of the relationship, post the child’s birth. Of course, giving the benefit of doubt to the lawmakers; this is a relatively new societal concept being given a formal recognition and shall evolve through judicial precedents and appropriate amendments.
The Code has no provisions governing adoption and guardianship. Thus, the citizenry faces two challenges: firstly, no streamlined and common process for adoption, and secondly, lack of gender equality in guardianship. In the absence of provisions for guardianship, the existing personal laws will apply, which deem the father as the primary guardian of the child.
Looking forward, the government still has an opportunity to correct what has been a miss in the Code by ensuring that the rules prescribed, be more citizen-centric, gender-neutral and protection-based. Further, officials of local jurisdiction and the police must undergo sensitivity training before they may be permitted to interact with Live-In Couples. Albeit not perfect, this Code represents a progressive and futuristic minded India. For all its shortcomings, it is a step in the right direction.
Anant Merathia
Practicing lawyer in Delhi and Chennai
Posts on X: @anant_merathia