In October 2017, a group of eminent citizens (Nilanjana Roy, T M Krishna, Major Gen Vombatkere, Gul Panag, Bezwada Wilson, Mukul Kesavan) and I submitted the draft of a progressive Uniform Civil Code (UCC), endorsed by former attorney general Soli Sorabjee, to the then chairperson of the 21st Law Commission of India. He had only one preliminary comment: “Is it necessary to include this provision about abolishing the Hindu Undivided Family? This will cause a lot of problems.”
The fundamental premise of UCC is that many different religious personal laws should be replaced by one uniform law. ‘Uniformity’ is relatively easier to implement vis-à-vis equality because there are varying conceptions of equality in a country as diverse as India.
Some point to the uniform civil code in Goa as an ideal model. This code is not uniform. Hindus are allowed bigamy, while others are not. Then there are provisions that will be controversial and met with hostility from all religions. Pre-nuptial agreements are legal, and there are limits to the percentage of assets that one can give to people other than one’s heirs.
There are contradictions within Hindu law as well. The Hindu Marriage Act prohibits marriage between certain relatives; marrying cousins is common among Hindus in various parts of South India.
A study published by the Mumbai-based International Institute for Population Sciences (IIPS) based on NFHS-5 data revealed that the practice of polygamy is spread across religions and is diminishing with time. As per this report, 1.9% of Muslim women surveyed said their husbands had one more wife, while 1.3% of Hindu women said the same. There is variation by region also: in Telangana, the number of Hindus who practice polygamy is higher than Muslims, while in Assam, it is the opposite. Polygamy should be abolished across the board.
Then there is child marriage. Even though contracting a child marriage is illegal in India, the Hindu Marriage Act does not void a child marriage. The burden is on the child to seek annulment of such a marriage within a specified period of time after attaining majority.
Under the Hindu Marriage Act, ‘Saptapadi’ (the ritual of seven steps) is sufficient to constitute a binding and complete marriage. There is also a provision titled ‘Restitution of Conjugal Rights’, which, in practice, gives a husband the right to move the court to force his wife to live with him. This provision has come in for a lot of criticism and is considered detrimental to the safety of women. Finally, there is the Hindu Undivided Family (HUF).
The HUF, a unique system under Hindu law, comprises all persons lineally descended from a common male ancestor. This body has to be registered and has its own Permanent Account Number, and is treated like a separate individual for tax purposes.
For an illustration, let us assume that rent comes from some property owned by the family into the account of the HUF. In terms of tax brackets, this income will be treated separately, and this way, family members can save a lot of tax.
In its report, the Law Commission said inter alia that HUFs must be abolished and that “…it is high time that it is understood that justifying this institution on the ground of deep-rooted sentiments at the cost of the country’s revenues may not be judicious.”
The rate of increase in HUFs isn’t insignificant either. Data published by the Ministry of Finance reveals that in 2013–14, the number of registered HUFs was 9,60,004, and by 2018–19, the number had risen to 11,87,180.
HUFs are also inherently unjust and discriminatory against women, to say nothing of other non-cis-male gender persons. Until an amendment in 2005, daughters were not even allowed to be members of a HUF. Even after the amendment in 2005, they could still not be the karta of a HUF, a position which was reserved for the eldest man of the joint family only. In 2016, the Delhi High Court cleared the way for women to be a karta of a HUF. However, no amendments have been made to the tax statutes to give effect to this till date.
Any attempt to abolish the HUF will certainly result in tremendous protest and backlash from those affected. This will largely be the business and trader community, believed to be a core vote bank of the ruling party. Unsurprisingly, Asaduddin Owaisi, leader of the All India Majlis-e-Ittehadul Muslimeen (AIMIM), has challenged the BJP to abolish the HUF if it is truly sincere.
What are the options before the government? First, it can abolish HUF and try to manage the political fallout. Kerala has successfully done away with HUFs as far back as 1975 by passing the Kerala Joint Hindu Family System (Abolition) Act. Second, it could ignore the HUF and thus invite accusations of malice and discrimination. Without abolishing the HUF, any code will not be ‘uniform’. Third, it could give the option of this tax-saving entity to all religions because joint families are not exclusive to Hindus. There is no fourth option.
The HUF ought to be junked at the first opportunity. A remnant of India’s colonial past, it had no religious basis—the joint family business system was just incomprehensible to the English. It is also a cause for loss to the State exchequer.
As for the rest, a truly progressive and modern Uniform Civil Code will require that the government drop its opposition to same-sex marriage before the Supreme Court. It will also require that the BJP drops the bogey of Love-Jihad, which is just used to harass inter-religious couples. India doesn’t need regressive uniformity. It can, however, live with progressive diversity.
Dushyant Arora
Lawyer based in Mumbai