Uttarakhand has become the first state to enact a Uniform Civil Code (UCC) under Article 44 of the Constitution. It unifies family laws concerning marriage and divorce, restitution of conjugal rights, judicial separation, nullity of marriage and divorce, maintenance, alimony and custody, intestate and testamentary succession, and live-in relationships. While the state’s UCC has been touted as a step towards achieving gender justice, to what extent it fulfills this aspiration needs to be carefully examined.
The requirement that live-in relationships be registered has triggered heated public debates. The code entered a new terrain by introducing provisions that formalise what had hitherto been in the realm of informal sexual relationships between consenting adults and raises concerns about the privacy of individuals and their liberty.
The code requires partners to notify the registrar within a month of entering into a live-in relationship and also while terminating it. One fails to understand the purpose for which the provision of registering a live-in relationship has been included in the UCC. Similar to marriage (and divorce), one has to register the contract with the registrar at the time of entering into a relationship and also at the time of exiting from it. Non-registration has been made a criminal offence that carries a fine of Rs 10,000 and/or imprisonment of three months. In case of failing to produce a certificate of live-in relationship, a term of six months is prescribed on conviction and / or a fine of Rs 25,000. This defeats the very purpose of a live-in relationship as it renders it on par with marriage, with the stipulations for entering into such a relationship similar to that of a marriage contract. The purpose seems to be to dissuade young couples from entering into such relationships and control their sexuality while infringing on their privacy and liberty.
The code defines this heterosexual relationship as a “relationship between a man and a woman” who “cohabit in a shared household through a relationship like marriage, provided that such relations are not prohibited.” Interestingly there is a glaring silence about the rights of queer and transgender persons within a family and the rights of transgender and same-sex persons to marry.
What is shocking is that the law applies even to those residents of the state living outside Uttarakhand, in addition to applying to all those who do not have a domicile in the state.
While the law has been praised for bringing curtains on certain provisions in the Muslim law perceived as “defective” such as unequal inheritance, polygamy, iddat and the practice of nikah halala (by which a person can only remarry his divorced spouse after she has married someone else, consummated the marriage and thereafter obtained a divorce), ironically it has not incorporated some of the positive and progressive aspects of the Muslim law such as the compulsory payment of mehr by the husband to the wife which provides financial security of the wife, nikahnama (marriage contract) which allows for the spouses to add mutually acceptable and legally binding conditions, and restraint on willing away more than 1/3rd of property. Had the intention been genuinely to bring about gender justice, such provisions would have been extended to the women of all communities.
Also, the personal laws of Christian, Parsi and other religious communities have become legally untenable in the state. This has been done without any consultations with these communities.
A critical aspect of any law is that every stakeholder should be able to or should have the space to access the law. In the prevailing political climate, it will be difficult for women from minority communities to access any uniform law, howsoever progressive it is said to be, when its basic objective is to show one-upmanship over minorities, especially Muslims.
The discrimination that Hindu women face in the family, which stands unaddressed in the various family laws prevalent in the country, either in religious-based personal laws or the Special Marriage Act has not been addressed. For instance, it has retained restitution of conjugal rights as a matrimonial remedy even though its constitutional validity has been challenged in the Supreme Court. This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of conjugality. Though apparently gender-neutral, it has grave implications for the wife as it may result in rape or forcible pregnancy.
The provision of compulsory registration of marriage has been opposed by women’s groups as it will defeat the rights of women whose marriage is not registered. The prevailing norm of presumption of marriage in cases of long-term cohabitation serves women better when a marriage is challenged in court.
The law has taken away several fundamental rights of women that have been secured after sustained struggle over many decades such as the right to reside in the matrimonial home, the right to live in dignity, the right to livelihood, the right to freedom of speech and expression, right to freely profess, practice and propagate one’s religion etc.
Regarding succession and inheritance, it has taken away the difference between coparcenery and separate property and granted equal rights to men and women. Superficially, it appears to be gender equal. But on deeper scrutiny, it has taken away the rights that Hindu women had gained after the amendment to the Hindu Succession Act in 2005 (HSAA 2005). The HSAA 2005 granted equal rights in coparcenary property by birth which could not be willed away so women had certain protection. But the Uttarakhand UCC has taken away this protection and now all property can be willed away. Given the bias against endowing daughters with property, even the limited protection they had is now lost. The right way forward would have been for the code to restrict testamentary rights on a part of the property so that daughters would inherit at least something.
Flavia Agnes,
Women’s rights lawyer and founder of Majlis Legal Centre
(Views are personal)