20 months after it was initially constituted, the committee set up by the Uttarakhand government submitted its draft of a Uniform Civil Code (UCC) for the State, and a day after Chief Minister Pushkar Singh Dhami introduced the Bill for the same, the state Assembly passed it on Wednesday.
The 392-section law would make it seem like a monumental effort to seriously reform family law in the state. The Uttarakhand government would want you to believe so. This, however, is a poorly drafted law with no imagination for reform, motivated by majoritarian spite for Islamic personal law and an attempt to curb inter-caste and inter-religious relationships.
As others have pointed out, much of the Uttarakhand UCC has been cribbed verbatim from other union laws and some of Uttarakhand’s own laws. Chief among these seems to be the Special Marriage Act, 1954, and the Indian Succession Act, 1956. There are no provisions relating to Guardianship and Wards or Adoption. It may have also, without intention, ended the concept of a Hindu joint family in Uttarakhand.
However, for the purposes of this article, I want to focus on two problematic parts of the Uttarakhand UCC — marriage and the attempt to control inter-caste and inter-religious relationships.
What is a Marriage?
From the start itself, the Uttarakhand UCC does not seem to be very clear about what it is trying to do. Any law relating to marriage should provide both the criteria to be met for the validity of a marriage, and negative criteria for the invalidity of marriage.
For instance, under the Hindu Marriage Act, 1955, a Hindu marriage is valid only if the parties undertake the saptapadi or the appropriate customary rituals to show that marriage is complete. Even if parties do these, the marriage can be invalid if the parties already have living spouses, are in a prohibited degree of relationship, are below the age of consent et al. It is the same in Islamic law, where consent of the man and woman is necessary as evidenced by both of them saying qubool hai in the presence of witnesses.
However, the Uttarakhand UCC simply dismisses these as “ceremonies” which may be conducted if the parties so desire. This would have been fine if the UCC said that a marriage would be valid only if parties registered their marriage as required under the Special Marriage Act, 1954, but even that requirement is not necessary to make a marriage valid.
This will lead to an obviously absurd situation, in which parties may have conducted rituals or ceremonies that they think are enough to show that they are “married” but none of that is actually proof that they are married. Registration may, at best, create some basis to say a marriage is prima facie valid, but the act itself is silent on what steps or rituals will make a marriage valid in the eyes of the law.
This seems to suggest that the Uttarakhand UCC has no clear idea of what it is doing in the context of making marriage “uniform”. Instead of making the process and criteria for valid marriage “uniform” for all communities, all communities are now going to be equally uncertain as to what is a valid marriage in Uttarakhand.
Curbing Inter-caste and Inter-religious Relationships
The part of the Uttarakhand UCC that has received a lot of attention from the public is the one with the provisions relating to live-in relationships, especially those that are criminalising such a relationship if they’re not registered. Live-in relationships are required to be registered with the government in order to be recognised and for partners (especially women) to claim maintenance and children to be able to inherit property. While the latter is good and necessary in a society where such relationships are becoming more frequent, the use of criminal law and the demand to mandatorily register such relationships raise questions about the intent.
The most problematic part of the provisions relating to the registration of live-in relationships is the unbridled discretion given to a registrar to refuse to register a live-in relationship on vague grounds such as “fraud”, “misrepresentation”, et al after subjecting them to a humiliating “inquiry”. This inquiry is not a full-fledged trial and the registrar can even ask entirely unrelated third parties whether such a relationship should be registered.
There is no appeal or recourse from an order denying registration and the couple will be forced to rush to the High Court to try and make out a case for it and avoid going to jail. Such provisions, one can reasonably argue, are a violation of the right to privacy guaranteed by the Constitution.
While the Bill has been passed in the assembly, given that it overrides Union law (such as the Hindu Marriage Act, Special Marriage Act, et al), it will have to be referred to the President of India in accordance with clause (2) of Article 254 of the Constitution. In doing so, the Union might want to consider that if every state having its own different version of a “UCC” is actually what the Constitution envisaged under Article 44. Even though a state is permitted to make a law relating to family and personal law under the Concurrent List of the Seventh Schedule of the Constitution, it would be completely contradictory to say that such laws are a fulfillment of Article 44.
Be that as it may, even looking at the provisions relating to marriage and live-in relationships, one gets the sense that this is not a serious reform-minded law but a ham-fisted, reactionary effort at trying to curb individual freedoms in the name of “uniformity”.
(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)