Earlier critiques by women’s organisations and groups have opposed the formation of a Uniform Civil Code (UCC). They have emphasised that merely having uniform laws will not guarantee women equal rights or eradicate the discrimination inherent in various patriarchal and discriminatory personal laws. They argue that uniformity alone does not ensure equality and cannot be equated with either progressive legislation or justice for women.

They highlighted the disappointing history of reform initiated by the Bharatiya Janata Party-led government. They said it had never prioritised gender justice. Despite numerous demands, such as reforming inequitable aspects of Hindu Personal Laws, the government has failed to take action.

They have also expressed concerns that a UCC under the current regime may merely replicate existing Hindu Laws, rather than advancing gender justice. They argue that the aim of the UCC under the Modi government seems to target Muslims and Muslim Personal Laws, which the government has consistently criticised since coming into power.

Furthermore, the proposed Uttarakhand UCC intentionally excludes the Adivasi community, who constitute 3% of Uttarakhand's population.

The Bill demonstrates insensitivity towards both the progressive elements of Muslim Personal Law and the discriminatory aspects of Hindu Personal Law. Certain provisions added to the proposed Bill are regressive, discriminatory, and unconstitutional. Additionally, while ostensibly acknowledging live-in-relationships between consenting heterosexual adults, the Bill violates the constitutional right to privacy and the right to choose a partner. It imposes impractical conditions on these relationships by mandating registration and subjecting them to open "scrutiny", under vague standards of "public policy and morality."

Retrogressive provisions

Most provisions of the UCC appear to be a duplication of those in the Hindu Marriage Act (HMA) of 1955 and the Special Marriage Act (SMA), with some exceptions. For instance, the conditions for entering into a marriage closely resemble those outlined in the HMA and SMA. However, a retrogressive provision says that parties are not allowed to marry within certain prohibited relationships unless the custom or usage of one of them permits such a marriage. It further says that these customs and usage will be subject to "public order and morality".

This leaves the field open for the courts to interpret public policy and morality according to their way of thinking and ideology.

The grounds for judicial separation and divorce are the same as those in the Hindu Marriage and Special Marriage Act, except that the divorce provisions have been widened to lay down another retrogressive additional ground which says that if either spouse converts to another religion, the other spouse can ask for a divorce.

Sadly, the anti-human rights provision that allows for a claim for restitution of conjugal rights has also been retained in this Code. This right is an outdated and unconstitutional provision of English Law, which allows one party to the marriage to ask the court to restore his or her conjugal rights to the other party.

The sections on interim maintenance and permanent alimony have also been mechanically replicated. If there had been any intentions to advance or improve the lives of separated and deserted women, who are forced into lengthy legal battles, at least the widely accepted criteria for awarding maintenance could have been written into the law. Indian courts have laid down that the maintenance, which should be awarded by the court, should be commensurate with the standards of living of the parties. The Domestic Violence Act also lays down that the amount granted to a woman as monetary relief should be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

However, this has not been done. Women have to fight a long, weary battle in the courts to receive an extremely inadequate sum as maintenance. While the section on interim maintenance says that this should be decided within two months of the filing of the application, this seldom happens.

Added to this is the burden of proving the income of the husband, which is impossible for most wives. Some courts deny maintenance to a woman if she leaves the home or is seen at fault. The law should, in fact, make it clear that maintenance is not a largesse granted by the court, but is one of the rights that a woman has acquired by contributing to the household. However, none of these issues have been addressed.

Similarly, the sections for permanent alimony should have been reframed to make it easier for women to actually get the alimony. The fact that none of these issues were tackled, shows that the intention of the makers of the code was not to bring greater gender justice but to force a majoritarian UCC on all communities.

Section 35 on custody of children is the same as that in the HMA and SMA. However, a sub-section 2 has been added, in which the court has been enjoined to keep the best interest and the welfare of the child as a paramount consideration. A condition has also been added to sub-section 2 that the custody of the minor child of less than five years shall ordinarily be with the mother. It is important to note that though the makers of the code could have made both the mother and father equal guardians of the child, they didn’t do so despite this being a demand for a long time by various women’s groups and others.

Also read: What a Gender-Just Uniform Civil Code Could Look Like

Another retrogressive section in the UCC talks of disposal of the estate of either party and states that the court may decide to make such provisions for the estate as it deems just and proper in favour of either party. For some time now, women's organisations and groups have been demanding equal rights to marital property for women. Marital property refers to assets acquired either jointly or individually by the parties during the course of marriage.

However, the law, as it stands now, doesn’t recognise the share of women in the property bought by the parties and gives it to the person in whose name the property has been bought. This often means that women and children are left without any assets of the household when a breakdown of a marriage occurs, since women are seldom the named owners. A recent Madras high court judgment recognised the productive and equal value of the women’s household work and held that she was entitled to an equal share of the assets on separation. However, the UCC, instead of recognising women’s marital property rights, has made a neutral provision which doesn’t advance gender justice and can be misused by unscrupulous spouses.

The attack on Muslims is evident through various sections of the UCC. While there has been a demand from within the Muslim community to outlaw Halala, the Code takes a further step by criminalising it. This mirrors the approach of the Triple Talaq legislation (The Muslim Women Protection of Rights on Marriage Act, 2019), which punishes a Muslim male for pronouncing instant Triple Talaq with imprisonment. Thus, while no man from any other community faces punishment for unjustly leaving or deserting his wife, the BJP-led government has made a Muslim man guilty of a criminal offence punishable by imprisonment merely for leaving his wife by pronouncing triple talaq.

Similarly, in the present Act, if a person compels, abets, or induces (terms that are somewhat vague and can be broadly interpreted) another person to practice Nikah Halala, they can be sentenced to up to three years in prison and fined Rs 1 lakh. Furthermore, a marriage cannot be dissolved under the Code except in accordance with its provisions, and a draconian provision has unreasonably and unjustly made a violation of this punishable by up to three years' imprisonment and a fine. Presumably, this section has been framed to prevent extrajudicial divorces in Muslim Personal Law.

Apart from the unilateral right of divorce that is available to the Muslim man, divorce in Muslim law can also be done through mutual consent. The wife under Muslim law also has, unlike any woman in any other law, a right to ask for Khula (divorce) and to be granted it. This has been pronounced to be an inalienable right of Muslim women to ask for unilateral separation. Thus, parts of Muslim Personal Law, which benefitted Muslim women, have also been done away with, which requires all persons to go through a lengthy prolonged litigation for divorce only on the grounds based on the fault of the other spouse stipulated in the Hindu Marriage Act and Special Marriage Act. For no good reasons, the practice of iddat has also been discontinued.

Also read: Muslims and the UCC: The Fear of Majoritarianism Is Real and Can’t Be Brushed Aside

The provisions relating to succession in the code are also those which are applicable to Hindus under the Hindu Succession Act and the Indian Succession Act which talks of the general laws relating to Wills, apart from the succession to the estates of Christians and Parsis. However, some beneficial provisions of Muslim Personal Law which restrict the right to Will to only one-third of the property away from heirs have not been recognised. The right to Will all one’s property has been taken from English Law. However, some European and others countries have put restrictions on the right to Will to safeguard heirs. Women in India have been demanding this right so that the property is not willed away from them and daughters are not disinherited through Wills. This also makes it clear that the Code is not trying to either reform the law or make it gender just.

The provisions regarding succession in the Code are also applicable to Hindus under the Hindu Succession Act and the Indian Succession Act, which addresses general laws relating to 'wills', in addition to the succession to the estates of Christians and Parsis. However, some beneficial provisions of Muslim Personal Law, which restrict the right to will to only one-third of the property away from heirs, have not been recognised. The right to will all one’s property has been adopted from English Law. Nevertheless, some European and other countries have imposed restrictions on the right to will to safeguard heirs. Women in India have been advocating for this right to prevent the property from being willed away from them and to ensure that daughters are not disinherited through wills. This also underscores that the Code is not attempting to reform the law or make it gender-just.

In one area, however, the changes in the proposed Code have been positive.

Under section 15 of the Hindu Succession Act (HSA), if a female Hindu dies intestate, her self-acquired property unfairly devolves on the heirs of the husband, and only then upon her own mother and father if she has no children or a husband. A Supreme Court judgment, while upholding the statutory law, commented on the discrimination against the woman's own parents, who could inherit only if her father and mother-in-law were not alive. In one instance, a working woman, a childless widow who lived with her parents, died, and her property was given to her in-laws.

Section 15 of the HSA also unfairly stipulates that any property inherited by a woman from her father or mother will devolve, in the absence of her sons or daughters or their children, upon the heirs of the father. Similarly, any property inherited by a woman from her husband or her in-laws would devolve upon the heirs of the husband in the absence of her children and grandchildren.

The proposed UCC aims to eliminate the different rules of succession for the estate of male and female heirs, making the law more equitable.

However, as far as agricultural land is concerned, the UP Zamindari Abolition and Land Reforms Act, 1950, which extends to Uttarakhand, still unfairly states that the heirs of a Bhumidar or Asami in the first place will only include the widow, an unmarried daughter and male lineal descendants. A married daughter can only inherit if they and the Bhumidar’s parents are not alive. Though the Hindu Succession Act was  amended in 2005 to withdraw the exemption earlier given to the Land Reforms Act from the application of the HSA, the Uttarakhand government has not seen it fit to remove this discriminatory provision in its Land Reforms Act.

The procedure prescribed under section 381 of the proposed Bill mandates the compulsory registration of live-in relationships with the registrar. The registrar in the Code is vested with very wide powers to summon the parties for verification and ask for “necessary” additional information and evidence. One can only imagine the misuse that this verification process can result in.

The provision is obviously unconstitutional and directly interferes with the rights of adult human beings to choose their partners and live with whomever they want without any scrutiny from the state.

Further, a draconian proviso to this section stipulates that registration can be denied if the live-in relationship is against “public policy” and “morality.” Thus the registrar can, by moral policing, refuse to register a live-in-relationship if it is against patriarchal norms which he espouses and bring a halt to inter-caste and inter-faith and other relationships. Furthermore, it will be obligatory for the partners of the live-in relationship within the state and absurdly outside the state (if one of them is an Uttarakhandi) to register. The non-registration within the month of the relationship will result in a punishable offence for a term of imprisonment, which may extend to three months.

All these provisions make it impossible for a live-in relationship to exist. The act of registration of a live-in-relationship is, thus, not an act which recognises live-in-relationships but an act which seeks to regulate how and with whom these relationships can exist.

Thus, the proposed Uttarakhand UCC does not promote either gender justice or substantive equality for women or further the cause for a just and equal family code for all communities.

The 21st Law Commission had said that the UCC was neither necessary nor desirable and the personal laws of each community could easily be reformed separately in consultation with the affected members of that community. It has further remarked that “most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of robust democracy.”

Kirti Singh is a lawyer and an activist. She is a former member (part-time) of the Law Commission of India, and a legal advisor in AIDWA.

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