All the transient provisions in the Constitution, such as for language, reservation, special status to Jammu and Kashmir, or the Uniform Civil Code (UCC), were treated as transient because there was no unanimity at the time of the Constituent Assembly debates. Now, the BJP-led Uttarakhand government has passed the UCC Bill into law on February 7, 2024. Here, I deliberately skirt any potent argument against framing a law that even the Law Commission declined to recommend, but only examine objectively the features of the Act and whether the provisions are salutary in character, and if they lend themselves as models for replication across India.
Most personal laws pertaining to marriage, divorce, maintenance, adoption, guardianship, and succession source their origin in religious texts. Religious practices influence civil laws and vice versa. As Law Minister, Dr Ambedkar brought, through his lucubrations, a draft for The Hindu Code Bill that advocated the elimination of the birthright to property, the rule of survivorship, half shares for daughters, the conversion of women’s limited estate into absolute estate, the elimination of caste in marriage and adoption, and laid down monogamy and divorce principles.
The Bill was allowed to lapse. Ambedkar could finally introduce the Bill on September 17, 1951, but only after it had first been divided into four parts to lessen opposition. The legislation was once again defeated, and Ambedkar resigned. In 1956, The Hindu Code Bill came into being in a modified form through four enactments: the Hindu Marriage Act; the Hindu Adoption and Maintenance Act; the Hindu Minority and Guardianship Act, and the Hindu Succession Act.
Any Uniform Civil Code now will perforce attempt to bring one law for all sections of people in India, including Muslims and Christians, in all of the above subjects.
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What the Uttarakhand Act contains
As its preamble sets out, the Act is intended to govern and regulate laws relating to marriage and divorce, succession, live-in relationships, and related matters. However, adoption, maintenance, and guardianship have not been specifically dealt with. Of course, there are references to maintenance during matrimonial proceedings, but as a standalone right, the Act does not have any special provisions. The exclusion is perhaps because there is already a secular law applicable through the Criminal Procedure Code that allows for maintenance to certain classes of economically weaker spouses only.
Similarly, there are no provisions regarding adoption, although it is a matter of personal law. This could be because Section 41 of the Juvenile Justice (Care and Protection of Children) Act makes provision for adoption of children and, being a secular law, it was invoked by the Madras High Court in R.R. George Christopher, In Re, (2009) through an innovative interpretation by Justice K. Chandru, who ruled that even the Canon Law made possible the adoption of children for Christians and Section 41, the Judge said, was intended to promote the welfare of children who were abandoned or who had been left uncared for and therefore this provision could be treated as available for all sections of people, including Christians.
Taking cue from this judgement, though not expressly so stated, the Supreme Court in Shabnam Hashmi v Union of India (2014) said that even Muslims could take a child in adoption. As regards guardianship, again, there are no specific provisions, except under matrimonial jurisdiction in marriage and divorce proceedings, but the Guardian and Wards Act makes possible the appointment of a guardian for a child less than 18 years of age.
The Uttarakhand UCC Act is laid out in four parts. The first refers to laws relating to marriage and divorce. The second relates to succession, divided into intestate and testamentary succession. Part 3 deals with live-in relationships, and Part 4 with repeals. It applies not only to the whole of Uttarakhand but also to residents of the State who are living outside its territories.
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Divorce
In a meaningless exercise, the new law makes compulsory the registration of not just marriage but also divorce. Divorces, thus, are to be legalised not only through a court decree but also to be simultaneously registered. The Act sets out a timeframe to be applied by parties where a decree of divorce already exists and recommends penal provisions for failure to do so. Registration of any document in India is never easy. The department is predominantly corrupt and the process cumbersome. Registration of marriage makes sense, but registration of divorce does not, because a court decree is a public document and accessible to all.
In the area of marriage and divorce, there is one notable omission. The progressive changes that have taken place globally to provide for matrimonial settlements that look at dividing equally the resources of the spouses held either jointly after marriage or purchased and held separately after marriage are not addressed by this law. Many courts that pass divorce decrees on contest do not make specific provisions for permanent alimony. These have to be brought independently by separate suits or they remain contended, with whatever parsimonious disbursals that come about through court interventions during the divorce proceedings.
On custody issues, too, the new Act carries the same provisions as the Hindu Marriage Act.
Succession
The provisions relating to intestate succession are in some ways novel in the sense that they make no distinction between succession to males and females. This anyway does not exist in the Shariat, which is already progressive, being the first system of law in the world to recognise the absolute interest to property for women since the 8th century. The Koranic heirs or the primary heirs to a deceased Muslim included both father and mother to 1/6th share each. The Bill recognises both parents as primary heirs along with children and spouse.
The Hindu Succession Act (HSA) excludes the father as heir and makes the mother a Class 1 heir only to a male Hindu and not to a female. The HSA is unfair to a woman in the sense that her mother and even father are excluded from heirship and, in the absence of a husband and children, makes the parents-in-law the husband’s heirs. The Indian Succession Act, applicable to Christians and Parsis, does not make provision for parents as heirs in the presence of lineal descendants. The novelty in the Uttarakhand UCC is that if either parent dies, the surviving spouse will inherit the undivided half and not the others.
HUF
The Hindu Joint Family Abolition Act was passed in Kerala in 1974 but the joint family system continued elsewhere, with right by birth and other new meanings coming only through tax lawyers, who created several new concepts of joint family, such as the creation of a minor Hindu Undivided Family (HUF) for some or all sons of HUF, apart from a major HUF, which the father as karta and other sons would constitute.
These are only tax ploys to create multiple entities to stave off higher tax slabs; the sooner they are abolished the better for making honest tax-paying citizens. The new Act does not deal with property held as HUF and the question of whether the omnibus provision under Part 4 repealing customary law will mean the abolition of HUF is exceedingly suspect and unlikely. HUF does not strictly deal with ‘succession’ but ‘survivorship’, and the right by birth assured to a woman as a deemed coparcener and the right of succession to an HUF interest to a coparcener under the Hindu Succession Act cannot be selectively applied to Hindus in the State. A definite provision for repeal of the HUF ought to have been made now.
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Probate and Letters of Administration
A cumbersome and expensive step has been added to intestate succession in a chapter dealing with testamentary succession, probate, and letters of administration. Letters of administration for intestate succession under the Indian Succession Act are applicable in a very limited way to a narrow class of non-Indians and do not apply to Hindus, Muslims or Christians. As of now, it is a purely voluntary exercise and seldom resorted to.
The provisions relating to probate and letter of administration in case of testamentary succession, that is, when a Will exists, are also limited only to properties situated or wills executed in the cities of Mumbai, Madras and Kolkata, and are not applicable elsewhere, including Uttarakhand.
It was made compulsory for all Christians in India, and a challenge was considered by the Supreme Court in Clarence Pais v Union of India in 2001 on the grounds of it being discriminatory. While the Supreme Court held that the differences were due to historical reasons and not because of discrimination, it so happened that in 2002, the Amendment Act 51 anyway removed the requirement of grant for Christians throughout India.
Muslims were also not governed by these two provisions either. Wills were recognised in Shariat to the limited extent that heirs cannot be completely disinherited by testamentary disposition and not more than a third could be willed away to persons other than the heirs, and, with the consent of heirs, the disposition could extend up to 2/3 the interest of the testator. The scope for not excluding heirs by testamentary disposition is recognised in Continental jurisprudence through legitime or quotite disponible [portion of an estate that can be freely disposed of by its owner through will or inheritance law] under Code Civil that applied once to Pondicherry and is even now applicable to Goa. This is a salutary provision, and a similar provision could have been made in the Act.
Indian Succession Act
The current Act makes the provisions relating to Will, probate, and letters of administration uniform but they are mere repetitions of the existing provisions of the Indian Succession Act, which are fairly elaborate, from Section 64 to 377. They also include provisions relating to the preservation of estate, deathbed gifts, or succession certificates.
The objectionable part is that the flexibility to make disposition through a will is now sought to be burdened with probate or letter of administration, for not only testamentary disposition but also to intestate succession. That means every time any person dies leaving behind any property, either through Will or not, the heirs cannot claim heirship without applying and securing a grant from court and incurring heavy costs through stamp duty and court expenses.
Live-in relationships
Part 3 of the Act that deals with live-in relationships is the most controversial section and plainly unconstitutional. Live-in relationships became legal with the Protection of Women against Domestic Violence Act, 2005, which made possible for a woman who had a steady relationship with a man, and claim maintenance and protection of a ‘shared household’. This was progressive, in the sense that a person living with a woman, although not through marriage, would be obligated to support her. It was gender specific, and the right availed only to a woman who was in a relationship with a man, to claim maintenance and protection of a household.
The relationship obtained a new dimension of acceptability when the right to privacy was upheld as a fundamental right in the Justice Puttaswamy v Union of India case in 2017. The judgement of the Supreme Court contained several references to how privacy was central to the right to life, which was protected under Article 21 of the Constitution. Privacy has a deep affinity with seclusion (of physical persons and things), as well as such ideas as repose, solitude, confidentiality, and secrecy (in our communications) and intimacy.
But this is not to suggest, the Supreme Court said, that solitude is always essential to privacy. It is in this sense of the individual’s liberty to do things privately that a group of individuals, however large, is entitled to seclude itself from others and be private. The Court said that if this privacy were to be in any way hampered by State action through any law, it must be reasonable, non-arbitrary, and proportional.
Members of Uttarakhand Numainda Group protest against the Uniform Civil Code (UCC) Bill during a special session of the Uttarakhand Legislative Assembly, in Dehradun, on February 5, 2024. | Photo Credit: PTI
An invasion of privacy must thus be justified based on a law which stipulates a procedure that is fair, just, and reasonable. Not only the proceeding, but the law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty, and thus a fetter on privacy, must meet the threefold requirement of (i) legality which postulates the existence of law; (ii) the need defined in terms of a legitimate State aim, and (iii) proportionality, which assesses a rational nexus between the objective and the means adopted to achieve it.
This decision had a significant impact on the way it was understood, for, in yet another case in Joseph Shine v Union Of India (2018), the Supreme Court recognised that consensual sex outside the bonds of marriage, which attracted the definition of adultery, was absolutely a matter of privacy at its pinnacle.
Adultery, in the way the legislation was originally framed, provided a right to complain only to the adulteress’s husband, and the person who was the adulteress was seen to be always a victim and therefore not a person who could be prosecuted. Again, the wife of the adulterer-husband had no right of action. If the husband of the adulteress had no objection, even if the wife of the adulterer had an objection, no action was possible. This was found to be grossly discriminatory and archaic. Rights to sexual freedom, the Court said, are rooted in orientation, marriage, or family life, reproductive freedom, right to abortion, et cetera. It should be recognised that an action between two consulting adults cannot be criminalised.
Now, in live-in relationships, the government should have a policy on what it wants to regulate. If two adults who choose not to marry should be mandated to register the relationship, it is another way of saying they should make public what they intend perhaps to keep private, or who do not want the bondage of marriage but still desire each other’s company, and they may or may not marry in future.
To compel such persons to disclose that they are living together, or sign a formal document of bondage, would abnegate the very idea of persons choosing not to marry but only have a live-in relationship. So, there seems to be absolutely no rationale behind such a move of requiring registration. It is exceedingly likely that the provision is susceptible to a challenge for its constitutionality as brazenly intrusive, meaningless and arbitrary.
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Repeals and savings
The last part is on repeals and savings, and it is not merely a procedural law but a substantive law that affects the rights of parties as regards marriage, devolution of interest, and dissolution of marriage. It is substantive law, and could normally be applied only in future, unless specifically meant to operate otherwise. To the extent to which the Bill contemplates marriages and dissolution of marriages to also be registered, even if effected earlier, it could be seen as retrospective. But regarding the manner of succession, the requirement for having to obtain probate or letter of administration for testamentary or intestate succession can operate only in future.
On marriage and live-in relationships, there is a certain apprehension of what would happen to a wide category of prohibited relationships, where marriage or live-in relationships cannot exist. There is a provision that prohibits consanguineous marriages, but this will impact South Indian customs where a woman marrying her maternal uncle or first cousin related through siblings who are not in the male line are allowed, or of the Muslim custom, where marrying the first cousin related only through the male line is allowed.
Conclusion
The 21st Law Commission headed by Justice B.S. Chauhan took the pragmatic view that rather than enacting a UCC, family laws of every religion must be reformed to make them gender-just. It talked about the uniformity of rights and not laws. Prioritising the guidance of expert bodies like the Law Commission rather than indulging in populist exercises is essential to foster unity and preserve harmony among communities. If anything, any UCC should not give rise to a perception of UUC, or a uniform uncivil code.
Justice Kannan Krishnamoorthy is a former judge of Punjab & Haryana High Court, and the founder of Madhyastham, a mediation and arbitration practice.
