The Uttarakhand State Government tabled the Uniform Civil Code for the state in Assembly on the 6th of February. This will set an unprecedented reality for the state and indeed the country in the years to come. Uptil now Goa had been the only state with a UCC but that was Portugese Uniform Civil Code adopted in the year the state gained its independence, in 1961. Uttarakhand would have been the first ever Indian state since Independence to have had and adopted a UCC.
The conversations surrounding the UCC aren’t new, and can in fact be dated back to the deliberations and discussions in the Constituent Assembly during the conception of our constitution in the years 1946-49. There was a divide over whether or not a UCC was needed, following independence, the indian wing of the earlier Muslim League; the All India Muslim League (AIML) presented arguments opposing such an endeavour of the state, citing risks of the inevitable infringement of religious personal freedoms as guaranteed by the draft constitution under article 19 at the time (now article 25). Arguments by figures like K.M. Munshi, Alladi Krishnaswamy Iyer and B.R. Ambedkar, challenged the notions of the UCC creating divide and social cleavages in society, the question of women and their equality was rightly put forth, while the latter took on the long term standpoint by saying that the implementation of the UCC could not really be stopped at this point in time, it would take shape. However the UCC was listed under the Directive Principles of State Policy rather than as a fundamental right, as it was felt the process of bringing about a UCC should be gradual and when the time was felt to be opportune.
The UCC has been part of the BJP manifesto alongside the issue of the Ram Mandir and the abrogation of section 370 of the Indian constitution. Having a government in states like Uttarakhand, Gujarat and Assam, it can expected to see these states carry forward the legislation passed in Uttarakhand. The bill awaits assent from the President to be enacted. It covers matters of marriage, divorce, live-in relationships and inheritance that have caused quite the stir and even furor, the effect of the civil code on women seems to be where the slope gets slippery and it is towards that perspective I would like to draw the attention of this article.
The UCC has done something pretty groundbreaking with regards to the prevalent Indian context surrounding the family and questions of having relations. As per the Bill, a child born out of a live-in relationship is entitled to the same rights as one conceived after marriage, this also holds true for adopted children and those conceived through medical interventions. The standard age of marriage for men and women has been set to be at 21 and 18 years of age as per the Bill.
However there do remain parts of the bill that have proven to be an overt infringement of the right to privacy as given in the constitution. Live-in relationships as defined and treated under this legislation has created alot of debate in the country on the increasingly pervasive role of the state. As per the Bill, each couple deciding to stay with each other, both being residents of the state, and it is optional for those born outside the state but temporarily staying in Uttarakhand, would be required to register their relationship with a modal officer of the state, the Registrar. Upon inspections of degrees of prohibited relationships, i.e., whether both parties are consenting adults, don’t have any spouse etc. if the officer finds the case to be justified, the couple gets registered and they may live together. The legislation mandates the registration of the live-in couple as soon as they decide to share the same living space together, failure to do so would result in jail time of upto 6 months with a fine of upto 25,000Rs. Aside from the invasive presence of the state through the Registrar, a copy of the registration is shared with a local police officer in the region, as and when it comes to light that the couple have provided false information about the status of their relationship, the officer will be called upon to take further action. The peculiar thing about this provision is that the age for live-in must be 21 years and above, if one of the partners is below 21, their parents are notified by the Registrar.
Inheritance has become especially flawed in this document. Referring to an article written by Bina Aggarwal for the Indian Express, she mentions the Hindu Succession Amendment Act of 2005 which governs Hindus (and Sikhs, Jains, Buddhists). In the case of Hindu Law, there is a differentiation between separate property and coparcenary joint family property. As per the HSAA for the latter, both sons and daughters (married and unmarried) are given equal rights to the property by birth that cannot be willed away by their fathers, this provides a kind of safeguard against cases of male bias being exercise in inheritance. Daughters are given protection against being disinherited of property by their fathers, atleast for joint property, even if separate property is given away to the sons. The coming of the U-UCC (Uttarakhand UCC), has done away with that provision and now property can be willed away, the little provision that women could exercise for asserting their rights of property has been undone. It is important to place restrictions on the testamentary rights on a part of the property, this has been done in Western (European societies). Another important point to be brought forth is that in the case of “class 1 heirs” (first order of inheritors), this category would not only include the intestate’s partner, children and mother, but now also the father; meaning both parents are entitled to “share” a portion of the property, and by extension the mother gets half of what she would have received under the HSAA, 2005. More contentiously, “a widow/widower of a predeceased relative of an intestate, loses their share of the property if they remarry”, this is blatantly unfair given that it is in no way taking the family dynamics into consideration but solely the decision of possible re-marriage.
For Muslim women, the UCC brings relief in the form of equal rights to property, but at a certain level. Earlier as under the Sharia law, a third of the property could be willed but the remaining portion or in the case of intestate’s property, the entire inheritance would be divided among family members, with the coming of the U-UCC that provision no longer holds relevance. This is of course supplemented with the fact that it is bound to raise resistance given its distance from the Sharia. Additionally polygamy, marriage practices like the Iddat and Nikah Halala have been prohibited under the U-UCC and tribes (ST) have been excluded from this Bill.
The takeaway seems to be that the state is intent on becoming ever more paternalistic and invasive in the personal lives of its citizens. Relationships should be the decisions of consenting adults (over 18!) There is an undermining of individual authority and moral policing that happens when parents are consulted for the actions of their children and it is left open for third parties to comment and inquire on the relationship status of two adults living together (section 386 of the bill). The funny thing is that couples as per the law have been defined as man and woman, in one statement eradicating the possibility of LGBTQ+ couples living together… or does it? By not being defined under the category of couple, queer people have been saved from these obstacles heterosexual couples would have to got through, a surprisingly bright take on the matter, but I highly doubt this was done intentionally!
Picture Credits - https://images.app.goo.gl/o5hGF54RPXXszgfM6
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