Uttarakhand - Uniform Civil Confusion Code

The Uttarakhand Assembly passed the much hyped Uniform Civil Code (UCC) Bill on Wednesday evening. The Bill which is set to become an Act leaves more questions than it answers in its wake.

There is no doubt left that it will be a political tool for the ruling Bharatiya Janata Party (BJP) not only in Uttarakhand, but across the country, ahead of the 2024 Lok Sabha elections. Uttarakhand is the first state to pass such an Act, and many more BJP ruled states are expected to follow suit.

On the face of it, the document claims to provide uniformity in marriage, divorce, succession and live-in relationships. But it is being pointed out that it actually impinges on the rights to privacy. It is also being said that the UCC is aimed at making the minorities, particularly Muslims, insecure as many sections collide with the provisions of the Muslim personal law.

“It is obvious that there will be questions and perhaps protests. And on the other side this will be blown up by those spinning distorted poll narratives with the help of an embedded media. Who will benefit from all this is anybody’s guess,” pointed out senior political observer S.M.A Kazmi who is based in Dehradun.

The first question raised on the word ‘uniform’ in the Act, as its preamble exempts the large segment of Scheduled Tribes from its purview. Observers say that this segment has been left out so as not to ruffle the feathers of this constituency ahead of the elections.

The second question being raised is if a law passed by a state can usurp Central laws. Most of the issues related to marriage, divorce, re-marriage, succession, adoption etc. are already covered under separate personal laws.

After the passing of the Bill, Chief Minister Pushkar Singh Dhami said that the "UCC will prove to be a milestone for the entire country." A state government spokesperson said that Dhami had decided to constitute an expert committee to prepare the UCC draft, in the first cabinet meeting.

A five-member committee was formed under the chairmanship of retired Supreme Court judge, Justice Ranjana Prakash Desai and it finalised the UCC draft after “extensive public dialogue and in-depth study of every aspect” the spokesperson said. Around 43 public dialogue programs and 72 meetings across the state, the committee also communicated with the migrant Uttarakhandis.

The spokesperson claimed that after this Law, “social evils and practices like child marriage, polygamy and divorce will be banned in the society, but the culture, beliefs and customs of any religion will not be affected by this law that will protect children and women's rights”.

Now, ‘registration’ has been made mandatory for live-in relationships. The registrar will also have to inform the parents or guardians of the couple registering for the same. Children born during live-in will be considered the legitimate children of that couple and that child will get all the rights of a biological child.

The Bill prohibits polygamy while banning Halala and Iddat prevalent amongst Muslims.The provisions of the Bill make registration of marriage mandatory and not doing so will deprive one of government facilities. It also states a minimum age of 21 years for boys and 18 years for girls for marriage.

It further states that if one spouse in a marriage changes their religion without the consent of the other, then the other will have full right to divorce them, and take maintenance.

The document provides for equal right to divorce to husband and wife in all the religions along with equal rights to property for daughters in all religious communities.

The spokesperson said, “There is no distinction made between legitimate and illegitimate children for rights in property. Illegitimate children are also considered biological children of the couple. After the death of a person, his wife and children are given equal rights in his property. His parents will also have equal rights in his property. The property rights of the child in a woman's womb are protected.”

However, Uttarakhand Mahila Manch has issued a strong statement opposing this move of the Pushkar Singh Dhami led state government. It had sought that the Bill be referred to a standing committee. They accused the Bill of “criminalising constitutional behaviour” and “introducing moral policing”.

The Manach added that the ‘Hinduised Uniform Code Bill’ does not remove inequalities in the family across the spectrum of religions but criminalises the Muslim minority, and autonomous, consensual behaviour of adults.

A scathing criticism came from the CPI (ML) state general secretary Indresh Maikhuri who described the development as a “futile exercise, in which there is a code but it does not bring any kind of equality for the citizens”. According to him, this is a “forced intrusion into the personal relationships of adults by the government and its right-wing extremist groups”.

“The claim of this bill being a uniform code gets rejected only by keeping the tribes out of it. Not only the tribes but many other parts also have their own traditions, customs, traditional laws, personal laws and any attempt by the government to interfere in them is unnecessary and unwanted.

“Registration of marriage and divorce has been made mandatory. Registration of marriage was already mandatory by law. But the dangerous provision in this bill is in its Section 15. It provides that the register of registration of marriages and divorces shall be open to public inspection.

“After all, why is there a need for public display of the process of living or not living in a private relationship after registering it with the government? If two people get married outside this state and one of them is a resident of this state, then the provision to register the marriage in this state also is beyond comprehension and perhaps this provision goes beyond the limits of law.

“By bringing live-in relationships under the ambit of mandatory registration and by making provision for punishment for non-registration, it has been put in the category of crime. It is beyond comprehension why Dhami's government is so anxious to intrude into the personal relationships and personal desires of adults.

“It seems that there is an attempt to make the one-day violence by right-wing groups on Valentine's Day permanent in the form of moral policing of live-in relationships," Maikhuri said.

“The issue of will and inheritance and distribution of property is only for the rich people. For a large section of the population, which is facing the brunt of unemployment and plunder of resources, what is important is not the distribution of property, but two square meals. So instead of worrying about strengthening the education, employment and health system of the people, Dhami is worrying about the distribution of property. This is a patriarchal, right-wing, communal and futile exercise on which the state’s resources have been wasted,” Maikhuri added,

Uttarakhand Mahila Manch representatives Uma Bhatt, Basanti Pathak, Chandrakala, Kamla Pant, Malika Virdi and Nirmala Bisht minced did not mince words and said, “On a perusal of the draft UCC Bill presented at the Uttarakhand Legislative Assembly, it is apparent that the rhetoric the Chief Minister of Uttarakhand and his government were mouthing has been actualised through the draft.

“Therefore, while seemingly being uniform across religions, the Bill is actually criminalising and regulating constitutionally acceptable behaviours like adult consenting cohabitation, called ‘live in’, reducing autonomy and choice, which the women in this country have attained through concerted effort, inside the homes and on public platforms.

“Moral policing measures have been introduced in this regard. What is shocking is that this law is applicable even to those living outside Uttarakhand, apart from being applicable on all residents of the state including those who do not have a domicile.”

They have pointed out at the ‘glaring silence’ about the rights of queer and transgender persons within a family along with the rights of transgenders and same sex persons to marry.

“Majorly it seeks to introduce changes in the provisions that are perceived as defective in the Muslim law, such as unequal inheritance, polygamy and the practice of 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).

“In one sense the Bill has terminated the application of Muslim personal law and has further criminalised the Muslim male and female. Ironically, the Bill has not incorporated positive and progressive aspects of 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 legally binding conditions that are mutually acceptable and a 1/3 limit rule for willing away property.

“Had the intention of the Bill genuinely been to bring about gender justice, such provisions could have been extended to women of all communities,” the Manch stated.

The women activists added that the discrimination that Hindu women face in the family, which stands unaddressed in the various family laws prevalent in the country, the religious personal laws or the Special Marriage Act have not been addressed at all.

“There is a total silence on addressing the issues of discrimination against women within the Hindu Undivided Family or rather the provisions are so drafted that they cannot be applied to the Hindu Undivided Family and coparcenary property owned by it.

“The 2005 amendment to the Hindu Succession Act, provided daughters the right to coparcenary property on par with sons, but excluded other female members of the Hindu Undivided Family such as widows, wives and mothers. The Hindu Undivided Family is premised, even after the 2005 amendment, on descendants (male and female) from a common male ancestor. These glaringly patriarchal and gender discriminatory provisions have been left untouched by the Bill,” the statement added.

It has also been underlined that the Bill, by being silent on the application of Christian family law and Parsi family law as well as other religious communities, which, apart from being legally untenable, means that these personal laws also have been terminated in the state without any consultation with the communities.

While the five tribal communities of the state have been excluded, giving preference to customary law, however, other communities that work with customary law cannot seek intervention there as it has been set aside and termed illegal.

“The critical aspect of any law is that every stakeholder in the law should be able or should have the space to access the law. In the prevailing climate where minorities are being targeted, it will make it difficult for women from minority communities to access any uniform law, howsoever progressive it is made, (which is not the case in this retrograde law), when its basic objective is to show one-upmanship over minorities, especially Muslims,” the Manch has asserted.

The women activists have illustrated how the Code Bill follows the ‘Hindu law’ template while pointing out that the existing realities that make equal provisions of inheritance in the Hindu law unrealizable, have not been factored. For instance, the reality that property is by and large purchased in the name of the man is not factored. This means that after the male expires, the property will be inherited by his parents (but not by his wife’s parents), along with his Class I heirs, in the same share.

“That, according to the Bill, her property will also be inherited by her husband along with her parents as Class I heirs, has no meaning in a society that by and large does not purchase property in the name of females. In other ways the structural discrimination against Hindu females has been kept intact.

“The concept of matrimonial property has not been introduced, despite the Law Commission of India’s recommendation in this regard. Similarly, the positive provisions from the Muslim law or the Goa law, such as the restrictions on making a will to render equal inheritance rights to naught, have not been considered in the framing of this law,’ the activists added.

“The Bill has retained restitution of conjugal rights as a matrimonial remedy at a time when its constitutional validity has been challenged in the Supreme Court. This is a regressive provision with colonial origins that legally compels unwilling spouses to live together in the name of consortium, companionship and conjugality. In the case of a wife, she may be subjected to rape and forcible pregnancy by the husband.

“Criminalising the violation of compulsory registration of marriage without a provision in the law for creating awareness and facilitating documentation, in effect will mean that people will be rendered law violators for no fault of their own, and be subject to penalties,” they added.

It has been pointed out that in a state with poor socio-educational status of women, the ramifications are bound to be adverse for women. Reading between the lines the activists added, “There is a function creep in this law, in that this Bill is intended to target political dissenters and those who are minoritised, which includes the minority within the Hindu community as well.

“Therefore, in the guise of establishing non-registration of a live-in relationship, the State will have the power to enter the home and surveil. Criminalisation of adults in consensual live-in relationships, who may have deliberately decided to avoid marriage and its legal consequences, appears to be overshadowing other intentions.”

It has also been underlined that fundamental rights are either denied, or taken away by this law. Even the existing provision of the right of women to reside in their matrimonial homes, has been taken away.

“Thus rights to equality, right to live and livelihood and to live with dignity, right to freedom of speech and expression, freedom of conscience and right to freely profess, practice and propagate religion, have become casualties under this Bill,’ the women activists added.

It has also been pointed out that there is a total silence on areas pertaining to custody, guardianship and adoption of children, which are critical areas around which there has been much gender-based discrimination.

While there are no special provisions to safeguard the rights of queer and transgender persons within a family and the rights of transgender persons to marry, same sex marriages are not envisaged or recognised. Concerns raised by persons with disability that required special provisions to safeguard the rights are also not addressed in the Bill.

Bringing in the UCC Bill ahead of the Lok Sabha polls is seen as a move to float a ‘political balloon’ ahead of the forthcoming Parliamentary elections to polarise the electorate. Uttarakhand was the best choice to do so given the recent history of hate speeches and narratives of ‘land jihad’, ‘love jihad’, ‘mazaar jihad’ etc that have been dominant here. Its demography of a largely upper caste Hindus dominating the hill districts further facilitated the move.