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The child's rights should be protected

The emerging State debate also demonstrates an important change in the legal conception of children. The law is increasingly moving away from classifications based upon the legitimacy of the relationship between the parents and towards recognition of the independent rights of the child. A child does not choose the circumstances of birth. There is therefore a compelling argument for a common civil law under which children enjoy equal rights irrespective of whether they are born within marriage, outside marriage, through adoption, surrogacy, or assisted reproductive technology.

The Gujarat UCC expressly recognises children born of live-in relationships and provides for their legal rights. The Uttarakhand framework similarly provides recognition and consequences concerning children of live-in relationships, while Assam has followed the same broad direction.

Protection without surveillance

The regulation of live-in relationships presents the most difficult constitutional problem in the contemporary State UCCs. Uttarakhand chose to regulate live-in relationships through registration. Its Rules establish an administrative procedure for registration and termination, and the official UCC system now records live-in registrations and terminations as distinct services. Gujarat has substantially followed this approach; Assam has also adopted registration provisions for live-in relationships. The justification is understandable. Registration may help establish the existence of a relationship, facilitate claims for maintenance, protect children, provide evidence where one partner denies the existence of the relationship, and help address abandonment.

But there is a difference between protection and surveillance. Providing a deserted woman with a legal remedy is not the same as requiring every adult relationship to be reported to the state. There is a difference between protecting a child and maintaining an official record of the private relationships of consenting adults. The constitutional foundation for this distinction lies in the Supreme Court's recognition of privacy as a fundamental right.

In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, a nine-judge bench held that privacy is protected as an intrinsic part of the rights guaranteed by Article 21 and the freedoms contained in Part III of the Constitution. Privacy includes decisional autonomy, dignity, bodily integrity, and the freedom to make intimate personal choices. The choice of whether to enter into a consensual adult relationship, and the manner in which that relationship is organised, therefore falls within a constitutionally protected sphere, subject to restrictions satisfying constitutional requirements.

The legitimate objective should consequently be protection of vulnerable persons rather than supervision of the private lives of consenting adults. Any registration mechanism must be tested against privacy, autonomy and proportionality. A UCC may require disclosure where it is genuinely necessary to secure maintenance, inheritance, protection from abandonment, or the rights of children. But the law should avoid converting registration into a system of routine surveillance.

Uttarakhand: empirical evaluation

The fact that Uttarakhand has created an operational registration system provides an opportunity for empirical evaluation. Before the Gujarat and Assam codes become fully operational and before a national UCC is contemplated, the country should ask whether compulsory registration has reduced abandonment, whether it has made maintenance claims easier, whether it has protected children, whether it has reduced fraudulent claims concerning marital status, whether it has created unnecessary administrative litigation, and whether it has generated privacy concerns.

These questions should not be answered politically. They should be answered through data. A State experiment should produce evidence, and evidence should then influence the national law. The purpose of an experiment is not to prove that the original legislative idea was right. It is to discover whether it works.

Succession and structure of inheritance

The most transformative part of the UCC may ultimately be the law of succession. A secular succession regime should provide equal treatment to sons and daughters and to widows and widowers. Parents should not receive different treatment merely because of their sex. The concept of an interest arising by birth in ancestral coparcenary property is incongruent in succession law and enabling only Hindus to create several taxing entities as a tool of tax planning requires to be debated, notwithstanding the important reform of gender equality within the coparcenary

But the more difficult issues concern the very structure of inheritance. A modern code must decide whether property should descend according to relationships, contribution, dependency, or some combination of these principles. It must determine the place of spouses, children, parents, and other relatives and reconcile testamentary freedom with legitimate expectations arising from family relationships. This is where the UCC becomes a secular law of family wealth rather than just a project of religious uniformity.

The contemporary State codes are important because they move towards a common and gender-neutral order of succession. The surviving spouse, children, and parents are placed within the principal structure of intestate succession, and sons and daughters are treated without the historical distinction based upon gender. This represents a significant movement away from religion-specific succession rules.

But equality in intestacy is only one part of succession law. A gender-neutral scheme can ensure that a son and daughter inherit equally when a parent dies without a will. But what happens if the parent makes a will leaving the entire estate to the son? The principle of equality in intestacy does not answer that question. The UCC must therefore address the more difficult question of testamentary freedom.

Testamentary freedom and family rights

A modern secular code may favour extensive testamentary freedom, including the right of an adult of sound mind to dispose of his or her entire estate. But that freedom should be considered alongside the rights created by marriage, family dependency, and matrimonial property regimes. The Goan concept of legitime, the Puducherry law of quotite disponible applicable to renoncants, and the traditional Muslim limitation on testamentary disposition beyond one-third without the consent of heirs deserve careful comparative study. Neither the Goan nor the Puducherry principle should simply be transplanted into a national code. They illustrate competing philosophies: one places greater weight upon protected family property, while the other recognises significant testamentary autonomy but limits the extent to which a testator can defeat the claims of heirs. The national UCC should determine, after debate, where the balance ought to lie.

The Uttarakhand experience makes this question particularly interesting because its UCC Rules expressly provide administrative mechanisms for testamentary succession, including registration of wills and related documents. That raises an important distinction: registration of a will is not the same thing as restriction of testamentary freedom. A will may be registered merely to improve proof and reduce disputes. The national law should therefore distinguish between the right to make a will, the right to register a will, the legal effect of registration, the procedure for proving the will after death, and the circumstances in which the will may be challenged. These are separate questions and should not be conflated.

A burden should not be recreated

The law of testamentary succession also raises a procedural issue that deserves particular attention. Parliament has recently changed the law governing the compulsory nature of probate. The Repealing and Amending Act, 2025, omitted Section 213 of the Indian Succession Act, 1925, with effect from December 20, 2025. It also made consequential amendments to Sections 3 and 370. The precise effect of the amendment should be stated with care. The omission removed the statutory bar that had required probate or letters of administration in cases covered by Section 213 before rights under a will could be established in court. It did not abolish probate, letters of administration, or the court's jurisdiction to grant them. Nor did it make every will self-proving or immune from challenge.

The significance of this change should not be overlooked while examining the succession provisions of State UCCs. If Parliament has removed the earlier requirement of compulsory probate or letters of administration as a precondition for establishing testamentary rights, it would be worth examining whether a State UCC should, directly or indirectly, recreate such a mandate. A succession that is undisputed should not necessarily be converted into a costly and time-consuming court proceeding merely because the new code seeks to establish a comprehensive procedural machinery. Probate and letters of administration continue to serve an important purpose where the validity or authenticity of a will is questioned, where competing claims arise, where the executor requires formal authority, or where parties seek the conclusiveness associated with a judicial grant. The question for a UCC is therefore not whether that machinery should disappear, but which elements of it should be retained and in what circumstances.

A Uniform Civil Code should not merely make civil law uniform; it should make the exercise of civil rights simpler and more accessible. If Parliament is moving towards removing an unnecessary procedural barrier, the corresponding provisions of a State UCC should not restore the burden merely in the interests of administrative completeness. The procedure should be proportionate to the need for protection, prevention of fraud and resolution of disputes. The succession chapter of a future UCC should therefore be judged not merely by asking who inherits and in what proportion, but also by asking how easily, economically, and expeditiously the entitled person can establish and realise that right.

The tribal question

The exemption of Scheduled Tribes and constitutionally protected customary communities requires a mature discussion. If uniformity is the objective, why should some communities remain outside the common regime? The answer cannot be found in rhetoric. It must be found in constitutional principle and consultation. Uttarakhand excludes Scheduled Tribes from the operation of its UCC. Gujarat has similarly excluded Scheduled Tribes and groups whose customary rights are constitutionally protected. Assam also preserves the position of Scheduled Tribes. This raises an important constitutional tension.

Customary law is often deeply embedded in the social structure of tribal communities. A UCC imposed without understanding those practices could create precisely the kind of conflict that the legislation is intended to resolve.

The challenge is to reconcile two constitutional commitments: equality in civil rights and respect for legitimate cultural autonomy. The answer cannot simply be that every customary rule must survive, or that every customary rule must disappear. The question should be whether the particular custom is compatible with constitutional equality, dignity, and individual autonomy. Assam is particularly important because it demonstrates that the UCC debate cannot be constructed entirely around the experience of Uttarakhand. The north-eastern States have distinctive customary institutions and social arrangements. A national UCC that is designed in the plains and imposed mechanically upon tribal and customary communities may encounter constitutional and social resistance that could have been avoided through consultation.

The Supreme Court's role

The judiciary will inevitably have a role, although it should not draft the UCC. That responsibility belongs primarily to the Legislature. But legislation concerning marriage, family, inheritance, privacy, religious freedom, and individual autonomy will inevitably raise constitutional questions. The Supreme Court has developed an extensive constitutional vocabulary around equality, dignity, privacy, autonomy, and religious freedom. In Puttaswamy, privacy was recognised not as a narrow protection against physical intrusion but as a constitutional guarantee of personal liberty and decisional autonomy. That principle will be especially important when courts examine registration requirements, disclosure obligations and penalty provisions concerning live-in relationships. A law may pursue a legitimate objective, but it must still satisfy the requirements of legality, necessity, proportionality, and procedural safeguards.

Similarly, Joseph Shine demonstrates that constitutional validity cannot be assessed merely by asking whether a provision reflects traditional social morality. The court must examine whether the provision respects equality, dignity, autonomy, and the constitutional limits on criminalising consensual private conduct. These principles will inevitably provide the framework within which State UCC laws are tested. The judicial question may therefore not simply be whether there is a UCC. It may instead become whether a particular provision of a particular UCC is constitutionally permissible.

The national conversation should now be organised around identifiable areas of legislative debate rather than a simple division between supporters and opponents of the UCC. Matrimonial property regime, division of assets at the time of divorce, privacy issues in live-in relationships, the child's rights irrespective of circumstances of birth, classes of heirs in intestate succession, abolition of right by birth in coparcenary, and testamentary freedom are some of the crucial issues on which this debate should now hinge.

Read the PART-1 here

This Article is first published in FRONTLINE on 16 October 2026

 

The Author Justice K. Kannan (Retd.) is a former judge of the Punjab & Haryana High Court and Madras High Court. Views are personal

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