Uttarakhand's UCC – Unifying Laws Or Dividing Communities? [Part-I]

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^[1] against framing a law that even the 21^st Law Commission headed by Justice B.S. Chauhan declined to recommend, in his report dated 31^st August 2018, 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, 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, amidst opposition. 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.^[2] In 1956, The Hindu Code Bill came into being in a modified form through four enactments: Hindu Marriage Act; Hindu Adoption and Maintenance Act; Hindu Minority and Guardianship Act, and 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.

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. But 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 wives, children and parents, who are unable to maintain themselves.^[3]

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^[4]. 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 judgment, though not expressly so stated, the Supreme Court in Shabnam Hashmi v Union of India^[5] 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 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.

Divorce

In a meaningless exercise, the new law makes compulsory the registration of not just marriage but also divorce. Divorces, thus, are to be legalized 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 by 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 must 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. The novel interpretation brought through Githa Hariharan v Reserve Bank of India^[6] of section 6 of the Minority & Guardianship Act that a mother shall not be understood as falling in inferior status as a natural guardian after the death of the father for the child but must be understood as entitled to the guardianship 'in the absence' of the father could have found a legislative induction through this law.

Succession

As regards 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 Act recognises both parents as primary heirs along with children and spouse. The Hindu Succession Act 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 husband and children, makes the parents-in-law as the husband's heirs.^[7] 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 whether the omnibus provision under Part 4 repealing customary law will mean the abolition of HUF is exceedingly suspect and unlikely. The concept of HUF and the legal incidents of survivorship does not strictly deal with 'succession' 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. A provision for deemed coparcenary and right by birth in succession law is already a legal anachronism in the Hindu Succession Act, when it should have been, if at all, through an independent law. It is difficult to reconcile the present State law with implied repeal of right by birth to joint family interest in HUF property.

Author is a former judge of Punjab & Haryana High Court, and the founder of Madhyastham, a mediation and arbitration practice. Email: kannan@madhyastham.com

Views Are Personal

1. * First published in Frontline on February 29, 2024.

   See the Author's lead article in the Hindu on July 13, 2016 under the caption, Now is not the moment. ↑

2. Among other persons, no less a person than the then President Rajendra Prasad himself opposed through a volley of communications with Pandit Nehru: “We have to weigh how it will be received by the vast bulk of Hindu public against what foreigners outside India and those who call themselves 'progressive' would say. My feeling is strong on the point that we shall be riding roughshod on the cherished sentiments of the vast bulk of our people and that without having any warrant or sanction from them simply because we consider certain things to be right.” ↑

3. The resort to section 125 of CrPC is still generally made only by the weaker sections in the community. The measly 500 rupees per month as the limit payable was dropped through the amendment Act 50 of 2001 but many State amendments still provide for limits in the range of 1500 rupees to 5000 rupees only. ↑

4. 2010(2) Mad LW 881. ↑

5. AIR 2014 SC 1281, 2014 AIR SCW 1329 ↑

6. (1999) 2 MLJ 62, (1999) 2 Mad LW 723, 1999 (2) SCC 228.↑

7. Om Prakash v Radhacharan (2009) 15 SCC 66. ↑