Amidst debate on achieving uniformity in Indian society with a Uniform Civil Code, Law Commission chairman Justice BS Chauhan (retired) has been presented with the draft of a ‘ progressive uniform civil code ’ that provides for live-in and homosexual relationships, and has ruled out any kind of gender-based discrimination.
The draft-code rules out all discrimination between man, woman or a transgender in a marriage or a partnership in issues such as divorce, adoption, child custody and inheritance.
The draft was prepared by lawyer Dushyant and signed by activist and Magsaysay award winner Bezwada Wilson, actress Gul Panag, journalist and critic Nilanjana Roy, Major Gen S Vombetkere (retd), historian Mukul Kesavan, S Irfan Habib and artiste TM Krishna.
The draft was presented to Justice Chauhan by Dushyant, Krishna and Wilson.
The initiative has been supported by legal luminary and former Attorney General Soli Sorabjee, who forwarded the draft to Justice Chauhan, saying, “Any step ahead to bring everyone on the same page must be progressive and enlightened.”
“The Law Commission should obviate any apprehension that anything uniform would be majoritarian. Besides, its recommendations need to be far-sighted and progressive,” said Sorabjee in his letter, adding that, “I think this draft would be a step in that direction and is worthy of the Commission’s consideration”.
The draft code states that the resolve of upholding India as a Sovereign, Socialist, Secular, Democratic Republic cannot be honoured until the discrimination entrenched in all personal laws is consigned to the ash heap of history.
Besides marriage, the draft defines partnership or live-in relationships and includes transgenders, homosexuals and bisexuals.
It defines partnership as “living together without marriage of a man with a woman, a man with another man, a woman with another woman and a transgender with another transgender or a transgender with a man or a woman”.
It provides for all marriages to be compulsorily registered in the urban local body.
In the provision of marriages, it provides legal sanctity for non-heterosexual marriages too, which are not accepted in any personal law.
“In case of non-heterosexual marriages, the fact that the religious or customary practices do not permit such marriages or prohibit such marriages will not be a bar against such marriage and the Registrar of Marriages will have all such powers to ensure solemnization of such marriage, including exercising due discretion in directing police protection for the couple who are entering/ have entered such marriage,” the draft code states.
With live-in relationship having received a nod from the highest court years ago and the presumption of law holding any two persons living together as man and wife to be so considered, the draft also provides that no one should enter into two such partnerships simultaneously, just like the Hindu Marriage Act provides against second marriage during the subsistence of first marriage.
On the issue of adoption, the draft provides for all couples, whether married or in a partnership, to adopt a child, irrespective of their sexual orientation.
With the triple talaq issue being a subject matter of debate for long, the draft specifically mentions that “no non-judicial decree of divorce will have any legal effect”.
The draft also takes into account the settled law that in matters of child custody, the best interest of child in of paramount importance and also adds that religion and sexual orientation of the custodial parent will not be a relevant factor in such cases.
The draft also proposes to do away with any discrimination in the law of inheritance such as those in Muslim laws where the share of women at the time of inheritance is half of the share of their male counterparts.
Dushyant speaks of how personal laws for Hindus, Christians and Parsis are codified and while those for Muslims, Tribals and Adivasis remain un-codified but whether codified or un-codified, they set discriminatory terms for marriage, divorce, child custody, inheritance, guardianship.