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The Seventh Schedule of the Constitution provides that both the Centre and state legislatures can legislate on matters pertaining to family laws. In pursuance of this power, the government of Uttarakhand tabled its own Uniform Civil Code in the state Assembly on Tuesday (February 6).
The Code applies to residents of the state, but only to those who identify within the binary genders of male and female who are in heterosexual relationships, thus leaving most LGBT persons outside its ambit.
It does not apply to members of the Scheduled Tribes (STs), and does not disturb those customary practices pertaining to family law that are protected under the Constitution. This includes customary practices prevalent in states such as Nagaland and Mizoram.
The Code, which borrows significantly from secular laws such as The Special Marriage Act, 1954, and The Indian Succession Act, 1925, repeals all family laws — secular, personal, and customary — to the extent that they are inconsistent with it.
What does the Code say about live-in relationships?
The Code defines live-in relationships as a relationship in the “nature of marriage” between a man and a woman cohabiting in a shared household, and requires compulsory registration of live-in relationships through a “statement of live-in relationship”.
A live-in relationship may be terminated by either of the parties to the live-in relationship by submitting a “statement of termination”.
Failure to register a live-in relationship within one month of entering into the relationship has been criminalised, with punishment up to three months in jail or fine not exceeding Rs 10,000.
The Registrar may require the parties to submit the statement of live-in relationship, through a notice, on his/ her own motion or on a complaint filed by a third party.
What about children who are born out of wedlock?
A progressive reform reflected in the Code pertains to the abolishment of the concept of “illegitimate children”.
At present, parent-child relations are governed by both secular and personal laws on guardianship, which discriminate against children born out of wedlock by deeming them illegitimate and not granting them rights at par with children born within wedlock. While courts have attempted to extend certain rights to children born out of wedlock specifically in matters pertaining to inheritance under Hindu law, as well as maintenance, the concept of an “illegitimate” child continues to prevail.
The Uttarakhand UCC treats children born in void and voidable marriages, as well as children born in live-in relationships, as legitimate.
However, fails to address the discrimination faced by mothers under guardianship laws that treat only fathers as legal guardians of the child, thus vesting in them the power to take decisions in relation to the child, and mothers as custodians of the child, thereby reducing them to caretakers.
What does the Code say about coparcenary property?
One striking feature of the Code is that it abolishes the coparcenary system, which exists under Hindu personal law.
Under the Hindu Succession Act, 1956, property can be held as coparcenary property or self-acquired property. Four generations of Hindus hold ancestral property as coparceners. Self-acquired property is individual property, and passes as per rules for intestate succession on death.
The share of the deceased in the coparcenary property forms part of the property pool again. Consequently, for a person to get their individual share in coparcenary property, the property has to be partitioned.
The Uttarakhand UCC does away with the coparcenary system, and extends the same scheme of succession to all persons irrespective of religion. Thus, all property will pass as individual property as per the scheme of intestate succession laid down under the Code.
What are some of the key things that the Code does not do?
* To the extent that the Code leaves out most LGBT persons from its ambit, it is a missed opportunity to follow through on the Supreme Court’s decision in the marriage equality matter, wherein it had clarified that state legislatures are competent to ensure marriage equality for all.
* The restitution of conjugal rights or resumption of cohabitation on a court order, has been retained as a matrimonial remedy under the Code. Irretrievable breakdown of marriage has not been included as a ground for divorce despite being recognised in several Supreme Court judgments.
* The division of the matrimonial estate continues to be governed by court discretion based on separation of matrimonial property to the extent it is not jointly owned, although pre-nuptial agreements have received a nod, and would need to be considered by a court in deciding division of property.
What actions has the Code criminalised?
Several penal provisions have been introduced throughout the scheme of the Code. The government recently stressed on the spirit of decriminalisation through the Jan Vishwas Act, 2024.
* As noted above, the non-registration of live-in relationships has been criminalised.
* Child marriage and marrying within prohibited degrees of relationship have also been criminalised.
* Dissolution of marriage through modes other than the judicial mode of divorce prescribed under the Code is punishable with imprisonment as well as fine.
* Compelling, abetting, or inducing any person to observe any condition for remarrying is also punishable with imprisonment up to three years.
Kartavi Satyarthi is a Research Fellow working with the Vidhi Centre for Legal Policy. Namrata Mukherjee is Senior Resident Fellow working with the Vidhi Centre for Legal Policy.
