Hits and misses in Uttarakhand UCC

The Uniform Civil Code (UCC) of Uttarakhand, which was recently brought into force, is a bulky enactment comprising 392 sections, seven schedules and multiple forms. Nearly 80% of its bulk contains procedural provisions relating to the registration of marriages, divorces and live-in relationships, execution and interpretation of wills, and administration of deceased persons’ estates. Its substantive principles, though not many, are replete with significant implications of far-reaching consequences.

The basic rules of matrimonial law spelt out in Part I of the code seem to have been drawn from a combined reading of parallel provisions under the Special Marriage Act and the Hindu Marriage Act of 1954-55. The provisions of this part on registration of marriages replace the Uttarakhand Compulsory Registration of Marriages Act of 2010, which the code repeals. Additionally, the code requires registration of divorces obtained through judicial proceedings. This is an innovation.

The Uniform Civil Code (UCC) of Uttarakhand, which was recently brought into force, is a bulky enactment comprising 392 sections, seven schedules and multiple forms. Nearly 80% of its bulk contains procedural provisions relating to the registration of marriages, divorces and live-in relationships, execution and interpretation of wills, and administration of deceased persons’ estates. Its substantive principles, though not many, are replete with significant implications of far-reaching consequences.

The basic rules of matrimonial law spelt out in Part I of the code seem to have been drawn from a combined reading of parallel provisions under the Special Marriage Act and the Hindu Marriage Act of 1954-55. The provisions of this part on registration of marriages replace the Uttarakhand Compulsory Registration of Marriages Act of 2010, which the code repeals. Additionally, the code requires registration of divorces obtained through judicial proceedings. This is an innovation.

Section 391 (1) of the code declares that “any law (statutory or otherwise), practice, custom or usage in force in the state immediately before the commencement of this code relating to the matters covered by this code, shall cease to have an effect within the territory of the state, in so far as they are inconsistent with any of the provisions contained in this code”. This overriding provision will render ineffective certain provisions of personal laws, both statutory and non-statutory, in their application in the state.

The law on “degrees of prohibited relationship” (relatives between whom marriage is prohibited) under the code, found in section 3 (d) and Schedule I, is the same as under the Special Marriage Act, 1954. Under that Act, marriage with a second or third cousin (which the Hindu Marriage Act prohibits) will be valid under the code. On the contrary, marriage with a first cousin, which Muslim law allows, will be unlawful under the code. This is an unjustifiable discrimination.

Section 29 of the code declares that “No marriage solemnised/contracted before or after the commencement of this code shall be dissolved in any manner except in accordance with the provisions of this Part, notwithstanding any usage, custom, tradition, personal law of any party to the marriage, or any enactment to the contrary”. This means a blanket ban on all forms of extrajudicial divorce, whether at the instance of either party to the marriage or by the spouses’ mutual consent. The provision should override Section 29 (2) of the Hindu Marriage Act, 1955 exempting from its purview “any right recognised by custom” to obtain dissolution of marriage. At the same time, it would surpass the Muslim Women (Protection of Rights on Marriage) Act, 2019 which invalidates and penalises only “talaq-e-bid’at” — commonly known as triple talaq — which instantly dissolves the marriage and is irrevocable. All other forms of extrajudicial divorce prevalent among the Muslims — “talaq-us-sunnat” (unilateral dissolution of marriage by the husband under three spaced utterances), “khula” (talaq at the instance of wife) and “mubra’at” (termination of marriage by the spouses’ mutual consent) — which had remained unaffected by the anti-triple talaq Act of 2019, will also be unlawful under the code.

The law of succession under Part II of the code mainly contains procedural provisions relating to testamentary succession and administration of estates, drawn from the Indian Succession Act of 1925. This Act, which had merely consolidated various 19th-century Acts on the related issues, is now itself a century-old law. In 1985, the Law Commission of India had recommended a complete overhaul of this Act, but its report on the subject is lying in the official archives. The architects of the Uttarakhand code, if they were aware of it, also did not take cognisance of this valuable report. Following the archaic pattern of the 1925 Act, they overloaded Part II of the code with superfluous illustrations, making it extremely disproportionate to the rest of the code.

As regards the inheritance of a deceased person’s property, the code has placed both parents among the primary heirs. Happily, this is quite different from the Hindu Succession Act of 1956 which irrationally puts only the mother among the primary heirs, pushing the father to the residual class of secondary heirs. The position of the code in this regard is, remarkably, the same as under Muslim law which also treats both parents as primary heirs.

Part III of the code, on so-called live-in relationships, has the effect of more or less equating this socially disapproved practice with holy marital unions. This is an ill-considered move.

Under the Hindu Marriage Act, 1955, a minor’s marriage is not void and attracts only a penalty. Enacted 70 years later, the Uttarakhand code maintains this position. Thus, architects of this 21st-century law could also not muster the courage to outlaw this social evil. Nor could they, dittoing the policy behind the modern Hindu law, extend their “uniform” code to the state’s 30 million-strong tribal population. The constitutional provision on uniform civil code envisages a common family law nationwide, not in a particular state. The code may in the sight of its supporters be a proverbial bird in hand better than two in the bush, but it surely does not answer the call of the Constitution.

Tahir Mahmood is professor of law and former member of the Law Commission of India.The views expressed are personal