How gender-just is the Uttarakhand Uniform Civil Code?

The Uttarakhand Civil Code fails to incorporate progressive provisions from Muslim personal laws and brings live-in relationships under a draconian boot, revealing its faulty nature.

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UTTARAKHAND has become the first state in India to enact a Uniform Civil Code (UCC) under Article 44 of the Constitution.

The code unifies family laws concerning marriage and divorce, restitution of conjugal rights, judicial separation, nullity of marriage and divorce, maintenance, alimony and custody, intestate and testamentary succession, and live-in relationships.

Adoption, guardianship and surrogacy are conspicuous by their absence. The tribal population has been excluded from the application of the code.

The UCC has been projected as a tool to achieve gender justice. However, the extent to which the code has met this aspiration needs to be examined.

Living in peace no more

An issue that has raised much public debate is the provision of mandatory registration of live-in relationships.

The Act has entered a totally new terrain by introducing provisions of formalising what had hitherto been in the realm of informal sexual relationships between consenting adults and raises constitutional concerns about privacy and personal liberty.

The code requires partners to notify the registrar within a month of entering into a live-in relationship and also while terminating it.

One fails to understand the purpose for which the provisions of registering a live-in relationship have been included in the UCC. They defeat the very rationale of a live-in relationship as they render it on par with a formal marriage, with the stipulation of conditions for entering into a relationship similar to a marriage contract— monogamy, prohibited degrees of relationships, etc.

Also, similar to marriage (and divorce), one has to register the contract of a live-in relationship with the registrar at the time of entering into a relationship and also at the time of exiting from it.

Non-registration has been rendered into a criminal offence with a fine of ₹10,000 and imprisonment of up to three months. In case of failing to produce a certificate of a live-in relationship, a term of six months is prescribed on conviction in addition to a fine of ₹25,000.

These stipulations transform the relationship from an informal type into one governed by draconian and rigid criminal law.

The purpose seems to be to dissuade young couples from entering into such relationships and control their sexuality, and raises questions about individual privacy and liberty.

The code defines a live-in relationship as a "relationship between a man and a woman" who "cohabit in a shared household through a relationship in the nature of marriage, provided that such relations are not prohibited".

Interestingly, there is a glaring silence about the rights of queer and transgender persons within a family and the rights of transgender and same-sex persons to marry.

What is shocking is that this law applies even to those living outside Uttarakhand, in addition to being applicable to all residents of the state including those who do not have a domicile.

No progressive non-Hindu personal laws incorporated

Its major concern seems to be to change the provisions of Muslim law that are perceived as defective, such as unequal inheritance, polygamy, iddat (period of waiting after divorce or death of husband before remarriage) and the practice of nikah halala (by which a person can only remarry his divorced spouse after she has married someone else, consummated the marriage and thereafter obtained a divorce).

It has terminated the application of Muslim family law and has further criminalised the Muslim man and woman.

Ironically, it has not incorporated positive and progressive aspects of Muslim law such as the compulsory payment of mahr by the husband to the wife which provides financial security for the wife, nikahnama (marriage contract) which allows for the spouses to add legally binding conditions that are mutually acceptable, and restraint on willing away more than one-third of property.

Had the intention been genuinely to bring about gender justice, such provisions would have been extended to women of all communities.

The code is silent on the application of Christian family law and Parsi family law as well as the laws of other religious communities which, apart from being legally untenable, means that these personal laws also have been terminated in the state without any consultation with the said communities.

One-upmanship instead of 'common' consensus 

The critical aspect of any law is that every stakeholder should be able to or should have the space to access the law. In the prevailing climate where minorities are being targeted, it will make it difficult for women from minority communities to access any uniform law, howsoever progressive it might be (which is not the case in this retrograde law) when its basic objective is one-upmanship over minorities, especially Muslims.

The discrimination that Hindu women face in the family, and which stands unaddressed in the various family laws prevalent in the country, either in religion-based personal laws or the Special Marriage Act, 1954 have not been addressed in the code.

For instance, the code has retained restitution of conjugal rights as a matrimonial remedy even though its constitutional validity has been challenged in the Supreme Court. This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of conjugality. Ostensibly gender-neutral, it has grave implications for the wife as it may result in rape or forcible pregnancy.

The provision of compulsory registration of marriage has been opposed by women's groups as it will defeat the rights of women whose marriage is not registered. The prevailing norm of presumption of marriage in cases of long-term cohabitation serves women better when a marriage is challenged in a court.

The law has taken away several fundamental rights of women that have been secured after a sustained struggle over many decades, such as the right to reside in the matrimonial home, the right to live in dignity, the right to livelihood, the right to freedom of speech and expression, and the right to freely profess, practice and propagate one's religion.

Regarding succession and inheritance, it has taken away the difference between coparcenery and separate property and granted equal rights to men and women and so superficially it appears to be gender-equal.

But on deeper scrutiny, it has taken away the rights Hindu women had gained after the amendment to the Hindu Succession Act, 1956 in 2005. The amendment granted equal rights in coparcenary property by birth which could not be willed away so women had certain protection.

But the Uttarakhand UCC has taken away this protection and now all property can be willed away. Given the bias against endowing daughters with property, even the limited protection they had is now lost.

The right way forward would have been for the UCCC to restrict testamentary rights on a part of the property so that daughters would inherit at least something.

Flavia Agnes is a women's rights lawyer and founder of Majis Legal Centre which provides litigation support to survivors of sexual and domestic violence.