#TaxmannPPT | Overview of Uniform Civil Code with Special Emphasis on Uttarakhand Uniform Civil Code

UNIFORM CIVIL CODE

With special reference to UCC of Uttarakhand

BY PROF. (DR.) VAGESHWARI DESWAL

FACULTY OF LAW UNIVERSITY OF DELHI

What is Uniform Civil Code?

“Samaan Nagrik Samhita”

UCC is a proposal in India that is aimed at replacing personal laws based on religions, customs, and traditions with one common law for everyone irrespective of religion, caste, creed, sexual orientation, and gender.

Article 44: The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

According to Article 37 - directive principles are guiding principles for government policies, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”.

Article 25-28 of the Indian Constitution guarantees religious freedom to Indian citizens and allows religious groups to manage their own affairs.

UCC will cover marriage, divorce, inheritance/succession, adoption and maintenance.

Genesis of the concept of UCC

Romans have Jus Civile, a legal contemporary term that upholds all the rules and principles of law derived from the laws and customs of Rome.

Uniform Civil Code is followed in countries like UK, France, US (California has a Family Code that applies to all citizens, regardless of their religion)., Pakistan, Bangladesh, Malaysia, Turkey, Indonesia, Egypt and Ireland. All these countries have one set of personal laws for all religions and there are no separate laws for any particular religion or community

In India, the Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification

Divide and Rule policy of the British Empire

Hindu’s-brahamanical customs accepted-fear of opposition from higher castes

Muslims- diverse local customs so a uniform Sharia law of 1937 enacted to govern all Muslims

However local customs were allowed to outweigh the written text of law

After independence Hindus have to follow the Hindu code bill 1956, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. , Muslims and other religions were given the liberty to follow their own respective laws. For Muslims, the Shariat prevails and All India Muslim Personal Law Board keeps attempting to regulate their laws

The Secular Special Marriage Act

Special Marriage Act 1872

This had a limited application because it required those involved to renounce their religion.

Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights.

The Special Marriage Act, 1954, provides a form of civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law.

Under this act polygamy is illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law.

Therefore, the Special Marriage Act provided significant protection to religious minorities which could not be found in the Personal Law of their religion

Indian Succession Act, 1925 governs the will made by a Hindu, Sikh, Christian, Jain or Buddhist. However, Muslims are not governed by this Act.

Goa civil code or Goa Family Law

The Goa civil code is largely based on the Portuguese Civil Code (Código Civil Português) of 1867, which was introduced in Goa in 1870 (by a Decree of 18 November 1869, the Civil Code of 1867 was extended to the Overseas Provinces of Portugal)

The civil code was retained in Goa after its merger with the Indian Union in 1961, although in Portugal, the original Code was replaced by the new Portuguese Civil Code of 1966.

A single code governs all the native Goans and the native Damanese of Damaon, Diu & Silvassa, irrespective of affiliation to religion, ethnicity and social strata.

Features of GCC

Concept of common matrimonial property.

Provision for pre-nuptial agreements. Pre-nuptial Public Deed regarding the disposal of immovable and movable property in the event of divorce or death.

Parents cannot divest their children of property completely (atleast 50 percent will go to children irrespective of gender)

Muslim men whose marriages are registered in Goa cannot practice polygamy.

Hindu men have right to bigamy (no other community permitted). That is, if wife fails to bear child before 25 yrs or a male child before 30 yrs.

Verbal talaq not accepted

Hindu men can seek divorce only on grounds of adultery

The Roman Catholics can solemnize their marriages in church after obtaining a ‘No Objection Certificate’ from the Civil Registrar. For others, only a civil registration of the marriage is accepted as a proof of marriage.

Divorce provisions under the civil law are not applicable to the Catholics marrying in the church

Every birth, marriage and death have to be compulsorily registered and this effectively checks child and bigamous marriage

Why do we need a UCC?

Rights based society

India is a democratic, secular and socialist country. A modern welfare state cannot permit regressive practices against women in the garb of religion.

Cultural practices must align with substantive equality and gender justice goals.

Opposition to UCC stems from the reluctance to shed patriarchal notions and traditions.

Shah Bano Begum v. Mohammad Ahmed Khan (1985)

The Supreme Court upheld the right of a Muslim woman to claim maintenance from her husband under Section 125 of the Criminal Procedure Code, even after the expiry of the Iddat period.

Danial Latifi v. UOI (2001)

Correct interpretation of ‘Reasonable and fair provision for future of wife’

Ms Jorden Diengdeh v. S.S. Chopra (1985)

The court raised the issue of uniformity in personal marriage. The Apex Court observed that the laws that are related to marriage such as judicial separation or divorce are not uniform at all. It also emphasized the need for the uniform provisions like an irretrievable breakdown of marriage and mutual consent for divorce to be applied in all cases irrespective of religion. The need for framing the Uniform Code for marriage and divorce was raised by the Court as the Court directed to send a copy of its judgment to be sent to the Ministry of Law and Justice .

Why UCC? Contd

Sarla Mudgal v. Union of India (1995)

The Supreme Court held that a Hindu husband cannot convert to Islam and marry another woman without dissolving his first marriage. It also stated that a UCC would prevent such fraudulent conversions and bigamous marriages.

John Vallamattom v. Union of India

A Priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for the religious or charitable purpose by will. The bench struck down the Section declaring it to be unconstitutional. Further, the court observed that, it is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies.

Why UCC? Contd

Shayara Bano v. Union of India (2017)

The Supreme Court declared the practice of triple talaq as unconstitutional and violative of the dignity and equality of Muslim women.

UCC was proposed in November 2019 and March 2020

Withdrawn in face of opposition from religious groups and tribals.

Fresh call for UCC in June, 2023 has rekindled the discussion. The 22nd Law Commission of India had recently sought fresh suggestions from various stakeholders on the Uniform Civil Code.

UCC of Uttarakhand, 2024

Passed on 7th Feb, 2024

Notified on 13th March 2024, after assent of president

Applicable to: Whole of Uttarakhand; Residents of UK who reside outside UK U/s- 3(n) defines resident

The Uniform Civil Code of Uttarakhand, 2024

Divided in four parts: Marriage & Divorce, succession, live-in relations and Miscellaneous.

392 sections

Seven schedules: List-1& 2 of prohibited relationships; Class 1 and Class 2 list of heirs for succession; Form of certificate; form of caveat; form of probate; Form of letters of administration; form of Certificate and extended certificate.

Part 1: Marriage and Divorce

◦ Chapter 1: Conditions for solemnizing/ contracting marriage

◦ Chapter 2: Registration of marriage and divorce

◦ Chapter 3: Restitution of Conjugal Rights and Judicial Separation

◦ Chapter 4: Nullity of marriage and divorce

◦ Chapter 5: Incidental proceedings

◦ Chapter 6: Jurisdiction and procedure

◦ Chapter 7: Supplemental Provisions

Grounds of Voidable Marriages

UK UCC Part-2: Succession

Chapter 1: Intestate Succession

Chapter 2: Testamentary Succession

Chapter 3: Protection of Estate of Deceased

Chapter 4: Representative title to Estate of Deceased on succession

Chapter 5: Probate, letters of administration and administration of assets of deceased

Chapter 6: Succession Certificates

Chapter 7: Miscellaneous

Live-in Relationship

Submission of Statement by partners to live-in relationships

Statement of termination of live-in relationships

Children of live-in relationships

Procedure of registration and consequences of non –registration

Powers and duties of registrar

Offences and penalties

Maintenance to women

UK UCC Part 3: Live-in-relationship S. 373-389

Offences

and penalties

Staying in live-in for more than one month without informing the registrar- 3 months imprisonment or fine upto 10,000 rs.

Making false averments in the statement of live-in relation or withholding true information- 3 months or 25000 fine

Failure to submit the SOLIR on being required via notice – 6 months or 25000 rs.

Maintenance

Upon desertion by her live-in-partner, woman can claim maintenance

Some concerns

Tribals kept out of the purview

Attempt at moral policing by the State

Marriage resister open to scrutiny by any person- raises concerns as to privacy

Non-recognition of trans-persons (Uses expression-sons, daughters, sister, brother)

Registration of Divorce- what is the purpose?

Inconsistencies in various personal laws

Hindu Undivided Families are exempted from taxes

Muslims are exempted from paying stamps duty on gift deeds

Muslim law doesn’t permit adoption

Hindus practice Dowry, Muslims practice Dower

Muslim Law permits polygamy

No uniformity in succession laws

No uniformity in grounds of divorce

Differences in marriageable age

Muslim women cannot remarry before expiry of ‘iddat’

Reprehensible custom of ‘halala’

Source: study.com

Source: NDTV

The way forward……

We need to identify discriminatory and oppressive issues and consider progressive views that align with the constitutional goals of equality and justice.

By UCC, the existing inequalities can be rectified, ensuring that women from all religious backgrounds are granted equal rights and opportunities.

Issues like child marriages, polygamy, triple talaq, right to maintenance, inheritance and property rights can effectively be addressed by the way of UCC

UCC has the potential to foster national integration and secularism by establishing a shared identity and a sense of unity among all Indians.

It would address the communal and sectarian conflicts such as Love Jihad and honour killings that arise due to the existence of distinct personal laws.

It would streamline the legal system by eliminating the complexities and contradictions that stem from multiple personal laws.

It would harmonize civil and criminal laws, eliminating any anomalies and loopholes that arise due to the diverse personal laws.

UCC would modernize and reform outdated and regressive practices prevalent in certain personal laws. It would eliminate practices that infringe upon human rights and values enshrined in the Constitution of India, such as triple talaq, polygamy, child marriage, and others.