New Delhi: The Uttarakhand Assembly on February 7 passed a uniform civil code (UCC) for the state. By clearing the bill, which was tabled in the House for discussion by Chief Minister Pushkar Singh Dhami on February 6 amidst chanting of Hindu religious slogans — including ‘Jai Shri Ram’, the Himalayan state has now become the first state in the country to implement a legislation purported to be uniform and civil.
What is the Uttarakhand UCC’s template for marriage — not just marriage but divorce and inheritance as well?
The Uttarakhand UCC provides for equal divorce rights, equal maintenance rights, equal child custody rights, among others.
Let’s take an overview of the bill, which after getting the Governor’s assent, will become a legislation.
Currently, there are largely three succession laws — the Indian Succession Act, 1925, the Hindu Succession Act, 1956 and the uncodified Muslim personal law.
The provision of succession in the UCC resembles mostly the same as the Indian Succession Act, 1925. The scheme under the state UCC says those who die without leaving a will, the spouse, the children, the parents and certain heirs of predeceased children of the deceased will be Class I heirs. And they all will get an equal share in the deceased property.
In the absence of these heirs, the property will be inherited by other heirs such as the brother and sister of the deceased and their children.
The property will be inherited by the closest relatives in line if the above-mentioned heirs do not exist.
Both parents (the father and the mother) and their children will have equal shares in the inheritance if the owner of the properties dies without leaving a will. This has not been a norm, particularly when it comes to both father and mother being equal stakeholders of inherited property.
When it comes to Muslims, the inherited property will no longer be distributed between son and daughter in the proportion of one-third and two-third respectively if there is no will. In case of a will, there is no restriction on the proportion of the shares. Earlier, the provision of one-third and two-third of the succession was decided by the Muslim personal law — which is largely based on Quran and Hadith.
For Muslims currently, Class I heirs include the mother, the grandmother, the husband, the wives, the son’s daughter, etc., and the Quran lays down specific shares for them. The remaining property passes to other heirs through meticulously laid down rules.
One such rule is that similarly placed female heirs get half the share of similarly placed male relatives. Thus, the daughter gets half the share due to the son.
This changes with the UCC Bill — in which both such parties will inherit equally.
For Hindus, the Uttarakhand UCC replaces all existing laws that are inconsistent with the 2005 amendment — which allowed daughters as equal shareholders — and applies the same scheme of succession to all persons, irrespective of the religion.
For Christians, there are some changes as well. The disparity between father and mother’s right to inheritance has also changed drastically. Under the Indian Succession Act — which applies to those married under the Special Marriage Act and to Christians — the parents of the deceased inherit only in the absence of lineal descendants like children and grandchildren.
This position changes in the UCC Bill, where both categories of heirs inherit together.
Further, under the Indian Succession Act, there is disparity between the mother’s and the father’s rights of inheritance. The father excludes the mother from inheritance altogether. The father also excludes the siblings from inheritance, but the mother inherits alongside the siblings.
In the UCC Bill, both parents inherit property, and exclude the siblings from inheritance.
The Uttarakhand UCC is nothing but “Hindu Code” applicable for all, alleged AIMIM MP Asaduddin Owaisi, asking why Hindu undivided family has not been touched.
“If you want a uniform law for succession and inheritance, why are Hindus kept out of it? Can a law be uniform if it does not apply to majority?” he asked.
When it comes to marriage, the UCC has brought the minimum age of marriage at 18 and 21 for men and women respectively. This will have a considerable impact on the Muslim personal law on marriage that has puberty and not the age as criterion for entering into a matrimonial bond.
Polygamy has been banned. For divorce, both men and women can approach court — seeking separation on grounds of both physical and mental cruelty, adultery, spousal desertion without any reasonable grounds such as religious conversion, soulness of mind and several other aspects.
Women will have special right to seek divorce if the husband is found to have more than one wife or guilty of rape or any other offence related to unnatural sex.
The bill when becomes an Act will replace personal laws such as the Hindu Disposition of Property Act, 1916, the Hindu Minority and Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Dissolution of Muslim Marriages Act, 1939, the Muslim Personal Law (Shariat) Application Act, 1937, the Mussalman Wakf Act, 1923, the Indian Christian Marriage Act, 1872, the Christian Marriage Dissolution Act, 1936, the Indian Succession Act, 1925, the Indian Divorce Act, 1869, etc.
What does it mean for religious stakeholders (Hindus, Muslims, Christains, Sikhs, Parsis and other minorities) of India? What will change for the people in general? Is it a blueprint for India? Will the country have this law tomorrow that the state is going to implement today? Should personal laws be reformed across communities? Will the UCC impose a Hindu code, as critics allege, on all?
This story will not delve into all aspects of the Uttarakhand UCC. It will be restricted to provisions of marriage, divorce and right to inheritance only.
The issue is complex. It is not as black and white as one describes it. And therefore, The Mooknayak spoke to eminent lawyers, a member of the drafting committee of the bill, constitutional expert and women rights activist to look at it from the prism of the Constitution, religious minorities and feminism and understand what may be the black spots for many.
Senior Supreme Court lawyer Dushyant Dave describes the bill as a “blueprint” for the entire nation.
“Passing the bill in a state like Uttarakhand, which has a population of just over 1 crore, with Muslims a 13 percent share of Muslims, is a tell tell of the fact that the Bharatiya Janata Party or BJP — which is ruling the state as well as the Centre — is preparing a blueprint for the entire country. They tried it earlier as well but failed because the Law Commission appointed in 2018 by the Modi government (in the Centre) had said very categorically that it is not practical to have a uniform civil code. The words used were ‘it’s not desirable’. Having failed at that time, they have brought it now with an eye on ensuing elections (general elections 2024) so that they can convince their electorates that they have already started the process,” he said.
Asked if he doesn’t feel that there should be a uniform law for everyone across the country instead of personal laws, he said it’s difficult to answer as the country has been having separate laws for Hindus, Muslims and Christains for thousands of years.
“These laws have worked to the satisfaction of many. And therefore, there is no need for why the laws should actually be tinkered with at this stage,” he argued, jokingly saying that “we have now come to a stage where we want to defeat (Mughal emperor) Babar in retrospect; and to do so, we are doing everything possible”.
“Starting with a Ram temple in Ayodhya”, he said, “We have now gone to Gyanvapi (Varanasi) and Mathura (Shahi Idgah mosque). All these measures are an attempt to tell the Hindu majority that we are defeating Muslims. It’s not in good taste. Mr Modi (Prime Minister Narendra Modi) doesn’t need it. He is already the most popular leader”.
Asked if he is trying to say that the UCC is directed against Muslims, he said it is and there is no doubt about it.
“If it’s not so, why did you (the government) exclude tribals when you claim it to be uniform? Are you going to amend Section 25 of the Constitution that allows Sikhs to possess and carry kirpan? Can you dare to touch it? Though they claim that they are bringing integration, they are in fact disintegrating the society in garb of integration,” he alleged.
When countered senior lawyer Nalin Kohli, additional advocate general of Assam who was part of the Uttarakhand UCC Bill drafting committee, was asked about Dave’s claim that how the proposed legislation can be described as uniform when the politically sensitive tribal community is kept out of it, he said the Uniform Civil Code has always been part of the Constitution even though it’s part of the the directive principles of the state policy.
“Article 44 of the Constitution is not the creation of the BJP. It has been there since we adopted the Constitution on January 26, 1950. Let’s also bear in mind that Article 37 does say that the directive principles are nor enforceable; however, it also casts a duty on the state that these principles should be followed in law formation. The Uniform Civil Code is not beyond the vision of the Constitution and it is part of it that has been kept pending for over 70 years. Can something, which is a part of the Constitution, be kept pending for such a long period?” he asked.
He said the Constitution if for everyone be it Hindus, Muslims, Christians, Sikhs, Buddhist, Parsis and Jews.
“We all get our rights from it as an Indian citizen. There can’t be an argument that an Indian citizen in any way will be prejudiced with the applicability of certain articles of the Constitution of India — in this case Article 44 being the Uniform Civil Code,” he argued.
Asked tribals too are Indian citizens but they are kept out of it since they are politically contentious, and the government perhaps feels that their response to it would cost it dearly, while Muslims would not respond; and therefore, it called politically motivated, he termed it a mere “hypothesis” — which he rejects.
Asked about Article 25, which Dave referred to in his argument, he said it is “not absolute”. “There is enough judicial precedent to that, and it is also subjected to public morality,” he said.
With regard to the ban on polygamy, he said of course, the state is within its right to make laws on it as marriage is a part of the Concurrent List.
“A state government has the right to decide what it wants to do within its territorial area. The government brings a draft bill in the House. It is for the legislature to decide what to include or exclude. Who are you and me to take charge and say our view should prevail because it is very strong and contrary to what is being presented in an Assembly or the Parliament even though the Bill follows constitutional schemes,” he said, adding, “Uttarakhand has chosen something, let’s see what happens. But the Uniform Civil Code as part of the constitutional vision cannot be dumped into the dustbin and called anti-Indian”.
Dave agreed to Kohli’s argument that the UCC is a constitutional vision, but said it cannot be brought in “political sense”.
“Constitutional vision must be in a constitutional sense. It cannot be brought about in a political sense. Constitutional vision under directive principles also speaks about removing untouchability, giving employment to all, bringing economic equality and bringing prohibition. Why is the government not doing all these? It is easy for you to cherry pick one vision and implement it because it will potentially bring you secure Hindu majority votes,” he countered.
Asked what is wrong if the government is bringing a gender equality law, he also agreed that the state is well within its right to bring a legislation — which is not in contradiction with the Constitution.
“It’s true that there is gender discrimination. Forget Hindus or Muslims. Women across religions are discriminated against. Why are we not bringing a uniform gender status code? Why are we not bringing a uniform social status code? Dalits have been kept in very difficult situations across the nation,” he said and clarified, “All I am saying is we need to unify the country, not divide it with such proposed laws. The prime minister, who is so popular, would certainly have great ideas to implement. I don’t know why he needs it (the UCC); why the BJP wants to embark on it”.
Asked why there is this urgency to bring out the controversial legislation when the 21st Law Commission termed it “not desirable”, Advocate Kohli said it should have been implemented back in 1955 when the Hindu Marriage Act came in.
“The Christains banned polygamy way back in 1872. The Parsis did it in 1936. We are in 2024 and still talking about gender equality. How can a Muslim woman be better off having one husband shared with three wives? What gender are we talking about?” he asked.
But the data does not support the argument that Muslims practice polygamy; and therefore, it is important to ban it to ensure gender equality. The National Family Health Survey-5 data only 1.9 percent of the total Muslim women who were surveyed said their husbands have more than one wife compared to 1.3 percent Hindu women who admitted to being in polygamist marriages in 2019 to 2021.
In tribal communities, it is sanctioned to have more than one wife. But the community has still been kept out of it despite the fact, as argued by Kohli, that the government wants to ban polygamy to bring about gender equality.
Noted women’s rights activist Zakia Soman supported the UCC, arguing that it is about gender equality and gender justice. But it’s up to the government, she said, to make it a positive and progressive instrument or do politics over it.
“The Uttarakhand Civil Code is a welcome move. At least, we have a draft now on which we can reflect, respond and ask for amendment,” she said.
On polygamy, she said there is not much difference between Hindus and Muslims as far as having more than one wife is concerned.
“I have a problem with the argument that Sharia law allows Muslims to practice polygamy. It must go as it is not allowed by the Quran unconditionally or as a general practice. The holy book imposes so many conditions and talks about the context in which it is allowed. And in today’s context, it is unjustifiable. Muslim women are suffering from polygamy in absence of a codified Muslim family law,” she said, asking who prevented the community to reform its personal laws in consonance with Quranic injunctions of gender justice as well as constitutional principle of gender equality.
She said the community could have done it much earlier. “Muslim women also want equal rights like their Hindu and Christian sisters in marriage and in family. They need legal parity; and therefore, I think the UCC is the only option available for the Muslim women,” she added.
Prof. (Dr) Faizan Mustafa, the vice-chancellor of the Chanakya National Law University, said he has been advocating the UCC for long, said the committee that drafted the proposed law did not have experts of personal laws of different communities.
“Though I welcome the legislation because it is very detailed, it has some issues. For instance, we have a Central law for Christains. We have a Central on some aspects even for the Muslims — the 1939 law and the 1986 law. We also have a full-fledged Hindu Code Bill. The Constitution is very clear that if there is a conflict between a Central law and a state law, then the Central legislation will prevail. To call a state law a uniform civil code may be fine, but the real UCC will be the one which the Indian Parliament enacts. The Uttarakhand UCC will help Parliament frame the Uniform Civil Code for the country as different states having different uniform codes will not be uniform,” he said.
He said Article 44 says the state shall endeavour to have a uniform civil code throughout the territory of India. The Uttarakhand law will not be applicable even to neighbouring Uttar Pradesh. “Additionally, it’s a uniform civil law on aspects on which there is no Central legislation,” he explained.
The Bill contradicts Central laws such as the Shariah Act, the Hindu Marriage Act, the Special Marriage Act, the Indian Succession Act, etc.
A voluntary UCC already exists in the form of the Special Marriage Act, the Indian Succession Act, the Juvenile Justice Act, the Domestic Violence Act, etc. Why make it mandatory when Dr BR Ambedkar himself did not call it mandatory?
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