UNVEILING THE UNIFORM CIVIL CODE IN UTTARAKHAND: A CRITICAL EXAMINATION OF LEGAL AND SOCIAL IMPLICATIONS

‘Secularism‘ is a basic feature of the Indian Constitution. It means a state which has no religion of its own as recognized religion of state. In a secular state, the state regulates the relation between man and man. It is not concerned with the relation of man with God. India is a multi-religious country, and every religion has its own philosophies, own concepts and rules about marriage, divorce, adoption, etc. and our constitution protects all religions. India has no religion of its own. It treats all religions equally. Indian constitution embodies the positive concept of secularism.

Hindus have their own Hindu Marriage Act, 1955, Muslim law is still uncodified and traditional; there is also a Special Marriage Act, 1956, which is a secular code of marriage law of a general nature under which any two Indians irrespective of their religion may marry but it is an optional law of which any two Indians can take

advantage and thus we can say that family law in India is communal in so far as each community or religious group has its own distinct law for given domestic affairs and relations. But it creates confusion; nowadays family law is thus a maze, because what law will apply to a person depends on the religion he follows and so many complications arise in the family laws.

There is no homogeneity in India in matters of marriage succession and family relation. Not only there is diversity of laws, but the diverse laws have diverse provisions on similar point and all this creates very confusing situation at present.

(1) Monogamy has been introduced for everybody except Muslims, who still enjoy privilege of having four wives at a time, etc.

(2) Only Hindus can adopt a child in the sense of affiliating him or her legally and confer on the child rights of property. Others cannot adopt even if they want to do so. They have to take recourse to the Guardian and Wards Act, but guardianship over a child falls far short of conferring the legal status of a son on the ward.

(3) The various divorce laws prevalent in India at present are also inexplicable and indifferent on some matter of dissent of marriage such as—Parsi law requires a three year period of separation and it could serve as a ground both for judicial separation or divorce, while Indian Divorce Act provides for a period of two year separation and makes it a ground for judicial separation only and it is to say that each law suffers from some deficiencies and identical matters show differences.

It is true that present day family law is a mixture of old and new; it is of complicated, incoherent and non-symmetrical nature and so there is need for such a code which will do away with diversity in matrimonial law. Family laws of religion need to be changed in view of contemporary social circumstances.

It is important to simplify the Indian legal system to make Indian society more homogeneous; only then the idea of a secular society can be achieved and for these there is need for uniform civil code for all religions.

Article 44 of our Constitution says that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

UCC in Uttarakhand

Uttarakhand has become the first State in independent India to implement a Uniform Civil Code (UCC). The move, coming two months ahead of the Lok Sabha election, is part of the Sangh Parivar’s ideological agenda, after the abrogation of Article 370 in Jammu and Kashmir, and the construction of a Ram temple in Ayodhya.

A five-membered expert committee headed by retired Supreme Judge Ranjana Desai is formulated to give recommendations for the implementation of UCC in Uttarakhand. Other members of the committee were retired High Court judge Pramod Kohli, retired IAS Shatrughan Singh, social activist Manu Gaur and Doon University VC Surekha Dangwal.

JUDICIAL VIEW ON UCC

Chief Justice of India, D.Y. Chandrachud, leading a Constitution Bench in the Supriyo Vs. Union of India (same-sex marriage case), emphasized the imperative for the state to respect adults' freedom in forming lawful intimate associations. He asserted that the right to intimate associations falls within the ambit of Article 19(c) and represents a constitutionally guaranteed fundamental right alongside free speech and expression. Acknowledging the right to privacy, as established in previous judgments, becomes crucial in evaluating the constitutionality of UCC's provisions, marking a pivotal task for the court.

The UCC notably incorporates provisions for the maintenance of women in live-in relationships, mirroring the rights accorded to married women. Section 388 explicitly stipulates that in cases of desertion by a partner, a woman holds the entitlement to claim maintenance through competent court procedures. This provision mirrors existing legal regulations concerning marital desertion, thus extending equivalent privileges to non-marital cohabitation scenarios for female partners.

Although live-in relationships are not explicitly prohibited by law, they receive recognition through judicial pronouncements. The Supreme Court's ruling in S. Khushboo Vs. Kanniammal (28.04.2010) underscores the legal recognition of live-in relationships as falling under Article 21: the right to life of the Constitution, highlighting its linkage to fundamental rights. The court's acknowledgment of the dynamic evolution of personal relationships demonstrates how courts consider societal transformations when interpreting laws on individual liberties and obligations.

Traditionally, the Domestic Violence Act, 2005, accounts for live-in relationships as "domestic relationships" and provides provisions for maintenance, recognizing relationships 'akin to marriage' when women report domestic violence. The explicit recognition of live-in relationships by the UCC through a dedicated chapter signifies a shift in acknowledgment and regulation within the broader legal framework.

In Velusamy Vs. Patchaiammal (2010), addressing the Domestic Violence Act, the court emphasized that spending weekends together or engaging in a one-night stand does not amount to a "domestic relationship." UCC provisions stipulate compulsory registration and prescribe legal ramifications for non-compliance, aimed at clarifying and acknowledging live-in relationships.

While the Supreme Court has engaged with the topic of UCC through numerous judgments, it consistently refrains from issuing directives to the government, emphasizing that lawmaking falls exclusively within Parliament's domain.

Cases like the 1985 Shah Bano Begum case witnessed the court expressing regret over inaction regarding Article 44, specifically calling for its implementation. Further cases like Sarla Mudgal Vs Union of India (1995) and John Vallamattom versus Union of India (2003) echoed this demand for a UCC.

Six petitions filed in the Supreme Court between 2021-2022 sought uniformity in divorce and alimony laws, reviving the need for a UCC. However, it was not until March 2023 that these pressing matters drew attention again, with a Bench led by CJI D.Y. Chandrachud dismissing all six petitions, asserting their fallibility within Parliament's exclusive domain.

In Anoop Baranwal Vs. Union of India, on January 9, 2023, the Supreme Court dismissed a petition challenging the Uttarakhand government's decision to establish an expert committee on the UCC. The court underscored that such actions are permissible under Article 162, declaring "the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws." This ruling reinforced the constitutional validity of states' rights to progress towards a Universal Civil Code within their respective jurisdictions.

LEGAL IMPLICATIONS

The implementation of the Uniform Civil Code (UCC) brings forth sweeping reforms, particularly addressing contentious issues within Muslim personal law. These reforms are characterized by a nuanced evolution of provisions, aimed at modernizing and harmonizing legal frameworks. One significant amendment is the elevation of the minimum age of marriage for Muslim women to 18, a move designed to bring parity with existing legislation such as the Muslim Marriage Act, 1955, and the Special Marriage Act, 1954.

This adjustment has sparked considerable debate, primarily due to traditional interpretations within Muslim law that historically allowed marriages from a young age, often around thirteen, under the presumption of puberty. However, this practice now clashes with contemporary child protection laws, prompting scrutiny from various quarters. Notably, in December 2022, the National Commission for Women raised concerns over the permissibility of minors marrying, underscoring the legal tension between entrenched cultural practices and evolving societal norms.

Currently, this matter rests before a bench led by Chief Justice of India DY Chandrachud, highlighting the dynamism of India's legal landscape and the imperative to reconcile tradition with progressive legal standards. The proposed amendments not only raise the minimum marriage age but also extend the principle of monogamy to the Muslim community and prohibit specific practices such as Iddat, talaq, and Nikah Halala, signifying a significant overhaul of the institution of marriage within the Muslim context.

In essence/In conclusion we can say that, the UCC is set to focus on gender equality by introducing provisions that treat men and women equally, especially in matters pertaining to inheritance. It marks a significant stride towards legal uniformity in India. This comprehensive legislation addresses a wide array of personal and familial matters, impacting all citizens regardless of religious affiliations. The reforms pertaining to marriage, divorce, inheritance, and the recognition of live-in relationships showcase a nuanced approach, seeking a delicate balance between uniformity and India's rich tapestry of cultural and religious practices. The dynamic legal landscape in Uttarakhand positions its Uniform Civil Code (UCC) as a catalyst, sparking broader conversations on three critical fronts: the imperative of legal uniformity, safeguarding individual rights, and preserving cultural diversity within constitutional frameworks.