Uniform Civil Code (UCC) in India – Overview | Significance | Comparative Analysis

What is the Uniform Civil Code (UCC)?

The Uniform Civil Code (UCC) in India is a proposed legal framework that aims to replace the personal laws, which are specific to various religions, with a common set of laws governing every citizen. These personal laws cover areas such as marriage, divorce, inheritance, adoption, and maintenance. The objective of the UCC is to ensure equality and justice for all citizens irrespective of their religion, and to integrate the Indian population under a single legal framework, thereby promoting national unity and secularism.

The UCC is rooted in Article 44 of the Indian Constitution, which is one of the Directive Principles of State Policy. It calls upon the state to endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India. However, the implementation of UCC has been controversial and met with opposition from various religious communities who view it as an infringement on their religious and cultural identity. Despite these challenges, the UCC remains a significant and ongoing topic in India's legal and political discourse.

By Prof. (Dr.) Vageshwari Deswal – Professor | Faculty of Law | University of Delhi

Table of Contents

1. What is the Uniform Civil Code? “Samaan Nagrik Samhita”
2. Genesis of the Concept of UCC
3. The Secular Special Marriage Act
4. Goa Civil Code or Goa Family Law
5. Why Do We Need a UCC?
6. The Uniform Civil Code of Uttarakhand, 2024
7. Grounds of Voidable Marriages
8. UK UCC Part-2: Succession
9. UK UCC Part 3: Live-in Relationship
10. Some Concerns
11. Inconsistencies in Various Personal Laws
12. The Way Forward

1. What is the 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.

2. 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.

3. 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.

4. 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.

5. 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.

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.

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.

6. The Uniform Civil Code 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

(n) “resident” means a citizen of India, whether residing within or outside the territories of the State of Uttarakhand, who-

1. is eligible to be a permanent resident under the notification issued by the State Government in this regard, or
2. is a permanent employee of the State Government or its undertakings/entities, or
3. is a permanent employee of the Central Government or its undertakings/entities, employed within the territory of the State, or
4. has been residing in the State for not less than one year, or
5. is a beneficiary of any scheme of the State Government or the Central Government, applicable in the State;

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

Conditions for marriage – A marriage may be solemnized/contracted between a man and a woman, if the following conditions are fulfilled, namely –

• neither party has a spouse living at the time of the marriage;
• at the time of the marriage, neither party –

1. 1. is incapable of giving valid consent in consequence of unsoundness of mind; or
   2. though capable of giving valid consent, has been suffering from a mental disorder of such a kind or to such an extent so as to be unfit for marriage; or
   3. has been subject to recurrent attacks of insanity;

• the man has completed the age of twenty-one years and the woman the age of eighteen years;
• the parties are not within the degrees of prohibited relationship, unless the custom or usage governing one of them permits marriage between the two; Provided that such customs and usage are not against the public policy and morality;
• the marriage is not prohibited under any law in force.

Ceremonies for marriage – Marriage may be solemnized/contracted between a man and a woman in accordance with the religious beliefs, practices, customary rites and ceremonies including but not limited to “Saptapadi”, “Ashirvad”, “Nikah”, “Holy Union”, “Anand Karaj” under The Anand Marriage Act 1909 as well as under, but not limited to, The Special Marriage Act, 1954 and Arya Marriage Validation Act, 1937.

7. Grounds of Voidable Marriages

Voidable marriages –

Any marriage solemnized/contracted, whether before or after the commencement of this Code, shall be voidable and may be annulled by a decree of nullity on a petition presented to the Court on any of the following grounds, namely-

• that the marriage has not been consummated owing to the impotence or wilful refusal of the respondent; or
• that the marriage is in contravention of the condition specified in clause (iii) of section 4; or
• that the consent of the petitioner was obtained by force, coercion or fraud; or
• that the wife was at the time of the marriage pregnant by a man other than the husband or that the husband had at the time of the marriage impregnated a woman other than the wife.

Prohibition on dissolution of marriage – No marriage solemnized/ 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,

Right of a person to remarry where a decree of divorce or nullity of marriage has been passed –

• When a decree for divorce or nullity of marriage has been passed and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the decree to marry again.
• Right to remarry under sub-section (1) includes the right to remarry the divorced spouse without any condition, such as marrying a third person before such remarriage.

8. UK Uniform Civil Code 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

9. UK Uniform Civil Code Part 3: 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

Submission of statement by partners to a live-in relationship –

1. It shall be obligatory for partners to a live-in relationship within the State, whether they are residents of Uttarakhand or not, to submit a statement of live-in relationship under sub-section (1) of section 381 to the Registrar within whose jurisdiction they are so living.
2. Any resident(s) of Uttarakhand staying in a live-in relationship outside the territory of the State may submit a statement of live-in relationship under sub-section (1) of section 381 to the Registrar within whose jurisdiction such resident(s) ordinarily resides.

Children of a live-in relationship – Any child of a live-in relationship shall be a legitimate child of the couple.

When live-in relationships not to be registered – A live-in relationship between two persons shall not be registered –

1. where the partners are within the degrees of prohibited relationship as defined under clause (d) of sub-section (1) of section 3:
   Provided that the prohibitions will not apply to person(s) whose customs and usage permit the relationship, if it were a marriage;
   Provided further that such customs and usage are not against the public policy and morality: or
2. where at least one of the persons is married or is already in a live-in relationship: or
3. where at least one of the persons is a minor: or
4. where the consent of one of the partners was obtained by force, coercion, undue influence, misrepresentation or fraud as to any material fact or circumstance concerning the other partner, including her/his identity.

Procedure for registration of live-in relationship –

• Partners in a live-in relationship, or persons intending to enter into a live-in relationship, shall submit a statement of live-in relationship to the Registrar concerned in such format and in such manner as may be prescribed.
• The Registrar shall examine the contents of the statement of live-in relationship so submitted and satisfy herself/himself by conducting a summary inquiry that the live-in relationship is not of such a kind as is mentioned under section 380.
• In conducting summary inquiry under sub-section (2), the Registrar may summon the partners/persons or any other person for verification in the prescribed manner and require the partners/persons to supply additional information or evidence, if necessary.
• After conducting such summary inquiry as may be deemed appropriate, the Registrar shall, within thirty days of the receipt of the statement of live-in relationship under sub-section (1), either-

1. 1. enter such statement in a prescribed register for registering the live-in relationship, and issue a registration certificate in the prescribed format to the partners/persons; or
   2. refuse to register such statement, in which case the Registrar shall inform the partners/persons of the reasons in writing for such refusal.

Registration under this Part only for record – Registration regarding live-in relationship under clause (a) of sub-section (4) of section 381 shall be only for the purposes of record.

Submission of statement of termination of live-in relationship – Both partners to a live-in relationship, or either of them, may terminate it and submit a statement of termination in the prescribed format and in the prescribed manner to the Registrar within whose jurisdiction such resident(s) ordinarily resides, and provide a copy of such statement to the other partner in case only one of the partners terminates the live-in relationship.

Duties of Registrar –

1. Any statement of live-in relationship submitted under sub-section (1) of section 381 shall be forwarded by the Registrar to the officer-in-charge of the local police station for record, and in case either of the partners is less than twenty-one years of age, also inform the parents/guardians of such partner(s).
2. If the Registrar comes to the conclusion that the relationship is of such a kind as is mentioned under section 380, or that the contents of the statement under sub-section (1) of section 381 are incorrect or suspicious, she/he shall inform the officer-in-charge of the local police station for appropriate action.
3. On any statement of termination being submitted under section 384 by one partner to a live-in relationship, the Registrar shall inform the other partner about such statement, and in case either of the partners is less than twenty-one years of age, also to the parents/guardians of such partner(s).

Notice for registration of live-in relationship – Where any partner(s) to a live-in relationship has failed to submit the statement of such relationship, the Registrar, either of her/his own motion or on receipt of a complaint or information in this regard, shall by notice require such partner(s) to submit a statement in a prescribed manner within thirty days from the date of receipt of such notice. On such statement being submitted, the Registrar shall act in accordance with the procedure laid down in the preceding provisions.

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

10. 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?

11. 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’

12. 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 Uniform Civil Code.
• 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.