TNM Explainer: Impact of UCC on marriage, inheritance, divorce and adoption
The Uniform Civil Code (UCC) — a proposed set of laws concerning matters such as marriage, divorce, adoption, inheritance, etc. that would replace personal laws of different religions — is in the news yet again. While the idea itself dates back as far as the Constituent Assembly debates held while the Constitution of India was being drafted, the Law Commission of India is currently examining the matter once again. On June 14, it invited the views of the public at large and recognised religious organisations on the UCC, giving them a month’s time. While this window was still open, Prime Minister Narendra Modi on June 27 made a strong pitch for a UCC, while suggesting that Muslims were being misled by Opposition parties over the issue.
Implementing a UCC has been one of the major demands of the right-wing and the election promises of the Bharatiya Janata Party (BJP), along with the revoking of Article 370 of the Constitution (which gave greater autonomy to Jammu and Kashmir) and the construction of the Ram temple in Ayodhya. With the latter two promises being fulfilled during the second term of the Narendra Modi-led Union government, and the 2024 general elections approaching, speculation is rife that a UCC Bill could be introduced in the Parliament soon. On July 3, the Parliamentary Standing Committee on Law and Justice led by BJP MP Sushil Kumar Modi held a meeting to discuss UCC.
While the debate around UCC has predominantly been framed as a Hindu-Muslim issue, replacing personal laws of individual religions with a common civil code will have far-ranging implications for individuals of all religions, castes, tribes, and genders.
The main contention over whether India should have a UCC is a battle “between freedom of religion and one‘s right to equality,” as the 21st Law Commission put it in its Consultation Paper on Reform of Family Law in 2018. While the BJP’s push for UCC has been in the language of gender justice and women’s rights, minority communities including Muslims, Christians, and tribal communities have expressed fear that it could end up having a majoritarian approach, forcing them to follow largely Hindu laws.
The recent discussions around UCC have mostly been speculative since no draft or concrete proposals to be included in it have been made public yet. There has been support and opposition to the idea from various quarters, contingent on the UCC’s final content. As we await the Law Commission’s fresh views and possibly a draft Bill from the Union government, here’s a look at the history behind UCC, its implications for various communities, and the arguments for and against it.
A brief history of UCC
The UCC is mentioned in Article 44 of the Constitution, under the Directive Principles of State Policy of India, which says that the State “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This was done following considerable debate on whether UCC should be a fundamental right or a directive principle. While the directive principles are not enforceable by courts, they are fundamental in the governance of the country.
The Constituent Assembly debates indicate that there was no consensus over what a UCC would look like. Ambedkar himself felt that while a UCC was desirable, it should be “purely voluntary” in the initial stages.
The Hindu Code Bill introduced by Ambedkar in the Constituency Assembly in 1947 was meant to codify Hindu personal laws while removing regressive practices and addressing discrimination against women. This was heavily opposed by Hindu groups. However, based on it, a series of laws were passed in the 1950s — The Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoption and Maintenance Act, 1956.
The idea of a UCC has been backed by the BJP since the party’s inception, and even prior to that by its predecessor, the Jan Sangh. It first featured in BJP’s election manifesto in 1998, when it said the Law Commission would be asked to frame a UCC based on “progressive practices from all traditions” to ensure equal rights for women in the context of divorce laws, property rights, adoption and guardianship rights, and to put an end to polygamy.
Over the years, when the issue was raised in the Parliament, successive governments — including the Atal Bihari Vajpayee-led NDA government and the UPA government under Manmohan Singh — refused to “interfere” in the personal laws of minority communities.
Since 2014, the Narendra Modi-led BJP government has stressed the need for a wide consultation with stakeholders, and an in-depth study of the provisions of various personal laws governing different communities. Last year in July, former Union Law Minister Kiren Rijiju told the Parliament that no decision had been taken on implementing UCC as the matter was sub-judice. In March this year, the Supreme Court closed petitions demanding a UCC, saying the Parliament alone can take a call on the issue.
The Supreme Court itself has called for the implementation of UCC in various judgements, notably in the landmark 1985 Shah Bano verdict (Mohd Ahmed Khan vs Shah Bano Begum And Ors) which favoured payment of alimony to divorced Muslim women in contradiction of existing Muslim personal law. In 2015 too, the apex court suggested that the Union government work on a UCC, saying there was a lot of confusion because of varied personal laws (while hearing a petition challenging a longer period of separation for Christian couples before filing for divorce by mutual consent, compared to other religions).
The next year, in June 2016, the Union government tasked the Law Commission of India with examining matters related to UCC. In its 2018 consultation paper, the Commission said that a UCC was “neither necessary nor desirable at this stage.” Instead, it discussed various discriminatory laws at length and recommended changes within the personal laws of each community to ensure gender equality.
What could a UCC possibly look like?
A UCC is likely to replace existing personal laws related to a wide range of matters, including marriage and divorce, custody, guardianship, adoption and maintenance of children, and succession and inheritance of property. It is also likely to impact income tax laws, customary laws of tribal groups, and marriage equality and other rights of LGBTQIA+ persons. Here are some of the complexities in personal laws a UCC is expected to address.
The institution of marriage
Polygamy: One of the first topics that come up in debates on UCC is about polygamy being permitted in Islam, with the perception that Muslim women are often treated poorly by husbands who have multiple wives. However, government data suggests that polygamy is not that much more prevalent among Muslims compared to other communities. According to National Family Health Survey 5 from 2019-21, only about 1.9% of Muslim women said their husbands had more than one wife, compared to 1.3% of Hindu women. Some states including Tamil Nadu, Telangana, and Andhra Pradesh even had a higher proportion of Hindu women admitting to being in a polygynous marriage compared to Muslim women.
The Law Commission’s 2018 report too said that polygamy is a rare practice among Indian Muslims, while noting that it is often misused by persons of other religions who convert to Islam only to legally have multiple wives. Noting that the matter is sub-judice before the Supreme Court, the Commission, however, took a stand against bigamy, saying the fact that only men are allowed to have multiple wives is “unfair.”
Age of consent for marriage: A UCC would also have to consider the demands for compulsory registration of marriages, and the ambiguities around the age of consent for marriage. For instance, Hindu law prescribes 18 and 21 years as the legal minimum age for women and men. However, it also recognises marriage between a 16-year-old girl and an 18-year-old man as valid, but voidable. Muslim law on the other hand recognises the marriage of any minor girl who has attained puberty as valid. The 21st Law Commission had also argued against the difference in the minimum age for men and women, saying it contributes to the stereotype that wives must be younger than their husbands.
Even within Hindu law, there are ambiguities and regional contexts that a UCC would have to consider. For instance, the Hindu Marriage Act doesn’t allow marriage between first cousins but makes an exception when the custom of a community allows it.
Divorce: Currently, the grounds for divorce, division of property upon divorce, and alimony are all decided differently as per the personal laws of various communities. The 21st Law Commission recommended changes across different communities’ laws — Hindus, Muslims, Parsis, Christians, Sikhs and others — encouraging a simplified process for divorce with the same grounds for divorce made available to men and women from the same community, and accounting for women’s contribution in household labour and care while dividing property after divorce.
While the practice of instant triple talaq in Islam has already been outlawed, the Law Commission noted that men can seek divorce without an explanation while women need to qualify their decision, and recommended applying the grounds for divorce available in the Dissolution of Muslim Marriage Act, 1939 to men and women, to ensure “equality within the community rather than equality between different communities.”
Custody of children, adoption
The Hindu Minority and Guardianship Act, 1956 considers the father as the default ‘natural guardian’ of a minor, giving him precedence over the mother. But this is only in the case of a legitimate child, whereas the mother becomes the natural guardian if the child is ‘illegitimate’. In the case of a married minor girl, the husband becomes her guardian. The 21st Law Commission had noted while discussing this Act that although codified Hindu Law was brought in to tackle discrimination against women, the notion of men being superior and in control still persists.
The custody of a minor varies among different schools of Muslim personal law, and the definition of a minor itself is different from other communities, as a child is considered a major upon attaining puberty.
When it comes to adoption, Hindu law treats an adopted child as equivalent to a biological child. Islamic doesn’t recognise adoption but allows a ‘kafala’ system wherein the child is placed under the guardianship of a foster parent who is legally entitled to care for the child.
Inheritance
Succession and inheritance of property are also complex issues with varied laws among different communities. The 21st Law Commission, while calling for measures to ensure gender equality in inheritance laws, also recommended the abolition of the Hindu Undivided Family (HUF), a Hindu joint family that enjoys legal status as a trading entity. “In present times, HUF is neither congruent with corporate governance, nor is it conducive for the tax regime,” the 2018 paper had said.
Are there any precedents for a UCC in India?
Goa is the only Indian state which currently has a civil code, based on the Portuguese Civil Code of 1867. The Supreme Court in 2019 hailed Goa as a “shining example” with a working UCC “applicable to all, regardless of religion except while protecting certain limited rights.” BJP leaders including LK Advani and Goa Chief Minister Pramod Sawant too have held it up as a model for other states and proof that a UCC is feasible in India.
However, the Goan law has some outdated provisions and isn’t absolutely uniform. For instance, as All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi pointed out last year, while the law doesn’t permit bigamy even for Muslims, it allows an exception for a Hindu man if his wife is unable to conceive a child. CM Sawant had defended the law stating that the provision existed only on paper and had not been applied in years. The law also differentiates between Catholics and others in the way it recognises marriage.
While a few BJP-ruled states including Madhya Pradesh and Gujarat have constituted committees to implement a UCC, Uttarakhand is the only state where a draft Civil Code has been prepared by an expert committee. Several reports suggest that the Union government is likely to use this as a template for drafting its own UCC Bill.
What are the main arguments for and against UCC?
Other than BJP and right-wing groups, a few individuals and groups have also agreed on the desirability of a progressive uniform code, proposing a gender-just law that does away with regressive practices from all religions and communities while prioritising the rights and safety of children, women, and LGBTQIA+ persons.
The opposition to UCC, on the other hand, comes not just from religious minorities but also various tribal groups, who fear that their customary laws and traditions might be impinged upon. For instance, the Nagaland Tribal Council (NTC) has said that a UCC would dilute the provisions of Article 371A of the Constitution, which guarantees that no Act of Parliament will interfere in the religious or social practices of the Nagas or Naga customary law and procedure in the state of Nagaland. Other tribal groups in Mizoram, Meghalaya, Assam, and Jharkhand have also expressed opposition. Meghalaya CM Conrad Sangma, whose National People's Party is in an alliance with BJP, also spoke against the idea.
The head of the Parliamentary Standing Committee on Law and Justice Sushil Kumar Modi himself has reportedly questioned the feasibility of a UCC in tribal areas, and suggested that tribal citizens be excluded from its purview. The 21st Law Commission itself had responded to the argument that a UCC may advance the cause of national integration and said, “This may not necessarily be the case when cultural differences inform people‘s identity and its preservation guarantees the territorial integrity of the nation.”