Abstract
The Uttarakhand Civil Code, 2024 has been passed by Uttarakhand Legislature and is now set to come into force after receiving Presidential assent and being notified to come into force. The Code seeks to enact a civil code applicable to all residents of the state irrespective of the religion, caste and creed of the person, except those belonging to the Scheduled Tribes. The conditions for marriage and grounds for divorce has been set in line with the Special Marriage Act, 1954. The Code provides for compulsory registration of all the marriage solemnised/ contracted within the territory of the state or performed outside the state where at least one of the parties is the resident of the state. All decree of nullity of marriage or divorce/ judicial separation are also required to be registered. Divorce in any other way than prescribed in the Code is prohibited and made punishable. Compelling or abetting any condition for divorce/ remarriage is also prohibited and punishable. One of the unique features of the Code is that it provides for legal recognition of the live-in relationships and stipulates for compulsory registration of such relationships. The Code also has provisions of protection of rights of woman in such relationships at par with a married woman. The Code also provides legitimacy to the children born out of such relationships.
In the Constitution of India, Article 44 under the Part IV (Directive Principle of State Policy) states that “The State shall endeavour to secure for the citizens a Uniform Civil Code (UCC) throughout the territory of India.” 1 The Directive Principles, as enshrined in the Constitution, are not enforceable by any Court of Law, but the principles laid down are to be fundamental in governance and these principles are stated to be applied in making laws by the state. But the UCC has become a contentious issue on account of diversity and plurality existing in our country in terms of religion, culture, region, language, etc. It is pertinent here to mention that the Article 25 ensures fundamental rights to all its citizens to profess, practice, and propagate religion, which is subject to public order, morality, and to other provisions of the part of the fundamental rights of the Constitution. Article 26 guarantees the fundamental right to manage the religious affairs. 1 Critics of the UCC argue that it would infringe upon these fundamental rights as guaranteed in the Constitution. But the Supreme Court at various times has expressed the need of introducing the UCC.2,3 Goa is the only state in India which has a UCC. In 2019, the Supreme Court observed that Goa is a shining example of an Indian state which has a UCC applicable to all, regardless of religion except while protecting certain limited rights. 3 It is pertinent to note that the Goa Civil Code is, in fact, a continuation of Portuguese Civil Code, 1867 after annexation of Goa into Indian Union, which was made applicable by Goa, Daman and Diu (Administration) Act, 1862. But the Goa Civil Code is not exactly a uniform one as Catholic Christians have been accorded some special rights. 4
In a landmark development, Uttarakhand became the first state in India which passed a UCC, titled “The Uniform Civil Code of Uttarakhand, 2024.” 5 The Code seeks to enact uniform laws in the matters of personal nature, like marriage, divorce, inheritance of properties, adoption, and guardianship applicable to all residents, irrespective of their religious belief, caste, creed, or the community. The Act, in its opening statement, is stated “to govern and regulate the laws related to marriage and divorce, succession, live-in relationships and matters related thereto.” The jurisdiction of the Code extends to the residents of Uttarakhand, who reside outside is territory; but excludes the members of Scheduled Tribes and the group of persons whose customary rights are protected under Part XXI of the Constitution. Though the Act has been passed, it is yet to be notified to come into force as on this date. Section 3(i) states “a person means individual, whether male or female, and the expressions ‘she/he, her/his, her/him, herself/ himself, shall be construed accordingly.’” Thus, the Code leaves out the LGBT community from its ambit.
Provisions Regarding Marriage and Divorce in the UCC
Part 1 of the Code exclusively contains all the provisions regarding the marriage and divorce. These provisions are uniform for all regardless of the religion professed by the parties. Conditions regarding the marriage have been set on the lines of the Special Marriage Act, 1954. Conditions of marriage are stated to be in relation to a man and a woman. Hence, the Code does not recognize a same-sex marriage. Polygamy stands prohibited as neither party should have a spouse living at the time of marriage. Marriage is not permitted within the degrees of prohibited relationship unless the customs and usage of the society to which the parties belong, provided it is not against the public order and morality. Age for marriage is fixed to be 21 years for man and 18 years for woman. Any marriage procured in contravention of the provisions of the conditions of the age of marriage and prohibited relationship is made punishable with six months imprisonment and a fine. The parties should be capable of giving a valid consent and must not suffer from a mental disorder of such a kind or an extent so as to be unfit for marriage and should not be subject to recurrent attacks of insanity. Marriage may be solemnized/contracted between a man and a woman in accordance with the religious beliefs, practices, customary rites, and ceremonies. After, the commencement of the Act, all the marriages solemnized/contracted in the state or outside, if one of the parties is resident of the state is required to be compulsorily registered. Registration is also necessary from the date of commencement of the Uttarakhand Compulsory Registration of Marriage Act, 2010, which is 26-10-2010 onward. If already registered under the same Act, a declaration of the same effect is required to be filed. Registration is also mandatory for any decree of divorce or nullity of marriage. Registration of any such decree passed by a court outside the jurisdiction of the state of Uttarakhand, where at least one of the parties is a resident of the state, is mandatory as well. All the register of marriage, divorce, nullity of marriage, etc. shall be open to public and a certified extract, therefore, may be obtained by anyone on application and payment of prescribed fees.
Decree of divorce/judicial separation can be obtained on grounds of adultery, cruelty, desertion of a period of two years and above, conversion to another religion, being incurable of unsound mind or mental disorders of such a kind, or extent that the petitioner cannot reasonable live with the respondent. Marriages solemnized/contracted before or after the commencement of this Code can be dissolved only in accordance with the provisions of the Code, regardless of any usage, custom, tradition, personal law of any party. Any dissolution of marriage, which is not in accordance with the Code, is made punishable with imprisonment of three years and fine. Compelling, abetting, or inducing a person to observe any condition, interfering with a right of remarry after a decree of divorce/nullity of marriage has been obtained, is also made punishable with three years’ imprisonment and fine.
Restitution of conjugal rights and cohabitation on a court order has been retained as a matrimonial remedy in the Code.
On perusal of the conditions of marriage and grounds for divorce/judicial separation, it is observed that the Act seeks to prohibit polygamy, child marriage, triple talaq (instant divorce), practices of nikah halala, iddat, gender equality, etc., regardless of the religions or beliefs of the parties. The Code also makes it mandatory for all to follow the provisions of the Code, by making provisions of compulsory registration, penal provisions, etc. In this way, the Code is an effort to achieve the aims and objectives of the Article 44 under the chapter of the Directive Principles in the Constitution. But it may also be argued that the Code infringes the fundamental rights of religious freedom under Article 25 and 26 of the Constitution.
Conditions of marriage and ground for divorce/judicial separation in respect to the mental disorders are the same as in the Special Marriage Act, 1954. Therefore, the Code overlooks the current scenario in respect to the mental disorders on account of advancement in the field of psychiatry, as most of the mental disorders are treatable and the persons suffering from these illnesses are reasonably expected to lead a normal life. 6 Hence, the Code ought not to have borrowed the provisions in respect to mental disorders from a legislation enacted seven decades ago, when mental disorders were largely untreatable.
Provisions of Permanent Palimony and Maintenance
According to the Code, a competent court, on application of any parties, may pass an order for payment of maintenance and support of such sum or such monthly or periodic sum to the applicant by the other party which seems just and reasonable keeping in consideration the income of the respondent, if the applicant is unable to maintain himself/herself. The provision is gender neutral and it is applicable to both husband and wife. Any mahr, dower, streedhan, or any other property presented to the wife shall be in addition to her claim of maintenance.
Live-in Relationships
The Code is the first legislation in India to regulate the live-in relationships and Part 3 of the Code is devoted to the matters relating to the live-in relationships. Live-in relationship is defined in the Section 3 (4) (b) of the Code as “a relationship between a man and woman (hereinafter referred to as ‘partners’), who cohabit in a shared household through a relationship in the nature of marriage, provided such relationship is not prohibited under the Part 3 of this Code.” Shared household means living under one roof in a rented accommodation, or in a household owned jointly or by one of them or any other accommodation. The Code makes it obligatory for the partners of live-in relationships living in the state of Uttarakhand to submit a statement of live-in relationships, stating jointly to the effect that they are in live-in relationships or intend to enter into such relationship, to the Registrar within whose jurisdiction they are living. Registration of live-in relationships is not permitted for those in prohibited relationships, or if at least one of the partners is married or already in a live-in relationship, or the consent of the other partner is obtained by fraud, coercion, fraud, or misrepresentation of fact or identity. The live-in relationships may be terminated by both or either of them, for which purpose they are required to submit a signed statement of termination in a prescribed format, to the concerned Registrar. All the registrations of live-in relationships are stated to be only for the record purpose, but the statement of live-in relationships is to be forwarded by the Registrar to the local police station, again for the record purpose. Where one of the partners is less than 21 years of age, parents of the partner are also to be informed. The Registrar has to inform the local police station “for appropriate action” if the live-in relationship is found to be in the prohibited category or if the statement submitted by either or both of them is found incorrect or suspicious.
If both of any of the partner fail to submit statement of such relationship, the Registrar, either of his/ her own motion or on receipt of complaint or information in this regard, shall by notice require such partner(s) to submit the statement in a prescribed manner with 30 days. Living in such a relationship for more than one month without submitting a statement shall attract an imprisonment of three months or a fine of 10,000 rupees or both. Making a false declaration or withholding any material fact is also made punishable with imprisonment of three months or a fine of 25,000 rupees or both. Failure to submit a statement after getting a notice from the Registrar for the same is also made punishable with imprisonment of six months or a fine of 25,000 rupees or both.
Any child of a live-in relationship shall be a legitimate child of the couple. If a woman gets deserted by her live-in partner, she shall be entitled to claim maintenance. For this purpose, she can approach an appropriate court in the same way as prescribed in the Act for a married couple.
Summarizing the current situation in our country, till now there was no specific legislation, rules, or custom on the subject regulating the live-in relationships. Therefore, the Supreme Court has issued certain guidelines in its judgment for regulating such relationships. 7 The Code is the first piece of legislation in India, which provides legal recognition to the live-in relationships. But it has introduced stringent provisions by incorporating compulsory registration on penal provisions on failure to do so. The intention may be to ensure that any such relationships does not remain clandestine. The Code also incorporates the rights of women in live-in relationship to claim maintenance at par with a married woman in case of desertion by the partner. Protection of right of children born out of such relationships, is also a positive thing.
Conclusion
The Code is the first legislation in India which attempts to implement the Article 44 of the Constitution in letter and spirit. The provisions regarding the live-in relationships are in accordance with the changing societal norms in modern day India. The path and progress ahead, judicial application, and the response of the society need to be observed. It is also required to ensure that the provisions of the Code, particularly the claims of maintenance, are not misused, as happens with many legislations aimed to be enacted for reforms. Safeguard is also required to the provisions regarding live-in relationship so that these may not become a source of harassment to the partners in live-in relationships.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Ethical Approval
Not applicable.
Funding
The authors received no financial support for the research, authorship and/or publication of this article.
Informed Consent
Not applicable.