After the Uttarakhand legislative meeting handed the Uniform Civil Code, Uttarakhand, 2024 invoice on Wednesday, Chief Minister Pushkar Singh Dhami mentioned the laws would give equal rights to everybody within the state. Nonetheless, the invoice is primarily drawn from Hindu private legislation and will result in the erasure of the non-public legislation practices of minority communities, authorized specialists informed Scroll.
“The try and impose Hindu practices on non-Hindus is seen,” mentioned Delhi-based senior advocate Mohan Katarki.
That is the primary uniform civil code invoice handed in unbiased India. It seeks to interchange the religion-based private legal guidelines that govern marriage, divorce and succession within the state with a typical set of legal guidelines. That is in keeping with Article 44 of the Structure of India, which gives that the state should “endeavour to safe” a uniform civil code.
Primarily drawn from Hindu legislation
A comparability of the provisions of the invoice with current legal guidelines exhibits that the provisions of the Uttarakhand code on marriage and divorce are largely borrowed from the Hindu Marriage Act, 1955, and the secular Particular Marriage Act, 1954. The Particular Marriage Act, mentioned Delhi-based senior advocate Sanjoy Ghose, is just like the Hindu Marriage Act.
Equally, the invoice’s provisions on succession are largely drawn from the secular Indian Succession Act, 1925, and the Hindu Succession Act, 1956. Among the many 375 sections within the invoice coping with these topics, solely 14 sections are fully new. The remainder are copied verbatim or with slight variations from current statutes.
The Uttarkahand Mahila Morcha, a collective of ladies’s teams, has criticised the invoice for “[following] the Hindu legislation template.” In a public assertion, it famous that the invoice is “fully silent on the applying of Christian household legislation and Parsi household legislation”, describing this as “legally untenable”.
Ayushi Sharma, a Analysis Fellow within the Legal Justice Reforms staff on the authorized coverage think-tank Vidhi, informed Scroll that the invoice acknowledged the customs of mehr and dower – the cash obtained by the spouse from the husband in consideration of the wedding – from Muslim private legislation. However aside from that, nothing else is drawn from the non-public legal guidelines of every other minority group, she mentioned.
Targets Muslims
The invoice disproportionately hits Islamic private legislation practices, specialists mentioned. Nonetheless, from a feminist lens, the proscription on some Muslim household legislation practices could also be seen as fascinating, specialists mentioned.
For example, the invoice does away with polygamy, unequal inheritance between female and male members of the family and halala divorce (below which an individual can solely remarry his divorced partner after she has married another person, consummated the wedding and thereafter obtained a divorce). These options of Muslim household legislation are thought of sexist, specialists famous.
Nonetheless, “the invoice has not included optimistic and progressive facets of Muslim legislation”, the Uttarakhand Mahila Morcha famous in its assertion.
For example, Islamic legislation permits solely a 3rd of 1’s property to be bequeathed by will. The remaining property is mandatorily handed to at least one’s heirs in response to a prescribed scheme of succession. “The restrict was meant to guard heirs from being dispossessed,” mentioned Sharma.
However the invoice has eliminated this restrict on testamentary succession.
If the invoice genuinely meant to realize gender justice, it will have prolonged to ladies of all communities the Muslim household legislation practices of obligatory cost of mehr, which gives monetary safety to the spouse, the Uttarakhand Mahila Morcha mentioned. It could even have included the thought of a nikahnama or marriage contract, which permits the spouses so as to add mutually acceptable, legally binding situations to their marriage.
Additional, as Ghose identified, Muslim household legislation is the one private legislation system in India that recognises marriage as a contract – versus its standing as a sacrament in different religions. Because of this it permits extra-judicial types of divorce, which implies divorces that don’t require a courtroom decree. Underneath the Uttarakhand invoice, although, solely the courts can dissolve marriages.
“The group impacted essentially the most by this invoice would be the Muslims,” Ghose mentioned. “There’s full effacement of their private legislation.”
Katarki laid this level extra bluntly: “The lengthy and in need of the invoice is to ban polygamy amongst Muslims and regulate live-in relationships!”
Scroll has beforehand reported on how the invoice’s regulation of live-in relationships, requiring them to be registered on the specter of legal penalty, is problematic and puzzling.
Ambiguity on utility to Hindu Undivided Households
A noteworthy characteristic of the invoice is its silence on the entity of the Hindu Undivided Household. Underneath the Hindu Succession Act, the Hindu Undivided Household is a joint household that consists of all individuals lineally descended from a typical ancestor and contains their wives and single daughters. The ancestral property of this household is handled otherwise from the self-acquired property of particular person members of the family below the Hindu Succession Act.
The Uttarkahand Mahila Morcha famous the invoice’s “whole silence on addressing the problems of discrimination towards ladies inside the Hindu Joint Household”. It mentioned that the Hindu Succession Act’s “manifestly patriarchal and gender discriminatory provisions” reminiscent of excluding widows, wives and moms from the precise to ancestral property and such property itself being premised on possession by descendants of a typical male ancestor “have been left untouched by the invoice”.
Ghose concurred. “Being obscure on the standing of the Hindu Undivided Household is just not helpful,” he mentioned. “The invoice should expressly present what occurs to its joint ancestral property.”
Exclusion of tribal communities
One other hanging characteristic of the invoice is that it excludes from its ambit members of the scheduled tribes, who account for practically 3% of the state’s inhabitants. Underneath Half 21 and the Fifth and Sixth Schedules of the Indian Structure, tribal communities are granted vital autonomy and safety from interference of their inner affairs.
Nonetheless, Articles 25, 26 and 29 the Structure grant safety to the non secular practices of minority communities as nicely.
Ghose clarified that in civil issues, residents can not declare the basic proper to spiritual apply. However the Structure doesn’t present any exclusion for tribal communities inside the directive for a uniform civil code below Article 44, so “there isn’t a apparent purpose why they’ve been excluded from the invoice”.
Sharma mentioned, “If the thought was to have uniformity throughout all religions, the logical step would have been to analyse helpful practices from all faiths and incorporate them into the legislation, to make it inclusive.”
Ghose agreed. “The invoice is a cocktail of current laws,” he mentioned. “What it ought to have been is an affordable, constant code that makes current private legislation practices extra simply and facilitates gender justice.”