Uttarakhand Uniform Civil Code (UCC) Bill 2024: Changes in Marriage, Divorce, Guardianship, and Adoption
The Uttarakhand Uniform Civil Code (UCC) Bill, 2024 presents notable alterations to marriage, divorce, guardianship, and adoption laws. While it introduces positive aspects, certain opportunities for improvement have been overlooked. Notably, the bill maintains discrimination against mothers in guardianship matters and may render inter-faith and inter-caste couples more vulnerable in certain aspects. Below, we outline the changes proposed in the bill regarding marriage, divorce, guardianship, and adoption, highlighting the shifts from the current status quo.
Legal Frameworks Governing Marriage and Divorce in India
Marriage and divorce in India are regulated by a combination of secular and personal laws. The secular Special Marriage Act (SMA) of 1954, along with various personal laws, govern these aspects. Personal laws include the Hindu Marriage Act of 1955, the Indian Christian Marriages Act of 1872, the Indian Divorce Act of 1869, the Parsi Marriage and Divorce Act of 1936, as well as uncodified (Shariat) and codified Muslim laws, including the Dissolution of Muslim Marriages Act, the Muslim Women (Protection of Rights on Marriage) Act of 2019, and the Muslim Women (Protection of Rights on Divorce) Act of 1986.
Existing Laws on Parent-Child Relations
Parent-child relations in India are governed by laws concerning guardianship. Natural guardianship, dictated by personal laws, and court-appointed guardianship, regulated by the secular Guardians and Wards Act (GWA) of 1890, form the legal basis of these relations.
Under personal laws, including archaic common law principles, the father is traditionally considered the guardian of the child, empowered to make decisions regarding the child and their property. Meanwhile, the mother’s role is often limited to that of a caretaker. Additionally, children born out of wedlock face discrimination and are labeled “illegitimate,” resulting in the denial of certain inheritance rights.
Although the Supreme Court has intervened to address this discrimination, allowing mothers to be appointed guardians if the father fails in his duties and granting inheritance rights in ancestral property to children from void and voidable marriages, such developments are primarily applicable within Hindu law.
Regarding adoption, Hindus, Buddhists, Jains, and Sikhs can adopt under the Hindu Adoption and Maintenance Act (HAMA) of 1956, while individuals of all religions can adopt under the secular Juvenile Justice (JJ) Act of 2015.
Proposed Framework on Registration of Marriages in the Uttarakhand UCC Bill
The Uttarakhand UCC Bill proposes a compulsory registration of marriages and divorces, with retrospective application.
Registration of marriages under the bill does not necessitate a notice and objection process. However, once registered, the Register of Marriages becomes open to public inspection. While this provision aims to prevent bigamy and fraudulent marriages, it may disproportionately impact inter-caste and inter-faith couples, exposing them to increased surveillance.
Although unregistered marriages remain legally valid under the bill, failure to register a marriage after receiving notice from the sub-registrar incurs a fine of Rs 25,000. Consequently, the bill utilizes a penal mechanism to encourage mandatory marriage registration.
Main Features of the UCC Bill Regarding Personal Law and Customs on Marriage and Divorce:
Flexibility in Marriage Ceremonies
The bill allows marriages to be solemnized through ceremonies or rituals relevant to the parties involved, offering flexibility in marriage practices.
Prohibition of Bigamy
The prohibition of bigamy is extended to all communities, ensuring consistency in marital laws across different religious and cultural backgrounds.
Criminalization of Customary Conditions on Remarriage
Any customs that impose conditions on remarriage between divorced spouses are criminalized under the bill, aiming to promote equitable treatment in remarriage rights.
Penalization of Extrajudicial Divorce:
The bill penalizes extrajudicial modes of divorce that are not prescribed under the Uniform Civil Code. This includes local customs like customary divorce deeds or panchayat divorces, ensuring adherence to legal procedures in divorce proceedings.
Punishment for Non-Registration of Live-in Relationships
Non-registration of live-in relationships incurs punishment, including imprisonment, indicating a stricter stance on legal recognition of such relationships under the bill.
The Uttarakhand UCC Bill penalizes various forms of divorce, including talaq-us-sunnat (divorce during menstruation followed by sexual abstinence), talaq-i-biddat (triple talaq), khula (divorce initiated by the wife), maba’arat (mutual consent divorce), and zihar (divorce if husband compares wife to a prohibited relative). Imprisonment is the punishment for these offenses.
Additionally, the bill recognizes mehr (dowry) and dower as payable in addition to any maintenance mandated by its provisions.
Implications of the Uttarakhand UCC on Guardianship:
Continuation of Personal Laws: The bill’s silence on guardianship implies that the existing framework dictated by personal laws will persist, with no alterations proposed. Similarly, court-appointed guardians will still be governed by the Guardians and Wards Act (GWA).
Role of Father and Mother: Under the bill, the father is designated as the legal guardian of the child, while the mother assumes the role of custodian. Despite the provision on custody specifying that the mother typically retains custody of a child up to the age of five, the bill does not clearly define the mother’s status as an equal legal guardian.
Absence of Equal Treatment: Despite the Law Commission’s 2018 recommendation to ensure equal treatment of both parents in guardianship laws, the bill does not incorporate this suggestion, maintaining the prevailing discrimination against mothers.
Legitimacy of Children: The bill positively acknowledges that children born out of void and voidable marriages, as well as those from live-in relationships, will be considered legitimate and entitled to the same rights as children born within wedlock. However, children born in relationships not meeting the criteria of a “nature of marriage” may still face the stigma of being deemed illegitimate under the bill’s provisions.
Changes in Adoption Position Under the Uttarakhand UCC
Continuation of Existing Laws: The Hindu Adoption and Maintenance Act (HAMA) and the Juvenile Justice (JJ) Act will remain in force, retaining their respective roles in governing adoption practices.
Adoption Procedure under HAMA: Adoption under HAMA involves a process of transferring the child from the surrendering parent or guardian to the adoptive parents. Criticisms have been raised regarding the lack of adoption registration requirements and institutional oversight, potentially leaving children vulnerable to issues like trafficking.
Safeguards under JJ Act: In contrast, the JJ Act includes safeguards aimed at protecting the welfare and best interests of adopted children.
Missed Opportunity for Reform: The Uttarakhand UCC Bill emphasizes mandatory registration for marriages and live-in relationships but does not extend the same requirement to adoptions under Hindu law. This omission represents a missed opportunity to address shortcomings in Hindu adoption procedures and enhance transparency and accountability in the process.
Concerns Regarding Criminalization in the Uttarakhand UCC
Disproportionate Impact on Minority Communities: The bill’s reliance on criminalization for enforcement raises concerns, particularly regarding its potential disproportionate impact on minority communities. Certain religious and customary practices of religious minorities are outlawed under the bill, leading to potential discrimination and marginalization.
Misuse of Surveillance Regime: The surveillance regime established by the bill could be susceptible to misuse, particularly in targeting inter-faith and inter-caste couples. This could lead to harassment and intimidation of couples who do not conform to traditional societal norms, undermining their rights and freedoms.
The Uttarakhand Uniform Civil Code (UCC) Bill 2024 introduces significant changes to marriage, divorce, guardianship, and adoption laws. While some positive aspects are evident, such as the prohibition of bigamy and the recognition of children born out of void and voidable marriages as legitimate, the bill also presents various concerns and missed opportunities.
One major concern is the reliance on criminalization for enforcement, which could disproportionately impact minority communities and potentially lead to the misuse of surveillance measures, particularly affecting inter-faith and inter-caste couples. Additionally, the bill fails to address the discrimination against mothers in guardianship matters and lacks reforms in Hindu adoption procedures.
Overall, while the bill aims to streamline legal processes and ensure uniformity in civil matters, it is essential to address these concerns and incorporate necessary reforms to safeguard the rights and interests of all individuals, especially those from marginalized communities.