(AIPWA Statement | 9th February 2024)
AIPWA strongly condemns the attempts of the BJP Govt. in Uttarakhand to defeat pluralism through the Uniform Civil Code. On 7th Feb. 2024, the Uttarakhand State Legislative Assembly passed the Uniform Civil Code, 2024, (“UCC”) becoming the first post-independence state to pass a law on UCC. The UCC has been a prominent part of the BJP’s election demands in 2014, forming a part of its 2019 Lok Sabha manifesto as well. However, the UCC is a part of the larger cultural project of the BJP to dilute our pluralist society to establish its vision of a Brahmanical Hindutva society.
The UCC will override personal laws in force in the State, and exempts Scheduled Tribes from its ambit, covering marriage, divorce, inheritance of property and live-in relationships, claiming to stem from the Directive Principle in Article 44 of the constitution that mandates securing a UCC.
The UCC aims to regulate live-in relationships by imposing an obligation to register such relationships “between a man and a woman”. At the very outset, this is discriminatory against the LGBTQI+ community, failing to recognize their relationships. Any person in a live-in relationship must not only provide a statement regarding the relationship to the Registrar but also keep the Registrar informed when the relationship terminates. The Registrar will conduct a “summary inquiry” to ensure that the relationship is not prohibited in law, for example, if the partner is already in another relationship or if their consent was obtained by “coercion, fraud or misrepresentation” or “fraud as to any material fact or circumstance concerning the other partner, including his/her identity”. The Registrar can refuse to register the relationship as well. On the fact of it, this an attempt to legalize and formalize moral policing by the State, to dictate matters of personal choice, choice of partner, and legitimacy of a relationship. It is also evident that the State will now have a legal weapon to target inter-caste and inter-religious relationships on the ground of misrepresentation of identity or fraud. Especially given that inter-faith couples often choose live-in relationships for fear of repercussions of registration of their marriage, it is evident that this is the BJP’s attempt to curb any such relationships.
On divorce, the law is largely a cut and paste of existing laws, and fails to include irretrievable breakdown of marriage as a ground for divorce. Outside of mutual consent divorces, if only one of the partners wants a divorce, the UCC continues the patriarchal norms of having to prove cruelty, desertion for over 2 years, adultery, conversion or one of the parties being of unsound mind. Further, the wife can seek a divorce on additional grounds only of the husband being guilty of rape or unnatural sexual offence, or if he has more than one wife. The law also continues the current legal denial to maintenance claims upon divorce, despite the Courts having progressed in their understanding of maintenance. While religious conversion was a ground for divorce under Hindu Marriage laws and not secular marriage law (Special Marriage Act, 1954), it has now been included as a ground for divorce.
While the law alters and targets aspects of Muslim personal law such as unequal inheritance, polygamy and halala, it fails to incorporate progressive aspects such as payment of Mehr, marriage contracts or protections to women in inheritance of property.
The UCC also retains the concept of “restitution of conjugal rights”, which we are aware from the experience of the present laws, is a tool utilized by husbands to harass women into coming back to domestically abusive and violent relationships that they have struggled to leave. The UCC also places the marriageable age of a woman at 18 years of age but imposes a duty on the Registrar to “inform the parents/guardian of such partner” if any of them is less than 21 years of age. Thus, consenting adults choosing to marry their partners will be at the whims and fancies of the State.
Shockingly, whoever fails within 1 month to submit such a statement regarding the relationship is committing an offence for which they may be imprisoned for upto 3 months or imposed a fine upto Rs. 10,000, or both.
When the 22nd Law Commission of India solicited views of the public on a UCC in a cryptic note without reasons, AIPWA acknowledged immediately that personal laws across religions contain discriminatory provisions needing reform, but that the UCC was not the answer. AIPWA noted that the root of inequality lies in discrimination and not in difference, and attempts to amend personal laws must address inequality in order to truly achieve gender equality. The UCC being positioned as a reform towards equality is nothing but an eyewash, while what is really required is a gender-justice code. The UCC fails to address issues on custody, guardianship, transgender persons, and rights of queer relationships. The UCC further fails to provide any protection against dishonour killings, and to inter-caste or inter-faith relationships.
It is also important to note here that the issue of UCC and gender inequality in personal laws have been studied extensively. In 2015, a Report of the High Level Committee on the Status of Women in India was issued by the Ministry of Women and Child Development which recognized that India is a highly patriarchal society and noted several reforms in personal laws as well as secular laws. The Report states, “There is a need to address discrimination not only de jure but also de facto, which necessitates State to adopt laws, policies and practices and undertake proactive, measures and affirmative action in order to obliterate these discriminatory provisions and practices. Thus, all personal laws should be in tandem with the principle of equality. Women are working and contributing to the family and society in many ways and it is high time the State recognizes the unpaid contributions of women in their families, The State should enact laws in areas of matrimonial property in which no personal laws exist and ensure women’s rights to the property and assets in the natal and as well as in the matrimonial home.” This Report seems to be entirely ignored, as also the acknowledgment in the report that secular laws on domestic violence and prohibiting child marriage are a step towards gender equality.
The 21st Law Commission headed by Justice B.S. Chauhan had concluded that various aspects of prevailing personal laws disprivilege women, and echoed the findings of the 2015 Report. It noted that the best way forward was to preserve diversity in personal laws but ensure they don’t contradict fundamental rights, and that “discrimination not difference which lies at the root of inequality”. It further recognized that women must be guaranteed their freedom of faith without any compromise on their right to equality.
Following Uttarakhand, Madhya Pradesh and Gujarat have mulled appointment of committees to initiate the formulation of UCC in those states. These attempts are a dog-whistle to attack secularism and impose uniformity in the name of equality. The BJP, with its ideas of One Nation, One Election, One Party, has enacted several legal measures to implement its Hindutva agenda, including cow-slaughter bans, hijab prohibitions, CAA NRC, anti-conversion laws, abrogation of Article 370, and now, the UCC. Thus, it is important to recognize the context in which the UCC has been passed, especially before the upcoming elections, and serves as a testing ground for the BJP to bring in a national-level UCC.
AIPWA recognizes that the Uttarakhand UCC is nothing but a furtherance of the BJP’s communal and patriarchal agenda, without any actual concern for gender justice.
(Meena Tiwari - General Secretary | Rati Rao - President)
AIPWA - All India Progressive Women's Association