Effective changes in the laws related to marriage after the implementation of UCC

Under the ambit of Article 21 of the Indian Constitution[1], the Supreme Court of India has established the right to life and liberty. This includes the ability to marry. However, to be officially married, both the bride and groom must fulfil specific legal conditions. 

These laws differ from one another due to religious differences. Even if certain laws have been updated by Parliament, others continue to exist according to tradition. Marriage is seen as a universal social institution and an important and necessary part of humanity. All areas of human life have been governed by the state since the dawn of civilization, and marriage is no exception. 

Marriage is not governed by any one legal framework in India, basically to safeguard the principles of freedom of religion and safeguard the core practices of the country’s variety and diversity of religions and beliefs. 

Once the marriage gets sanctioned by the prevalent law of the country then only it is legalized, which are sometimes referred to as marital or marriage laws. One of the distinguishing aspects in keeping the diversity of population of India is the current marriage law which is full of liveliness and variety.

What is UCC

The Uniform Civil Code (UCC) is a collection of given personal laws that would apply to all citizens of India, regardless of their religion. Article 44 of the Indian Constitution[2] mentions it as one of the Directive Principles of State Policy. 

The present system of personal law would be replaced by UCC, which is founded on religious texts and conventions. These personal regulations differ greatly amongst religions and are often discriminatory towards women and other minority groups.

India, a country of many faiths, cultures, and traditions, is at a crossroads in its quest for social justice and national unity. The adoption of a Uniform Civil Code (UCC) has arisen as a critical requirement for harmonizing personal laws and promoting equality among citizens, regardless of their religious affiliations.

What UCC will be covering?

‘Civil code’ concerns include maintenance, divorce, adoption, marriage, guardianship, inheritance and succession. Currently, all of these concerns are addressed by different rules under customary laws of different religions or laws being codified belonging to each religion in India under Indian law. If the Indian government decides to create a codified Uniform Civil Code, then dozens of legislative pieces have to be reviewed and analyzed. 

Regional peculiarities, such as the practices and customs of state-specific individual groups, castes, and tribes, would also have to be taken into account. LGBTQ rights, child protection laws, income tax rules and other pieces of legislation will also have an influential effect on them. 

Various demands are made to bring provisions related to gender and sex and religion-neutral provisions under civil law, resembling that of the law of Europe.

Marriage and related provisions under different personal laws

A variety of laws have been codified-shows some similarities and differences in the way their marriages are solemnized, performed, defined, registered and dissolved.

Though the definitions might vary for instance Adultery is a reason to get a divorce under Hindu, Muslim, Parsi and Christian marriage laws.

To secure a divorce from her spouse, a woman must establish cruelty as well as adultery in Christian law. When it is proved under Muslim law that the husband has committed adultery with “women of evil repute or leads an infamous life then only adultery is recognized as grounds for divorce.

To seek divorce under Hindu law the man has only to prove adultery whereas the woman has to prove cruelty or desertion in addition to adultery to seek divorce. Whereas the Parsi Law allows both spouses to go for divorce for adultery.

The issue of Triple Talaq, or the moment profession of separation by Muslim spouses, has been the subject of Supreme Court decisions as well as a few PILs. Besides, Muta (contract marriage), Nikah halala (intercourse with an alternate man in case of separation), and different practices have gone under open and lawful analysis. These have provoked serious worries about ladies’ security, respect, and protection.

Desertion and Abandonment

“Desertion” and “abandonment” are two other examples. distinct faiths have distinct periods of separation and desertion by the husband after which the woman may seek divorce. It is two years for Hindus and four years for Muslims. 

A divorce may be granted after seven years of desertion under the Parsi Marriage Act[3] and the Indian Marriage Act[4].

Another contentious topic is Sikhs, whose marriages are controlled by the Anand Marriage Act[5], which prohibits divorce and adoption.

Up until this point, Sikh couples looking for marriage enrollment or separation have been covered under the details of the Hindu Marriage Act (HMA), which has been met with aggression from Sikh associations and pioneers.

Complexities in the age of consent

The legal age of consent determines the concept of valid and legal marriages in eyes of law, which is a matter of contention in India. Even though the Indian Age of Majority Act[6], the Prohibition of Child Marriage Act[7], and the POCSO[8] Act have banned marriage between people under the age of 18, whereas Marriage law under Hindus considers marriage between a 16-year-old girl and an 18-year-old male as legitimate but voidable.

In India, Muslim regulation recognizes the marriage of an arrived at minor pubescence as legitimate. In any case, even among Muslims, though Shias trust a kid to arrive at pubescence at 15 years old and a female to arrive at adolescence at nine years old or ten, Hanafi Sunnis consider the two genders to arrive at pubescence at 15 years old.

The Hindu Marriage Act doesn’t restrict the marriage of a person under the age of 18, but it is “voidable” – that is, the underage couple can go for divorce at the age of 18 if they feel so.

Complications relating to the religious definition of “age of consent” would also have a direct impact on the minor bride’s guardianship, i.e., whether the husband as a guardian would be able to make decisions for the wife’s medical care, what would happen if she was thrown out of the marital home, and so on

Marriage Registration

The Hindu Marriage Act (HMA)[9]recognizes many traditional practices for determining when a “marriage” is complete. Marriage contracts or registration are required under Muslim and Christian law, whereas marriage registration at the temple is required for Parsis.

Marriage registration is not mandated by any single central law, notwithstanding the Supreme Court’s 2006 order mandating marriage registration for all weddings. 

The matter has been delegated to several states, resulting in a plethora of regulations leading to the provisions and procedure of marriage registration that existed previous to the date of the legislation, as well as weddings solemnized after the law’s enactment.

In Delhi, for instance, the government enacted the Compulsory Registration of Marriage Act in 2014. The enlistment technique itself has been addressed in the high court since it considers marriage enrollment under the HMA or the Unique Marriage Act, albeit the other individual regulations don’t.

Changes after UCC

HINDUISM

Existing legislation, such as the Hindu Marriage Act (1955) and the Hindu Succession Act (1956)[10], will have to be revised if the UCC is implemented. Section 2(2) of the Hindu Marriage Act, for example, says that its restrictions do not apply to Scheduled Tribes. 

Customary practices, according to sections 5(5) and 7 of the legislation, will have precedence over the requirements. However, UCC will not approve all of these exclusions.

ISLAM

According to the Muslim Personal (Shariat) Application Act of 1937[11], Shariat or Islamic law would govern the subject of divorce, marriage and maintenance. If the UCC is implemented, then the minimum age for marriage in Shariat law will be modified, and polygamy may be prohibited

SIKHS

The Sikh marriage rules are governed by the Anand Marriage Act of 1909[12]. There is, however, no provision or law for seeking divorce. The Hindu Marriage Act[13] governs Sikh separations, but if UCC is implemented, common law would probably be applied to every group including weddings recognized under the Anand Act.

CHRISTIANITY

The UCC will influence the personal laws of Christians such as adoption, succession and inheritance, but the marriage element and the Catholic Church’s non-recognition of divorce will need additional thought.

PARSI

Under the Parsi Marriage and Divorce Act of 1936[14], any woman who marries someone of another religious faith loses all rights to Parsi rites, tradition and customs; however, once UCC comes, this clause would be deleted.

Adoptive females have no rights in Parsi culture, and an adopted son may only carry out the burial rituals of his father. As a result, if UCC is applied, the guardianship and custody regulations of all religions would have an impact.

UCC with Special Marriage Act[15]

The consideration of the Special Marriage Act is quite possibly the most basic part of the idea of a brought-together thoughtful code. As indicated by the Demonstration, any couple who doesn’t have a place with one of the perceived religions is allowed to wed with next to no limits, for example, sticking to specific practices or convictions. 

The Demonstration offers a clear technique for enrolling relationships. The objective of the UCC is to make a bound-together general set of laws for all residents. On the off chance that the Special Marriage Act is changed, occupants would have the option to enlist their relationships in a solitary step, maybe rather than expecting to fulfil the essentials expected preceding weddings under private regulation.

Adopting the concept of a Uniform Civil Code will be one of the most challenging tasks for the government. Before implementation, both government and religious leaders must be invited to the table for dialogue. This is because India is a religiously diverse culture in which religious zeal trumps socioeconomic standing.

It is necessary to ensure that this international civil law promotes religious equality rather than religious hostility. The code should be implemented in small states first, then expanded to bigger states. 

Furthermore, rather than existing codified personal laws, the judiciary should begin dealing with disputes involving religious matters or personal laws of litigants by relying on justice, equity, and good conscience. This might be a positive step towards the establishment of a united civil code.

Even though the judiciary has made landmark judgements declaring discriminatory religious legislation invalid on several occasions, routine matters are decided in conformity with existing codified personal laws. 

Those who choose to retain their community’s religious traditions should be allowed to do so, with the restriction that they will not be able to resolve disputes through secular Indian courts.

The movement to enact the Uniform Civil Code and homogenize personal laws is legitimate since it will benefit citizens, particularly women, by removing them from outmoded conventional ideas. However, implementation necessitates the permission of all citizens and can only be realized when the social environment is suitably prepared by the society’s elite, statesmen.

Effectiveness of UCC

Ensuring Equality for All: Consider the following hypothetical situation: Rajesh and Aamir, both Indian citizens, desire to marry. Rajesh adheres to Hindu personal laws, whilst Aamir adheres to Muslim personal rules. 

Their marriage would be regulated by distinct sets of regulations under the existing system depending on their religious affiliations. This difference violates the principle of equality[16] contained in the Constitution. 

However, if a Uniform Civil Code is enacted, Rajesh and Aamir would be subject to the same set of marriage regulations, regardless of their religious views, providing equality and eradicating prejudice.

Promoting Gender Justice: In India, many personal laws offer unequal rights to women, such as triple talaq, leaving Muslim women vulnerable and without legal protection. Women across religious denominations would be guaranteed equal rights and protections under a Uniform Civil Code, supporting gender justice. 

A UCC, for example, would protect Muslim women from arbitrary divorces and provide them the same rights as women from other faith groups. This would empower women and develop a culture that values gender equality. 

The UCC might also assist in promoting gender equality among Hindus by enacting more fair laws for women. The UCC, for example, might grant women equal rights to property inheritance and divorce.

Promoting Social Cohesion: Diverse religious practices are woven into India’s rich cultural fabric. Personal rules that vary depending on religious affiliation, on the other hand, might cause community divides. 

All people would be regulated by a single set of rules that transcended religious divides under a Uniform Civil Code. For example, under the UCC, inheritance rules, which today differ amongst religious groups, would be united. This would strengthen social cohesiveness by promoting the concept that all people, regardless of religious convictions, are equal before the law.

Adapting to Modern Times: As societal values and conventions vary through time, a legal framework that can adapt to these changes is required. Personal rules based on religious norms may sometimes clash with progressive goals. Consider the topic of marital rape, which is not criminalized under current personal laws in several religious societies. 

The acceptance of current concepts and the alignment of laws with the changing social scene will allow for the adoption of current concepts and the alignment of laws with the changing social scene, supporting inclusivity and individual liberty.

Streamlining Legal Processes: Navigating the complexity of many personal laws might be difficult and time-consuming at the moment. Divorce, inheritance, and adoption disputes are often delayed owing to differing legal processes. 

A Uniform Civil Code will simplify the legal environment and make it more accessible to all individuals by streamlining these procedures. Individuals seeking a divorce, for example, would follow a standardized process regardless of their religious background, providing speedier and more effective conflict settlement.

Protecting Minority Rights: Some contend that a UCC would violate minority groups’ religious freedom. A well-drafted UCC, on the other hand, may be structured to respect all people’s religious views while also guaranteeing that everyone is treated equally under the law.

Promote National Integration: India is a country of diversity with a wide range of religions and cultural traditions. A UCC will help to unite the legal system and develop a sense of national identity.

Respect international human rights standards: The UN Human Rights Committee has frequently urged India to enact a UCC. A UCC would assist India in demonstrating its commitment to equality and non-discrimination values.

The Judiciary on Uniform Civil Code 

The Indian Supreme Court urged the Ministry of Law and Justice to mirror the moves initiated and endeavours made by the public authority of India to get a “uniform common code” for Indian residents on account of Sarla Mudgal v. Union of India (1995)[17].

In Mohd. Ahmed Khan v. Shah Bano Begum[18] and OR’s (1985), SC said that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973[19], and “A uniform common code will help the reason for public mix by eliminating unique loyalties to regulations with clashing belief systems,” he said, and he encouraged the organization to embrace one.

In Pannalal Bansilal Patil v. State of Andhra Pradesh (1996)[20], the Supreme Court of India concluded that “a uniform regulation, while profoundly alluring, establishment thereof in one go might be counter-useful to the solidarity and honesty of the country.” A law and order a vote-based system ought to give steady moderate development and request. Making regulations or changing a resolution takes time, and the lawmaking body focuses on the most squeezing concerns.

In the case of John Vallamattom and Ors. v. Union of India (2003)[21]the SC decided that there is no need for a connection between religion and individual regulation in an edified country. Point of fact, marriage, progression, and other common matters can’t be brought inside the assurance laid out in Articles 25 and 26 of the Constitution. Any regulation that brings progression and other mainstream issues under the domain of Articles 25 and 26 is problematic.

Conclusion 

India is a country where law and order overwhelm, thus the incomparability of some other part can’t win; yet, because of individuals’ different individual perspectives, the standard of religion covers law and order, and subsequently, steps should be taken by the public authority.

The Uniform Common Code is an ideal regulation that would impart secularism and consistency in private or common regulations in the Indian overall set of laws. The issue comes from the confusion of the people who are against the reception of UCC, thus the actions demonstrated above should be carried out by the public authority. The Indian SC has alluded to the UCC of Goa as a “Brilliant illustration.” 

The UCC in Goa incorporates components, for example, obligatory marriage enrollment, limitation of polygamy or plural marriage, uniform time of marriage for people, the assent of people to execute a marriage, the assent of all kinds of people to accomplish real division, etc. These qualities can be utilized to legitimize laying out UCC on a cross-country scale.

Footnotes

[1] The Constitution of India, Art 21, 1950

[2] The Constitution of India, Art 44, 1950

[3]The Parsi Marriage and Divorce Act, 1936

[4]The Indian Marriage Act, 1955

[5]The Anand Marriage Act, 1909

[6]The Indian Majority Act, 1875

[7]Prohibition of Child Marriage Act, 2006

[8]Protection of children from sexual offences Act, 2012

[9] The Hindu Marriage Act, 1955

[10]The Hindu Succession Act, 1956

[11]The Muslim Personal Application Act, 1937

[12]Anand Marriage Act, 1909

[13]The Hindu Marriage Act, 1955

[14]Prasi Marriage and divorce Act, 1936

[15] The Special Marriage Act, 1954

[16]The Constitution of India, Art 14, 1950

[17]Sarla Mudgal v/s UOI, AIR 1995 SC 1531

[18]Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945

[19]The Code of Criminal Procedure Act, section 125, 1973

[20]Pannalal Bansilal Patil v State of Andhra Pradesh, AIR 1996 SC 1023

[21]John Vallamattom and ors v UOI, (2003) 6 SCC 611

This article has been contributed by Giriraj Rathore, a student at Pravin Gandhi college of law, Mumbai.