By Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar*

Going on the same track the Kautilya Society has certain suggestions to make. We believe that bringing UCC at this moment might not be the most feasible thing to do, but here are a few spheres where bringing central norms and uniformity would surely do greater good to the society and the citizens. 

Polygamy and Polyandry

1. Current Scenario-

• Bigamy is prohibited and punishable under the Special Marriage Act, 1954
• It is also prohibited under the Hindu Marriage Act, 1955
• Under Parsi law, all Parsis are prohibited from contracting any marriage in the lifetime of their wife or husband, whether they are Parsi or not.
• Indian Christian Marriage Act, 1972, prescribes that none of the parties to a marriage should have a living husband or wife for a valid certification of marriage.
• Under Muslim law, polygamy is permissible but polyandry is prohibited. The Quran and Hadith allow for polygamy but only under highly restricted conditions. A muslim man is allowed to contract up to four marriages at a time. If a fifth marriage is contracted while the other marriages are in subsistence, the last marriage is considered to be irregular under Hanafi law and void under Shia law. It is prescribed in the Quran that a man may take up to four wives only if he is able to maintain them and treat all of them equally. Therefore, while not expressly prohibited, polygamy is discouraged under Islamic law and jurisprudence. Also the consent of present wife is very important for subsequent marriages.
• The NHFS data from 2019-2020 shows that the prevalence of polygamy was 1.9% among Muslims, 1.3% among Hindus and 1.6% among other religious groups.

2. Problems In the Current Scenario

• Marital Rights of women have been greatly sacrificed and butchered constantly due to the biased and one sided practices that have existed. Therefore a sorted regime on number of spouses one can have in a marriage need to be framed. While it is true that a mere prescription of monogamy as a mandate cannot be the ultimate solution to alleviate the oppression of women, as even monogamous relationships can be asymmetrical and oppressive, it could be a critical first step to ensure equality within marriages.
• There are several problems that rise out of such a setup. Religious Conversion to Islam has been illegally followed to have more than one spouse.
• Additionally, if a person marries again and gets another spouse, there are practically no rights available for the second spouse. In such a scenario it is quite necessary to do away with the menace and bring in a more loophole proof regime.
• Polygamous marriages are generally entered into by the husbands without the consent of their wives which not only deprives them of their agency and autonomy but further leads to abandonment and economic deprivation.
• In August 2009, the Law Commission brought out a report (No. 227), “Preventing Bigamy via Conversion to Islam: A proposal for giving statutory effect to Supreme Court rulings”. The report, submitted to the Central government by the then Chairperson of the Law Commission, A.R. Lakshmanan, brought to light the fact that Hindu married men converted to Islam in the belief that such conversion enabled them to marry again without the dissolution of an existing marriage.

We can’t really blame a particular religion or tradition for legalizing bigamy, things will continue to persist under these garbs until and unless newer and more refined laws on them are brought. Monogamy if introduced as a mandate will bring in a more equitable and just state for women in general. The problem of oppression is bigger than ever in cases of bigamous marriages as compared to monogamous arrangements, hence we need to deal with the issue urgently. 

HUF Tax Evasion

Issue

 Tax evasion is a common practice under the umbrella of HUF or Hindu Undivided Family. Can and will the implementation of UCC be able to curb this problem?

Current Scenario Around HUF

• A HUF is a family which consists of all persons lineally descended from a common male ancestor. It consists of the Karta, who is typically the eldest person or head of the family, while other family members are coparceners.  Even Jain, Buddhist, and Sikh families can have HUFs.
• A HUF account is very similar to an individual account. “The HUF as a tax unit is not of recent origin. This was already there in the Income Tax Act, 1922, the predecessor of the present Income Tax Act of 1961, under which also it has been continued.
• Being a separate tax unit, it enjoys a separate tax exemption limit in addition to the various tax breaks under Sections like 80 C, 80 D, 80 DDB, 112A.
• The income tax slab for HUF is the same as that for an individual, with an exemption limit of ₹2.5 lakh, in the case of the old tax regime. The HUF also qualifies for all the tax benefits under relevant sections of the Income Tax Act and enjoys exemptions with respect to capital gains. However, in the case of the new income tax regime, the exemption limit for HUF is ₹3 lakh.

Possible Impact of Abolition Of HUF Under UCC

If the UCC is ultimately implemented, the concept of HUF will have to be given a go-by. This may need an amendment in the Income Tax Act if no specific provisions in the UCC on the similar line as contained in the “Kerala Joint Hindu Family System (Abolition) Act, 1975” is made. The above piece of legislation provided that all the institutions of HUF will not be recognised in the state of Kerala after the law is enacted. It also provided that once the law comes into effect, no Hindu will be entitled to claim any interest in ancestral property due to his birth in the family. So, not only the provisions about the rights of persons taking birth after coming into force of UCC but also provisions about the existing joint family will have to be made either under the UCC or under the Income Tax Laws. The law may provide that all the assets of erstwhile HUF shall be deemed to have been divided and distributed amongst all the members who are entitled to get a share in the assets of the HUF. The properties cannot be divided in pieces, a deemed partition would be assumed and all the members shall hold the immovable property as tenant in common and a member will become a full-fledged owner for his share of the joint family property. While on one hand this may prove to be a noteworthy move for the Tax regime in India, it will for sure affect several families who had been using this concept to evade taxes. Even large business ventures have been established under the same umbrellas of HUF to escape paying taxes. Well, we believe there is more good than harm in doing away with the concept of HUF. 

Still, to bring to light, there are several benefits which HUF offers to smaller ventures. In such a case if the government decides to keep HUF enacted for the betterment of the smaller and less prosperous sections of the society, it would be really good if the same is extended to the other communities as well. This may further help the sections on the basis of their economic position rather than religious standing. But keeping such benefits restricted to one community is definitely not what can be said to be just and equal. While organisations like SEBI repeatedly bring in new ways of replacing these traditional methods of investment, if they are retained, they must be done so with uniformity.

Division of Matrimonial Property on divorce and related issues

A. Grounds of divorce– Fault grounds of divorce such as cruelty, desertion and adultery, as well as a divorce by mutual consent ought to be equally available to all parties to the marriage. In May 2023, the Supreme Court stated that it had the discretion to terminate a marriage that had broken down irretrievably, under Article 142(1) of the Indian constitution to do ‘complete justice’ to the parties. However, such a ground must be invoked with caution, after the issue of matrimonial property is settled and the wife’s economic interests secured. Currently there is a lot of disparity on how these rights have been made available to parties in a one sided and biased manner. 

B. Maintenance and alimony- Even though women must be encouraged to remain financially independent during the subsistence of marriage and upon its divorce, maintenance and alimony must be provided to the financially vulnerable party to the marriage or its dissolution. Women’s unpaid housework and care work should be attributed a financial value and must be incorporated into the ascertainment of the quantum of maintenance and alimony. Maintenance may be granted during the course of any proceedings (including divorce or separation), during the subsistence of marriage or on the dissolution of marriage.

Current legal status-

• Section 18 of Hindu Adoption and Maintenance Act provides the right to the wife to be maintained by the husband during the subsistence of marriage.
• Under Muslim personal law and the Dissolution of Muslim Marriages Act, 1939, failure on the part of the husband to maintain the wife is a ground for divorce.
• Section 25 of the Hindu Marriage Act provides both the husband and the wife a provision to apply for maintenance in court, based on the same factors as provided under the Special Marriage Act.
• Section 37 of the Indian Christian Marriage Act gives the district court the power to order grant of maintenance by the husband to the wife according to his own financial ability.
• Muslim personal law and Muslim Women (Protection of Rights on Divorce) Act, provides that a Muslim woman is entitled to a provision of fair maintenance made during the iddat period after divorce and to the payment of mehr agreed to be paid to her at the time of marriage.
• Section 37 of the Special Marriage Act provides for permanent alimony and maintenance
• Hindu Marriage Act, Section 24 provides for maintenance pendente lite, or maintenance during the course of the proceedings, if the husband or wife has insufficient or no independent income for his or her support and for the expenses of the proceedings.
• Section 36 of the Special Marriage Act provides for the same right of maintenance pendente lite to the wife exclusively.

Well, UCC might be able to bring in a greater amount of quality in these scenarios. The current regime is not gender neutral. Bringing in gender neutrality might help us be well versed and prepared for the non-heteronormative relationships. Divorce proceedings usually persist for a long time bringing financial strain for the parties. Both the parties should be seen from an equal lens under such the maintenance regime. 

C. Recognition of the concept of matrimonial property- Upon the divorce or death of a party to marriage, an equitable distribution of assets acquired by parties during the subsistence of the marriage, is of prime importance. Such property may be in the name of the earning party to the marriage, but the theory of social reproduction tells us that the contribution of the non-earning party to the home facilitates such an acquisition. No family law squarely addresses this issue, except in Goa, where too, the rights on paper are at variance with lived experiences of women. If the government is committed to gender equality within the family, it must make provisions for a matrimonial property regime. 

Abolition of restitution of conjugal rights (RCR)

 The RCR is a matrimonial remedy that compels parties to marriage to live together, in recognition of the aggrieved party’s conjugal rights. This remedy, of colonial origin, was incorporated into Hindu Marriage Act and found its way into family laws governing varied communities, though it was abolished in England in 1970. Though superficially, it applies equally to the parties to marriage, it has disproportionate and adverse consequences for women who may be at the receiving end of violence, raped and unwanted pregnancies.

As stated by Andhra Pradesh high court in T.Sareetha, the woman is stripped of bodily control and autonomy through a court order of RCR. A petition challenging the constitutional validity of this remedy remains pending before the Supreme Court, but the government, in its wisdom, ought to exclude this provision in any proposed UCC, as it is inconsistent with the constitutionally guaranteed fundamental right to life with dignity.

Children & Adoption 

In India the current Legal landscape of Adoption Greatly differs across religions. 

Hindu Law

Hindu’s have Legal Adoption under the Hindu Adoptions and Maintenance Act, 1956. There have been many issues with respect to Adoption under the law. The notion in HAMA that Father is the Natural Guardian has been criticized from time, with pressing demands for the need to move away from the current position of Law.

Some important aspects covering Adoption under Hindu Law are- 

1. As per the Section 57 of the Act Both Males and Females (irrespective of Marital status) can adopt a child. However, a married person has to take the consent of the other spouse. 
2. Under section 10 of the Act Child has to be a Hindu
3. Under section 10 of the Act Child cannot be adopted twice

Muslims and Parsis don’t have legal recognition of Adoption. This leads to denial of a cornucopia of Rights that accrue due to Legal Recognition. In the Aftermath of the Covid pandemic there has been an upsurge in the number of adoptions happening in the country, 

with many problems taking up shape due to this increase like children returning, child trafficking. Without sound legal recourse, numerous problems arise in countering these.

Other Laws

Guardians and Wards Act, 1890

Important aspects under the Law-

1. Child not to be a Hindu
2. Must be a minor orphaned or surrendered

Comments 

1. There have been many shortcomings due to the lack of legal adoption for a fair share of the population. There is a need for a comprehensive legal framework for people belonging to any religion.
2. Important Aspects to Focus upon can be Moving Away from placing only Father as the Natural Guardian as has been in the HAMA To increase Gender Justness.

Inheritance Rights and Disparity for Women

Areas where the current Family Laws are Unfair for women

• Hindus 

Under the Hindu Succession Act, Section 14 Charts out what constitutes the property of a woman and Section 15 and 16 lay down the way it is to be inherited if she dies intestate. The issue is with Section 14 of the Act is that it does not differentiate between Self Acquired Property and other property. In Section 15 of the Act the ‘General Property i.e., Self-Acquired Property and property received by gift, will, settlement etc. by women in preference after children, children of Pre deceased children and Husband goes to the Husband Heirs, while this is not so in the case of Men. 

• Muslims

The main issue is with the Quantum which women are generally allocated, I.e. ½ of the males for example a woman has ¼ th share in deceased husband’s property and 1/8 th when she has children. However Similarly for a male it is ½ and ¼ respectively. Also there is discrepancy in case of Daughter and Daughter in Law. 

Comments

1. Succession should divide heirs on the basis of proximity of Relation.
2. Legitimacy of child must not be an issue for succession.

Age of Marriage

The Age of Marriage is also something that differs a lot between different religions.

• Hindu- The Hindu Marriage Act fixes age of Marriage as 21 for Men and 18 for women. This age of Marriage was increased through the Hindu Marriage Act itself. However, there have been recent concerns over the difference in the legal age of Marriage for Males and Females. 

• Muslim- The Muslim Law places the age of puberty as the basis of the age of Marriage. The interpretation of this age further varies within the sects. However, it is legally Assumed to be 15 years. There have been few court Judgements recognizing marriage below 18 years of Age in case if Muslims.
• Christians- Under the Indian Christian Marriage Act 1872 it is 21 for Men and 18 for women.
• Parsi- Parsi Divorce and marriage Act 1936 also fixes marriage age as 21 for Men and 18 for women.

The Special Marriage Act 1954, also fixes marriage age as 21 for Men and 18 for women.

Comment 

Uniform age of Marriage for both the Genders at 18, where majority of the Rights accrue, eg voting and age of Majority.

Conclusion

o   Throughout our brief, we have done a comprehensive study of emergence of idea of UCC from the colonial times covering aspects of constitutional, judicial and political history. We have then thoroughly analysed the existing personal laws and have suggested specific changes which are required to safeguard equality.  After our study, we believe the need is to balance right to equality with safeguards provided for minorities within the constitution.

o   To achieve that, it is our suggestion, that we proceed with making amendments to specific laws of the community, instead of a complete overhaul and replacement of all personal laws with a Uniform Civil Code.

o   While we realise that Jurisdictions across the globe have generally opted for a Uniform Civil Code, however, in a country like ours, with the largest democracy following the footsteps of unity in diversity, it is more suitable to look out for jurisdiction but adopt the law which is most suitable to people of our country, with its richness and value.

o   We suggest that a reading of Constitution Assembly Debates and the recent agenda of the government of the day, it is clear that the aim is to achieve equality and parity in laws, and we have alternate way to achieve the same, while maintaining respecting rights of minority and addressing their fears of a majoritarian civil code. 

o   We would also suggest a comprehensive analysis of corporate and taxation laws with regards to family trusts and fund units and see if the implication of UCC in anyway hamper/change the course for the same.

o   This would also help maintain harmony, and gradually endeavor the aims of Article 44 of the constitution. The measure, we believe would be satisfy the tests of proportionality and reasonableness recognied by the judiciary over the course of years.

o   We also suggest that a UCC on a voluntary basis as framed by Subcommittee on Fundamental rights in draft  is not a suitable alternative. Babasaheb Ambedkar during the Constituent Assembly Debates also suggested that the Uniform Civil Code can be brought out on a voluntary basis. Some of the scholars have suggested bringing it like Special Marriage Act. However, we respectfully disagree with the suggestion. We believe, a Uniform Civil Code on a voluntary basis is also not a suitable alternative because there would be no mandate for people to follow it, and the whole aim of the code, which is to ensure equality would be defeated.

o   Hence, we believe that a reform to existing laws, would be better suitable for people of the country and also help move towards realising the goal of Constitutional morality gradually.

Such considerations can be put forth while discussing the drafting of a model code which may be an umbrella law for religious and faith practice laws, We would also like to reiterate that our brief is supported by the basis of traditional customs as well as globally accepted norms which can be surveyed and reviewed throughout the consultation period.

* Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar are members of the Kautilya Society at Dr. Ram Manohar Lohiya National Law University, Lucknow.