Legal experts in Uttarakhand sceptical about UCC working on ground

The BJP government in Uttarakhand may have introduced independent India's first Uniform Civil Code (UCC), but legal experts are sceptical about whether it will work on ground in the hill state's conservative society, which still cares for its age-old traditional values.

While they agree that the basic objective of the UCC — of bringing about uniformity in the laws governing marriage, divorce, succession and live-in relationships — is healthy and in sync with the spirit of the Constitution, they have doubts about its acceptance in a tradition-bound society like Uttarakhand's.

Their principal concern is the institutionalisation of live-in relationships in the UCC, which makes it mandatory for live-in couples to officially register their alliance to get a legal status as in case of legally married couples.

"The UCC seems to treat marriage and live-in on par with each other, which may not find ready social acceptance in a state like Uttarakhand where traditional institutions like marriage are still deeply rooted," senior Uttarakhand High Court lawyer Dushyant Mainali told PTI.

It is doubtful if people will register their live-in relationships in a state like Uttarakhand, where they are not even openly talked about, he said. "On the other hand, if live-in relationships are legalised through compulsory registration and come to enjoy the status of marital relationships, more and more people may start preferring the former, which is less complicated with no rituals involved. That might, in the long run, pose a threat to the age-old institution of marriage," he said.

Mandatory registration of a live-in relationship between two adults, which already enjoys Constitutional protection in the country, is also an infringement of their privacy and individual liberties besides being superfluous, Mainali said.

"Now people will ask a live-in couple for the document certifying their relationship. If they are not armed with the document, they could even be subjected to harassment by authorities. It could give rise to moral policing which will further complicate things," he said.

As marriage and divorce are subjects of the Concurrent List, where both the Centre and states are empowered to make laws regarding marriage, divorce and succession, many of the provisions of the UCC may come into conflict with Central laws which are already in existence, he said. In such cases, the Central law will prevail under Article 254 of the Constitution, rendering the UCC of Uttarakhand ineffective, Mainali added.

Another senior Uttarakhand High Court lawyer Kartikey Hari Gupta also expressed similar doubts about the UCC. "If there is any clause in the UCC law which is not in consonance with any existing Central law, that clause shall not be implementable. It would be void due to being repugnant to the Central legislation," he said.

The UCC of Uttarakhand (2024) is a state legislation which has extra-territorial operation, which means it would also apply to Uttarakhandis living out of the state. It will definitely be tested in a court of law as to whether such legislation is at all permissible, he said.

On mandatory registration of live-in relationships, Gupta said, "Peeping into the bedrooms of citizens is definitely a sign of regression and a police state which was never envisioned by our Constitution makers."

On the argument offered by UCC votaries that it will prevent brutal incidents like the Shraddha Walkar case, in which her live-in partner Aftab chopped her into pieces and stored them in a fridge, Gupta said, "It is around a decade since the registration of marriages was made mandatory. Has it stopped abusive marital relationships or crime against women? Knee-jerk strategies like making laws are never enough to prevent crime. What matters is their effective and sustained implementation."

However, Mainali praised the UCC for creating common grounds for marriage and divorce across all religions, fixing the marriageable age for men and women, and treating all children — even those born of void and voidable marriages or live-in relationships — as legitimate. "Viewed from the humanitarian angle, these are commendable provisions," he said.