Open Access Research Article
THE UNIFORM CIVIL CODE OF UTTARAKHAND: AN ANALYTICAL RESEARCH
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AUTHORED BY - DR. RAJESH KUMAR DUBE
ABSTRACT
The Uniform Civil Code, Uttarakhand, 2024 (hereinafter shall be referred
as the Code) was enacted by Uttarakhand Legislative Assembly in the 75th
hears of the Republic of Bharat and received assent of the President of Bharat
on 13th March 2024. The Code provides governance and regulations
relating to the laws on marriage and divorce, maintenance, succession, live-in
relationships and matters concerning thereto. The State of Uttarakhand is the
first state Bharat, which has fulfilled its constitutional obligation for
governing and regulating through laws relating to marriage and divorce,
maintenance succession, live-in relationship and other matters incidental to.
In this research paper there is an endeavour to carry out Analytical research
of the Code.
INTRODUCTION
We the people of Bharat, has solemnly resolved to constitute Bharat as a
sovereign and democratic republic in order to attain the constitutional
objective of socio-political justice. One of the very attributes of such
justice is equality before law and equal protection of the law which envisages
that the State shall govern the Bharat, in accordance with the provisions
contained under law of the land, without causing discrimination on the basis of
religion, Dharma,[1] race, caste, sex, place of birth etc.[2] There is constitutional mandate to the State to provide Uniform Civil
Code under the Directive Principles of the State Policy (hereinafter shall be
referred as DPSP) for the citizens. Accordingly, the State shall endeavour to
secure uniform Civil Code for citizens.[3] The provisions contained under DPSP are not enforceable by the Courts
established under the Constitution of the Bharat, but the principles contained
therein are fundamental in the governance of the Bharat and State is under
legal obligation to apply such principles in making laws.[4] Under entry 5th of the List III-Concurrent List, both the
Parliament and the State Legislative assemblies are competent to legislate on
subjects relating to marriage and divorce, intestacy and succession, will,
joint family and partition and matters relating to personal laws of any
community. The Constitution of Bharat confers fundamental rights that no person
shall be denied equality before law or equal protection of the laws.[5] The Scheduled tribes under
sub-clause (25) of the Article 366 read with Article 342 of the Constitution of
Bharat and certain group of persons whose customary rights are specifically
protected under part XXI of the Constitution have been exempted from the
applicability of the provisions of the Code.[6] This Code consist of four parts.
MARRIAGE AND DIVORCE
Part-I of the Code has been dealt with the marriage and divorce which has
been divided into seven chapters which shall be elaborated in this research
paper appropriately. The connotation of the word ‘child’ has been assigned
broader meaning under the Code and accordingly, besides biological child
relating to parents, other children such as adopted child, an illegitimate
child, child born through surrogacy etc. are included within its scope.[7] There are certain prohibited degree of relationship between a man and a
woman which prohibits such man and woman to enter into matrimonial relationship
through marriage.[8] The parties to the marriage means a man and woman between such marriage
is either solemnised as per Dharmik Samskar,[9]and customary rites/rituals of either parties to the marriage and
also any kind of ceremonies and practices including Saptapadi, Ashirvad
etc; or, contracted as per religious beliefs and practices such as ‘Nikah’, ‘Holy
Union’, ‘Anand Karj’.[10] The meaning of the term ‘estate’ includes both movable and immovable
property, self-acquired or ancestral, coparcenary, joint property of any kind
either tangible or intangible and includes share, interest or right in such
property.[11] The provisions of the UCCUK regarding registration of marriage[12] or live-in relationship[13] shall apply on all resident of the State. The term ‘resident’ means a
citizen of Bharat, who is eligible to be a permanent resident of Uttarakhand;
or is a permanent employee of the State and Central Government (within the
territory of the State of Uttarakhand) or its entities; or has been residing in
the State of Uttarakhand for not than less than a year; or is a beneficiary of
any scheme of the State of Uttarakhand and the Central Government applicable in
the State of the Uttarakhand.[14] The term ‘spouse’ has been defined as either husband or wife in a
marriage.[15] The term ‘maintenance’ shall be interpreted as all kind of provisions
relating to food, clothing, home, education, medical treatments any kind
special needs.
Essential Conditions for Solemnising or Contracting marriages
There are certain essential conditions for solemnizing or contracting
marriage provided under Chapter-1 of the Part-I of the Code. Accordingly, for
the solemnization or entering into contract for the marriage a man and woman
shall fulfil following five conditions.[16] Firstly, at the time of marriage neither party to the marriage should
have a spouse living. Secondly, at the time of marriage neither party to the
marriage should be of unsound mind so as make him/her incapable of giving valid
consent; or suffering from such mental disorder so as to unable him/her to be
fit for marriage; or subject to recurrent attacks of insanity. Thirdly, the man
must be twenty-one years old and woman must be of eighteen years old. Fourthly,
the parties to the marriage should not be within prohibited degree of
relationship, unless customs permit them to do so. Fifthly, the said marriage
should not be prohibited under any law for the time being in force.
Registration of Marriages or Divorce
There are provisions regarding
registration marriage and divorce under Chapter-2 of the Part-I of the Code.
There are provisions regarding compulsory registration of marriages which are
solemnised or contracted after commencement of the Code.[17] The marriages which are solemnised or contracted between 26th
March 2010 to the date of commencement of the Code, are compulsorily to be
registered.[18] It is for the first time in the legislative history of Bharat that there
are statutory provisions regarding registration of divorce. There are
provisions regarding compulsory registration of decree
of divorce or nullity which have been granted by the Court of competent
jurisdiction after commencement of the Code.[19] The decree of divorce or nullity which have been granted by the Court of
competent jurisdiction before commencement of the Code may be get registered.[20] There is penal provision for non-registration of marriages, divorce or
nullity of marriage, accordingly, the defaulter persons shall be liable to be
punished with fine which may extend to maximum twenty-five thousand rupees.[21] But non-registration of marriage would not invalidate such marriages.[22]
Restitution of Conjugal Rights and Judicial Separation
There are provisions regarding Restitution of
Conjugal Rights and Judicial Separation under Chapter-3 of the Part-I of
the Code. When either husband or wife has withdrawn from the society of another
without any reasonable excuse, the aggrieved party may file a petition a
petition before the Court of competent jurisdiction and the Court after
verifying the truth and falsity of the case may issue decree for restitution of
conjugal rights and burden of proving such reasonable excuse lies with the
spouse who has withdrawn oneself from the society of another spouse.[23] Either party to the marriage may file the petition for judicial
separation before the Court on the same grounds as may be sought for divorce.[24] After decree for judicial separation, it shall not be obligatory for the
spouses to live together till the decree for judicial separation is under
force, which may be rescinded through separate petition in the Court and during
such separation, the martial tie shall remain intact.[25]
Nullity of Marriage and Divorce
There are provisions regarding Nullity of Marriage and Divorce under
Chapter-4 of the Part-I of the Code. Any marriage solemnised or contracted by
violating conditions specified under clauses (i), (ii), (iv) and (v) of Section
4 of the Code shall be null and void and may be get declared by decree of
nullity after filing petition before the Court.[26]
Any marriage solemnized or contracted shall be voidable by a decree of
nullity on any one of the following grounds claimed by the petitioner: that due
to impotency of the respondent the marriage could not be consummated; or, that
the marriage was solemnized or contracted in contravention of the condition
specified in the clause (iii) of Section 4; or, that the consent of the
petitioner was obtained by force, fraud, or coercion and the petition has been
presented within one year, when such force or coercion had ceased to operate
and also the petitioner was not living with the respondent with his/her full
consent after such cessation of the force or coercion; or, that the wife was
pregnant by a man other than the husband, or the husband had impregnated a
woman other than his wife but subject to condition that the petitioner was
ignorant of the alleged fact.[27]
Any marriage solemnized or contracted may be dissolved by a decree of
divorce on any one of the following grounds claimed by the petitioner: (1) that
the respondent had voluntary sexual intercourse with any person other than
petitioner; or, (2) that the respondent treated the petitioner with cruelty;
or, (3) that the respondent deserted the petitioner for more than two years
before filing the petition; or, (4) that the respondent has converted to
another Dharma/religion than that of the petitioner; or (5) that the respondent
has been incurably of unsound mind; or that the respondent has been suffering
from communicable venereal disease which is of incurable nature; or, (6) that
the respondent has renounced the world by entering any religious order or
otherwise; or, (7) that the respondent has not been heard alive by any person
for more than seven years; or, (8) that the respondent has solemnised or
contracted another marriage in contravention of clause (i) of Section 4; or (9)
that the respondent has failed to comply with maintenance order issued by the
Court of competent jurisdiction.[28]
Decree for dissolution of the marriage may also be granted on the ground
that (a) there has not been resumption of cohabitation between spouses to the
marriage for a period more than one year since the issuance of the decree of
judicial separation; or, (b) there has not been restitution of conjugal rights
between spouses to the marriage for a period more than one year since the
issuance of the decree of restitution of conjugal rights.[29]
The wife may also present a petition for the dissolution of marriage on
the ground that (a) the husband has been held guilty of the offence of rape or
any other unnatural offence of sexual assault since the solemnization or
contracting of the marriage; or, (b) the husband had more than one wife from
marriages solemnized or contracted before the commencement of the Code.[30]
The marriages solemnized or contracted may be dissolved by mutual consent
on the ground that parties to a marriage have been living separately for a
period of one year or more and their inability to live together anymore and
there should be mutual agreement to dissolve the marriage by mutual consent
between such parties.[31]
SUCCESSION
Part-II of the Code has been dealt
with the Succession. This part of the Code has been dealt with Intestate Succession under chapter-1; Testamentary Succession under
Chapter-2; Protection of Estate of the Deceased under Chapter-3; Representative
Title to Estate of Deceased on Succession under Chapter-4; Probate, Letters of
Administration and Administration of Assets of Deceased under Chapter-5;
Succession Certificates under Chapter-6; and Miscellaneous provision relating
to succession under Chapter-7 of the Code.
Intestate Succession
A person who is dying intestate means the deceased had not making any
testamentary arrangement relating to his estate, his/her interest in the estate
shall be devolved in the following order of preference: Firstly, the heirs
specified in Class-1 of Schedule-2 of the Code shall have preferential
entitlement over any class of heirs; Secondly, the heirs specified in Class-2
of Schedule-2 of the Code shall be entitled to inherit, if there is no
qualified heir in Class-1; Thirdly, the other relatives would be entitled to
inherit, if there is none qualified heir is found in both Class-1 and 2;
Finally, the estate shall escheat upon the Government, if there is no qualified
heirs found in the aforesaid clauses.[32]
The List of Class I heirs for Succession are as follows: Son; Daughter;
Widow; Mother and Father; Son of predeceased son;
Daughter of predeceased son; Son of predeceased daughter; Daughter of
predeceased daughter; Widow of predeceased son; Son of
predeceased son of a predeceased son; Daughter of predeceased son of a
predeceased son; Widow of predeceased son of a predeceased son; Son of a predeceased daughter of a predeceased daughter; Son of
a predeceased daughter of a predeceased son; Son of a predeceased son of a
predeceased daughter; Daughter of a predeceased daughter of a
predeceased daughter; Daughter
of a predeceased son of a predeceased daughter; and Daughter of a predeceased
daughter of a predeceased son.[33]
The List of Class II heirs for Succession are as follows: Entry I:
Brother and Sister; Entry II: Brother’s Son, Sister’s Son, Brother’s Daughter,
Sister’s Daughter; Entry III: Father’s father, Father’s mother; Entry IV:
Father’s widow (Step mother), Brother’s widow; Entry V: Father’s brother,
Father’s sister; Entry VI: Mother’s father, Mother’s mother; Entry VII:
Mother’s brother, Mother’s sister.[34]
Other relatives mean such other persons who are related to the intestate
but not specified under Class-1 or Class-2 heirs as mentioned above.[35]
The distribution of estate of the intestate among Class-1 heirs, who
shall inherit simultaneously, shall be as follows: every surviving spouse shall
take one share each;[36] every surviving child shall take
one share each;[37] the heirs in the branch of each predeceased child shall take one share
each;[38] the share apportioned to each branch of the predeceased child under rule
3 shall be equally divided among the surviving spouse and child;[39] The share devolving upon each branch of the predeceased shall be equally
divided among all members of the branch.[40] Surviving parents of the intestate shall take together one share.[41]
The distribution of estate amongst Class-2 heirs shall be as follows: the
heirs of first entry shall be preferred over heirs under rest of the entries of
the Class-2.[42] All heirs under any entry shall inherit equally and simultaneously.[43]
The nearest degree relatives of the intestate shall be preferred over the
other relatives.[44] The Code has made no distinctions between actually born child and child
in mother’s womb and who has born alive, of the intestate and are equally
entitled to inherit the estate.[45] The widow or widower of the intestate shall be disqualified to inherit
the estate who has married during lifetime of the intestate.[46] A person, who commits murder of any person whose estate, such person is
entitled to inherit shall be disqualified to succeed the estate of the murdered
intestate.[47] The disqualified persons to inherit the estate shall be deemed to be
died before the intestate under the Code.[48]
Testamentary Succession
Chapter-2 of the Part-2 of the Code has been dealt with the testamentary
succession which provide laws relating to Wills and Codicils[49]; Execution of Wills[50]; Attestation, Revocation. Alteration and Revival of Wills[51]; Construction of Wills[52]; Void Bequests[53]; Vesting of Legacies[54]; Onerous Bequests[55]; Contingent Bequests[56]; Conditional Bequest[57]; Bequests to an Executor[58]; Specific Legacies[59]; Demonstrative Legacies[60]; Ademption of Legacies[61]; Payment of Liabilities in respect of the Subject of Bequest[62]; Bequest of Things described in General Terms, Bequests of the Interest
or Produce or Fund, Bequest of Annuities and Legacies to Creditors and
Portioners[63]; Election[64].
Chapter 3 & 4 of the Part-2 of
the Code has been dealt with the laws relating to the Protection of Estate of the Deceased & Representative Title to Estate
of Deceased on Succession.[65] This chapter is mainly dealt with provisions relating the right of any
person claiming succession to estate of deceased; provision regarding inquiry
made by Judge and its procedure; appointment of curator and his powers; the
character and estate of executor or
administrator; proof of representative title a condition precedent to recovery
etc.
Probate, Letters of Administration and Administration of Assets of
Deceased
Chapter 5 of the Part-2 of the Code
has been dealt with the laws relating to the Probate, Letters of Administration and Administration of Assets of
Deceased[66]. All grants of probate and letter of administration with the Will and
the administration of the assets of the intestate deceased shall be carried out
in accordance with the provisions provided under Chapter 5 of the Part-2 of the
Code. In this Chapter of the Code, there are provisions regarding Grant of
Probate and Letters of Administration; Limited Grants; Grants for special
purposes; Alteration and Revocation of Grants; Powers of Executor or
Administrator; Duties of an Executor or Administrator etc.
Chapter 6 & 7 of the Part-2 of the Code has been dealt with the laws
relating to the Succession Certificates and Miscellaneous provisions pertaining
to Succession.[67]
LIVE-IN RELATIONSHIP
Part-III of the Code has been dealt with the Live-In Relationship.[68] This is relationship between a man and a woman, who live together in
shared household through a relationship in the nature of marriage.[69] Such a man and a woman who live-in relationship is called as partners to
live-in relationship.
The existing partners in a live-in relationship or persons intending to
enter into a live-in relationship will have to submit a statement in this
regard to the concerned Registrar in the prescribed format. After examination
and summary inquiry, the Registrar may register such entries in the prescribed
register or refuse to register within 30 days from the submission of statement.[70]
The Registrar may refuse to register the aforesaid statement submitted by
the partners to live-in relationship, where the partners are within prohibited
degree of relationship; or one of the persons are already married or living in
live-in relationship; or at least one of the persons are minor; or where the
consent of one of the partners are obtained unlawfully.[71] The persons who are living in live-in relationship for more than one
month without submitting the aforesaid statement to the Registrar shall be
liable to punishment with imprisonment
for a term which may extend to three months or with fine not exceeding
ten thousand rupees on conviction by a Judicial Magistrate.[72] The woman shall be entitled to maintenance allowance, if deserted by her
live in partner.[73]
CONCLUSION
The Uniform Civil Code of Uttarakhand, 2024 is one of the historic and
unprecedented legislation enacted by the Uttarakhand Legislative Assembly in
the Bharat. The Code has been dealt with the provisions relating to Marriage and Divorce; Maintenance; Succession both Intestate
and Testamentary; and Live-in Relationship. The law regarding live-in
relationship is unique feature of the Code and its first ever legislation in
any of the State of Bharat. The registration of Marriage, Divorce and Live-in
relationship has been made mandatory under the Code. After carrying on
analytical research of the Code, it may be concluded that very nice and
progressive legislation has been enacted which covers all aspect of the Civil
life pertaining to Marriage and Divorce; Maintenance; Succession and Live-in
Relationship. This Code would be a model Code for Bharat for fulfilling the
Constitutional mandate regarding Uniform Civil Code.
[1] As per researcher’s opinion
religion and Dharma are altogether different concepts and should be used
appropriately, according to the context.
[2] The Constitution of Bharat:
Article-14.
[3] Id. Article 44.
[4] Id. Article 37.
[6] The Uniform Civil Code of
Uttarakhand, 2024; Section 2.
[7] Id. Section 3 (1) (a).
[8] Id. Section 3 (1) (d).
[9] Dharmik Samskar is an
essential and integral part of the Sanatan Dharma for performing Vivah
Samskar of any Sanatani practicing such Dharma in his/her
life.
[10] Supra at note 6; Section 5.
[12] Id. Section 6.
[13] Id. Section 378 read with 381.
[14] Id. Section 3 (1) (n).
[15] Id. Section 3 (1) (0).
[16] Id. Section 4.
[17] Id. Section 6.
[18] Id. Section 7.
[19] Id. Section 8.
[20] Id. Section 9.
[21] Id. Section 18 (2).
[22] Id. Section 20.
[23] Id. Section 21.
[24] Id. Section 22 (1).
[25] Id. Section 22 (2).
[26] Id. Section 23.
[27] Id. Section 24.
[28] Id. Section 25 (1).
[29] Id. Section 25 (2).
[30] Id. Section 25 (3).
[31] Id. Section 27.
[32] Id. Section 49.
[33] Id. Schedule-2.
[34] Id.
[35] Id.
[36] Id. Section 51; Rule 1.
[37] Id. Rule 2.
[38] Id. Rule 3.
[39] Id. Rule 4.
[40] Id. Rule 5.
[41] Id. Rule 6.
[42] Id. Section 52; Rule 1.
[43] Id. Rule 2.
[44] Id. Section 53.
[45] Id. Section 55.
[46] Id. Section 57.
[47] Id. Section 58.
[48] Id. Section 59.
[50] Id. Sections 64 & 65.
[51] Id. Sections 66 to 69.
[52] Id. Sections 70 to 106.
[53] Id. Sections 107 to 112.
[54] Id. Sections 113 to 115.
[55] Id. Sections 116 & 117.
[56] Id. Sections 118 & 119.
[57] Id. Sections 120 to 134.
[58] Id. Section 135.
[59] Id. Sections 136 to 143.
[60] Id. Sections 144 & 145.
[61] Id. Sections 146 to 160.
[62] Id. Sections 161 to 164.
[63] Id. Sections 165 to 173.
[64] Id. Sections 174 to 185.
[67] Id. Sections 359 to 377.
[68] Id. Sections 378 to 389.
[69] Id. Section 4 (b).
[70] Id. Section 381.
[71] Id. Section 380.
[72] Id. Section 387.
[73] Id. Section 388.
Article Information
THE UNIFORM CIVIL CODE OF UTTARAKHAND: AN ANALYTICAL RESEARCH
Authors: DR. RAJESH KUMAR DUBE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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