Choice-based Uniform Civil Code under the Special Marriage Act

Every generation must be given a choice to determine the rules of equality and dignity. The Uniform Civil Code (UCC) is supposed to be a singular, homogenous code regulating marriage and allied matters, applicable to the citizens of India, irrespective of their religion, tribe, caste or creed.

The aspirations of UCC align with the right to equality and dignity guaranteed by the Indian Constitution. However, marriage, adoption, inheritance, succession, divorce, guardianship, maintenance etc. are not governed by personal laws. Many provisions which are inherently patriarchal and need an overhaul.

The conscious choice of the word endeavour reflects the realization that India has a pluralistic society and the notion of UCC could cause collective anxiety in minority communities who fear that majoritarian laws might be imposed in the name of making a homogenous law. Similar apprehension existed throughout the years while the Hindu Code Bills were under the consideration of the Constituent Assembly and then before the first Parliament. The Law Commission of India’s Consultation Paper on Reform of Family Law of 2018 also opined that UCC is not desirable and necessary at the moment.

While uniformity in laws governing marriage and allied matters can certainly be argued to foster gender justice, the State has to be cautious of not violating the freedom of religion and choice. Though it can be counter-argued that marriage is not an ‘essential religious practice’, ceremonies in marriages can be.

After five years, the Law Commission has once again solicited opinions and suggestions from the public on UCC. Until the contents of the Code are put in the public domain, alternatives to UCC can be pondered upon. State-wise UCC legislation is not desirable; hence Himachal Pradesh enacting one such law may not be a long-term solution. Another alternative that is welcomed even by the opposing communities is the codification of existing personal laws one at a time or what can be called a brick-by-brick method of ushering in reform. While this method could indeed pave the way for a UCC, the authors here suggest adding provisions to the Special Marriage Act is another avenue that needs to be explored.

Choice-based UCC under Special Marriage Act

The Special Marriage Act (SMA) of 1954 is often considered a progressive piece of legislation as it facilitates inter-faith marriages. Couples are given the option to get their marriage registered under this Act without the need to follow any religious ceremonies. SMA is choice-based. Anyone can seek to register their marriage, especially inter-faith and inter-caste marriages. SMA can be made a complete code to fulfil the objectives of UCC. It should include provisions on maintenance, adoption, inheritance and succession. Once a reformed SMA is enacted by Parliament, it should open the doors for couples - heterosexual for the time being - to voluntarily register their marriages under SMA.

Further, retrospective marriages can also be registered. Once registered under SMA, all rights to matrimonial property, including and not limited to maintenance, adoption, inheritance and succession can be applied under the provisions of the statute. The grounds for divorce shall also be uniform. SMA shall be open for citizens to decide their progressive social thought and philosophy.

SMA must broadly accept marriages that were celebrated otherwise through any religious ceremony, and this includes marriages celebrated before the Act was in force. While most of the provisions of SMA are just in nature, some of the provisions are still problematic. Section 5 requires the parties who intended to get married under SMA to give a notice to the marriage officer and this notice shall be displayed at a conspicuous place as per Section 6. Section 7 allows anyone to object to the marriage on conditions specified in Section 4. This notice regime completely invalidates the very purpose of bringing the Act in the first place - to dismantle the taboo surrounding inter-faith marriages. The Act should make registration of inter-faith marriages a smooth sail, and not add one more hurdle to the track.

Another problematic aspect of SMA is Section 22, which gives either spouse the option to file for restitution of conjugal rights when the other has withdrawn from the society of the other, seemingly without any reasonable excuse. Take the example of one partner, for any reason, demanding space in the marriage. Instead of resolving the issue through dialogue between the partners, allowing them to insist on restoring ‘sexual rights’ is a huge dent in the otherwise progressive nature of SMA. Owing to the violence to both reputation and person these provisions could perpetuate, they ought to be removed from the Act.

SMA can also be strengthened by infusing it with more provisions reflective of the changing times. One can look for inspiration in the Portuguese Civil Code that is applicable in the State of Goa. But, one has to proceed with caution. This seemingly uniform Code is not uniform, and retains some problematic provisions. This Code made in 1867 has exempted certain customs and practices of Hindus in Goa from its purview and has separate provisions for marriage and annulment of Catholic marriages wherein the Church is also involved. In case of divorce, adultery by the wife is sufficient ground for the husband to file for separation, whereas a wife has to show that the husband committed adultery with public scandal, abandoned her completely or had a mistress in their conjugal domicile.

To ensure uniformity, the succession rights of every couple who registers under SMA should be governed by the Indian Succession Act. However, as per Section 52 of the Goa Succession, Special Notaries and Inventory Proceeding Act of 2012, the surviving spouse comes only in fourth in position after the descendants, ascendants, brothers and their descendants. Instead, the surviving spouse and the children should be first in the order of succession and the property shall be divided equally among them. Ascendants and siblings, and descendants of siblings would occupy the subsequent positions in the order of succession in this order. A significant provision that can be incorporated in SMA is Article 1784 of the Goa Code, whereby the testator will have to reserve half of its assets for the heirs; only the other half can be disposed of as he wishes. 

Law is not a one-stop solution for any crisis in society; however, it is an important tool that could bring about meaningful changes. India has a long-standing history of social reforms achieved partly or significantly through legal intervention. Abolition of sati, prohibition of child marriage and prohibition of dowry are only some of the areas where law has played a vital role. Similarly, strengthening the Special Marriage Act to make it more progressive seems to be a solution acceptable to all communities alike, in the concerted effort to reform personal laws and transform India into an egalitarian society.

A choice-based UCC under the SMA, instead of a top-down Parliament made law, in current times, will not only be acceptable on political considerations, but will also pass the litmus test of legality under the Constitution. Empowerment of women in the choice-based approach will truly usher in true social transformation and balance unity and diversity. 

Prof (Dr) Sairam Bhat is a Professor of Law at National Law School of India University (NLSIU) Bangalore.

Gayathri KK is a Research Fellow at the Centre for Environmental Law Education, Research and Advocacy (CEERA) at NLSIU.