The draft Progressive Uniform Civil Code (PUCC) that a group of prominent concerned citizens proposed very recently makes a welcome contribution to the Law Commission’s public consultation on the feasibility and potential content of a Uniform Civil Code (UCC). It brings to bear on this debate the concerns of various legal actors, policymakers, activists and scholars to promote equal rights for the different genders, sexuality groups and religious groups in family life and intimacy. Its authorial team includes not only legal elites and feminist activists and scholars, who typically initiate family law proposals, but also people from many other fields. This note is a modest effort to further this debate by highlighting some very welcome features of the PUCC, while indicating certain ways in which it could be improved.
The most important reform proposed is to grant lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals equal rights to marry, have their non-marital conjugal relations recognised, adopt children, get divorced and inherit property. It would depart radically from the current statutory criminalisation of sodomy in Section 377 of the Indian Penal Code (IPC) that the Supreme Court upheld in 2013. The change would invalidate this provision that gave effect to homophobic 19th century British norms, which enjoy support in various Indian cultural traditions. It would make LGBTQ rights less dependent on judicial opinion, that is currently divided on the matter. The initiative enjoys overt support only among a small, though rapidly growing, minority now. This makes the political hurdles it needs to surmount particularly high, but also renders its adoption that much more crucial to ensure the dignity of sexual minorities.
The proposal to grant children equal shares in ancestral property, independent of the parent’s preferences, is also very significant. This would curtail the complete testamentary freedom – the freedom of individuals to dispose of their property upon death as they saw fit – that Hindus, Christians, Sikhs, Buddhists and Jains now have, which they predominantly use to limit daughters’ inheritance, and end the restriction of Muslim women’s shares in ancestral property to half that of their brothers. The dissolution of the Hindu Undivided Family (HUF) would further weaken mechanisms that recognised descent and family identity primarily or exclusively through the male line. Granting conjugal partnerships of at least two years’ duration the same civil status as marriages would especially benefit the economically weaker parties to such relationships. The PUCC offers Muslim and Christian couples adoption rights, which they do not currently enjoy. It liberalises divorce, including on the “no-fault” ground of irretrievable marital breakdown, a possibility debated since the 1970s, while safeguarding the interests of the women and children involved inadequately.
All the above changes, with the partial exception of the last, would promote women’s and children’s interests and individual liberties. Certain other of the PUCC’s features require alteration based on suggestions already offered by various scholars, activists and policy elites. These include the maintenance of complete testamentary freedom in self-acquired property, the possible limitation of the inheritance rights of spouses and partners in ancestral property, the silence about matrimonial property (acquired during the marriage or partnership), the liberalisation of divorce without adequately guaranteeing spousal property rights, the invalidation of non-judicial divorces, the requirement of marriage registration, the non-recognition of polygamous relationships, and the grant of equal shares in HUF property to coparceners.
Different rules are presumably proposed for the inheritance of ancestral and self-acquired property based on the premises that individuals should be free to transmit property they acquire as they wish, but should be obliged to pass on inherited property to successors.
The former premise reflects the predominant pattern in common law countries, among which the English experience mainly influenced Indian law. In such countries, testamentary freedom was introduced to end primogeniture – automatic inheritance of the firstborn child – and thus increased the testator’s control over property transmission and made more equal property devolution among successors possible. But in the civil law countries of continental Europe as well as in Scotland, testators’ preferences have been extensively constrained for centuries to protect the interests of successors, spouses, creditors and the public. Such restrictions were also imposed through the 20th century in England and some former British colonies (initially in New Zealand, and more recently in Australia, Canada, South Africa, Ghana, and parts of the United States and Nigeria), mainly to protect spouses and children. Obligations to transmit parts of one’s property, however acquired, to one’s family members are part of the secular and uniformly applied inheritance laws of these democracies, and considered compatible with the international human rights conventions to which they are signatories.
Certain normative traditions with long histories in India limited testamentary freedom and did not apply different rules to ancestral and self-acquired property. Influenced by English common law precedents, colonial and postcolonial legislation overrode shastric Hindu norms that required the devolution of parts of one’s property to successors, mainly patrilineal males. But such restrictions on testatory freedom to a third of one’s property in Islamic legal traditions retain effect, as a positive result of Muslim law having been barely codified.
The presence of such Indian cultural norms is less relevant to policy than the effects specific rules are likely to have today. Deep-rooted patriarchal and patrilineal norms continue to motivate most individuals to hand much of their property to their sons and other patrilineal descendants and limit the shares of daughters and wives. Further, parents use threats of disinheritance to pressure children to abandon their preferred choice of spouse, conjugal arrangements, and religious identification and practice. Besides, kin with greatest contact with the elderly in their last days sometimes exert undue influence over wills. Legislation inspired by constitutional egalitarianism should protect the inheritance shares of family members who are otherwise likely to be disfavoured. To do so, it is inadequate to limit testamentary freedom only over ancestral property as people can use deft financial transactions to reclassify inherited property as self-acquired so that they may limit the property given to females.
Testamentary freedom could be retained over a minor share of property, to enable individuals to grant more to successors who are less advantaged or who provide them elder care, while requiring equal shares for children and spouses in the rest of their property. Rather than doing so, the Hindu Succession Act increased testamentary freedom over ancestral property, to contain conservative resistance to giving daughters shares equal to those of their brothers in intestate property. Professor Bina Agarwal has persuasively argued to limit testamentary rights based on her definitive exploration of gendered forms of inheritance. The Law Commission and those who seek to urge it in progressive directions should heed her suggestions.
The PUCC is ambiguous about spouses’ rights in ancestral property. While Article 8.1 gives surviving spouses the same share as a child, Article 8.2 denies them this share if there are surviving children, and Articles 8.7 and 8.8 make children responsible to support the spouses. It is important to guarantee the property rights of surviving spouses, rather than making them dependent on their children. This is particularly crucial as the draft is silent about matrimonial property although women’s organisations have pressed for long to recognise the rights of both partners in such property. Indeed, legislators are already ahead of the PUCC in this regard.
In 2013, the Rajya Sabha passed the Marriage Laws (Amendment) Bill, which decreed shares for partners in marital property while leaving the precise shares to judicial discretion. (The bill lapsed when the previous government’s term in office ended before the Lok Sabha considered it). Varied mechanisms give both spouses, and in some cases other conjugal partners, shares in property couples accumulate over the course of their conjugal relationships upon divorce or a partner’s death, independent of which partner held the property title, in societies such as France, Spain, Germany, Italy, Switzerland, the Netherlands, Canada and certain American states. It is particularly important to do so in India where women bear more responsibility for child-rearing and household management, which often diverts their attention from paid work. Inconsistent judicial attention to spousal property rights suggests that it would be best to statutorily specify equitable shares in marital property.
Proposals to grant no-fault divorce have stalled since the 1970s over concerns about the economic interests of the women and children involved. The first official Committee on the Status of Women in India recommended in 1975 that this change should be contingent on women being guaranteed at least a third of their husbands’ property on divorce. Taking account of such arguments, the Marriage Laws (Amendment) Bill simultaneously enabled no-fault divorces and mandated the equitable division of matrimonial property upon divorce. Only such an approach would both promote gender equality and advance conjugal freedom. Ideologically different parties such as the BJP, Congress and the CPI-M have supported this approach, making its acceptance more likely.
In 2005, daughters were made coparceners in Hindu family joint property, but widows were not. As a result, widows’ shares in such property became much lower than those of children. In dividing HUF property into equal shares for coparceners, the PUCC would deprive widows of even their current meagre share. This should be avoided by divided such property equally between coparceners and surviving spouses.
The PUCC requires marriage registration, which is in tension with granting non-marital partnerships (whose registration is not required) the same status as marriages, and invalidates non-judicial divorces. Policymakers resisted such measures because they realised that the judicial system had inadequate capacity to handle their consequences. A significant proportion of Indian marriages are unregistered and unofficial courts grant divorces frequently. While marriage registration and resort to judicial divorces protects individuals better, legislation should not disentitle people who fail to take these steps. Non-judicial divorces that meet statutory standards should therefore continue to be recognised.
For similar reasons, the requirement of monogamy, which would end the room that Muslim law and certain Adivasi customary laws provide for polygamy and not for polyandry, should be accompanied by safeguards for those in polygamous, polyamorous and polyandrous relationships. The Protection of Women from Domestic Violence Act gives women in such relationships maintenance rights. Egalitarian legislation should also extend such women and men the other rights of monogamous partners.
The current debate is accompanied by uncertainty about whether a UCC will be adopted soon; policymakers have made no definite commitments in this regard. If it is not, the provisions of the PUCC, as altered and amplified above, should be incorporated in the various personal laws to give the egalitarian, liberal and democratic vision of the constitution fuller influence over the regulation of conjugal life and the distribution of family assets.
Narendra Subramanian is Professor of Political Science at McGill University, Montreal, Canada, and the author of Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (Stanford University Press, 2014).