A new UCC for a new India? Progressive draft UCC allows for same sex marriages

A “progressive” Uniform Civil Code (UCC), providing for same sex marriage and marriage of transgenders has been submitted to the Law Commission of India.

The Narendra Modi government in 2016 had asked the Law Commission to study in detail all issues pertaining to the UCC and submit a report to the government. Subsequently, the panel in October 2016 invited public opinion on the subject putting up a set of questionnaire.

The draft of the UCC has been prepared by lawyer Dushyant and signed by eminent personalities like historian Syed Irfan Habib and Magsaysay award winner Bezwada Wilson, was submitted to Commission chairman Justice (retired) BS Chauhan.

The others to sign are vocalist TM Krishna, journalist Nilanjana Roy, Major Gen S Vombetkere (retd), historian Mukul Kesavan, and actress Gul Panag. The draft UCC has also been endorsed by former Attorney General Soli Sorabjee.

“The Law Commission is attempting the task of putting together a UCC. I want to join those who wish to ensure that any step ahead to bring everyone on the same page must be progressive and enlightened. The Law Commission should obviate any apprehension that anything uniform would be majoritarian. Besides its recommendation need to be far sighted and progressive,” Sorabjee said, forwarding the draft to Chauhan.

Marching with the times

Providing for homosexual marriages and live-in, the draft UCC rules out any kind of gender-based discrimination for marriage, adoption, custody of child/children and inheritance.

It defines marriage as “the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman".

Partnership has been defined as living together of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman.

It also provides that any two person who have been in partnership for more than two years shall have same rights and obligations towards each other as a married couple. The draft also bars more than one such partnership at a time.

According to the draft UCC, 20 years is the legal age for marriage and it prohibits marriage to a sibling, real uncle or aunt, or direct lineal ascendant descendant.

It also recommends compulsory registration of all marriages, something which the panel itself had recommended to the government earlier in the year.

“In case of non-heterosexual marriages, the fact that the religious or customary practices do not permit such marriage or prohibit such marriage, will not be a bar and the registrar of marriages will have all such powers to ensure solemnisation of such marriage,” says the draft.

On adoption

On the issue of adoption, the draft provides for all couples, whether married or in a partnership, to adopt a child, irrespective of their sexual orientation.

“All married couple and couples in partnership entitled to adopt a child. Sexual orientation of the married couple or the partners not to be a bar to their right to adoption. “Non-heterosexual couples will be equally entitled to adopt a child,” it says.

Religion, divorce and estate

As per the draft, only a civil court shall have the power to decide on divorce and non-judicial decree of divorce will not have any legal effect.

The draft also proposes to do away with any discrimination in the law of inheritance such as those in Muslim laws where the share of women at the time of inheritance is half of the share of their male counterparts.

“Every person adopted or biological, upon parent’s death entitled to have equal share irrespective of gender, sexual orientation or religion,” says the draft.

It provides for repeal of laws like the Hindu Marriage Act, Hindu Succession Act, Muslim Personal Law Application Act, Dissolution of Marriage Act, Indian Christian Marriage Act and the Parsi Marriage Act.