The twenty-second Law Commission of India (June 14, 2023) has sought the views of religious organisations and the public, on the issue of a Uniform Civil Code (UCC). This is despite the twenty-first Law Commission of India (August 2018) making it clear in that a Uniform Civil Code (UCC), “is neither necessary nor desirable at this stage.”

This article explains what UCC is and the potential implication of the proposed UCC on religious minorities in India.

What is UCC?

Uniform Civil Code (UCC) encompasses having a common set of laws to govern marriage, divorce, succession, and adoption for all Indians, instead of allowing different personal laws for people of different faiths. In other words, UCC envisages a common law that will govern marriages, divorces, adoption, and succession for all Indians regardless their caste or religious denomination.

At present, these practices (i.e. marriage, succession, adoption of children, etc.) are regulated by the personal law of the individual’s religion. For example, Parsi marriages and divorce cases are regulated under the Parsi Marriage and Divorce Act, 1936. There are special rules for Parsi intestate provided under Sections 50 to 56 of the Indian Succession Act, 1925. Adoption is not legal among Parsis.

Implication of UCC

If UCC is implemented, all the earlier mentioned personal laws will become redundant and the Parsi community (along with other religious minority communities in India) will be governed by a common set of laws to regulate marriage, divorce, succession, and adoption. In other words, UCC will be applicable to all Indians including Hindu, Muslim, Christian, Parsi etc., and existing personal laws will become redundant.

Let us understand some of these Personal Laws…

THE PARSI MARRIAGE AND DIVORCE ACT OF 1936:

As per Section 3 of The Parsi Marriage and Divorce Act, no marriage shall be valid if:

1. the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I; or
2. such marriage is not solemnized according to the Parsi form of ceremony called Ashirvad by a priest in the presence of two Parsi witnesses other than such priest; or
3. in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age.

Thus, marriage as per this Personal Law, is both ‘contractual’ and a ‘sacrament’, in the form of the Ashirwad religious ceremony that must be performed by a Parsi priest in the presence of two Parsi witnesses. The marrying couple should not be related to each other and for which Schedule I of the Act provides a table of prohibited degrees of consanguinity and affinity. Also, the groom must be at least twenty-one years of age while the bride should be at least eighteen years of age. Unless these conditions are fulfilled, the marriage is not considered valid.

Where divorce is concerned, Section 32 of the Parsi Marriage & Divorce Act lists ten grounds for divorce that either spouse may raise. By amending the Parsi Marriage and Divorce Act of 1936 in the year 1988, legislature made divorce generally available to Parsis on all grounds, particularly divorce by mutual consent, which was not an option prior to the amendment of 1988.

SUCCESSION ACT:

When the Indian Succession Act of 1925 was passed, the Parsi Intestate Succession Act 1865 was directly placed into Chapter III of the Act. Act. The Indian Succession Act, 1925 established testamentary rights and broadly covered the Parsi instate succession, from Sections 50 to 56, to protect succession rights of the Parsi Community.

 

 ADOPTION:

The Parsi custom of naming a ‘paalak’ for undertaking obsequies of a deceased cannot be confused with adoption. The fact is adoption is not yet legal among Parsis in India. The only codified law available for adoption in India is The Hindu Adoption and Maintenance Act (HAMA). This Act came into force in 1956 and is applicable to:

Any person who is a Hindu by religion in any of its forms or development; Any person who is a Buddhist, Jain or Sikh;

Any person who is not a Muslim, Christian, Parsi or Jew; Any child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs; Any child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up; Any abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; Any person who is a convert to the Hindu, Buddhist, Jain or Sikh religion.

 

It is clear from the above that HAMA is NOT Applicable to Parsis.

The Personal Law of Muslims, Christians, Parsis and Jews does not recognize adoption. In India, as non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in ‘guardianship’ under the provisions of ‘The Guardian and Wards Act, 1890’ (GWA). But GWA does not provide to the child the same status as a child born biologically to the family.

Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956, the child cannot become their own or inherit their property by right. The GWA confers only a guardian-ward relationship. This legal guardian-ward relationship exists until the child completes twenty-one years of age. Under the GWA, persons belonging to communities such as Muslim, Christian, Parsi or Jew who wish to adopt, can take up ‘guardianship’ of the child. However, under Indian laws, such children do not enjoy the same status as those of a biological child.

In fact, under GWA the term ‘Guardian’ means minor, for whose person or property or both, there is a guardian. The term ‘Ward’ means a minor for whose person or property or both, there is a guardian. In other words, if a Parsi parent desires to ‘adopt’ a child, the latter would not legally be considered ‘as born to’ the adoptive individual or couple.

Efforts over the past several decades by GoI to pass a comprehensive secular law on adoption have failed on account of stiff opposition from non-Hindu communities, particularly Muslims and Parsis. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities, other than the Muslim community, was opposed by the Bombay Zoroastrian Jasan Committee, which formed a special committee to exempt Parsis from the Bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books.

No doubt, the Juvenile Justice Act 2000 (and its subsequent amendment of 2006) has neatly tucked in a provision for adoption, but, with no reflection on how it is to be implemented or its repercussions. The intentions of this Act are good, but they do not even mention adoption in the statement of object! Thus, the Act is not precise and clear in its terms, and is, in reality, in conflict with other pieces of legislation.

One needs to note that nowhere does the Juvenile Justice Act 2000 (or the amendment of 2006) say that it supersedes existing legislation on adoptions. JJA fails to override the provisions of other personal laws. For example the Muslim personal law does not permit adoption and the government can’t try and plug loopholes in one Act by amending another.

Thus, as of today, ‘adoption’ is not yet legal among Parsis and the concept of ‘Paalak’ is merely naming the person who would take on the moral and religious responsibility of carrying out after-death religious ceremonies of a person, who dies childless. It does not confer any legal rights over property or succession.

Arguments Against UCC:

The main argument against a UCC is that it violates the constitutional freedom to practice the religion of choice which allows religious communities to follow their respective personal laws. For example, Article 25 gives every religious group the right to manage its own affairs. Article 29 gives them the right to conserve their distinct culture. Interestingly, the fundamental rights sub-committee of the Constituent Assembly of India deliberately did not include UCC as a fundamental right.

It is often argued that there cannot be ‘gender equality’ or ‘social justice’ till a Uniform Civil Code is implemented. However, experts believe that instead of a UCC, there are other ways to make existing laws equitable. In other words, the government of India should deal with laws that are discriminatory rather than providing a Uniform Civil Code, which is neither necessary nor desirable.