Lawyer Challenges Uttarakhand Civil Code In High Court; Says Provisions Are Discriminatory Towards Muslim, LGBTQ Communities

A Public Interest Litigation has been filed in the Uttarakhand High Court challenging the recently implemented 'Uniform Civil Code Uttarakhand 2024', in particular provisions covering marriage and divorce and live-in relationships, claiming that it violates the fundamental rights of citizens. 

Notably, on January 27 the Uttarakhand Government rolled out the Uniform Civil Code, almost a year after the Uttarakhand Assembly passed the Uttarakhand Uniform Civil Code (UCC) Bill, 2024. It has become the first state in the country to implement UCC.

The plea filed by a practising advocate challenges certain parts of the Code, in particular sections provided under "Part-1 i.e. Marriage and Divorce" and "Part-3 i.e. Live- in Relationships" of the Code, along with corresponding Uniform Civil Code Rules Uttarakhand, 2025.

The plea states that while UCC Uttarakhand, 2024 has curbed various concerns regarding personal civil matters being discriminatory against women, however there are various provisions and rules which encroach upon the fundamental rights of citizens in the State and violate their Right to Privacy, Right to Life, and in a larger sense take away the right to autonomy of the individuals in making decisions on "marriage and choosing their partners".

It says that the provisions are discriminatory towards the Muslim community inasmuch as it ignores some of their customary practices with respect to marriage and divorce and "transposes" on them the provisions of the Hindu Marriage Act.

For instance, it is claimed that Section 3(1)(g) of the Hindu Marriage Act which defines relationships that are prohibited for marriage have been made applicable to the Muslim and Parsi communities, overlooking the fact that marriage between a man and his father's sister's daughter, a man and his father's brother's daughter, a man and his mother's brother's daughter, and a man and his mother's sister's daughter, is not prohibited under the Holy Qur'an and the Parsi Marriage and Divorce Act, 1936.

This the plea claims is in gross disregard of the "prevailing customs, rights, and practices" of these communities which are protected under Article 25 of the Constitution of India.

Significant to note that UCC provides that parties to a marriage shall not be within degree of prohibited relationships if the custom of usage governing them permits the marriage between the two. The plea however states that while Section 4(iv) provides if a custom permits marriage between prohibited relationships it may be registered yet on the other hand the proviso provides a further qualification stating that this may be allowed only when it is "not against public policy and morality". The plea states that the provision imposes an unreasonable restriction on the registration of such marriages. 

The plea states that language used in Rule 9 (3)(e)ii) provides that only those polygamous marriages which were allowed by a statute could register their further marriage under the Code, when it is a well-known fact that as per the current legal position, there is no statute that allows Polygamy; it is only the customs and practices of Muslims which allow Polygamous marriages and marriage between certain relationships (Prohibited degrees).

"Thus clearly, these provisions suffer from the vice of manifest arbitrariness and unreasonableness and are violative of Article 14 and 15 of the Constitution of India and the fact that these provisions also seek declaration with respect to previous live-in relationships of a person which are terminated which is a gross violation of Right to Privacy which is an essential part of Right to Life under the Constitution of India," the plea states. 

On Live in relationships, the plea points out that Section 4(b) states that only a man and woman who cohabit in a shared household through a relationship in the "nature of marriage", provided that their relationship does not fall under the degrees of prohibited relationships, are said to be in a live-in relationship.

The plea claims that if the provision is construed in literal sense it would only pertain to a "biological male or female", thereby excluding persons who belong to the LGBTQ community, from the right of registration of their live-in relationships. This would amount to unfair treatment of the LGBTQ Community.

The plea further states that the definition of live-in relationship defines who can be in such a relationship but it fails to provide the minimum time period of cohabitation, which is an essential condition for considering a relationship as a live-in relationship. It also states that punishment prescribed for a "mere non-compliance" of the section is also arbitrary and disproportionate. 

It states that the provision on instances where live-in relationship cannot be registered includes where one person is a minor and the same is arbitrary as male of 21 years and female of 18 years can marry each other yet a female less than 21 years of age cannot enter into a live-in relationship as the Code does not permit it. 

It also points to a scenario where two individuals claiming themselves to be "roommates" and sharing same household who do not "cohabit" together, on the complaint of a person are given a notice by the Registrar to register their live-in relationship, provide him with the necessary information about not having a live-in and being only "roommates".

The plea questions whether a Registrar can take a call by means of a Summary Enquiry without ascertaining the evidence. It claims that the Registrar has been provided with excessive powers under the Code to ascertain if persons are in live-in relationships or not, which clearly violates Article 14 and Article 21 of the Constitution. 

It also challenges the scope of the term 'resident', to whom the Code applies, so far as it includes permanent residents of other States residing in Uttarakhand for a defined span of time.

Case title: Aarushi Gupta v/s State of Uttarakhand and Others