Akshat Agarwal*
Marriage Equality and the UCC
There has perhaps never been a better time to write and think about family law in India. Recently, the Indian Supreme Court started hearing two cases that may have profound consequences for Indian family law. The first consisted of various petitions filed by LGBTQ+ couples seeking marriage equality under India’s secular marriage law. These petitions ask the Supreme Court to declare current law that only recognizes heterosexual marriage unconstitutional as it violates the rights of LGBTQ+ persons. The second consisted of petitions seeking uniformity in family law areas such as maintenance, succession, guardianship, etc., under India’s various personal laws. These petitions ask the Supreme Court to direct the Parliament to enact a Uniform Civil Code (UCC) to replace existing religious identity-based personal laws as they do not meet standards of gender equality and discriminate against women.
In recent weeks, Sushil Modi, the former Deputy Chief Minister of Bihar and an elected legislator of the ruling Bharatiya Janata Party (BJP), formally spoke against marriage equality in Parliament. One of his key arguments was that marriage equality would “cause complete havoc with the delicate balance of personal laws in the country.” Simultaneously, in recent times various State Governments such as Uttarakhand and Gujarat, ruled by the BJP, have formed committees to study the feasibility of formulating and enacting UCCs in their states. This is in line with longstanding demands of the BJP to enact a UCC to replace all religious-based personal laws at the national level.
How do we make sense of these developments, and do they have any significance for each other? Prima facie, there appears to be an inherent contradiction between the demand for a UCC and the opposition to marriage equality. The argument that personal laws are discriminatory and violate the rights of women is one of the key rationales behind the demand for a UCC. At the same time, these allegedly discriminatory personal laws are used as a shield against accepting sexual orientation equality claims for marriage equality. How do we square with the easy dispensability of personal laws when it comes to the UCC, with their positioning as a roadblock when it comes to accepting claims of marriage equality? Can claims of gender and sexual orientation equality ever lie along such a sliding scale of salience?
An Opt-in UCC?
The UCC has long been a thorny issue for Indian family law. While Article 44 of the Indian Constitution talks about the enactment of a UCC as a non-binding constitutional aspiration, over time debates on the UCC have largely been used to emphasize the discriminatory nature of Muslim Personal Law. Moreover, there has never been any consensus or roadmap on what a UCC could entail, which has led many scholars to dismiss demands for a UCC as a mere red herring and diversionary tactic. The politics and the high-pitched polarizing rhetoric around the issue in fact made the women’s movement shift its focus from a UCC to seek the equalization of gender equality standards within different personal laws. This also indicates the enduring significance of religious identity-based personal laws as markers of group identity and community difference. Family law reforms have thus come to be viewed as a binary between embracing religious personal law or their wholesale replacement with a secular UCC.
Many years ago, the feminist scholar Catherine MacKinnon proposed a way out of this conundrum. Writing about the difficulty of reforming religious-identity based personal laws and respecting minority women’s autonomy to be governed by their own personal law, she argued for an opt-in gender-equal family law regime. Under this regime, communities or individual women could elect to be governed by a gender-equal code instead of their discriminatory personal law. Both the opt-in regime and the religious personal laws would exist simultaneously. According to MacKinnon, this regime could not only operate at the level opting into a law at the time of marriage, the way the current Special Marriage Act works, but also at the level of individual remedies. For instance, if a remedy under the code was more equal or preferable compared to the remedy under personal law, the woman would be able to opt for the more equal remedy during litigation. Thus, at the time of divorce a woman could opt for more equal post-divorce economic support provisions in the code compared to the maintenance provisions in her personal law. One drawback of the regime indeed is that it puts the burden of seeking equality and facing the consequent community backlash on individual women, but as MacKinnon notes, it also gives them agency and the possibility of weighing their choices and associated risks. To an extent, it may also help in shifting the balance of cultural power from men to women within communities. Such a regime would respect group identity as well as individual aspirations to be treated without discrimination.
In the context of LGBTQ+ rights, activists have focused on the secular Special Marriage Act with similar intent. To avoid running into conflicts with religious freedom by seeking marriage equality within existing personal laws, advocates have tried to locate same-sex marriage within the secular SMA. However, as I have argued before such an approach is both impractical and inadequate. This is because it ignores that secular laws and personal laws remain highly interconnected with issues like parenthood and succession continuing to be governed by the latter. Moreover, it ignores the intersectional identities of religious LGBTQ+ people. Additionally, the SMA remains a highly heterosexual legislation with problematic provisions such as notice requirements for solemnization of marriage and marital remedies like the restitution of conjugal rights which are ill-suited to the needs of the LGBTQ+ community. This either necessitates reforms within individual personal laws or requires the wholesale enactment of a new, comprehensive family law code.
MacKinnon’s proposal becomes relevant here. Could an opt-in family law code, that not only respects gender equality but also sexual orientation equality, balance the group identity and equality claims of both women and members of the LGBTQ+ community? Such a family law code could allow both women and LGBTQ+ persons to opt into non-discriminatory family law and seek legal recognition of their relationships. For LGBTQ+ persons it could provide a comprehensive legal regime covering all aspects of family law including marriage, divorce, parenthood, inheritance etc. It could also specifically address concerns of India’s transgender community by codifying practices such as transgender non-kin families and customary inheritance practices within the hijra community. Moreover, by co-existing with religious personal laws it would also allow for the possibility of organic, internal changes within personal laws that may suitably evolve over time to become responsive to the concerns of religious LGBTQ+ persons.
Queering Indian Family Law
Thinking of queer-inclusion within such secular family law also opens possibilities for a modern and responsive family law framework. For instance, existing law of post-divorce maintenance does not account for spousal contributions within marriage. Moreover, there is no conception of dividing property that is acquired through the monetary or non-monetary contributions (such as care and housework) of the spouses during marriage. Instead, post-divorce maintenance follows a needs-based paradigm which most often only seeks to support the divorcing spouse (often women) when they cannot otherwise support themselves. However, such a framework becomes harder to sustain when the law begins to consider non-heterosexual marriage which comes with a different analysis of power between the married spouses. This is not to suggest that the same maintenance law may always meet the needs of both heterosexual and LGBTQ+ couples but including the latter opens new possibilities and options for reforming the law for heterosexual couples too. Similar cases for reform could be made for other parts of family law, such as the law of parenthood, an issue that I explore in future writing.
In terms of a judicial remedy in the ongoing petitions on marriage equality, as I have argued, the court may do better in finding a broader right to LGBTQ+ relationship recognition and thereafter direct Parliament to enact a law in a time-bound manner. This strategy is not new; courts in other jurisdictions, such as South Africa, have followed it. Such a direction, however, could also be an opportunity for enacting a truly equal and modern opt-in family law code that focuses on both gender as well as LGBTQ+ equality. By being opt-in, such a code would also balance claims of group religious identity and yet allow for the legal recognition of LGBTQ+ relationships. This way of thinking about family law reform brings together longstanding debates on the UCC in conversation with ongoing LGBTQ+ rights claims for marriage equality. It also allows for the possibility of truly queering Indian family law by not only legally recognizing the relationships of LGBTQ+ persons but also making family law governing heterosexual families more equal, modern, and responsive.
Akshat Agarwal is a J.S.D. candidate and Tutor in Law at Yale Law School, where he obtained his LL.M. degree in 2022.
