Impediments to a Uniform Civil Code, and the Optional Code

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage neither party is incapable of giving valid consent in consequence of unsoundness of mind, or, though capable, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage, or has been subject to recurrent attacks of insanity;

(iii) the man has completed twenty-one years and the woman eighteen;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing one of them permits it, provided that such customs and usage are not against public policy and morality; and

(v) the marriage is not prohibited under any law in force.

Read that against section 5 of the Hindu Marriage Act, in [Conditions, Ceremonies and Registration of a Hindu Marriage], and the resemblance is complete. The Uttarakhand Code did not invent a new law of marriage; it took the conditions the Hindu Marriage Act already imposed and applied them to everybody. Condition (i) is the one that carries the whole argument: monogamy for all.

Section 5: the ceremonies are untouched

Marriage may be solemnized or contracted between a man and a woman in accordance with the religious beliefs, practices, customary rites and ceremonies including but not limited to "Saptapadi", "Ashirvad", "Nikah", "Holy Union", "Anand Karaj" under the Anand Marriage Act 1909, as well as under, but not limited to, the Special Marriage Act 1954 and the Arya Marriage Validation Act 1937.

Section 5 is the answer, in statutory form, to the objection that a uniform code destroys religion. The rites stay; the conditions and the consequences are unified. That is exactly the line Munshi drew in the Constituent Assembly between religion and secular law, taken in [The Uniform Civil Code: Article 44 and Religious Pluralism], and it is the single most useful thing to say in an essay on the impediments.

Part 3: live-in relationships

This is the part of the Code that has drawn most criticism, and the provisions should be stated before any of it is repeated.

Section 378: the statement is compulsory. It is obligatory for partners to a live-in relationship within the State, whether they are residents of Uttarakhand or not, to submit a statement of the relationship to the Registrar within whose jurisdiction they are living. A resident of Uttarakhand living in such a relationship outside the State may submit a statement to the Registrar where he ordinarily resides.

Section 379: the child. Any child of a live-in relationship shall be a legitimate child of the couple.

Section 380: when it may not be registered. Where the partners are within the degrees of prohibited relationship, subject to the same custom proviso as section 4(iv) and the same public policy limit; where at least one is married or already in a live-in relationship; where at least one is a minor; or where the consent of one partner was obtained by force, coercion, undue influence, misrepresentation or fraud as to any material fact concerning the other, including identity.

Section 385: the Registrar's duties. A statement is forwarded to the officer in charge of the local police station for record, and where either partner is less than twenty-one years of age, the parents or guardians are also informed. If the Registrar concludes that the relationship falls within section 380, or that the statement is incorrect or suspicious, he informs the police for appropriate action. On a statement of termination by one partner, the Registrar informs the other, and again the parents or guardians if either partner is under twenty-one.

Section 386: notice. Where a partner has failed to submit a statement, the Registrar, on his own motion or on a complaint, requires it by notice within thirty days.

Section 387: the offences. Staying in a live-in relationship for more than one month from entering it without submitting the statement is punishable on conviction by a Judicial Magistrate with imprisonment up to three months, or fine up to ten thousand rupees, or both. A false averment in the statement, or withholding a material fact affecting the Registrar's decision, carries up to three months, or fine up to twenty-five thousand rupees, or both. Failure to submit after a notice under section 386 carries up to six months, or fine up to twenty-five thousand rupees, or both.

Section 388: maintenance. If a woman gets deserted by her live-in partner, she shall be entitled to claim maintenance from him, before the competent court where they last cohabited, and the incidental-proceedings chapter of Part 1 applies with the necessary changes.

Section 384 provides for a statement of termination by both partners or either of them, section 381 for the procedure of registration, section 382 that registration under this Part is only for record, section 383 for the Registrar's powers and registers, and section 389 for rules.

Section 390: what it sweeps away

Subject to section 2, any law, statutory or otherwise, and any practice, custom or usage in force in the State immediately before the commencement of the Code, relating to matters covered by it, ceases to have effect within the State so far as it is inconsistent with the Code. Rights, responsibilities and obligations already accrued, and proceedings already initiated, are saved and continue under the old law. And the Uttarakhand Compulsory Registration of Marriage Act 2010 is repealed.

The impediments, tested against that

1. Religious freedom

The objection. Marriage, divorce and succession are part of the practice of a religion protected by Articles 25 and 26, and a code that legislates them is an interference with that freedom.

What Uttarakhand did about it. Section 5 keeps every community's ceremonies, naming Saptapadi, Ashirvad, Nikah, Holy Union and Anand Karaj, and unifies only the conditions in section 4 and the consequences in the rest of Part 1.

How the argument stands after that. The objection cannot be that the code stops anybody from marrying by his own rite, because it does not. It has to be the narrower and harder claim that a specific rule, such as the permission of more than one wife, is itself religion and not a secular incident of it. That is the claim Article 25(2)(b), which preserves the State's power to legislate for social welfare and reform, was written to answer.

2. Federal structure, and what "throughout the territory of India" means

Entry 5 of the Concurrent List puts marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition, and all matters in which parties were subject to their personal law before the Constitution, in List III. So both Parliament and a State Legislature may legislate on the whole of this subject.

Article 254(1) makes a State law repugnant to a Central law void to the extent of the repugnancy; Article 254(2) provides that where the State law has been reserved for the consideration of the President and has received his assent, it prevails in that State. The proviso keeps Parliament free to legislate again on the same matter.

That is why the Uttarakhand Code was assented to by the President and not merely by the Governor. The Code displaces Central Acts such as the Hindu Marriage Act within Uttarakhand, and only presidential assent could make it do so.

And this is itself the impediment. Article 44 asks for a code throughout the territory of India. A State code, however complete, produces the opposite in the short run: a Hindu in Dehradun and a Hindu in Mumbai are now governed by different laws of marriage and succession. Munshi's complaint in 1948 was precisely that provinces and States had begun making separate Hindu law for themselves. The route Uttarakhand took is available, lawful and effective, and it fragments before it unifies.

3. The exemption of Scheduled Tribes

Section 2. Nothing contained in this Code shall apply to the members of any Scheduled Tribes within the meaning of Article 366(25) read with Article 342, and to the persons and group of persons whose customary rights are protected under Part XXI of the Constitution.

This is the most important sentence in the whole debate, and it should be the first thing an answer on impediments says. A State that set out to enact a uniform civil code exempted a class of its own citizens from it in the second section. The exemption is not an oversight: it protects communities whose customary law is constitutionally safeguarded, and the committee consulted those very villages. But it means that even the one uniform civil code India has enacted since 1950 is not uniform, and that the difficulty is not confined to the objections of any one religion.

And note section 390(1) opens with the words "Subject to the provisions of section 2", so the repeal of inconsistent custom does not reach them either.

4. Custom survives inside the Code

Section 4(iv) allows marriage within the degrees of prohibited relationship where the custom or usage governing one of the parties permits it, and section 380(1) carries the same exception into live-in relationships. Both are subject to the proviso that the custom is not against public policy and morality.

So the Code does what the Hindu Marriage Act does in section 5(iv) and (v): it states a rule and then lets custom displace it. That is unavoidable in a country where marrying a mother's brother's daughter is proper in one region and prohibited in another, and it is a real limit on uniformity, written into the code itself.

5. The administrative weight

A code of this kind is a registration system before it is anything else. Part 1 Chapter 2 alone runs to fifteen sections on registration, appeals against refusal, public inspection, evidentiary value, penalty for a false statement, the procedure on non-registration and the punishment of a Sub-Registrar who does not act. Part 3 adds a second registration system for live-in relationships. Delivering it means a Registrar General, Registrars and Sub-Registrars in every district, a portal, and rules that have already been amended four times on the State's own listing.

This is the impediment least discussed and most likely to decide the question in practice. A right that exists only through a registration counter is worth what the counter is worth.

6. The new offences

Part 3 creates three offences punishable with imprisonment for failing to register a private relationship, and requires the Registrar to send the statement to the police, and to inform the parents of a partner under twenty-one. Section 388 gives a deserted live-in partner a right to maintenance, which is a real enlargement of her position, and section 379 makes the child of such a relationship legitimate, which is a larger one.

The criticism, stated fairly, is that a code justified by equality and by the rights of women also creates criminal liability for adults who have committed no wrong to anybody, and routes a private arrangement through a police station. The answer, stated fairly, is that registration is what makes section 388's maintenance and section 379's legitimacy enforceable at all, since neither can be claimed without proof that the relationship existed.

An examination answer that gives both halves of that is a better answer than one that gives either.

7. Instability

The Code was brought into force in January 2025 and has been amended by an Ordinance of 25 July 2025, a further Ordinance of 27 January 2026 and an Amendment Act notified on 7 April 2026. A law of personal status that changes three times in two years is a difficulty of its own, and it is a reason to state, in any answer, the date of the text being described.

The optional code

MU prints this as topic 4.5.4, and it is not a modern compromise invented to get round the difficulty. It is what Ambedkar himself offered in the Constituent Assembly on 23 November 1948, and it already exists in Indian law in two forms.

What Ambedkar said

Answering the two provisos moved to protect personal law, he said the members had read too much into Draft Article 35, which proposes only that the State shall endeavour to secure a civil code and does not say that the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible, he said, that the future Parliament may make a provision, by way of making a beginning, that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. He added that the method was not novel: the Shariat Act of 1937, outside the North-West Frontier Province, worked by exactly such a declaration.

The Uttarakhand committee's own published material puts the same idea at the front of its case, quoting Asaf A. A. Fyzee's "permissive legislation which will gradually bring all communities under one uniform law".

It already exists: the Special Marriage Act 1954

This is the point most answers miss, and it is the strongest one available. India has had an optional uniform civil code since 1954, and it is on this syllabus at topic 1.6.

Any two persons may marry under it, whatever their religions, on conditions that are the same for everybody, taken in [The Special Marriage Act: Scheme and Conditions]. Its grounds of divorce, its provisions for nullity, judicial separation, maintenance and custody are common to all. And succession to the property of a person married under it is governed by the Indian Succession Act 1925, not by his personal law, so the choice of the secular code carries through to death.

Nobody is compelled to use it and everybody may. That is precisely the "purely voluntary" beginning Ambedkar described, enacted four years after the Constitution.

Why an optional code is a real answer, and where it falls short

The case for it. It removes the objection about compulsion entirely, because no person is made to give up a personal law he wants. It lets the code prove itself, since a code people choose is a code that works. It is the method that has actually been used in India, in 1937 and in 1954. And it is what the Constitution's own words support, "shall endeavour" being a direction to move rather than to impose.

The case against it. An option is only as good as the freedom to exercise it, and the person most in need of the code, usually a woman, is often the person least able to insist on it. It leaves the inequality intact for everybody who does not opt in, which is nearly everybody. It can entrench difference rather than reduce it, since a community may come to treat opting in as a defection. And Article 44 asks for a code for the citizens, which is not obviously satisfied by a code for volunteers.

And Uttarakhand shows the third possibility, which is neither the optional route nor the total one: a code that is compulsory in its subject-matter but partial in its reach, applying to everybody in one State except those whose customary rights the Constitution protects.

How to answer the question

A clean structure for either the essay or the short note.

Say what Article 44 is, a Directive Principle, unenforceable by Article 37 but a duty of the State in making laws.

Say what the impediments are, and give the seven above with a sentence each: religious freedom, federal structure and Article 254(2), the exemption of Scheduled Tribes, custom saved inside the code, the administrative weight, the new offences, and the instability of a much-amended law.

Prove them from Uttarakhand rather than asserting them, because the Code exists, is in force since 27 January 2025, and answers several of the objections in its own text: section 5 keeps the ceremonies, section 4 unifies the conditions, section 2 exempts Scheduled Tribes.

Then give the optional code, in Ambedkar's own words, and point out that the Special Marriage Act 1954 has been exactly that for seventy years.

And conclude on the evidence rather than the slogan. Jose Paulo Coutinho records that Goa has had a uniform civil code all along and that the Court called it a shining example; Uttarakhand has now enacted a second one; and the Special Marriage Act has offered a third, optional, route since 1954. The question is no longer whether a uniform civil code is possible in India. It is which of these three routes the rest of the country takes, and what it does about the people every one of them has so far left outside.

A worked example

An examiner sets: "What are the impediments to a uniform civil code? Is an optional code the answer?" The material in this chapter is arranged for exactly that.

Impediment one, religious freedom. State it and then answer it from Uttarakhand: section 5 of that Code keeps every community's ceremonies by name, Saptapadi, Ashirvad, Nikah, Holy Union, Anand Karaj, and section 4 unifies only the conditions. The objection cannot be that anybody is stopped from marrying by his own rite; it has to be the narrower claim that a particular rule, such as permission of more than one wife, is itself religion.

Impediment two, the federal structure. Entry 5 of List III puts marriage, divorce, minors, adoption, wills, intestacy, succession and joint family in the Concurrent List, so a State may legislate; but by Article 254(2) a State law repugnant to a Central Act prevails only if reserved for and given the President's assent, and only in that State. The Uttarakhand Act was assented to by the President on 11 March 2024 for that reason. And that is itself the impediment: Article 44 asks for a code throughout the territory of India, and a State code makes a Hindu in Dehradun and a Hindu in Mumbai differently governed.

Impediment three, and the strongest. Section 2 of the Uttarakhand Code exempts members of Scheduled Tribes and persons whose customary rights are protected under Part XXI. A State that set out to enact a uniform civil code exempted a class of its own citizens in its second section.

Impediment four, custom. Section 4(iv) allows marriage within the prohibited degrees where custom permits, subject to public policy and morality, and section 380(1) carries the exception into live-in relationships.

Impediments five to seven. The administrative weight of two registration systems; the new offences in Part 3, punishing failure to register a private relationship with three or six months; and instability, the Code having been amended by Ordinances of 25 July 2025 and 27 January 2026 and an Amendment Act of 7 April 2026.

Then the optional code. Ambedkar's own answer in 1948: a Code applying only to those who make a declaration that they are prepared to be bound by it, on the model of the Shariat Act 1937. And the point most answers miss: the Special Marriage Act 1954 has been exactly that for seventy years, since any two persons may marry under it whatever their religions, and succession to a person married under it is governed by the Indian Succession Act 1925.

Close on the evidence. Goa has had one all along; Uttarakhand has now enacted a second; the Special Marriage Act offers a third, optional, route. The question is which route the rest of the country takes, and what it does about the people every one of them has so far left outside.

What it does NOT mean

A State code is not what Article 44 asks for. The Article says throughout the territory of India; a State code is a step towards that and, in the short run, a fragmentation.

Presidential assent is not a formality. It is what Article 254(2) requires before a State law on a Concurrent subject can prevail over an earlier Central Act, and then only in that State.

The Uttarakhand Code does not abolish religious ceremonies. Section 5 preserves them by name and section 4 unifies the conditions.

It is not uniform. Section 2 exempts Scheduled Tribes and persons whose customary rights are protected under Part XXI, and section 390(1) is expressly "subject to the provisions of section 2".

It does not abolish custom either. Section 4(iv) and section 380(1) both save a custom permitting a relationship within the prohibited degrees, subject to public policy and morality.

Part 3 does not make a live-in relationship unlawful. It makes failure to submit the statement an offence, and it gives the deserted partner maintenance under section 388 and the child legitimacy under section 379.

The optional code is not a modern compromise. It is what Ambedkar offered in the Constituent Assembly on 23 November 1948.

The Special Marriage Act is not merely a registration statute. It carries its own conditions, grounds of divorce, and succession under the Indian Succession Act 1925, which is what makes it an optional civil code.

Quick revision

• The impediments: religious freedom under Articles 25 and 26; the federal structure, Entry 5 of List III with Article 254(2); the survival of custom inside any workable code; the exemption of communities whose customary rights the Constitution protects; the administrative weight of a registration system; the creation of new offences; and the instability of a much-amended law.
• The Uttarakhand Code: Act 03 of 2024, assented by the President 11 March 2024, gazetted 12 March 2024, in force 27 January 2025, 391 sections in four parts: Preliminary (1 to 3), Marriage and Divorce (4 to 48), Succession (49 to 377), Live-in Relationship (378 to 389), Miscellaneous (390 and 391).
• s.2: nothing in the Code applies to Scheduled Tribes or to persons whose customary rights are protected under Part XXI.
• s.4: monogamy for all; capacity of mind; twenty-one and eighteen; prohibited degrees subject to custom; not prohibited by any law. s.5: ceremonies preserved, Saptapadi, Ashirvad, Nikah, Holy Union, Anand Karaj.
• Part 3: the statement of a live-in relationship is obligatory; the child of one is legitimate; registration refused where the partners are within prohibited degrees, one is married or already in a live-in relationship, one is a minor, or consent was obtained by force or fraud; statements go to the police, and to the parents where a partner is under twenty-one; offences carry three or six months and fines of ten or twenty-five thousand rupees; a deserted woman may claim maintenance.
• s.390: inconsistent law, practice, custom or usage in the State ceases to have effect, subject to section 2; the Uttarakhand Compulsory Registration of Marriage Act 2010 is repealed.
• The optional code: Ambedkar, 23 November 1948, a Code binding only those who declare themselves bound, on the model of the Shariat Act 1937; and the Special Marriage Act 1954, which has been exactly that since 1954.

Test yourself

1. What are the principal impediments to a uniform civil code? The freedom of religion under Articles 25 and 26; the federal structure, since personal law is in the Concurrent List so a State code needs the President's assent under Article 254(2) and binds one State only; the survival of custom inside any workable code; the exemption of communities whose customary rights the Constitution protects; the administrative weight of a registration system; the creation of new offences; and the instability of a law amended repeatedly.

2. How does the Uniform Civil Code, Uttarakhand, 2024 answer the objection about religious freedom? Section 5 preserves the religious beliefs, practices, customary rites and ceremonies of every community, naming Saptapadi, Ashirvad, Nikah, Holy Union and Anand Karaj, and section 4 unifies only the legal conditions of marriage. The rites stay; the conditions and consequences are unified.

3. Which class of persons does that Code exempt, and why does it matter? Section 2 exempts members of any Scheduled Tribe within the meaning of Article 366(25) read with Article 342, and persons and groups whose customary rights are protected under Part XXI of the Constitution. It matters because a State that set out to enact a uniform civil code exempted a class of its own citizens in its second section, so even the one such code enacted since 1950 is not uniform.

4. What is meant by an optional uniform civil code, and does one already exist? A code that binds only those who declare that they are prepared to be bound by it. Ambedkar suggested it in the Constituent Assembly on 23 November 1948, on the model of the Shariat Act 1937. One already exists: the Special Marriage Act 1954, under which any two persons may marry whatever their religions, on conditions common to all, and succession to a person married under it is governed by the Indian Succession Act 1925.