The Uniform Civil Code (UCC) of Uttarakhand, 2024, tabled in the state legislature, is the most recent example of an attempt to give legislative form to the Directive Principles of State Policy enshrined in Article 44 of the Constitution. It is debatable how state-wise UCCs contribute to the “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
The debates on UCC have been complex, particularly with regard to considerations of modifications in the personal laws around marriage, divorce, inheritance and succession where the discussions have been mired in apprehensions of majoritarian politics. Among other things, the proposed legislation is a pioneering attempt at regulating “live-in relationships”. The Uttarakhand UCC, for both marriage and live-in relationships, does accommodate “customs or usage” that govern some people. However, it adds a far-reaching caveat that they should not be “against public policy and morality”. The public policy framework that it lays down, holds alarming cues regarding violations of fundamental rights when “morality” is sought to be defined by governments.
That there are openings in the law to think of coupledom beyond the institution of marriage, is a welcome interpretation. Yet, it falls short of what a rights-based approach on several counts. Notwithstanding the use of “partners” with regard to such relationships, it clearly defines them as those between a man and a woman, foreclosing an opportunity for inclusiveness irrespective of sexual orientation.
Coming on the heels of the Supreme Court verdict in Supriyo vs Union of India that decided against marriage equality, it is not a surprising legal stance. It is noteworthy that one of the contentions in that case was the separation of powers between the judiciary and the legislature, with assertions from the latter to have the opportunity to legislate. The Uttarakhand UCC is an instance that attests to the apprehensions of the petitioners that legislatures are often non-responsive to claims by those who are deemed a “miniscule minority”.
Another aspect of the definition in the case of live-in relationships is to view them as “relationships in the nature of marriage”. There is ample invocation of this category of relationships in case law with regard to bigamy, desertion, maintenance as well as domestic violence in India. In S Khushboo vs Kanniammal (2010) and the Navtej Johar (2018) cases, the Supreme Court also upheld that consensual sexual relationships between adults are not an offence, even when the Bharatiya Nyaya Sanhita (2023) in section 84 retains the exception of adultery. The Protection of Women from Domestic Violence Act, 2005 includes “relationships in the nature of marriage” at par with those by consanguinity, marriage and being members of a joint family. This has been hailed as an instance of recognising the diverse ways in which intimate relationships are “lived”. It allows redressal routes for women in cases of violence even when there is no accordance of legalised status to such relationships. The Uttarakhand UCC would change that.
It presents an opening of some kind of institutionalisation via the registration of live-in relationships. It does not clarify the legal status of partners for each other as next-of-kin, or modalities of acquisition of joint property, inheritance, and so on. However, it includes laudable provisions for maintenance for women upon desertion by a partner and the upholding of the legitimate status of children born into such relationships. It notes that children may also be born to such couples via surrogacy and assisted reproductive technologies, even when the laws regulating these modes of reproduction seek to limit access to primarily heterosexual married couples. It remains to be seen if the Uttarakhand UCC can open doors for some revisions on this count notwithstanding the Supreme Court’s recent adjudication about people who “cannot have it all” by opting out of marriages.
Globally, alternatives to marriage have been legislated variously as “civil unions”, arguably as a means of recognising same-sex relationships, even when such civil unions have been opted for by heterosexual couples. The chief guest of the recently concluded celebrations of the Republic Day came from one such jurisdiction. France has the provision for Pacte Civil de Solidarité (PACS) which is essentially a contract between two people to “organise their life” together, that the state then recognises. In contrast, the Uttarakhand UCC seems to make the state a stakeholder in the relationship by entrusting registrars with the task of “conducting summary inquiry” and “verifications” with the assistance of local police on the veracity of the “statements” that those in a live-in relationship are required to submit. The content of these “statements” does not include any delineation of commitments towards each other by the partners, but merely an intimation to the state, supplied jointly. To that effect, it is not far-fetched to see this as a surveillance tool and not a mode of legalising such relationships.
The powers given to the registrar and police are not just limited to acceptance or denial of registration of the statements, but extend to recommendation of police action. There are provisions for punishment for violations and lapses to the order of three to six months’ imprisonment and fines between Rs 10,000 to Rs 25,000. The registrar and the police are empowered to act on their “own motion or receipt of a complaint or information”. In a particularly worrisome provision, they are also required to inform parents/guardians of those who are below 21 years of age. What is the rationale for such a requirement in the case of adults, especially when there is no apparent conflict with the age of marriage, given these are live-in relationships? These provisions open the floodgates to moral policing and severe intrusions on the privacy of citizens, especially for inter-faith and inter-caste couples.
In a socio-cultural context where practices of caste and religious heterosexual endogamy are the norm, citizens of a secular democracy who choose to be in non-normative relationships, deserve non-discrimination, recognition and protections and, at the very least, no threat of criminalisation and persecution at the hands of vigilantes.
The writer is assistant professor, Department of Political Science, School of Social Sciences, University of Hyderabad. Views are personal
