COMMON LAW IN INDIA
For Whom is Uttarakhand’s New Live-in Relationship Law?
When one finishes reading the three hundred and seventy-seven Sections of the Uttarakhand Uniform Civil Code Bill, inspired by the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956, one encounters a curiously novel part in the history of Indian legislation
Titled Part 3, it is a chapter of extensive legislation diligently devoted to the regulation of live-in relationships.
Such a new and modern addition that gives legal recognition to what was hitherto— in both Indian society and law— a taboo, naturally generates much excitement.
Several lawyers and experts’ comments and explanations can be found here and here. But a slight probing into its provisions and the settled law together invites the question: who is this proposed law for? What does it achieve, whether it helps, and how might it work?
The Bill is unclear which women it wants to help
It is common for women to get exploited in live-in relationships, physically, financially and emotionally. Clause 3(4)(b) defines live-in relationships as a “relationship in the nature of marriage” in a “shared household”.
The former phrase is left undefined, prompting us to search for clues to its meanings where it currently resides: the Protection of Women from Domestic Violence Act, 2005.
This Act includes a woman in a relationship in the nature of marriage to expand the ambit of women who could be protected. But determining who is included has been a matter of dispute. The Supreme Court has held that live-in relationships may be a part of such relationships based on certain criteria. These are namely that, along with residing in a shared household, they must:
- Hold themselves out to society as being akin to spouses.
- Be of legal age to marry.
- Be otherwise qualified to enter into a legal marriage, including being unmarried.
- Have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
This interpretation left many women in potentially abusive relationships unprotected. Firstly, it has been pointed out that the Supreme Court’s interpretation was too narrow, since the court had already, in previous judgments, declared that a woman and man cohabiting for a prolonged time could be presumed to be married to each other for the purposes of maintenance.
The Supreme Court further explicitly also excludes from the “nature of marriage” cohabitees, or “keep” as it calls them, along with stating that not all live-in relationships would be in the nature of marriage.
The Supreme Court’s interpretation inclines towards testing whether a relationship resembles marriage, rather than towards whether a relationship has the potential for abuse.
The Domestic Violence Act did not merely use the recommendation of the Malimath Committee reports to extend the definition of the term “wife” to include women in a relationship with an already married man.
It explicitly added the phrase “nature of marriage”. Some have argued that the concern of the committee was not live-in relationships but women in bigamous marriages who needed protection since such women were exploited by men. Regardless, many abusive relationships would be excluded from the Supreme Court’s interpretation.
One could say then that perhaps Part 3 of the Bill addresses precisely this: it puts beyond doubt that women who are in relationships of significant time and commitment, but not closely resembling marriage, would receive the benefits of the law.
This could include cohabitees as well as those relationships in which women have the potential to be exploited, irrespective of whether they resemble a marriage. But this becomes harder to support because of the changes and, in turn, contradiction, that the text of the Bill introduces in the definition of “nature of marriage”.
Confusion about the meaning of live-in
First, there is a significant conflation in the Bill between: 1) The law on the nature of marriage, 2) The definition of a live-in relationship, 3) What live-in relationships mean to society.
The nature of marriage is a condition on what a live-in relationship is, which includes significant time (Condition 4 above). But Clause 387 also demands that live-in relationships be registered within a month.
Which is it then, one month or significant time? Even if it is the former, it is difficult to achieve a relationship that appears akin to spouses (Condition 1 above) to society in just one month.
The definition is contemplating marriage while Clause 387 seems to want to keep things casual. It sounds almost like the two provisions of the Bill need to talk to each other about their relationship.
Second, the definition can become unworkable. If we measure two people being akin to spouses based on how they feel about their relationship, it complicates things further.
A couple can cohabit indefinitely if they do not feel like they are spouses. The criminalisation of unregistered live-in relationships beyond a month would then become impossible. Even if at some point in their relationship, the couple decides that theirs is a relationship ‘akin to marriage’’, it would be difficult for a court of law to determine from when this date begins to count the one-month registering period.
The law appears to be confused about who it wants to help. If it wants to help women, then women in which kind of relationship? Bigamous? Cohabitees? Adulterers? Situationships? A lack of a clear definition of ‘nature of relationship’ already causes problems, such as judges inventing new criteria to bar even women in bigamous marriages from being included.
The new law exacerbates these problems. It leaves a key phrase undefined but also inserts contradictions with the legally putative meaning of the phrase. It wants to enable women to claim maintenance from live-in relationships, yet defines them in such a way that it becomes at best discretional and at worst unworkable.
It is difficult to then say how Part 3 will end up helping women, either more than the current law or at all. It is perfectly acceptable for a piece of legislation to codify case law.
But in introducing new provisions, the legislation scatters the existing law, making implementation difficult and increasing the scope for discretion in an area already marred by judicial discretion.
In its objective to “regulate live-in relationships” to ensure support for women from desertion through maintenance, it creates overbroad provisions, creating sufficient possibility for harassment.
The queerest anti-queer legislation
Last year, a five-judge Bench of the Supreme Court in Supriyo verus Union of India decided that queer couples are not entitled to a right to marry. The principal reason being that marriage being a religious institution was outside of the court’s powers to interfere with.
The possibility of a civil union or a common law marriage for queers was also discarded by the majority for being a policy decision, by the Parliament or Executive, not in the hands of the court. Curiously, religion was not the reason here.
Queer people could have been a prime beneficiary of this Bill. Previously, the Uttarakhand High Court had ordered police protection to a gay couple. A registered live-in relationship with a degree of intrusion and recognition of the State would make it akin to a civil union. The putative definition of “nature of marriage” draws from the definition of common law marriage anyway.
But the Bill defines live-in relationships between two people: a man and a woman. Polyamorous, lesbian, gay, non-binary, transgender and, in many cases, bisexual relationships are excluded from the benefits of the law.
Binary trans-men and trans-women potentially might be included, given the recent Supreme Court ruling declaring that all personal laws shall include them within the definitions of “man” and “woman” in Supriyo.
Given the significant intrusion of the State into personal relations, most queer persons might be happy from being excluded.
But the interesting dynamic that comes out is the same one that hung over the proceedings of Supriyo: desiring something that is undesirable, but significant to be treated as an equally dignified member of society.
In sparing queer people the intrusion of the State, a legislature might have finally succeeded in creating the first-ever law that discriminates against straight people. But any celebration would be tinged with the undercurrents that the State continues to ignore the queer people, despite the significant statements of all judges in Supriyo.
The point here is that queer people are a prime group who could benefit from the legal recognition of live-in relationships. By excluding them, Part 3 fails further in justifying its existence.
Conclusion
One might say that the law merely seeks to morally police young partners. Given the recent revival of criminalisation of adultery in the new Bhartiya Nyaya Sanhita, despite the Supreme Court striking down its verbatim predecessor as unconstitutional, it would not be the first time the State is trying to expand its control over the moral actions of its residents.
The Bill applies to non-residents of Uttarakhand, criminally punishes non-submission of live-in statements within a month, specifically includes rented accommodation within “shared households” and sends notice of partners below the age of 21 to their parents, showing a great expansion in the State’s control over a moral matter.
The latter, after all, does create a situation where two eighteen-year-olds can marry without notice to their parents, but a twenty-year-old cannot legally enter a live-in relationship without their parents receiving intimation.
Such differentiation is hard to maintain under the right to equality jurisprudence, which requires that the differentiation has a reasonable link between the object of the legislation and the differentiation.
Recent happenings in Uttarakhand, such as women in live-in relationships being assaulted and killed, and queer petitioners turning hostile before the court shows that a legitimate purpose may be served by such legislation.
But the Bill as it stands fails to help those who need State support in live-in relationships by making it exclusionary and confounding.
The wise lawmakers in the Uttarakhand legislative assembly must remember that constitutional morality must motivate the State to ensure that Part 3 is not reduced to a mere instrument to enforce outdated morality.
Farhan Zia is a legal empowerment facilitator at the Centre for Social Justice, Ahmedabad and holds a LL.M. in comparative constitutional law from the Central European University. They enjoy shopping for clothes, learning languages and indulging in European history, anime and comic books.
Uttarakhand: Women's Groups Reject Uniform Civil Code Bill, Call for Further Deliberations
New Delhi: In a bold stance against the proposed Uniform Civil Code (UCC) Bill presented at the Uttarakhand Legislative Assembly, women's groups and representatives in Uttarakhand have unequivocally rejected the draft. The bill, aimed at introducing uniform civil laws across religious communities, has drawn sharp criticism for its perceived infringements on constitutional rights and its failure to address gender inequalities effectively.
According to the collective response from Uttarakhand's women's groups, the bill, as it stands, "criminalises and regulates constitutionally acceptable behaviours" and introduces elements of moral policing. The representatives highlight concerns about autonomy and choice, particularly regarding adult consenting cohabitation, commonly referred to as "live-in relationships". They assert that the bill's provisions would erode the hard-won rights of women and undermine their struggles for equality within both domestic and public spheres.
Critics point out that while the bill claims to offer uniformity across religious lines, it disproportionately targets the Muslim minority community, criminalising aspects of their personal and marital practices without adequately incorporating positive and progressive elements from Muslim family law. The bill's focus on rectifying perceived defects in Muslim law while ignoring similar issues within Hindu family laws has raised concerns about bias and selective application.
“Majorly, it seeks to introduce changes in the provisions that are perceived as defective in the Muslim law, such as unequal inheritance, polygamy and the practice of halala ( by which a person can only remarry his divorced spouse after she has married someone else, consummated the marriage and thereafter obtained a divorce). In one sense the Bill has terminated the application of Muslim family law and has further criminalised the Muslim man and woman. Ironically, the Bill has not incorporated positive and progressive aspects of Muslim law such as the compulsory payment of mehr by the husband to the wife which provides financial security of the wife, nikahnama (marriage contract) which allows for the spouses to add legally binding conditions that are mutually acceptable, and a 1/3 limit rule for willing away property. Had the intention of the Bill genuinely been to bring about gender justice, such provisions could have been extended to women of all communities,” an excerpt from the statement reads.
Furthermore, the bill's silence on critical issues such as custody, guardianship, and adoption of children, as well as the rights of queer and transgender persons within families, has been deemed unacceptable by the women's groups. They argue that the bill's failure to address these issues reflects a lack of inclusivity and consideration for marginalised communities.
Of particular concern is the retention of archaic provisions, such as the restitution of conjugal rights, which has been challenged for its constitutional validity. Critics argue that such provisions perpetuate gender-based violence and undermine fundamental rights, including the right to live with dignity and freedom of choice.
The groups also maintain that this law denies or takes away fundamental rights. Even the existing provision of women's right to reside in their matrimonial homes has been taken away. “Thus rights to equality, right to live and livelihood and to live with dignity, right to freedom of speech and expression, freedom of conscience and right to freely profess, practice and propagate religion, have become casualties under this Bill,” the statement reads.
In light of these concerns, the women's groups call for the bill to be referred to a Standing or Select Committee for further deliberations. They emphasise the importance of incorporating diverse perspectives, including those of women, queer, and transgender communities, in shaping legislation that will have far-reaching implications for the people of Uttarakhand and beyond.
“In this form, this Bill should be referred to a Standing or a Select Committee for wider deliberations, as the Bill, which has much import for the people of Uttarakhand and also for the rest of India as a precedent setter, needs to be discussed and people’s, including diverse women’s, queer and trans communities’ responses from Uttarakhand need to be taken into account,” it concluded.
A New Bill in India Will Govern Unwed Couples Who Live Together
Thu, February 8, 2024
A couple seated, talking, on the sea wall overlooking Back Bay with the Malabar Hills suburb in the distance, in Mumbai, Maharashtra, India.
Drafted as the “Uniform Civil Code Bill” (UCC), the law was passed by the ruling Bharatiya Janata Party (BJP) on Wednesday, Feb. 7. It replaces a diverse set of religious and customary laws in place since India's independence in 1947 that applied to individuals based on their religious beliefs.
The final draft of the bill was approved on Sunday, Feb. 4, after which the bill sailed through the assembly and was sent to the President for ratification.
The State's Chief Minister Pushkar Singh Dhami said the new law is about “equality, uniformity, and equal rights.” Referring to Article 44 of the Indian Constitution, which outlines the Indian government’s right to create new personal laws in the future, he added that the bill is especially aimed at creating equality for women. “The UCC will mainly remove the discrimination against women," he said.
Read more: The Controversy Over Some Hindu Nationalists’ Push to Rename India
With the bill’s passage near-complete, the stage is now set for other BJP-ruled states to pass similar legislation ahead of the next general election, which will likely see current Prime Minister Narendra Modi win a third term in office.
A long-held Bharatiya Janata Party promise
The passing of the new bill is widely regarded as the BJP fulfilling a major promise it made to constituents in its 2022 election manifesto as part of a longstanding campaign that dates back to the 1980s. Last June, Modi once again emphasized the need to implement it to BJP party workers.
The implementation of a Uniform Civil Code has featured heavily in the BJP’s election manifestos over the years, whose conservative Hindu-nationalist ideals stand in stark contrast to the secularist ideals propelled by the Indian National Congress during India’s independence. The BJP saw it as an attempt to appease India’s Muslims, who form India’s largest minority group with nearly 200 million people.
Critics accuse the Uttarakhand government of using the new law to target Muslims who follow customary rules on polygamy and divorce under Sharia law, which is now completely banned. “We cannot accept any law that is against Sharia because a Muslim can compromise with everything, but he or she can never compromise on Sharia and religion," stated a leading Muslim body, Jamiat Ulema-e-Hind, while opposing the new law.
The new law has also raised eyebrows for imposing on personal relationships conducted in the private sphere. Notably, it instructs unwed couples living together to register their relationship with the government and submit “a statement of live-in relationship” within one month from the “date of entering into the relationship.” If the couple fails to do so, they could face up to three months in jail.
This stipulation has especially drawn sharp criticism from many Indians on social media platforms. Some question an apparent lack of clarity around how the state plans to regulate and enforce courtship and breakups.
“The State is now inside your bedrooms, requiring you to ‘register’ who you love, where you love, when you started loving, when the love ended. This is moral policing given state sanction,” posted an India-based journalist on X (formerly Twitter).
Write to Astha Rajvanshi at astha.rajvanshi@time.com.
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