A guest contributor’s take on recently enacted legislation in Uttarakhand, India.
On 7 February, 2024, the State of Uttarakhand in India marked a historic moment by passing the country’s maiden Uniform Civil Code Bill (“UCC Bill”), aiming to standardise personal matters like marriage, adoption, divorce, and inheritance in the Uttarakhand state. Notably, the bill also includes provisions aimed at regulating live-in relationships by mandating their registration. However, this move has sparked widespread debate, contending that the flexibility and privacy that define live-in relationships are gone with the mandate of registration. Critics argue that the “state is now entering into the bedrooms,” clearly breaching their Right to Privacy. Moreover, in 2023, the Supreme Court dismissed a petition seeking mandatory registration of live-in relationships, stating that it was “hare-brained” and aimed at surveillance rather than security. While protecting individuals in cohabiting relationships is vital, the perceived intrusiveness of the bill’s provisions has generated considerable concern.
Navigating the challenges of UCC Bill Provisions
Part III of the bill addresses several significant controversies.
Concerns emerge from Section 387 of the UCC Bill, with its stringent requirement for registration within just one month of entering into a relationship. This contradicts the seminal ruling D Velusamy v D Patchaimal, where the Supreme Court observed that one of the criteria for a live in relationship to be legal was that the partners must have held themselves out to the world as being akin to spouses for a significant period of time. This short timeframe to register may potentially lead to rushed decisions with long-term consequences. Particularly concerning is the implication for maintenance rights, where individuals could be unfairly burdened with financial obligations after only a brief period of cohabitation, devoid of financial or familial ties.
The imposition of a three-year imprisonment term or fine for non-registration aligns the act with criminality. Criminalisation typically pertains to acts that significantly impact society, serve as a deterrent, and are carried out with malicious intent. Considering these factors, it is explicit that one of the camouflaged purpose of the bill was to deter the couples from entering into such relationships.
Moreover, in Section 381 of the UCC Bill, the registrar has been given arbitrary power to either accept or deny the registration. This raises concerns about personal bias influencing decisions because, till today, in Indian society, live-in relationships confront a great deal of opposition and criticism, which is mainly caused by deeply rooted religious and cultural conventions. Section 385 mandates registrar to notify parents if either partner is under 21, arguably violating adult autonomy. This provision conflicts with the recent judgement in Gurdeep Kaur v. State of Punjab, where the High Court observed that whether or not of marriageable age, every major individual has a right to live his or her life as he or she deems fit.
Provisions such as those discussed above require scrutiny in light of fundamental rights, as they risk encroaching upon personal autonomy and may be perceived as moral policing.
Right to Privacy and Mandatory Registration
Though not explicitly mentioned in the Indian constitution, the right to privacy has been recognised under Article 21 of the Constitution of India through KS Puttaswamy v. Union of India. Here, the Supreme Court observed that sharing personal information is only permitted if it is directly related to the public interest or necessary to safeguard a greater public interest, outweighing individual privacy rights. Further, in Shafin Jahan v Asokan, the Supreme Court affirmed the right to choose a partner is a fundamental aspect of privacy.
Mandatory registration could risk privacy by exposing sensitive details to potential misuse. The extent of required information may exceed what’s necessary, worsening privacy concerns. Therefore, it is crucial to understand that two consenting adults living together as a couple is not a matter of public interest and should be protected under the Right to Privacy.
The Way Forward
In countries like Sweden and Denmark, where cohabiting relationships are prevalent, existing legislation provides valuable models. For instance, Sweden’s Cohabitees Act regulates live-in relationships. One key aspect is that to be recognised as a cohabitee, partners must live together for a reasonable period of time, indicating that relationships must endure longer before cohabiting partners can be granted certain rights. Importantly, registration is optional; partners who choose to register receive rights similar to married couples, without facing criminal charges for non-registration. Additionally, alternative solutions like cohabitation agreements also provide a more privacy-sensitive approach.
Furthermore, recognising the vulnerability of couples in live-in relationships to issues like domestic violence and desertion is essential. Fortunately, India’s Domestic Violence Act, 2005 already includes such relationships, providing legal recourse for issues like domestic violence, maintenance, and inheritance. This current legal framework and a privacy-conscious registration approach can ensure a balanced solution that safeguards individual rights and couples’ well-being.
Lastly, registration should ideally be voluntary and initiated after a reasonable period, acknowledging that many couples opt for non-legal unions precisely to maintain privacy in their relationships.
Advika Singh Malik is a law student at Symbiosis Law School, Noida, in India and is a LWOB UCL guest contributor.
