For whom is Uttarakhand’s new live-in relationship law?

The new Uttarakhand live-in law takes up a real problem but instead of addressing it, creates a few more problems, argues Farhan Zia. 

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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.

Also read: Queer the courts

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:

1. Hold themselves out to society as being akin to spouses.
2. Be of legal age to marry.
3. Be otherwise qualified to enter into a legal marriage, including being unmarried.
4. 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.

Also read: Marriage equality judgment: An explainer

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. 

Also read: Transgender Act recognises some form of trans marriage: Petitioners on Day 5 of same sex marriage hearings

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.

Also read: Post Supriyo's no fundamental right to marriage, could Madras HC's familial association Order pave the way for recognising civil unions?

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.

Also read: Live-in Relationships and the Judiciary

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 a twenty-one-year-old can marry an eighteen-year-old 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.