Proportionality Test of the framework for Live-In Relationships Under Uttarakhand’s Uniform Civil Code

Introduction: THE Uttarakhand Civil Code Rules, 2025 (“The Rules”) came into effect on January 2, 2025, almost a year after the passing of the Uniform Civil Code, Uttarakhand, 2024 (“The Code”) which received the assent of the president on March 11, 2024. Recently, the UCC Portal was launched which inter alia allows the registration and termination of live-in relationships, marking the formal implementation of the code in the state.The provisions related to recognition and regularisation of live-in relationships between consenting adults in the Code and in the subsequent Rules framed under it, has garnered widespread debates and discourse.In India, live-in relationships, while not illegal, are considered to be taboo in society to the extent of being termed as “immoral”. For instance, in 2023, Rajya Sabha member and BJP leader Ajay Pratap Singh urged the government to make live-in relationships illegal on the grounds that, “Marriage and family ties are a cultural heritage in India. Our religious scriptures and customs do not grant recognition to live-ins”. Later that year, BJP’s Lok Sabha member from Haryana Dharambir Singh called for a ban on live-in relationships, terming them a “dangerous disease” and a “Western concept” which is destroying Indian Culture..The requirement of mandatory registration and criminal penalties for non-compliance under the UCC Uttarakhand poses serious implications for the right to privacy and personal autonomy of consenting adults..Judicial Perspectives and the legal framework regarding live-in relationship under the UCC, Uttarakhand:The Indian jurisprudence on live-in relationships has evolved through a long chain of decisions firmly establishing the right to choose a partner without interference from the State, family or society. It has consistently held that a relationship between two consenting adults does not amount to any offence even though it may be perceived as immoral (Lata Singh v. State of UP) and that consenting adults have a right to choose their partners and who they reside with. (Indra Sarma v. VKV Sarma) Part 3 of the Code in Section 381 lays down the “Procedure for Registration of Live-in Relationships. The provision requires that partners in a live-in relationship, or persons intending to enter into a live-in relationship, shall submit a statement of live-in relationship to the Registrar concerned, following which the concerned registrar shall conduct a summary inquiry, whereby he may summon the partners for additional information or evidence. After conducting the summary inquiry, the registrar may either register such a relationship and issue a registration certificate or refuse to register the relationship and state its reason for doing so in writing within 30 days. The UCC Rules further prescribe, inter alia, furnishing proof of previous relationships and a certificate “issued by an official of a religious leader/community head or official of a religious/community body concerned that the customs & usage governing the registrants permit marriage between them” for the registration of a live in relationship. The Code criminalizes the act of not submitting such a “statement of relationship” to the registrar within 30 days by imposing a term of imprisonment for three months or a fine not exceeding ten thousand rupees or both. Further, a person who fails to submit such a statement after receiving notice to do so under section 386, shall be punished with imprisonment of up to six months and a fine not exceeding twenty-five thousand. The requirement imposed by the Code and the Rules framed thereunder on consenting adults to compulsorily register, coupled with the requirement to furnish certificates about past relationships and notify the authorities poses serious implications for the Right to Privacy of the consenting adults and delegates excessive power to the hands of the registrar which may lead to manifest arbitrariness. In Shafin Jahan v Asokan K.M. and Ors. it was observed that the right of an individual to choose their partner, both within or outside marriage lies within the exclusive domain of the individual. The court therein went on to observe, “Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters… Social approval for intimate personal decisions is not the basis for recognising them.” In protecting consensual intimacies and the right to choose a partner, the principle of the Constitution, as held in Navtej Singh Johar vs Union of India, is that the “State has no business to intrude into these personal matters.” These decisions cast serious doubts on the constitutionality of the prerequisite imposed by the UCC Rules on the parties intending to enter into the live-in relationship to obtain a certificate from a religious leader to the effect that they are eligible to marry..What did the Constituent Assembly say on the Uniform Civil Code?.Applying the Proportionality test laid down in Puttaswamy on the provisions of the code:In Puttaswamy (9- judge bench), the court held that privacy includes at its core the preservation of personal intimacies and safeguards individual autonomy while recognizing the ability of the individual to control vital aspects of his or her life. More pertinently it held that “it is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity.” Thus evidently, there are considerable ramifications for the state when it attempts to regulate private acts of individuals, like choosing to reside in a live-in relationship. In the Puttaswamy (9-judge bench) case the Supreme Court upheld the fourfold proportionality test, to determine whether an infringement of the right to privacy is permissible:a. The measure restricting a right must have a legitimate goal (legitimate goal stage);b. The measure must be a suitable means for furthering the goal (suitability or rational connection stage); c. The measure must be least restrictive and equally effective (necessity stage); and d. The measure must not have a disproportionate impact on the right holder (balancing stage). Let us now examine how the provisions relating to live-in relationships fare in this test:The legitimate goal stage: The Statement of Object and Purpose of the Code states that it is a Code to “govern and regulate the laws relating to marriage and divorce, succession, live-in relationships, and matters related thereto.” Thus it is clear that the purpose of the provisions relating to live-in relationships under the Code is to regulate and govern such relationships and lay down the rights and liabilities arising out of them. That is, prima facie, a legitimate aim considering the rise in the number of people opting for live-in relationships, and as a result, the claims and disputes arising out of such relationships. .The proportionality test established in Puttaswamy highlights how the UCC’s live-in relationship framework may fail constitutional scrutiny, as it lacks the least restrictive means to achieve its stated objectives..Suitability or rational connection stage: The second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. At this stage, it is required to assess whether the means, if realised, would forward the goal of regulating live-in relationships. In this respect, firstly, the definition of a “live-in relationship” as provided by Section 3 of the Act, states that it is only a relationship between a man and woman, thus excluding from its purview, the relationships between non-heterosexual persons, transgender persons and other non-heteronormative relationships. Thus, while the act aims to regulate and govern relationships outside of marriage, it is failing in its objective by virtue of its definition not being inclusive. Secondly, one of the many reasons why individuals opt for live-in relationships in the long term is to avoid the legal, bureaucratic and other official obligations and liabilities that come with entering into a marriage. Thus, by imposing a regime of mandatory registrations, the line between a live-in relationship and a marriage is virtually erased. Further, by prescribing punitive action in cases of non-compliance, in effect, the Code instead of “regulating” such relationships is actually penalizing them, causing a chilling effect on the persons intending to enter such relationships. There is dissonance between the aims of the provisions and the methods adopted by the Act. Necessity stage: The next stage of the proportionality standard is the least restrictive means stage. At this stage, it is required to determine if the means adopted are the least restrictive means to give effect to the aims of the act. The provisions relating to live-in relationships aim to govern and regulate such relationships. Despite existing legislation such as the Protection of Women from Domestic Violence Act, 2006 and the jurisprudence relating to live-in relationships and the rights and liabilities of the parties engaged in it as developed by the judiciary, the need for formal and statutory recognition of such relationship can arguably be considered to be a reasonable one. However, firstly, the same can be achieved by less restrictive means such as the legislation providing official definitions, and enumerating statutory rights and liabilities of the parties involved, which do not take away the option for the persons in such relationships to maintain their privacy and autonomy and additionally providing for optional registration. To fulfil the objective, there is no necessity of mandating registration or a punitive regime in cases of non-compliance. Further the necessity behind the requirement of furnishing information about past relationships is unclear, and the same manifestly impinges on the privacy and autonomy of the individuals. Therefore, the provisions of the UCC Act, which relate to the registration of live-in relationships do not meet the test for being a necessity, due to the availability viable alternatives that are less restrictive. .By imposing bureaucratic hurdles such as obtaining a certificate from a religious leader, the Code risks making live-in relationships virtually impossible, especially for interfaith and marginalized couples..Balancing stage: This is a limb of the proportionality inquiry, where it is scrutinized whether there is a proper balance between achieving the state aim and limiting the citizens’ rights, and whether there is satisfaction of the condition that there is no disproportionate effect on the right holder. The UCC goes a step beyond requiring the granting of registration by a magistrate and goes on to criminalize the act of not obtaining registration within one month of entering into the live-in relationship. Criminalisation should be just fair and rational since it restricts the liberty and autonomy of individuals, and since personal liberty and freedom of choice are protected guarantees, people have a general right not to have it infringed by arbitrary criminalisation of human conduct. The provision manifestly violates the Right to Privacy of the citizens, and further has a disproportionate effect on the parties. The mandatory registration of live-in along with compulsory submission of a statement of termination of the relationship takes away the lack of systemic and bureaucratic involvement and the liberal opt-out mechanism that the persons intending to engage in such relationships desire to have. As a result of the Rules which came into effect recently, there is a requirement of furnishing a certificate from a religious leader of the parties stating that they are eligible to marry. This has a disproportionate effect on the parties since it makes such relationships a virtual impossibility. The religious leaders who will determine the eligibility of marriage will do so on the basis of religious scriptures of their respective religions which more often than not, explicitly proscribe inter-religious marriages. This includes also persons engaging in other relationships that are considered taboo and looked down upon by society, like inter-caste relationships. Further, often persons engaging in such dynamics, choose to keep their relationships private, and outside the purview of administrative and executive scrutiny, owing to a reasonable apprehension of institutional harassment, and infringement of autonomy. The regime of mandatory registrations takes away that right in its entirety, especially in view of the provision whereby the registrar has the discretion to inform the parents of the persons in such relationships, thus exposing them to further risks of harassment and intimidation by conservative and obstinate families. Thus, as demonstrated, the measure has a disproportionate effect on the right holder, especially in cases of persons from marginalized communities, who are more prone to institutional forms of oppression. Hence, the provisions of the UCC relating to live-in relationships fail the balancing stage of the proportionality test. Despite the existence of a legitimate state aim, the inability of the Code to provide a suitable means of achieving the objectives due to non-consideration of less-restrictive means and its utter failure to provide safeguards against the disproportionate impact on the right to privacy of individuals exposes the provisions relating to live-in relationships in the code to the risk of being struck down as unconstitutional.

Proportionality Test of the framework for Live-In Relationships Under Uttarakhand’s Uniform Civil Code

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