Come February 14, Valentine’s Day, Hindu vigilante groups like the Bajrang Dal in North India and Sri Rama Sene in Karnataka, go about vandalising shops selling Valentine gifts. The idea is to rid India of ‘Western’ ideas like romantic love before marriage.
But since the advent of Hindutva in 2014, ‘moral’ policing has expanded to cover interfaith relationships, especially Hindu-Muslim relationships which are dubbed as “Love Jihad”. In fact, all expressions of inter-communal harmony even in an advertisement of a commercial product are taboo. Local authorities routinely ban them for the sake of law and order.
The latest in the expanding list of politically motivated taboos is the Uniform Civil Code (UCC) enacted in Uttarakhand. It puts fetters on live-in relationships to the extent of criminalising them.
The UCC defines living-in as a “relationship between a man and a woman who cohabit in a shared household through a relationship in the nature of marriage.” It aims to regulate live-in relationships by imposing an obligation to register them.
Section 378 makes it mandatory for partners in a live-in relationship in Uttarakhand State (irrespective of whether they are permanent residents of Uttarakhand or not) to submit a “statement about a live-in relationship” to the Registrar within whose jurisdiction they are residing. And if such a relationship is to be terminated, the Registrar has to be informed.
The statement declaring a live-in relationship will then be forwarded to the officer-in-charge of the local police station. In case either of the partners is less than 21 years of age, a copy of the declaration will also be sent to their parents or guardians. The latter condition clearly goes against the principle that a person becomes an adult at the age of 18 and is allowed to make decisions on his or her own accord at 18.
The Registrar will then conduct a “summary inquiry” to ensure that the relationship does not fall under any of the prohibited categories mentioned under Section 380.
The prohibited categories include a partner who is married or is in another relationship, a minor, and his or her consent was obtained by “coercion, fraud or misrepresentation”. In such cases, the live-in relationship will be illegal and punishable with imprisonment.
A “summary inquiry” is a civil or criminal proceeding in the nature of a trial that is conducted without formalities for the speedy and peremptory disposition of a matter. There is no provision for appeal against the conclusions of a summary inquiry.
The Uttarakhand UCC says that such prohibitions will not apply to persons whose customary law permits a live-in relationship, provided that the relationship is “not against public policy or morality.” But the latter condition is not defined, and is open to arbitrary interpretation.
A woman in a live-in relationship is eligible to claim maintenance in case she is “deserted” by her live-in partner. However, a man who is deserted by the live-in woman partner gets no relief. This goes against gender equality.
In case couples who are in a live-in relationship do not submit their statement, they will be served a notice following which criminal prosecution can be initiated against them.
If they have spent a month without submitting such a statement, they can face a jail term of up to three months or a maximum fine of Rs. 10,000 or both. Any false statement by the couple will attract the same jail term, and a higher fine of Rs 25,000 or both.
Upon being issued a notice by the Registrar, if a partner still does not submit the statement of the live-in relationship, he or she may face six months of imprisonment or a fine of INR 25,000 or both.
Indian courts have given conflicting rulings on live-in relationships, though mostly in favour of live-in relationships.
In 2001 the Allahabad High Court recognised the concept of live-in relationship in “Payal Sharma Vs. Nari Niketan”, wherein the Bench consisting of Justice M. Katju and Justice R. B. Misra observed that a man and a woman, even without getting married, can live together if they wish to. It is not illegal
In 2010 the Supreme Court passed a landmark judgement in the case of "Khushboo Vs. Kanniammal" in which the court held that live-in relationships were not illegal or immoral, and that two consenting adults had the right to live together without getting married.
In the 2010 “Chellamma Vs. Tillamma” case, Supreme Court Justices Katju and Mishra stated that, in their opinion, a man and a woman, even without getting married, can live together if they wish to.
Again in 2010, a special three-judge Bench constituting the Chief Justice of India K. G. Balakrishnan and Justices Deepak Verma and B. S. Chauhan asked when two people want to live together, what is the offence ?
In the landmark case of “S. Khushboo Vs. Kanniammal”, the Supreme Court held in 2010 that live-in relationships are permissible and the act of two majors living together cannot be considered illegal or unlawful.
In March 2023, the Supreme Court dismissed a petition seeking a direction to the Central government to frame rules and guidelines to register live-in partnerships. Expressing strong disapproval of the relief sought, a bench led by the Chief Justice of India, D. Y. Chandrachud called it a “hare-brained idea”.
But in 2005, Parliament passed the Protection of Women from Domestic Violence Act, which provided legal protection to women who live with their partners in a relationship similar to marriage. The Act recognised the need to protect women who face domestic violence in live-in relationships and made provisions for them to seek legal remedies. There was no protection for a man subjected to domestic violence.
In 2015, the Supreme Court ruled in the case of “D. Velusamy Vs. D. Patchaiammal” that women in live-in relationships were entitled to maintenance from their partners after separation. But the wronged man was left without protection, violating gender equality.
Live-in relationships are not common in India, but an increasing number of urban, educated, and young couples favour it either as a prelude to marriage to test mutual compatibility or as an escape from the obligations that go with marriage.
The Constitution gives people the liberty to live lives as they want, unless they infringe the rights of others. And the Supreme Court has recognised privacy as a fundamental right. Furthermore, sex between consenting couples is not a crime.
Those who object to the Uttarakhand law say that it represents an intrusion by the State into the private lives of citizens, into the bedroom as it were. There is thus potential for moral policing, harassment and government surveillance of private lives.
This is particularly worrying for inter-caste and inter-faith couples, already targeted by Hindu vigilante groups and even the administration.
Many fear that the Uttarakhand law will encourage spying on couples and make landlords hesitant to rent to "unregistered" couples, the ‘BBC’ pointed out in one of its reports.
Nikita Sud, professor of the politics of development at the University of Oxford in an interview to ‘Al Jazeera’ pointed out that the intimate lives of Indians are already monitored by caste groups, families, parents, landlords and residents’ associations.
Those who oppose the Uttarakhand law also fear that it could be replicated by other State governments run by conservative parties like the Bharatiya Janata Party (BJP). Uttarakhand has a BJP government.
Union Law Minister Kiren Rijiju told Parliament that personal laws such as those covering marriage and divorce are under the Concurrent List of the Constitution, and therefore, States can legislate on them.
Many wonder why the Uttarakhand government thought it fit to include live-in relationships in the law on the Uniform Civil Code. Could its aim be to prevent inter-faith marriages?
Or is it to curb modern trends in society, which the BJP and its conservative backers are desperate to curb, to bring back an imagined glorious past? Is India being forced to go back to the past even as the government claims to serve the emerging “aspirational classes”.
According to retired Supreme Court judge Madan Lokur, the clauses on live-in relationships can be challenged in court for being a violation of existing laws, court rulings and the Constitution. But before anyone approaches the courts, many will have been arbitrarily sent to jail.