'Against Right To Privacy, Tool To Harass': Experts on UCC Regulating Live-Ins

What are the key provisions? Is this an invasion to right to privacy? The Quint speaks to legal experts to decode.

In a first-of-its kind law in India, the Uttarakhand Uniform Civil Code (UCC) 2024, passed by the State Assembly on Wednesday, 7 February, seeks to regulate live-in relationships.

(Photo: Chetan Bhakuni/The Quint)

Want to move in with your partner? If you are a resident of Uttarakhand, you will now have to register your live-in relationship with the authorities, or you may face imprisonment of up to three months and a fine of Rs 10,000.

In a first-of-its kind law in India, the Uttarakhand Uniform Civil Code (UCC) 2024, passed by the State Assembly on Wednesday, 7 February, seeks to regulate live-in relationships.

The Code seeks to ensure the mandatory registration of live-in relationships, with a government-appointed registrar, within one month of entering into such relationships.

But this provision is facing criticism over certain aspects, which may impact individual freedom and right to privacy.

What are the provisions? Is this an invasion to right to privacy? Will this give "arbitrary powers" to the State? The Quint speaks to legal experts to decode this law.

What Does The Law Say?

The Code defines a "live-in relationship" as a one between a man and a woman – referred to as "partners" – cohabiting "in a shared household through a relationship in the nature of marriage."

Section 378 (1) requires the submission of a statement by partners engaged in such a relationship. This is applicable to both residents of Uttarakhand living in the state as well as elsewhere in India.

It also creates power for a registrar to issue certificates to couples, who must report the beginning and end of their relationships.

Section 380 of the Code prohibits the registration of live-in relationships where at least one of the partners is already married or is a minor. It also prohibits relations when the consent of one of the partners is obtained by "force, coercion or undue influence."

The Code recognises that a child born in a live-relationship is a "legitimate" child. In addition, it provides maintenance for women "deserted" by her partner.

It also prescribes a jail term of up to three months and a fine of Rs 10,000 for not registering the relationship within 30 days of entering into one. If partners fails to submit the statement of relationship after being sent a notice by the registrar, a six months imprisonment or a fine upto Rs 25,000 will be imposed.

'Totalitarian Attitude... Invasion of Right To Privacy'

Abha Singh, a woman's rights activist and lawyer told The Quint that these provisions were an "attack on the fundamental rights" of individuals.

"I call this a brazen attack on the basic fundamental rights of an adult who can and should take their own decisions with respect to their private lives... If I am an adult who wants to live with my partner, who is the State to intrude? I don't want to tell people who I live with. That is my right. This is such a totalitarian attitude."

Lawyer Abha Singh

The lawyers also argued that provisions are in contradiction to the landmark Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. judgment. In 2017, the Supreme Court said that "personal information which has no relationship to any public activity or interest" or which would cause "unwarranted invasion of the privacy of the individual" is exempted from disclosure – unless the authority is "satisfied that the larger public interest justifies its disclosure."

Muskan Tibrewala, a Delhi-based lawyer, said that in the definition of live-in relationships in the UCC, what constitutes "the nature of marriage" is "vague and unclear."

"This is violative of Article 14 (right to equality), Article 15 (discrimination), and Article 21 (right to privacy). When you get married, you enter into an institution which is both society- and state-regulated. You get a lot of privileges including maintenance, entitlements under divorce, insurance. But there is no rationale for the state to enter into my live-in relationship because I am not asking for any benefits or privileges. With this, the State is creating an idea of what is a legitimate live-in relationship is and what is not. That's problematic and gives the state arbitrary powers."

Muskan Tibrewala to The Quint

Meanwhile, Naveed Mehmood Ahmad, senior resident fellow at think-tank Vidhi Centre for Legal Policy, said that the provisions defeat the purpose of live-in relationships by formalising them like marriages.

"What is the objective of the law in regulating a live-in relationship? Couples do not wish to marry because it involves registration and other issues. These are personal relationships and choices, and people want to keep it that way. While live-in is not as rigid as the institution of marriage, state intervention would make it exactly that," Ahmad told The Quint.

Possible Rise in Moral Policing, Harassment: Experts

Lawyers told The Quint that the UCC may drive away cohabiting couples, encourage reporting on them, and make landlords hesitant to rent to "unregistered" couples.

The Code requires the registrar to conduct a "summary inquiry" by summoning the partners or "any other persons" for verification. Within 30 days, the registrar will either issue a certificate of relationship or refuse to register it.

Section 386 states that if partners do not register the relationship, then the registrar will send a notice to the couple, "either in his/her own motion," or "on receipt of a complaint or information in this regard."

Due to the absence of clear guidelines, experts said that this could mean that anyone could file a complaint against a couple, leading to a rise in moral policing and harassment.

"Anyone can file a complaint including an angry parent, cousin, or a friend. You will have nosey neighbours snooping into your house to see if you have registered your relationship. Right-wing groups like Bajrang Dal will be empowered. This will be more dangerous for inter-caste, interfaith couples, which is scary and will have a tragic impact."

Lawyer Abha Singh to The Quint

Experts also questioned the lack of clarity over "incorrect/suspicious information" based on which the registrar will notify the officer-in-charge of the local police station "for appropriate action."

"There is no clarity on what constitutes 'suspicious information'... it could even be a WhatsApp forward. How will they check if the information is correct or not?" asked Naveed.

Section 385 (1) states that if either of the applicants are found to be younger than 21, the registrar will inform their parents or guardians through local police.

Legal experts told The Quint that this against the Shafin Jahan vs Asokan K.M. & Ors 2018 judgement, where the SC held that an adult woman (18 years and above) could decide who she wanted to cohabit with and that her family members had no say in the matter.

"The UCC says that marriageable age for women is 18, but also says that if a woman between 18-20 wants to have a live-in relationship, then the registrar will inform her parents or guardians. That is contradictory."

Naveed Mehmood Ahmad

'Absurd, Unnecessary': Experts on Penalty Imposed

Another criticism is the concern over the "criminalisation" and "strict penalty" imposed for failing to register live-in relationships.

Calling it "absurd," Naveed said that when the state cannot come up with solutions, it ends up resorting to criminal law.

"Failure to comply with provisions should not lead to criminal punishment. It seems like the government cannot visualise a mechanism to ensure that people register. Criminal law is only availed when there is a threat to the safety of people or their property or to the state, Why is it being used for a civil issue?"

Naveed Mehmood Ahmad to The Quint

An official in the Uttarakhand government claimed to The Indian Express that "concerns over heinous crimes among live-in couples" was the key imperative behind this provision.

In response, lawyers The Quint spoke to said that while the concern is understandable, existing criminal laws already have prescribed punishment for the same.

"The Domestic Violence Act and other provisions of the Indian Penal Code (now Bharatiya Nyaya Sanhita) already extends to such relationships, so where is the need to once again add a separate punishment?" they asked.

In addition, the Domestic Violence Act, 2005, also provides for the protection, maintenance to a women in a live-in relationship, lawyers said.

In 2015, too, the Supreme Court of India held that a woman who has been in a live-in relationship "for a long time" should be entitled to maintenance from her partner after separation.

The UCC, therefore, is a "major setback to all the feminists who worked hard to get freedom for women," concluded Abha Singh.