It is almost two decades now since The Protection of Women from Domestic Violence Act, 2005 recognised the idea of a ‘domestic relationship’, which might include ‘two persons who live, or have, at any point of time, lived together in a shared household; when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together in a joint family.’
There was no requirement of prior registration of each ‘domestic relationship’ either; the aggrieved party could make a claim of being or having been in such a relationship, and having suffered domestic abuse, and it was for the magistrate to judge the claim on merits.
The DV Act, as it has come to be known, was born out of an organic process where the need for such a law was first articulated by women’s groups, and the law was drafted in active consultation with such groups. From all accounts it did shift the dynamic of social power, making gender relations just a little bit more equitable by recognising the spectrum of violence in the household.
The Uniform Civil Code (UCC) of Uttarakhand, on the other hand, is born out of a desire to hegemonise. The reform that it promises is quite incidental.
Everything Wrong With Submitting a ‘Statement of Live-in Relationship’
People on the margins don’t necessarily yearn for uniformity as they do for substantive equality and justice. They might even like some agency and autonomy. These interventions – the Uniform Civil Code now, the banning of hijab at educational institutions earlier – do not allow for women’s agency. In fact, rather than rearranging gender dynamics by including women in the equation, in the manner that the DV Act did, these interventions manifest the state moving centre-stage, acquiring more power, apparently in its role as a protector of women, Muslim women, especially. But a regulatory and carceral state is not a substitute for actual redistribution of power to those on the margins. In the immediate aftermath of the Uniform Civil Code, Muslim women in Haldwani, Uttarakhand, have found themselves on the receiving end of police excesses and have also articulated their helplessness in the absence of any real redistribution of rights, or social and political power.
The DV Act created new cognitive spaces where women learned to identify everyday forms of abuse as violence. It further allowed women to recognise ‘relationships in the nature of marriage as also bearing rights’ and seek such rights, whenever they felt ready. The Uniform Civil Code of Uttarakhand commands that heterosexual couples have their ‘live-in relationship’ first recognised by the state. It substitutes state validation for people’s own lived experience, thus contracting earlier available cognitive and autonomous spaces.
The Uniform Civil Code demands a ‘statement of live-in relationship’: a jointly signed statement that a man and a woman are in a live-in relationship, or intend to enter into such a relationship, which then has to be ‘submitted to the Registrar in the prescribed manner for registration’. Purportedly the aim of such registration is to protect the woman in the relationship by creating for her rights, similar to those available in a formal marriage.
Still, what might happen if the boyfriend refuses to sign the joint statement on the grounds that he is still genuinely not sure if they are in a relationship yet? There is provision for the Registrar to demand such a statement of his own accord or on the basis of ‘complaints or information’ furnished to him. Thus, the experience and acknowledgment of being in a relationship is heavily mediated by third-party informants and by state-appointed Registrars. The state has a very discernible hold on rather personal decisions.
Further, on receipt of such a ‘joint statement of relationship’, to be furnished within ‘no more than one month of being in a relationship’, the Registrar will hold a ‘summary enquiry’ to verify the fact of a relationship. First of all, for reasons unbeknownst, the Registrar will inform the local police station where the couple resides, and then proceed to make an inquiry, to which he may call either party or even third parties to give evidence. The Registrar is also empowered to inform the parents if either party is less than 21 years of age, or to initiate criminal proceedings if he feels that the ‘joint statement of live-in relationship’ misrepresents facts, or is in any way ‘suspicious’.
Where a relationship is duly registered post the inquiry, the ‘register’, in some cases, is also open for public inspection. At other times, the Registrar has the power to refuse registration of relationships, while giving reasons in writing for the same. There is no clarity, however, on what happens to the experience of the two persons in the live-in relationship, or to its legal status in case of such refusal. Is it no more a relationship if the Registrar denies it?
Section 378 makes it clear that mandatory registration of live-in relationships applies not only to residents of the state but also to those visiting for extended periods; thus presumably, too, to Israeli or other foreign couples who take up residence in Uttarakhand for a month or more.
UCC is Unlikely to Result in Any Rearrangement of Social Power for Women
Groups that work with Muslim women have for years been trying to build consensus on making nikahnamas – Muslim marriage contracts – standardised, more equitable, and gender-affirmative even, so as to redistribute power within the family. The community-driven process was disrupted by the state-led, and single-minded focus on the scandalous but numerically insignificant practices of ‘triple talaq’ and nikah halala. The new reformative law as usual positioned the carceral state at the centre of the problem, without much disturbing the gender dynamic.
The Muslim Women (Protection of Rights on Marriage) Act, 2019, paradoxically, both makes the pronouncement of triple talaq a legal nullity - and act without any consequences - and also, at the same time, makes such pronouncement a criminal offense. In effect, the Muslim woman may not have an equitable marriage via a participatory nikahnama, but she may call upon the state to send her husband to jail at any time. It is often the case with state-led, carceral laws that their usage is weaponised, if even only to gain leverage in unequal relationships: we have the example of women using criminal laws only to bring the husband to the negotiating table because really, there is no other way to do it.
The process of registration of live-in relationships is unlikely to result in any rearrangement of social power for women. With the state (Registrar) placed at the centre of the process of validation, the processes of law are more likely to be used by those who wield more social/political power than the socially sidelined live-in couple: vigilante groups disapproving of live-in arrangements, or of inter-religious and inter-caste relationships; nosey landlords, thana in-charge would all suddenly become legally recognised informants to the Registrar and thus be able to influence the legal status of private relationships. Of course, women will use the new code too, often in ways that enable them, but also often enough in distorted ways, in ways that accept that law has not resulted in any redistribution of power, and that they can invoke it only to ‘exert pressure’.
In the final analysis, the Uniform Civil Code is a normative document. It establishes norms for contemporary Indian society, describing what is acceptable and proper, and what must be considered an aberration. It lays down acceptable grounds for divorce, which include sexual dalliances, and conversion to another religion (grounds which are borrowed from the Hindu Marriage Act), but very markedly do not include ‘no-fault divorces’, or unilateral divorces on grounds of ‘irretrievable breakdown of marriage’, which are more features of Muslim personal law in India. It must also be said that the courts have not been as averse to ‘no-fault divorces’ as the new reform Code and have in fact incorporated it in recent case law (Shilpa Shailesh v. Varun Sreenivasan (2023)), together with proper financial settlements.
The new Uniform Civil Code also lays down ‘prohibited relationships’ for the purposes of marriage, or for a relationship in the nature of marriage. It is once again based on previously codified Hindu notions of prohibited relationships, not on Muslim, Parsi, or on tribal customary practices. Of course, the Code allows for exemptions, but equally, simultaneously, it establishes the norm, which by default is Hindu codified personal law.
On 7 February 2024, The Times of London ran a story on the new Code with the headline “Indian state passes Uniform Civil Code overturning Shari’a”. One might argue that that is an apt description of the Code’s impulse and that therefore one is really not surprised that the norms being established seem almost to be in denial of all other customary practices.
That’s not the whole point, however. I have to admit that I only now realised that the optional and secular Special Marriage Act, 1954 also adopts exactly the same grounds for divorce and the same list of prohibited relationships (to the exclusion of all other customs and usages) as laid down in the Hindu Marriage Act. The Special Marriage Act, 1954 had already established codified Hindu practices as the default Indian societal norm; only it did not make them mandatory for all citizens. The Uniform Civil Code of Uttarakhand makes submission to norms mandatory.
(The writer is a Supreme Court advocate. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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