How the state views interpersonal relationships

The state has often intervened in the domain of relationships to maintain the delicate balance between a person’s right to privacy and a just social order

Any intervention of the state in the personal domain needs to maintain a delicate balance between a person’s right to privacy and the state’s interest in maintaining a just social order. The recent passage of the Uniform Civil Code by Uttarakhand followed by the Assam State assembly repealing the Assam Muslim Marriages and Divorces Registration Act has brought to the fore the precise need for this.

Post-independence, the first attempt of the state to regulate interpersonal relations within the domain of marriage and succession was the Hindu Code Bill of 1951

Marriage has long been considered one of the founding institutions of society — and it has been adjudicated upon over the decades. Most recently, while refusing to recognise the right to marriage as a fundamental right in October 2023, the Supreme Court in Supriyo v. Union of India (for marriage equality to same-sex partners) noted that the primary aim of the state to confer legal sanctity to marriage is to regulate social order and devise a legal mechanism for the devolution of property.

Post-independence, the first attempt of the state to regulate interpersonal relations within the domain of marriage and succession was the Hindu Code Bill of 1951. The Bill aimed to improve the condition of women within the Hindu religion and aimed to do away with several restrictions on the right to marry and succession. The Bill evoked strong opposition among members of the Hindu community, both within and outside Parliament. The orthodox saw it as an attack on their faith, while women parliamentarians saw it as mere lip service without bringing about tangible change. Ultimately, the bill failed. Later, separate legislation for Hindu marriage, succession, adoption, and guardianship were passed.

The judiciary has over the years expanded the rights of the parties in an interpersonal relationship. Whether it was recognizing the mother was also a natural guardian of a minor in Githa Hariharan and Another v. Reserve Bank of India in 1999, or holding that marriage after conversion into another religion with the sole intent to practise polygamy was not permissible (Sarla Mudgal and Others vs Union of India (UoI), 1995), the court has steadfastly worked towards expanding fundamental freedoms. Courts have also held that children born out of wedlock being innocent beings will be legitimate and entitled to property rights of their parent's individual property (Bharatha Matha and Anr v. R. Vijaya Renganathan, 2010).

Domain of personal law not exempt from gender justice

It was in the Shah Bano case in 1985 that the Supreme Court entered the domain of personal law, holding that a Muslim woman was also protected by the Code of Criminal Procedure, 1973 (CrPC) and was entitled to maintenance under Section 125 CrPC (maintenance of wives and others) from her husband. The apex court held that personal laws did not absolve the husband from his obligation to pay fair and reasonable maintenance. Courts have over time expansively interpreted Section 125 by noting that the section is a welfare provision aimed to prevent vagrancy. Similarly, in 2017, in a landmark ruling, the Supreme Court unanimously ruled divorce by triple talaq to be unconstitutional and in violation of Articles 14 (equality) and 15 (prohibition against discrimination) of the Indian Constitution.

In the realm of legislation, the Protection of Women from Domestic Violence Act, 2005 was another intervention into the personal domain of marriage and interpersonal relationships by the State to protect women from violence. The legislation was also the first to recognise ‘relationships in the nature of marriage’ within the ambit of ‘domestic relationship.’

This expansion was founded on the base created by several judgments as well as the Malimath Committee report on criminal justice system reforms in 2003, which recognised relationships akin to marriage. Interestingly, the presumption that a live-in couple was married due to cohabitation for a prolonged period is founded in the Indian Evidence Act of 1872 itself.

It was in the case of D. Velusamy v. D. Patchaiammal in 2010 that the Supreme Court defined ‘relationships in the nature of marriage’ to be unions wherein a heterosexual couple hold themselves out to society as being akin to spouses, are of legal age to marry, are otherwise qualified to enter marriage and must voluntarily cohabit together for a significant period. A couple who satisfied these criteria was eligible for rights under the Domestic Violence Act including financial support.

…But the right to privacy must be upheld

The judiciary has also time and again upheld the right of a person to marry or live with someone of their choosing. In Lata Singh v. State of Uttar Pradesh, the Supreme Court noted in 2006 that a major woman is free to marry or live with anyone she likes. A landmark judgment in the realm of rights regarding marriage came with the recognition of the right to privacy as a fundamental right by the Supreme Court in Justice KS Puttaswamy (Retd.) and Another v. UoI in 2018. The court noted, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” This judgment was followed by the decriminalisation of consensual same-sex relations in Navtej Singh Johar and Ors v. UoI in 2018, and led to the courts recognising the right of same-sex couples to cohabit. The publicised case of Hadiya in Shafin Jahan v. Asokan K.M. and Ors in 2018 also concluded with the Supreme Court noting that “The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable.”

While the Supreme Court has accorded recognition to live-in relationships, the same has not been uniformly protected. The Allahabad High Court in Kiran Rawat v. State of Uttar Pradesh in July 2023 refused to grant protection to an interfaith couple by noting that the couple merely wanted to live together, and the apprehensions of the couple were only a social problem which could be dealt with through social mechanisms. On the other hand, the Punjab and Haryana High Court in August 2023 granted protection to a same-sex couple in a live-in relationship, noting that if the apprehension of threat to the couple turned out to be true, it would cause irreparable loss, under Article 21 (protection of life and personal liberty), which entitles them to cohabit peacefully.

The Supreme Court itself in Indra Sarma v. VKV Sarma in 2013, noting the ambiguity, recognised the need for a law to govern the concomitant rights regarding live-in-relationships.

The legal recognition of marriage brings with it several concomitant rights whether it be the rights of the partners in the marriage, maintenance and inheritance, amongst others, in which the State has premised legislative interference in the private sphere.

Can a UCC resolve the ambiguity?

The Uniform Civil Code is touted as a panacea to resolve all these ambiguities. While the Uttarakhand Code recognises live-in relationships, it fails to be in consonance with the law evolved by the judiciary. Provisions like mandatory registration of live-in couples, intimation to the parents of a person below 21 who wishes to register the live-in relationships, or allowing any third party to file complaints to a registrar questioning the status of the couple, strike at the heart of the right to privacy. In exchange for such intrusion, the code provides only limited rights of maintenance and legitimacy of children born from the union, both of which have been largely recognised by the Indian judiciary. Further, excluding same-sex couples from the purview of the code, runs counter to the judicial pronouncements cited above. The provisions seeking publication of the relationship and intimation to parents, instead of protecting couples, open them up to the danger of moral policing.

Law and society influence one another, however, merely changing laws without undertaking steps to bring in social change is often a futile exercise. Personal laws are a sensitive topic, as recognised by the framers of the Constitution, who introduced the Uniform Civil Code as a suggestion rather than a duty of the state. A focus since then has been to gradually reform personal laws to make them egalitarian, which would pave the way for a uniform code. Merely imposing a Uniform Civil Code does not mean such a code will be followed.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.