Uttarakhand is regulating live-in relationships. But it doesn’t even understand them

There are hardly any empirical studies that tell us about the extent, form, and contentions in different variants of non-marital relationships of cohabitation, popularly referred to as “live-in relationships” in India. Most of what we believe about such relationships is derived from anecdotal evidence, popular culture, and media coverage of cases such as the 2022 murder of a young woman, Shraddha Walker, by her live-in partner. The number of cases filed against the backdrop of live-in relationships across states have grown exponentially in the last decade-and-a-half. But Uttarakhand does not figure prominently among the states with such litigation. Moreover, the UCC does not seem to be an appropriate response to the concerns that have been brought to the court.

Admittedly, right from the onset of the 21st century, non-marital relationships of cohabitation have been a subject for discussion for the Indian judiciary, policymakers, feminists, and legal scholars. The issue gained prominence with aborted attempts to broaden the definition of “wife” in the Criminal Procedure Code. The moral panic around statements by celebrities such as Tamil actor Khushboo that were seen as an endorsement of pre-marital sex also amplified public attention. However, the inclusion of “relations in the nature of marriage” within the purview of domestic relations in the Protection of Women from Domestic Violence Act, 2005, brought into full view the contentious questions around the legal regulation and recognition of non-marital sexual relationships.

While there are many complex legal questions that the domain of non-marital relations, including those among same-sex partners, gives rise to, it is a mistake to assume that such relations have a single variant. Among other possibilities, non-marital cohabitation relationships can be a form of trial marriage; an alternative to conventional marriage; or a relationship in which the divorced and widowed enter later in life. The period for which people may be in such a relationship and the ensuing obligations can also be extremely varied. The patterns are also not entirely new as, in many parts of India, some variations of such relations have been customarily accepted. In some contexts, this can be a relationship in which one of the partners (or both) is also married to someone else. Most of this is not appreciated in calls for legal regulation of such relations and is certainly not factored into the UCC.

Indeed, it is often forgotten that the initial impetus that brought live-in relationships into the legal purview had to do with the protection of women in secondary unions: In cohabitation relations with already married men. The Malimath Committee, for example, sought to extend the definition of “wife” in Section 125 “to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.” This was an acknowledgement of the fact that many women find themselves in relationships that are “like marriage” but have no legal protection, often because their male partner is an already married man.

Our legal system has, however, been very resistant to a recognition of rights within such variants of live-in relationships. Almost from the onset, legal innovations such as those in the Domestic Violence Act of 2005 have been interpreted by courts in a manner that restricts the kind of relationships to which it is willing to offer protection. This has been abundantly obvious in judgments given in the Velusamy vs D Patchaiammal (2010) and subsequently in the Indra Sarma vs VK Sharma (2013), in which the Supreme Court offered a restricted definition of “relationships in the nature of marriage”.

The UCC in Uttarakhand also operates within the logic of a restricted definition by not only making registering such a relationship mandatory but also imposing restrictions upon who can enter such relationships and creating a regulatory apparatus with a highly coercive potential. This Act’s apparent legal approval of a form of non-marital relationship is counterintuitive. It imposes all the trappings of a conventional marriage, which undermines the experimental nature of such relationships, especially among the young, who seem to be the target of the new law. Instead of providing protection, these regulations can expose men and women in live-in relationships to many risks, including moral policing. Like previous lawmaking on such issues, the poor drafting of the law may also have unintended consequences. In no other part of the world has such a law been enacted in the name of offering protection to those in such relations.

Do those in such relations need to be legally regulated? Should the law offer some kind of protection to those in such relationships or should it monitor and police them? What kind of rights and obligations should be attached to those in a non-marital relationship? What about those who continue to remain outside the purview of such a law such as those in same-sex relations or those who are in a relationship with an already married person? While answers to such questions are not easy, they do not seem to have been considered at all in the UCC’s maiden attempt to codify relationships that are not necessarily in need of such regulatory attempts.

The writer is professor, Department of Sociology, Delhi School of Economics, University of Delhi