Uttarakhand’s notification of the Uniform Civil Code rules is being seen as a trial balloon prior to the enactment of a countrywide law. But the opportunity to win public support for a pan-Indian UCC has, regrettably, been overshadowed by the state government’s overreach in bringing live-in relationships under the scope of the law.

In other respects, it isn’t hard to put a positive spin on the UCC. The statute unequivocally puts an end to personal laws that allow bigamy/polygamy and the marriage of minor girls. The latter is especially welcome, as the High Courts have been at odds over the question of whether Muslim law, which allows a girl to marry after reaching puberty, can be overruled by the Prohibition of Child Marriage Act (2006).

The UCC puts women of all communities on an equal footing as far as marriage, divorce, alimony and child support are concerned. Further, in terms of inheritance, girls will have a right to an equal share of ancestral property, and if the parent dies intestate, to an equal share of parental property. The Code makes particular mention of a Muslim custom that disallows a man from remarrying a spouse he had previously divorced until she has been married to another man for a period of time. Abetment of such a marriage will invite harsh penalties.

In effect, personal laws in any shape or form will not apply within the borders of Uttarakhand. As with any sweeping initiative, there are certain grey areas. While marriages under personal law predating the UCC are valid, Section 25 (3) (ii) allows a wife to escape a polygamous situation. She can file for divorce in the event that “the husband had more than one wife from marriages contracted before the commencement of this Code.” What about marriages of first cousins, forbidden under the Special Marriage Act (Schedule I & II) but allowed by personal law?

The former permits marriages within the degrees of prohibited relationship if “custom and usage” permit. The UCC caveat is that such customs should not go “against public policy and morality.” This is rather vague and open to interpretation. Marriages post-2010 must be compulsorily registered, while those pre-2010 “may be” registered, provided either of the spouses was a resident of the state at the time of marriage and the two have been residing together as husband and wife.

What does this mean for migrants who have taken up residence in Uttarakhand and may have contracted a second marriage but continue to maintain a family in another state? Overall, the UCC certainly levels the playing field for women and girls. But touting protection of women as a justification for state oversight of live-in relationships is absurd. It not only infantilises women but also constitutes an egregious intrusion into the private sphere.

A live-in relationship must be mandatorily registered and is described as one in which a man and a woman “cohabit in a shared household through a relationship in the nature of marriage.” That’s a vague definition. Does a fortnight or a month together constitute a live-in, or does it need to be more long-term? How about weekend relationships? Couples are already confused. What if a man and woman are flatmates and are not romantically involved? This clearly does not constitute a live-in and is therefore exempt from registration. But if someone, anyone, complains, the sub-registrar is expected to issue the suspected ‘partners’ a notice and conduct an investigation. In such cases, the sub-registrar can either take their word for it or install CCTVs in their bedrooms!

The point is that a man and a woman, regardless of their age, who are sharing premises, become open to harassment, particularly as a three-month term of imprisonment is prescribed for failure to register a live-in. In all likelihood, the ‘suspects’ will have to bear the burden of proof as to the nature of their relationship. Given that village panchayat or nagar palika officials are expected to serve as sub-registrars, the chances of their taking an open-minded approach are arguably slim.

What’s more, if either of the partners is married, they are not permitted to enter into a live-in relationship, as per Section 380 (2). The UCC does not take into account the possibility of judicial separation, or of ongoing divorce proceedings, or just two consenting adults making a conscious choice to get into a relationship, regardless of their marital status.

The ‘peeping Tom’ approach is not rendered any less obnoxious by the promise that interfaith couples who register under the UCC will receive state protection or that children born to unmarried couples will enjoy the same rights as those born within the confines of marriage. The state takes away citizens’ freedom of choice by prescribing who can or cannot live together. Even worse, it takes away their right to keep their relationship private, for whatever reason. As anyone who has a mobile phone knows, no database is safe.

Once entered into the system, the couple will be inextricably linked, long after they have moved on from each other. Privacy is, after all, a fundamental right. As a nine-judge bench of the Supreme Court observed in 2017, the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. Litigation is on the cards, with Muslim leaders opposing the UCC on constitutional grounds. Others have objected to the exemption of Scheduled Tribes from the law. That was only to be expected. But it is Part 3 of the UCC that has attracted the most condemnation. What should have been a progressive, historical step may end up being seen as a regressive, historical misstep.

Bhavdeep Kang is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.