From Indias largest newsroom, I'm Arun George and this is the
Times of India podcast live in relationship.
That's Uttarakhand Chief Minister Pushkar Singh Dhami
speaking after the Uttarakhand Assembly passed the Uniform
Civil Code in the state on Wednesday, the 7th of February,
the law was cleared by the state assembly nearly two years after
a committee was created to suggest the drafting of the law.
The law passed by Uttarakhand bans practices like polygamy and
bigamy. It sets a minimum marriage age
of 18 years for women and 21 years for men.
It stipulates norms for the inheritance of property in the
event of a will being written and when one isn't.
The law also bans practices like nika halala and iddat, which are
practiced in some pockets of the Muslim community.
There has been opposition to some of the provisions, with
critics saying the government shouldn't be overriding Muslim
personal law, which presently decides things like marriage,
divorce and inheritance. The law also controversially
requires the registration of live in relationships, the first
such law in the country. But most importantly, the law is
seen as a precursor to other states passing similar laws and
possibly even the national government passing such a law.
The Uniform Civil Code has been a long standing demand of the
BJP, but for now we're analyzing the Uttarakhand Uniform Civil
Code. For that, my colleague Jairaj
Singh and I spoke with Mihira Sood.
Mihira Sood is the Executive Director of the Center for Child
Rights and Juvenile Justice and a visiting Professor of Law at
the National Law University in Delhi.
She's also a columnist for The Times of India on legal issues
and wrote a column on this issue.
We've really split today's episode into two parts.
In the first part, we're discussing the broader civil law
changes being proposed by the state's Uniform Civil Code and
how much it changes things. In the second part, we discuss
why the laws handling of live in relationships is so problematic,
despite it claiming otherwise. We started by asking Mihira Soon
about the need to consider having a Uniform Civil Code.
The promise of a Uniform Civil Code has been around for a
while. We've been debating this for
years now. While most of us have a rather
easy understanding of, you know, why it's even a demand.
Could you talk about what benefits come from having a
uniform Civil Code compared to the existing system as it is?
So I think here it's important to understand that different
sections even of supporters of the Uniform Civil Code, they
have their own reasons for this demand.
Different people who support the idea may not agree with each
other on their reasons. Traditionally, from the Hindu
right, the demand has been things like why should Muslims
have the right to polygamy and the right to multiple wives when
Hindu men do not have this right.
And and you know, sort of pitting it as a rivalry between
Hindu and Muslim men. Several other sections of
society have had this demand purely on grounds of gender
equality, while Hindu law did take its time to to sort of
effectively modernize. The first stage came in 1956 and
the 2nd effectively in the early 2000s, where daughters were
finally allowed to inherit ancestral property in the same
way as sons. But the fact of the matter is
that in many ways, whether it is a minimum marriageable age for
women or succession rights that are enshrined in the law, and
several other aspects, Hindu law does recognize many more rights
of women than other personal laws.
If you ask me personally, and I've I've always been a
supporter of the idea of a uniform Civil Code, perhaps a
minority among those who share my political beliefs.
And I supported one because I think we have waited to see
reforms come in, in the area of gender equality, in the area of
child marriage, and those reforms have not come in in a
lot of the religious laws so far.
And the second reason is we see so many interfaith marriages.
We see how it's treated as a as a community matter rather than
an individual matter. We see how an individual's
religion is treated not as a matter of their personal faith
or a decision they make when they're adults, but as a matter
of their birth. These are very irrational,
outdated sort of concepts, and to my mind, only a uniform Civil
Code can actually relegate religion to the personal,
individual sphere where it should be, and remove it from
the sphere of governance and community altogether.
So frankly, if you ask me, that's the reason I do support
the idea. Though I believe that this
particular Bill A doesn't go far enough in most of its aspects
and is basically a copy paste job of existing Hindu Marriage
Act and Indian Succession Act and in the chapter of living
relationships actually undermines both these goals.
You know, one Muslim Personal Law Board member said that the
absence of a personal law effectively nullifies the
religion altogether in some ways.
How would you view that argument given your own stand on it?
It's complicated because I do understand that, you know, and I
say this as an as an outsider to the Muslim community, but I do
understand that Sharia law is considered an important part of
Muslim belief and therefore a lot of Muslims feel that your
personal belief system itself is nullified.
If you do not have your own legal system, that is Sharia
law. However, if you ask me, this is
an idea whose time has come and the idea of a religion based
civil law is outdated and really doesn't belong in a pluralistic
democratic society. You see the complications it
creates because once again it treats religion as something
that belongs to the community, treats the community is fairly
monolithic. There are minorities within
communities. The clerics, male clerics who
speak on behalf of the community, do not often speak on
behalf of the most vulnerable within the community, do not
often speak on behalf of women within the community.
It does not really answer the question of an interfaith
marriage where one party chooses not to convert to that religion.
And you know, therefore it is just, it is simply not in
keeping with the demands of a modern progressive society, as
difficult as as that may be, to digest.
Could you explain why in this particular code you have the
tribal community being left out of it completely?
So that's actually been something that has has been the
case even in existing Hindu law and that tribal communities were
left out and exceptions were made for customary practices.
Which is why, you know, in certain communities, child
marriage not only persists but is illegally permitted to
persist. However, I think that if you
have a community based personal law system, then that may still
make some sense. But if you are trying to
implement something called a uniform Civil Code, and you
know, as the Chief Minister said yesterday, this is part of what
he considers Ek Bharat sreesh, Bharat Ek Bharat Ek nyay Ek
kanun, then it really makes no sense as to why tribal
communities have been left out. And it really then does
reinforce the view that this is done with an eye towards
elections. One aspect that this law does
take care of is this sort of fixing of an age limit for
marriage for men and women. How do you view this aspect?
Frankly, I I don't see a problem with fixing a minimum
marriageable age in theory, though the fact remains that it
is difficult to enforce in practice.
We saw earlier when this was discussed, there were a lot of
criticisms from rural communities, tribal communities,
etcetera, not just about their religious and cultural
practices, but also, you know, from the point of view of safety
where they stay very often getting married, getting married
early is is the only way to they feel to protect one's daughter
from sexual violence. And also there are a lot of
financial complications associated with it.
But having said that, I think that these are issues that need
to be dealt with separately. I don't think that in theory
there's a problem with a minimum marriageable age, whether it is,
whether it is 18 or 21 though. What I find remarkable is that
the Uttarakhand Civil Code continues with a different
marriage age for men and women, which is 18 for women and 21 for
men, which is what it is in the Hindu Marriage Act as well.
And there's really no reason for that different marriageable age.
Frankly, the idea of a marriageable age of 21 makes no
sense when a person can vote and do everything else at the age of
18. The age of 18 is the age of
consent for sexual relations under Indian law.
It is the age of adulthood. Under Indian law, there's really
no reason why a person can't get married at the age of 18,
especially when women can and men cannot.
I think that having this differential marriageable age
again points to a very stereotyped idea of gender roles
within a marriage. Could you explain why?
That's been the general stereotypical understanding that
women should get married at a younger age, women mature at a
younger age as compared to men, that men need to be the
providers, therefore they need to, you know, get a degree, they
need to go to college, they need to earn money.
They cannot be getting married at such a young age, whereas for
women it's fine. You know those kind of
stereotypes. I believe that the committee
that was behind the Uttarakhand Civil Code did go around the
state speaking to families in different regions of the state,
and this is possibly in part based on feedback, particularly
from parents from whom, I believe a large part of the
feedback was taken. Then wouldn't it be worrying if
this then travels to many other states as well?
It would particularly because the Uttarakhand Civil Code has a
very strange definition of who it applies to.
People domiciled within the state, people resident within
the state, People who are not resident within the state but
employed by the state. You know it.
It has a very broad, irrational definition of the people who it
applies to. And if every other state, or at
least you know even half the states in India, apply something
like that, then it it is very worrying.
It would apply to many more people than just the residents
of those states. And then of course there is the
the fact that people don't just marry others from within their
state, so it would affect people who otherwise have nothing to do
with these states as well. And in terms of the outlawing of
polygamy and bigamy, what does this law do?
By effectively banning it, does it effectively become a better
deterrent against these practices?
There's nothing wrong with outlawing polygamy or bigamy.
However, it may not have been that relevant because I don't
think these practices are very widespread among the Muslim
community in India. I think it was always used more
as a bit of a a bogeyman by the Hindu right calling for a
uniform Civil Code. But there's really no problem
with outlawing such practices. I think it's again an idea whose
time has come and it's these these are practices that do in
fact hurt the women involved, and this is not something that I
particularly oppose. Another major aspect of this law
is the inheritance of property and distribution of property.
In the case of death, there's an inclusion of parents as
beneficiaries and even of children outside wedlock.
How does this change what we have and is it truly like leap
forward in that sense? To be honest, I've looked at the
the succession part of this code very cursorily.
It seems to be more or less a replication of the Indian
Succession Act with certain modifications made.
By and large it does seem to be a move forward, particularly
with respect to children born out of wedlock and sons and
daughters being treated equally throughout.
It requires a lot of in depth research and possibly a lawyer
specializing in matters of succession and inheritance would
be best placed to answer this. You know, you mentioned the fact
that there are laws within the personal laws that whose time
has come in a sense. Are there any that you feel have
been missed in this specific code that's been passed?
Yes, as I said, one, there is a differential age of marriage,
minimum age of marriage for men and women, which I don't think
makes any sense. And secondly, I think that there
are still very limited grounds of divorce.
I think we would do well to borrow from Muslim personal law
on the aspect of treating marriage as a contract where
both parties have to consent and if either party changes their
mind, there's nothing left in the marriage and the only thing
left to do is to give it, give it a dignified burial and be
done with it. I think that holding on to
marriage, being forced to stay in unhappy marriages because
divorce is made so difficult under Hindu law, and that's sort
of what has been replicated over here.
In large part, I think that is very, very problematic.
I have long been a proponent of bringing in the concept of
irretrievable breakdown of marriage by either party and I
think that a limited grounds of divorce is 1 area.
We still don't criminalize marital rape.
I mean I don't know what gender equality within the family one
can talk about. You know, when the same party
bringing in this law opposes every move to outlaw marital
rape, they need to, at the very least now go hand in hand.
You have, you know, grounds for divorce and annulment include
where a man has been found guilty of raping another woman,
but where the man is guilty of raping you.
That's not a ground for divorce. I find that quite bizarre.
There are certain missed opportunities that could have
been done if perhaps little more time had been spent on it.
We're back in conversation with Mihira Sood about the Uniform
Civil Code that has been passed by the Uttarakhand government.
While we discussed the broad aspects of this code in the
first half of the episode, we're now focusing on the most
controversial bits of the code, and that's about how the
government plans to deal with live in relationships.
The Uttarakhand government plans to make it mandatory for couples
entering live in relationships to both register a live in
relationship and also inform them if the relationship falls
apart. But Mira Sood says it's wrong to
call this process a registration given how it is to be
implemented. And she says there are very
clear targets of this law. She also analyzes whether the
Uniform Civil Code actually improves the legal rights of
women like it promises to. We started by asking her about
what is classified as a live in relationship under Indian law.
So the Uttarakhand Uniform Civil Code Bill now seeks to regulate
live in relationships of its residents both within and
outside its territory. But does the Supreme Court have
a view of what live in relationships are?
So the code itself defines a live in relationship as one
where partners are cohabiting in a shared household, in a
relationship, in the nature of marriage.
That's the language that is used.
So presumably when they say the nature of marriage and we have
an entire body of case law, we have provisions like, you know,
conjugal rights. So we know that when when the
law says in the nature of marriage, it presumes sexual
relations as well. And that's considered an
essential part. So it is basically is referring
to a cohabiting in a shared household, with sexual relations
being part of that arrangement. There has been a concern about
the question of penalizing people who do not register their
relationship. Could you tell us where the
element of crime comes into being in a live in relationship?
Well, the official justification for requiring registration is
that the committee spoke to a lot of parents.
There was a lot of concern about violent crimes against women
being committed by the partners they were cohabiting with the
Shradha Aftab case, you know, being a case in point, and
others like that where women were quite brutally killed by
their living partners. And it was somehow felt that
making this process stringent, having an inquiry and a
verification prior to being able to enter into a living
relationship will act as some kind of mental deterrent and
also that live in relationships are recognized all over the
world. So this is a way of recognizing
it, which was felt by the government to be very
progressive. Now this is quite complicated.
It's it's a little problematic 1.
Registration does not prevent crime.
Marriages are registered. Marriages are official
relationships. In the eyes of the law, that
does not mean that violent crime does not take place within
marriage or that it is any kind of deterrent.
You you have dowry deaths, you have physical cruelty and abuse,
you have sexual violence. All these crimes that that
people are worried about take place as much and more within
the institution of marriage. Registration has nothing to do
with it. And ironically, while the ACT
recommends registration of marriages, there is no
punishment for non registration, but there is a punishment for
non registration of a living relationship.
And that anomaly again makes no sense.
And then when it comes to recognizing living relationships
and you know going the way of of Western countries where they've
had a lot more experience with these kinds of relationships in
the law, this is not what they do.
They do not require registration.
And also let's be clear, this is not just a matter of
registration, this is a matter of taking permission because the
registrar can actually deny permission.
It is not that the registrar is simply registering it.
Permission can actually be denied.
That is absolutely not what happens in Western countries.
All that happens is you have, you have you know what is called
long term relationship or common law marriage where after a few
years. Where a couple has been living
in a marriage like relationship, it is recognized to the point
where if a dispute arises and comes to court, you know the end
of the relationship. For example, whether it is with
regard to maintenance or child support, then the court applies
the same yardsticks that it would apply in the case of a
marriage. Because the court treats it as a
de facto marriage, there is no question of prior registration
that the Uttarakhand government is trying to do here.
How does this law understand live in relationships And even
though it stipulates 30 days as having cohabiting with a person,
who actually decides whether people are staying or or people
are coming or going out? And then what kind of problems
does this raise in society? So yes, a live in relationship.
I mean the entire point of it is that it's meant to be a more
informal, casual relationship for people who do not want it to
be treated like a marriage. There is an argument to be made
that it should be treated like one when it has been in
existence long enough. I think the standard for common
law marriages in some countries, for example, is five years.
That's a very different kind of situation from, you know, within
30 days you have to register your relationship.
You know what is very problematic here?
If you heard the Chief Minister talk about it yesterday also,
and he kept, he was referring to the concerns that parents raised
about crimes against women and kept talking about, you know, we
have to protect our children. And the fact of the matter is
they're not children. And that I think is is really
the crux of it. So you can enter into a marriage
at the age of 18 without your parents permission, but you
cannot enter into a living relationship until you're 21
without your parents permission. So there's an infantilisation,
and specifically of women here, because for men the age is 21
either way. But women who are considered of
marriageable age at 18 cannot enter into a living
relationship. So it makes it quite clear what
the intent is. And then the fact is that the
registrar can deny permission on certain grounds.
Some of them are pretty straightforward.
For example, if either party is under 18, nothing that really
requires judicial application of mind.
But then you have the last ground on which the registrar
can deny permission. And that is where the registrar
is of the opinion that the consent of either party is
vitiated either by fraud, misrepresentation, undue
influence, coercion, etcetera, including as to a person's
identity. Now, this is really where the
meat of the provision lies, because we know that and we've
seen so many interfaith couples with the parents, the community
elders, etcetera, complain to the police that, you know, my
daughter has been defrauded. This person lied to her about
his religion. He pretended he belonged to this
religion, but actually he did not, or there was undue
influence on her to convert. You know, this kind of thing is
has become very common. This is exactly what this
provision is, is focusing on and is permitting.
And the fact of the matter is also that who is the registrar?
The registrar is not a judge. The registrar is not qualified
to exercise judicial discretion in this manner to look at
whether or not consent has been vitiated.
This is the function of a judge. It's quite clear that the target
of this provision is interfaith relationships, inter caste
relationships and other, you know, relationships where the
parents have an objection on the basis of, you know, community
concerns. And most worrying is that anyone
can submit a complaint that a relationship is not registered
and then the registrar can conduct an inquiry.
And that could be a landlord, it could be a neighbour, it could
be a parents, it could be some Romeo squad, it could be a local
Shaka, It could be any random busy body who has, you know,
seen when we see, we see this countless times, couples getting
beaten up in a park recently, it was in fact cousins who people
assumed were an interfaith couple.
You know, these kind of things keep happening and that's really
that that's the level of interference that the government
is permitting and encouraging with this kind of a law.
Also the fact that the law allows for a sort of
deregistering of the relationship as well.
Like what is even the logic of that?
I think it's not something that's seen a great deal of
application of mind by the persons who've made the law.
It's treating a live in relationship and it's
dissolution like a marriage and divorce, even though the intent
of entering behind either of them is quite different.
The provisions for maintenance that the code itself provides
are different in in live, in relationships and in marriage.
But they seem to be wanting to treat it like like a divorce and
they want to maintain a a public register of live in
relationships. For what purpose?
This has not been made very clear and these are things that
hopefully will will be asked by a court very soon.
In the law, it says that there is no particularly qualifier
explanation as to what constitutes, you know,
suspicious information and what appropriate action the police
might take beyond the penalty that's been prescribed in the
clause. Could you elaborate?
Yeah, it says any, any information that is fraudulent,
any if they've lied about anything regarding their
identity. And that's very vague.
You know, I think the obvious target there, as I said, is
religious identity. But it could even be, you know,
things like income level or past sexual history, things like
that, where a partner may feel that I should have known about
this before, or if a partner is just disillusioned with the
relationship and wants to end it, You know, very often then
these kind of accusations come out because you've been living
together and you feel that society will not accept you back
unless you make these kind of accusations.
At a time when when we are seeing vigilantism rising, you
know, RW as entering into one's homes and coming up with bizarre
rules, you have this law which literally puts people's
relationships under scanner. What kind of toll does it take
on on young people today? I mean, that's a very good
question. And I I really would like to
know if the committee that looked at and they took this
kind of stakeholder feedback consulted young people at all.
Because all we heard was how they spoke to parents, of of
parents of women who have been in live in relationship and live
relationships and parents were concerned about their daughters
getting into such relationships. And I really would really like
to know if anybody thought it worthwhile to consult with young
people at all and ask them how they feel about it and what sort
of protections they would like in these situations.
Have they spoken to people who are actually in live in
relationships and what concerns they might have or they might
foresee for themselves in the future or they might think are
have seen among their friends? That is something that I think
would have really given us a lot more insight rather than, you
know, this paternalistic concern.
The lowest past is also very complex in terms of which
couples need to register their live in relationships.
It also says that if your live in relationship isn't
registered, it could mean ineligibility to get government
benefits and possible jail time. Mira Sood says it's very clear
that the law will affect some couples far more than others.
There are some couples it's going to affect and some couples
who will go unscathed by this because basically if somebody
complaints about you then it's going to be a problem.
Who it affects is really people who are not so mobile, who are
basically stuck in in that one place, in that one community
where from where they don't really live, where everybody
knows them, where perhaps their parents are objecting to this
kind of relationship and their parents know where they are,
where they do not have the wherewithal to to rent a place.
You have a landlord who refuses to rent you their place without
your parents permission or without your registration
documents. You know these kind of things.
They will be applied very unevenly across across the state
and across the country. And if we do get this sort of
patchwork of civil codes, where some states have these specific
laws, some don't, what does that really mean going ahead?
Your guess is as good as mine, quite frankly.
I think at least in the states that do have it, it's quite
likely to be a copy paste job. So at least those states will
have an identical code. The BJP I think is quite clear
that this is something they want for the entire country.
Maybe they want to go slow on it for now, but once you have
781012 states that have it, it'll be much easier for them to
impose it and there'll be much less resistance when they impose
it across the country. So maybe that is what will
happen, but as I said, your guess is as good as mine.
Also, a lot of this Civil Code is being cited as being
beneficial for women, including the fact that, you know, like
you said, in live in relationships it's treated like
a marriage where a woman has maintenance and inheritance
rights if there is a child from that relationship.
How do you view that claim? Look, you can give all these.
I'm also giving these rights even in a provided the live in
relationship has been sufficiently long term.
I'm also giving these rights. I think that's that's a
progressive move, but that can be done without this requirement
of prior consent for your living relationship.
And as I keep saying, let's not call it registration, it is
permission. Mihira Sood says the Uttarakhand
Uniform Civil Code may promise more rights for women, but it
seems to be delivering something else.
Anytime a law comes in that says it's for the protection of
women, large sections of society do support it because on the
face of it, there's nothing wrong with that.
And everybody wants it. And, you know, everybody wants
their children, their daughters to be safe, but nobody seems to
really scratch the surface of that and understand that if
protection just means locking your daughters up, preventing
them from meeting anybody, entering into any relationship
or exercising their free choice or autonomy in any manner, then
that's not really protection. Locking up somebody is is not a
way to go about it. If you're talking about gender
equality, that is just protectionism.
If you want equality, you have to work on empowerment, which is
much harder. You have to really give rights.
You have to recognize them, You have to train your officers to
recognize them, and people have to be vigilant to then act
against any violation of those rights.
Which may well happen, you know, but it's it's a lot harder.
It's very easy to win votes on grounds of protectionism, but
that's not real equality. Today's episode was produced by
Jayaraj Singh and Sahil Gupta. For a daily spotlight on people,
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