Amrit Srinivasan 
The provocation being offered by the recent Uniform Civil Code (UCC) legislation, passed in Uttarakhand on February 7, 2024, on the penal requirement to register live-in heterosexual relationships, needs a matching and appropriately hard-hitting response.
As it stands, right-wing conservatives find it easy to dismiss constitutional arguments that permit consenting adults to be in a relationship without interference from the state or caste and community, as middle class, ‘woke’ and out of touch with the real India or Bharat as they prefer to call it today. To my mind, both positions are problematic.
The criticism that the compulsory registration process, six months into or out of a partnership, infringes the right to privacy and illegitimately criminalises and infantilises adult relations, does not go far enough. Divested of all culpability, the underlying cultural presumptions of the regulation have not come up for public discussion at all.
The live-in relationship in India, let’s be very clear, rides on the back of the moral and statistical norm of heterosexual marriage, obligatorily “arranged” even by oneself, with the ‘correct’ person of the opposite sex. The parental and community surveillance the UCC authorises for the live-in relationship is not very different from that already in place for the Indian arranged marriage.
Penal intrusion into the bedrooms of adult persons ‘living in sin’ is possible to outsource in a society which polices the bedrooms adults can or cannot enter via marriage. Middle class ‘woke’ rhetoric has been quick to cancel the anachronism of one but not the other.
The statistical incidence of free spirits entering bohemian relationships with partners they are ‘allowed’ to marry, remains next to negligible in India. The regulatory harassment is really that of a separate minority of couples made up of predominantly mixed caste, mixed faith or otherwise ‘wrong’ partners, cohabiting in a ‘cringeworthy’ manner. It makes political sense for the state to keep tabs on them, only against the backdrop of majoritarian marriage – a parentally blessed, public, celebratory and endogamous union.
Ironically, for a government which wants to de-colonise India, the emphasis on marriage as the only healthy and normal sexual, cohabiting relationship possible between two adults – a man and a woman – remains an imperial legacy. Indeed, as my own research has shown, for the post Mutiny Crown government of 1857, the quest for uniformity was itself a punitive strategy by which to civilise, sanitise and subdue a defiant and extremely diverse native society.
Enforcing western conjugal adult norms of monogamy was predicated, however, on a colossal error – the confusion of the vast and bewildering variety of pre-pubertal sacramental ‘marriages’ extant in India as unions of the same kind as the rulers’ own – legal contracts involving long engagements, mutual consent and the necessity for ‘love’ to morally justify adult sexual cohabitation. In reality, the Victorian and the Hindu unions were not logically comparable at all.
The rituals of marriage which all clean, caste Hindu girls underwent, bore no immediate, intrinsic or inherent connection with heterosexual love or even sexual consummation. Cross-culturally speaking, they were more in the nature of baptisms. Boys performed the sacred thread ceremony, girls performed the ‘marriage’ ceremony, to count as full members of a particular caste society.
That is why even the ‘diverse’ counter-intuitive, matrilineal customs of marriage – whether to an absconding bridegroom, or to a deity or a sword or to a Brahmin guru from a different household – were all pre-pubertal and totally respectable community events. One only needs to have watched ITV’s Downton Abbey to understand the colossal difference between the traditional variety of Hindu ceremonies and the uniform English understanding of marriage.
Never ones to balk however, the imperial rulers rushed in where angels fear to tread. The obnoxious Contagious Diseases Act (CDA) of 1868, was unleashed in an attempt to stamp out all but western styled nuclear, male headed family systems. Unions not focused around the heterosexual marital couple were stigmatised as perpetuators of promiscuity, polygamy, even “hereditary” prostitution. “Unmarried” women – whether abandoned widows or poorer, vagrant, less privileged single women – were incarcerated in Lock Hospitals as a source of venereal disease for British soldiers in cantonments, unaccompanied by wives under law. The Act however was condemned in Britain itself and finally repealed in 1886 through the efforts of British suffragettes, its draconian business in India left half finished.
A second weapon aimed at standardising the Hindu family systems to meet the western norm, was the Age of Consent Bill (1891), which sought to portray pre-pubertal marriage ceremonies as in fact perpetuating pederasty and criminal rape. But here too, after many long years of protest and Assembly deliberations, now by the upper castes, the government only managed an escalation of the age of consent from the existing 10 to 12 years!
The Bill’s civilisational purpose, however, had been served – to demean the Hindus for bestiality towards child wives and women. Stoked into nationalist anger over the Bill, Tilak’s Home Rule agitation (1916) and later The Sarada Act of 1928, under a triumphant native leadership now, put an end to the age of consent controversy by removing the justification for “child marriage” – the bar was raised to a clear post-menarche age of 14 for women.
Today, child marriage, in its original pre-pubertal sacramental sense, is illicitly followed by some communities but by and large the samskari obligation that a girl’s first menarche must be preceded by a baptismal ceremony of marriage has thankfully lost its sacred force.
Why, then, the continual hiking of the age of consent post the Sarada Act? If we are to go by the authoritarian motivations of the imperial government, fixing biological age limits to the formal or informal practice of heterosexual coupling achieves “uniformity” most efficiently. Currently, the minimum age of marriage – 18 for women – is threatening to go up to even 21. The idea is to criminalise more and more ‘wrong’ unions as forms of “child marriage”.
The criminal law courts’ repeated advisory that the government rethink lowering the age of consent has gone unheard. The persecution in Assam of many young, ‘differently’ married men, as criminal rapists of technically underage but sexually mature wives, continues.
Charges of rape are largely initiated by parents of the girls, despite their protestations in court that the relationship was consensual and one of love. Now with the Uttarakhand UCC, the surveillance of adult live in relationships, will bring in more and more ‘wrong’ unions into the ambit of criminal prosecution.
The post-colonial, largely virginal, legal marriage of today bears the marks of good old Indian jugaad. Thankfully, it is not child marriage any more. But equally, is it morally and not merely biologically, ‘adult’?
The astonishing statistic that almost the entire female population in the critical age group of 25-29 is married (94.3% according to 2001 census and 91.2% in 2011), points to traditional obligatory, family and community sentiments behind the ‘child marriage’ of yore having carried over into the modern, adult avatar as well.
The UCC’s assumption, under the banner of gender rights, that young women are more likely to face a brutal fate at the hands of their live-in lovers is skewed. Matching the high percentage of the population of women that are married in India, is the other, dismally high percentage of married women who take their own lives, compared to other cultures, testifying to the pressure to not only marry but to stay married.
National Crime Records Bureau’s data on ‘accidental deaths and suicides’ records that between 2014 and 2020, women who were currently married accounted for a whopping 63·1% (28,085 of 44,498) suicide deaths among women in India.
Marriage in India unfortunately does not ensure a more protected, happier young womanhood. The suffering of women routinely violated, killed and even burnt within the sacred legal confines of marriage cannot be denied a voice and strategically wished away to justify UCC’s uncalled for regulation of informal unions. Under criminal law, the death or harassment of a woman within the first seven years of marriage makes a man automatically vulnerable to charges of domestic violence, even murder and dowry death. The realities of a young bride, living with a husband who is really a stranger, under the control of his own parental household, is there for everyone to see in this legal prescription.
In India, almost all women are born, menstruate and marry under the benevolent and benign dictatorship of parents. In such a context, the Uttarakhand UCC’s determined attempt to put the screws on free consensual living together, based on love and mutual attraction between an adult man and woman, is not entirely surprising.
Amrit Srinivasan is a sociologist, formerly a Professor at the IIT- Delhi.