Sunday, August 17, 2014

Live-in relations in India: The legal issues

-Anuja Agrawal

If one was to believe reports in the popular media, it would appear that western style non-marital live-in relations between heterosexual adults were becoming quite common in urban India. If this is indeed a newly emergent pattern it could well bring a new twist in the long standing academic and popular concern with love/arranged marriage. Unfortunately, there is as yet no large scale study available to allow us to gauge the nature and extent of such living arrangements in India. In this article I will focus upon a related issue that is also very prominent in the media reports.  These reports suggest that heterosexual live-in relations increasingly enjoy a legal sanction in India. Is it the case that there has been a new legal sanction accorded to such relations in India? If so, is this comparable to the legal status such relations enjoy in many western countries? What are the specific conditions which have led to a legal posturing on such relations and what does this reveal about legal status of women in marital and non-marital relations with men?

Let me begin by saying that while certain new legal moves which deal with non-marital relations between adult men and women have certainly been made in the recent past, it would be wrong to believe that these imply a coming into being of a new legal category of live-in relationships which is clearly available in some of the western legal systems. Thus there is no Indian counterpart of either the French Pact of Civil Union (1999) or the Dutch Law on registered partnerships (1997), both of which provide a non-marital legal alternative to heterosexual as well as homosexual adult relationships, nor is there any attempt to bring such a law into existence. In this sense the suggestion that India could be following in the western footsteps in respect of such relationships is far fetched.

What we do have are a series of legal moves which seek to extend some of the rights of married women to women in non-marital relations and more specifically to women in non-marital relations with already married men. This needs to be emphasized as there is no counterpart of this in western countries where the only non-marital relations which are being accorded legal rights are those between men and women who are not in any other legal marital or non-marital relationship. The specificity of the Indian legal moves thus needs to be set in this context of non-marital and secondary relationships of already married Indian men. Undoubtedly, this is a thorny issue and a consideration of the various legal moves would reveal a set of unresolved issues at stake.

Apart from individual cases which surface from time to time, at a general level, one can easily identify two legal sites which have engaged with non-marital heterosexual relations. First, in 2008 the Maharashtra government’s attempt to amend Section 125 of Criminal Procedure Code (CrPC) brought this issue to the fore. The amendment sought to broaden the definition of the term ‘wife’ in this section to include a woman who was living with a man ‘like his wife’ for a reasonably long period. This was a follow up of the 2003 recommendations of the Malimath Committee on reform of the criminal justice system. Second, the Protection of Women from Domestic Violence Act, 2005 (hereinafter PWDVA 2005), is stated to be the first piece of legislation that, in having covered relations ‘in the nature of marriage’, has provided legal recognition to relations outside marriage.  Let us look at the underlying assumptions and implications of these moves.

The Malimath Committee recommendations and the definition of ‘wife’:
The Malimath Committee i.e., the Committee on Reforms of Criminal Justice System, was set up to reform the criminal justice system in November 2000. In 2003 the committee submitted a report which was 306 pages long and, apart from various other matters, made several recommendations under the head ‘offences against women’. The first recommendation in this section was to amend Section 125 of CrPC which is concerned with giving maintenance to the ‘neglected wife, children and parents’. According to the Malimath Committee Report, the object of this section is ‘to prevent starvation and vagrancy by compelling the person to perform the obligation which he owes in respect of his wife, child, father or mother who are unable to support themselves’(p. 189). The Committee suggests that the definition of the word ‘wife’ in Section 125 should be amended ‘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’ (p.189, emphasis added). The justification behind such a recommendation becomes clear from the following passage from the report:

A woman in a second marriage [of a man] is not entitled to claim maintenance as in law a second marriage during the subsistence of the first marriage is not legal and valid. Such a woman though she is de facto the wife of the man in law she is not his wife. Quite often the man marries the second wife suppressing the earlier marriage. In such a situation the second wife can’t claim the benefit of Section 125 for no fault of hers. The husband is absolved of his responsibility of maintaining his second wife. This is manifestly unfair and unreasonable. The man should not be allowed to take advantage of his own illegal acts. Law should not be insensitive to the suffering of such women. (p.189)

It is quite obvious from the above quote that the object of attention here is only  relations between a married man and his ‘second’ wife, particularly one who has been cheated into believing that she is marrying an unmarried man. All non-marital adult heterosexual relationships are clearly not covered by this recommendation as this would not apply to a non-marital relationship a woman may have with an unmarried man.

Following these recommendations, in 2008, the state of Maharashtra initiated an aborted attempt to amend section 125 of CrPC. This was one occasion which brought the issue of legal status of live-in relations into public gaze. The move was construed by many as an attempt to confer legal status on secondary unions of men as well as legalize live-in relations of the kind prevalent in many western societies in which young men and women choose to enter non-marital heterosexual relations prior to or in place of marriage.

It should however be clear from the above discussion that the objective of Malimath committee recommendations was to address women in marriage-like relations with already married men. There is definitely much that remains legally unresolved in this move when it comes to the rights of married women. In this regard, it may be pointed out that section 125 seeks to secure the rights of a wife (as well children and parents) when she is unable to maintain herself. The woman seeking maintenance under this provision should not be living in an adulterous relationship and in case the husband is willing that the wife (or a woman like a wife) lives with him, she has to show sufficient reason for not being able to do so. In fact the Act in its existing form suggests that ‘If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him’. Thus the spirit of this section is the protection of the rights of the primary wife of a man. Studies of desertion of women show that, alongside alcoholism, a second marriage of the husband or an extra-marital relationship is the dominant factor in desertion of the first wife. It is then not apparent how a simple expansion of the definition of wife in this section will not impinge upon the rights of the primary wife as recognized in existing law. Arguably, if Section 125 was amended as envisaged by the recommendations of Malimath Committee, there would be many unforeseen contentions that the judiciary would have to deal with.

The Protection of Women from Domestic Violence Act and ‘relations in the nature of marriage’:
The PWDVA, 2005, has been widely hailed as the first legal Act to recognize the existence of non-marital adult heterosexual relations. It defines an ‘aggrieved person’ who will be covered under this act as ‘any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent’ (sections 2[a], emphasis added). Further the Act defines a ‘domestic relationship’ as ‘a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family’ (sections 2[f]. emphasis added). From this it is evident that to the broad range of domestic relationships between a woman and her husband, father, brother, and other male and even female kin related through consanguinity or marriage, the PWDVA has added the category of ‘relations in the nature of marriage’.

It is possible to say that, unlike recommendations of the Malimath Committee, PWDVA has implications for a broader terrain of non-marital relations as it does not limit itself to secondary relations of married men. In having used the idea of ‘relations in the nature of marriage’, the Act has certainly widened the scope of legally recognized domestic relationships of men and women, at least in the context of identification and redress of domestic violence.

However, the connotation of the phrase ‘in the nature of marriage’ is far from obvious and this is already a ground for contestation around the Act. In the case of Aruna Parmod Shah v. UOI (Delhi High Court, 2008),  the petitioner challenged the definition of “domestic relationship” contained in Section 2(f) of the Act. The petitioner argued that placing ‘relationships in the nature of marriage’ at par with ‘married’ status leads to derogation of rights of the legally-wedded wife. Hence concerns akin to those raised by the recommendations of the Malimath Committee are also surfacing in this case and yet again it appears that this move does not resolve the issue of what might be the contradictory claims of the wife and the woman in non-marital relations with the husband.

Furthermore since the PWDVA does not clearly define relations in the nature of marriage there is enough reason to expect that this is going to be a contentious issue in times to come. It is already evident that courts are not always likely to maintain a broad interpretation of ‘relations in the nature of marriage’ as envisaged by those who have drafted this Act. In a judgment delivered as recently as October 2010, the Supreme Court has dwelt at length upon this provision of PWDVA 2005. [1]  In a case which concerned a woman seeking maintenance from an apparently already married man under Section 125, judges observed that:

Unfortunately [the] expression [in the nature of marriage] has not been defined in the Act [PWDVA]. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

In their somewhat long and ponderous ruminations over this Act, the judges have said that ‘in our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005’. Controversially, the judges adopted the definition of ‘common law marriage’ from wikipedia to define such relations. This definition requires parties to such a relationship to be unmarried and hence excludes women who may be in a relation with an already married man. It is interesting and relevant that this judgment provoked a strong response from the lawyers collective which was central to the drafting of PWDVA. I quote Indira Jaising, one of the main author’s of this Act, responding to the SC judgement:

This would mean that if a married man deceived a woman into marrying him, and lived with her as if married, this would not be a relationship in the nature of marriage, even though they represent to the world that they are married and live in a stable relationship and have children together. This was not the intention of the Act and it was in some measure intended to protect women like these.…

It would be evident from this brief quotation that, like the Malimath committee, authors of PWDVA are also very much concerned with rights of women in non-marital relations with already married men. Even though the idea of ‘relation in the nature of marriage’ is much broader in its scope, there is clear resistance to making  this applicable to relationships between unmarried or marriageable men and women.

This tendency in Indian law must be clearly recognized and any suggestion that this is  replication of a western tendency is clearly mistaken. If anything, these moves suggest that the dominant trend is in the direction of securing rights of women in non-marital relations with already married men, particularly in contexts in which these relations turn violent or sour. The question as to what such rights entail for the legally wed wives of such men remains largely unresolved. Even though the Supreme court ruled in the controversial cases against south Indian actress Khushboo that live-in relations are not a criminal offence, and even though the courts resort to the Indian Evidence Act to presume a marriage like relationship in many cases where there is no evidence of a formal marriage, the question of rights of unmarried men and women in non-marital relationships (and one may add those of same sex relationships here) are really not prominent on the Indian legal horizon contrary to some popular perceptions. Whether and what such legal rights should be is itself a matter of debate.

[1] D Veluswamy vs D Patchaiammal, Decided on 21.10.2010, Supreme Court of India


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