-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.
0 comments:
Post a Comment