everything is not strictly black or white or right or wrong when one treads the complex terrain of human relationships. With changing social codes and a new-found sexual freedom, Indian society is waking up to the reality of relationships that are not defined under the ‘pious’ institution of marriage. Thus live-in relationships have become a reality to reckon with. A recent Supreme Court verdict has put it on a par with marriage, leading to the debate whether by recognising one woman’s (live-in partner) rights of security and stability, it has put those of another (legally wedded wife) in jeopardy.
While marriage does offer stability and security in one sense, in another it is tilted in favour of the husband who appropriates his wife as ‘property’. This appropriation is socially sanctioned through marriage symbols exclusively targeted at the female in this two-partner relationship. Interestingly, since ages wife has remained a party to this total ‘appropriation’ of her mind, body and soul in exchange for food, clothing and shelter. In other words, despite the religious sanctity that the marriage is said to be blessed with, in reality, it was simple barter economy at work.
Indian women in live-in relationships, beyond the sanction of marriage, often opt for such relationships of their own volition. But this leaves them in a vulnerable situation, socially as well as emotionally, if the relationship sours. When the relationship breaks, the female partner has no legal benefits accruing to her in terms of maintenance, alimony, share in property or child maintenance, all of which the wife has. With a view to give legal relief to women in such relationships, the Government of Maharashtra has proposed an amendment to protect "the pecuniary interests of a woman who was living with a man like his wife for a reasonably long time."
The move has been welcomed by academics and charities working on women’s rights as a long overdue step in recognising the changing social landscape in India. Ranjana Kumari, director of the Centre for Social Research in Delhi, said it was no surprise that Maharashtra had "moved first to update its laws."
Earlier, a recommendation by the Justice Malinath Committee to the Law Commission of India (2003) stated that if a woman has been in a live-in relationship for a reasonable period, she should enjoy the legal rights of the wife. The Protection of Women from Domestic Violence Act (2005) provides protection to the wife or live-in partner against physical or mental abuse at the hands of the husband or live-in partner or his relatives. When the law came into force in October 2006, it extended equal benefits to women in live-in relationships and married women. In other words, this meant an official recognition to live-in relationships.
In January 2008, the Supreme Court, through a verdict, further validated this practice by declaring that long-term live-in relationships would be considered as legalised marriage. A Supreme Court bench headed by Justice Arijit Pasayat with P. Satasivan declared that children born out of such a relationship will no more be called illegitimate. "Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery’," it added.
In June 2008, the National Commission for Women stated that the live-in female partner should be entitled to maintenance if her man deserts her. Pointing to the need for broad-basing the definition of ‘wife’ in the section, NCW officials said there have been many cases where the man led the woman to believe that he was unmarried or was divorced or widowed and went through the formalities required by the Hindu Marriage Act or the custom governing him. NCW chairperson Girija Vyas said, "Even if the marriage is not registered, if the woman can provide proof of a long-term relationship, her claim will stand." This was an underscoring of the Supreme Court’s stand that a man and woman, having lived together for a long period, would be presumed to have been married, unless it is rebutted by convincing evidence. It is said if the government accepts this recommendation, the term ‘wife’ may be redefined in law.
Wife vs other woman
If live-in partners in a long-term relationship are presumed to have been married, then what will be the status of the respective marriages of the two live-in partners? Or if the man already has a family? What does ‘long-term relationship’ mean? It means a minimum of 30 years as per instances taken note of by the apex court. When two women are bound to the same man, by marriage or by love, with sex being the lowest common denominator, we are actually backtracking into the 19th century when a man could have several wives and several mistresses at the same time with no questions asked.
The NCW’s recommendations are aimed at protecting the female partner in live-in relationships as, in the absence of legal sanction, the woman is left high and dry if the man walks out. But does a female partner need such ‘protection’ in a relationship she drifted into either by choice or by circumstance? And doesn’t the very term ‘live-in’ suggest impermanency, which the partners have mutually agreed to live together without getting married?
"Personally, I do not believe live-in relationships could present society with a healthy environment. It is not a conducive environment for children born of such relationships. Marriage carries an aura of respect, never mind that we know it to be a fa`E7ade in many cases. The fa`E7ade can be broken through and remedied by law and social action. But a live-in relationship does not carry respect. Sanctioning such relationships legally ‘after the cause’ does not equate them with a husband-wife relationship. I consider it wrong to artificially impose a western concept of man-woman relationship on the Indian mindset and expect radical results. Most live-in relationships are, in any case temporary." This comment comes from Gillian Rosemary D’Costa Hart, Anglo-Indian representative in the West Bengal State Assembly.
Tarun Banerjee, a Kolkata-based lawyer, quotes the case of a 25-year-old woman who committed suicide when her live-in relationship began to crack up. By then, however, she had given birth to a child. Today, her parents are trying to gain legal custody of the child from the father which, given custody laws in India, they are sure to lose. True that a child born out of wedlock is now entitled to his father’s legacy. But what if he has to share it with his father’s legitimate children? Will they hand it over to him without a fight? Socially, the child has to live with the social stigma in a society that recognises only marriage and not live-in relationships, specially when one of the partners is already married and has a separate family.
N.R. Madhava Menon opines that the legal system has been derived by the State from the moral code. This regulated "sexual relations outside marriage, fixed the age of marriage, prohibited homosexuality and delineated what was considered to be an acceptable relationship between the two sexes in social intercourse. These views are reinforced by religious interpretations and customary practices which received the binding authority of law," says Menon. So, judges would be wrong if they insist that law and morality are two different things. A murder is both morally as well as legally wrong. So is a burglary. The entire legal structure is founded on the moral principles of right and wrong. An adulterous relationship is morally wrong. Thus, to give it legal sanction is to deconstruct the entire principle on which law is based.
Feminist organisations have, however, lauded this as a landmark judgement in favour of the woman because it gives her the choice that the institution of marriage strips her of. She now has the freedom to choose the man she loves, to go wherever she chooses to go, to live with him as long as she likes, to leave him when she wishes to leave, and so on. Reduced to simple logic, she can now call herself a truly liberated woman. In one sense, this is true. But what if the other partner, the man, happens to be a married man with children to boot? What about responsibility and commitment to the relationship? Does this absolve the male partner of his filial responsibilities towards his wife and children, which includes living with them under the same roof?
Social geographer Soma Das says that people who opt for live-in relationships do so because they do not believe in marriage. "If live-in relationships are treated on par with marriage, many young men and women may not really like to get into such open relationships. On the other hand, ensuring maintenance and legal sanction to live-in relationships does not equal the position of the female partner and the wife because social acceptance will take a very long time. India still does not have a mindset that accepts the estranged female partner of a live-in relationship."
"The financial framework of live-in relationships has not been explained at all," says Tarun Banerjee. "How would a live-in relationship differ from marriage if the law sanctions both? How would the financial needs of the couple be looked after? If the man has to look after his companion’s needs, in what way then, does she have a status different from that of a legally wedded wife? If the man also happens to be married, how he would divide his financial responsibilities between his wife and his companion?" These are some of the disturbing questions he poses and to which, we have no answers yet.