On “live-in” relationships, “Hindu culture” and Uniform Civil Code
Many of you must have, read about the controversial move by the Maharashtra state government to amend the Criminal Procedure Code (Cr.PC) Sec. 125 with a view to legalising “live-in relationships”. I spent a few hours today gathering links in favour of and against the debate.
The arguments that have been made “for” this move are:
It will protect the interests and rights of the so-called ‘mistress’ or ‘other woman’. We may not admit it but we all know that these women are the worst sufferers in the current system in spite of giving up years of their lives (and more) to one man without any legal protection at all (especially in cases of abuse or harrassment). The move would equate such women to legally married wives in matters of property, inheritance and maintenance.
In the words of women’s activist Flavia Agnes:
“…Men, who until now used to deny such a relationship on grounds that the marriage was never conducted as per Hindu rites, shall now have no escape route…” (and) this will protect the rights of such women who had limited protection under the Domestic Violence Act, 2005 [ link ]
As Ranjana Kumari, director of the Centre for Social Research in Delhi said:
You need a law that protects children and entitles these women to a share or property. It is a step forward in recognising the autonomous rights of women [ link ]
ToI quoted government officials explaining why such a law was needed:
Explaining the need for such an amendment, state law department officials said most bigamy cases lead to problems for the ‘other woman’ not recognised by law in presence of the official wife. “The other woman is on the streets in dire straits if the man decides to dump her for someone else. She is not entitled to any maintenance as her status is not that of a wife,” said officials.
Against this backdrop, the state amendment proposes that any woman who has become the other woman in a man’s life, knowingly or unknowingly, should be eligible for maintenance under CrPC, said officials. [ link ]
Shoma Chatterjee wrote on IndiaTogether:
…NCW (national Commission for Women) officials said there had been cases where the man led the woman to believe that he was unmarried or was divorced or widowed and went ahead with the formalities required by marriage laws or the custom governing him. As a way of countering this, NCW chairperson Girija Vyas suggested that even if a marriage was not registered, a woman’s claim would stand if she provided enough proof of a long-term relationship. This underscored the Supreme Court’s stand that a man and woman, having lived together for long, would be presumed to have been married, unless it was rebutted by convincing evidence.
I was not aware that courts in India had already pronounced that live-in relationships were not illegal. Shoma cites the case of Payal Sharam in her article at the end of which Allahabad High Court said:
…Petitioner Smt. Payal Sharma appeared before us and stated that she is above 21 years of age, which is borne out from the high school certificate which shows that her date of birth is 10.7.1980. Hence she is a major and has the right to go anywhere and live with anyone. In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.” link
My personal opinion is that the move is a progressive step and helps fomalise relationships which otherwise would (in most cases) be disadvantageous to women.
Let us now look at arguments “against” this move:
Lawyer Neelofar Akhtar was quoted as saying:
…this essentially goes contrary to the Hindu Marriage Act, 1955, which has no provision for a second wife among Hindus…
That may be true…but if I have understand the proposal correctly, the law will not legalise second marriages per se, but only relationships where the live-in women has been, for all practical purposes, living as a “wife” and life-partner with someone. In that sense, it will apply retrospectively and not in the future.
In addition, there may well be long-term live-in relationships where neither of the individuals concerned are married. This amendment will be able to protect the woman in such cases too.
The second objection is that the law would be open to abuse:
“Women with questionable motives could claim advantages under the proposed law even for ‘one-night stands’ or ‘temporary relationships’, with few options available for the legally-wedded wife or the man,” she added. [ link ]
This does not make it a bad amendment but suggests that it needs to be interepreted and applied carefully.
The third objection is that it is incompatible with existing laws…Mumbai BJP spokesperson Shaina N C said “…Hindu Marriage Act or even Muslim laws do not permit such relations. “Then why is the government bent on according it legal status”?…
But this would suggest that it is time to bring in the Uniform Civil Code perhaps?
The fourth objection that has been raised is that it is against “Hindu Culture”.
The move was criticised by Hindu conservatives as being a “step towards destroying the country’s cultural fabric”. Surender Jain, spokesman of the World Hindu Council said: “It will be bad for India to import these western ideas. We have seen in the west it leads to the breakdown of the family. In India it will see bigamy and prostitution rise.” [ link ]
Quite apart from the challenge(s) of defining what exactly is “Hindu Culture”, as this article reminds us, there is mention of something called “Gandharva Vivaah” in Hindu texts.
INDIAN TRADITION provides for all types of marriage relationships that are formal and informal as categorised in the mythologies and other traditional folk stories. One among such eight type of marriage is ‘Gandharva Vivaha’ defined as a relationship similar to a live-in relationship.
Another way of going out of bindings of marriage is by disowning the ‘Mangalsutra’ knotted by one person and getting a brand new one from another. This practice is widespread across India even to date with different names in all states.
But perhaps there are questions that need to be discussed and debated…Shoma Chatterjee mentions at least a few in her article:
- “…Which woman’s ‘interest’ should the courts and law protect, and in doing so, can the apparent equality between married and unmarried couples be maintained?“
- …what does this mean for laws against bigamy? and what about the”…social, legal and filial implications that bind the husband in a Hindu marriage, which includes living with the wife and children under the same roof?”
- what about the ”…’marriage-like’ protection for a woman who enters a relationship with someone she isn’t married to, by choice or circumstance. Does a female partner need the protection of legal standing equivalent to that of a wife, in a non-married relationship she entered into by choice or circumstance?
And as she points out, it ”…legal sanction granted to a live-in relationship may put it back in the trap that live-in partners sought to evade in the first place. This legal sanction implies that live-in relationships are bound by the same rules of fidelity, commitment and economic stability that marriage is structured in….”
Is that really a bad thing though? and can it not be addressed with an opt-out clause (not sure of its practicality though)?
My starting position on this issue is that it is a good step forward and it should be supported by those who value freedom of choice and individual freedoms…
As many of you know, Mahesh Patil of BPD has written a strong comment on this issue which I am pasting below. I will respond to the points he has raised in due course. But in the meantime, please continue the debate here via comments.
I am also personally inviting a few bloggers whom I respect for their forthright and well-articulated views to comment on this…I think this is an important issue with wide social ramifications and is worthy of serious discussion and debate.
Over to you all
@ Mahesh: Thanks for your comments which I have moved here.