Indian laws are now heavily women biased: a whole heap of legal benefits flow to women in both marriage and live-in relationships that don’t flow in the other direction, writes Ranjeev C Dubey.
Here’s a confusing contradiction for the connoisseur: Indian courts are very slow to decide anything at all, but they are exceedingly quick to evolve laws to respond to ever-changing social mores. The battle over the rights of homosexuals may not be the best example of this, but in most departments of social engineering, they have the bases covered, frequently ahead of the curve. That includes this new fad of living-in with someone, rather than getting married. Shorn off the rhetoric, it comes down to this: Indian laws as they now stand have made the whole Big Fat sangeet-chura-lavaan-phere circus irrelevant to the rights and obligations of those in non-platonic heterosexual relationships. If you have a mind to dispense with the glitz and the sleaze and simply live with someone, you can be sure the difference in your legal status is only in the money you didn’t spent on the ceremonies!
In order to explain this new normal, allow me to break down the issues into the BIG FOUR questions and try and answer them. While doing so, bear in mind that Indian laws are now heavily women biased: a whole heap of legal benefits flow to women in both marriage and live-in relationships that don’t flow in the other direction.
The first and foremost question is the legal status of women in long-term live-in relationships. The short answer is that to all intent and purposes, they are wives. No law says so in so many words, but the way our laws are being interpreted has this inevitably result. A great example is The Protection of Women from Domestic Violence Act, 2005 which defines “domestic relationship” under Section 2(f) 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…”
This is entirely consistent with the view the courts have been taking since at least 2006 when in Lata Singh Vs. State of U.P., [AIR 2006 SC 2522], the Supreme Court observed that “a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of ‘adultery’), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or “live with anyone she likes”. Our seemingly conservative judges are really quite progressive, I will have you know!
That still leaves open the question: what is a ‘relationship in the nature of marriage’? In D. Velusamy Vs. D. Patchaiammal [AIR2011SC479], the Supreme Court reduced this issue to a bunch of four tests thus:
- The couple must hold themselves out to society as being akin to spouses;
- They must be of a legal age to marry;
- They must qualify to be married, and that includes questions like being of sound mind and being unmarried; and
- They must be living together voluntarily for a significant period of time.
Naturally, not all live-in relationships become “relationships in the nature of marriage”. As the court so evocatively explained, “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage”. Similarly, spending weekends together or making one night stands or even having a long term “F**k Buddy” does not create that type of domestic relationship.
So what is a good example of this kind of relationship? In Indra Sharma vs V.K.V Sharma [AIR2014SC309], the man was married with two children while the lady was unmarried. In 1992, she quit her job and started living with the man in a shared household. His whole family including especially his wife opposed this arrangement without success for some fourteen years. He helped his mistress start a business and financed it liberally. Things fell apart when he relocated the business to his home, introduced his son to it and eased his mistress out of the business. She went to court claiming that he forced her into multiple abortions and demanded maintenance. This is when the Supreme Court laid down our definitive Indian tests for what is a relationship in the nature of marriage thus:
- The relationship must have continued for a reasonable period of time;
- The two must have had a ‘shared household’;
- The two should have ‘pooled’ their resources and financial arrangements, and that includes joint properties, common bank accounts, jointly owned shares, etc;
- The two should have had an intimate sexual relationship, not just for pleasure, but for procreation and mutual emotional support;
- They should have held themselves out as a couple in public; and
- It should have been their intention to perform the roles generally attributed to a married couple.
In culmination, the Supreme Court threw out the lady’s case because the guy was already married observing that if “the appellant’s status is lower, than the status of a wife and that relationship would not fall within the definition of “domestic relationship”. In the upshot, a maid yielding benefit to her Sahib can’t claim an improved status, especially if he is married already!
Which takes us to the next question: can such a lady demand that the man maintain her? The answer is an unqualified yes. Sec 20 of the DV Act covers just such claims and it extends beyond living expenses to one-off medical expenses, etc. Indeed, courts have held that the general power given to Magistrates to help destitute women under Sec 125 of our Criminal Procedure Code would extend to such relationships. In Chanmuniya vs Virendra Kumar Singh Kushwaha, [2010 (83) ALR 459], the lady claimed that after the death of her first husband, she was married to the younger brother in accordance with the Katha and Sindur custom of the Kushwaha community. She claimed that they lived as man and wife for a long time but eventually, he refused to discharge his marital obligations towards her. Pronouncing her entitled to be maintained, the court held that if two people cohabit together for a long spell, there is no need to prove a marriage ceremony.
But is such a lady entitled to succeed to the properties of the man should his death precede hers? Again, the answer is yes, even though this law rides on the back of a presumption. In Dhannulal Vs Ganeshram [2015(3) ADJ697], one Ganeshram and Bhoolbasa Bai resided together for a long time. He was already married and had children from that marriage. Still, when the question of inheritance to his property arose after his death, the Supreme Court held that the “law presumes in favour of marriage and…when a man and woman have cohabited continuously for a long time…, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin.” As a lawyer, I can tell you it is practically impossible to prove a negative!
So what is the status of children born of such relationships? Once again, the law is totally clear on this point. In Bharatha Matha Vs. R. Vijaya Renganathan [AIR2010SC2685], the children of wife and mistress each claimed a share in the estate of the gentlemen concerned. Since the lawfully wedded wife was alive at all material times, the legitimate son argued that the other women could not claim a presumption of marriage, nor could her children claim inheritance. The Supreme Court ruled that since the Law of Evidence presumes that every child is legitimate, the mistress’s children don’t need to prove anything. So long as the property belonged to the man alone and did not belong to a joint family, these children could inherit a share in it. For good measure, I can add that it is not only inheritance that illegitimate children can claim. Section 20 of the Hindi Maintenance and Adoption Act 1956 require a man to maintain his children, irrespective of their legitimacy.
In the result, any which way I look at it, I don’t see how it profits Indian men to live-in rather than marry. Men carry the same responsibility to both partner and children. If they bail out, they pay for the women’s keep. When they die, the woman gets a share of the property. If kids are born of the relationship, they inherit too. Where’s the percentage in doing it? That’s not true of women. Men have no rights to a women’s attention, income, property or monogamy outside of marriage. There is no fat dowry to pay or baraat expenses to bear. The man has to pay all the bills once the liv-in arrangement gets under way. If the man turns out to be drunk or ‘not good enough’, the lady can run off without pain (yes, yes, Indirani Mukherjee) or better still, accuse him of rape. With arrest and jail facing him, he will part with whatever he has and cast himself out of her life. This comes with a host of fringe benefits too: no demanding In-laws or relatives to cope with being only the beginning. Who would not want perfect power with little responsibility?
Author: Ranjeev Dubey, Lawyer
(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at firstname.lastname@example.org or email@example.com).
*Originally published at Businessworld. Published here with the permission of the Author.