`Keeping’ with the times?

“We should have been in the UAE,” Sudhir had grinned as he read out a news item earlier this week to me and our young daughter that said the Supreme Court in UAE had ruled that a man could `discipline’ his wife and young children by beating provided he does not leave a mark on their body.
We joked about it, dismissing it, perhaps with a subconscious feeling of reassurance that this could happen only in `those Gulf countries’. In a relatively progressively inclined society like India, no chance.

Thursday afternoon I was wondering if our feeling of supreme confidence about the judicial protection women would get in India was misplaced. In what to me seems a controversial decision, the Supreme Court of India has tried to spell out in what situations and under what circumstances a woman living with a man, without being legally married to him, would qualify for maintenance and protection.

Those inclined to look at the silver lining could say that at least now it has been spelt out about what kind of a live-in relationship would qualify to be considered in the nature of marriage. The court lays down four conditions.

The couple must have `voluntarily cohabited’, must appear to society as being `akin to spouses’ for a significant period of time, and be qualified to marry both in terms of legal age and being single.

What’s more, there should be proof in the form of evidence. So legal eagles say it is a wake-up call to women in vulnerable situations to start collecting evidence that they could need at some time to seek legal protection.

The apex court has also said that merely spending weekends together or a one-night stand would not make it a domestic relationship. So if work or other reasons keep the couple in different cities over the week and they only meet over the weekend, that would not be seen in the nature of a marriage.

So no rights or responsibilities for those who slog through the week to have time together over the weekend. You could rue or celebrate the decision, depending on your perspective.

“That men have extra marital relationships is a reality. Can you imagine the pandemonium and social turmoil society would be thrown into if mistresses and keeps were given the rights and sanctity of a wife or a long-standing live-in partner? What would happen to the man and the family?” asks a friend who fancies himself as a social realist.

But I wonder if our presumption about the power equation that a woman labelled as a `mistress’ or a `keep’ enjoys vis-a-vis the man is not pre-conditioned by our social and cultural bias. And that is why it bothers me when the apex court spells out that “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.”

Is there a subjective moral judgement there?

Feminists would say the use of the language, the reference to a woman as a `keep’, who is `maintained financially’ and `used’ mainly for sexual purpose smacks of commodification of a woman, turning her into a sexual object. An interpretation that narrows and looks through coloured glasses the many shades that a live-in relationship, sexual or even platonic, could have.

To me, the woman who is financially dependent and gets `used’ for sexual purpose or as a servant is precisely the person who would need protection under the law. What an irony that she should be excluded.

If the judiciary is only inclined to protect a woman who is financially independent, liberated in many ways, who has consciously chosen not to be legally wedded, then the law doesn’t seem to be for the one who presumably needs it most.

The apex court has, in the case that was being argued, ruled that Patchaiammal, who claimed to have married Velusamy and is said to have lived 14 years with him, will not be entitled to the maintenance of 500 rupees that the Madras High Court and a matrimonial court had granted her.

That’s because Velusamy had challenged the two court orders on the ground that he was already married to one Laxmi and Patchaiammal was not married to him though he lived with her for some time. And since Laxmi was not given a chance to be heard, the directions passed by the lower court was ruled as erroneous and the matter would go back to the matrimonial court to examine whether Laxmi was the legally wedded wife of Velusamy.

So the court has interpreted section 125 of CrPC relating to maintenance, and said that besides a legally-wedded wife, dependent parents and children alone are entitled to maintenance from a man.

What’s interesting is that the Protection Against Domestic Violence Act of 2005 had expanded the scope of maintenance by using the expression ‘domestic relationship’ to include not only the relationship of marriage but also a relationship ‘in the nature of marriage’. Parliament did not use the expression `live-in relationship’.

The Supreme Court admits that it is conscious that the view it is taking would exclude many women who have had a live-in relationship from protection under the 2005 domestic violence Act. But it has said that since the expression has not been defined in the Act, the court thinks it is necessary to authoritatively interpret what qualifies to be called a relationship in the nature of marriage.

Optimists can rejoice that for the first time, the scope of alimony has been extended to include `palimony’, which means a long-term pal who is not a legal spouse can also be entitled to maintenance.

A reflection of the new dynamics of social relationships in the country. Is the law in keeping with the times?

About t s sudhir & uma sudhir

Uma Sudhir and T S Sudhir are senior journalists, based in Hyderabad. Both work for NDTV. Uma is a Tamilian, who was educated in
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4 Responses to `Keeping’ with the times?

  1. Ajay Gandhi says:

    Uma: The court has merely interpreted the law as laid down. It has said that the Parliament can enlarge the scope of the law in its wisdom. That is a good approach to take – the less the courts legislate the better for us.

    Evidence: it is not difficult to further evidence and not all evidence needs to be documentary.

    • Thanx Ajay for your response. I agree. That is what I have said too. That the court has attempted to clarify and interpret the law by defining the parameters. I have no doubt that it was done in good faith. What worries me is that while doing so, it has spelt out some situations that to me defeats the spirit of the law. For example, a woman who is a `keep’ who is `maintained financially’ for purpose of `sex/work’. To me that sounds like the court is in other words calling the woman a prostitute. And don’t you agree that most often, in India’s sociocultural reality, it is a woman in such a situation who needs legal protection the most? Most often, not having the legal shield of marriage is not a decision the woman makes.

  2. murali shankaran says:

    uma u r right , but is prostitution legalised in India ?
    , when have our judiciary been of support to the women , or raised their issues . when the law making bunch of so called jokers are silent , what will the law upholding set of people do

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