The Telegraph
Wednesday , March 26 , 2014
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For Indra Sarma, it was a question of maintenance. For the country, it’s a debate. When Bangalore-based Indra and her partner started living together in 1992, she knew he was married and with children. Over the years, the relationship soured, with Indra accusing her partner, V.K.V. Sarma, of depriving her of earnings from the business he started in her name and harassing her by not acknowledging her as his “wife” publicly.

She sued him for maintenance under provisions of the Domestic Violence (DV) Act, 2005. She appealed to the Supreme Court (SC) when the Karnataka High Court quashed a trial court’s order directing her partner to pay her Rs 18,000 per month as maintenance.

But the SC, in a significant judgment, recently ruled that women in such relationships cannot claim maintenance from their partners under the DV Act as the legislation is meant to protect women in relationships that are, as the act specifies, “in the nature of marriage”. In other words, the court implies that the act, widely regarded as the first piece of Indian legislation that acknowledged heterosexual non-marital cohabitation, does not encompass live-in relationships as generally understood.

The judgment has once again stoked the fierce debate on whether legal measures in India regarding live-in relationships lack clarity.

It all started in 2003 with the report of the Malimath Committee, set up by the government, on reforms in criminal justice system. The committee wanted the term “wife” in the section to include women who cohabit with men for “a reasonably long period, during the subsistence of the first marriage”.

In 2008 Maharashtra tried to amend the Code of Criminal Procedure (CrPC) section to include women in marriage-like relationships. It was seen as a valiant attempt to legalise live-in relationships in India. Prior to that, the DV Act recognised relationships “in the nature of marriage”.

Supreme Court and high court judgments too sought to clarify what constitutes a marriage-like relationship. Attempts were made to distinguish between various kinds of live-in relationships. For instance, a Supreme Court bench of Justices T.S. Thakur and Markanday Katju ruled in October 2010 that not all such relationships “amount to a ‘relationship in the nature of marriage’ (for women) to get the benefit of the (DV) Act”. The judges likened “relationship in the nature of marriage” to a “common law marriage” prevalent in some societies and excluded one-night-stands and a man financially supporting a so-called “keep” from marriage-like relationships. The judgment drew widespread criticism.

In the Indra Sarma case, too, the apex court said it was concerned whether a live-in relationship would amount to a “relationship in the nature of marriage” as per the definition of a “domestic relationship” under Section 2(f) of the DV Act and whether the “disruption of such a relationship” by failure to give maintenance to a women involved in such a relationship amounted to “domestic violence”. It laid down guidelines for what could be considered a long-standing, serious marriage-like relationship.

The criteria include “supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long standing relationship”, running a home, sexual relationship, bearing children and socialising in public.

But are efforts to legalise live-in relationships creating more confusion for couples living together?

“The judgment in the Indra Sarma case creates no confusion — it is the legislation that has to be clear and categorical,” says Jay Sengupta, advocate, Calcutta High Court and the Supreme Court.

Indeed, the judiciary has often dwelt on the rigidity of the term “relationship in the nature of marriage”. Thakur and Katju in their 2010 judgment acknowledged that their views would exclude many women in certain forms of non-marital cohabitation from the DV Act’s benefits, stressing it was Parliament which used the expression “relationship in the nature of marriage” and not “live-in relationships”.

In the 2013 Sarma judgment, the court says: “Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.”

What existing laws such as Section 125 CrPC and Section 2(f) of the DV Act aim to do is provide protection or transfer some rights of married women to those in “relationships in the nature of marriage”. As a study, Staying Alive 2009, by the Lawyers’ Collective, a group headed by additional solicitor-general Indira Jaising, puts it: “It is important to note that it (the DV Act section) does not make an invalid marriage valid or provide legal recognition to bigamous marriages… This provision merely seeks to denounce domestic violence in any quarter”.

Legal endeavours have over the years recognised the existence of live-in relationships. The Indra Sarma judgment says that living together is “neither a crime nor a sin”, but still socially unacceptable in India. In a study on live-in relationships in India, published in the Economic and Political Weekly, Anuja Agrawal, professor of sociology, Delhi University, points out that it’s obvious that “non-marital relations have not had a criminal or ‘illegal’ status in India insofar as they are not covered by the adultery law (Section 497 IPC which punishes male paramour and not women) and insofar as the principle of presumption of marriage prevails”.

So, should there be a separate law covering all types of live-in relationships? Some believe that amending the existing DV Act will do. “There is no need to have a separate law. An amendment in the 2005 act to include such relationships in its ambit should be enough,” Sengupta says. “Our society cannot allow debauched men in such relationships get away with exploiting hapless women drawn into such arrangements.”

But others cite complexities of individual forms of live-in relationships. “It is not obvious that all forms of non-marital relations can or should be treated as legally identical,” argues Agrawal, who feels that the live-in legal measures so far in India seem to be set against “the backdrop of prevalent practices of married men entering secondary relations with women” and not wholly based on modern live-ins.

In the absence of clear social and legal categorisation of non-marital relations, the field has been left wide open. Even the highest judicial functionaries have allowed themselves to pontificate upon the need to separate a “relation in the nature of marriage” from that with a “servant” or a “keep” and a “one night stand”. It remains to be seen whether lawmakers will bring in more clarity in existing legal provisions.