Picture this. Man meets woman. They fall in love. In the first, rosy flush of romance, the man says he wants to marry her. A few months or years down the line — after they’ve become lovers — he cools towards her. The woman is distraught. But the relationship is over.

Happens all the time, right? But what if the woman turned around and told him, “Hullo, you can’t just dump me! Since we’ve been having sex, we’re already married. So you better treat me like your wife. And if you don’t, I’ll sue you for maintenance.”

That sounds like a woman suffering from a serious case of delusions. However, it’s more or less the scenario that seemed to suggest itself after the Madras High Court came out with a controversial judgment last week.

While awarding maintenance to a woman who had two children from a long term live-in relationship — a perfectly just and right order — Justice C.S. Karnan went on to make a series of observations that are frankly bewildering. He said, for example, that if a “bachelor” and a “spinster” indulge in “sexual gratification, that would be considered a valid marriage and they could be termed ‘husband and wife’…”

He further said: “Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established.”

While long-term live-in relationships are regarded as relationships in the nature of marriage (there is a 2010 Supreme Court judgment by Justices Markandey Katju and T.S. Thakur to that effect), this particular ruling has flummoxed layman and legal pundit alike by declaring that a sexual relationship was tantamount to “marriage”. What’s more, it seems to advance the astounding view that sex and marriage are synonymous, that one cannot exist without the other.

Amidst the hue and cry that followed the ruling — and the welter of gleeful, lurid jokes that set social media afire — some lawyers have been at pains to point out that it has to be seen in the context of the case at hand. Others say that the consternation over its ostensible sex-equals-marriage view is unwarranted. It is unlikely that the ruling will be treated as a precedent if a woman goes to court claiming the legal status of a wife simply because she has had a sexual liaison with a man.

As Anup Surendranath, Assistant Professor, National Law School, Delhi, explains, “I don’t think there is any quarrel with the verdict in this case. However, Justice Karnan’s reasoning is incorrect in law and ignores previously decided case law. So it’s unlikely that the judgment will have any wider implications.”

Perhaps not. However, judicial observations such as these lend credence to a growing body of opinion in India today that in our effort to protect the rights of women, some of our laws and their interpretation are perhaps beginning to tilt a bit too much in their favour. So much so that they are now open to serious abuse. And the tragedy is, as Mrunalini Deshmukh, a senior Mumbai-based lawyer who specialises in matrimonial cases, puts it, “These laws are being misused by the haves; they are not benefiting the have-nots” — the millions of disenfranchised women in India’s semi-urban and rural outbacks.

Take the increasing number of cases where a woman, after her sexual or live-in relationship with a man has ended, goes to court charging him with rape. “That’s a rising trend,” admits V. Kannadasan, president, Family Advocates Association, Chennai. He talks about a case where a woman, an information technology company executive in Chennai, lived with a man for five years. When he left her, she filed a case of rape and alleged that he had forced her to have sex with him. The case was finally settled out of court.

One is tempted to ask why this woman — educated, independent — let herself be “raped” for five long years. But like it or not, the law says that if a woman has been deceived into having sex (perhaps by promising her marriage) that amounts to rape.

Doesn’t this kind of legislation ignore the fact that a woman is not necessarily a helpless, dumb doll — that if she can make a choice about living with a man, that choice is probably an informed one? And that she should be aware that he may not make good his promise of marrying her? A woman may be hurt and traumatised, but does that entitle her to scream “rape” when a relationship ends?

Says sociologist Shiv Visvanathan, “Pro-women laws should legitimise the agency of women, not their victimhood. Moreover, freedom under law must also allow for the souring of a relationship; it must allow for responsibility for one’s actions.”

Of course, many legal experts and women’s activists feel that such arguments are misplaced in the context of India’s social conditions, where most women are exploited at home and outside. “Given the complex societal reality and the pressures that operate on women, we cannot take a formalistic view that if she is deceived, it’s her responsibility,” insists Surendranath.

Still, there’s no denying the sense, at least in urban India, that in trying to make sure that women get justice, the legal system is often ending up by giving men the short end of the stick. The Jiah Khan suicide is a case in point. The actress, who so tragically took her life, may have been severely aggrieved by the way her boyfriend Suraj Pancholi treated her. But some wonder if the circumstances of the case warranted Pancholi being slammed in jail on the non- bailable charge of abetment to suicide.

Khan, an empowered woman by all accounts, could have walked out of the relationship. And if she couldn’t, and committed suicide because of heartbreak, who is responsible for that? The law enforcement authorities seem to have been overzealous here, feels Deshmukh. “It’s bizarre that the man should be at the receiving end in this case,” she says.

The Marriage Laws (Amendment) Bill is another piece of legislation that is laying itself open to abuse. The move to give women a share in the husband’s property — not just that acquired during the duration of marriage but also his inherited and inheritable property — in case of divorce is hardly fair, say experts. “It will certainly help gold diggers,” says Deshmukh. Especially because the bill makes no mention of a minimum period of time that a couple should have been married for its provisions to come into play.

Some activists are also opposed to the idea of a woman’s share in the husband’s inherited property in case of divorce on the principle that it undermines the concept of gender equality. “We feminists demand equal rights and nothing more,” says Vrinda Grover, lawyer and women’s rights activist. Grover would rather have a clear law on what constitutes a matrimonial property and give both husband and wife equal rights to it.

The application of the Domestic Violence Act too is routinely criticised for being skewed in favour of women. The act lays down that if a magistrate comes to the conclusion that domestic violence is taking place, he or she can grant interim maintenance to the victim. “But let me tell you,” says Deshmukh, “At the interim stage, no magistrate finds out whether domestic violence is actually taking place. So these magistrates’ courts are actually being used as maintenance courts!”

So are our laws, especially those that deal with the relationship between the sexes, truly becoming over protective of and over indulgent towards women? And are we witnessing an environment where, instead of facilitating a woman’s independence, many of the laws are promoting her dependence on men?

There is no short answer to that. After all, while pro-women laws are certainly abused — and the oldest of them, Section 498A of the IPC, is also a prime example of that — there are thousands of genuine cases where women could benefit from them. As Ranjana Kumari, director, Centre for Social Research, Delhi, points out, “For every case of an upper middle class male alleging extortion in the name of alimony by his partner, there are lakhs of cases of exploitation of women. The law has to keep them in mind.”

Most legal experts take a similar view, stressing that a few instances of miscarriage of justice should not make us dilute the provisions of pro-women legislation. For on the whole, India’s social, economic and legal systems continue to be loaded heavily against women. And we do need strong enabling laws that punish injustice and crimes against women.

“At the same time,” says Supreme Court lawyer Majid Memon, “to eliminate or minimise the abuse of law, the facts and circumstances of each case must be examined with utmost circumspection and sensitivity.

Unfortunately, often that doesn’t happen. And in the pressure to deliver justice to women, “righteousness often replaces the right”, says Visvanathan. The result is either a plain miscarriage of justice, or the kind of sensational observations that came out of the Madras High Court last week.

Pressure points

Some laws liable to be abused by women and their relatives

Domestic Violence Act: Domestic violence and maintenance

Sections 417, 375, 376 of IPC and Section 90 of the Indian Evidence Act: Sex by deception, which amounts to rape

Section 306 of IPC: Abetment to suicide

Section 498A of IPC: Dowry demand and cruelty by husband and his relatives

The Marriage Laws (Amendment) Bill when it comes into force: Division of property in case of divorce

Additional reporting by Hemchhaya De in Calcutta, V. Kumara Swamy in Delhi and Kavitha Shanmugam in Chennai