“Live-in relationship” is a newly coined term for an old age practice of intimate relationship between man and woman, without valid marriage. A free woman, kept by a man without marriage, is termed as “suretin” or “up-patni” in Hindi. The more popular word used for this outside marriage relationship is “rakhel” in Hindi or “keep” in English. A “keep” in the feudal world was “courtesan” or “mistress”, now called “girlfriend” in the westernised parlance. Such a relationship has never been regarded as respectable or acceptable in any society.
In ancient India, Rajas, Maharajas, Landlords, Nawabs and Noble-men, etc., besides their lawful wives, used to corner women, exclusively for “themselves” from red light area or from deprived and defeated peoples. Such women were generally provided all worldly comforts, sans dignity and freedom to walk out. The status of this “privileged” class was gauged by the number of women in the court.
Tracing the history of the institution of the “courtesan”, the author of France in the Age of Les Miserable noted:
“Marriage in the nineteenth century was more of a business deal than an act of true love. This idea was abhorrent to some women and so, not wanting to leave the comfort of their lifestyle would simply turn to a life that would allow them to continue on as they had without the confines of a husband.” https://www.mtholyoke.edu/courses/rschwart/hist255-s01/courtesans/home.html
The world has entered in the 21st century; feudalistic practices have faded, but marriage has become more business-like than an act of submission for love and protection. Lust to enjoin marital life without shouldering responsibilities of family life is on rise. Stringent laws for divorce and unjustified benefits for the divorcee women have their own shadow on crippling institution of marriage. This, combined with the decline of moral values is encouraging the vice of live-in relationship. In western countries, divorce has become a lucrative business for women. A divorcee woman is entitled to half of all assets of husband, while man gets nothing form wife’s assets.
A DISTINCTION
Modern day’s woman trapped in “live-in relationship” has a distinction from other forms of illegal practice. “Courtesans” or “mistresses” generally belonged to “prostitutes” who adorn now the title of “sex workers.” “Keeps” were generally from poor or deprived background; while women in “live-in relationship” belong to a particular scion of modern educated class. This section, especially in the Indian context, has distanced itself from the deep-rooted value system. They do not care for the society they live in for making or breaking relations. But our courts want society to take care of them in case they face problems. To them, disdain of marital bond and enjoying heterosexual life at will is “neither a sin, nor unlawful”. And so Honourable Judges are inclined to cultivate social acceptability for those who do not accept the role of society in their social relations. They want society to sweep away its moral values and criterion of sin and legitimacy, which in fact is the backbone of our social fabric.
Since such relationships are emotional and sex-crazy, and do not base on solid grounds of making a family, the breakdowns are also emotional and easy. The concept of being such matters strictly “personal” has created more complications. Sometimes a woman breaks away to elope with someone else. At times a man kicks out his woman to have a fresh partner. In the absence of formal bond of marriage, the woman is deprived of all assistance in the form of maintenance for herself and her illegitimate children. With termination of such relations, which are not within the ambit of “marriage” and not recognised by law, the woman and her children suffer more than man.
SC OBSERVATIONS
In such a case a bench of Honourable Supreme Court has made certain astonishing observations:
(a) “The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.”
(b) “Live-in or marriage like relationship is neither a crime nor a sin.”
(c) Live-in relationship is “socially unacceptable in this country.” Though, “various countries have started recognising such relationship.”
Therefore the court wants the Parliament to enact law to safeguard the interest of “the women who invariably suffer because of breakdown of such relationship” and the children born of this illegitimate relationship. The eight-point guidelines, which are “not exhaustive”, have also been issued.
SOME QUESTIONS
The observations we feel are beyond the purview of “interpretation and defining” the law, and so raise some questions. In our society, “heterosexual” relation is not a personal affair. The prevalent Civil Law and Hindu Law also prohibit second marriage and so negate “heterosexuality”. In many cases this rule applies on all citizens, irrespective of Personal Laws. For example, no Civil Servant or a member of Armed Services can have second wife.
Secondly, “live-in” relationship is not a “marriage like relation”. Marriage has sanctity of religion and our traditions. While live-in relation is both “illegitimate” and “grave sin”. Dictating or negating social values or religious beliefs is not within the ambit of courts. We cannot be carried away by courts in the matters what “sin” is and what not. All sexual activities, without valid marriage is a “sin” and “punishable act” in our ethos derived from Divine laws. And we cannot give this right to interpret Divine Law to courts at their will. All sexual ills and crimes marring the world today are rooted in the dirty notion of “sex with consent” is not crime. The solution lies in the Divine decree: “And do not go near fornication. Verily, it is an abominable crime and evil way.” (The Qur’ān, 17:29)
Thirdly, courts in India, for settling family disputes, have always relied upon customs and traditions of the couple in dispute, and never count upon “social trends elsewhere”. Customary Laws get prevalence even in written laws. Referring “various countries recognise” this trend or that trend is a deviation from existing norms of Indian judiciary and is dangerous.
THE SOLUTION
However as humanists, we share court’s concern about the sufferings of the helpless women driven out of shelter. And we see a solution without compromising our social values. Amend Civil Marriage Act and Hindu Code Bill in accordance with Hindu Religious Text and traditions. No text, reported tradition or prevalent customs in India prohibit man to have more than one wife. Polygamy is neither a “sin” nor a “crime” in our ethos. Why love “heterosexuality” beyond bonds of marriage and stick to law of monogamy? So amend erroneous law to remove legal hurdle for an ethically acceptable system of Polygamy. Certainly rules may be framed for justice with all wives.
Law Commission of India, in its Report No. 227, has dealt in detail with the cruelty in the rule of Monogamy en-rooted in Hindu Code Bill and Civil Marriage Laws. The report suggests that in certain genuine cases Polygamy be made permissible. For example, in cases of infirmity of wife, chronic illness or inability to bear child or even at the time of serious differences, a man must be allowed to bring second woman as wife in his house for smooth function of home affairs, without cruelty of kicking out his first wife.
Harsh laws of divorce also have a dampening effect on marriage and do increase burden on the courts. In all societies and legal systems, acceptability of divorce has granted marriage the status of a contract between man and woman. Courts, instead of drawing guidelines in matters of “live-in relationship”, can be better engaged in guiding for genuine rules on safeguards for both parties in case of termination of this contract.
[The writer is Gen. Sec. of Forum for Civil Rights. [email protected]]