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, san dignity and freedom to walk out. The status in 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 then 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 then 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 immorality of live-in relationship. In western countries, divorce has become a lucrative business for women. A divorcee woman is entitles to half of all assets of Husband, while man gets nothing form Wife’s assets.
Modern day’s woman trapped in “live-in relationship” has a distinction from forms of practice. “Courtesans” or “Mistress” generally belonged to “prostitutes” who adorn now the title of “sex worker.” “Keep” was 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 Indian context, has distanced itself from deep rooted value system. They do not care the society in which they live for making or breaking relations. But our courts want society to care them in case. To them, disdain of marital bond and enjoying heterosexual life at will is “neither a sin, nor unlawful”. And so Honorable Judges are inclined to cultivate social acceptability for those who do not accept 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 relationship are emotional and sex-crazy, and do not base on solid grounds of making a family, the break downs are also emotional and easy. The concept of being such matters strictly “personal” have created more complications. Sometimes woman breaks away to elope someone else. At times man kicks out woman to enjoin with a fresh partner. In the absence of formal bond of marriage, woman is deprived of all assistance in the form of maintenance for herself and her illegitimate children. Termination of such relations, which are not within the ambit of “marriage” and not recognized by law, woman and her children suffer more than man.
In such a case a bench of Honorable 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 recognizing 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. An eight point guide lines, which is “not exhaustive” has also been issued.
The observations, we feel are beyond the preview 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 prohibits second marriage and so negates “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 the courts. We cannot be carried away by courts in the matters what “sin” is, and what is not. All sexual activities, without valid marriage is a “sin” and “punishable act” in our ethos derived from Devine laws. And we cannot give this right to interpret Devine 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 dictat, “and do not go near fornication, Verily, it is an abominable crime and evil way (Qra’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 is gets prevalence even on written laws. Referring “various countries recognize” this trend or that trend is a deviation from existing norms of Indian Judiciary and is dangerous.
However as humanist, 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 tradition. No text, reported tradition or prevalent customs in India prohibits 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 a ethically acceptable system of Polygamy. Certainly rules may be framed for justice with all wives.
Law Commission of India, in its report 227 has dealt in detail with the cruelty in the rule of Monogamy enrooted in Hindu Code Bill and Civil Marriage Laws. The report suggested 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 had granted marriage status of a contract between man and woman. Courts, instead of drawing guidelines in matters of “Live-in relationship” will be better engaged in guiding for genuine rules safeguards for both parties in case of termination of this contract.
Writer is Gen. Sec, Forum for Civil Rights.