A couple of years ago, India witnessed a very poignant moment which till then was uncommon in the Indian psyche — despite the huge foreign troop presence in the neighborhood, the Taliban-sponsored unrest in two countries of the continent and India’s own long history with Afghanistan. The incident was the execution of an Indian engineer, apparently by the Taliban, which had so far targeted mostly Americans and Europeans. It was, however, not the first tragedy of its kind and neither was it going to be the last. And yet what stood out about that heart-rending scene was how the anguish of his spouse so quickly turned into anger, snatching from her even the last grieving moments over a lost partner. What surfaced was the second secret family of the worker hitherto unknown to everyone – his other wife and child. Accusations flew even as the man who actually broke the law (bigamy is an offense in India), cheated on one wife and led a surreptitious life with another, lay dead. And as the horrific death was soon forgotten (to be replaced by the memory of his tragic, divided life) one cannot help but think about the people in these complicated relationships – their choices and circumstances. Who really are the victims here?
Despite the existence of the anti-bigamy law, there are just too many examples of it all around, whether from the almost revered celluloid world of filmstars, the powerful politicians or the general populace. Often the cheap trick of conversion has been used to by-pass the law since the Muslim personal law does not come under this jurisdiction (India does not have a uniform civil code and since Muslim personal law allows polygamy, Muslims practicing polygamy cannot be penalized by the Indian civil law). Most of the time the first wife does not even file a case against the husband and continues to cohabitate in a tenuous compromise with the ‘other’ woman or second wife.
The Indian Supreme Court’s (SC) decision that a live-in-relationship should be treated as equivalent to marriage is set to change the dynamics of such relationships. The court’s proposal was followed by similar suggestions from the National Commission for Women (NCW), which in seeking to change the definition of ‘wife’ recommended that women in live-in relationships should be entitled to maintenance if the man deserts her.
The Mumbai High court recently followed suit and is ready to sanctify live-in relationships and the Maharashtra cabinet approved a proposal which seeks to give the status of a wife to a woman involved in a live-in relationship.
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What makes this proposal interesting is that despite the need to have marriages registered, Indian marriages have hinged so heavily on symbolism that even the exchange of garlands at a temple, application of the sindoor (vermilion worn by women on the forehead as symbols of matrimony) or the mangalsutra (worn around the neck) were enough to prove marriages in the country for, at least, the majority Hindu community. And this is what made deceiving an illiterate girl or her family into a fake marriage and subsequent abandonment very easy. Besides, there have been innumerable situations where the second wife/woman is often not aware of the existence of another wife until much later into the relationship; where the woman was led to believe that the man was either unmarried, divorced or widowed and went ahead with the formalities required by- or customs governing – marriage laws. The threats of exposure and stigma attached to such a relationship not only prevent women from seeking redress but very often, by extension of the same threat, are coerced into remaining in the relationship.
As a way of countering this, the NCW suggested that even if a marriage was not registered a woman’s claim would stand if she provided enough proof of a long-term relationship. Thus, by removing the stigma accorded to live-in relationships, the provision takes into account the plight of women who have been tricked into marriage (or by the promise of marriage) and into what are stigmatized, socially ambiguous, sexually exploitative relationships.
While the argument very often used is that live-in relationships are not part of the Indian culture, you have innumerable narratives indicating the existence of the practice of men having more than one wife and/or also what is commonly and disparagingly referred to as a mistress. While the former, despite being a common cultural practice, has been deemed illegal the latter is a practice that has been ignored so far by any law. While women in certain pockets of urban India could pressure and negotiate to change the nature of such a relationship into a marital one – thus involving a divorce from the first to be able to legally marry the next – most of the solutions (like circumventing the law by ‘instant’ conversions to Islam, or else a tenuous compromise between both the wives) actually indicate a disregard for a law meant to protect from bigamous or polygamous marriages.
When the bigamy law is invoked it invariably means abandonment of the ‘other woman’ who in the presence of the wife is not recognized by law; and while the wife still has avenues to seek redress (though it is often not used) in case of abandonment by the husband, the ‘other’ woman is both socially and legally abandoned. Also, despite the tacit social acceptance of second marriages/second families as a right of the man in rural India or amidst the urban poor, it is only when the man dies that women in these relationships really face the brunt of society since nothing legally accords them even the status of a widow. In effect, this is the protection that the law gives such women.
The proposal takes a step forward and states that children born to such parents would be called legitimate. Moreover, these children will have a right to their parent’s property. The stigma attached to illegitimacy has often prevented the acknowledgment of such a child and hence accorded a socially peripheral status to such children.
However, while the amendment covers the interests of women involved in polygamous or live-in relationships, the catch here is that the ‘reasonably long period’ is yet to be specified. On the flip-side, it raises the questions of pitting one woman’s right to legal protection against another’s? And what really happens to the bigamy law? If bigamy is illegal how is a live-in relationship equal to a marriage? This amendment is bound to bring up issues and cases that in turn are bound to be far more complex depending upon the social circumstances and contexts of the parties involved. There is a vast divide that exists between urban cosmopolitan India, towns and cities struggling between modernization and traditionalism, and remote rural India.
The recent ruling is only the latest in a series of recommendations by various bodies seeking equal rights for both the married woman and live-in female partner. When the Domestic Violence Law came into force in October 2006, it did not distinguish between a woman who is married and a woman who is in a live-in relationship. The Delhi High court also, earlier in the year, upheld a rape case against a man since the sexual relationship between the two hinged on the promise of marriage by the man – indicating a recognition of the protection that even women, not necessarily within the realm of a traditional marriage, require.
There have been cases in the past century even in pre-independence India when judgments have been made in favor of women/persons in live-in relationships, so the Supreme Court proposal is not without precedent. What the proposal does, in effect, is to make a Your browser may not support display of this image.distinction between immoral and illegal/law and morality. And yet, because the legal sanction for live-in relationships is meant to work to the advantage of women who become victims of their circumstances, even if it was a matter of choice, it is based on the assumption that the relationship is not between equals; therefore women need protection by the courts from the patriarchal definition of marriage and such relationships too. Such protective sanction is bound to raise extremely prickly questions especially with regard to the agency of women. And this really is where the extreme divide between cosmopolitan India and the rest of the country comes into play. By giving live-in relationships the status of a marriage it defeats the very reason why most urban, financially independent individuals – men and women alike – opt for this as opposed to the institution of marriage. For those for whom it is a willful rejection of the stereotypes and inequalities that the institution of marriage has come to represent, this legal sanction puts it back into the same trap, albeit by giving legal protection to the woman. It implies that live-in relationships are bound by the same rules and structures as a marriage.
For most of semi- and illiterate India, just as divorce (or abandonment in most cases) socially tends to be harsher for a wife, the estranged female partner (in the live-in relationship) will continue to face the same social ostracism since acceptance for such relationships when it comes to the woman is still low. While the law attempts to protect those who direly need this protection, what is required more is a rigorous restructure of gender imbalanced social structures – those customs and practices that govern and differentiate how girls and women – sisters, wives, mothers and daughters – are treated.