“Moved by the distress of the deserted lady, Justice Karnan fell into a series of legal errors to justify the noble objective of giving alimony to her. First, to ensure alimony to her, he wrongly equated her non-binding live-in relation to binding legal marriage. Next, to recognise long live-in mating as equal marriage, he declared the rituals which validate marriages under diverse religious laws as irrelevant. And in upgrading live-in relation to the status of legal marriage, the judge has actually downgraded legal marriages to live-in mating by erasing the legal difference between the two.” — S. Gurumurthy
The ongoing debate on the Madras High Court judgment ordering alimony to a victim of desertion in live-in relation is more like the legendary six-blind-men-and-elephant analysis. The discourse has got reduced to asking whether it was not just to order alimony to an unjustly deserted woman. The critical point missed is that when a court renders a judgment, it sets legal precedent for all cases of desertion in live-in relations. This is what distinguishes court of law from panchayat which does case-to-case justice for a homogenous village or community. India is neither a homogenous village nor one community. It has separate marriage, divorce and alimony laws for Hindus, Muslims, Christians and Parsis, besides a special law mainly for cross-religious and community marriages. A court judgment on alimony in live-in cases should factor in all religious laws and the special law while ordering alimony for non-marriages. A court of law is mandated to do justice by strictly observing the law. Law is unjust at times. If the law does permit alimony only when legal marriage breaks, the court impelled to do justice to the victim of live-in relations should exercise high judicial wisdom and do justice without harming the matrimonial law which sustains stable families.
It does not need a great legal scientist to explain why live-in relation does not equal legal marriage. A lawful marriage can be enforced by asserting conjugal rights. It cannot be terminated unilaterally by either party (except in Islamic Shariat law by the husband). But live-in relation is voluntary sexual union founded on mutual attraction, not on mutual agreement. Neither partner can enforce the live-in relation, but either of them can unilaterally walk out of it with ease. Imagine, instead of the man, the woman had left the live-in relation and joined some other man, could her live-in male partner have had any remedy like restoration of conjugal rights as in a legal marriage? Is there any doubt now that marriage is a mutually enforceable bond but live-in relation is unilaterally terminable affair? How then could indulging in sex and begetting children alone make live-in affairs equal to marriage?
Yet, obviously moved by the distress of the deserted lady, Justice Karnan fell into a series of legal errors to justify the noble objective of giving alimony to her. First, to ensure alimony to her, he wrongly equated her non-binding live-in relation to binding legal marriage. Next, to recognise long live-in mating as equal marriage, he declared the rituals which validate marriages under diverse religious laws as irrelevant. And in upgrading live-in relation to the status of legal marriage, the judge has actually downgraded legal marriages to live-in mating by erasing the legal difference between the two. In the process he has outlawed all laws of marriage for doing apparent justice. While the legal premises of the judgment are complex enough, to complicate matters even more, in the case before the judge, the deserted live-in woman partner is a Hindu and the deserter is a Muslim. It is cross live-in relation. Had they married legally either the man would have become a Hindu to be governed by Hindu law or she would have become a Muslim to be governed by Shariat law or their marriage would have been registered under the special marriage law to be governed by it.
Some ask why not regard live-in relations as Gandharva Vivaha. First Gandharva Vivaha, a Hindu concept, will not work between a Muslim man and Hindu woman. Also the Hindu law describes—not prescribes—eight types of marriages including Gandharva Vivaha. Of these, only four types, namely, Brahmana (giving the girl with dowry to an educated bridegroom), Daiva (giving the girl to a priest during the performance of religious ceremony), Arsha (giving the girl after receiving dowry from the bridegroom) and Prajapathya (giving the girl with respect and blessing to a bridegroom) were considered proper for all. The other four, namely Asurika (marrying a girl against her will by giving wealth to her family and kinsmen), Gandharva (voluntary union of man and woman out of sexual urge), Rakshasa (abducting a girl and marrying her forcibly) and Pisacha (stealthily seducing a sleeping, intoxicated or mentally ill girl) were not regarded as proper for all. So if courts can recognise marriage in the Gandharva form, then why not its Asurika, Rakshasa and Pisacha forms also? Anyway, the Hindu Marriage Act does not recognise the last four forms. Such suggestions may open a Pandora’s box. Islamic Sharia applicable to Shia Muslims permits Muta marriage, a temporary marriage valid for 30 days at the end of which automatically the 30-day husband and wife become strangers. Imagine Shia Muslims beginning to resort to Muta marriages. Is it not better then to avoid recalling such forgotten traditions to answer modern problems?
It needs dispassionate analysis. Alimony, as the law knows, arises when a legal marriage ends in separation. But the judgment orders marital alimony where there was, in law, neither marriage nor separation. The judge also ignores the obvious fact that marriage laws in India are not common, but separate for different religious communities. The Hindu Marriage Act (1954) applies, besides to Hindus, to Sikhs, Buddhists, Jains and to all, other than Muslims, Christians and Parsis. The Parsi Marriage Act (1936) applies to only Parsis. Christian Marriage Act (1872) applies only to Christians. For Muslims, the exclusive Islamic Sharia law applies as if it is the legislated law. These laws apply for couples belonging to the same religion, not to others. Hindu marriage law validates marriages performed according to Hindu customs. So do the Islamic, Christian and Parsi marriage laws for Muslims, Christians and Parsis. But, registration under the Special Marriage Act makes non-ritualistic and cross-religious marriages valid. It means that except marriages under the Special Marriages Act, marriages are valid only if respective religious rituals are observed. Yet Justice Karnan’s judgment virtually dismisses the mandatory rituals and customs stipulated for marriages as irrelevant. He does not ask why the couple did not register their live-in relation under the special marriages law which needs only two witnesses and notice to the society, not its consent.
Like on marriage, so on divorce and alimony also there are divergences among different marriage laws. Traditional Hindu law did not provide for divorce. But the legislated Hindu Marriage Act altered the traditional law and provided for divorce on specific grounds or by mutual consent. And in every case alimony payment is determined by court. The Parsi law allows divorce including by mutual consent and court-determined alimony. Till 2001, the divorce law applicable to Christians (Indian Divorce Act 1869) had heavily discriminated against female spouses. This was corrected, though only partially, only as late as in 2001. Till then, Christian marriages were not terminable by mutual consent and alimony to a Christian wife was capped at one-fifth of the husband’s income, which was removed only in 2001.
Under the Islamic Shariat law, a Muslim husband can divorce his wife by pronouncing “talaq” thrice, without giving any reason. But his wife cannot ask for divorce unless he had granted her that right. The Dissolution of Muslim Marriages Act 1939 extended the grounds on which Muslim women could seek divorce. But in Islamic divorces, including through triple talaq, alimony for the divorced Muslim wife is limited to only three months (three menstrual cycles). When in the case of one Shah Bano (a 62-year-old Muslim divorcee) the Supreme Court directed that she was entitled to alimony like any non-Muslim, the Muslim community protested against it as an invasion of the Islamic Shariat. It became a high-voltage political issue in the 1980s and the government had to pass a law to overrule the Supreme Court judgment and legislate Shariat principles of alimony. So, if the couple before Justice Karnan were legally husband and wife under Islamic law, the lady would have got only three months’ maintenance. Could a woman partner in a live-in relation with a Muslim male get better benefits than a legally wedded wife? Will the alimony continue in case she enters another live-in relation or marries? A court decision, which is a legal precedent, should hold good all such situations. Otherwise it is only a panchayat verdict.
With the marriage, divorce and alimony laws of India lacking commonality, how then could the court have done justice to the deserted lady? Could it not have ordered relief to the victim, construing live-in relations as a quasi-contract or on common law principle of justice, equity and good conscience, thus keeping it outside the matrimonial domain? In equating sex with marriage and vice versa the more desirable options disappeared from the court radar. After doing justice specific to the case, the judge could also have suggested a separate law to protect the victims of live-in relations in future. And he could have reinforced the need for a common civil code for all religious groups in the country which is the ultimate answer for the contemporary problems. In the interest of the sanctity of legal marriages, which is not just the equivalent of sex and includes other legal and moral obligations, this exotic judgment deserves to be overruled. — The New Indian Express, 26 June 2013
» S. Gurumurthy is a well-known commentator on political and economic issues. Email: comment@gurumurthy.net
See also
- Gurumurthy’s earlier article “‘Mating as marriage’ judgment is a shocker” on June 21st
- T.S. Sekaran’s report “Justice Karnan issues gag order on marital legitimacy ruling anaysis” on June 20th
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