June 21, 2021
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'Keep', 'Concubines', Google, Wikipedia

'Keep', 'Concubines', Google, Wikipedia

The Supreme Courts judgment in a case about the rights of an unmarried partner under the Domestic Violence Act 2005 has come in -- rightly -- for sharp criticism.

The judgment, while clarifying the scope of the Domestic Violence Act 2005 in its application to unmarried cohabitees in an acknowledged consensual relationship for a significant length of time, went on to say:

In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship

34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’

Additional Solicitor General Indira Jaising, among others, has strongly objected to the language of the court, pointing out: “The expressions are very derogatory and reflect badly on women. Language should reflect our commitment to gender equality".

Justice Katju is reported in the agency copy to have told the upset ASG to confine herself to the case itself, while Justice Thakur added insult to injury by asking whether the word “concubine” might have been preferable rather than "keep".

The ASG has also rightly questioned, along with other commentators, why the judgment cites  "Wikipedia" and "Google" as authorities:

(see ‘Common Law Marriage’ in Wikipedia on Google)
(see ‘palimony’ on Google)
(see details on Google)

This is not the first time that we see Wikipedia and Google being invoked as authorities in Supreme Court judgments, at least by one particular hon'ble judge.

In the Law and Other Things blog, Tarunabh Khaitan asks:

Wouldn't it have been better for the court to draw upon other jurisdictions dealing with the same issues instead (see the Report of the UK Law Commission on Cohabitation, for example)?

He also makes the very necessary and useful point about the sexist and casual language used:

Whatever alternative we may settle on, I think it is important that our public institutions and functionaries stand up for much-maligned political correctness. Political correctness goes mad only when we start censoring comedians, cartoonists, writers and artists for taking un-PC liberties: unlike the state, their role is to offend, to make us uncomfortable.

[Read the full blog post here]

The Supreme Court, however, needs to not only be careful about what it says but how it says it. We are not, in this case, talking about obiter dicta or other casual banter in the court, which of course is also not exempt from basic etiquette, but the text of the judgments itself.

What suggestions do you have for the SC?

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