Tuesday, Jan 25, 2022
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How Indian Laws Govern People’s Right To Love And Live

In India, only those relationships between a man and a woman are considered to be legitimate when there is a marriage between the two.

How Indian Laws Govern People’s Right To Love And Live
How Indian Laws Govern People’s Right To Love And Live -

Seven years ago, Shweta and Arnav met at a house-warming ceremony of a common relative. Their mothers are distant cousins. Their parents go out for holidays together and are also part of the same social circle. Shweta is 35 and Arnav is 37. About five years ago, at a social event in Arnav’s house, the two of them realised that they “liked each other a lot”. Occasional cups of coffee at Starbucks turned into regular meets and then into day-long weekend dates.

“We would hang out together and realised that we loved being together. After dating for two years, we realised that we did not want to be apart,” Shweta tells Outlook. “I was not keen on getting married, I wanted to be free of a long-term commitment. So did Arnav. But we did not want to live apart.” They decided to live together without the trappings of marriage. “We were and are clear that it is a live-in relationship. Since we could afford to buy our own home, we bought a flat in a housing complex in Goregaon (in the western suburbs of Mumbai) and started living together five years ago,” adds Arnav. They have a three-year old daughter and still have no plans to get hitched.     

Since five years ago, their upper class, well-heeled parents stopped talking to them and to each other. “How can a friendship spanning five decades be forgotten and turn bitter just because the two of us are in a live-in relationship?” questions Shweta. Their friends and colleagues know that they are not married. Some interact with them socially, while a lot many have kept away. According to Arnav, it is when their single friends get married, they jump on to a moralistic bandwagon. “Suddenly we are not invited to their homes. The wives are not comfortable with Shweta, so friendships turn cold. Frankly, it does not bother us much,” says Arnav.

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Over the past few years, live-in relationships have become more acceptable in India as people start to open their minds about the living patterns of others. Pre-marital intimacy and live-in rel­ationships no longer raise as many eyebrows as they did some years ago. However, there continues to be ample criticism as these living concepts lack leg­ality and acceptance by society.  

In India, only those relationships bet­ween a man and a woman are considered to be legitimate when there is a marriage between the two. A heterosexual relationship sans marriage is considered ill­egitimate in India. There is no particular law in India pertaining to live-in relationships. Therefore, there are no rights or obligations under the law for the parties in a live-in relationship. However, the judiciary has in many cases ensured that there is no miscarriage of justice.

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Artwork by Mayuri Chari Water colour on paper

In the landmark case of S. Khushboo, the Supreme Court held that a live-in rel­ationship fell within the ambit of “Right To Life” under Article 21 of the Constitution. In its judgment, the top court held that live-in relationships are permissible and the act of two majors living together cannot be considered unl­awful or illegal. In another landmark judgment in the Dhannu Lal case, the Supreme Court stated that couples in live-in relationships will be presumed leg­ally married. The order also held that the woman in such a relationship would be eligible to inherit the property after the death of her partner. In the S.P.S. Balasubramanyam case, the apex court had in its ruling said that if a man and a woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.            

Aishwarya, 40, and Ravichandran, 44, got married 20 years ago. While Aishwarya is a Maharashtrian, her husband hails from Kerala. They are based in Pune and own a logistics company. They have twin teenaged boys, studying in grade 10. When they fell in love, neither realised the Herculean battle they would face for acceptability in Aishwarya’s family and social circles. “My wife is from an upper caste family, while I belong to the OBC community. This has never bothered us or my family. But, Aishwarya cannot understand the reason for her parents and relatives unwilling to accept me as a son-in-law even after 20 years of marriage and two children,” laughs Ravichandran.  

During their dating days, the fact that they bel­onged to different castes did not make any difference, it was the love and romance that sailed them through. While Ravichandran’s parents were ecs­tatic with his choice of a bride, Aishwarya faced the toughest battle at her house. “I always believed that my parents were broad-minded as they never ever discussed caste or encouraged us to do so,” says Aishwarya. “Ravi would come home and they liked him. But the day I told them that we were getting married the first question I was asked was what caste he belonged to. I did not know. Their question shocked me,” she recalls. When her parents realised that he belonged to the OBC community, they forbade her from meeting him. He was no longer welcome in their house. Finally, they eloped and married.  

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A division bench of the Allahabad High Court had said that adults had a right to choose their partners, irrespective of religion. The petition was moved by one Shifa Hasan and her partner, both residents of Uttar Pradesh, saying that they were in love and living together on their own will.  “As the present petition is a joint petition by two individuals who claim to be in love with each other and are major, nobody, even their parents could object to their relationship,” said the order.  

According to the Supreme Court, inter-caste marriages are a unifying factor and there has never been a ban on inter-caste or inter-religious marriages in India. In 2016, a study was conducted by the National Council of Applied Economic Research to ascertain statistics pertaining to inter-caste marriages. It was revealed that only five per cent of the marriages in India are inter-caste ones. While Mizoram has the highest number of such marriages at 55 per cent, Madhya Pradesh saw the lowest at one per cent. This survey also found that if the boy’s mother was educated it had a positive impact on inter-caste marriages. If the mother was educated beyond class ten then there was a 36 per cent chance of the probability of an int­er-caste marriage.  

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A bench of the Supreme Court comprising justices Sanjay Kisan Kaul and Hrishikesh Roy noted that it would “hardly be a desirable social excuse” for parents to shun their children only bec­ause they decided to marry outside their caste or community. The judges highlighted the need for specific guidelines and training module for policemen to understand and deal with such socially sensitive cases. The apex court further stated that sensitising the policemen will help couples get protection under the law in the eventuality of parents lodging criminal cases against them.  

But what happens when love strikes the police force itself? Twenty-three-year-old Poonam and 22-year-old Gauri fell in love at a police station. They are both sub-inspectors and met at their first posting there. Love did not hit them the first time they met, it happened much later. “We connected with each other. Since there were not too many women in the police station, we became friends and hung out together,” says Gauri. Scared to voice their liking for each other they kept mum. It was by chance they realised they were gay.  

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“Right at the beginning we were allotted a room in the police quarters. It makes everything very easy and no one knows that we are in a relationship,” Poonam tells Outlook. “We got engaged rec­ently. Since women wear jewelry, no one makes much of the rings on our fingers. If anyone comes to know about us, we will be dismissed from our jobs and killed by our relatives. No questions asked, no answers given,” says Poonam.   

In 2018, the Supreme Court struck down Section 377 which criminalised homosexuality as an unn­atural act. A significant point made by the apex court was that for constitutional purposes the LGBTQ minority is a part of the diverse plural of India. It had then stated that Section 377 marred their “joy of life” and rejected that this minority should not be subjected to “societal pariah and dereliction”. However, same-sex marriage rem­ains illegal in India. The Supreme Court said that recognising same-sex marriages had more legal ramifications than simple legal recognition.

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Aparna, 36 and Shayan, 42, are colleagues in a media company. They are both married to other people and live with their individual families. Aparna does not have any children, while Shayan has a daughter from his marriage. Aparna and Shayan fell in love other during their night shifts. The long working hours helped build on their love and bef­ore they knew they were dating. “We are work spouses in the truest sense. I love my family and Shayan loves his. We (also) love each other,” says Aparna. She confessed to loving “the space she is in now” where “both loves co-exist”.  Both Aparna and Shayan say that they are careful when at work and at home. “We know what we have is forever. So why be greedy and spoil it?” asks Shayan. “We have enough time for each other. We have invested in a flat and no one knows about this. We have been together for seven years,” he adds.  

Earlier, Indian law allowed an aggrieved husband of a married woman in an adulterous relationship to file a complaint. But the same right is not allowed to an aggrieved wife if her husband is found to be in an adulterous relationship. The Supreme Court had ruled that adultery, overturning previous rulings on this issue and declared Section 497 of the IPC as “unconstitutional”. Under this section adultery was an offence and the convict could be sentenced to five years in prison. In its judgment, the top court said that the law, making adultery an offence, was archaic, discriminated against women and a clear violation of fundamental rights.

(This appeared in the print edition as "Laws of Attraction")

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By Haima Deshpande in Mumbai

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