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The Code Of Criminal Procedure Makes Meaningless Attempts At Chivalry, While Failing, In Real Terms, To Safeguard The Rights Of Women And Children

The Indian society encompasses of various and diverse forms of cultures, opinions and backgrounds. There are also different notions of what is deemed right or morally correct and what doesn't fit in the stencil of values and ethics which is created by the society itself. Each societal issue is viewed through many lenses which leads to a lot of public scrutiny and moreover it is subjected to perspectives which can be beneficial at times but not always.

Even though we are a democratic country where we have the liberty to profess and practice whatever we desire to and can follow any ideology, it still comes with a list of conditions and isn't entirely all pervasive.

It is known that the freedom to create a family is one of the most important fundamental freedom since it has been ingrained in the society that family is at the highest pedestal because it provides us with a plethora of benefits both physical and emotional. Live in relationships, have paved its way from the west, in our society and is quite a popular trend. It is known to be an alternative of marriage and is presently being received as a marriage choice, particularly in metropolitan areas.

This type of a living isn't allowed by the Hindu marriage act of 1955 and there's no separate law recognising or governing it as such. Since the ambit of these relationships is obscure, and the laws are in the form of verdicts that differ from case to case, leaving this concept hanging on a thread since there is no legal understanding that this relationship can bank on. The purview of Maintenance under section 125 CRPC was introduced as a method through which the law makes sure that the women of the country are looked after financially even after the marriage dies.

Women who live with men in marriage-like mechanisms are not allowed to maintenance from their partners under section 125 CRPC and their inclusivity is primarily directed at the cognisance of their vulnerable position not just in the society but also within the unconventional marriage like cohabitation. The degree of recognition it has gotten does not unambiguously signify legal sanction and these new forms of non-marital heterosexual cohabitation patterns in India need to be protected.

Right to maintenance in section 125 of criminal procedural code, 1973
The first time when live in relationships were recognised, it was by the Protection of Women from Domestic violence (PWDVA) 2005, in calling them " an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in of the nature of marriage.[i]

Right to maintenance in section 125 of criminal procedural code under which under which a wife, legitimate or illegimate child and parents are entitled to get maintenance from a man[ii] and the definition of " wife" includes a 'woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.'[iii]

This provision has failed to incorporate and include women who are in a live in relationship bringing about one serious flaw with this law and has failed in treating all women equally and unconditionally. It has turned away from viewing live in relationships as a marriage like institution and has failed to realise it where In a country like ours a marriage is not just considered a traditional cultural heavy ordeal but it is also still forced with conservative and regressive norms like inter caste, social and economic and class differences which is labelled as a societal norm of marriage but truly that isn't actually what rich heritage and culture means. These redundant and regressive norms force women into bad marriages, and coming out of them is another archaic issue which is again, looked down upon.

This is the reason why people now prefer to live together to either check if they are compatible enough for a marriage in the future, or to just completely rule out any chances of marriage and just continue living together in a way where both partner have responsibilities that any other married couple would typically have. This exempts them of family pressure, family disputes, unnecessary traditions by the name of 'sacred marriage norms' and most importantly the freedom it brings for the couple to lead on a life without any drama and expectations.

The National commission of Women has recommended the government to make the required changes in the system and law to give women in live in relationships to get maintenance from their partners if the relationship is decided to be broken off, thereby giving women some form of protection and legal support to them financially, just as it does to women in marriages.

Since laws on this particular matter has been only in the form of judgements, the most iconic case which spoke discrimination in multiple languages done to these women through section 125, is the case of Savitaben Somabhai Bhatiya v State of Gujarat (2005),[iv] where it was said that as per the section, 'there is no escape from the conclusion that the expression of "wife" refers to only legally wedded wife' and thus is not entitled to maintenance.

What's not understandable is that the legislation deemed adding 'illegitimate child' in the provision for maintenance but due to fogged up clarity of equality for all women and regressive mindset with poor rationing didn't think necessary. In this judgement a multiple times ' women who unwittingly entered into wedlock cannot be expressed as wife' was commented. The law has no right to question the intention of a relationship which is between two individuals and assume that a women doesn't reason enough before entering in a live in relationship with a man.

If thought reasonably, if a women is devoting years to a relationship and contributing in more ways than one and especially sharing her space with another entity, it's very ignorant of the legislation to not consider that the woman in that case would naturally think her decision through. Also what was noticed was the emphasis given to 'marriage like' arrangements and the fact that the woman has to be treated as a 'wife' and has to do duties like that of a wife, in order to prove the authenticity and seriousness of the relationship.

Again, it is inconsequential on whether the man is treating his partner like a wife or what the role distribution is like in the household. It is really a subjective matter and should be left on the couples to decide. This concept again stems out of a place of deep rooted patriarchy which brings out the regressive ways a women is supposed to act or behave in certain ways with respect to what is expected out of her and whether she is doing her 'job' or fulfilling her 'responsibilities' in order to be called and recognised as a wife.

What a wife is 'supposed' to do is a social construct and it is assumed that only if it is abided by, would reap benefits which otherwise also women in their organic and normal state should be anyway entitled to without having to fit in the societal construct of a 'wife'.

The Domestic Violence Act has called a live in relationship as a marriage like set up and the Hindu marriage act legalised them in 1955, disregarding all of that, in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav (1988),[v]the jurisdiction held that section 125 cannot apply to de facto wives and women who are not lawfully married cannot be entitled to maintenance in section 125 of CRPC.

If the law is not going to do justice, then these failed attempts of legalising and recognising live in relationship is extremely pointless and does no good to women who actually suffer and need to be cushioned for protection and safety. Like it was mentioned previously about questioning the ' seriousness' of the relationship, another detailed instance of this was given out in Alok Kumar vs. State (2010),[vi] where the Delhi High Court called live in relationships as 'walk in and walk out' relationships with no 'strings attached' to it.

It is true that live in relationships do not create any form of legal bonding and these relationships can be terminated or broken off without any consent as stated in this judgement. Now, this is exactly what is contested, a legal implication or an obligation that gives some form rights to the couple, like for example adoption too which isn't allowed for these couples to do since there is no marriage.

But the call for maintenance is actually a provision which makes the relationship safer for the women who aren't able to financially support themselves so that they could also lead a reasonably of a quality life.

For instance how earlier when triple talaq was lawful in the country, the situation was similar on this front in a way if not completely. In those relationships also the husband could just 'walk out' and the relationship would be 'terminated' but there was still maintenance given to those women.

The uncertainty in Muslim marriages was quite similar to live in relationships in respect with how the relationship can conveniently be called off with obviously the biggest difference being the application of force and domination on the part of the man on his partner in Muslim marriages and a lot of relationships in India too have the same case if not as many in number, but as a response to the Alok judgement, the reason of live in relationships being uncertain isn't a valid justification. This in turn gives the legislation all the more reason to alter this provision and form laws in this regard, because since such relationships can be terminated easily.

Whether it's a mutually broken off relationship, through force of the male partner or even if the female decides to walk out, whatever reason maybe healthy or unhealthy, toxic or not , the requirement for legal backing and laws is all the more necessary here since a women is proved to be on a flaky ground with no support leading to massive level exploitation, vulnerability, inequality and discrimination.

Coming to how children born out of live in relationships are treated in a society where one can create a family only through marriage and children born out of live in relationships isn't considered correct sexual discipline to start a family has brought about a lot of debates over freedom of sexuality and has caught the attention of the Indian legislature.

These children continue to be treated as unequal's in the society because of the stigma related with sexual relationship before marriage but over the years the legislation has legitimised out of marriage born children under the section 114 of the Evidence Act in the landmark judgement of Vidyadhari v. Sukhrana Bai (2008)[vii]. Following to the judgement, a year prior, in the case of Dimple Gupta(Minor) v. Rajiv Gupta (2007),[viii] maintenance for children born in illicit relationships was taken into consideration under section 125 of CRPC. Although these children don't have right over inheritance or ancestral property of their parents.

In the Uday U Lalit and Aniruddha Bose (1957)[ix] case, the bench blatantly held that the children born out of marriages could not place on an equal pedestal as legitimate children, making it unfortunate to believe the brutality of the legislation to enforce its archaic thinking on children too.

Live in relationships have somehow always been looked at as a threat to the society and a curse to the 'highly rich' culture of the Indian society. Even though courts through various judgements have tried to paint a picture on the legal status, but there is still a lot of uncertainty and section 125 CRPC failed at providing justice by staying silent about the status of women in live in relationships.

The only rationale behind why the legislation has refrained from taking positive steps in this regard is because it doesn't want to risk the societal disagreement it would bring along. Justice will only be served to live in relationship and women who have been at the receiving end of inequality, if a well thought of legal regime is legislated holistically.

It is high time that the law accommodates with the dynamics of the society that nobody has control over and basing injustice and inequality on traditions and redundant regressive norms is atrociously incorrect and unethical on the part of the legislation. The legislation has to be at par with the changing trends of the society and what cannot be legally justified or reasonably explained keeping aside all bias shouldn't be acceptable justifications to make laws.

If the laws firstly aren't in place, it's almost too difficult if not impossible to have a society which doesn't discriminate people based on past conservative traditions which is a deep rooted issue in our country's society and would not change or improve until law takes a step to eradicate the issue from its core and articulate an organic legal mechanism where people of the country are allowed to freely exercise their rights on sexuality, relationships, family and reproduction with no fear of societal judgement and inequality.

  1. Aggrieved Women And Live-In Relationships: Judicial Discourse, P-67, (last visited May 26, 2020)
  2. Section 125 in The Code Of Criminal Procedure, 1973
  3. Section 125 in The Code Of Criminal Procedure, 1973
  4. Savitaben Somabhai Bhatiya v State of Gujarat And Ors,
  5. Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav
  6. Alok Kumar vs State & Anr.
  7. Vidyadhari & Ors vs Sukhrana Bai & Ors
  8. Dimple Gupta(Minor) v. Rajiv Gupta
  9. Uday U Lalit and Aniruddha Bose

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