RECENT TRENDS in the judicial views on marriage and domestic violence, and the evolution of marriages in India reveal an interesting paradox between the law and gender justice. Marriage in India has been an inherently feudal institution. It has been peddled to young women almost like a competitive exam for self-respect – one must pass the performative "wife material" trope to deserve the society's regard and consequently access to care, financial security, social life, support to raise children etc.; or be "othered" into relational precarity as if disposable. However, at a time when changing socio-economic conditions renders many features of marriage almost a privilege for most people – given the rising costs of maintaining a stable, secure, long-term partnership amidst collapsing institutions and dangerous levels of precarity – what rights emerge and are they equivalent to rights entrenched within marriages?
This article attempts to discover answers or perhaps identify better questions in light of the recent judgement of the Supreme Court in Lokesh B.H. v. State of Karnataka, delivered on August 3 — which upholds the application of criminal liability for cruelty to live-in relationships that qualify as “relationships in the nature of marriage with the intent to marry being established as an intrinsic part thereof”. Interestingly, the Court, as a part of its ratio in Lokesh B.H.'s case asks a pertinent question — whether the protection of law depends on choice? It then goes into an analysis of the intelligible differentia between ‘single woman’, ‘woman in relationship’, ‘woman in live-in relationship with no intent to get married’, ‘divorced’, ‘widowed’, ‘woman in relationship in the nature of marriage’, ‘married woman’, etc. for the purpose of applying Section 498-A of the Indian Penal Code (‘IPC’), before limiting its protection to women in relationships in the nature of marriage.
Why is marriage still a referential standard to recognise Intimate Partner Violence?
While this proposition is a step towards validating relationships forged under precarious and vulnerable conditions, it is important to ask ourselves why marriage is still a referential standard for critical rights against intimate partner violence (‘IPV’), whose life experiences does the law presume when it limits its protective reach through such legal fictions and what does that mean for gender justice?
The rights against cruelty and ill-treatment within an institution as inherently patriarchal and feudal as marriage, are hard won and it becomes clear when one looks at the socio-historical structures in which the violence is entrenched. Matrimonial violence in India is deeply determined by the intersecting forces of caste, class and gender disguised as “tradition” and/or “sacred”.
Marriage in India has been an inherently feudal institution. It has been peddled to young women almost like a competitive exam for self-respect.
It begins from being recognised as "wife-material" – which is the trope of an ultimately submissive woman with a personality convenient to a man’s socio-economic prospects. Once a woman passes this preliminary test, she must then belong to a "good" family — which is code for same caste, financially well-off, generosity with "gifts", ability and willingness to fund the wedding, the grandiosity of the wedding, etc. Experience dealing with divorce cases reveals a pattern where Indians are primed to aspire for and emulate the ideal of a "good marriage" and an inability or unwillingness to do so is met with cruelty and social isolation.
People from marginalised communities being more vulnerable in these structures, have historically had a different relationship to the institution of marriage. In most cases, their financial limitations, poor levels of literacy and social precarity, leaves them unable to properly establish their marriages in accordance with the standards imposed by law. This is particularly so when they may have either been married off before they turn 18 or have been abandoned by their partners. For instance, they may not be able to establish their marriages through documentary evidence such as registration certificates, invitations, and sometimes even photographs. This is not because their relationships are any less real as compared to traditional "registered" marriages, but life circumstances rife with uncertainties and vulnerabilities on account of caste, class, migration status etc, produce unstable, poorly negotiated and documented cohabitation.
An argument often made in favour of upholding marriage as an ideal standard of relationship between cis gendered heterosexual men and women is the very nature of the commitment itself. The presumption seems to be that rights emanate from the long-term commitment to unite physical, material and social interests. Such a transactional treatment of relationships, ignores the psycho-social context where the terms of the commitment is disproportionately determined by casteist and patriarchal norms; where some women, by virtue of various vulnerabilities, may lack the means to negotiate a marriage and may settle for a “relationship in the nature of marriage” with the hopes rooted in love that it may translate to a relationship as solid as marriage. Does a woman’s unilateral hope met with unsaid behavioural validation of the said hope count as an “intrinsic intent to marry”?
The central premise of John Rawls' 'The Theory of Justice' is that while life may be arbitrary and unfair, the function of justice is to enable human beings to live through the vagaries of life with their dignity and self-respect intact.
Yet, that is precisely what such interpretation of law fails to do. Upholding marriage as the ultimate referential standard, carries the meaning that unless a woman is married, she has no right against intimate partner violence. And establishing a marriage-like relationship depends on factors that are not always in her control.
What's on trial in these cases, beyond the physical violation, is often a woman's self-respect in an intimate partner relationship.
How can the judgment be read alongside the Domestic Violence Act?
There is often a co-relation one notices when handling cases pertaining to rape under false promise of marriage and cruelty in marriages — what's on trial in these cases, beyond the physical violation, is often a woman's self-respect in an intimate partner relationship.
While the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA’) addresses intimate partner relationships, the verdict in Lokesh B.H. also notably clarifies that a woman’s right against ill-treatment and cruelty has dual and mutually exclusive protections under the PWDVA and the Section 498-A of the IPC (now re-enacted as Section 86 of the Bharatiya Nyaya Sanhita) — where the PWDVA provides for civil and monetary remedies, criminal offence of cruelty defined under Section 498-A is intended to back the right with the force of criminal deterrence.
The rampant use of the High Court's inherent powers to quash such cases, on the presumption that the ingredients of the offence are not fulfilled by the allegations in the complaint, ignores the circumstances in which complaints are written. Complaints may not always be perfect because women write these complaints in distress and many of them may not even be adequately lettered or articulate to understand the implications of each word they use or don't. Further, some of the complaints are also modified upon the insistence of the police while in registering the case and diluted through poor and negligent investigation.
Moreover, there is an unstated presumption that for less gruesome forms of violence, women may seek protection and other appropriate reliefs under the PWDVA. However, we have noticed that men violate protection and/or maintenance orders with impunity once the criminal proceedings on the same facts are quashed, and the task of holding them accountable under Section 31 of the PWDVA (which makes the breach of a protection order or interim protection order a criminal offense) becomes long drawn and onerous.
It is also to be noted that since married women have access to both civil and criminal recourse for domestic violence, the Court's limited interpretation in Lokesh case excludes women in live in-relationships that may not be in the nature of marriage, from benefitting from the law's power to criminally deter men from inflicting violence on women they may never have the intention to marry, but nevertheless engage with romantically.
Moreover, this legal position propels more questions as to whether women in live-in relationships are entitled to legal recourse in case of rape, and whether they lose the right when the nature of the relationship changes into a relationship in the nature upon a development of a intention of hope from one’s partner and is affirmed by another. While one can still argue that these women can still prosecute for rape, one wonders why married women cannot be extended the same right.
Thus, the unnecessary exaltation of marriage as an institution in this day, is manifestly arbitrary and harms married women by excluding them from protection against marital rape and unmarried women in intimate relationships by not adequately protecting them from IPV. Such distinction also ultimately limits the law's safety only to either single women or married women with a marginally possibility of "protection to women in the nature of marriages" if at all they are able to establish that.
While one understands the Court's limitations while interpreting laws imagined more than a century ago to respond to social realities today, the judgment is pathbreaking enough to demand the extension of these protection to all women so that men are disabled from their historical divide and rule tactics of pitting women against each other based on their relationship to them.