Judges betray their misogyny by calling women in live-in relationship as concubines

[dropcap]R[/dropcap]AJASTHAN State Human Rights Commission (SHRC) recently denounced live-in relationship, saying a woman’s status is reduced to that of a ‘concubine’ if she enters into such a relationship. The shocker came through an order passed by chairperson of the rights panel Justice (retired) Prakash Tatia and a member of the commission Justice (retired) Mahesh Chandra Sharma, whose remarks that peacock do not have sex but peahens get impregnated by drinking tears of peacocks had made him a laughing stock.

The commission contended that live-in relationship not only denies women their fundamental right to live a dignified life but also protection under Domestic Violence Act, 2005. The status of a woman in a live-in relationship is reduced to that of a ‘concubine’, and thus, government departments must run awareness campaigns on demerits of such relationships, he recommended.

Its recommendation is problematic for more than one reason. It not only patronizes the women as dim-witted gullible creatures but also seeks to uphold the institution of marriage over the autonomy of a woman. Again, it fails to distinguish between a woman in a live-in relationship and a ‘concubine’. Arguably, such a recommendation confuses right to freedom of choice and sexual autonomy with ‘dishonour’.


Roots of word ‘concubine’


The term concubine is derived from the Latin word con (with) and cubare (to lie). Historically, the term used to refer to women who cohabit with married men and are legally inferior in their status to that of a wife. The concept dates back to Roman and Greek matrimonial laws. Even though, ancient Rome was a monogamous society, exceptions were made for men to live with concubines, whom they were not allowed to marry.

In present times, the usage of the term has elicited controversy, and rightly so, for its sexist nature and questioning the autonomy of women. Senior advocate Ms. Indira Jaising has protested against the continued usage of such language in the past. “I object to the use of word ‘keep’ and ‘one-night stand’ in Supreme Court judgement. These words should be expunged from the judgement. These words are very insensitive. The expressions are very derogatory and reflect badly on women. Language should reflect our commitment to gender equality. It’s a moral judgement and I don’t think Supreme Court should be using these words,” she had remarked after the observations by Justice MarkandeyKatju in the case of D.Velusamy vs D. Patchaiammal.

The history of the term suggests that there is a clear difference between woman in live-in relationships and a concubine. While the latter suggests a sexual relationship between a married man and an unmarried woman, the former is a manifestation of a mutual will of two unmarried adults to stay together as ‘cohabitees’ and share their lives, without entering into any form of marriage. It involves two consenting individuals. So the question of only female partners being dishonoured in such relationship can only be termed as a clear manifestation of patriarchy. Moreover, a married man, who stays with a woman other than his wife can be held liable under the current Indian laws. There are legal consequences such as divorce or sometimes the man can be liable for punishment for bigamy.

There is an inherent logic of patriarchy that seeks to control the sexual autonomy and individuality of women at every step. Sexual independence of everyone, except for a heterogeneous man, has always been under question (Section 377 IPC was struck down only in 2018).

A stigma attached to the words ‘concubine’ and ‘keep’ is that she is there for the sexual gratification of a man. But in a patriarchal setup every woman including “wife” is considered to be meant for satisfying the sexual needs of men and procreation of children. It is not only wrong but degrading to use such terms for women who are in live-in relationships as their sexual autonomy is completely overlooked.


On domestic violence


The recommendation of the SHRC also indicated that rights of women in live-in relationships are not covered under the Domestic Violence Act, which could not be more wrong. The act aims to protect women, who are in a domestic relationship residing in shared household, from violence in both –‘marriage and relationships in the nature of marriage’. Thus, the central focus is the protection of women from violence and not on deciding whether the woman is married or not. However, the Supreme Court, while deciding the scope of “Relationships in nature of marriage” in D.Velusamy vs D.Patchaiammal had decided that only relationships akin to common law marriages will be protected by the Domestic Violence Act, thereby restricting the scope of relationships in nature of marriage by limiting them to common law marriage.

The criterion of common law marriage excludes many women from the protection of the act as the standard of proof becomes very high. The facts of the case involved a complaint made by a woman under Section 125 CrPC, who had been residing with an already married man for prolonged years. The man argued that his first marriage was never dissolved and thus the complainant is not a “wife” and therefore he wasn’t liable to pay any maintenance to her. What had come to court was clearly “what are the rights of a second wife who is in relationships with already married man”. The court decided the case with a loaded moral value logic where ideal relationships are marriages and women who choose to be in them deserve legal remedies.

One can’t overlook the need to protect matrimonial relationships at all cost in Indian courts, hence it is no surprise that court used the terms “keeps” for one kind of women and gave rights to the another kind in a “relationship like marriage”.

This is the inherent bias in the patriarchy ruled governing system in the country where one woman is considered worthy of protection because she owes allegiance to the institution of marriage and the other dishonoured because of her unorthodox life choices.

When the society has evolved to an extent where it has recognized same-sex partners, the focus should also ideally be laid on protecting “cohabitees” from violence. India can take a cue from the common law jurisdictions like Scotland, Ireland, Canada and Australia where rights of the heterosexual non-marital cohabitees are increasingly getting recognised.

SHRC’s recommendation lack understanding of the complexities involved in interpersonal relationships. One cannot agree more that there should be awareness campaigns as suggested by the commission, but those campaigns must be directed towards sex education amongst adolescents, so that the basic knowledge of sex doesn’t come from myths, folk tales or pornography.

Further, there should be campaigns to make people, especially men, understand the concept of right to individual autonomy, choices and consent. This is the only way to evolve from just protecting married women to protecting all cohabitees from violence and treating women irrespective of their societal labels as an equal human being in the eyes of law.

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