What the Supreme Court did not say about live-in relationships
In 1921, CP Scott, to commemorate The Guardian’s centenary, wrote an essay, “A Hundred Years”, in which he expounded on the values underpinning the paper's journalism, which he headed for 50 years. One phrase from that essay: “comment is free, but facts are sacred” has remained as an epistle. All media houses claim to follow this to the T, but dishonourable exceptions are galore. If these happen in case of legal reporting, the harm is more, because the careless or deliberate (no one knows for sure, and no one will come forward to admit) misinformation or slanted reports cause more harm, than say, just a scandal about some bigshot being outraged at a false report. The general readership, and even the highly-educated and elite among them, usually do not understand legalese, or pour through law journals, so the media remains their only source for knowledge and information about the worlds of courts.
An incident on April 15 demonstrates and emphasises the need to keep revisiting this lesson. The Times of India ran a report with the headline “Couples living together will be presumed married, Supreme Court rules”. A bare reading of the report might lead one (who isn’t a regular tracker of legal developments) to believe as if it was the first time the apex court had delivered such a ruling.
This belief is reinforced by this paragraph: "It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time.
However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin," the bench said.
The Huffington Post India, which is associated with the national newspaper, took some even longer leaps of fact. The headline states that the Supreme Court has granted property and inheritance rights to a partner in a live-in relationship. And the first paragraph states with rhetorical flourish: “In a judgement that could revolutionise the social fabric of the Indian society, the Supreme Court has ruled that an unmarried couple living together would be presumed legally married.”
The DNA carried a PTI report; the first paragraph of which contains: "…holding that a woman is eligible to inherit her partner's property after his death.”
The truth, and nothing but the truth
All these reports have not only got the facts wrong, but have also misinterpreted and misreported on the judgement. First, the facts.
The bench ruled in favour of the heirs of a certain Phoolbasa Bai who hadn’t been wed to a man named Chhatrapati, but stayed with him as his wife, in a joint family for all practical purposes. Chhatrapati died in 1977, and Phoolbasa Bai, who died in 1992, executed a will to distribute his property among different heirs. Her sister-in-law’s grandson challenged the will, contending that as she was only a concubine and not a legally-wed wife, she had no right to Chhatrapati’s property and therefore, was ineligible to make a will.
Both the trial court and the high court had ruled in Phoolbasa Bai’s favour, holding that although the wedding was not solemnised as per established rites and customs, the very fact that the couple were staying as man and wife for 20 years, and even had a child out of the relationship, was sufficient to grant legal sanctity to the relationship.
The term “live-in” relationships was first used by the Supreme Court in the D Velusamy case (2010) in which the judges ruled that if a couple has lived together for a “reasonable period of time”, the Domestic Violence Act would be applicable in such a situation.
The Act talks only about a “domestic relationship”, so a marriage in the eyes of the law is not a prerequisite. But it would be erroneous to claim that this ruling was the first to recognise live-in relationships. The credit for that goes to a three judge bench of the court which in 1978 held that since the couple had stayed together for almost 50 years, they are to be regarded as husband and wife although they hadn’t tied the knot. However, in both these cases, the court clearly stated that a mistress, who provides mainly sexual services (although some degree of romantic feelings could well be involved), shall not be eligible to claim any rights which arise out of a marriage.
Contrary to the welter of ecstatic reports cheering the arrival of a new era in jurisprudence, the court did not lay down any principle or rule which could be used as precedent. It did not say anything about inheritance rights arising out of a live-in relationship. This difference is crucial. In the present case, it is true that because Phoolbasa Bai was deemed to be the wife, she was found to be eligible to get the property. That isn’t the same as the court explicitly upholding a right of inheritance. In fact, it isn’t clear from the facts as stated in the judgement whether the property in question was Chhatrapati’s own - what he had earned during his lifetime, or what he had inherited from his ancestors. This becomes pertinent all the more since in July 2013, the Cabinet had approved of amendments to the law which will allow divorced women to get a share of their husband’s property. But they have been put on hold, after proponents of men’s rights and "traditional family values" kicked up a storm. So, the question is moot - can the right to the man’s ancestral property apply to a woman who was in a live-in relationship with him.
Crisis of legal reporting in India
In 2011, Arnab Goswami told Mint that “Reporters need not have a law degree to report on the Supreme Court. They need to have strong news sense and an acquaintance of legal nuances”. While Siddharth Varadarajan harped upon proper editorial supervision to keep instances of inaccurate reporting to a minimum. These comments came in the wake of the Supreme Court’s mulling on making a law degree compulsory for any reporter covering the courts.
Last year, a DNA report whose headline (prior to being changed after a swift blowback on other portals – see here and here) said that the Delhi High Court ruled that “a menopausal woman cannot be raped” didn’t start a proper debate on the ethics of legal reporting in India. Perhaps the present incident reinforces the urgency of both introspection and discussion by and within the Indian media?