Why the court is right in asking if men should pay compensation when a live-in relationship breaks up
An activist from the Indian independence movement and socialist leader, Ram Manohar Lohia, had famously said that between a man and a woman, everything is permissible so long as there is no use of force or breach of commitment. Lohia himself never married but went on to live with Rama Mitra, a Delhi University lecturer.
Lohia, however, did not go on to elaborate on what should happen if the commitment was indeed breached. That question was best left for courts and legal experts to answer.
And now, the Supreme Court of India has opened up a very important debate on live-in relationships. Should men pay compensation if a live-in relationship ends? Can live-in relationships be considered 'de-facto' marriages?
It is important to understand the context in which the court has initiated this debate.
Why now
The SC bench raised the question while hearing the petition of a man challenging the order of a trial court and high court in which his live-in partner had accused him of rape.
The woman and the man were reportedly in a live-in relationship for six years, after which she filed a case of rape against the man as they had lived together and she had sexual relations with him "on the promise of marriage".
The bench reportedly observed, "During the course of the hearing, one of the questions which has been taken up for consideration, whether, on account of long cohabitation, even if the relationship is held to be consensual and the petitioner is not held liable for the offence alleged, the petitioner can be fastened the civil liability treating the relationship to be de facto marriage in view of long cohabitation."
More importantly, the court said: "This interpretation may have to be considered so that a girl is not subjected to any exploitation and is not rendered remediless even if a criminal offence is not made out."
Women have made great strides in every sphere of life and yet, the norms of patriarchy impose impediments ahead of them at every step. While a relationship based on equality and gender justice is desirable, it is still a far cry. Laws have been introduced to provide legal protection to women who might have suffered injustices while being in a marriage. But why should laws now not be made to ensure they receive legal protection even outside marriage?
After all, it is important to ensure that after prolonged cohabitation with a man, having perhaps sidelined her career and compromised on other life choices, no woman is left to fend for herself, with no law to come to her aid.
Live-in relations are not one-night stands
Live-in relationships cannot be equated with one-night stands that revolve around casual consensual sex and just having a gala time.
Live-in relationships are about cohabitation, where two people share more than just bodies and emotions. Consenting adults in live-in relationships share financial responsibilities too. Our sociological programming often sees women hand over financial decisions and management to not just men they are married to but also those they choose as partners without going through the rituals that put the stamp of legality to a bond based on love.
While many marriages see women give up their work life and staying at home for children, many live-in relations see people give up jobs for sundry reasons, including ones like taking care of pets, etc. Those are choices two people make together.
Why should only one be made to pay for the consequences of it?
The compensation angle comes in not just for a woman who might have quit her job to shoulder the responsibilities of a house she shared with someone. It should also factor in all the compromises made with regard to her career.
Why protect women only under marriages
Let's face it, women's subjugation is all-pervasive. The idea behind giving legal protection to divorced, estranged or widowed women was to ensure that in a patriarchal society that denies them even property rights on the ground (despite the law having provisions for this), they should not be left utterly disempowered.
Should we leave women powerless because they did not believe in the concept of marriage or a delayed marriage?
Does this leave scope for the exploitation of men
Feminists and feminist movements have to realise that historical and culturally rooted wrongs cannot be rectified by committing more wrongs. The answer to empowered women is not disempowered men. Clearly not.
And that is what the law has already factored in on the question of marriages.
Not all women who walk out of marriages, or are forced out of marriages, are eligible for alimony or financial maintenance. The concept exists to ensure only those women who have no way to "live a life of dignity" should be provided alimony.
Women who are earning well enough cannot claim alimony. There are no blanket rules. Every case is decided on individual merit. The same legal philosophy needs to be followed in the case of prolonged live-ins too. How long is "prolonged" is also a matter best left for experts to decide. The court has done well by throwing open the debate. Civil society will have to start brainstorming on the question.
How far has law progressed
The Supreme Court has since 2010 consistently ruled in favour of couples living together as husband and wife, giving the woman the rights of a wife.
In 2015, a SC verdict said that a couple living together will be presumed married, while granting property rights to a woman after the death of her partner.
The court passed the order in a property dispute where the family members of a man contended that though their grandfather had been living-in with a woman for 20 years, they were not married. The family argued that the woman should be denied a share in his property because she was not his wife, but "mistress".
This is what makes women much more vulnerable than men in relationships, and also after they fall apart. This is also the reason why women need legal protection.
It is time live-in relationships get the sanctity they deserve in India.