Feminists have long argued for recognition of the rights of the ‘other woman’ in married relationships. Why, they have asked, is she the one to be vilified, and why is it that both women — the legitimate wife and the live-in partner — cannot be recognised as having rights, notwithstanding that the relationship may be legally illegitimate. Often, they’ve pointed out, the ‘second’ woman is not even aware of a first marriage, and there is no easy way for her to find out.
Now, in a recent judgment on a claim made by a woman under the Domestic Violence Act, the Supreme Court has answered this question, albeit in a somewhat indirect way. Ruling on the case of a woman — a long-term live-in partner now not in a relationship with her married partner — seeking maintenance under the Protection of Women from Domestic Violence Act, the Court rejected her petition saying that the law, as it stands, has no space for the ‘second’ woman and that accepting that the ‘second’ woman was entitled to maintenance would mean a betrayal of the rights of the legitimate wife and children who were opposed to that relationship. Such a partner, the Court went on to say, had the status of a ‘concubine’, but then went on to add that concubines too needed protection.
Though one may argue with the language of the Court — never known to be particularly gender-sensitive — its conclusion cannot be faulted. But how is this to be done? What bases can be used to judge the relationship of two live-in partners who do not have the legitimacy of being legally married?
The Court’s suggestions here — eight criteria that are not exhaustive but indicative — are significant. Two people in a live-in relationship may have many things they share: home life, bank accounts and savings, a social life and social interaction with others, children, time, a sexual relationship, not only for procreation but also for pleasure. Any or all of these things could provide indications of such relationships.
Each of those parameters is interesting and takes our understanding of women’s rights one step further. In essence, the Court is offering a recognition not only of a woman’s economic contribution to the home in live-in relationships, but also her social contribution to the life the couple shares, as well as her agency as both a mother and a sexual partner, and the legitimacy of children born of such a relationship. All of these are important considerations and provide indications of a shared life, by which the law, if called upon, may be able to assess the nature of the relationship.
The real question is if, and when, Parliament will take cognizance of the Court’s recommendations and whether it will take them seriously at all. If past record is anything to go by, the halls of Parliament exhibit not only deep misogyny (as evidenced by many feminist activists who were present there in recent discussions on changes in the rape law), but also an equally profound conservatism, especially on the question of male-female relationships.
How then will the men and women who make our laws and legislate on our lives, address themselves to questions that require them to put aside their conservative beliefs and recognise how society is changing? If the changes in the recent law on rape are taken as an indicator, the State’s refusal to recognise marital rape clearly indicates how it sees marriage as a relationship within which something that is illegal in law gets recognised simply because the relationship is sanctioned by religion.
Nevertheless, the Court’s recommendations offer an indication that we are seeing at least the beginnings of some sort of change in thinking. Whether such change is at all widespread, or if it represents the reflections of two individuals, it is nonetheless significant, for it offers the beginnings of something that can be incremental.
The timing of the judgment is significant. This last year has been an unusual year of activism on the women’s question. If nothing else is gained, at least the judgment will have served to have kept that debate alive, and contributed to broadening our understanding of the issues that lie at the heart of the debate.