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 In October, Indian courts made a few interesting judgments which went unnoticed due to our preoccupation with the Supreme Court in Pakistan. A few comments were made locally about the Allahabad High Court judgment on the Ramjanmabhoomi-Babri Masjid suits but another important ruling by the Indian Supreme Court was not given prominence, although it has annoyed a number of feminists and urban women in general in India.
The Court consisting of two judges ruled that if a man keeps a woman, this relationship will not be in the nature of marriage for her to claim the benefit of live-in to get maintenance under the Protection of Women from Domestic Violence Act 2005. The Appeal came before the Supreme Court after one Velusamy was aggrieved over a Madras High Court judgment upholding a Coimbatore family court order, awarding maintenance of Rs. 500 to one Patchaiammal, declaring her his wife, though his first marriage was not dissolved. The Court set aside the judgment of the High Court, and remanded the matter to the Family Court to decide the matter afresh in the light of its observations.
The Court relied on the term `relationship’ in the 2005 Act and stated that this is used in the law as a `relationship in the nature of marriage’ and not ‘live-in relationship’. In the Court’s opinion, not all live-in relationships will amount to a ‘relationship in the nature of marriage’ for women to get the benefit of the Act.
The Court held that in order to get the benefit of such a marriage, the couple must:
- hold themselves out to society as being akin to spouses;
- be of legal age to marry;
- be otherwise qualified to enter into a legal marriage, including being unmarried; and
- have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
“If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a relationship in the nature of marriage. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship,’ according to the Court. Justice Katju who wrote the judgment said: “Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’.”
This ruling differed significantly from the widely used notion of `palimony’ in the United States, where the courts grant maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. This is despite the fact that there is no law for grant of palimony even in the USA. Many a times, however, the party claiming palimony is required by the court to prove some sort of an understanding.
The matter took an interesting turn when the only woman Additional Solicitor-General attached to the Supreme Court, Indira Jaising, took exception to the use of the word ‘keep’ in the Judgment and said the offending word should be expunged.
Ms. Jaising said: “I take strong exception to the use of the word ‘keep.’ No woman is kept. How can the Supreme Court of India use the word ‘keep’ in the 21st century against a woman? Can a woman say that she has kept a man? It works both ways.” She told the Bench to be gender sensitive and stated that the word ‘keep’ was a literal translation of the Hindi word ‘rakhel,’ which is considered derogatory. When the Court asked whether it would be appropriate to use the word ‘concubine,’ Ms. Jaising said: “It would have been still worse.” 
The writer is a seasoned lawyer and has authored several books.
Anees Jillani is an advocate of the Supreme Court and a member of the Washington, DC Bar. He has been writing for various publications for more than 20 years and has authored several books.
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