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Law and Live-in Relationships in India

Anuja Agrawal

This paper focuses upon some of the legal moves which have brought adult heterosexual non-marital cohabitation patterns, popularly termed live-in relations, into public focus in India. These legal moves do not unambiguously signify legal sanction and recognition of new forms of non-marital heterosexual cohabitation patterns in India as some popular and judicial readings seem to suggest. Through a critical examination of some recommendations and aspects of the Malimath Committee and the debates ensuing from the Protection of Women from Domestic Violence Act 2005, it is shown that the legal changes are primarily directed at taking cognisance of womens vulnerable position within conventional forms of non-marital relations. Contradictory interpretations and conflicting implications arise in the absence of such legal changes being explicitly cognisant of and responsive to diverse forms of live-in relations prevalent in contemporary society.

here are two legal sites which have brought non-marital heterosexual relations into focus in India over the period of almost a decade. First, in 2008 the Maharashtra governments attempt to amend Section 125 of the Criminal Procedure Code (hereinafter CrPC) brought this issue to the fore. The amendment sought to broaden the denition of the term wife in this section to include a woman who was living with a man like his wife for a reasonably long period. This move followed the recommendations of the Malimath Committee in 2003. Second, the Protection of Women from Domestic Violence Act (PWDVA) 2005, is considered to be the rst piece of legislation that, in having covered relations in the nature of marriage, has provided a legal recognition to relations outside marriage. In what follows I will examine in detail the context and implications of these two legal moves for different forms of non-marital cohabitation.

Malimath Committee Report

This is a revised version of a paper presented at the International Seminar In the Name of Honour: A Dialogue on Androcentric Matrimonial Practices and Womens Subjugation in South Asia, organised by Womens Studies & Development Centre, University of Delhi, 16 to 18 February 2011. Anuja Agrawal (anujaagrawal@gmail.com) teaches at the department of sociology, Delhi School of Economics, University of Delhi.

The Malimath Committee, i e, the Committee on Reforms of Criminal Justice System, was set up in November 2000. It was constituted by the then home minister and deputy prime minister L K Advani under the chairmanship of V S Malimath, former chief justice of the Karnataka and Kerala High Courts. In 2003 when the Malimath Committee submitted its report (Government of India 2003, hereinafter GOI 2003), it made several recommendations under the head offences against women (pp 189-94). The rst of these recommendations was to amend Section 125 of the CrPC. This section is concerned with maintenance rights of the neglected wife, children and parents. It seeks to prevent starvation and vagrancy by compelling the person to perform the obligation which he owes in respect of his wife, child, father or mother who are unable to support themselves (GOI 2003: 189). The committee sought to extend the denition of wife in Section 125 to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the rst marriage (p 189, emphasis added). The extended denition of wife is thus clearly set against the backdrop of secondary relationships of already married men and is not directed at taking cognisance of what may be regarded as emergent forms of non-marital cohabitation. Providing an explanation for its recommendation, the report argues:
A woman in a second marriage [of a man] is not entitled to claim maintenance as in law a second marriage during the subsistence of the rst marriage is not legal and valid. Such a woman though she is de facto the wife of the man[,] in law she is not his wife. Quite often the man marries the second wife suppressing the earlier marriage. In such a situation the second wife cant claim the benet of Section 125 for no fault of hers.
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The husband is absolved of his responsibility of maintaining his second wife. This is manifestly unfair and unreasonable. The man should not be allowed to take advantage of his own illegal acts. Law should not be insensitive to the suffering of such women (GOI 2003: 189).

It is quite evident from the above that the object of focus here is not all non-marital adult heterosexual relationships but only that between a married man and his second wife, particularly one who has been cheated into believing that she is marrying an unmarried man. By adding the clause during the subsistence of the rst marriage, the report has left little room for any speculation regarding the objective of the recommendation. In 2008, Maharashtra, following the recommendations of the Malimath Committee, initiated an aborted attempt to amend Section 125 which brought the issue of legal status of live-in relations into the public gaze. The move was construed as an attempt to confer legal status on secondary unions of men as well as legalise live-in relations of the modern kind in which young men and women choose to enter non-marital heterosexual relations prior to entering a long-term committed marriage tie. Thus a news item reported that a move has been proposed to legalise Live-in Relationship (of a woman living with a man for a reasonable period, without marrying him) by according the status of wife to her (Agrawal 2008), and another news article titled Securing Live-in Relations began with the story of a modern working woman living in an urban location and having a live-in boy friend away from the prying eyes of her family and community. The article also mentions that men and women working in the business process outsourcing (BPO) industry are prone to enter into such relations (Menon 2008). Discussing The Socio-legal Dimensions of Livein Relationships, Varun (2011) set out the context as the advent of such relationship practised in the metropolitan cities. Juneja and Sharma (2009) examine the legal developments in light of the fact that a change is visible in our society from arranged marriages to love marriages and now to live-in-relationships. Such responses deect away from the focus of government recommendations as most of them do not mention the context of secondary relationships of men which are the primary trigger.1 There are also instances in which the courts have interpreted this recommendation in such a light. For instance in Chanmuniya vs Virendra Kumar Singh Kushwaha and Another (SC 7 October 2010), justices G S Singhvi and A K Ganguly cite the rst part of the recommendation of the Malimath Committee to support their case for a broad interpretation of the term wife. For them the above recommendation of the Malimath Committee suggests that the evidence regarding a man and woman living together for a reasonably long period should be sufcient to draw the presumption that the marriage was performed according to the customary rites of the parties.2 Therefore, for these judges, the committee recommended that the word wife in Section 125 should be amended to include a woman who was living with the man like his wife for a reasonably long period. This omits the phrase during the subsistence of the rst marriage, which as we saw above is very much part of the original recommendation. It can be argued that the committee is indeed somewhat vague with regard to the scope
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of its recommendation as the summary of the report regarding this recommendation also omits this part of the recommendation (GOI 2003: 291).3 The judges make no reference to the situation in which a man or a woman enters a second marriage during the subsistence of the rst one. Interestingly their judgment involved a case in which the woman claimed desertion in a levirate marriage, i e, a customary marriage with the brother of the dead husband. In the absence of the marriage rituals prescribed in Section 7 of the Hindu Marriage Act, the high court had decided against the appellants status as wife. The notion of a second marriage of a man was not the issue here. It may be noted, however, that even this case pertains to the legal validation of a customary form of marital relations and not to any emergent pattern of non-marital ties.4 It can be argued that, if the idea is to protect women in marriages or marriage like relations which render women vulnerable, the ground laid down by the recommendations of the committee needs to be much clearly stated and broadly dened when incorporated in law. It may also be pointed out here that Section 125 in its existing form seeks to secure the rights of a wife (as well as children and parents) when she is unable to maintain herself. Furthermore the woman seeking maintenance5 under this provision should not be living in an adulterous relationship and in case the husband is willing that the wife (or a woman like a wife) lives with him, she has to show sufcient reason for not being able to do so. In fact the Act in its existing form suggests that
If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wifes refusal to live with him.

Thus the spirit of this section is the protection of the rights of the primary wife of a man in a conventional heterosexual marriage.6 It is not apparent how a simple expansion of the denition of wife in this section will not, in at least some instances, impinge upon the rights of the primary wife and hence this does need more discussion and debate.
Other Relevant Recommendations

We will take a brief detour here to consider the Malimath Committees two other recommendations which have a close bearing on the issue under discussion and which indicate a lack of consistency in its recommendations regarding adult non-marital heterosexual cohabitation. In its section on Offences against Women, the second recommendation concerns Section 494 of Indian Penal Code (IPC), popularly understood as the law against bigamy, which is one among a number of sections pertaining to offences related to marriage. This section delineates as offence the act of marrying during the lifetime of a husband or a wife and is applicable to both men and women. However, the committee addresses primarily men who enter second marriages in its recommendations regarding this section. While bigamy is an offence presumably against the rights of the rst wife/husband, the legal provisions can be brought into effect only if it can be proven that a man/woman has had a second marriage according to proper rituals and customs. Curiously, the committee
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recommends that this provision regarding the proof of a valid marriage undermines the rights of the second wife who can thereby not claim maintenance (presumably, this refers to a situation in which the proposed amendment of Section 125 was brought into effect) and hence it recommends that
to overcome these practical difculties a suitable provision be incorporated to the effect that if the man and the wife (sic) were living as husband and wife for a reasonably long period they shall be deemed to have married in accordance with customary rites of either party thereto (GOI 2003: 189).7

The recommendations are silent about how this change would have an impact upon the existing liability for punishment under Section 494 which can extend up to seven years and a ne. Assuming that there is no change in this liability, the recommendations entail contradictory results for men and women: the men who enter bigamous relations would be seen as having married for a second time on lesser evidence than was admissible so far and women who have entered such a relationship would also be treated as having married the man on lesser evidence and can claim some of the rights of a second wife on this score. It is not clear who is the primary intended beneciary of this recommended change which enforces a more liberal denition of bigamy: the rst wife, who can claim that the husband has entered a bigamous relation on lesser evidence and charge him as such or the second wife, who can ostensibly also claim some rights on lesser evidence of a customary marriage. However, insofar as this recommendation seeks to benet the second wife, it rests on the changes recommended in Section 125 though this is not explicitly stated in the report.
Lack of Consistency

The lack of consistency in the committees recommendations is however most obvious from the changes suggested in the adultery law. Section 497 of the IPC criminalises adultery as an offence that a man commits when he has sexual intercourse with the wife of another man without the consent or connivance of the husband. It may be noted here that the marital status of the man who commits adultery is irrelevant to this section. The committee suggests that the object of this section is to preserve the sanctity of marriage. The society abhors marital indelity (GOI 2003: 190). It goes on to argue that there is no good reason for not meeting out similar treatment to wife who has sexual intercourse with a married man (ibid, emphasis added). While outwardly it might appear that the idea of this recommendation is to treat men and women at par, note that in reference to women, the authors of the report slip into referring to wife rather than to woman and curiously it also refers to a married man instead of man in general.8 This renders the recommendation rather vague. What if a married woman has a sexual intercourse with an unmarried man and what if an unmarried woman has such a relation with a married man? The existing law criminalises the man in the former case and, it seems, this situation will remain unchanged if we follow the above stated logic. As already pointed out above, in its existing form, the adultery law does not apply only to married men having sexual
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intercourse with wives of other men. It applies to any man, married or otherwise, who has sexual intercourse with the wife of another man. The actual gender asymmetry of the adultery law is thus that it does not allow a wife to charge either her husband or another woman with adultery. This is what has been pointed out in the recent Supreme Court (SC) verdict in the case of Kalyani vs State Tr Inspector of Police and Anr (Supreme Court, December 2011) which referred to a situation in which a wife sought to charge a girl friend of her husband under section 497 of the IPC pertaining to adultery. The judgment explicitly states that the present law does not allow any woman to be charged under this section. Though not stated explicitly, this is true in two senses. First, a married woman who enters into an adulterous relation with any man (married or unmarried) cannot be charged under this law by her husband (who can however charge the man). Second, an aggrieved wife cannot charge a woman who has sexual intercourse with her husband. Thus not only can a woman not be charged under this law, she also cannot use this law in any way. She can neither invoke the charge of adultery against her husband nor can she do so against any woman with whom the husband has sexual relations. However, a husband can use it to charge another man who has sexual relations with his wife but he cannot use it to bring about criminal charges against his wife.9 Interpretations of the gender asymmetry of this provision usually refer to the punish-ability of the man and the lack of legal culpability of the woman while ignoring that this law explicitly safeguards a husbands sexual prerogative over the wife while providing no such protection to a wife. This law is thus entirely consistent with the patriarchal paradigm which treats a woman as the property of her husband not to be violated by any other man. A gender symmetrical formulation of the law may, on the other hand, read as follows:
Adultery is an offence that (i) A man/woman commits when he/she has sexual intercourse with the wife/husband of another man/woman without the connivance of the husband/wife (ii) A husband/wife commits when he/she has sexual intercourse with another woman/ man without the connivance of his/her wife/husband.

It is of course debatable whether such laws, insofar as they criminalise consensual sexual relations, are desirable in the rst place.10 But that is not the focus of my discussion here. Returning to the recommendations of the Malimath Committee, it appears that the committee has stringent objection to a married woman having sexual relations outside marriage and to punish such a woman is the real objective which set the committee to make this recommendation. But the actual wording of the recommendation is very parsimonious in suggesting that Section 497 of the IPC should be suitably amended to the effect that whosoever has sexual intercourse with the spouse of any other person is guilty of adultery Surely, this does not full the avowed goal of the committee to punish the adulterous wife as long as she is not having sexual intercourse with the spouse of any other person. It seems that the real intention of the recommendation got lost in its hasty wording. It is at best speculative to think what this could mean in the context of commercialised sex relations where neither a woman nor a
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man may be in a position to know the marital status of their sexual partner. Should we see all sex workers as adulteresses when they enter relations of paid sex with married men? But such nuances and implications have not entered into the thinking about this legislation. If read in continuity with the other recommendations of the committee, the text of the actual recommendation would imply that, if implemented, any woman having a sexual relationship with a married man would be guilty of adultery and vice versa. By this logic the women in secondary marriages who are sought to be protected through the amendment of Section 125 of the CrPC and who appear to gain some leverage through the changes suggested in the bigamy law would end up being treated as indulging in adulterous relations. So if all the recommendations of the committee were implemented, a woman can simultaneously seek maintenance under Section 125 of the CrPC and be charged with adultery under Section 497 of the IPC. A man on the other hand may be susceptible to charges of adultery and bigamy at the same time as he pays maintenance to the woman with whom he is in a bigamous/adulterous relation! While it is not possible to go into further extrapolations about the legal implications of these recommendations, which are yet to be implemented, it is apparent that a clear and consistent thinking on this issue did not shape the recommendations of the committee. Furthermore, even as we point out the tensions and contradictions of such moves, it is also important to identify the intentions behind these moves which do not appear to converge with a desire to legitimate all forms of non-marital relations. As would also be clear from the above discussion of the different recommendations of the committee, there is considerable ambiguity towards women in nonmarital relations with men. The intentions, at least of those who drafted the Malimath Committee report, can be summed up as aiming at protecting women who have inadvertently entered marriage like relations with married men while wives who may be in such relationships with other men, need to be punished. The gamut of issues which non-marital relations between unmarried/marriageable men and women are not even touched upon in the report. It is evident that none of the recommendations of the committee are concerned with the patterns of cohabitation in which both partners are unmarried and whose relation is not encumbered by a previous marriage. However, the recommendations may also have direct implications for the same. Some of the responses to the Maharashtra governments attempt to amend Section 125 point out that this is a signicant category of non-marital relations, particularly associated with the newly emerging trends in urban Indian society and it can be treated as a sign that there is a lot of anxiety about the implications the legal moves have for such relations. It may be argued that once enshrined as law, the distinction between these apparently traditional and modern forms of non-marital cohabitation would be insignicant. But it would be worthwhile to spend some time working out these implications rather than leaving it to the imagination of people as to what this would mean. Moreover to bring widely divergent
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forms of relationships under the ambit of a single law should be the consequence of very detailed consideration of its implications for each form rather than an unintended and unclear by-product which allows for a lot of loopholes and inconsistency. Such problems would become even more obvious in the following discussion of the inclusion of relations in the nature of marriage in the PWDVA 2005.
The PWDVA and Relations in the Nature of Marriage

The PWDVA 2005, has been widely hailed as the rst legal Act to recognise the existence of non-marital adult heterosexual relations.11 This Act denes an aggrieved person who will be covered under this Act as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any Act of domestic violence by the respondent (Section 2[a], emphasis added). Further the Act denes a
domestic relationship as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family (Section 2[f], emphasis added).

From this it is evident that to the broad range of domestic relationships between a man and her husband, father, brother, and other male and even female kin related through consanguinity or marriage, the PWDVA has added the category of relations in the nature of marriage. This does not imply that the Act deals with all forms of domestic relations in a comprehensive manner. Hence it excludes the domestic relationship between a male employer and a live-in domestic worker.12 The Act also clearly has no space for adult same-sex relationships. Nevertheless, it is possible to say that, unlike the recommendations of the Malimath Committee, the PWDVA, 2005 has implications for a broader terrain of non-marital relations as it does not explicitly limit itself to the secondary relations of men. In having used the idea of relations in the nature of marriage, the Act seems to have widened the scope of legally recognised domestic relationships between men and women. In a commentary on one case arising out of the Act, the report Staying Alive 2009 (Lawyers Collective and ICRW 2009) suggests that
Whilst this provision has invited much criticism and controversy, it is important to note that it does not make an invalid marriage valid or provide legal recognition to bigamous marriages This provision merely seeks to denounce domestic violence in any quarter. It is not a judgment call on the morality of the choice to cohabit outside of marriage (p 7).

It can therefore be argued that it would be mistaken to see the Act as conferring some sort of a legal status upon nonmarital relations. What it undoubtedly does is to acknowledge the existence of such relationships and the right of women in such relations to protection from violence. However, the connotation of the phrase in the nature of marriage is far from obvious and, as we will see below, this is already a ground for contestation of the Act. This aspect of the Act was thus legally challenged in the Delhi High Court in 2008. In the case of Aruna Parmod Shah vs UOI,13 the petitioner challenged the constitutionality of the Act on the grounds that,
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rst, it discriminates against men and second, the denition of domestic relationship contained in Section 2(f) of the Act is objectionable. Regarding the second, the petitioner argued that placing relationships in the nature of marriage at par with married status leads to the derogation of the rights of the legally-wedded wife. The Delhi High Court rejected both these contentions regarding the constitutional status of the Act. With regard to the second contention, which is of concern to us, the court said that there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his common law wife or even as a mistress (ibid, emphasis added). In this case the judges interpreted a relation in the nature of marriage as covering both a common law marriage and a relation with a mistress without clarifying the legal and social connotations of these terms. Referring to this usage in the judgment, Staying Alive 2008, (Lawyers Collective and ICRW 2008) denes a Common Law marriage as referring to
Individuals who have lived together for a substantial period of time and who represent to the world that they are married. Some of the factors taken into account to determine a common law marriage are whether the parties reside in the same household, have children from the relationship, share names, etc (ibid: 57n3).

statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of adultery as dened under Section 497 IPC.

It is thus obvious that non-marital relations have not had a criminal or illegal status in India insofar as they are not covered by the adultery law and insofar as the principle of presumption of marriage prevails. And this is not a new trend. However, the same is not the case when one of the parties to the marriage is already married. And it is this that can be seen to be a newly recognised thorny issue in the Indian legal domain. A certain amount of dissonance in the interpretation of the idea of relation in the nature of marriage in the PWDVA, 2005 can thus be traced to the legal status of such relationships. In a judgment delivered in October 2010, the SC has dwelt at length upon the interpretation of this provision of the Act. In a case which concerned a woman seeking maintenance from an apparently already married man under Section 125, the judges observed that:
Unfortunately [the] expression [in the nature of marriage] has not been dened in the Act [PWDVA, 2005]. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.17

It suggests that such marriages are recognised as valid in law. Although it does not appear that there is any notion of common law marriage which exists in Indian law, the presumption in favour of marriage and against concubinage is of long-standing. In fact there have been a number of past judgments in which the courts have used Section 114 of the Indian Evidence Act, 1872, which suggests that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case to make a presumption of marriage. In a Supreme Court SC judgment in 2008 thus, for example, it was suggested that the act of marriage may be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.14 In a 2010 judgment as well, the judges made a strong argument in favour of presumption of marriage in any case where a man and woman have been living together for a reasonably long period of time and cite a long legal history of judgments which have favoured a presumption of marriage over that of concubinage.15 Hence one can contend that the Indian legal system does not always seek strict evidence regarding the validity of a marriage in the face of other circumstantial evidence which indicates the existence of a relation in the nature of marriage.16 This is further evident from the SC judgment in the famous case involving the south Indian actress Khushboo (S Khushboo vs Kanniammal & Anr, 28 April 2010) wherein, apart from other prominent issues such as freedom of speech, etc, judges Deepak Verma and B S Chauhan claried the scope of criminality in consensual adult relationships when they reiterated that:
While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no

The judgment further observes that:

It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe.

After making this statement which equates relation in the nature of marriage with live-in relations prevalent in the west, the judges state that in their opinion a relationship in the nature of marriage is akin to a common law marriage. According to the judgment, common law marriages require that although not being formally married, (a) The couple must hold themselves out to society as being akin to spouses, (b) They must be of legal age to marry, (c) They must be otherwise qualied to enter into a legal marriage, including being unmarried, (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a signicant period of time. Interestingly and controversially, this denition of common law marriage has been taken from Wikipedia on Google as duly acknowledged by the judges in the text of the judgment. Incidentally, this is not the only reference to a web-based source in this judgment which refers to Google as a source at two other places.18 But to return to the matter of immediate concern here, the third criterion which has been set out seems to considerably delimit the scope of relations covered by the PWDVA. The judges go on to state that:
In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benet of the Act of 2005. To get such benet the conditions mentioned by us above must be satised, and this has to be proved by evidence. If a man has a keep whom he maintains nancially and uses mainly for sexual purpose and/or as a servant, it would not, in our opinion, be a relationship in the nature of marriage.
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In her commentary on the PWDVA, 2005, Agnes (2011b) has suggested that the PWDVA has
transformed the yesteryears concubines into present day cohabitees While some may dismiss the term cohabitee as a western or urban phenomenon, this term can now be invoked to protect the rights of thousands of women, both urban and rural, who were earlier scoffed at as mistresses or keeps in the judicial discourse (ibid:154).

But the above fragment from the SC judgment belies the hopes for such a transformation.19 The judges further state that:
No doubt the view we are taking would exclude many women who have had a live-in relationship from the benet of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression relationship in the nature of marriage and not live-in relationship.

In saying this, the judges appear to be implying that the scope of the term live-in relationship is much broader than that of relationship in the nature of marriage. Indirectly, however, the judgment also equates what it treats as a new social phenomena with the idea of relationship in the nature of marriage, subject to the denition of common law marriage as taken from Wikipedia. Arguably there is much confusion in the various arguments of the judgment which seems to draw upon contradictory meanings of the phrase live-in relationship. In her commentary on this judgment, Indira Jaising of the Lawyers Collective, who is one of the main authors of this Act, is evidently dismayed at the manner in which the court has interpreted this provision.20 She specically lashed out at the exclusion of cases in which one of the parties is already married. She argues:
This would mean that if a married man deceived a woman into marrying him, and lived with her as if married, this would not be a relationship in the nature of marriage, even though they represent to the world that they are married and live in a stable relationship and have children together. This was not the intention of the Act and it was in some measure intended to protect women like these. The phenomena of a man marrying more than once is well known in this country, and the history of permitting multiple marriages has not been erased by the law but continues to inuence the behaviour of men. The strange result of this interpretation has been that the man will not be in a relationship in the nature of marriage for he is previously married but the woman will be in a relationship in the nature of marriage, as she is not previously married (Lawyers Collective and ICRW 2010: iv).

While it may be open to debate whether all forms of heterosexual relations are unequal, and whether all forms of nonmarital heterosexual relations also ought to be construed to be so and whether this should be the presumption in drafting all laws, it needs to be acknowledged that it is this gendered assumption which seems to be giving legal visibility to live-in relations in India. From the above brief discussion it is also evident that the meaning of relations in the nature of marriage in PWDVA is already subject to contestation and contrary to Jaisings contention that the expression is self-explanatory... It obviously relates to those cases in which the parties are not married yet cohabit, not everyone seems to agree, at least not judges Markandey Katju and T S Thakur. They even suggest that the Parliament has used the expression relationship in the nature of marriage and not live-in relationship, thereby suggesting that the two have very different connotations.
Conclusions

It is worth mentioning here that the Lawyers Collective had hailed an earlier judgment (Aruna Parmod Shah vs UOI, Decided on 7 April 2008, High Court of Delhi) as progressive which had observed the unequal character of relations in the nature of marriage. I quote from the judgment:
An assumption can fairly be drawn that a live-in relationship is invariably initiated and perpetuated by the male The Court should also not be impervious to social stigma which always sticks to women and not to the men, even though both partake of a relationship which is only in the nature of marriage.

The court in making this observation and the Lawyers Collective in approving it appear to be signalling that in this case there is convergence in both, the intention and the interpretation of the Act, as being directed at protecting women from violence within forms of relations between men and women which are presumed to be unequal.21
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The public and even judicial responses to the legislative move to amend Section 125 and the provisions of the PWDVA, 2005 are sometimes deected by a focus upon presumably western forms of non-marital cohabitation in which usually unmarried men and women enter non-marital but exclusive relations with each other, often as a form of experimentation prior to a marital commitment. However, it is not evident that the primary impetus for legal changes is coming from recognition of the modern style of living together. The legislative measures are a response to more traditional and even patriarchal forms of non-marital cohabitation in which the male partner is already married and enters a relation with another, usually unattached woman, who may or may not be aware of the marital status of this man. Thus these legal moves appear to be set against the backdrop of prevalent practices of married men entering secondary relations with women. As is evident from the statement made by Jaising, the main concern of those who have been pushing for such legislation is to provide some relief to women who have been in such relations under fairly conventional conditions. This was even more obvious in the case of the recommendations of the Malimath Committee which have however not been implemented. Such cases are arguably quite distinct from a western style cohabitation patterns which are referred to as live-in relationships in popular vocabulary. However, it is not obvious that all forms of non-marital relations can or should be treated as legally identical. In any case, even if they should be treated as such, the decision to do so should be preceded by a careful consideration of the implications this will have for the different categories. As things stand, in the absence of clear social and legal categorisation of non-marital relations, the eld has been left wide open and even the highest judicial functionaries have allowed themselves to ponticate upon the need to separate a relation in the nature of marriage from that with a servant or a keep and a one night stand. Notwithstanding the political incorrectness of a good deal of these ruminations, this reveals the confusion which has arisen around who might be the beneciary
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of such laws and whether such legal protection is equally desirable in different forms of relationships. Jaisings statement that this provision affords protection against domestic violence to women in live-in relationships, legally void/voidable marriages22 and common law marriages offers us a preliminary classication of non-marital heterosexual cohabitation patterns. But clearly there is some dissension regarding the possibility of treating all of these under one heading, particularly if this entails conferring identical rights upon women in such relations, at least under certain conditions. It may also be noted that none of these legislative moves should be treated as dealing comprehensively either with the gamut of live-in relations or with the corpus of rights and obligations which might require legal redress in such relations. At best they extend some of the rights of married women to women who are in non-marital relations with men. A preliminary
Notes
1 Not all responses to the legal moves are however impervious to their context. For example see Prakash Yedhula (2009) for a more nuanced response to the legal moves. 2 As will be shown below, this statement has been made in the Malimath Committee, not in the context of the amendment of Section 125 of CrPC, but in their recommendation regarding the Section 494 of the Indian Penal Code which pertains to bigamy. 3 The exact wording in the summary is: Denition of the word wife in Section 125 of the Code be amended to include a woman who was living with the man like his wife for reasonable (sic) long period (p 291). 4 However, see Chowdhry (2007) for a detailed discussion of how such contemporary conditions have enforced leviratic relations upon widowed women among particular communities. 5 Earlier the maximum amount of maintenance was 500 but this clause was omitted in an amendment in 2001. Different states also specify different amounts of maintenance ranging between 1500 and 3000. 6 Some studies show that, alongside alcoholism, a second marriage or an extramarital relationship of the husband is the dominant factor in desertion of the rst wife. See Kulkarni and Bhat (2010). 7 See n 3 above. 8 In the summary of recommendation, it is again noted that As a man can be punished under Section 497 of IPC for adultery, for having sexual intercourse with a wife of another man it stands to reason that wife should likewise be punished if she has sexual intercourse with another married man (GOI 2003: 290, emphasis added). 9 However, both men and women can use the charge of adultery as a basis for seeking divorce. 10 See Agnes (2011a: 138-40) for a discussion of the undesirability and inappropriateness of criminalising such relations in contemporary societies. 11 See Karanjawala and Chugh (2009: 294). 12 It is worth mentioning here that while domestic workers have been clearly excluded from the PWDVA, 2005, there has been much ambivalence regarding the inclusion of domestic workers even within the ambit of the Prohibition of Sexual Harassment of Women at Workplace Bill 2010, rendering them among the most vulnerable section of women workers. See Tandon (2011) for instance. 13 Aruna Parmod Shah vs UOI, Decided on 7 April 2008, High Court of Delhi.

comparison of these legal moves with the legal trajectory of relations of cohabitation in western societies will show that the Indian situation is quite far from affording a high degree of legal protection to modern forms of non-marital relations and that the desirability of such protection is itself a much debated terrain. Some western countries such as the Netherlands (Law on Registered Partnership, 1997) and France (Pacte Civil de Solidarit or PACS, 1999) have directly legislated on the status of non-marital relations both heterosexual and homosexual (Bradley 2001). While both these pieces of legislation deal with non-marital cohabitation, neither of them address secondary marital relations of the sort sought to be addressed in the Indian case. Hence, it is useful not to see the legal trend in India as replicating the western model in any sense as much as asserting the need to more openly discussing the desirability and nature of legal remedies for men and women in such relations.
Determinants of Legal Policy, International Journal of Law, Policy and the Family, 15(1): 22-50. Chowdhry, Prem (2007): Contentious Marriages, Eloping Couples: Gender, Caste and Patriarchy in Northern India (Delhi: Oxford University Press). GoI (2003): Committee on Reforms of the Criminal Justice System (Bangalore: Ministry of Home Affairs, Government of India). Juneja, Saakshi O and Bhumika Sharma (2009): Live-in Relationships: The Indian Perspective, India Law Journal, 2(2), viewed on 11 March 2012 (http://indialawjournal.com/volume2/issue_2/article_by_saakshi.html). Karanjawala, Tahira and Shivani Chugh (2009): The Legal Battle Against Domestic Violence in India: Evolution and Analysis, International Journal of Law, Policy and the Family, 23(3): 289-308. Kulkarni, Seema and Sneha Bhat (2010): Issues and Concerns of Deserted Women in Maharashtra in Economic & Political Weekly, 45(38): 59-66. Lawyers Collective and ICRW (2008): Staying Alive: Second Monitoring & Evaluation Report on the Protection of Women from Domestic Violence Act, 2005. (2009): Staying Alive: Third Monitoring & Evaluation Report on the Protection of Women from Domestic Violence Act, 2005. (2010): Staying Alive: Fourth Monitoring & Evaluation Report on the Protection of Women from Domestic Violence Act, 2005. Mahapatra, Dhananjay (2010): Can Wikipedia Be the Basis of SC Ruling?, The Times of India, 25 October, viewed on 30 December 2010 (http://timesofindia.indiatimes.com/india/ Can-Wikipedia-be-the-basis-of-SC-ruling/ articleshow/6806187.cms). Menon, Ramesh (2008): Securing Live-in Relations, India Together, 16 November, viewed on 10 January 2011 (http://www.indiatogether. org/2008/nov/soc-livingin.htm). Tandon, Aditi (2011): Sexual Harassment at Workplace Draft Bill: House Committee, Govt Differ on Inclusion of Domestic Workers, Tribune, 8 December, viewed on 11 Macrh 2012 (http:// www.tribuneindia.com/2011/20111209/main3. htm). Varun (2011): The Socio-legal Dimensions of Livein Relationships, 29 August, viewed on 11 March 2012 (http://www.lawyersclubindia. com/articles/The-Socio-Legal-Dimensions-ofLive-In-Relationships-3966.asp). Yedhula, Prakash (2009): Live-in Relationships in India Accorded Legal Status, 11 January, viewed on 11 March 2012 (http://www.lawyersclubindia.com/articles/Live-In-Relationshipsin-India-Accorded-Legal-Status-598.asp).
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14 See Tulsa & Ors vs Durghatiya & Ors, Decided on 15 January 2008, Supreme Court of India. 15 Chanmuniya vs Virendra Kumar Singh Kushwaha and Anr, Decided on 7 October 2010, Supreme Court of India. 16 Agnes (2011b) recounts a number of legal cases going back to early 1950s which depend on the principle of presumption of marriage (ibid: 153-59). 17 D Veluswamy vs D Patchaiammal, Decided on 21 October 2010, Supreme Court of India. 18 See Mahapatra (2010) for a comment on this controversial reference to a web-based source in the judgment. 19 The use of the term mistress in the case of Aruna Parmod Shah vs UOI, Decided on 7 April 2008, High Court of Delhi, has already been noted above. The usage did not come under ak that it faced in the D Veluswamy vs D Patchaiammal case, presumably because the judges accepted the right of mistress to equal treatment. As will be shown below, the Lawyers Collective even hailed the judgment as progressive. 20 See the Preface to Staying Alive 2010 (pp iv-v) for a detailed critique of this judgment and the language it uses by Jaising. 21 In reference to a case with Mumbai High Court (Manda R Thaore, W/o Sh Ramaji Ghanshyam Thaore vs Sh Ramaji Ghanshyam Thaore, Criminal Revision Application No 317/2006), Staying Alive 2010 notes approvingly that in this case court had indicated that PWDVA could step in where Section 125 failed to address the women in secondary marriages, once again indicating the intention of the authors of the Act (see Lawyers Collective and ICRW 2010: 138-39). 22 Jaisings further statement includes bigamous or fraudulent marriages in this category.

References
Agnes, Flavia (2011a): Family Law, Volume I, Family Laws and Constitutional Claims (New Delhi: Oxford University Press). (2011b): Family Law, Volume II, Marriage, Divorce, and Matrimonial litigation (New Delhi: Oxford University Press). Agrawal, Subhash Chandra (2008): Legalising Live-in Relationship: Caution Needed, Merinews, 11 October, viewed on 21 December 2010 (http://www.merinews.com/article/legalising-live-in-relationship-caution-needed/144116.shtml). Bradley, David (2001): Regulation of Unmarried Cohabitation in West-European Jurisdictions
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