Legality of live-in, same-sex marriage, polygamy – and society

| Updated: 16 March, 2023 12:25 pm IST
The government’s thrust to push people into unhappy marriages is drawing the new generation to opt for live-in.

In February, a PIL was filed in the Supreme Court for formulating rules for the registration of live-in relationships in India. It also sought mandatory registration of such partnerships. On the other side, a batch of Writ Petitions in the SC seeks recognition of same-sex marriages in India, which has been referred to a 5-judge Constitution Bench, with the top court calling it an issue of “seminal importance”.

Both matters will have far-reaching effects on the institution of marriage and this writer deals with these two matters briefly before coming to a larger issue in heterosexual marriages which is cannibalising the system from within, gradually but massively.

While there’s a complete legislative vacuum on live-in relationships, the apex court has sanctioned it legality in an array of judgments, so much so that the female partner was accorded protection under the Protection of Women from Domestic Violence Act, 2005 in Indra Sarma vs VKV Sarma (2013). In fact, the court has codified the live-in relationship jurisprudence in its Velusamy Vs D Patchaimal ruling in 2010.

In both matters of live-in and same-sex marriages, Velusamy Vs D Patchaimal is of prime importance. One of the criteria laid down by the SC for the presumption of marriage between live-in partners reads: “They must be otherwise qualified to enter into a legal marriage, including being unmarried.” That means a live-in relationship with a married or separated partner is illegal and would not have the benefit of this judgment. So is the difficulty with same-sex live-ins because homos are not “otherwise qualified” to enter into a legal marriage. Effectively, while the children born out of “otherwise qualified” live-in partners are legitimate and have inheritance rights including coparcenary rights; children born out of “not qualified” live-in partners don’t have the same protection. Same-sex partners’ difficulty is even greater when it comes to children.

Rules for registration of live-in relationships: The PIL has very heavy reasons in its support including the vulnerability of female partners and the children in such relationships, and also misuse of rape laws by females when the relationship goes sour. All valid points! But does it call for registration of live-in relations? Would it not create a parallel system of marriage? And if it gets the same sanction as marriage, why not make marriage laws itself conducive to assuage the fears of such people with marriage so that they get married? It will be more prudent for parliament to overhaul marriage laws to make them suitable to the needs and challenges of present times.

Recognition of same-sex marriage: The top court decriminalised section 377 of the IPC in the Navtej Singh Johar judgment but left the issue of marriage between LGBTQ people open-ended. The writ petitions are seeking recognition of homosexual marriages on the cudgels of Articles 19(1) (a) and 21 which the government has vehemently opposed. Now the question is when you have legitimised consensual homosexual relations, is it legally tenable to deny them the right to marriage? In the existing legal context, yes! But where there’s a legal vacuum, it’s the job of the SC to protect the interest of people who are demanding a very basic right available to other citizens of India. Denial of this right to the LGBTQ community makes them lesser citizens and will be discriminatory to them. Moreover, the right to marriage is the corollary to the legitimisation of consensual homosexual relations. The SC must be cognizant that when a society is not amenable to an idea, legal sanction of that idea makes it acceptable in the society in the realm of time.

Why marriage laws need a complete overhaul: The prevalence of live-in relations is a testimony to the fact that people are not averse to holy commitment, but are afraid of getting into the legal relationship of marriage because the marriage laws in India are too suffocative and biased in favour of the wife. Where the marriage fails, the current statutes make it extremely difficult to annul the marriage. While the legislature imitated the concept of divorce from the West in The Hindu Marriage Act of 1955, it has utterly failed to dispense divorce with the ease and speed it is dispensed in advanced countries. In the absence of mutual consent, it is next to impossible to annul a marriage in India. If one is fortunate to get a decree of divorce, the time taken is so long that chances of remarrying are very bleak on the age side. Maintenance jurisprudence is biased in favour of the wife. A district-level judge recently told that he is a spectator to three men committing suicide amid their ongoing divorce and maintenance issues in his court. Osho said that the system of marriage should be such that people should take years before entering into marriage, but if it fails, it shouldn’t take months to get out of it. But it’s the reverse in India.

Moreover, before 1955, polygamy was legal if not common among Hindus as it is among Muslims. Hindu Marriage Act and section 494 of the IPC together make it criminal for a person to remarry while the first marriage is subsisting. In a system like India’s, where it’s easier to separate with parents than the spouse, polygamy perhaps was alternate happiness for the grieving spouse given the fact that it might take decades to divorce if the other spouse is not consenting to a divorce. The government’s thrust to push people into unhappy marriages is drawing the new generation to opt for live-in. In his book ‘Polygamy’, authors Daniel Young, Sarah Young and Kate Young write that institution of polygamy will become a social force in the US in the next generation. “People will search for and find their own happiness, and when enough have done so, they will have a voice loud enough to change the laws of the land, gay and lesbian movement has exemplified this. Polygamy and plural marriage may be the next movement in the search for individual freedom and happiness”.

(The writer is a practising lawyer at Supreme Court)

[Views expressed are the author’s own]

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