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Sex & the courts: liberal judgements on marriage, mistresses and more

Saurav Datta | Updated on: 13 June 2015, 15:04 IST

The judgement

  • Phoola Bai case; April 2015: Supreme Court rules a woman living-in with a man can have rights over his property.
  • The term \'live-in relationship\' was first used by the Supreme Court in 2010.
  • But Indian courts have recognised relationships \'in the nature of marriage\' since 1927.

The implication

  • This opens an important progressive space.
  • A formal marriage not needed for courts to recognise marital rights. Domestic Violence Act can also be invoked to curb abuse.

The lacunae

  • Jaya Jaitley, Samata Party chief and long-time companion of former defence minister George Fernandes, lost all rights over him to his legal wife Leila Kabir.
  • Superstar Rajesh Khanna\'s \'surrogate wife\' Anita Advani was declined a share in Khanna\'s property by Bombay High Court.
  • How is one to distinguish between a \'mistress\' and a wifely companion. The clause \'reasonable period\' of time is hard to define.
  • Rights over ancestral property and status of children born out of marriage remains ambiguous.

With the Supreme Court judgement in April 2015, the conversation around live-in relationships and rights of women in India just got legally more progressive.

This hasn't always been the case. Anita Advani used to call herself Bollywood superstar Rajesh Khanna's 'surrogate wife', because she stayed with him for around eight years under the same roof, and enjoyed what she terms a period of marital bliss.

She served him, cared for him when he was ill, and always vehemently denied accusations of being a gold-digger. However, the Bombay High Court refused to entertain her plea.

Quashing the charges of domestic violence which she had filed against Khanna's family (which evicted her from his iconic bungalow Ashirwad), the court ruled that she was only a mistress, and should not be allowed to mine that relationship in any way, now that the legendary Bollywood star is no more.

George Fernandes and Jaya Jaitly case

Three years ago, a similar scene played out at the Supreme Court when Jaya Jaitly, former Samata Party leader and a close confidante of former defence minister George Fernandes, knocked at its doors for visiting rights.

Fernandes, now suffering from Alzheimer's disease, is a party to a bitter fight between his estranged wife Leila Kabir and Jaya.

Jaya has been his constant companion for almost 29 years - sharing roof and life. She was treated as an outcast till the apex court, on 31 August 2012, allowed her to meet him for 15 minutes every fortnight.

These two incidents stand as stark outliers to the Supreme Court's progressive jurisprudence on 'live-in relationships', which has raised people's legitimate expectations about a more equitable interpretation of the laws.

Chhatrapati and Phoolbasa Bai case

Let us look at the most recent case. On 8 April this year, a bench of Justices MY Eqbal and Amitava Roy ruled in favour of the heirs of a certain Phoolbasa Bai, who hadn't been wedded to a man named Chhatrapati, but stayed with him as his wife, in a joint family for all practical purposes.

Chhatrapati died in 1977, and Phoolbasa Bai, who died in 1992, executed a will to distribute his property among different heirs. Her sister-in-law's son challenged the will on two grounds.

Since 1927, live-in relationships have been legally kosher. But status of kids born of them still isn't clear

One, that as she was only a concubine and not a legally-wedded wife, she had no right to Chhatrapati's property and, therefore, was ineligible to make a will. Two, the will was forged, and was therefore, invalid.

Both, the trial court and High Court had ruled in Phoolbasa Bai's favour, holding that although the wedding was not solemnised as per established rites and customs, the very fact that the couple were staying as man and wife for a considerable period of time, and even had a child out of the relationship, was sufficient to grant legal sanctity to the relationship.

Relationships in the nature of marriage

That was because the courts have always termed such relationships as 'relationships in the nature of marriage', which vested in the couple the same rights, or most of the rights which a married couple would have.

Since 1927, when the decision in A Dinohamy vs WL Balahamy was given by the Privy Council, this has been the legal position, and subsequently, courts have only gone on to reiterate it.

Therefore, Phoolbasa Bai had the right to inherit her 'husband's' property, and pass on the same through a will. The Supreme Court also agreed with the previous judgements and declined to accept the charges of forgery.

Live-in relationships and the grey areas

The term 'live-in relationships' was first used by the Supreme Court in the D Velusamy case (2010) in which the judges ruled that if a couple has lived together for a 'reasonable period of time', the Domestic Violence Act would be applicable in such a situation.

Photo: Pal Pillai/AFP/Getty Images

The Act talks only about a 'domestic relationship', so a marriage in the eyes of the law is not a pre-requisite.

But it would be erroneous to claim that this ruling was the first to recognise live-in relationships.

The credit for that goes to a three-judge bench of the court which in 1978 held that since the couple had stayed together for almost 50 years without getting married, they are to be regarded as husband and wife. However, in both these cases, the court clearly stated that a mistress, who provides mainly sexual services (although some degree of romantic feelings could well be involved), shall not be eligible to claim any rights which arise out of a marriage.

Clarity missing over ancestral property

So, a woman shall be able to claim maintenance, both under Section 125 of the Code of Criminal Procedure (in which such relationships also come within the definition of 'wife') as well as under the Domestic Violence Act.

But when it comes to matters of property, especially the man's ancestral property, the clarity is missing. Even if courts were to rule in favour of property rights for the woman, there would be stiff opposition.

As it is, the government's 2013 proposal to amend the Hindu Marriage Act to give a divorced wife such a right was met with vociferous protests, and has been put on hold.

The status of children born out of such relationships is another concern, especially after the Supreme Court's ruling in the Bharatha Matha case (2010) which stated that children from such relationships would be considered illegitimate, and hence ineligible for any property rights.

The most vexing questions are about the interpretation of 'reasonable period', and the distinction between a mistress and wifely companion.

If Anita Advani and Jaya Jaitly have been found ineligible for the court's benevolence, then doesn't it warrant a timely ruling in the interests of justice of everyone in similar positions?

The views expressed here are personal and do not reflect those of the organisation.

First published: 27 May 2015, 17:50 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.