Friday, October 28, 2016

Can the Supreme Court of India stop using misogynistic & derogatory terms like concubine and "keep" for women who are in relationships as mistresses, lovers, partners, girlfriends, etc.

Indra Sarma vs V.K.V.Sarma SC 2013 is a terrible judgment replete with old-fashioned misogyny. A single woman entered into a live-in sexual relationship with a married man and they lived together for 18 years with her giving up her job and handling the household. The terms in which the judgment describes the woman and her action in entering into this relationship is judgmental and demeaning.

Here is an extract: 

"The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .
We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage. [Paras 57, 59 & 64]”

This is such a regressive statement. Why does the Supreme Court still use the archaic and demeaning term concubine? We have had “concubines” as members of Parliament. There is so much that is wrong with this statement.

How does the Court presume monogamy in other live-in or married relationships?

Any long-term live-in relationship between a man and a woman in a sexual relationship should in my opinion fall within the purview of the Domestic Violence Act for certain purposes but perhaps not for all.

Our Supreme Court Judges should at least read the wikipedia entry on “Concubinage”at so that they do not use this term again.

“While various forms of long-term sexual relationships and co-habitation short of marriage have become increasingly common in the Western world, these are generally not described as concubinage. The terms concubinage and concubine are used today primarily when referring to non-marital partnerships of earlier eras. In modern usage, a non-marital domestic relationship is commonly referred to as co-habitation (or similar terms), and the woman in such a relationship is generally referred to as a girlfriend, lover or (life) partner.”

The word concubine essentially used to mean a sexual slave or a socially and sexually subservient woman living with legal sanction in a man’s household shared with his legally wedded wife/ wives and occupying a lower status than the wives, It is not even an Indian concept. Why would our judges use this term?

Note also how the judgment solely blames the "other" woman (but not the man) for an 18 year old affair with a married man in para 24:
"Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..”

J. Katju in D.Velusamy vs D.Patchaiammal on 21 October, 2010
“If a man has a `keep’ whom he maintains financially 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'”

Why was this not expunged? The Supreme Court using such derogatory language to describe the circumstances of many women in exploitative relationships is unfortunate.

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