Live-in vs. Live-out vs. Marriage – An Analysis

Marriage may be defined as a ‘Sacrament’ between two persons. In other words it is not a contract between two individuals but a sacrosanct relationship between two human beings placing certain obligations and duties vis-à-vis each other. It is generally seen that marriage is a union for leading a life wherein both the spouses contribute to the union. Primarily, a person choses his / her partner based on either of the 4 reasons below:

• Virtue
• Nobility
• Wealth
• Beauty

Now a question arises what are these obligations vis-à-vis each other that that marriage entails?

Traditionally, societies have prospered by utilizing a concept of labour specialization. This entails that work be divided into gender based roles such as all activities within the house are taken up by the women and all risky activities outside the house were taken up by the men. The primary reason for this work division was that men were considered as a disposable sex and women were protected. Protection of women was primarily important as they were the sex who could reproduce, therefore allowing the continuity of the tribe. As human civilization started growing, this division of role became prominent and hence the concept of marriage was born. Therefore, historically the roles in marriage were based on division of labour and to ensure continuity of the tribe. Hence, marriage was primarily an unwritten contract between a husband and wife which had predefined roles for them.

These predefined roles are also ingrained in the marriage vows:

• As per Bible
• As per Quran
• As per Saptapadi (ie. Saat Phere)

Marriage also provided legitimacy to the children born out of marriage. Various succession laws are dependent on a person’s marital status. Therefore in essence, marriage was a social fabric of our society which had mutual rights and obligations and also entailed legitimacy of children and succession.

 

What has changed?

Post WW2 as the world was comparatively at peace, the women wanted to break free from these gender roles and hence feminism was born. The sacrament which was that men will provide for women and in reciprocation the women will take care of the children and home. Therefore each side had certain rights and responsibilities. What feminism actually did was break this sacrosanct relationship, where men had all responsibilities and women had all rights in the marriage. It gave women an option not to follow their side of the unwritten contract but imposed on the men their obligations. For reference you may read about CrPC 125 (Maintenance Clause) for more info.

In the turn of 1980s and 1990s the unwritten contract kept becoming more onerous. To explain the current situation, read the below sample employment contract and do let me know if you would sign it. (Reference from Angry Harry):

Your employer can, at any time, dismiss you, without justification, and he can have you imprisoned if you object too strongly to your dismissal. For example, if you raise your voice in anger at the way in which you are being treated, your employer may have you arrested for ‘violence’. In any event, your employer can dismiss you regardless of the circumstances, and at his sole discretion.

Your employer can fire you from your job whenever he wishes, no matter how long you have served his company, and even if you have done absolutely nothing wrong. Further, your employer can insist that you are evicted from your own home, and never allowed to re-enter it.

Your employer may further demand that you must, under threat of imprisonment, forfeit part of any future income to your employer for some considerable time into the future.

 

I doubt anyone will say ‘Yes’ to the above employment terms. Now read the current marriage contract:

A woman can, at any time, dismiss her male partner, without justification, and have that partner imprisoned if he objects too strongly to his dismissal. For example, if he raises his voice in anger he may be arrested for ‘domestic violence’. In any event, a woman can dismiss the man regardless of the circumstances, and at her sole discretion.

She can fire him from his jobs as father and partner, whenever she wishes, no matter how long he has served the family, and even if he has done absolutely nothing wrong.

Further, the woman can insist that the man is evicted from his own house, and never allowed to re-enter it. If she has children, a woman may further demand that her sacked partner must, under threat of imprisonment, forfeit part of any future income to the woman and her children for some considerable time into the future – and, in some instances, this is the case even if her children turn out not to be his.

This is the hard truth regarding the current marriage contract. Refer to this link to understand the legal mechanism to enforce the above contract.

 

The Effect of this change:

Any one-sided contract is short-lived, and people try to remove its vices by other means. Looking at the onerous nature of marriage, another relationship was born named live-in relation. Here, the benefits of marriage such as companionship, love, physical intimacy etc… were retained without the burden of liabilities of marriage as discussed above. The live-in relationship also gave the flexibility to easily move out of the relation. (Divorce is a painful and lengthy process to end a marriage). There is a saying that a leopard can’t change his spots; this means that though a person can have a pretense during the courtship phase, the true nature is revealed when they live together, as changing the true nature is not possible. Hence many couples started using live-in relationships to judge the compatibility with the partner before proceeding in a marital relationship. Therefore the benefits which a live-in relationship brought to the table were:

• The couple could know each other before marriage
• The couple could dissolve the relationship when they wanted
• The couple enjoys the physical intimacy that of a married couple
• The couple gets a chance to understand the real behaviour of the partner

 

Recent Amendments:

In recent amendments, another term, ‘Relationship in the nature of marriage’ has been used, which imposes obligations of marriage on the parties to certain live-in relationships.

So that the couple donot intrude in each other’s personal space and to remove the vices of a live-in relationship, the concept of a live-out relationship is evolving. Wherein the couple choose to be in a relationship but retain their own personal lives and space.

Below is the video of Osho talking on marriage and summing it up very well.

You might also be interested in one of my older post: Why should men marry?

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Reference:  The Myth of Male Power, Warren Farrel.

Note:  This post is not to hurt sentiments of any person. If you feel offended in any way do feel free to comment and clarifications will be provided. The author does not subscribe to any views in the links and video given in the post. The views in the links and video are solely the views of the author of those respective links / video. These links / videos have been provided only for a comparative purpose to tackle all the aspects of the above debate.

And here comes the netizen brigade of moral police…

Today I read many bloggers blogging on the topic of Virginity, and is it a character certificate. Many posts which were on the topic stated that people who seek virgins are uneducated, should be virgin themselves, should be slapped, should be kicked on their butt etc…

My response to these moral police:

• Is the person asking for a virgin bride infringing any of your rights?
• Open any of the matrimony column, there is a list of requirements by brides for grooms as well
• Similarly a groom has a requirement, if anyone has a problem with that requirement, the mature thing to do is not respond to the grooms advert

Guys, appreciate that marriage is a personal thing and people have their own preferences. Imposing ‘your’ preference and morals on the other is infringement of the other person’s rights. What 2 people do, till the time they are not infringing on anyone else’s rights, should not matter to you.

In my understanding the people who are imposing their own morals on others are no different than the moral police.

Kaun Bangega Narakpati – A comical play

CraftInImages, a production house in the domain of theater, movies and celebrity / model /portfolio management, is organizing a comical play on the eve of father’s day – Kaun Banega Narakpati. The play will start with a dance performance by Soul 2 Soul followed by a performance by Sapna Pathak, a vocal artist.

The play is about a comical journey of the King of Hell (Narakpati), who is the one which has been the reason for most deaths. From Cancer, the reigning king in hell, who is challenged by AIDS and in the end the position of AIDS is challenged by another contender…

Further details:

• Day and Date: Saturday, June 14, 2014
• Time: 8.30 pm
• Venue: Veer Savarkar Auditorium, Dadar (W ), Mumbai
• Tickets: contact Husein on husseinalia [at] gmail [dot] com or Mohan on mohan [at] craftinimages [dot] in
• Facebook link

Road Safety – Helmets & Seatbelts saves lives

Today while coming home I found a massive traffic jam on the road. On inquiring, I found out from one of the observer, that there was a road accident where a motorcycle was hit by a bus. The bike had 2 persons where one died on the spot and the police had taken the other to the hospital.

After that I started noticing the way we drive on the roads, some of my observations are:

• Not following traffic signals- We cross the junctiosn even on a red light maneuvering our way.
• Jaywalking is a normal thing for people; please understand that its very difficult to apply brakes in a split second if someone just emerges in front of your vehicle.
• Dangerous lane shifting- Not a single car or bike ever gave any indication before changing lanes. Further, the government has marked lanes on every road for people to drive in the lanes and not between the lanes.
• Overtaking from the left, please be advised that nobody looks to the left and expects anyone overtaking from there. This is a blind spot and a cause for accidents
• Not a single pillion rider was wearing a helmet on a two wheelesr. Helmets have been made compulsory only for ‘YOUR’ protection. It is for the safety of the wearer. Even during a low speed collusion a person can be badly injured if he is not wearing a helmet. To know more about how motorcycle helmets saves lives read this post.
• Seat belts- I hardly saw people wearing a seatbelt. During a crash any object not tied to the car becomes a projectile, including humans. A seatbelt saves you from becoming a projectile.
• Bikes try to overtake from all directions; even in fast moving traffic, they try to wriggle their way in front of cars / large vehicles from small gaps. This is very dangerous and in case the car/ large vehicle is unable to apply brakes, a small nick on a high speed, can dis-balance a 2 wheeler causing a serious accident.

The Jaipur Traffic police released a video few days back showing clippings of actual accidents, which were primarily caused by non-observance of the above simple rules.

A couple of minutes is not as valuable as your life, which is precious. Over the past 10 years (2001-2010), a total of 1.04 mn people have died in vehicle deaths in India. An alarming point is that  the proportion of 2 wheeler deaths has steadily increased from 12% in 2001 to 21% in 2010.

Let’s Stand Up for a Cause…

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Source: ADSInfo tool – NCRB

Adultery – A Matrimonial Offense

Adultery may be defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. Therefore, the definition of adultery brings out a few ingredients, which are:

• It is a voluntary act of the parties. A forceful act cannot be termed as adultery
• Adultery can be indulged into only by a married person. A sexual intercourse by an unmarried person cannot be termed as adultery
• The sexual intercourse should be with a person other than the adulterer’s spouse

Therefore, all the above 3 ingredients are important for an act to be termed as adultery.

Now a question arises that why are we discussing adultery; this is because this is a ground for divorce in the Indian Marriage Laws. The act of adultery is not a ground for divorce for the moral turpitude involved in it but for voluntary surrender to another person of the reproductive organs of the guilty person. Hence, adultery is actually an offense against the spouse in a marital relationship and not an offense of moral turpitude.

A question which comes up during discussions with married people, whose spouses have indulged in adultery, is a question of howto prove it during a divorce proceedings. As a divorce proceeding is civil in nature, the proof need not be as strict as in a criminal case and therefore proof beyond reasonable doubt is not required.

Adultery can very rarely, if ever, be proved by the direct evidence of witnesses who saw the parties in flagrante delicto and witnessed the act. In most cases, the evidence must be circumstantial in character and must depend upon the situation spoken to in regard to which the act is alleged, and the probabilities relating to that situation (Subbarama Reddiar vs Saraswathi Ammal). Therefore, a direct evidence is not required to prove adultery, infact direct evidence, if produced in the court, could be negative. The reason is that adultery is a secret act and it is highly improbable that there could be a witness to such a secret act (Pattayee Ammal vs Manickam Gounder). Only proof of preponderance of probabilities is required to prove adultery. In common parlance this means that the proposition is most likely to be true in a given situation. If the probability is more than 50% that the given proposition being true, the test of preponderance of probability is met and the proposition is considered to be true.

Hence, from the above discussion, we understand that

• Direct evidence is not required to prove adultery, infact direct evidence may be treated negatively by the courts
• The proof need not be strict in nature as in case of criminal offenses. Proof of adultery is not to be proved ‘beyond reasonable doubt’
• The test of preponderance of probability is applied to civil matters such as divorce proceedings

 

Howto prove adultery?

In the case of Samuel Bahadur Singh vs Smt. Roshni Singh the hon’able judge had held that ‘The Court usually infers adultery from the fact that the respondent wife shared a bed or bedroom for the night with a person of opposite sex other than the petitioner or from the fact that the respondent had been carrying on an association with a person of the opposite sex other than the petitioner and there is evidence of illicit affection or undue familiarity between them coupled with an opportunity for them to have committed adultery.’ Therefore we can understand from the above, to prove adultery, the petitioner has to prove that his/her spouse

• Voluntarily shared a private moment with a person of the opposite sex such as a bedroom, an apartment etc…
• Has an illicit affection or undue familiarity with the person of the opposite sex. This implies acts of the spouse which are generally forbidden by law, rules or customs of the society and which tend to generate suspicion in the mind of a person
• The spouse and the person of opposite sex should have an opportunity to commit adultery. For example, if the accused spouse and the other person are in a room alone for a few moments, the 3^rd condition is not satisfied as there is no opportunity for them to commit adultery.
• All the above 3 conditions viz. voluntarily sharing of a private moment, illicit affection/undue familiarity and opportunity to commit adultery should exist at the same time when the said act of adultery is alleged to be performed. This is required so that the conditions of preponderance of probability is met.

As mentioned above direct evidence of adultery is not available, circumstantial evidence is required to be produced in courts. It is to be noted that the circumstances should be such that it should lead to a necessary conclusion that adultery was committed. This can be proved by preponderance of probability method enumerated above.

Adultery can also be proved by

• evidence of non-access and birth of children
• contracting venereal disease
• confessions and admissions

Hence, if the wife delivers a baby or conceives a child, provided the husband does not have access to the wife during the time she was expected to conceive the foetus, is a proof of adultery by the wife.

Similarly, if either spouse contracts a venereal disease, it can be argued that such a disease is spread due to sexual intercourse, which the spouse may have had with another partner.

Further, any confession and admission by the adulterer is also considered as satisfactory proof of commission of adultery.

Interesting cases on adultery:

In the case of Sushma Kumari vs Ramesh Chand, the Delhi High Court had held that if (1) a young married woman is found at 6.00 p.m. in the company of a young man in a closed room bolted from inside, (2) they are not related to each other and are extremely fond of one another as is evident from the photos in question, (3) she was under the belief that she was not going to be detected as her husband worked late in a shop and would usually come at 8.30 p.m., lead to an irresistible inference that she was having illicit relations with that man particularly so when she does not render a cogent or plausible explanation for the presence of that man with her behind closed door. In any case, when no explanation is forthcoming or when the explanation, if any, is found to be totally unacceptable then on preponderance of probabilities it has to be held that she was having illicit sexual relations with that man. (Here the rule of preponderance of probabilities is applied which was discussed above).

In the case of Thimmappa Dasappa vs Thimmavva Kom Thimmappa, the Karnataka High Court held, if a husband proves beyond reasonable doubt that his wife has been seen absenting herself from his house for a long time and has been seen in the company of a total stranger to his family and that no reasonable explanation is given by her or that she has given a false explanation for her having been seen in the company of that stranger at different places or in a room will give rise to a reasonable inference that she has contacted illicit connection with that man and has been living in adultery.

Can adultery be condoned?

Yes, the courts have held that adultery can be condoned by the other spouse if he/she cohabits with the adulterer even after the knowledge of adultery. The idea behind this is that adultery is considered as a repulsive matrimonial offence and even after the knowledge of the other spouse committing adultery, if the non-adulterous spouse continues cohabitation, it is considered as a condonation of the act of adultery.

The Supreme Court of India in N. G. Dastane vs S. Dastane held that condonation means forgiveness of the matrimonial offense and restoration of spouses to the same position as he or she occupied before the matrimonial offense was committed. Hence, condonation implies both forgiveness and restoration, that is forgiveness by the non-offending spouse and restoration or mending of ways of the offending spouse. If the offending spouse does not mend his or her ways even after commitment of mending ways, it does not constitute condonation of matrimonial offense by the non-offending spouse.

Do feel free to comment on the article and let’s all Stand up for a Cause…

India – Select Rape Statistics

Today, I will just be providing some select rape statistics of certain states of India. I will let the readers analyze the data.

State	Year	Cases Reported	Frivolous Cases	%   of Frivolous Cases (as a % of reported cases)	Decadal Growth / (Reduction) in reported cases
West Bengal	2001	709	518	73.1%	226.0%
	2010	2311	595	25.7%
Assam	2001	817	389	47.6%	110.6%
	2010	1721	622	36.1%
Karnataka	2001	293	190	64.8%	100.0%
	2010	586	316	53.9%
Punjab	2001	298	204	68.5%	83.2%
	2010	546	386	70.7%
Haryana	2001	398	346	86.9%	80.9%
	2010	720	442	61.4%
Tamil Nadu	2001	423	204	48.2%	62.2%
	2010	686	363	52.9%
Rajasthan	2001	1049	1033	98.5%	49.8%
	2010	1571	1020	64.9%
Andhra Pradesh	2001	871	845	97.0%	56.4%
	2010	1362	988	72.5%
Gujarat	2001	286	168	58.7%	42.7%
	2010	408	160	39.2%
Delhi	2001	381	81	21.3%	33.1%
	2010	507	281	55.4%
Odisha	2001	790	449	56.8%	29.7%
	2010	1025	598	58.3%
Maharashtra	2001	1302	764	58.7%	22.8%
	2010	1599	934	58.4%
Bihar	2001	888	511	57.5%	-10.5%
	2010	795	746	93.8%
Uttar Pradesh	2001	1958	852	43.5%	-20.2%
	2010	1563	959	61.4%

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‘Frivolous Cases’ mean sum of a) Cases Declared False on Account of Mistake of Fact or of Law, b) Cases not Investigated or in which investigation was refused, c) Cases Withdrawn by the Govt., d) Cases withdrawn by the Govt. during investigation, e) Cases Compounded or Withdrawn and f) Cases Acquitted or Discharged during the year.

Data Source: NCRB Software for analysis Crime Info

Video Conferencing in Indian Courts?

This is an interesting question; is video conferencing allowed in Indian Courts? Can a witness testify by way of video conferencing and does such a testimony have similar weight as a physical testimony of the witness?

As per section 3 of the Indian Evidence Act, 1872, evidence is defined as –

“Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

 

Therefore, for providing oral evidences (ie. Testimony of a witness), the requirement of the act is that the court requires it to be made before it. Hence, these oral evidences can be made ‘before’ the court also by way of video conference or any other electronic means.

The High Court of Calcutta in the judgement Amitabh Bagchi vs Ena Bagchi provided a list of 14 safeguards to be employed for conducting video conferencing, which are:

1. Before action of the witness under Audio-Video Link starts the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side.
2. The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand.
3. As soon as identification part is complete, oath will be administered through the media as per the Oaths Act, 1969 of India.
4. The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed.
5. The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected.
6. Witness includes parties to the proceedings.
7. In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an acknowledgement in this regard will be filed before the Court.
8. Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically.
9. Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings.
10. Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after day’s deposition.
11. The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect.
12. In case of perjury Court will be able to take cognizance not only about the witness gave evidence but who induced to give such evidence.
13. The expenses and the arrangements are to be borne by the applicant who wants to this facility.
14. Court is empowered to put condition/s necessary for the purpose.

Hence, as seen above video conferencing is a permissible method for testimony of witnesses, including the parties of the case.