Live-ins: Legally valid, culturally well-endorsed

Pairs are made and marriages arranged in heaven; only weddings are organized down here. This divinity-laced understanding of the very social institution of marriage must have suffered massive setback at the hands of the divorce courts. The heaven-made bond could be so easily undone by things as ephemeral as ink and paper. It was bound to raise a few very relevant questions and a far greater number of eyebrows.

Marriages may be divine and the man-woman bond sacred, but circumstantial pressures and temperamental incompatibilities can still dissolve the divine content in a marriage and introduce earthly brittleness into it making it prone to breakdown. But that is just the weakness of particular marriages and does not undermine the sanctity of marriage as an institution. So, even if marriages were not unbreakable, they were still sacred, for the pious can be defiled but that does not make it any less pious.

Then live-in relationships arrived. And the social status of marriages with all its divine trappings came under serious challenge. If a girl and a boy could live together without social approval accorded through marriage, it meant a clear and unmistakable threat to the very institution of marriage. While divorce only meant that the heavenly bond was breakable, live-ins meant there was no social sanction required. The requirement of the ‘license’ was thus rejected. Of course, the society could not have approved of live-ins because it meant undermining the institution of marriage, which also happens to be one of the means to maintain and perpetuate class distinctions. Therefore, societies that have rigid class distinctions of any kind would resist live-ins harder, and would frequently cite principles of morality against such arrangement. But there is little morality involved, which is why moral arguments against live-ins fail to make a dent in the sphere of individual rights.

From the perspective of rights, every individual has the right to decide for himself or herself as to how he or she would spend his or her life. The right to makes one’s own decisions, so long as those decisions do not affect the similar rights of others, is inviolable. Since the decision to cohabit without marriage does not directly affect the rights of others adversely, there is no reason why such right should be restricted or curtailed or subjected to any rules except those that apply to any and every couple.

But then, the force of law that social norms, customs and conventions carry cannot be overlooked either because they not only operate as laws without being enacted but are also a recognized source of law. Therefore, if a law happens to come in headlong conflict with highly regarded set of social norms, it is likely to lose legitimacy in the eyes of the people, who might even start questioning the authority of their representatives to enact the laws that they do not collectively approve of. Morality of the law is presupposed, for there cannot be any such thing as ‘immoral law,’ as in that case not only the moral right to protest against such law automatically accrues to the people, but to protest against such law might also be regarded as one’s moral duty. Of course, such a backlash can occur only and only when the law in question displays scant regard for the very moral foundation that a particular society stands upon and the principles it holds dear and religiously abides by. In the garb of progressive thinking societies would not generally change their outlook towards morality, for it is closely associated with their sense of good and bad, right and wrong. Therefore, the concepts of pre-marital sex and live-ins cannot be thrust down the throats of, say, an Islamic society because such concepts are in clear conflict with Islamic way of life. But the question is whether or not it holds equally true for a multi-cultural, multi-religious and highly progressive nation like India.

Pre-martial sex and live-ins are not illegal in India because no law proscribes them. Does it mean that they fall in the grey area between legal and illegal? In other words, is it so that the Indian society and its political alter ego – the Indian state – do not approve of pre-marital sex and live-ins but still tolerate their existence? This is not an easy question to answer because there is no way of gauging what Indian people collectively think about such concepts. However, it is still a good idea to refer to India’s cultural background and the enacted laws to find if Indians find live-ins and premarital sex repulsive and immoral.

Recently, the Supreme Court of India reiterated that neither live-ins, nor premarital sex was illegal. The Bench comprising Chief Justice K.G. Balakrishnan, Justice Deepak Varma and Justice B.S. Chauhan reportedly remarked, “When two adult people want to live together what is the offence? Does it amount to an offence? Living together is not an offence. It cannot be an offence. There is no law which prohibits live-in relationship or premarital sex.”

Not only did the Supreme Court refuse to term live-ins illegal, but also clearly and unambiguously endorsed living together as part of ‘right to life’. The Bench said, “What is the offence and under which section? Living together is a right to life.”

The Bench also sought to draw a mythological parallel by saying, “Even Lord Krishna and Radha lived together according to mythology.” Now, this is not very convincing because Lord Krishna, as per mythological texts, bid adieu to Radha when he left for Mathura to slay Kansa and did not meet her in person ever again. At the time of leaving for Mathura Lord Krishna was around 14 years old and lived with his foster parents, Yashoda and Nanda, whereas Radha lived in a separate village called ‘Barsana’. Therefore, there is no question of their living together. Wherever the mention of their togetherness occurs, it is largely in the spiritual sense and alludes to their mutual love, but does not imply physical cohabitation. In this regard, apart from ancient mythological texts, K.M. Munshi’s authoritative and highly regarded work Krishnavtaar may also be referred to. It is pertinent to add here that K.M. Munshi was not only a distinguished writer well-known for his contribution to literature, but was also a noted legal expert and a member of the Constituent Assembly that drafter the Constitution of India.

However, it might be a matter of debate whether Lord Krishna and Radha lived together or not, but live-in relationships find ample support in Hindu mythology. To mention one, Bhima lived-in with Hidimba and had a son with her by the name Ghatotkach, who later fought for the Pandavas and was always considered a legitimate son of Bhima.

Furthermore, there are eight kinds of weddings as per Manusmriti that give rise to a valid marriage. One of them is Gandharva Vivah (Wedding by rites of the Gandharva), which does not involve any ceremony other than voluntary physical union of the maiden with her lover arising from desire and culminating in sexual intercourse. The lovers so united can live together as man and wife without any further endorsement from man or God. The fact of marriage is presupposed in the act of physical union.

The Supreme Court talking of the similar kind of presumption of legitimacy when it ruled that in case of long span of cohabitation, marriage has to be presumed and the party challenging the marriage has to prove its case and not the other way round. So, if a couple has been living together for a sufficiently long period of time, those who wish to challenge the relationship on any ground – assuming that such a ground is available – would be required to prove that the marriage did not take place. The presumption of law would stand for the marriage and the couple would not be asked to prove the fact of marriage. Naturally, it is an arduous task to prove that marriage did not take place, and the presumption of law in favour of marriage is clearly to protect live-in relationships against needless moralistic assaults by busybodies.

The Indian legislature, too, has done its bit for live-in relationships. The Protection of Women from Domestic Violence Act, 2005, defines “aggrieved person” 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.”

The DV Act goes on to define “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.”

Although it cannot be said that the Act accords legal validity to live-in relationships, but it can still be conclusively inferred that the law does not see such relationships as illegal or immoral.

Thus, there is nothing in our enacted laws, or judicial approach, or cultural background that stands against live-in relationships. Much of the hue and cry against live-ins is the byproduct of a misplaced sense of culture and decency. After all, marriages are nothing but socially endorsed live-in arrangements.

Originally written for and published in LAWYERS UPDATE [May 2010 Issue; Vol. XVI, Part 5]

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Pornography Law: Savita Bhabhis must go

When a certain website with pornographic content was ordered to shut shop, the debate whether the government had the right to slap such an order under the existing law came raging ahead. But then, it is not just a question of whether or not the existing law allows the government to take such a step, but whether or not the state has the right to act as the moral guardian of the people at all.

Is pornography detrimental to the public good to the extent of requiring state intervention and regulation? If pornography is wrong, what kind of wrong it is? If sexuality is natural, why should the law stand against natural human inclinations and ban content depicting sexual act? Why do natural instincts come in conflict with the moral values of a society? And why should the principles of morality be preferred over natural human instincts and desires?

These questions have to be answered in order to supply the required moral ground to the laws that seek to regulate pornography in any form. The distinction between erotica and sleaze, lust and desire, lovemaking and carnal sex must also be understood the same way as the difference between a connoisseur of cuisines and a glutton is understood. The issues involved, both legal and moral, are a little too complex because they are fundamentally about the longstanding battle between reason and instincts that continues to be at the very heart of all moral debates. If only one of the two had existed, we would possibly never face a moral dilemma, for it is doubtful if we would even have any moral values to start with.

The sense of decency and the idea of justice are the natural byproducts of man’s social and cultural evolution. Restraints on man’s natural instincts are not simply ‘symbolic’ of his cultural evolution, but are completely functional, as they keep man from reverting into a coarse bunch of disorderly instincts. This explains why all religions preach selflessness and self-restraint.

Natural instincts come in conflict with social and ethical norms of the civilized world because they are fiercely individualistic with self-preservation and perpetuation of one’s own kind as its central objectives. Since instincts have no content of rationality, they do not recognize the concept of human development through mutual cooperation, or, for that matter, of a culturally evolved existence. Therefore, the drive to preserve oneself and to perpetuate one’s kind through procreation comes naturally; and, being primordial, it is extremely powerful. Sexual conduct and misconduct is, therefore, instinctual in nature. Whether a certain sexually inclined act falls within the description of ‘misconduct’ or not has to be seen against the social and cultural backdrop of the society and people concerned.

The legal ambit of acceptable sexual conduct is quite understandably smaller in scope and expanse than the social and cultural norms pertaining to decency, which leaves sufficient grey area for such conduct that is not strictly illegal but is not completely acceptable either. Pornography falls in this area, which is why the laws governing pornographic content both online and offline vary a great deal from one part of the world to other and the extent of restriction ranges from total ban to almost no-ban situations.

The Internet, with its ever-increasing penetration and convenience of use coupled with the extreme difficulties involved in monitoring website content, has become the most prominent carrier and disseminator of pornographic content.

Pornography is generally understood as explicit portrayal of sexual acts for the purpose of sexual stimulation. The natural purpose of sexual act is procreation and the pleasure derived from the act has possibly been provided by nature as a motivation for human beings to act towards preservation and propagation of their own kind. The desire to reproduce is not exclusive to human beings, but to use sex as entertainment certainly is.

The kind of pornography that generally falls foul with the law across the world is such form of perverse sexual entertainment that has no purpose other than pandering to the prurient human tendencies.

In India, Section 292 of the Indian Penal Code, 1840, prohibits the printing, sale and distribution of ‘obscene books’ and material and defines those thus: “…a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.]

However, the Exception to the provision expressly excludes such content that “is in the interest of science, literature, art of learning or other objects of general concern”. The Exception also expressly protects depictions on ancient monuments and temples allowing religion and culture to have its take on sex and the associated issues.

The Exception clearly demonstrates that the law leaves sufficient room for artistic, scientific and religious endeavours that might be erotic in nature. What it seeks to proscribe is depiction of sexually explicit material for the sole purpose of pleasure. In other words, the law is against sex as entertainment.

The spirit of the pornography law remains intact in the Information Technology Act, 2000, which applies to website content. The provisions under the IT Act use the same terminology as used under the IPC and retain the same exceptions.

It is, therefore, evident that in India so long as sexual depictions are directed towards any goal other than entertainment, it is permissible. But if the purpose is sexual enjoyment or stimulation alone, the content would face the axe unless it could be shown to have some artistic value.

In the United States, the legal position of Internet pornography is not uniform across the various states with many states having banned the making and distribution of adult films putting such activity in the category of prostitution. For the purpose of deciding whether the material under question is obscene and deserves to be banned, Miller’s Test laid down by the US Supreme Court in the 1973 case Miller v. California is employed. It is this decision of the Supreme Court that allowed the States to make their own laws to regulate pornography. According to the three pronged Miller’s Test, what needs to be considered is:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,

2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,

3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The use of the expression ‘contemporary community standards’ amply demonstrates that the standards of decency may vary from one part of the country to another even in a relatively homogenous country like the US. However, at the same time, the spirit of the pornography law in India as reflected in the relevant provisions of the IPC and that in the US, as evident from Miller’s Test and other laws, remains much the same despite the vast social, economic and cultural differences between the two nations.

Therefore, it is easy to conclude that although to judge what is obscene may, to some extent, require a social and cultural context, but pornography is tolerated at best with law outlining the extent of such toleration. Pornography is, thus, a grudging concession.

And Savita Bhabhi?

Savita Bhabhi is an Indian cartoon pornographic website featuring the sexual escapades of an Indian housewife by the name Savita in explicit graphic detail. The lady has no moral hang-ups regarding her illicit liaisons and is also equally comfortable with salesmen, young boys living in the neighbourhood and her own cousin, not to speak of her husband’s friends. There is no real story, no conflict situation and no character development worth the name. In short, the raunchy stories have no literary inclinations. Mrs. Savita Patel’s sexual exploits are not only adulterous but also border on incest, and she remains remorseless about them and does it all with unreal abandon. Naturally, her human self and the social setting she operates in has been conveniently taken out of the equation to allow as much room as possible to raw lust turning Savita into a sex doll instead of a real character.

Adultery is a criminal offence in India and the very idea of incest is extremely offensive to the Indian mindset, to say the least. Whether the relevant Indian law is employed or the Miller Test, Savita Bhabhi would find it hard to wriggle through the legal net.

Furthermore, the name ‘Savita Bhabhi’ itself is offensive because ‘bhabhi’ means elder brother’s wife (sister-in-law) in Hindi and Hindustani. The way it is used in the Savita Bhabhi stories, it automatically takes on a sexual hue, which certainly would not be acceptable to an ‘average’ Indian ‘applying contemporary community standards’. The content certainly has the tendency to ‘deprave and corrupt’, for glorification of adultery and incest can only be seen as inspiring and endorsing extreme sexual depravity.

The argument of ‘private conduct’ and of minimal state interference in citizens’ private lives is not an iron defence in this regard because although accessing pornographic material in private remains within one’s private domain, but its influence on the mind of the person concerned remains and carries into his social life. Besides, there is a clear danger of underage boys accessing such material, and the ill-effect of such depictions on their very impressionable minds can be devastating not only for them, but also for the society. Therefore, when Savita Bhabhi was ordered to pack her bags, the government did the right thing. Savita Bhabhis must go.

Originally written for and published in LAWYERS UPDATE [April 2010 Issue; Vol. XVI, Part 4]