The Perils of being Unlawfully Unwedded…cultural hegemony through the state apparatus?

Motivated by the recent statement by the Delhi High Court pronouncing that “one of the major reasons contributing to an increase in rape cases is failure of live-in relationship”, this story by Maggie Paul It aims to focus on the increasing meddling of the state with the personal decisions of individuals through its traditional apparatuses.

(In view of the muddled criticism by the hallowed judiciary on “live-in” relationships, it seems pertinent to ask this question more forcefully)

“Could you please share with me the range of your ages, so that I can put the training content into a framework?”

Silence ensues. Every eye looks around askance.

“We are not sure about our age, but around here we are all didis and only she (pointing their fingers at one) is not”, quips a visibly varied group.

Total shock. “Why is that? She looks much younger to some and older to others? Is it that she has maintained herself so well, that she remains a mystery?”

“No, she is the only one not married”, answers the girl who looks youngest in the group, who proudly dons her didi nameplate which entitles her to patronise and expect the non-didi in the group (which by extension means the spinster) to take care of all the menial jobs such as bringing in water and mopping up after the group disperses.

This felt experience in a remote village of Jharkhand with women heads of a poultry cooperative finds its echo in the noisy, hubble-bubble of ‘mainland’ metropolitan cities of Mumbai or Delhi – although maybe not so vocally – wherein two consenting adults (past the ages entitling them to vote, drive and drink) having limited financial means and also producing all possible valid identity cards will have to risk their safety and sanity to roam around the streets or struggle for space on railway platforms even past midnight, since no hotel room would be generous enough to provide them a room unless they have the same last name or produce the magic wand from their pockets – a marriage certificate. If staying together for a night can be such a Herculean effort, one can only imagine the depth of peril in voluntarily wishing an extended stay.

Although the contexts are worlds apart and the issues might seem hugely varied on the surface – the underlying current remains the same – the privileging of the heterosexual marital relation to any other form or mode of relation that two adult individuals may willfully decide to enter. Antonio Gramsci’s concept of ‘cultural hegemony’ states that the institutions and beliefs of the dominant culture are so powerful and get hold of people when they are so young, that alternative ways of envisioning reality are very hard to imagine. Towards this respect, it would be pertinent to quote Gramsci himself from his Prison Notebooks wherein he notes that “the two levels (– of the ‘civil society’ and the ‘political society’ i.e. the state –) correspond on the one hand to the functions of ‘hegemony’ which the dominant group exercises throughout society and on the other hand to that of ‘direct domination’ or command exercised through the state and juridical government.”

Combining this with a more recent Marxist theorist Nicos Poulantzas’ understanding of state (in his last book before an untimely death, State, Power and Socialism) as encompassing various sites of power – such as the ideological and cultural apparatuses (as opposed to the post-modernists’ understanding of these sites of power as lying outside of the state) and highlighting the tendency of the capitalist state, thus broadly conceived, to intrude more and more in every sphere of social reality – dissolving the traditionally ‘private’ sphere, the analysis becomes intricate and interesting.

Although the aspect of marriage could be dissected from varying standpoints and ideological frameworks, this article aims to focus on the increasing meddling of the state with the personal decisions of individuals through its traditional apparatuses (with a special attention on its more vocal branch – the judiciary), giving birth to a hegemonic majority view (and the resultant condescending behavior) towards people who choose to spend their mutual lives outside of the traditionally handed-down and sanctioned mode of heterosexual marital existence. The cultural underpinnings in themselves are grave and would require a separate exposition.

The frenzy around marriage

The primacy of marriage in sanctioning the political existence of an individual (especially a woman) lingers even from the pre-colonial milieu (rather unsurprisingly since, as many Marxist feminist accounts have explored, the primacy given to heterosexual marriage is a universal phenomena in all modern societies based on private property). The colonial Joint Parliamentary Committee through the provincial legislatures in the early 1920s had showered limited franchise on women provided they possessed the “qualifications of wifehood, property and education.”

Article 21 of the Indian Constitution guarantees “right to life and personal liberty” giving the freedom to live the way one wants to live. Even the Allahabad Court in 2002, in a one-off act, had announced boldly that “anyone, man or woman, could live together even without getting married if they wished.” Also a three judge bench of the Supreme Court in south Indian actor Khushboo’s case had previously in 2010 declared that “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”. But the emotions around these cases and judgements at the time showed the actual felt pulse of the country. There was a palpable feeling of being betrayed by the court as also the sad pronouncement of the sacred institution of marriage undergoing grave (and unwanted) transformations.  Websites after websites brought this out – especially the ones propounding legal debates involving practicing lawyers.

Educated members of the lawyer’s club go so far as to say that only one kind of relationship exists between an unrelated male and female in India. No prizes for guessing what that relationship could be. This seemingly unnatural tendency of living together before entering into the socially sanctioned sacrosanct institution of marriage is touted as an urban, specifically metropolitan phenomenon. An article even claims that youngsters working with the BPO sector are more prone to engage in such behavior in order to “neutralize their boredom”.  A move away from marriage is at most times equated with disrespect of social bonds and “lack of tolerance” in relationships.

The overall theme running in all these legal groups regarding marriage vs. live-in is primarily based on

a. heterosexual marriage being a sacrosanct institution embedded into the very fabric of Indian society.

b. marriage being the only criteria for accruing legal benefits.

This when a study by UN population fund states that around 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. There is a famous quote by Sir Mathew Hale, Chief Justice of England from 1736 who shamelessly pleaded that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” With mindless glorification of “tolerance” within marriage (that is also celebrated as the reason for low divorce rates in India), it is not surprising that marriage in India also gives the right to rape and force oneself upon one’s partner.

Negation of relations outside of marriage

A “concerned” statement by the Delhi high court on 20 June 2014 (which provided the motivation for this article) cautions people regarding the side-effects of live-in relationships. The bench goes on to proclaim “one of the major reasons contributing to an increase in rape cases is failure of live-in relationship”. Although flawed on many fronts – such as the source of this particular co-relational observation (wishfully something beyond the personal instincts of the government officials which seems to hold the weight of a factual study in the country) and the non-acknowledgement of other ‘possible’ influences such as mainstream Bollywood movies that reduce women to being mere accessories or even the consecrated practice of arranged marriages – one would like to focus for the moment on the oft-repeated practice of the state – especially the judicial machinery – to forge an attack on relations out–side of conventional marital bonds and upholding marriage as the elixir to all problems in the country.

Even in the seeming support of “live-in” relationships, when the courts in October 2010 interpreted the recommendations of the Malimath Committee (which had nothing to do with “live – in” relation but pertained to the necessity of extension of the term “wife” to the  second wife of a man in order to secure marital rights and responsibilities of the husband) to extend the definition of a “wife”, there was no move away from marriage remaining the benchmark of relational affinities and absolutely no validation of non-marital ties. Justices G S Singhvi and A K Ganguly had pronounced that “evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties”.

Thus the discussions centred on legitimizing the staying together of an adult male and female by according the status of wife to the female. It is understandable to invoke the presumption of marriage in cases where one of the spouses denies marriage and tries to wash his/her hands of the partner even after long period of cohabitation, such as was done in Mohd Amin and Others vs Vakil Ahmad and Others. But even as the decision of the Supreme Court (2010) to broaden the definition of “wife” to include cases of a man and a woman having lived together for a “reasonably long period” of time (therefore not requiring a strict proof of marriage as a precondition)  does help the case of the aggrieved partner (which is of course by default assumed to be the woman) in fraudulent marriages; its persistent focus on conferring the coveted status of “wife” and refusal to acknowledge or consider non-marital ties or ties outside of marriage (which do not demand or appreciate conferring of any titles) definitely makes cohabitation of an unrelated mutually consenting adult male and female, even for seemingly short periods of time, next to impossible or at least next to the experience of living in hell.

The automatic linkages of sexual intimacy to marriage to the extent of proclaiming any couple who indulge in sexual gratification as ‘husband and wife’ as ‘a result of their choice of freedom’ are the result of a deep seated and shallow understanding of ‘morality’. The choice of words in these cases seems to particularly sound like a punishment of sorts. While it may be a step forward with regards to the women who are fooled into living-in by already married men in disguise/promise of marriage (although the ‘empowering’ or even protective intent of such legal protection for women by showering the much sought after title of ‘wife’ for economic maintenance could be questioned), it is definitely a big step backwards with regards to two financially independent adults who wish to live together – wilfully – outside of marriage due to the stereotypes, role expectations and inequalities it entails as a concept.

Even while discussing ‘palimony’ (which in its inherent meaning itself differs from alimony and is associated with non marital ties), the apex court sets certain criteria for qualifying including that “the couple must hold themselves out to society as being akin to spouses”. Further for all apparent legal ‘benefits’ a relationship has to be “in the nature of marriage” as accorded by the parliament in the Domestic Violence Act (2005).

While the internet is ripe with demands of a law to recognize and assist live-in relationships, the main contention of most of these demands is the fact that women should have the right to seek maintenance post-desertion. Even when a law is sought it is sought more to define the nature and duties of the relationship so as “confine the ambit of such relationships”. Most of these viewpoints are most explicitly elaborated on law journals and lawyer’s groups, so one can only hypothesize what the difference between legality and morality really is in this country or whether there is one in the first place. It seems too much to ask for if two individuals simply wish to live together – the consideration is first and foremost and primarily the maintenance money for the woman – seeming again as if the primary purpose of marriage is to assure the right of maintenance money for the wife. The prerogative of choice is brushed aside and indeed derided, since in itself the act of living-in is implied to be outside the ‘normal’ frame of cultural existence and the demanded law is portrayed as a concession to incorrigible individuals by the benevolent state.

While issues of legal recognition to a live-in relationship might be very complex – with the partners demanding both a sense of freedom and a sense of entitlement – in terms of property, security and maintenance – in some cases – the continual insistence of the judiciary to measure up decision of individuals to live together with the institution of marriage and to accept it, when it does, only within the paradigm of “lawful” marriage – is an assault on those people who wish to live together outside of the manmade institution of marriage due to personal and political/ideological reasons, who refuse to bow down to the tyranny of tradition.

Post-script

The executive branch of the state has been even more ruthless due to electoral considerations and so forth – with the union law minister H.R.Bharadwaj in 2008 proclaiming during a parliamentary debate that “laws are made keeping in view societal trends. Less than one percent of the people are in such relationships. If a law is enacted, it will only be misused.” Not only does this statement give credence to the worst fears regarding majoritarian democracy being overbearing on minority rights, it also dismisses the rights of the 1% (which nearly equals the percentage presence of some major religious groups in India) as completely irrelevant.

Now with the new government at helm influenced by ideological gurus in the RSS who stubbornly announced that “there would be no compromise on live-in or gay rights” (as if they have a right to pronounce rights) citing that before extending legality to “such” things, the long-time deleterious effect it will have on our social life (that is run on its traditions, conventions, culture and life-values), has to be considered, the case of mutually willing adults to live together could face further jeopardy – if not presented with active resistance. This despite the Hindu dharmashastras themselves acknowledging over eight forms of marriage and many learned interpreters  claiming that the sastras have taken into account the differences in temperament and attitude among various sections of people; and also that all our present trouble emanates from the failure on the part of men, who advocate the same system for all.

Why is it then that a particular institution of marriage should become the litmus test for our character, our rights and our personal choices in the one big judgmental eye of the bourgeois ‘morals’ and the capitalist state?