Thursday, January 17, 2008

Beyond marriage?

Is the Supreme court finally willing to look at the substance of a relationship, beyond the satisfaction of formal requirements? In a judgment delivered yesterday, the Court seems to have held that a long term live-in relationship couple will be treated as married for the purposes of legitimacy of their child. The news report seems to suggest that this position was arrived at only through a strong presumption of marriage in case of proven long cohabitation, rather than accepting that they are different categories that need to be treated similarly.

Given the politically volatile nature of family laws, the courts has generally been cautious in applying modern constitutional principles to these laws (particularly the infamous State of Bombay v. Narasu Appa Mali, 1952 Bombay High Court, where it was held that personal laws do not qualify as 'law' within Article 13 and therefore dont need to be tested for fundamental rights violations - a judgment still waiting to be overruled.) Of course, there have been a few exceptions, and this case seems to be one of them.

On the substantive issue of treating cohabitation with marriage, there is a tension between the need to protect the financially vulnerable party in the relationship and the need to respect the parties' choice to not formalise their relationship and accrue the incident rights and obligations (to the extent that such decisions are actually a result of 'choice'). The Law Commission of the UK came out with a report last year, recommending certain marriage like rights for long-term cohabitees, while responding to this debate.

Of course, the very legitimate-illegitimate child distinction (whether born in marriage, long-term relationship or after a one-night-stand) itself is susceptible to an Article 14/21 challenge for the simple reason that it punishes a child for no fault of hers in a matter she had no say whatsoever.

Update - On reading the actual judgment in Tulsa v. Durghatiya, I have a more sober reaction. No argument regarding the rights of cohabitees was made or considered. The Court only reiterated a well-established principle of a strong but rebuttable evidentiary presumption of marriage for long-cohabiting couples. So much for sensational media headlines!

Reply to Talha's comment - I don't think that common law marriage is recognised by Indian law (or UK law, for that matter). Perhaps other jurisdictions recognize it. The entire need for the UK Law Commission to recommend rights for cohabitees was premised on the fact that there is no concept of common-law marriage in English law. To quote from para 1.26 of its Report,
"The [Consultation Paper] examined the case for reform of the law as it applies to cohabitants on their separation. It started by making clear what the law does not do and drawing attention to the popular misconception about the legal status of cohabitants, centred on what is known as the “common law marriage myth”. This myth perpetuates the mistaken belief that the law of England and Wales recognises cohabitants as “common law spouses” once they have lived together for some period of time."
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