The Supreme Court’s judgment in Velusamy v Patchaiammal yesterday drew sharp criticism from Additional Solicitor General Indira Jaising, and rightly so.
The case was about the the rights of an unmarried partner under the Domestic Violence Act 2005. The remarkable para 33 of the judgment is worth reproducing in full:
In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage’ in Wikipedia on Google) In our opinion a `relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’.
Thus, the judgment clarifies the scope of the Act in its application to unmarried cohabitees. Although the conditions seem mostly sensible (except perhaps condition (c) which may exclude same-sex couples and unmarried partners of married persons), what is remarkable is that the judgment cites the anonymously-and-freely-editable Wikipedia as its source for laying down the conditions! Wouldn’t it have been better for the court to draw upon other jurisdictions dealing with the same issues instead (see the Report of the UK Law Commission on Cohabitation, for example)?
The substance of the case aside, what angered Ms Jaising was the Court’s use of the word ‘keep’ for the cohabiting female partner. Apparently, Justice Thakur responded by asking her whether the expression ‘concubine’ would have been more appropriate than the word ‘keep’. With respect, Your Lordships, neither word is acceptable. ‘Keep’ denigrates a woman to the level of a man’s property, while ‘concubine’ has demeaning connotations for a woman who is in a live-in relationship. So, what is the alternative? Many cultures have started using the word ‘partner’ for all long-term romantic relationships: unlike husband, wife, keep, concubine, etc it is a nice neutral term which does not disclose your sex, sexual orientation or marital status (and many cultures and jurisdictions are moving towards considering these markers as irrelevant to the respect and protection that a relationship deserves). Unlike ‘boyfriend’ or ‘girlfriend’, it connotes a certain seriousness and longtermliness that some couples may want to attach to their relationship. ‘Cohabitee’ could be another alternative, although it does not distinguish roommates from partners.
Whatever alternative we may settle on, I think it is important that our public institutions and functionaries stand up for much-maligned political correctness. Political correctness goes mad only when we start censoring comedians, cartoonists, writers and artists for taking un-PC liberties: unlike the state, their role is to offend, to make us uncomfortable.
Update: A reader who wants to remain anonymous has helpfully pointed out that the relationship at issue in the case was not what I have described as a ‘partner’, and that ‘girlfriend’ would perhaps be a more apt (and respectful) description. I am grateful for this correction.