Opinion Her own mistress

Shekhar’s victory poses a challenge to the “presumption” of legitimacy under Section 112 of the Indian Evidence Act,1872. This section aimed to prevent the fathers from routinely denying paternity by levelling baseless allegations of adultery against their wives when they filed proceedings for maintenance. According to this presumption,a child born during the course of a marriage is presumed to be born of the marital union between his mother and her husband. It would need clinching evidence of non-access to absolve the legal father of his liability of maintaining his wife and child. Trial courts routinely deny women and their children rights against the biological father — the child was born during the course of the marriage between the woman and her former husband — and refuse to pass orders for a paternity test. The ruling in the N.D. Tiwari case has placed their claims on more solid ground. It will help them litigate their claims,which were denied on the grounds of morality.

The core question in the entire controversy is the nature of Hindu marriages,rendered monogamous in 1955 by the Hindu Marriage Act. Prior to it,women in long-term relationships were accepted as wives and could claim their rights both under the Smriti law (applicable to higher castes) and customary laws governing the lower castes. By a stroke of the pen,women in non-monogamous relationships were turned into “mistresses”,“concubines” and “keeps”,devoid of legal rights. This was in contrast to the Muslim law,which grants rights to wives in polygamous relationships. So precarious is the right of the Hindu woman that it is not unusual for two women to come to blows during litigation to claim the “sacred” space of a Hindu wife.

In a landmark ruling in 2004,in the case of Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga,the Supreme Court upheld the maintenance claims of a woman whose husband had challenged the validity of their marriage and the legitimacy of her daughter on the grounds that the woman’s previous marriage had not been dissolved. The Supreme Court upheld the woman’s rights and chastised the husband for denying paternity. It accepted that Hindu marriages,like Muslim marriages,had been bigamous till 1955. There was a tacit acceptance that the ground reality had not changed much since then. Although such marriages are illegal according to the statutory provisions of the codified Hindu law,the Supreme Court ruled that they are not “immoral”,so a financially dependent woman could not be denied maintenance on this ground.

After the recent Rohit Shekhar case,things seem to have improved slightly for women who have a child out of wedlock. They will now be able to claim maintenance by proving the paternity of their child. But consider women like Anita Advani. She claimed a live-in relationship with the superstar,Rajesh Khanna,whose legal marriage to Dimple Kapadia had remained intact despite long years of separation. Legal paper could be invoked to deny the woman,who claimed to have lived in with the actor for 10 years,the right to participate in his funeral rites.

The Domestic Violence Act,2005,had sought to enhance the dignity and rights of such women by using a new term in our statutes: “relationships in the nature of marriage”. Everyone believed this would transform the concubines of yesteryear into modern “live-in partners”. But in 2010,Justice Markandey Katju stuck a fatal blow to these hopes through his ruling in D. Velusamy vs D. Patchaiammal,where the woman was denied maintenance. Women in marriage-like relationships with married men were termed “mistresses” and “keeps”,devoid of rights. It undid years of effort by several judges who had provided a positve interpretation of the provision of maintenance under Section 125 of the Criminal Procedure Code.

The notion of monogamy,which some judges have been upholding at the cost of vulnerable women,has never been part of the Hindu social ethos. It is not just the Rajesh Khanna-Anita Advani case that reflects this. There are many instances concerning lesser mortals — ordinary women who believed men in positions of power only to be discarded and humiliated. Gradually,their stories are coming out of the shadows — cases involving politicians,police officers,government officials and rich industrialists. Our courts will be forced to re-examine the decaying institution called the “monogamous” Hindu marriage while safeguarding the fundamental rights of women and their children,especially the constitutional guarantee to life. This includes the right to live with dignity,enshrined in Article 21 of the Constitution.

The writer is a lawyer and director of Majlis in Mumbai
express@expressindia.com