498-A and Live-In Relationships: Why is marriage still the reference standard for protection from Intimate Partner Violence?

RECENT TRENDS in the judicial views on marriage and domestic violence, and the evolution of marriages in India reveal an interesting paradox between the law and gender justice. Marriage in India has been an inherently feudal institution. It has been peddled to young women almost like a competitive exam for self-respect – one must pass the performative "wife material" trope to deserve the society's regard and consequently access to care, financial security, social life, support to raise children  etc.; or be "othered" into relational precarity as if disposable.  However, at a time when changing socio-economic conditions renders many features of marriage  almost a privilege for most people – given the rising costs of maintaining a stable, secure, long-term partnership amidst collapsing institutions and dangerous levels of precarity – what rights emerge and are they equivalent to rights entrenched within marriages? 

This article attempts to discover answers or perhaps identify better questions in light of the recent judgement of the Supreme Court in Lokesh B.H. v. State of Karnataka, delivered on August 3 — which upholds the application of criminal liability for cruelty to live-in relationships that qualify as  “relationships in the nature of marriage with the intent to marry being established as an intrinsic part thereof”. Interestingly, the Court, as a part of its ratio in Lokesh B.H.'s case asks a pertinent question — whether the protection of law depends on choice? It then goes into an analysis of the intelligible differentia between ‘single woman’, ‘woman in relationship’, ‘woman in live-in relationship with no intent to get married’, ‘divorced’, ‘widowed’, ‘woman in relationship in the nature of marriage’, ‘married woman’, etc. for the purpose of applying Section 498-A of the Indian Penal Code (‘IPC’), before limiting its protection to women in relationships in the nature of marriage. 

Why is marriage still a referential standard to recognise Intimate Partner Violence?

While this proposition is a step towards validating relationships forged under precarious and vulnerable conditions, it is important to ask ourselves why marriage is still a referential standard for critical rights against intimate partner violence (‘IPV’), whose life experiences does the law presume when it limits its protective reach through such legal fictions and what does that mean for gender justice? 

The rights against cruelty and ill-treatment within an institution as inherently patriarchal and feudal as marriage, are hard won and it becomes clear when one looks at the socio-historical structures in which the violence is entrenched. Matrimonial violence in India is deeply determined by the intersecting forces of caste, class and gender disguised as “tradition” and/or “sacred”.