SC nudges govt to protect the 'other woman' in a man's life

The Supreme Court’s recent verdict – suggesting that the government to take measures for protection of the ‘other woman’ in a man’s life and children born out of such a relationship -- brings out in the open extant lacunae in the legal framework. The Protection of Women from Domestic Violence Act 2005 provides salutary help among others to a woman aggrieved by the neglect of the man with whom she had a shared household at any point of time. However, the woman entering into a relationship with the man despite him being married found herself cheated if the man decided to move out.

For the first time, the concept of live-in relationship got recognised by Parliament through the Domestic Violence (DV) Act. It was not without conditions as the statute gave protection only to a “relationship in the nature of marriage”. 

A legally wedded Hindu wife could be provided grant of maintenance under the Hindu Adoptions and Maintenance Act, 1956.  The Hindu Marriage Act, 1955 dealt with solemnisation of marriage and also with the provisions for divorce. For a destitute wife and children, there is protection in the form of Section 125 of the Criminal Procedure Code. Other measures like Section 498A of the Indian Penal Code could be invoked if the husband or relatives subjected the woman to physical or mental cruelty. Section 304-B IPC deals with cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members.

But the woman who entered into a relationship with a married man was left unprotected. The Domestic Violence Act broadly recognised the live-in relationship but in order to full justice to those aggrieved after a break-up or during disputes, it had to be an exclusive one. Notably, the Malimath committee’s report stated that a man who married a second wife, during the subsistence of the first wife, should not escape his liability to maintain his second wife, even under Section 125 CrPC.

Coming to the DV Act’s Section 2(a), it defines the expression “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

 According to Section 2(f), “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Section 2(q) says, “Respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief. An aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. 

Voluntary arrangement

Dealing with the case of a Bangalore woman, the apex court pointed out the definition clause in the law mentioned only five categories of relationships which exhausted itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive, it said. Unlike a legal marriage, a live-in relationship is purely a voluntary arrangement.  It can end if one determines that he/she does not wish to remain in live-in relationship.

Let us see the relationship defined by the Act. A domestic relationship between an unmarried adult woman and an unmarried adult male will fall under Section 3 of the DV Act and the aggrieved person can always seek different reliefs including right to residence, protection order. If an unmarried woman unknowingly enters into a relationship with a married adult male she could get protection as defined under Section 2(f) of the DV Act since such a relationship may be called a relationship in the “nature of marriage”.

However, domestic relationship between an unmarried woman and a married adult male, between a married adult woman and an unmarried adult male and between same sex partners (lesbians, gay, bisexuals and transgenders) have not been brought within the purview of the Act. Thus, the other woman who entered into the life of a married man needed protection if the man decided to go out of the relationship.

Realising the precarious situations in which such a woman finds herself, the apex court asked Parliament to “ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage.” It wanted the legislature to realize a societal reality and help the woman in distress.

The court was also of the view if a married man is directed to pay to the other woman, who is aware of his marital status, it would be at the cost of his legally wedded wife and children, who may be deprived of their due. It felt otherwise, holding the other woman responsible for encouraging the man into adulterous relationship.