Category Archives: Criminal Law

The Validity of Advance Sexual Consent

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The validity of “advance consent” is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the “advance consent” which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation – after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the “standard” issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of “non-consensual consent” where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as “abuse contracts” where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults – which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be “real” and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

Links via Feminist Legal Forum:

Medea and Criminal Liability

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PD image from WikiCommons

Medea by Sandys from WikiCommons

Euripides’ Medea has defined the modern perception of her. The play portrays the “terrible decision that Medea comes to as a result of her painful suffering.”

Her “painful suffering” was the suffering which her husband Jason inflicted on her by being unfaithful to her and marrying Glauce, a princess to further his political ambitions. He justified himself by saying that he could not pass up the opportunity to wed a princess, and Medea was, after all, a barbarian woman, never mind that she was a barbarian woman who’d given up family, home, and homeland for him. He ultimately, apparently, planned to “unite” the two families — his family with Medea, and with Glauce — and turn Medea into his mistress.

Medea’s “terrible decision” was the plan she decided to execute to revenge herself on Jason — she killed Glauce (and, Glauce’s father, Creon) using a poisoned dress, and killed the two children she had had with Jason in order to spite Jason and cause him as much pain as possible, or so one interpretation runs. Whether or not she should have been held accountable is debatable though.

Jason had supposedly remarried so that he could have children with Glauce. And when Glauce and his father-in-law were murdered by Medea, he apparently rushed to find the children he had had with Medea so that they would not be subjected to revenge because of their mother’s act. It could well be argued that one of Medea’s aims in killing her children was to spare them death at the hands of her enemies.

Then again, by killing the children, she effectively killed a part of Jason. And perhaps that was the ultimate revenge: Jason wanted children, and she not only deprived him of the possibility of having children with Glauce but also killed the children he had already had with her. To kill the children for a reason that was anything but altruistic would involve viewing the children not so much as individuals in themselves but as extensions of their father, which perhaps could be understood given that contemporary Greek society was intensely patriarchal, and viewed women mainly as breeders and chattel.

Contemporary Athenian law also allowed a man to marry and have children by a citizen woman while keeping a foreign woman who was not a citizen, in this case, Medea, as a concubine. And as far as divorce was concerned, all a man had to do was formally repudiate his wife, and send her back to her father or other male guardian with her dowry. There were two reasons who this did not apply to Jason and Medea though: firstly, Medea had contracted her own marriage, and as such, she had no one she could be “returned to”. Secondly, Jason had sworn to be wed to Medea before Zeus and Hera, and as such, by divorcing her, he had in fact, broken an oath to the Gods.

Whether on not Medea is, or should be, criminally culpable is an open question though lying on thoroughly ambiguous moral ground. Medea was obviously distraught at the time she developed her plan for revenge. The murders were premeditated to the extent that she did not commit them on the spur of the moment. However, she developed the plan at a time when she was quite obviously not emotionally stable. And the duration of the time from when she first conceived of the plan to the time when she executed it was short.

In addition to this, there is the question of provocation. In law, if a person commits a crime in consequence of being provoked, their criminal liability could be diminished to the point of being non-existent. It isn’t clear whether Jason’s conduct would be viewed as “adequate provocation” to cause Medea to commit multiple murders — presumably, it was not unheard of conduct at the time the play was written — although it would be difficult to argue that Medea’s committing the murders had nothing to do with her being cast off, and banished. She lived in a society in which she seems to have had no recourse to any form of justice, as a “barbarian” woman she was especially disadvantaged, and being exiled would have left her in an entirely hopeless position.

Medea states in the play that she knows her own mind, and that she knows that what she is doing is wrong. However, given that the act which seems to have spurred her to commit the murders is her banishment with immediate effect by Creon, Glauce’s father, it is unlikely that she did actually know her own mind.

She managed (by being manipulative) to get a twenty-four hour grace period from Creon, during which time she both planned and executed the murders. Jason arrived to meet her after Creon left her, and insulted her. It was in these twenty-four hours that she planned and committed the murders. In the play, she is simply not decisive with regard to murdering her children until the last possible moment.

Medea unequivocally states in the play that she is an autonomous individual — an assertion which in itself would have been questionable especially given that women were subject to the rule of men in a very literal sense with little autonomy of their own. Perhaps in the way that Glauce seems to have been little beyond a pawn in the schemes of her father and Jason, and who died because of those schemes.

Medea, however, managed to thoroughly subvert Jason’s schemes, and escape the consequences of her actions. At the end of the play, she is shown escaping in a chariot provided by the Gods — leaving no doubt of whom they supported. She speaks in a voice which is reminiscent of that used by the Gods, cold and distant. Driven to murder by Jason, she is ultimately far removed from emotion itself, it would seem.

Image: Medea by Sandys from WikiCommons

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Rehauling Sexual Assault Law in India

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Comments on the Proposed Amendments to Criminal Law

The Criminal Law (Amendment) Bill, 2010 has been made available.  The Bill contains proposed amendments to two laws: the Indian Penal Code and the Criminal Procedure Code. The former is a substantive law while the latter is a procedural law. In other words, the Penal Code states what would constitute and offence and what the punishment for such offence would be. The Criminal Procedure Code, on the other hand, specifies the procedure required to be followed to implement the law laid down in the Penal Code.

The Bill, inter alia, redefines rape by proposing to amend Section 375 of the Indian Penal Code in the following terms:

A man is said to commit “sexual assault” if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-

Firstly.-Against her will.

Secondly.- Without her consent

Thirdly.- With her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent.

The exception for medical/hygienic purposes in Section375(a), however, doesn’t seem to require consent. What this would mean is that if the penetration were for medical purposes, and such purposes are not defined, the doctor, would not be required to obtain the consent of the woman so as to avoid falling foul of the provisions of this section if the proposed amendment were to become law. This, of course, could be considered to fly in the fact of the lived experiences of many women. It completely denies the existence of medical rape. It would also seem to exclude from the scope of sexual assault such things as medical students performing pelvic exams on unconscious women without their consent. While it is possible to see the requirement for such an exception, it is difficult to understand why the exception does not state: “except where such penetration is carried out for proper hygienic or medical purposes with the consent of the woman.”

After defining sexual assault, the proposed amendment then states the punishment for sexual assault and lists specific sexual assaults which would be dealt with in a stricter manner in Section 376 of the Indian Penal Code. Under Section 376(1), sexual assault would normally be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life and, possibly, also a fine. Under Section 376(2), sexual assault by certain persons and/or under certain circumstances would be treated more seriously. Specifically:

Whoever,-

(a) being a police officer commits sexual assault -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a women in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits sexual assault on a woman or minor in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(k) while committing sexual assault causes grievous bodily harm, maims or disfigures or endangers the life of a woman, or

(l) commits persistent sexual assault,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be imprisonment for life and shall also be liable to fine.

Thus, Section 376(2), if passed, would be an enhanced version of the current law as it introduces some new provisions such as that which deals with sexual assault by relatives.

Further, in the case of certain persons such as those who are in positions of authority or are public servants, sexual intercourse which does not amount to sexual assault would also be an offence under Section 376B of the Indian Penal Code in specified circumstances. If the perpetrator had taken advantage of his position and induced or seduced any woman either in his custody or under his charge or present in the premises and has sexual intercourse with her, the sexual intercourse would amount to sexual assault. The punishment for such an offence would be either simple or rigorous imprisonment for a term which may extend to 10 years but shall not be less than 5 years and, possibly, also a fine.

There has also been proposed an amendment to the Indian Penal Code (Section 376A) to deal with the sexual intercourse by a husband upon his wife during separation. Under this provision:

Whoever commits sexual assault with his own wife, who is living separately under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may be extend to seven years and shall also be liable to fine.

Despite the hype about the proposed amendments regarding rape being gender-neutral, it is clear from Sections such as 376(2) that many of the provisions are gender-specific. For example, sexually assaulting a disabled woman would, at least theoretically, under Section 376(2)(j) result in an enhanced punishment but there would be no such enhancement of the punishment if the victim were male.

Also, the provision of Section 376(2)(g) which states that those who commit ”sexual assault on a woman when such woman is under eighteen years of age” is unclear. It has also been proposed to add a Section (dealt with later in this post) which deals with the sexual assault of minors with a minor being defined as a person who is under the age of 18. Section 376(2)(g) deals with the sexual assault of women in this same age group. It is not clear why it has been thought to be necessary to have two provisions which deal with the sexual assault of female minors, or which Section would actually apply in such a case.

One explanation would be that Section 376(2)(g) actually intends to deal with the age of consent. However, if this is the intention, it is not truly reflected by the wording of the law. Assuming that Section 376(2)(g) lays down the age of consent for women and states that it is 18 years of age, whether this age is too high is debatable. What appears to be a lacuna here, however, is that the age of the man is not taken into consideration at all. There should probably have been a proviso inserted into this clause which so that it would come into effect only if the other person involved was “x” number of years older than the complainant/victim. In other words, it is probably not ideal to have a law which states that if one person was 18, and the other 19, the consent of the 18 year old would be immaterial since, presumably, the reason for having an age of consent is to protect minors from adults, and not from other minors or from persons who are at the threshold of majority.

The provision which is proposed to be inserted into the Penal Code to deal with the sexual abuse of minors states:

(1) A person is said to commit “sexual abuse of minor” against a minor under the age of eighteen years if the person-

(i) penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor.

Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

(4) In this section,- (a) ‘minor’ means – a person under eighteen years of age.

There have been discussions about the need for such an amendment to the law for many years now. So far, it has only been possible to deal with child abuse under the existing Section 377 of the Indian Penal Code which deals with so-called unnatural offences. The Section has been notorious for its widespread misuse — consenting adult homosexuals have routinely reported being threatened with its implementation since the Section makes homosexual acts an offence even if they are between consenting adults.

As mentioned at the beginning of this piece, it has also been proposed to amend the Criminal Procedure Code so implement the changes in the Penal Code. Strangely enough, with respect to child sexual assault, the following amendment has been proposed:

198B. No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 376C of the Indian Penal Code, except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by his father, mother, brother, sister or by his father’s or mother’s brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

This means that in cases of child sexual abuse, a complaint may only be filed by the victim or certain relatives of the victim. It does not seem realistic to expect a child to file, or even be able to file, a complaint. And, considering the way in which child sexual abuse, particularly when the abuser is a relative, is veiled in Indian society, it is extremely difficult to understand why relatives would be listed as the only possible complainants other than the victim. Under this provision, it appears that a complaint cannot be made by such persons as doctors and other health-care providers, caregivers or educators who may, in fact, be in a better position than relatives to make such a complaint.

Once a complaint has been made though, and the trial is in progress, it has been proposed to insert a provision into the Criminal Procedure Code which would allow the judge to take appropriate measures to ensure that the alleged minor victim of sexual assault or any other sexual offence is not confronted by the accused, although the court must also uphold the right of cross-examination of the accused.

Thus, although the aim seems to be to redefine and restructure sexual assault law in India, the proposed amendment, as it now stands, is not without its flaws.

By Nandita Saikia

 

Rapist Claims Copyright

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True, the threshold for ‘copyrightability’ is low for literary (and other) works. A literary work must be original. It should not infringe another work’s copyright. It should be written or otherwise fixed in a tangible form. Writing it should generally involve some form of skill and labour being expended. And it need not contain an iota of merit.

That being said, there are some things which cannot be copyrighted. You cannot copyright a description of what you are. You cannot copyright a phrase used by the world plus dog. You are unlikely to be able to copyright the ordinary grocery list. You probably would not be able to copyright the text in a standard almanac or calendar. You may not be able to copyright the title of a book. And you definitely cannot copyright your name.

That, however, is exactly what a former legislator from South Dakota who was convicted in 2007 on four counts of second-degree rape has attempted to do.

Claiming that he seeks to prevent the use of his name without his consent, Ted Alvin Klaudt sent out a letter and an accompanying document labeled ‘Common Law Copyright Notice’ reserving a common-law copyright of a trade name or trademark for his name. It said no one could use his name without his consent and that anyone who did so would owe him $ 5,00,000, according to an article in the New York Times.

It would appear that Klaudt is trying to use his own rather confused version of copyright and trade mark law to ensure that he doesn’t get (? any more) bad press. However, apart from the fact that it has brought his name into the limelight in additional contexts, the fact is that the law would simply not support his claim.

For one thing, he would not be able to copyright his name. And as far as trade marks are concerned, they denote the origin of goods or services, and a name would not be a valid trade mark unless it was used in conjunction with one of the two. (Perhaps we’ll see Klaudt stationary in the market soon?)

However, even if a valid trade mark existed, Klaudt would still not be able to prevent others from using the his name for such purposes as reporting news under any law. While this is certainly an interesting way to try to prevent persons writing his name (and writing about him), it isn’t an approach which intellectual property law would support.

Professional Negligence

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1168056_at_workIn the simplest terms, professionals are persons who have more than an average person’s skill, ability and training in any specific domain. Negligence committed by them in the course of performing a professional function is professional negligence. Generally, if professional negligence has been committed, the person who has been adversely affected by it can seek a legal remedy provided certain conditions are met and established.

Firstly, the professional must have represented that he has certain skills which are beyond that which a lay person has. In addition to this, he should have owed a duty of care to the person who claims he has been harmed, and he must have committed a breach of that duty. There must, of course, be harm caused by the professional’s breach of duty.

Whether or not a professional has breached his duty is determined by comparing the manner he has rendered services to the manner in which a reasonable person, acting in the same professional capacity, would be expected to render services. Specific professions may have guidelines, rules or laws which state exactly what a breach of professional duty would involve, and the standard cannot be lowered. However, if a professional were to represent that he would provide services of a much higher standard than a ‘reasonable’ person would provide, it would be entirely possible for the standards vis-à-vis that particular professional in that case to be raised accordingly.

Remedies for professional negligence could exist under contract law, the law of specific performance, tort law and various statutory laws. For example, Section 5 of the 1925 Legal Practitioner’s (Fees) Act says that lawyers may be liable for professional negligence.1 Theoretically, liability under both tort and contract could lie simultaneously, and a suit could be filed as such. However, since liability under contract arises from a voluntary agreement between the parties to it, and liability under tort law arises from English Common Law principles and case law, there are subtle differences between the two. Also, a claim under contract law could often be hard to prove since contracts with professionals are often implied contracts – few people sign written contracts with professionals they deal with such as their doctors, lawyers and accountants.

Remedies in cases of negligence can be sought at civil courts and, in some cases, in criminal courts.2 In India, it has begun to make sense to seek remedies for professional negligence under the 1986 Consumer Protection Act since the procedure followed by Consumer Dispute Redressal Agencies is, inter alia, not as long drawn out or as fraught with technicalities as the procedure of regular courts. The agencies are empowered to deal with deficiencies3 of professional service and award damages provided the service has not been rendered free of charge or under a contract of personal service.4

Even if the doors of agencies created under the Consumer Protection Act are closed to claimants though, the other avenues to obtain remedies remain open to claimants. It may be possible to challenge clauses in contracts including standard format contracts which limit the liability of professionals in cases of negligence on various bases such as unconscionability. And agreements which completely restrain recourse to legal remedies are void.5

(This article is by Nandita Saikia and was first published at LawMatters.in.)

References:
1. No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
2. See Sections 304A, 336, 337, 338, Indian Penal Code, 1860
3. Section 2(g), Consumer Protection Act, 1986
4. Section 2(o), Consumer Protection Act, 1986
5. Section 28, Indian Contract Act, 1872

NRIs Abandoning Spouses

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Usually, when the subject of NRI marriages is brought up, people speak either of how sought after they are or about how wives in such marriages supposedly use the allegedly draconian provisions of Section 498 A of the Indian Penal Code (which makes cruelty to wives an offence) to “torture” their husbands and in-laws who are, of course, invariably innocent of being cruel and unsuspecting of what’s in store for them. In its 219th Report though, it has been reported that the Law Commission has not confined itself to this supposed abuse of the law.

The Report which is entitled ‘Need for Family Law Legislation for Non-Resident Indians’ the Commission has spoken of the widespread practice of NRIs — usually men — marrying Indian spouses and then abandoning them whenever it strikes their fancy. The women — because it usually is women — usually do not come from families as well off as those they married into, and, in most cases, there’s precious little they can do about having been dumped.

In some cases, the marriages are not even legally valid and the women barely have any rights worth speaking of. Getting any form of alimony is often impossible, and such wives often wind up quite a bit worse off than they were before they got married.

In order to try to deal with such situations, the Law Commission has made a number of recommendations to ‘ensure compliance of the conditions of a valid marriage, to provide proof of marriage, and to act as a deterrent against bigamous practices’. The recommendations include the compulsory registration of marriages where one spouse is an NRI, requiring that the concerned High Commission or Embassy be given copies of the marriage documents, and having states like Punjab with high NRI populations set up fast track courts to inter alia resolve matrimonial and custody issues in such cases expeditiously.

In terms of legislative measures, the Commission has suggested that marriage laws such as the Hindu Marriage Act and the Special Marriage Act be amended to specifically provide for the maintenance and alimony of spouses, the custody of children and the division of matrimonial property in such cases. It has also suggested the creation of a single uniform legislation for the adoption of Indian children by NRIs.

Even if these recommendations are acted upon though, it will be some time before they actually help women who have been abandoned by NRI husbands.

More Protection to Women in Live-in Relationships

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Women in live-in relationships are supposed to receive the same protection as wives when it comes to domestic violence. Now,  it appears that that protection also applies to dowry.

Section 498 A of the Indian Penal Code has long been criticised by so-called men’s rights activists who claim that they are doing such things as ‘saving Indian families’, never mind that they’re doing so at the expense of the safety of Indian women. Section 498 A makes cruelty against women by their husbands and in-laws an offence.

So far, it has been possible for a man to avoid being brought under the ambit of this Section by simply not marrying the woman in question. The literal interpretation of the Section requires a wife to be treated cruelly for an offence to have been committed, and the logic was: where there is no wife, there can be no cruelty under the ambit of this Section of the law.

In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., a Bench of the Supreme Court comprising Justices Arijit Pasayat and A K Ganguly changed this though. Justice Pasayat who wrote the judgment said that the would not allow a narrow interpretation to stand in the way of women’s rights.

In this case, a man named Koppisetti Subbharao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498 A did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else.

The Court was not impressed. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?”

Preferring a liberal construction of the law, the Court went on to explain why it had rejected a literal and technical interpretation saying: “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand for money.”

This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.

Judgment: http://judis.nic.in/supremecourt/helddis3.aspx