Category Archives: Marriage and Divorce

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.)

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Spinoffs and Sequels

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It looks like Michael Douglas and his ex-wife Diandre are set to debate the difference between these two forms of derivative works — sequels and spinoffs — in Court. Under the terms of their divorce, Diandre is entitled to fifty per cent of income from spinoffs of movies in which Michael Douglas acted before their divorce.

The issue has come up with reference to “Wall Street 2″ which Diandre is treating as a spinoff, and Michael Douglas is treating as a sequel. The press and publicity associated with the film all seem to treat the film as a sequel as well. However, the terms “sequel” and “spin off” are not defined by copyright law, and the term “spin off” is not defined in their divorce agreement either. Also, it isn’t clear why the terms of the divorce refer to spinoffs and not to sequels given that the former term is usually used with reference to TV programmes, and the clause itself refers to films.

A sequel is defined as “a literary work, movie, etc., that is complete in itself but continues the narrative of a preceding work”, while a spin off is defined as “something derived from an earlier work, such as a television show starring a character who had a popular minor role in another show”.

The link between spinoffs and sequels appears to be only incidental — they are both derivative works, and that appears to be where the similarity between them ends. A spinoff would generally be primarily unrelated to the original work — think “Joey” and “Friends” — while a sequel would build on the story contained in the the original work.

ABC News has an interesting report on the subject (here) where they had two lawyers discuss the matter.

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.)

Maintenance under the CrPC

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Earlier, there was a limit to the amount of maintenance payable under the Code of Criminal Procedure. However, an amendment to Section 125 removed this limit and the maintenance which can be ordered under this Section is no longer limited to 500 INR per month as was the case earlier.

Although Section 125 does not aim to benefit those belonging to any particular religion, its use by Muslim wives was curtailed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

However, according to a report in the Indian Express, the High Court of Bombay at Aurangabad has said that a Muslim woman is entitled to maintenance under Section 125 of the Code of Criminal Procedure if the Talaq is not valid. In this case, the husband’s own version did not reveal a credible reason for divorce and in addition to that, there was no attempt at reconciliation prior to the divorce as is required under Supreme Court guidelines.

Section 125. Maintenance

If a person who has sufficient means neglects or refuses to maintain:

  1. his wife, unable to maintain herself, whether or not he is divorced from her or
  2. his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
    (If the child is a married daughter, maintenance is to be paid till she attains majority if her husband does not possess sufficient means.)
  1. his legitimate or illegitimate adult child who cannot maintain itself because of any physical or mental abnormality or injury
    (This does not include a married daughter.)
  1. his father or mother, unable to maintain himself or herself,

he can be ordered to pay maintenance to those persons by the Family Court in places where a Family Court has been established or by a JMFC in other places if the neglect or refusal is proved.

The Court may order him to pay a monthly allowance as maintenance of his wife or such child, father or mother as it thinks fit to the person.

The allowance is payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

If any person so ordered fails without sufficient cause to comply with the order, the Court may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. However, no warrant shall be issued for the recovery of any amount due under this section unless application is made to the Court to levy such amount within a period of one year from the date on which it became due.

If such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Court may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

A wife is not entitled to receive an allowance from her husband if she is living in adultery, or if, she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent.

On proof that any wife in whose favour an order has been made is living in adultery, or that she refuses to live with her husband without sufficient reason, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 126: Procedure

Proceedings under section 125 may be taken against any person in any district:

  1. where he is, or
  2. where he or his wife, resides, or
  3. where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

All evidence in such proceedings is taken in the presence of the person against whom an order for payment of maintenance is to be made, or, when his personal attendance is dispensed with, in the presence of his pleader. It is recorded in the manner prescribed for summons-cases. However, if the Court is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, it may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as it thinks is just and proper.

The Court in dealing with applications under section 125 has the power to make such order as to costs as may be just.

Section 127. Alteration in allowance

On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Court may make such alteration in the allowance he thinks fit.

Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Court shall, if it is satisfied that:

  1. the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
  2. the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order:
      1. in the case where, such sum was paid before such order, from the date on Which such order was made,
      2. in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
  3. the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date of the divorce.

At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court takes into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

Section 128: Enforcement of order of maintenance

A copy of the order of maintenance is given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid.

The order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.

Defining Dowry: Not a Gift to a Baby

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The Dowry Prohibition Act, 1961 says, “Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage, in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. The expression ‘valuable security’ has the same meaning as in section 30 of the Indian Penal Code.”

In yet another case defining what dowry is, the Supreme Court has held that demand for presents to a child do not fall within the ambit of dowry and that mere evidence that a woman has been subjected to harassment does not in itself make out a case of dowry death as defined by Section 304B of the Indian Penal Code which says:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In this case, a woman named Jagadeshwari committed suicide by setting herself on fire after her husband, Narayanamurthy from Karnataka, and his parents, Kannappa and Shivabhushanamma, demanded a gold ring and silverware for on the occasion of her new-born child’s thread-changing ceremony which was to be held at her parents’ home.

Jagadeshwari’s family could not afford to give the child a ring and so, Narayanamurthy refused to take part in the ceremony.

The marriage of the couple had taken place in 1989 and was harassed by her husband and in laws for not having brought enough dowry right from the time of the wedding till the time of her death — she committed suicide on November 11, 1990.

After her death, both her husband and her in-laws were charged with offences under Sections 498A and 304B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.

Section 498A of the Indian Penal Code says:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

And Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 deal with the penalties for taking and demanding dowry and say that dowry to be for the benefit of the wife or her heirs.

The father-in-law died while the trial was underway and both the husband and mother-in-law were acquitted by the Trial Court for lack of evidence.

The Karnataka High Court subsequently convicted her husband under Section 304B of the Indian Penal Code on appeal and sentenced him to seven years of rigorous imprisonment. It also convicted him under Section 498A of the Code and fined him 5,000 INR. However, it upheld his acquittal under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Also, it did not find Shivabhushanamma guilty of any offence.

The Supreme Court upheld the acquittal of the mother-in-law also acquitted Narayanamurthy saying that although he had been given silverware at the ceremony, “such gifts are not enveloped within the ambit of dowry”.

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Bigamy

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There are two Sections in the Indian Penal Code which deal with bigamy. The first deals with bigamy with the second ‘spouse’ knowing of an earlier marriage which is legally valid at the time of the subsequent marriage and the second deals with bigamy without the second ‘spouse’ knowing of an earlier marriage. In both cases, the subsequent marriage is void.

Section 494, IPC: The offence of bigamy involves marrying again during the life of one’s husband or wife. The second marriage is void by reason of its taking place during the life of such husband or wife. The offence is punishable with either simple or rigorous imprisonment for a term which may extend to seven years, and offenders are also liable to fine.

However, this section does not extend to any person whose earlier marriage has been declared void by a court of competent jurisdiction. Further, it does not apply to any person who contracts a marriage during. the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and has not been heard of by such person as being alive as would have heard from him had he been alive within that time provided the person contracting such subsequent marriage, informs the person with whom such subsequent marriage is contracted of the real state of facts so far as the same are with in his or her knowledge shall, before the second marriage takes place.

Section 495, IPC: Whoever commits bigamy having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with either simple or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Grounds of Divorce under the HMA

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According to Section 13 of the Hindu Marriage Act, 1955, any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either spouse, be dissolved by a decree of divorce on any of the following grounds:

1. the other spouse has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse
2. the other spouse has, after the solemnization of the marriage, treated the petitioner with cruelty
3. the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
4. the other spouse has ceased to be a Hindu by conversion to another religion

5. the other spouse has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. “Mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; and “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment
6. the other spouse has been suffering from a virulent and incurable form of leprosy
7. the other spouse has been suffering from veneral disease in a communicable form
8. the other spouse has renounced the world by entering any religious order
9. the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. “Desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on any of the following grounds:

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties
2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on any of the following grounds:

1. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner provided that in either case the other wife is alive at the time of the presentation of the petition
2. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality
3. that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, or under corresponding Section 488 of the Code of Criminal Procedure, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards
4. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.