Indian Feminist Jurisprudence in Progress: Deciphering

Live-in-Relationship
Jayesh K Unnikrishnan
(Advocate on Record, Supreme Court of India)

Feminist jurisprudence is based on the belief that the law has been
fundamental in women's historical subordination. The project
of feminist jurisprudence is twofold. First, feminist jurisprudence seeks to
explain ways in which the law played a role in women's former and prevalent
subordinate status. The law perpetuates a male value system at the expense of
female values. Second, feminist legal theory is dedicated to changing women's
status through a rework of the law and its approach to gender. It is a critique of
American law that was created to change the way women were treated and how
judges had applied the law in order to keep women in the same position they
had been in for years. The women who worked in this area viewed law as
holding women in a lower place in society than men based on gender
assumptions, and judges have therefore relied on these assumptions to make
their decisions.
This movement originated in the 1960s and 1970s with the purpose of
achieving equality for women by challenging laws that made distinctions on the
basis of sex. Through their experiences, they were influenced to create new legal
theory that fought for their rights and those that came after them in education
and broader marginalized communities which led to the creation of the legal
scholarship feminist legal theory in the 1970s and 1980s. The foundation of
feminist legal theory reflects this second and third-wave feminist struggles.
However, feminist legal theorists today extend their work beyond overt
discrimination by employing a variety of approaches to understand and address
how the law contributes to gender inequality.
The Great Indian Kitchen, a recently released Malayalam movie exposes
the sorry plight of Indian women, within the four walls of patriarchic
institution called family. Preparation of food and other hectic domestic
engagements are shown as a tool used by the male members of the family to
captivate women. Religious traditions and other customs turn metaphors of
gender discrimination in the movie. The issue of women entry in the Sabarimala
temple which is still pending before the Supreme Court of India ultimately
enlightens the protagonist wife to end up her unsavory marriage and to pursue
her dreams in life.
Kerala High Court on Single Mother- Facts
 While the movie denudes the anatomy of a society that is self-proclaimed
to be progressive, there appears a silver lining in the form of a judgement from
the High Court of Kerala. Division Bench of the High Court has been
approached by a couple through Habeas Corpus Petition claiming custody of
their child who was adopted by a childless couple. The petitioners, who belong
to different religions, met during the Kerala floods and started living together.
They were blessed with a baby girl. However, their live-in-relationship does not
last long, as the male partner went to Karnataka to pursue his film career, and
did not to return for long. The single mother approached the Child Welfare
Committee and handed over the child, who was adopted later by a childless
couple, as per the process of law. When the biological father returned to his
estranged partner, both of them decided to claim the child back, hence
approached the High Court.
The Verdict
Division Bench of the High Court suo moto converted the Writ to
revision petition under section 102 ofJuvenile Justice Act, 2015 (hereinafter
referred to as JJ Act). The court proceeded to examine the social malady of
gender injustice through the prism of JJ Act.The opening sentence of the order,
a quote from Norman Cousins, who authored Anatomy of Illness, is itself an
introduction towards the philosophy of the bench. It reads… “The death is not
the greatest loss in life. The greatest loss is what one dies inside us while we
live”.
The message is expressed loud and clear regarding the issues to be dealt
with. They are - the trauma of a couple in a live-in-relationship, isolation of a
single mother, love of mother for her child, rights of biological father, entangled
in legal vortex. The court observed that the law does not differentiate unwed
couple and legally wed couple to be recognized as biological parents and held
that a child born out of a live-in-relationship also has to be construed as a
legitimate offspring. After interpreting the procedure for declaring a child
legally free for adoption under JJ Act and Adoption Regulations, 2017, the court
concluded that the deed of surrender executed only by mother as invalid, since
her status is that of a married parent, not a single mother. Since she accepts the
right of the biological father, his consent was also essential for valid surrender
of the child. Thus the child was declared to be treated as born to a married
couple. Based on this, the court allowed the revision petition by setting aside the
certificate issued under Section 38 of JJ Act.
The judgement authored by Justice A. Mohamed Mustaque, sharing the
bench with Justice Dr.Kauser Edappagath, invokes Manusmriti to state that
“Gods abide where women are worshiped and all actions go futile where they
are dishonoured” and depicts the paradoxical reality about the treatment of
women, especially single mothers by the society. The Court calls upon the
Government to evolve a scheme to support the single mother. Referring to right
to privacy declared as fundamental right by Constitution Bench decision of
Supreme Court in K. S Puttaswami, the court boldly proclaims that “A woman’s
womb is precious possession of her personhood and no one can claim right over
it; except with her consent.” …. The verdict concludes with a note of caution:
“If a woman feels she is nothing without the support of the man that is the
failure of the system. She shall not succumb to the temptation of giving up. The
power of human in this Universe is the power of motherhood. It is for the State
to make her realize that her struggle with the forces undermining her existence
can be validated with the support of rule of law. That self belief must be her
identity and respect due to her.”
Marriage is a legal institution by which the basic unit of society, family,
is constituted. State acknowledges marriage as worthy to be protected by it and
holds the offences against marriage as punishable under the Indian Penal Code,
1860. However, decriminalisation of adultery by striking down Section 497,
IPC, as unconstitutional, being violative of gender equality towards wives, and
accepting living-in-relationship as equal to marriage in the context of Protection
of Women from Domestic Violence Act, 2005, the apex court has interpreted
law to keep pace with societal changes. This is, indeed, a great leap forward for
the nascent Indian feminist jurisprudence.