Ekta Rathore is a final year student at NUSRL, Ranchi, specializing in International Law.
According to a study by the United Nations Secretary General, the most common form of violence experienced by women globally is intimate partner violence. The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. As recognized by the General Assembly and the Human Rights Committee, around the world, in different cultural and political systems, various forms of families exist.
Human relationships have long been under the scrutiny of law. When the social fabric is made of interpersonal relations of people, it is justified for law to be an interfering force when need be. But the understanding of this concept generally extends only to matrimonial and familial relationships.
But, in the post World Wars world, when human rights have become a dominant force, law has expanded its grip over human relationships to include non-normative intimacies. The term ‘non-normative intimacies’ refers to relations that resemble marriage but do not conform to the general understanding of ‘family’. Such relationships demand similar investment of care giving, labour and sexual resources, especially on women’s part. Some examples are same sex unions and live in relationships.
It is no surprise that these relationships grow and sustain under the clutches of patriarchy and related oppressive social norms. Excluding parties, especially women, involved in such unions, from legal protection entails vulnerability, exploitation and inequality.
Indian laws have seen several shifts when it comes to protecting rights of people involved in non-normative relationships. Section 125 of CrPC mandates that the claimant establish her status of ‘wife’. But in 2005, in Daga v. Daga, the court expanded this definition to include partners who are not legally married. In the same year, the Domestic Violence Act also included intimate partners within the ambit of domestic lives. This progressive trajectory saw an abrupt halt in 2010, for the Supreme Court limited such protection under the said Act to monogamous, heterosexual relationships, significantly limiting the protections. Indian jurisprudence has so far seen the Supreme Court as the messiah of human rights, but protection of people involved in conjugal relations is where it took several steps backwards.
International law, unsurprisingly, has been several steps ahead. ICCPR and ICESCR emphasize on the widest possible interpretation to protection and assistance to families. CEDAW, in its general recommendations, has clarified that under its Article 16, protection is not solely limited to legally recognized matrimonial relations. The Inter-American Commission on Human Rights (IACHR) has consistently demanded that states should make no distinctions based on the marital status of victim or perpetrator while adopting laws to prevent and eradicate violence against women.
In India, with the reading down on Section 377 of IPC, it becomes all the more important that the Supreme Court reconsiders its unfortunate rulings in and after 2010. It is fundamentally unjust to protect only those persons who conform to the patriarchal norms of what human relationships should look like. With the saviour-like image that the Supreme Court exhibited in multiple decisions of 2018, the idea of it retracing its steps back to 2005, unfortunately, remains out of public discussion.