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gavelA Supreme Court of India judgment, while defining “Common Law Marriage”, cited as a source Wikipedia, the online encyclopaedia anyone can edit. The same judgment on live-in relationships was also slammed by additional solicitor general Indira Jaisingh for using gender biased terms “one night stand” and “keep”.

In the criminal appeal of D. Velusamy v D. Patchaiammal (arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010) Justice Markandey Katju ruled on Thursday (21 October) in a landmark case that determined the ambit of “live-in relationships” for the purpose of falling under the Domestic Violence Act 2005.

Katju said in the judgment, which is available on Indiankanoon.org: “If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.”

He added in paragraph 33 of the judgment: “Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”

Jaisingh, who was one of the architects of the Domestic Violence Act, objected to the use of “keep” and “one night stand”, which she said were derogatory of women, reported the Times of India.

Jaisingh told the court: “Supreme Court judgments are cited across the world. But this one possibly will tell the world that in India, women are regarded as `keep' or `rakhels'. I strongly object to the use of these words in your judgment. I do not expect this from the Supreme Court in the 21st century. I feel offended by it.”

Katju’s also cited Wikipedia for the definition of “Common Law Marriage”. Wikipedia is an online encyclopaedia that anyone can edit any time and content can therefore not be guaranteed to always be accurate or properly sourced. A Mint editorial from yesterday noted: “Wikipedia is mutable, easily changed by its users; the Wikipedia page seen by judges when preparing a verdict can be different from that seen by readers 10 minutes or six months or seven years hence. A court that can quote Flaubert and Tolstoy should surely be able to call up more lasting, reliable resources than Wikipedia.”

According to a search for the word Wikipedia on Indiankanoon.org, the online encyclopaedia has been cited as a source at least 63 times by Indian courts, which was first posted on Twitter by @gkjohn. US courts too have cited Wikipedia in the past, according to the New York Times, although apparently not to define legal terms.

The Wikipedia entry on Common Law Marriage has not been edited since 13 October. Katju’s judgment only paraphrased parts of the Wikipedia article but did not appear to have copied and pasted any wording.

Excerpt from judgment:

“33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being

akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal

marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(see ‘Common Law Marriage’ in Wikipedia on Google)”

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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 05:55
The paragraph on "keep" is a little offensive to the extent that the way it is written, it seems to legitimize using women as sex slaves without giving them a married status. That seems rather callous and insensitive of the judges and just a touch misogynistic.

But I fail to see what is so offensive about using the term "one night stand." The judges didn't coin that phrase, neither are they promoting promiscuity. They are merely recognizing that such things happen in society (and they do) and giving their judgment that one night stands and weekend together is not at the same level as a marriage. Seems fair. I certainly fail to see how it is "derogatory to women."

The first bit about "keep" should be struck off the judgment though. It's very poorly drafted.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 06:17
I am appalled by the statements made by revered judges, what do they mean by "women who are used for used primarily for sexual purposes"; if anyone needs maintenance to be given to them then these "women" as the judgement terms needs it first.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 07:48
I fail to see what is so offensive in the terminology used by the Supreme Court. The Court has used 'keep' in quotes to signify a kind of relationship akin to a "mistress".

The vernacular for that is "rakhel", which indeed is very offensive. But the court is not sitting in a value judgment - just holding a mirror to society.

Now, if there is domestic violence coz' one of parties taunts the other for being fat...what should the court use - overweight, obese, plump, corpulent, circumference-challenged, differently weighted..??

If Parliament did not intend the kind of relationships in question to be covered by the Domestic Violence Act, the court cannot take on the mantle of being politically correct.

And I am glad they have used the word for what it actually signifies - and did not try to hide under the politically correct tent - a blight in our times.

As for Jaising ....sing when you are winning...sing when you are whining. (Pls note it is spelled as Jaising.)
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 11:08
Also, the judges use the term in quotes, possibly to suggest that others use the term to mean what they said it means, and if the judgment is to apply to such situations (which really, no one disputes), then it is necessary for judges to apply the said terms.

Perhaps the court may have preferred to use the term 'mistress'.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 11:29
what the hell is wrong with the term one night stand? even women use it. indira jaisingh is unnecessarily trying to create a tamasha.

it is a shame that she is the ASG. she was a part of the save afzal guru movement along with the #1 india-hater arundhati roy.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 15:04
I have read the entire judgment. It is a well written judgment. The merit of a judgment cannot be based on trivial outlooks of a reader.

The use of the words objected to by ASG, whether someone likes it or not, is indicative of certain type of sexual relationships between men and women , which are not rapes. Such relationships exist in the society for whatever reason, justifiable or not, whether the learned ASG likes it or not. If the ASG is so touchy about gender equality, why is she supporting laws which are lopsided. Why is she not considering protection of similarly placed men in the modern world where you can find all kinds of women competing with men in all spheres of life including in immorality, sex, crime, using men in the same way as "male keeps". Is the ASG saying that a GIGOLO /male prostitute pay lifelong maintenance to the women who hired him for ONE NIGHT. The approach of ASG and her associates should change and become gender neutral.

On the issue of quoting from Wikipedia there is absolutely nothing improper to quote from any source, provide due credit is given as per the copy right laws. If anybody wants to challenge the quoted portion, it should be based on a different meaning attributed to the phrase elsewhere and not merely on the ground that Wikipedia can be edited by anybody.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 15:43
There are at least 7 to 10 prior judgements of the SC in which wikipedia was referred.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 19:54
All these years I had been shouting over my reseracher in moot who innocently merely used to look at wiki for the sake of some info. So, from now on we can all use wiki as a primary source of legal reserach in our memorials since we have a precedent from the apex court itself. [...] Katju are the reason that people like me dont want to argue in courts because I had enough of them in past four years in law school mooting. Its time to bring in IJS now.
@5: Arundhati Roy as India hater. Ha Ha..Well sure, so are all those stone pelting young boys in Kasmir, tribes in Chhatisgarh, North Eastern separatist, thousands of Sikhs abroad dreaming Khalistan, those uttering Jai Maharashtra before Jai Hind and more and more. Try to know the truth before criticing the same. Its not sweet, but so it is.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-24 21:08
@#3, i wish there was a "like" option for comments on legally india
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 00:36
It is just unfair find fault with the judges of the apex court. They only tried to cull out intention of legislature. Does Mrs Indira Jai Singh want that women who opted for casual relationship or other consideration, without there being intention for permanent relation. Well with the fast moving social cultures, many women opting for casual relationships. If the circumstances suggest that parties intended casual relationships; let it be so. Use of word "keep" is very commonly used and probably tried to use the common parlance language, so that even a common man can understand. Probably Mrs. Indira Jain Singh trying to throw the baby with the bath tub.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 01:09
whats wrong with wikipedia?
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Recommend! +0 Objection! -0 kianganz 2010-10-25 01:21
There is a 'like' option on LI - just click the green plus next to the post you like, or minus to unlike...
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 03:16
Ponds India Ltd. (Merged with H.L. Ltd.) vs. Commissioner of Trade Tax, Lucknow, (2008)8SCC369 (per SB Sinha, J.): www.indiankanoon.org/doc/1358324/
“Wikipedia, like all other external aids to construction, like dictionaries etc, is not an authentic source, although the same may be looked at for the purpose of gathering information. Where an express statutory definition of a word exists, a Wiki definition cannot be preferred. It cannot normally be used for the purpose of interpreting a taxing statute or classification of a product vis-`-vis an entry in statute.
However, as a source of authority, Wikipedia is frequently cited by judges around the world. This is not restricted to India alone. The New York Times reports that beginning in 2004, more than 100 opinion in the States have cited Wikipedia, including 13 from federal appeals courts.
Is this a good thing? There's a split of authority. Let us notice some.
• Said the Seventh Circuit's Judge Posner, who recently cited the online encyclopedia in this opinion: Wikipedia is a terrific resource.... Partly because it so convenient, it often has been updated recently and is very accurate. He added: It wouldn't be right to use it in a critical issue. If the safety of a product is at issue, you wouldn't look it up in Wikipedia.
• Cass Sunstein, a visiting professor at Harvard Law who once fixed an error on Posner's Wikipedia entry: I love Wikipedia, but I don't think it is yet time to cite it in judicial decisions...it doesn't have quality control." He told the Times that "if judges use Wikipedia you might introduce opportunistic editing" to influence the outcome of cases.
• Kenneth Ryesky, a New York tax attorney, says "citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.
• Stephen Gillers, NYU law professor and legal ethics guru: The most critical fact is public acceptance, including the litigants, he said. A judge should not use Wikipedia when the public is not prepared to accept it as authority. He said it's best used for "soft facts."
• Lawrence Lessig, a Stanford law professor urges using a system such www.webcitation.org that captures in time online sources like Wikipedia, so that a reader sees "a stable reference" -- i.e., the same material that the writer saw.
These points must be kept in mind by us when we intend to rely on Wikipedia as a source of authority”
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Recommend! +0 Objection! -0 Anoop Prakash 2010-10-25 06:18
My lords must remain extra cautious while using a gender sensitive word. Inapt words may overrule even the best possible judicial intentions. However, except the word controversy, least is controversial.

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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 06:52
you fools even US courts have referred to wikipedia.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 07:38
While Wiki is no doubt awesome, it simply cannot be cited as an authority. 'Authority' by definition is one who is qualified to give an opinion which would have persuasive value. Wiki can be edited by absolutely anyone. So, a judge who wants to visit Wiki to clear things in his head should by all means go ahead. But he must not rely on it while making his decision, and should definitely not quote it in his judgment. Especially if a legal term is concerned... It really is absurd that resort has been taken to Wiki to determine what all "common law marriage" encompasses!

That said, I don't see how the terms 'keep' and 'one night stand' are offensive to women.

The fact that the judgment puts 'keep' in quotes shows that no offense is intended.

And why is the ASG presuming only men want one night stands with women and that it is degrading to women??! What makes her think that women don't look for one night stands themselves?!!?
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 07:40
@#15, so? is it going to set a precedence for indian courts?
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 08:02
keep, may be offensive word. how one will define if married man has relationship with a lady ( fully knowing that he is married). do u think this relationship of live in relationship with married man will be treated as par with married woman? and if to give right to women in this type of live in relationship is accepted them most influential or no so influential men or anyone can simply walk over from legally married life and stay with another lady as live in relationship. so word may be offensive but what is the alternative to it. one cannot ignore historical development of words. I also don't subscribe to word keep. but look into the wide prospective and effect of judgement. In my view judgement is very good, every relationship one night or one year or even for longer period , it cannot pass the test of marriage. for example as every one know John and Bipasa living together for almost 7-10 yr still they denying that they are married...do u think these 7-10 year period staying together pass the test of marriage? look the spirit behind the judgement , not the words::::: good words with bad spirit/intention are more dangerous
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-25 20:06
I am sure that Mr. Katju used his head and not blindly copy and paste the content from Wikipedia. In any case, the content makes perfect sense: for a couple to cross the gulf between a casual relationship and marriage, those conditions must be fulfilled. Ms. Jaising appears to focus on the wording because she cannot argue with the content.

Perhaps I am biased: almost always, when I see an Indian Supreme Court judge and anyone else (activist lawyers, legislators, etc.) I judge a priori in the judge's favor, and have never had to revise my opinion so far.

To all Indians: be thankful for your Supreme Court; the positions it takes are the sanest positions I have seen.
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-27 02:02
leave wiki for students, who finish their assignments in a night and then their teachers blazes on them for citing wiki as a legal authority.. at least hon'ble judges should use proper legal resources.. deduct their salaries for this..

- Vishu
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-31 05:17
The standard of the judiciary is diminishing by the day...Citing an unreliable source like Wikipedia...What next??? Judges quoting local tea-shop gossip...
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Recommend! +0 Objection! -0 Anonymous guest 2010-10-31 05:23
After this we'll hear judges citing local tea-shop gossips and Santa-Banta jokes!!!
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Recommend! +0 Objection! -0 Dubby 2010-11-10 18:21
Ms Jaising's objection seems to be to the language of the judges rather than the substance of their comments. "Keep" is an english translation of "Rakhail". Ms Jaising has said that "concubine is even worse. Perhaps mistress" would be more acceptable.

A little off this subject, several men have been charged with rape when in a consnsual relationship and having reneged on a promise to marry. The basis being that the woman was misled into offering sex by the promise of marriage. If that is a valid argument, then surely the woman should be charged with prostitution for having sold sex for marriage? What difference does it make if the payment is in cash or kind?
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