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‘Offensive’ SC judgment cites Wikipedia to define legal term

A 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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