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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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.
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.)
Perhaps the court may have preferred to use the term 'mistress'.
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.
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.
@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.
“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”
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?!!?
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.
- Vishu
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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