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Could you be married without knowing it? What the UK might learn from India

I have never been a big fan of marriage here in the UK and have avoided it myself (so far!)  It carries with it a history of patriarchal baggage to my mind and a 1950s – type image of being the perfect housewife, content to be cook, cleaner and nanny inside the home and nothing more than an appendage to your husband.  Historically, marriage has not been kind to women.  In the 19^th century (UK), married women did not even legally exist, their identity being subsumed into their husband’s.  So, a married woman could not own property, sign her own legal documents, keep her own salary, enter into a contract or pursue an education against her husband’s wishes.  Even in the 1970s a married woman could not obtain a mortgage without her husband’s signature and rape wasn’t criminalized within marriage until 1991 (and sadly still not criminalized in India).  Women were, and still are, expected (though not legally bound in the UK) to change their surname to their husband’s – an important marker of one’s own identity and family history.  [Though I notice that in a recent European Court of Human Rights case, the judges ruled that to legally require a woman to change her name – as in Turkey – was discriminatory (1)].

Nowadays, although law reform and social change have made marriage more of an equal partnership between men and women, its popularity is still declining.  So, just as same sex couples are set to gain the same right to marriage as heterosexual couples in the UK, statistics show that cohabiting couples are as likely to have children as married couples.  Living together – before or instead of marriage – is so accepted now that even Prince William and Kate Middleton lived together before their marriage.

For cohabiting couples in the UK, however, there still persists the myth of the ‘common law marriage’ with either partner assuming they have acquired some rights (for example to property or businesses) by virtue of having lived together and/or had children.  Unfortunately this is not the case and can lead to much hardship and unfairness on the breakdown of the relationship.  A patchwork of other laws have to be relied on (such as trust law or the Children’s Act 1989) to attempt a solution and although the Law Commission recommended legal change in its 2007 report on cohabitation, so far nothing has been done.

In India, by contrast, marriage is still an expectation in most people’s lives.  Relationships outside marriage – while perhaps becoming more common in the major urban centres – are still not accepted and marriage at a young age (including child marriage) is still widespread (child marriage is illegal in India, although still sadly very common). Anyone who saw this week’s edition of ‘Who Do You Think You Are?’ on BBC1 featuring East Ender’s actor Nitin Ganatra will have learnt how his own grandparents were married in Gujarat at the ages of only 6 and 10.  Registration of a marriage, however, is not (yet) compulsory, which can lead to disputes over the existence of an actual marriage (2).

With this background, it was therefore with interest that I read about the recent Madras High Court judgment in the case of Aysha v Ozir Hassan.  Jayna Kothari, an advocate in Bangalore and a founder member of the Centre for Law and Policy Research (3), has written about the case elsewhere, and I draw on her analysis here (4).  Briefly, the background was that Aysha had been in a relationship with Ozir, with whom she had 2 children.  She claimed they were married, but had no proof of this.  The relationship broke up and Aysha was left to care for the 2 children.  Aysha then made an application to the Family Court for maintenance for both her and the 2 children.  The Family Court initially rejected her claim for maintenance because of the lack of evidence of a marriage but this was overruled by the High Court who referred to hospital records where Ozir had said he was her husband.  On this basis, the Judge granted the maintenance sought by Aysha.  The Judge’s reasoning was that since the couple held themselves out to be married and had lived together, their relationship was in the nature of a marriage.  There had already been a precedent for this kind of decision in 2011 – although not relied on by the Judge here - where the Supreme Court had laid down a number of conditions for cohabiting couples which, if met, would hold their relationship to be in the nature of a marriage (5).  So far so good – and already it goes further than UK law would allow.

But the Judge didn’t stop at that.  He went on to say that all sexual relationships are in the nature of marriage – and couples could therefore not separate without getting a ‘divorce’ – so all sexual relationships carried all the consequences of a marriage.

This was an interesting development.  You can imagine the calculations going through the minds of some more liberal types – trying to work out how many times they might have been married without even realizing it!   Despair at the undermining of Indian culture was another reaction – for example one reader commenting in the Times of India (online), ‘Our Indian tradition is entirely different from this court ruling we have a belief marriage is fixed in heaven and married life is holy one sex is a part of married life.  I really do not understand where our lives are leading by such kind of ruling by courts’ (19 June 2013).

The consensus of legal opinion, however, seems to be that making all sexual relationships into marriage was probably not really central to the Judge’s decision, so doesn’t set any new precedents.  The Judge in this case was probably just interpreting the law as he saw it to ensure justice for Aysha and maintenance for her 2 children and lack of appropriate words or language may have hampered the Judge.

Nevertheless, interesting times in India.  If India follows the Western route, in increasingly downplaying the importance of marriage – with many more cohabiting couples – these are issues that will continue to occur.  And if cohabitating couples are given the same rights as married couples (following the 2011 Supreme Court case - above), what effect will that have on the future popularity of marriage in India?  Will it still be essential - if not for legal rights, but for divine or social blessing?  Maybe the UK should keep an eye on developments in India as a way forward for cohabiting couples here in the UK.

(1)   Leventoğlu Abdulkadiroğlu v. Turkey

(2)   This is set to change shortly with the passing of a new bill.

(3)   http://clpr.org.in/

(4)   Her article is available at http://blogs.lse.ac.uk/indiaatlse/2013/07/15/what-rights-marriage/#more-1727

(5)   See the case of D.Veluswamy v Patchiammal.  The conditions are a) the couple must hold themselves out to society as being akin to spouses b) they must be of the legal age to marry c) they must be unmarried and so qualify to be married d) they must have voluntarily cohabited and held themselves out to society as being spouses for a significant period of time.

Masala Zone – Restaurant Home Cooked Indian Food

Like Roti Chai this is one of those places we have been meaning to try for a few months now and so a quiet Sunday recently saw us taking the bus to the Covent Garden branch just behind the Royal Opera House for lunch. We had also been recommended Masala Zone by one of Asma Khan’s Bengali friends so it was somewhere we had to experience.

Masala Zone has a strong restaurant pedigree with others in its London stable including Amaya, Chutney Mary and Veeraswamy. It has a number of locations in the capital. The restaurant suggests that the best food in India is not found in restaurants but in the home and in the form of street food. The thali, a complete meal on a tray, is the centre piece of its menu and intended to replicate the combination of the home and the street. Furthermore, it suggests that its food is a far cry from that of the average curry house in the UK.

The restaurant has clean, modern lines, and the furnishings are simple but adequate. Unlike Wagamama’s or Busaba Eathai the tables are separate. In the Covent Garden branch Rajasthani puppets are suspended from the ceiling which gives the restaurant plenty of India related atmosphere, character, and colour.

On that Sunday afternoon the restaurant was quiet and we received an immediate warm welcome. There was quite an international clientele with Arab women and Indian families from India, who perhaps were taking economical options after the fall of the rupee.

The menu consists of street food, individual curries, and thalis which are small quantities of each dish presented in small bowls on a large stainless steel tray. The restaurant did have a number of special offers which rather confused us but we stuck to the main menu. Sue chose the Pre-theatre Thali with the Chicken Mangalore and I the Grand Thali with Goan Prawn. Otherwise our thalis were identical. Our thalis comprised rice, chapatti, dhal, cauliflower curry, potato curry, onion bhaji, raita, a small salad and coriander chutney. Immediately we felt the quantity of rice would be inadequate so we ordered more.

We found the thali worked well with well-judged combinations and quantities, rice apart. I found the cauliflower and potato curries to be very good and I could have eaten a lot more in theory. However, my Goan Prawn curry was rather bland and disappointing. But Sue’s Mangalore Chicken was very tasty, judging by the small bite I had. I’m not generally a great fan of chapatis but these were well-cooked and prepared. The thalis were surprisingly filling and we both struggled to finish ours, and weren’t able to tackle any desserts.

I would concur with Masala Zone’s marketing in suggesting that the food is better than that of the average curry house. The service was swift and professional. Apart from my bland Goan Prawn curry my only criticism would be that the breadth of the menu andd special offers might be confusing, particularly if trying to introduce people to a relatively new way of presenting Indian food in restaurants.

Our bill was £42 including service which included two rounds of mango lassis each. We thought it good value in terms of the quality of the food, good service and the location. I would rate it 6-7 / 10, and would suggest it would be ideal for a quick lunch or dinner but perhaps not worth a special trip. However, the chain is exactly what the capital needs to rival Wagamama’s or Busaba Eathai for quality and consistent Eastern food.

Masala Zone, 48 Floral Street, London WC2E 9DA  Tel: 020 7379 0101

www.masalazone.com