Essay on the Maitri Karar under the Hindu Marriage Act

Perhaps the most imaginative and innovative alternate to bigamy practised in Gujarat (until officially banned by the government) was the ‘companionship contract’ or the ‘maitri karar’. When the government banned such connived carnal contracts, a host of other extra-marital devices cropped up to circumvent the Hindu matrimonial law of monogamy and the provisions of the Indian Penal Code relating to bigamy. Some of them took the shape of ‘service contracts’, whilst others were called ‘caretaker arrangements’, still others were termed ‘guardianship agreements’ – and some were even called ‘nursing contracts’.

The system appears to have originated in Gujarat, where a man and a woman would enter into a “friendship agreement” before a magistrate, popularly known as “maitri karar”, which has given a new dimension to commercial sex.

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A typical form of such an agreement would be by way of an affidavit on a stamp-paper of Rs. 10, signed by both the parties, two witnesses and a Sub-Registrar, who would affix his seal on the document – thus giving the ‘other woman’ a false sense of legal security. It is common knowledge that this practice was rampant in Gujarat in the 60’s and 70’s and was reportedly followed by many Ministers and senior bureaucrats.

The maitri karar often took the form of a pact between a married Hindu man and his ‘other woman’ to circumvent the provisions of the Hindu Marriage Act, which prohibits the re-marriage of such a man as long as the wife is alive and not divorced from him. Thus, the agreement was essentially a method to bypass the stringent provisions of the said Act and enter into an undeclared second marriage. Though not legally enforceable, the document was meant to give solace and a sense of security to such ‘other woman’.

As rightly pointed out, it is often the Muslims who are targeted for their matrimonial practices. However, the fact is that Hindus are also involved in polygamous practices. In fact, as many as 29,951 cases of maitri karar were found officially registered at the District Collectorate in Gujarat several years ago.

In Minaxi Zaverbhai Jethwa v. State of Gujarat, in the judgement of Calla J., delivered on December 15, 1999, the court declared a maitri karar to be void ab initio in plain terms.

It was clear that such contractual live-in arrangements made a mockery of the sanctity of marriage. Apart from the parties themselves, those also to blame were unscrupulous lawyers and government officials who turned a blind eye to such happenings. Such ‘registered liaisons’ were also cited as one of the reasons for the rising rate of suicides committed by Gujarati woman in those days.

Advocate Dinesh Desai, reputed to be the architect of the concept in 1962, once openly boasted: “Man is polygamous by nature and searches greener pastures, I conceived the idea of ‘companionship contracts’ to help out “needy” clients.”

In a book entitled ‘Maitri Karar’, the noted sociologist, Kumud Barot, has revealed startling statistics about such arrangements: Of the sample survey of 76 cases studied by her, 73 of the men involve- in such contracts were already married – and all the women, except one, were unmarried. Profession-wise, the ‘other ladies’ were found to be a mixed group: clerk, teachers, nurses – and even doctors.

The problem assumed such gigantic proportions that the Gujarat government ultimately passed an Act in 1982, prohibiting such love- pacts (by whatever name called), making them punishable with rigorous imprisonment upto five years and a fine upto Rs. 5,000.

In one interesting case, a wife approached a court in Gujarat, seeking to restrain her husband from entering into such a contract, arguing that such extra-marital relations of her husband with another woman would curtail her conjugal rights as a wife. When the city civil Judge granted the injunction against the husband, the ‘other woman’ threatened to sue the wife for defamation – and promptly, the wife’s parents tendered an unconditional apology!

This practice is, however, not confined to India – or to one state in India. In the west, with the rising number of couples choosing to live together rather than to marry, the incidents of long­standing, non-married couples breaking up are on the increase. It is, therefore, becoming increasing common for couples in the west to have a ‘Living Together Agreement’ drawn up by professional lawyers.

Such a ‘Cohabitee Agreement’ (as it is sometimes referred to) provides the framework for couples to record their intentions and respective contributions. The agreement generally includes all possible details about property, payment of mortgages, outgoings, ownership of property, liability for debts, ownership of bank accounts and similar matters.

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