Debates on marriage, like debates within marriage, are rarely dispassionate. Maharashtra’s proposal to ‘recognise’ live-in relationships and the law commission releasing two recent reports dealing with marital laws, have led to howls from both sides. But my interest here is limited to evaluating the role of a liberal democratic state in regulating ‘marital relationships’ — including all consensual, long-term, sexual relationships.

Why do marital relationships require state regulation? Surely it cannot merely, or even primarily, be for the symbolic importance of state recognition of marriage. Several social institutions, including friendship, have flourished for millennia and continue to do so, without any need for a helping hand from the state. We don’t think that the state is disrespecting the institution by not enforcing the obligations of friendship. Marital relationships, like friendships, will not wither away without state recognition. Symbolic recognition becomes an issue mainly when a select group (like inter-caste, inter-faith and same-sex couples) are denied free and equal access to the institution. So is there a role for the state to play in marital relationships? Relationship issues are so fundamental to an individual’s well-being that the primary role of the state must be to ensure that they are entered into freely. This should include the freedom to choose one’s partner, the freedom not to be in a relationship, the freedom to leave a relationship and the freedom to choose the rules that will govern the relationship while it continues and in the event of its breakdown. Secondly, the state must ensure that these governing rules comply with basic norms of justice so that the vulnerability of a person is not exploited. These rules must recognise that people make deep physical, emotional and material contributions, often without conducting a rational cost-benefit analysis like those in business partnerships.

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