Abstract
Live-in-relationship is still ingenious outside the pastel in India. Live-in-relationship where unmarried couple lives together under the same roof in a long term relationship. It is a kind of living arrangement. In a nation, like India where maternities sometimes even murder their children for marrying out of caste, many brave couples do live together without getting married. Marriage is a sacred or votive relationship in India. Marriage as its legal values entitles both the persons to live together; the children born out of lawful marriage have lawfulness as legal inheritor; the wife is entitle to conservation during and after the suspension of marriage. To avoid these obligations and to enjoy the benefit of living together, the concept of live-in-relationship have come into picture. It generally means to live together as a couple without being married. Under Indian laws there is no legal definition of live-in-relationship. No legislation is there to define the rights and commitment of the parents and progenies born such parents. This form of living together is not probable by Hindu Marriage Act, 1955 or any other legislative laws.in the absence of any law to define the status of live-in relationships, the courts have taken the view that where a men and women live together as husband and wife for a long period, the law will postulate that they were legally married unless proved divergent. This type of foundation is called ‘Individual Freedom’. The artifact pursues to share the current lawful position of live-in-relationship in India.
Key-words – Marriage, Parties, Family, Indian laws, Courts.
India is a country of religious beliefs and customs and at the same time a country which is developing fast and implements the global changes faster. It is being truly said that the only thing which is perpetual in this world is revolution. The Indian culture has observed a severe change in its living pattern in the past years. A country which is still enclosed in its centuries old theories, but at the same time the country which is ever growing and accepting towards the different trend and culture. Societies are gently and progressively opening their awareness towards the concepts pre- marital sex and live-in relationships. These extremely different parts of the nation have effectively alienated the country in two parts. While one part is running onward in time ready to hold but the other part is still spoilt in their century of old beliefs. However, this change has been always under censure and highly debated topic as such impressions lack legality and receiving by the society.
There has been a considerable increase in the number of connects not married to each other but live together under the same ridge that look like a relation like nuptial over the past years.. Live in relationship to be agreed in modest terms is prearrangement between an unmarried couple lives together under the same ridge without the duties and responsibilities of marital relationship. It became exceptionally necessary to understand the situation of such a relationship in India.
In India, only relations between a men and a women is measured to be authentic where marriage has taken place between the two. Based on prevailing marriage laws, or else all other sought of relationship are deem to be appropriate. It is manifest, that in a predictable society like ours, where the institution of marriage is measured to be “sacred” an aggregate number of couples choose to have a live in relationship, even as a enduring plan over marriage. In such circumstances many financial, public and lawful concerns have arisen which have become in the issue of discussion. By the time, many instances have been stated and seen where parents in live in relationships or a child born out of such relationship have endured vulnerable that such relationship is unsupported.
There has been uncivilized abuse by the partners in live in relationship since they do not have any burdens and responsibilities to make. Authorizing live in relationship means that a totally different set of laws requisite to be framed for prevailing the relations including security in case of desertion, false in such relationships, maintenance, inheritance. Legal process would considerably increase in this case. The artifact pursues to explain the present lawful status in India. The artifact also tries to aspect into current developments in the outlook of the courts in permitting various rights to live in partners in India through verdicts and also what is the position of children born out of such relationships. It also makes the reasonable analysis of the development in other legal system and authorities.
Table of Contents
LAW IN INDIA
The Indian law does not provide any privileges or obligations for the parties in live-in relationship. The status of the children born during such relationship is unclear. There is no specific law as regards to the matter of live in relationship in India and also there is no legal definition of live-in relationship. In this way the lawful status of such sought of connection is likewise unverified. Therefore, the code has provided clarification to the concept of live in relationship through various judgments.
In other countries there has been a comprehensive understanding of a couple and family, which can be seen in their lawful recognition of pre-nuptial agreements, civil union, cohabitation and domestic relationship. In India, the Domestic Violence Act, 2005 from very first time in protection of women domestic violence act provides for the protection, maintenance and right of Palimony to the live-in partner, if she complains. The government has acknowledged the live in relationships giving rights, protection to those females who are not legally married but rather are living with a male individually relationship.
According, to Section2(f) of the domestic violence act, 2005 states “ domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family[1].”
Though live in relationship is not defined in the act but left to the courts for interpretation. The act also included within its purview live in relationship. Under which a woman having with a man a “relationship in the nature of marriage” can seek legal relief against a partner in case of abuse and harassment. This gives women some basic rights to protect themselves from a fraudulent or invalid marriages, bigamous relationships. The supreme court has stated that if a man and woman “lived like a husband and wife” for a long term relationship and had children, the Judiciary would presume the live in relationship to be covered under the ambit as the expression as the words nature of marriage and live-in relationship stand on the same line and meaning. The court even declared “living together is a right to life”. The bench listed 8 parameters which are regarded as the guidelines given by Supreme Court[2];
Duration of period of relationship – According Section 2(f) of Domestic Violence Act, 2005 has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the realistic situation.
Shared Household – The expression has been defined under Section 2(s) of the Domestic Violence Act,2005 states that a household where the person aggrieved lives all at any stage has lived in a domestic relationship either singly or along with the respondent and included such a household whether or tenanted either jointly by the aggrieved and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is the member ,irrespective of whether the respondent or aggrieved person has any right, title or interest in the shared household.
Pooling of resources and financial arrangements – Supporting any one of them or each other financially, sharing bank accounts, long term investment in business, acquiring immovable property in joint names or in the name of women, shared in the separate or in joint names, so as to have a long-term relationship, may be a guiding factor.
Domestic Arrangements– Interesting the liability, Specially on the women to run the home, do the household activity like maintenance of house, house keeping, cleaning is the indication of a relationship in a nature of marriage.
Sexual Relationship – Marriage like relationship refers to sexual relationship, not just for pleasure but for emotions and intimacy, for procreation of children, so as to give emotional support, companionship, caring, material affection, children.
Children – The nature of marriage is indicated by having children which indicates the strong relationship. A strong indication depicts, sharing the responsibility for bringing up and supporting them. The supreme court has declared that the children born out of live in relationship are not illegitimate lawyer-activist Pyoli Swatija mentioned that if a child is born of live in partner, the mother is a natural guardian of a child. It means that the father has no right to fulfil any responsibility related to the child. The supreme court also held that children born out of live in relationship may be allowed to inherit the property of children. But doesn’t have any right to claim upon Hindu ancestral coparcenary property. Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatya[3], held that the child born out of such relationship will no longer be considered as an illegitimate child.
Socialization in public – husband and wife is a strong circumstance to hold the relationship in the nature of marriage when they are holding out to the public and socializing with friends relations and others.
Intention and conduct of parties – Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship. Indra Sarma v. V.K.V Sarma[4], Supreme court in this case delivered on 26th November 2013, states relationship like live in or marriage is neither a crime nor a sin. Although, it is socially not accepted in this country. Long term relationship as a concubine, considered not a relationship in the nature of marriage. May at times it deserves protection because women might not be financially independent. Domestic violence act does not take care of such relationships which may call for an amendment of the definition of section 2(f) of the domestic violence act,2005 which is restrictive and exhaustive. The court asked to bring in proper amendments to the protection of women from domestic violence act or provide a suitable legislation so that women and children born out of such relationship are to be protected.
Kinds of relationships the apex court identified in this case:
1. Domestic relationship between an adult male and adult female, both unmarried. It is the most uncomplicated relationship.
2. Domestic relationship between a married man and an adult unmarried woman entered knowingly.
3. Domestic relationship between an adult unmarried man and a married woman entered knowingly. This one can lead to a conviction under Indian penal code for the crime of adultery.
4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly.
5. Domestic relationship between same sex partners (gay or lesbian).
In a landmark judgment by the bench consisting of Jjustice M.Y. Eqbal and Justice Amitava Roy, the supreme court decided out that the couples living in relationship will be presumed legally married in the case of Dhannubal v. Ganeshram[5]. The court also added that women in the relationship would be eligible to inherit the property after the death of a partner. Since 2010, the supreme court has ruled in favour of women declaring that women should get the rights as that of a wife in case of live- in couples.
In November 2000 the Malimath Committee that is the committee on reforms of criminal justice system was set up. In November 2003, when the Malimath committee submitted its report, it made several recommendations under the head “offences against women” in the case of Justice v. Malimath committee report[6]. In the absence of any remedy available to women engaged in a relationship, courts have extended the scope of application available under criminal procedure code, Malimath Committee Report and the 8th Law Commission in June 2008 inclusion of women in live in relationship within the purview of the section 125 of CrPC accords a legal right to maintenance to wives[7]. Supreme court accepted this principle in Abhijit Bhikaseth Auti v State of Maharashtra & Others[8], the Malimath Committee and the Law Commission of India also suggested that if a women have been in a live in relationship considerably for a long time, she owed to enjoy the legal status as given to wife. However, recently observed that the divorced wife is treated as the wife in the context of section 125 of CrPC but the live in partners cannot get divorced and hence cannot claim maintenance under section 125 of CrPC.
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha[9], one of its recommendations was to amend Section 125 CrPC so as to alter the meaning of “wife”. Owing to this alteration, a revision was made and now the expression “wife” incorporates the ladies who were previously in a live-in relationship and now her accomplice has abandoned her at his will so a lady in live-in relationship can now get the status of a wife. Basically, it expresses that if a female has been in a live-in relationship for a sensible period of time, she ought to have the legitimate privileges as that a of a spouse and can claim maintenance under Section 125 CrPC. Where partners live together as husband and wife, a presumption would arise in favour of wedlock.
The court may presume the existence of any fact which it thinks likely to have happened, regard being given to the common course of natural events, human conduct and public and private business, in a relation as to the facts of the particular case. Therefore, where a man and a lady live respectively for a long spell of time as a couple then there would be an assumption of marriage.[10]
In case of, S.P.S Balasubramanyam v. Suruttayan[11], the Supreme Court held that if a man and woman cohabitating under the same roof for a number of years, there will be a presumption of marriage under Section 114 of the Indian Evidence Act and the children born to then will be legitimate. The Court has formed a presumption of marriage on the basis of Section 114 of the Evidence Act; the said section signifies the person upon whom the burden of proof regarding the sustainability of a fact that is being asserted is to be drawn. So, if the verdict of the court is to be accepted, if there is a long-term cohabitation between a man and a woman they will be presumed to be in a a marital relationship. The conclusion drawn here is rather be in a marital relationship. The conclusion drawn here is rather absurd; to uphold a presumption of marriages in an arrangement which was in the first place made to avoid the presence of marital rights and duties is rather flawed.
Present Scenario
Dealing with family
In India for years, parents prefer to live in denial families cringe in the idea of live- in relationship because it hints at sex for pleasure instead for procreation which marriage implies. They see marriage as commitment while live in relationship where both the couples have no responsibility towards each other…………………
Looking for that room on the roof
Live in couple is confronted with their first pragmatic hiccup when they set out to find a house to live in. the first question the broker or the landlord would ask you, “single or family?” most couple end up lying to the landlords. In posh areas people may accept you as live in partners.
Staying in hotels
Some of the hotel websites mention that they entertain “married couples only”. It is the best to call in advance and say that you would be checking in with your partner so that you do not end up having in the unpleasant argument at the last moment. The benefit of staying honest about your liv-in relationship is that nobody will get a chance to make you uncomfortable by probing or try to “report to parents”.
Official documents
In having joint accounts, visa, insurance and possibly in visitation rights to a hospital it could be tough if the couple is not legally married.
More than just rebellion
Live-ins are not the new phenomenon in India. Apart from its going on in hushed or open ways in cities, it has been the standard norms in many of our tribes, some of which believe that the contemporary marriage system brings with it “several impositions, specially on women”. In fact it was to secure to the rights of tribal women in live-in relationship that the Madhya Pradesh State Women Commission had recommended that such union be accorded legal status. That more and more are opting for it due it their own respective reasons is attested by the fact that the internet has extended its match making services to include finding living partners. In the year 2011, an NGO in Ahmedabad organized a first of its kind event to help single senior citizens find companion. So clearly living together goes much beyond the simplistic notion of “the rebellion of youth”.
Judicial pronouncement
The fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means one is free to live the way one wants. Live-in relationship may be immoral in the eyes of conservative Indian society but it is not “illegal” in the eyes of law. Indian judiciary is neither expressively encouraging nor prohibiting such kind of live in relationship in India. The judiciary only rendering justice in accordance with the law in the particular case. The main concern of judiciary is to prevent the miscarriage of justice. The judiciary in deciding the cases keeps in the mind the social mores and constitutional value[12].
The earliest case in which the Supreme court of India recognized the live-in relationship as a valid marriage was that of Badri Prasad v. Deputy Director of Consolidation, in which the court gave legal validity to the fifty years live-in relationship of a couple[13]. In the case of Honourable Justice A.K Ganguly in Revanasiddappa v. Mallikarjun[14]states with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. PayalKatara v. Surerintendent, Mariniketanand others[15],in this case it held that live-in relationship is not illegal. The court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.
The intention of Indian judiciary is to render justice to the partners of live-in relationships who, were earlier not protected by any statue when subjected to any abuse any arising out of such relationships. Again in the case of Patel and Others[16], the Supreme Court has held that live in relationship between two adults without marriage cannot be constructed as an offence. In Lata Singh v. State of UP & Anr. the Apex Court held that live-in relationship was permissible only between unmarried persons of heterogeneous sex. If a spouse is married, the man could be guilty of adultery punishable under section 497 of the IPC.
Since the husband survives, Rangammal cannot invoke presumption of live-in. the children became illegitimate and disqualified to inherit under Section 16 pf the Hindu Marriage Act, 1955. So live in relationship could be ‘dangerous thing’ between a wife and a non-husband as it could lead to an offense of adultery, but not to ‘marriage’.
Since from the time of Privy Council, a presumption for couples living together without getting legally married had begun. This fact can be seen in Andrahennedige Dinohamy v. Witjetunge Liyanapatabendige Blahamy, [17]here the Privy Council took a stand that, “where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage[18]”.this same view was also taken in Mohabbat Ali Khan v. Md. Ibrahim Khan[19]the court held the marriage to be legitimate as both the partners have lived together as spouse.
It further held that there is no law which postulates that live-in relationship are illegal. In the case of Koppisetti Subbharao Subhramanion v. State of Andra Pradesh[20], the supreme court held that the nomenclature “dowry” has no magical charm. It refers to a demand of money in relation to a marital relationship. The court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him in a step ahead in protecting the woman from harassment for dowry in a live-in relationship. The Allahabad High court again recognized the concept of live-in relationship in Payal Sharma v. Nari Niketan[21], where in the bench consist of justice M. Katju and justice R.B. Mishra observed that a man and a woman even without getting married, can live together as they wish to. This may be regarded as immoral by society but this not illegal. There is a difference between law and morality[22]. Thereafter, Ram Dev food products ltd v. Arvind Bhai Ram Bhai Patel[23], the court that the two people who are in live-in relationship without a formal marriage are not criminal offenders. This judgement ten was made applicable to various other cases. In Madan Mohan Singh v. Rajnikant[24], the court held that the live-in relationship is continued for a long time cannot be termed aa “walk in and walk out relationship” and there is presumption of marriage between the parties. By this approach by the court. It can be clearly inferred that the court is in favour of treating long-term living relationship as marriage rather then giving making it a new concept like live-in relationship.
In the landmark case of S.Khushboo v. Kanniammal and Others[25], the south Indian actress Khushboo has endorsed liv-in relationship, 22 criminal appeals were filed against S.Khushboo which the supreme court quashed. It was held that the live-in relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The court further held that live-in relationship are permissible and the act of two major living together cannot be considered illegal or unlawful. While the year 2010 no. of judgements relate to live in relationship, which include clear declaration by the Supreme Court that a live- in relationship is legal and grant of maintenance to women in live-in relationship.in the later of 2010, the Delhi High Court decided Alok Kumar v. State[26], it was held that live-in relationship is walk in and walk out relationship and no stings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live-in relationship, the partners cannot complain of infidelity or immorality.
The Court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of Constitution of India which sets out the obligation of the state to give the children adequate opportunities so that they develop in proper manner and further save guard their interest. In another case Bharatha Matha v. R.Vijaya Rengananthan[27], the Supreme court held that a children born out of a live-in relationship may allowed to inherit the property of the parents. And therefore, be given legitimacy in the eyes of law. We have seen that Indian Judiciary in the absence of specific legislation have been protecting the rights of the children by giving aw a broader interpretation so that no child is “bastardized” for having no fault of his/her own.
Point of view
People may live together for a no. of reasons. Cohabitants can live together in order to save money, because of convenience of living with another or a need to find housing. There is nothing wrong in live in relationship when boy and girl are comfortable with each other. It is the sense if respect, case and trust that one need in any relationship. It gives time to understand in real situation and further partner can decide to marriage or not, for all those who are talking about culture, they should understand it is 21st century and the scenario has been changed in India. People should change their mentality. If person is eligible or mature then each one has its own rights to choose his or her life partner and after sometime when both partners each other they turned up their live-in relation to married life. Now the youngsters are very well aware about these relationships so there is no issue if they decide to live with their partners. It will help them to face the financial problems. There is no harm in live-in relationship as the couple use their brain and clear terms and conditions between them.
It gives time to both the partners to know each other before actual legal commitment. Most of the partners opt for live-in relationship because it keeps the option of partying ways without undergoing the hassle of divorce, which may be compounded by a costly settlement obligation. They don’t want to face financial hardship if a marriage were to end in divorce. It keeps open the option of knowing each other before bigger commitment of marriage. Lower individual facing financial uncertainty may delay or avoid marriage, not only because of the difficulty of paying for a wedding. It is the way of trying out marriage to test compatibility with their partners, while still having the option of ending the relationship without legal implications.
In comparison cohabitation is common pattern among people in the western world more than two third of the married couple in the US say that they live together before they getting married. It should be legalized in India, but government should apply to some age limit it is really hard to digest in Indian culture now the youth have become more conscious. Girls are equal to boys. They all have knowledge about world.
CONCLUSION
In India, where the position of live – in relationship is not clear yet because India has still not received the consent of the majority of people. They are still considered to a taboo to the Indian society. The majority of people considered it as immoral and improper relationship. Live – in relationships has always been the focus of debates as it possess threats to a basic social framework. It is not considered as offence because there is no law to prohibits such kind of relationship. Indian judiciary has taken many steps, brought interpretations and made such arrangements valid against the protection of women interest who are in live in, and children those who born out of such relationship. As of now, there is no legislation that specifically provides matters related to succession, maintenance, guardianship in regards to live in relationship. It has recognized live in relationships through various judgments.
So that they can get protected from abuse. It is the duty to ensure that law has to accommodate with the changing scenario of the society. Indian courts through various judgments attempted to get a clear picture regarding such relationship, yet it remains unclear on various aspects. There is an urgent need of having different sets of rules and regulations. Also, there must be a need of separate statue dealing with the rights of such living partners, children born out of such relationship to be protected. Not all living relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time there should be awareness among live in partners regarding the legal consequences arising out of such living arrangement.
Endnotes
[1] Section 2(f) of Domestic Violence Act,2005
[2] Indian Bar Review Vol. 46 (2) 2019
[3](2008) 4 SCC 520, AIR 2008 SC 1193
[4] 2013 15 SCC 755
[5](2015) 12 SSC 301
[6] ASA 20/025/2003
[7] Bhavna Sharma, ”Hindu Marriage; sacrament to live in relationship, civil and military Law Journal, Volume 47. January- March 2011”
[8] (2009) Cr. LJ 8899.
[9] (2011) 1 SCC 141
[10] Section 114 of the Evidence Act, 1872.
[11] 1994 AIR 133, 1994 SCC (1) 460
[12] Volume 02, no. 06, June 2016 (International Journal)
[13] AIR 1978 SC 1557
[14](2011) 11 SCC 1: (2011) 2 UJ 1342
[15](2001) 3 AWC 1778
[16] 2006 (8) SCC 726
[17](1927) SCC Online PC 51 AIR 1927 PC 185
[18]Id, 187
[19]1929 SCC Online PC 21 AIR 1929 PC 135
[20](2009) 12 SCC 331
[21] (2001) SCC Online ALL 332
[22]Ibid
[23](2006) 8 SCC 726
[24](2010) 9 SCC 209
[25](2010) 5 SCC 600
[26](2010) SCC Online Del 2645
[27](2010) 11 SCC 483: AIR 2010 SC 2685
Author Details: Shakshi Agarwal and Shrankhla Agarwal (2nd year student at Banasthali Vidyapith)
The views of the author are personal only.
