Presumption of Marriage Due to Cohabitation

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Introduction

Live-in relationship is an association where two people cohabit outside marriage. The concept is already accepted and legalised in many countries around the world. As per the Apex Court, for a man and a woman in love to live together is part of the right to life; therefore, a live-in relationship is no longer an offence.

The Malimath Committee in 2003 paved the way for providing landmark recommendations. It is pertinent to mention that primarily it shed light on the term ‘wife’ and consider a woman in a live-in relationship alike wife.

Thereafter, the Protection of Women from Domestic Violence Act (PWDVA) 2005, which is regarded as the first piece of legislation to provide legal recognition to relations outside marriage, by covering it under the ambit of relations ‘in the nature of marriage’.

Many attempts have been made to bring it in the purview of some laws like domestic violence, maintenance, property, the legal status of a child, in order to regulate the dynamics of this new social order. Still, on moral and societal grounds it is always debatable and is yet a taboo in India.

Marriage in the Indian culture has been considered as a holy bond since the Vedic times. The idea of marriage has consistently advanced with time. With the continual development in society and human psychology, the concept of marriage and relationship has likewise advanced.

The present generation is more generous and liberal about the idea and concept of cohabitation. Though it seems like a quiet, comfortable and relaxed companionship and without any legal obligation towards each other, on the contrary, it also has many complications, responsibilities and legal liabilities.

Marriage and Cohabitation

In ancient times people believed that marriage as a sacramental union implies that it is sacrosanct. Hindus conceived of their marriage as a union primarily meant for the performance of religious and spiritual duties. Such marriage cannot take place without the performance of sacred rites and ceremonies.

Secondly a sacramental union implies that it is permanent union. Marriage is a tie which cannot be untied. Thirdly the sacramental union means that it is an eternal union.

We can find the following passage in the Manu smriti: “I hold your hand for saubhagya that you may grow old with your husband, you are given to me by the just, the creator, the wise and by the learned people.”

Manu enjoins on the wife that she should follow the same principles as her husband. The wife is also ardhangani (half of man). In ancient times the consent of the parties didn’t occupy better place only the opinions of the family heads were considered and marriage would be valid only if it has been done by following all the rituals according to their communities, caste, religion, place of birth.

In modern times presumption of marriage is also done due to the cohabitation. The notion of the marriage has advanced with time. Couples with their consent living together under one roof and acting as husband and wife in the society are presumed to be married couples under law.

A live-in relationship has yet not been socially accepted in India, unlike the other western countries nevertheless, with steady societal advancement and far-reaching complexity of marriage, people are opting for an alternative institution like live-in relation to form a lasting conjugal relationship, which is like marriage but out of marriage.

The apex court in its various judgements has stated that if a man and a woman living like a husband and a wife in a long-term relationship and even have children, the judiciary will presume that the two were married and same laws would be applicable to them and their relationship.

The concept of the live-in relationship was recognized in Paya Sharma v. Nari Niketan by the Allahabad high court, where the court opined that “A man and woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.

Afterwards, in Khushboo v. Kanniammal and others case, the Apex court observed that live in relationship between two adults without formally getting married cannot be constructed as an offence. Supreme court in this case issued some guidelines to recognize live-in relationship:

  1. The couple must hold themselves out to society as being similar to spouses.
  2. They must be of legal age to marry.
  3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.
  4. They must have voluntarily cohabited and held themselves out to the world as being similar to spouses for a significant period of time.

NOTE:  If a man has a night out with a woman and engages in sexual activities or lives with someone for some days on vacation, it does not qualify for a domestic relationship. Also, if a man has a ‘keep/mistress/rakhail whom he supports financially and has her only for sexual purposes (or as a servant or both), then such a relationship is not marriage in Supreme Court’s opinion.

Article 21 of the Constitution of India guarantees right to life and personal liberty as a fundamental right. In Ramdev Food Products (P) Ltd. v. Arvind Bhai Ram bhai Patel, the Court observed that two people who are in a live-in relationship without a formal marriage are not criminal offenders. Therefore, live-in relationships are legal in India.

Protection of Women From Domestic Violence Act, 2005

The Protection of Women from Domestic violence Act (hereinafter PWDVA) 2005 was perhaps the first legislature which has acknowledged live-in relationships by giving rights and protection to those females who are not lawfully married, nonetheless, they are living with a male under the same roof in a relationship, which is like marriage but not marriage, furthermore similar to wife, though not equivalent to wife.

Section 2(f) of the Domestic Violence Act, 2005 defines domestic relationship as 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.

Live-in relationship is not categorically defined in the Act but left to the courts for interpretation. The Court interprets the expression ‘relationship in the nature of marriage’ by virtue of the aforementioned provision.

Presently, the provisions of PWDVA validate the individuals who are in live-in relationships and provides some fundamental rights to women to protect themselves from the abuse of fraudulent marriage, bigamous relationships and so on.

Vital factors to consider cohabitation is legal

A relationship ‘like marriage’ under the 2005 Act must consent to some essential criteria which were stated by the Supreme Court in D. Patchaiammal v. D. Velusamy and Indra Sarma v. V.K.V. Sarma case. Women in such relationships need to fulfil specific criteria to be benefited under PWDA, such as:

  • Duration of period of relationship.
  • Age
  • Shared household- Defined in Section 2(s) of the DV Act
  • Having/planning children- A very strong indicator
  • Pooling of Resources and Financial Arrangements Supporting each other, or any one of them
  • Sexual relationship- Not just for pleasure but for an emotional and intimate relationship
  • Socialization in public- Holding out to the public and socializing with friends and families.
  • Intention and conduct of the parties- Common intention of the parties as to what their relationship is to be
  • Domestic arrangements entrusting the responsibility- Women to run home and do household chores.

Legal Status and property rights of Children Born Out of Live-in Relationship

Legal status:

The Supreme Court in Tulsa v. Durghatiya held that a child born out of such a relationship would no longer be considered as an illegitimate child. The noteworthy prerequisite for the same is that the parents must have lived under the same roof and cohabited for a significant period which proves their sincerity towards the relationship.

S.P.S. Balasubramanyam v. Suruttayan was the first case which approves the legitimacy of children born out of a live-in relationship. The Supreme Court held that “if a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.”

Property Rights:

The Supreme Court in Revan Siddappa v. Mallikarjun approved the inheritance to the four children born out of the live-in relationship by considering them as ‘legal heirs’. Therefore, the Court has guaranteed that no child may be denied their inheritance who are born out of a live-in relationship of a significant period of time.

In Bharatha Matha v. R. Vijaya Ranganathan, case also the Supreme Court provided legitimacy to a child born out of a live-in relationship in the eyes of the law and held that he might be allowed to inherit the property of the parents.

The Supreme Court held that a child born out of parents in a live-in might be allowed to inherit the property of the parents if any, but does not have any claim upon Hindu ancestral coparcenary property.

Maintenance:

The Malimath Committee, i.e., the Reforms of Criminal Justice System was set up in November 2000, it submitted the report in 2003 after making several recommendations for ‘Offences against women’. One of the significant recommendations proposed was, to amend Section 125 of the Criminal Procedure Code (hereinafter CrPC) which is related to the maintenance rights of the ‘neglected and dependent wife, children and parents’.

The committee also pursued to extend the definition of ‘wife’ mentioned under Section 125 of CrPC to include a woman who was living with the man similar to wife under the same roof for a reasonably long period.

However, the aforesaid criteria are necessary for any women who want to take benefit of PWDVA, which consist; right age, mutual and independent consent, a significant period and social status.

The objectionable conditions are if they are living for the period of a week, a month, a couple of months, one-night stand many relationships at a time, only for the sexual desire which does not show sincerity in the relationship.

In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha, the Supreme Court turned down the judgment of the High Court which declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC and awarded maintenance to the wife (appellant) pronouncing that provisions of section 125 CrPC must be considered in the light of Section 26 of the PWDVA, 2005.

The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.

Similarly, in Abhijit Bhikaseth Auti v. State of Maharashtra and Others, the Supreme Court observed that a woman in a live-in relationship might also claim maintenance under Section125 CrPC, it is not necessary to strictly establish the marriage to claim maintenance under section 125 of CrPC.

Issues and challenges of live-in relationship

Although, the live-in relationship has been legalised and many judgements are in favour of it, yet even now there are many issues which need a pivotal discourse. Some of the most complexed grey areas that still need to be addressed amicably are discussed below:

Societal and moral acceptance:

Though a live-in relationship is legalised, it is still a taboo in Indian society and is considered as morally and ethically wrong. Indian society is sceptical about live-in relationship; therefore, couples usually face numerous problems like rejection from family, a problem in getting home for rent, refusal by the society, negativity at the workplace and so on.

Official documents:

In India, for all official documents, there is still no column for a live-in relationship. The couple face problems in having joint accounts, nominees name, insurance, visas and so on

Cultural issues:

India is known for its diverse culture and religion. The impact of globalisation on human relations in our country has been unprecedented. The formally dominant family ties and values are witnessing uncontrolled changes.

Every religion has its perspective towards a live-in relationship. Anti-religion marriage is still a complicated issue and is only allowed under the Special Marriage Act,1955. Live-in relationship is a step ahead, and Hinduism and Islam do not accept the concept, although Christianity somehow accepts it.

In India; beliefs, customs, usages and culture have a significant impact on people’s mindset. Subsequently, acceptance of new norms depends upon the prominence of their belief rather than any law. The emphasis must be given to address the complications of antireligion live-in relationship, which is still a sensitive issue.

LGBT couple:

Commonly, society is indifferent towards providing benefits to the LGBT community and unwilling to accept their relationship. Even, in many laws and judgments of live-in relationship provision or discussion about for LGBT couple is lacking.

No matter the Supreme Court has decriminalised consensual same sex intercourse by scraping Section 377 of the Indian Penal Code, yet, India does not recognise same-sex marriage and livein relationship. Despite such liberal interpretation by the honourable Courts in the recent past, there is still lack of any marital law for the LGBT community in the Indian framework.

Gender biased:

PWDVA 2005, approves woman as a wife who is living with a man for a significant of time akin wife and many provisions are also in her favour, like, maintenance and property. Unfortunately, it does not provide any provision for men and LGBT couple.

It is observed that many times men are charged with sexual abuse and taking advantage of a woman by making a false promise of marriage. It might be contradictory; in that case, there is no strengthen provision in favour of men. Similarly, there is no provision for sexual abuse of a same-sex partner. These are some sensitive issues which need to be adequately flagged by codifying separate law on a live-in relationship.

Conclusion

It is being truly said that the only thing which is constant in this world is indeed change. Society evolves from time to time with their living patterns, expectation, life style etc.

I still remember what my grandparents used to tell me about the marriage of lord Ram and Sita and the concept of swayamvaram in which the father of Goddess Sita invites all men in the country and test their physical strength, of course there was no matter or importance’s given to the subject of consent.

Even if we look at the marriages of moderate times, marriages would happen only by the choice of family’s head and their opinions, concept of consent was always ignored. In the present times due to globalisation and many other factors consent plays the crucial role not only before sex but also before marriage.

Live-in relationships concept has been evolved in the society and its impossible just to follow the same rituals customs and practises which are coming from the ancient times because the mindset of the people in the different generations varies.

By the above-mentioned decisions of courts, we can say that living relationship is legal and not an offence because it is nowhere prohibited in any laws of the land. Therefore, we can say that couples by following the vital factors which were provided by the court of law can be presumed as married couples due to cohabitation.

In the authors view, there must be separate legislation should be made which deals only about the concept of living relations. Though according to the society living relationship is immoral and not accepted but no matter what there are always advantages and disadvantages whether it might be the concept of marriage or cohabitation.

References

  1. https://www.writinglaw.com/live-in-relationship-in-india/ – :~:text=Supreme%20Court%20Guidelines%20to%20Recognise%20Live%2DIn%20Relationship,Supreme%20Court%20in&text=They%20must%20be%20of%20legal,a%20significant%20period%20o f%20time.
  2. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary
  3. PARAS DIWAN, MODERN HINDU LAW (pg. no:65, 25thed 2021)

This article has been submitted by Seguri Akash.


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