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This article was written by Bhavangi Agarwal, a student of IMS Unison University.
“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”
–Hon’ble Justice A.K Ganguly and G.S. Singhvi in Revanasiddappa and others V. Mallikarjun and Others
Law takes its own time to articulate such social changes through a process of amendment. That is the reason in a changing society law can’t remain static. If one looks at the historical background of Hindu law, it will be clear that the law was never static and has changed from time to time to address the difficulties of changing social pattern in different time.
India is a country which is gradually opening its doors for western thoughts and lifestyles and one of the most vital scenes amongst it, is the concept of live in relationships. The expression live-in relationship in its ordinary sense mean that two people living together without intending to establish any kind of permanent relationship between them. Live-in relationship is a relationship with an informal arrangement between two heterosexual people to live together without entering into the formal institutions likes marriage.
The legal definition of live-in relationship is “a course of action of living under which the un-marriedcouples live together to lead a long term relationship similarly as in marriage”. Now-a-days this is being taken as a substitute to marriage particularly in the metropolitan cities. Due to modernization and city culture, we observe that this kind of relationships is practiced in many parts of the country.
The main issue that concern everyone who is interested in the progress of the society are-
- Whether the Indian Society is prepared to accept such new kind of relationship?
- What are the outcomes of accepting or rejecting of such kind of relations on the coherence and development of the Indian society?
- Should the law be made in India to regulate live-in relationship?
- What are the repercussions of legalization of live-in relationship on married partners?
- What shall be the role of Judiciary in the area of emerging live-in relationships?
The pattern of the Judicial System is so far not consistent with regard to recognition of such relationships. But in so far as the protection of the claims of women in such relation is concerned, the Indian Judiciary is firm in its stand to render justice to the vulnerable section of the society.
CONCEPT OF LIVE-IN RELATIONSHIP
Live-in relationship is defined as an arrangement of living under which the couples who are un-married live together to conduct a long going relationship similarly as in marriage. The main idea of cohabitating or conducting a live-in relationship is that the interested couple wanted to test their compatibility for each other before going for some commitment.
Live-in relationship is a de-facto union in which couple share common bed room without solemnizing marriage. It is non-marital relationship prevailing in west with different names like common law marriage, informal marriage, deemed marriage, etc. it is a form of interpersonal status which is legally recognized in some jurisdiction as a marriage even though no legally recognized marriage ceremony is performed.
LAW RELATING TO LIVE-IN RELATIONSHIP
There is no specific enactment for live-in relationship. Neither any personal law nor the Criminal Procedure Code recognizes live-in relationship. On the other hand, the protection of Women from Domestic Violence Act, 2005 provides the protection to women claiming to be an aggrieved party from the relationship in nature of marriage.
The Domestic Violence Act, 2005 was the first legal Act to recognize the existence of non-marital adult heterosexual relationship. This act defines an “aggrieved person” as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Further, the Act 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.
Also, the Malimath committee and the Law Commission of India state that if a woman has been in a live-in relationship for a reasonable period, she should enjoy all the legal rights of the wife. The Committee, additionally, recommended that the word ‘wife’ under Criminal Procedure Code be amended to include any woman living with a man like his wife.
JUDICIAL TREATEMENT OF LIVE-IN RELATIONSHIP
Law and society are not alien to each other; they are the two faces of the same coin. One needs the other. Changes in the society demand that law should move with the time. When this concept is rooted in Indian society then, it urges for its meaning in the eyes of law. Hence, various High Courts and the Hon’ble Supreme Court in a number of decisions tried to explain the concept of live-in relationship.
The Privy Council in A. Dinohamy V. W.L.Balahamy, laid down the principle that “where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be proved, that they were living together in consequence of a valid marriage and not in a state of concubine”.
Furthermore, the Supreme Court granted legality and validity to a marriage in which the couple cohabitated together for a period of 50 years. The Supreme Court held that in such a case marriage is presumed due to a long cohabitation. The same principle was reiterated in the case of Mohabat Ali V. Mohammad Ibrahim Khan, ‘live-in relationship’ is an extra legal concept which already secured its stand in society and it is initiated in law by way of various ruling passed by the superior courts.
In Payal Sharma V. Superintendent Nari Niketan and others, Justice M. Katju and R.B Mishra stated, “in our opinion a man and woman even without getting married can live together if the wish to. This may be regarded as immoral by the society but not illegal. There is a difference between law and morality”.
The Delhi High Court, in a case of Alok Kumar V. State observed that live-in relationship is a walk in and walk out relationship. Justice S.N. Dhingra noted, “There are no legal strings attached to this relationship nor does this relationship create any legal bond between the partners”. The court further added, “People who choose to have live-in relationship complainof infidelity or immorality as live-in relationship are also known to have been between a married man and unmarried woman and vice versa”.
In the case of Khushboo V. Kanniammal, the Supreme Court gave its landmark judgement and held that there was no law which prohibits live-in relationship or pre-marital sex. The court further stated that live-in relationship is permissible only in un-married major persons of heterogeneous sex.
In 2013, the Supreme Court in Indira Sharma V. V.K. V Sharma declared that live-in relationship is neither a crime nor a sin though socially unacceptable in India. In this landmark judgement, a bench headed by Justice K.S Radhakrishnan framed guidelines to take along the live-in relationship within the expression ‘relationship like marriage’ for the Protection of Women from Domestic violence Act, 2005.
The Bench said ‘Parliament has to ponder over these issues bring in proper legislation or make a proper amendment of the Act, so that women and children born out of the live-in relationship should be protected though thosetypes of relationships might not be a relationship, in the nature of marriages’.
LIVE-IN RELATIONSHIP CHALLENGE TO SOCIETY
We trapped tendency of live-in relationship from the west but still our strong social norms do not allow us to follow this move smoothly. A fragment of our society especially some orthodox groups continuously oppose living together without marriage. Live-in relationship has always been the focus of debates as it is challenging our fundamental societal system. To encourage marriage, Government has reserved many rights for the married people. Although live-in relationship is not considered as an offence but there is no law until the date that prohibits this kind of relationship. Courts often refused to make any kind of obligatory agreements between these un-married couples as this could go against the public policy.
We are bounded by numerous traditional norms; however, our social assumption is somehow changing now. A judgment of Supreme Court depicts this. In D Patchaiammal v/s. D Velusamy Supreme Court ruled out that if a man and woman are having a live in relationship for an extensive period, they will be taken as a married couple in the society. Moreover, the child born out of this relation would be called legitimate. Some recent changes in law also promise protection to the woman involved in live in relationship. But this doesn’t mean that court is encouraging such a kind of relationships. This judgment is in favour of a woman not the live in relationship. Law never prescribes how one should live, in fact, our culture; ethics, teaches us the way we should live.
It should not be denied that our culture does need a legislature to regulate relationships which are likely to grow in number with changes in the ideology of people. The right time has come that efforts should be made to enact a law having clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships.
There is an urgent need to recognize such relationship through legislation which would empower both the parties with rights and create obligations with duties thereby confining the ambit of such relationship. Therefore the law so enacted on live in relationship should keep in mind the basic structure of tradition that prevails in the Indian society.
Live in relationships should be granted legal status after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as available to a married couple and their legitimate offspring, also securing their rights after the dissolution of such relationship due to break up or death of one of the partner.
The need of the present hour is not to try bringing live-in relationships under the ambit of any existing law, but to enact a new different law which would look into the matter of live-in separately and would grant rights and obligations on the part of the couples thereby reducing the cases of misuse of existing laws and also to reduce cases of atrocities faced by the female partners under such relationships.
On 31st March, 2011 Arising out of Special leave Petition © No. 2639/09, Para27
Revanasiddappa and others V. Mallikarjun and Others
AIR 1927 PC 185
AIR 1929. PC 135
2001 (3) AWC 1778 : AIR 2001 All 254
Judgment delivered on: 9th October, 2015: CRL.M.C. No.4181 /2015
CRIMINAL APPEAL NO. 913 of 2010:[Arising out of SLP (Crl.) No. 4010 of 2008]
CRIMINAL APPEAL NO. 2009 OF 2013: (SPECIAL LEAVE PETITION (CRL.) NO.4895 OF 2012)
CRIMINAL APPEAL NO. 2028-2029 OF 2010: [Arising out of SLP (Crl.) No. 2273-2274/ 2010]