“A BOND BY HEART OR BY KNOT” A COMPARATIVE ANALYSIS ON MARRIAGE AND LIVE IN RELATIONSHIP

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This article was written by Saloni Sharma, a student of ICFAI Law School.

PURPOSE-To study and analyze live in relationship and marriage as concepts and differences between them.

METHODOLOGY-The research methodology used for the present research article is traditional doctrine research method .as most of the text is available by referring articles, journals, books, websites etc.

FINDINGS– live in relationship meaning and its interpretation of it in India and in other countries. Conceptual understanding about marriage and its explanation of concept with the help of case laws.

PRACTICAL APPLICATION-The results of this study would check the applicability of live in relationships and how Indian judiciary is working on it for the betterment of the society at large.

VALUE-The study is probably first time conducted in systematic manner to check the legal provisions relating to live in relationship in India and developing countries like India.

KEY WORDS -Live in relationship, marriage.

PAPER TYPE– Doctrinal research paper.

 INTRODUCTION

In Indian society, marriage is still considered as sacramental and eternal union. But with changing times, Indian society is slowly opening its doors for western concern and life styles and one of the most crucial episodes amongst it is the concept of live in relationship. Live in relationship form a characteristics feature and style of living of couples, especially those in metropolitan areas. With each passing day number of unmarried couples living together is scaling high. Co habitation or live in relationship in India is though not illegal but it is considered as socially or morally improper,

                         ‘With changing social norms of legitimacy in every society,

                Including ours, what was illegitimate in the past may be legitimate today’

Now the question arises is what is live in relationship?

The legal definition of live in relationship is “an arrangement of living under which couples are unmarried live together to conduct a long going relationship similarly as in marriage”. Many people imagine that living together before marriage resembles taking a car for a test drive. However, the definition and ambit of live in relationship is very unclear. There is no specific legislation in India on this subject, in the laws in the form of court verdict is varies form case to case

But the concept of live in relationship is not new in our society. The only difference is that people have become open about it. Formally they were known as “maitray karars” in which people of two opposite sex would enter into a little agreement to be friends, live together and to look after each other.

WHY LIVE IN?

This is the general question which can strike at anybody mine that why couples who are in love with each other are leaning towards the live in relationship. A change is visible in our society form arrange marriages to love marriages and now to live in relationships. If analysis is made of need of such relationships, avoiding responsibility would emerge as the prime reason. The lack of commitment, the disrespect of social bones and lack of tolerance in relationships have given rise to alternative to marriages.

LEGAL STATUS OF LIVE IN RELATIONSHIPS

Though at global level as well, law are not very clear on live in relationship, showing a common theme of aloofness and hesitation amongst countries to recognise such relationships. Nevertheless, as far as Indian scenario is concerned, there is a dire need to recognise such relationships in form of new legislation that will clearly dictate the ambit of live in relationship and rights an obligation of partner in such relationship.

PROVISIONS WITH REGARD TO LIVE IN RELATIONSHIP OUTSIDE INDIA

Live in relationship in various countries are either recognise as it exist of its finding recognition via employed provision of different status that protect property right, housing right. Many countries provide for living relationship contracts in which partners can recognise their legal rights

The law introduce in 1999 in France, makes provision for “civil salutatory pacts” allowing couples to enter into union and be entitled to same rights as married couples in such areas as income tax, inheritance, housing and social welfare. Article 147 of the family cord Philippines provides that when a man and a woman were allowed to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wedges and salaries shall be owned by them in equal shares of property acquired by both of them.

In UK, live in couples does not enjoy legal sanction and status granted to married couples. There are no obligations on the partners to maintain each other. Partners do not have inheritance right over each other’s property unless named in their partners will.

The live in relation were concerned legal sanctity. In Scotland in year 2006 by family law. Scotland act “Scotland”. Law in the US as well do not provide the live in relationship couple with the rights enjoyed by the married couples. But such couples can enter into co habitation arrangements containing stipulation with regards to their rights and liabilities.

But the law of Canada, Australia, Ireland and china recognise live in relationship.

IN INDIA

At present, in India no law deals with the concept of live in relationship. But even in the absence of specific legislation on the subject, it is praise worthy that are courts take an initiative and give certain recognition to such relationships. In earlier cases the court tended to presume marriage based on the number of years of cohabitation.

In the cases prior to independence like a Denohamy vs. W.L. Balahamy[1], the privy council lay down a bird rule postulating 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 clearly proved, that they were living together in consequences of a valid marriage”. The same principle was retarded in the case of Mohabbat Ali vs. Mohabbat Ibrahim khan[2].

Later in patels and other cases, the Supreme Court observe that live in relationship are not illegal. The same preposition was upheld in case of Tulsa vs. Durghatiya[3]. The further sanction to live in relationship was granted by judgement of Supreme Court in 2010 in Khusboo’s case.

However, this position is not all binding. The Delhi high court, in recent case of Alok Kumar vs. state Crl.M.C.[4] observed that live in relationship in a walk in and walk out relationship. Hence, though more or less uniformity has been exuded in positive direction by the court when it comes to live in relationship but law does not have a clear cut picture.

MARRIAGE

Marriage is a very old and well recognised institution amongst almost all religion in the world. But primitive man never had such relationship. He was engaged in the satisfaction of his primary need of hunger and shelter. Sex life was absolutely free. Sex promiscuity was the rule.

Civilisation dawns on man with the accusation of knowledge of cattle, agriculture and industry. Family relationship and sex regulation came to be established. In the beginning, it was group marriage or woman in the tribe belong equally to every man in the tribe like vice versa. Outside tribe relationship is prohibited. When humanity comes into practical stage, marriage is a exclusive union comes to be firmly established. At this stage, monogamy in west and polygamy in east came to be established.

Thus in the era of man’s ascendency to power, the institution of marriage came into existence as an exclusive union. He tried to idealize the institution of marriage with a view to dominating the will and the mind of the woman. In its most idealized form marriage among the Hindus and the Christians came to be considered as a sacrament.

According to the canon law, marriage is a conjugal union of a man and a woman which arises only from the free consent of each spouse, but this freedom relates to the caution whether two person really wish to enter into matrimony, it is entirely independent of from the free will of spouses. Once a contract of marriage is entered into, a marriage is regarded as a sacrament: as a in dissoluble union: only death can put it asunder. In Hyde vs Hyde[5] lord Penzance gave the following definition of marriage (it is treated as the classic definition of Krishna marriage, despite its flaws) “I conceive that marriage as understood in Christendom may be defined as the voluntary union for live of one man and one woman to exclusion of all others”.

But since this definition emphasises the invisibility aspect of marriage, it is not correct under English note. With a view to avoiding this deficiency in the definition, in nachimson vs nachimson[6], the court of appeal appended a gloss by saying that it should be the intension of parties when they enter into marriage that it should last for life. Though later on it may be dissolved on any ground available to the parties including the irretrievable breakdown of marriage.

CONCEPT OF HINDU MARRIAGE

Rig Veda considered marriage as a sacramental union. And it continued to be so entire Hindu period. Even now Hindu marriage is considered to be sacrament. Passages as per Manu Smriti.

Wife is considered as ardhangini (half of man) and man is not complete until he is married.

Taittitiya smhita also considered half is she of the husband that is wife by this mutual fidelity between both are declared as highest dharma.

Shasta’s- husband and wife are referred to, by several names like bhartri, wife is called as jay. Ardhangini, grihini, sachiva, sakhi, grihlakshmi,etc

According to Mahabharata, by cherishing woman, one but virtually worships the goddess of prosperity herself, by affecting her one but afflicts the goddess of prosperity. The wife is a source of dharma artha kama and moksha.according to Ramayana, wife is very soul of her husband.

Thus, Hindus conceived marriage as a sacramental union which implies several things.

1. Marriage between man and woman is of religious or holy character and not contractual union.
2. Sacramental union implies that it is a permanent union. Marriage is a tie which worns tided cannot be untied.
3. Sacramental union not only union of bodies but union of soul.

MARRIAGE AS A CONTRACT

The modern concept of marriage is a contract. The greatest contribution of industrial revolution is the emergence of concept that all human and social relations must be based on free violation of individual. Thus marriage is considered as contract as established in western culture.

For marriage contract parties to the marriage must have capacity and should give concern for marriage .But Hindu marriage is deemed to be sacrament. So consent of parties did not occupy an important place and absence of consent of parties does not render marriage as invalid. Age of bride and bridegroom is also not mentioned in child marriage are very common that days. Hence it is presumed that Hindu marriage is not at all contract but sacrament.

CONCEPT OF MARRIAGE UNDER HINDU MARRIAGE 1955

Hindu marriage act 1955 has reformed Hindu law of marriage. By this classical concept of sacrament has diluted. Section 5, 11 and 12 pertinent provision.

1. Section 5 deals with the condition of marriage that is mental capability, age of bride and bridegroom.

As per the provision of Indian contract act, contract entered by minor and unsound mind is void. Like it was argued that section 5 of Hindu marriage act of 1995 lay that bride and bridegroom shall not be minor and unsound. Hence Hindu marriage is contract.

 But violation of such condition leave one of the parties is unsound till the marriage is valid section 12 it is only ground for annual the marriage is voidable, by the option of parties. If after marriage if parties do not want to avoid the marriage it is absolutely valid even one of the parties is unsound.

Next is the age of the parties to the marriage should be below 18 years if marriage is solemnized still the age is not going to invalidated such marriage, only parents are punishable for solemnisation of child marriage but marriage is valid. The wife can only take her option to repudiate the marriage on this ground by opting after age of puberty, if not opted even then child marriage is valid. Section 12 (1) (c) lays down that in case of concept of either the party at the time of marriage is obtained under fraud, force or coercion is voidable marriage. Under Indian contract act when consent for contract is obtained under fraud, for and coercion is invalid. But commencing to marriage is still option of parties and not giving concept at the time of marriage is not at all invalidating marriage.

Section 13 lays down several grounds for dissolution of marriage like discharge of contract. But every marriage is not going to end with divorce is a permanent union. More over marriage is valid if ceremonies are performed which is totally sacramental form.

Section 9 deals with the restitution of conjugal rights argued as specific performance of contract but it is essence of holy union and concept of “live in together in conjugal society”.

Totally destroyed the concept of sacramental marriage. Even though contractual provisions have been introduced it is now resemblance of both. It has semblance of contract as consent is of some importance and dissolution of marriage. Same time it has a semblance of sacrament as in most marriage a sacramental ceremony is still necessary.

COMPARISION BETWEEN LIVE IN RELATIONSHIP AND MARRIAGE

	Marriage	Live in relationship
Definition	The union of two persons that is formally recognized by law is known as marriage. It is a formal commitment between the couple.	Live in relationship refers to a kind of an arrangement where a couple decides to live together.
Another term	Matrimony or wedlock	Cohabitation
Holds legal rights	Yes	No
Moving apart	Divorce is generally painful as it often comes with false allegations and a lot of trauma is involved.	Generally, it is comparatively easy as move in relationships are not based on any such commitments. However, it still depends upon an individual that how he would react to the situation.
Children	Mostly the children born from a marriage are socially accepted and parents often find happiness to have them in their life	Children born out of a live in relationship may require some commitments and it depends upon the couple that how they  would manage the raising of children.
Compatibility	Sometimes people with no compatibility get married and find later that marriage was a wrong step.	Live in relationships occur to explore the compatibility and in case they find some issues regarding it, they simply step back or move out.
Involvement of families	Generally, marriages are also associated with the union of families rather than the individuals. Even if there is not much involvement of families, but still the marriage is regarded as a serious affair by the parents.	Generally, families do not involve much with the couples as the concept of live in relationship is more about exploring each other.
Financial Affairs	Generally handle together	Generally handle separately
Requirements	It may be different form one state to the other. It generally includes minimum age, witnesses; a ceremony officiated by a clergyperson or an officer of the court.	No such formal requirements.
Freedom	Marriages come with responsibilities and one tends to be answerable to the other. However, sometimes the freedom may also be restricted.	Generally, live in relationships are associated with the freedom, both tend to have their own space as no obligations or responsibilities are involved.

ANALYSIS AND IMACT OF THE STATUS OF LIVE IN RELATIONSHIPS WITH THE STATUS OF MARRIED COUPLES

There is no legal hurdle to prevent a man and a woman cohabiting together without entring into formal marriage in the form of “live-ins”[7]. The traditional Indian society[8] however, disapproved a such living arrangements, for several reasons[9]. Firstly, society revered this institution of marriage. Secondly, if a woman was financially dependent on the man, the instability of such relationship created a subservient status for the woman. Till recently and even now in small town and cities, there is much social criticism and stigma attached to such live in relationships, forcing them to remain largely secretive[10].

MARRIAGE:

The supreme court in Lata Singh vs state of UP[11] held that the live in relationship is permissible only in unmarried persons of homosexual sex of the age of majority. The brothers of lata Singh had alleged that she was mentally unfit when they had protested her marriage. However, this was held to be untrue when she was examined by doctor. In live in relationship if continued for such a long time cannot be turned as a walk in walk out relationship, there has to be a presumption of marriage between them[12]. In Gokal chand vs parvin kumari[13], the court cautioned that the couple would not get legitimacy, if the evidence of them live in together was rebuttable. These decisions only served to recognise marriages which were doubted on the basis of that a long term live in relationship existed. However, the court did not recognise live in relationships as independent of the institution of marriage that is the presumption of marriage was key element.

In S.P.S. Bala Subramanayam vs. Suruttayan[14], the Supreme Court held that if a man and woman are living under the same roof and co habiting for a number of years, there will be a presumption under section 114 of the Indian evidence act that they live as husband and wife and the children born to them will be not illegitimate. This decision suggested that the law treats long live in relationships as good as marriages. The court could subsequently interpret live in relationships to mean “living together as husband and wife” as that is still a matter of doubt and debate.

MAINTENANCE

The supreme court in Yamuna bai anant rao adhav vs anant rao shuvram adhav[15] held that where a man having a live in laugh wedded wife marries another woman, his second wife has no claim to maintenance under section 125 of the court of criminal procedure, 1973[16], even though she might be unaware of his earlier marriage. The Supreme Court held that it would not grant that any rights to the women in such a live in relationship of circumstance. In Malti vs state of UP[17] the Allahabad high court held that a woman living with a man could not be equated as his wife in this case the woman was a cook in the man’s house and she stayed with him and shared an intimate relationship. The court however refuse to extend the meaning of the word “wife” as denoted in section 125 of the court of criminal procedure to include such a live-in partners maintenance claims. In savita ben soma bhai bhatiya vs state of GUJRAT, the supreme court went further to the extent of observing that the fact of respondent was treating the appellant as his wife is really in consequential because it is the intension of the legislature which is relevant and not the attitude of the party even the plee that the appellant was not informed about the respondent earlier marriage, when she married him, is of no avail, because the principle of estoppels cannot be pressed into service to defeat the provisions of section 125 of the court of criminal procedure. Thus as per the present provision of section 125, there is no escape from the conclusion that the expression wife refers only to the legally wedded wife. Hence, the court granted maintenance to the child and not to the second wife. Under the law a second wife, whose marriage is void on account of the survival of the first marriage is not legally wedded wife, and is therefore not entitled to maintenance under this provision.

INHERITANCE

Partners in a live in relationship do not enjoy an automatic right of inheritance to the property of their partner. The Hindu succession act 1956 does not specify succession rights to even a mistress living with the male Hindu. However, the Supreme Court in vidyadhari vs sukhrana bai[18] created a hope for persons living together as husband and wife by providing that those who have been in a living relationship for a reasonably long period of time can receive property in inheritance from a live in partners. In this case, property of a Hindu male, upon his death, was given to a woman with whom he enjoyed a live-in relationship, even though he has a legally wedded wife alive[19].

DIVORCE

Women in live in relationships are not recognised by their husband surname, for any legal or financial matters including opening a bank account, submission of income tax return, applying for loans ,etc[20]. They retain their identity as an individual and are not recognised as a wife[21] or a domestic partner. Consequently live-in couples can separate in formally without any formal divorce or the intervention of a court. In case of live in relationship it is not possible to have a formal divorce in law among partners. The careful scrutiny of the existing matrimonial laws indicates that unless this kind of relationship is not recognised in law the partners cannot be allowed to separate formally. It looks like it is easy to get into live-in-relationship whether by choice or by circumstance but difficult to get out of this relationship formally whereas the consequences of this relationship are left unanswered in law for example- there is no law in place which deals with the division and protection of their separate or joint property on separation.

PRESENT SCENARIO

Recently decision given by SUPREME COURT that- if an unmarried couple is living together as husband and wife, then they would presumed to be married and the woman would be eligible to inherit the property after the death of the partner.

A bench of JUSTICE MY EQBAL AND JUSTICE AMITAVA ROY said continuous cohabitation of couple would raise the presumption of valid marriage and it would be for the opposite party to prove that they are legally married.

CONCLUSION

The concept of live-in-relationships have come out of the closet and even found partial recognition in law. Though the debate rages on in public forum with recommendation and opinions yet coming in from various authorities and commissions to either amend the existing laws or digest from doing so, there have been no amendments to the existing personal law. This is thus, worthwhile to examine whether or not, live-in-relationship can find their place in personal laws in the country. The harm caused to legally wedded wife and her children, in a case where a man maintain live in relationship with another woman without the knowledge of his legally wedded wife and the probability that such legislation will increase the practice of bigamy are the two main contentions of the credits of live in relationships. Aside from the done to death immorality. Any attempt to protect life-ins in personal laws must therefore tackle these two issues carefully.

The courts have recognise persons in long term live-in-relationships to be as good a married spouse. Such decisions while being delivered were for upholding the rights of the other women but these decisions contradict the law on bigamy. When bigamy is illegal (except for Muslims) it is unclear in what sense a live in relationship can be equal to marriage, if either the man or woman is already married to a live-in spouse. The ambiguity allows a man or woman to be in another relationship without being subjected to punishment for bigamy. Personal laws differ for various communities on different matters and to fit in live-ins into each of these aspects would be difficult and complex exercise.

However, that would mean that live-ins. were being given an equivalent status to marriage. So would that imply an extension of all rights of married partners to live-ins? This is rather earth shattering as it would destroy the institution of a marriage. Secondly, it would entail some of the recognition for live in couples, through registration (legal civil ceremony). While registration has been a successful experiment in other countries but it may not be suitable for India, where many live-ins are those by circumstances, live ins may thus entirely fit into personal laws only if they were given an equivalent status married spouse.

The Supreme Court in number of cases has stated that where there is cohabitation for a reasonable period of time, the couple shall be presumed to be leading a married life and shall enjoy such rights. However the court has not defined how much time should be considered to confer the marital status on such relationships. It needs the immediate attention of the law makers to make it clear throw suitable legislation otherwise different couples may be subjected to different yardsticks when they seek their rights. After all, live in relationship are based on informal relationships.

An amendment to section 125 of code of criminal procedure could be one such example but that would bring a uniform law, which would outline the rights, duties and responsibilities of such couples. Such a law could those couple that to whom it applied (in terms of length of cohabitation), recognise the two kinds of relationship and provides remedies accordingly, in the same manner in the protection of women from Domestic violence act 2005[22]. It is[i] necessary to understand society with its changing colours and provide laws which are practicable and enforceable to tackle these types of complex issues.

[1] AIR 1927 PC 185

[2] AIR 1929 PC 135

[3] AIR 2008 SC 1193

[4] AIR 2010

[5] 1 P.D. 130

[6] AIR 1930 P. 217

[7] Thomas spijkerboer,sarah van walsum,women and immigration law:new variations on classical feminist themes, Routledge,2007.

[8] Surjit s. Gill,Sikhs in sabah and Labuan:a historical perspective, Labuan sikh society,2003

[9] Prof. Vijender kumar, live in relationship: impact on marriage and family law institutions(2012) 4SCC J-19 at PJ 19

[10] Prof. Vijender kumar ,live in relationship : impact on marriage and family law institutions(2010)

[11] 2006 5 SCC 475:2006 2 SCC (cri) 478

[12] Madan mohan singh vs. Rajni kant2010

[13] AIR 1952 SC 475

[14] 1992 supp (2) SCC 304

[15] 1988 1 SCC 530

[16] ORDER OF MAINTENANCE OF WIVES,CHILDREN AND PARENTS.

[17] 2000 Cri LJ 4170

[18] 2008 2 SCC 238

[19] Revanasasidappa v. Mallikarjun 2011

[20] Women and the law,school of law ,university of north Carolina,chapel hill,2005

[21] A married women in relation to her husband.