Live in Relationship under Personal Laws

Introduction

In Indian society “Marriage” is considered as a sacred bond since Vedic Period, even the concept of marriage has been evolving continuously with time, the concept of marriage has evolved with time not only the concept of marriage but also the concept of relationships has also evolved. The upcoming generations are considering relationships even more liberally and one of such concept which our society has adopted is concept of “Live in relationship” which is being adopted by numerous couples around the world, It is a relationship in which two people cohabit outside marriage without any legal obligations (which are present in marriage) toward each other, it is a relationship in the nature of marriage but it is completely unlike a marriage, this concept is being followed now days in our nation.

In our country only one kind of relationship is being recognized between male and female and the said social union is termed as “marriage”, which is said to be a divine concept and being followed from ages, even these relations are called legitimate in our country[1]. But the concepts are changing now as these western styles and lifestyles are quite now adopted by our country too, Honourable Justice A.K Ganguly once stated that “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today”. [2]

The concept of “Live in relationship” is a kind of arrangement in which two people decide to live together under the same roof without getting married, it is completely free from those responsibilities’ unlikely traditional marriages. Indian Marriage law doesn’t recognize these types of marriages and the children born during such relationships are also unclear. But now the children born under such types of relationship are considered to be legitimate and have granted the right to succession under Hindu Marriage Act. The reason for living in a relationship is that the couples who want to test their compatibility for each other can test perfectly before going for a marriage. Nowadays, an increasing number of couples choose a live-in relationship, even as a permanent arrangement over marriages.

Analysis

There is no legal hurdle to prevent a man and woman cohabiting together without having a marriage in the form of live in relationship. Traditionally speaking, live in relationships is alien to our nation till late, traditional Indian society has however disapproved of such living arrangements, for several reasons. It is only being followed in urban areas but not in small towns and cities because of social criticism and stigma attached to such live in relationships, forcing them to remain largely secretive. Women often face various physical, verbal abuses, in case where women are in a matrimonial relationship have legal recourse available to them, as compared to women in live-in relation, rights of women in live-in relation are still considered revolutionary in the Indian society.

This concept has been a new shift in our society; even many debates and opinions have been taken from various authorities and commissions to either amend the existing laws to give this concept a part in personal laws. Our law traditionally has biased in favour of marriage, even our society also supports marriage as necessary to the stability of family. To preserve marriage our law provides many rights and privileges to them but not to live in relationship. Even there is no legal definition of live in relationship and in this way the lawful status of it is still not developed, but now with changing norms of our law the legal status of “live in relationship” in many rulings of Supreme Court has stated that any couple living together for a long period will be presumed as legally married unless proved otherwise.

Law and society are the two faces of the same coin, when the changes in society take place the law should move with it. In the same way when this concept of live in relationship came into our society, it demands law with it to change. Hence, the Supreme Court tried to explain this concept and stated in his judgement of The Privy Council in A Dinohamy v. W L Blahamy [3]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 consequence of a valid marriage and not in a state of concubinage”.

Alok Kumar v. State[4]

Delhi High Court stated that it was stated that “a 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”.

S. Khushboo v. Kanniammal [5]

The scenario was changed completely as the Supreme Court stated in its landmark judgement that ”there was no law which prohibits Live in relationship or pre-marital sex” the court also added in it that it is only permissible only in unmarried major persons.

Examination of Live in relationship

The concept of live in relationship is part of that western culture which is now quietly being adopted in our country and even found in partial recognition of law. Although many times it has been discussed in public forums regarding the opinions and recommendations yet coming from various authorities and commissions to either amend the existing laws or desist from doing so, there have been no amendments to existing personal law. It is therefore worth examining whether or not this concept of ‘Live in relationship’ can find its place in personal laws in the country. In many cases a man maintains a live in relationship with another woman without the knowledge of his legally wedded wife and due to no applicability of law in case of live in relationship, the practice of bigamy will be succeeded which is completely illegal and unlawful.

Although, the rights provided to the married couples cannot be given to members of live in relationship as it will likely to destroy the “institution of marriage”, also if the concept of registration is being used in western countries from where this concept has been introduced, but in case of our country It will not be that much suitable because in India many of the live in relationship are those “by circumstance”. This concept will only be fit in our personal laws when they are given equivalent status as married spouses. The Supreme Court has however not defined elaborately this concept of live in relationship but they have stated that where there is cohabitation for a “reasonable period of time”, the couple shall be presumed to be having a married life and shall enjoy such rights, but the court has not defined how much time should be considered to call the marital status of such relationships.

Today in our country the concept of live in relationship is emerging and multiplying in number, at the same time the institution of marriage stays unaffected, this concept is no longer a novelty to Indian society. Once there was a time when Institution of marriages was sine qua non of Indian society but now it has been changed with emergence of this concept of live in relationship.

As breaking up of joint family given rise to satellite families, in same way there are reasons behind live in relation which are:

  1. The main reason is that they want to test their compatibility before having a marriage.
  2. Want to maintain single status for financial issues.
  3. The partners may feel that marriages are unnecessary and they hate to be divorced
  4. Existed marriage was unsuccessful or legal and social difficulties arose in separation.
  5. Marriage may not be supported or not allowed by family due to inter religion, age difference etc.
  6. Many of the couples give priority to career rather than marriage. Therefore live in relationship is the best option for them where there is no commitment and no time for partners.
  7. To escape the loneliness in their lives senior citizens have started preferring live in relationships.

Even there are number of groups and charitable trust are going on for such kind of senior citizens one of them is Vina Mulya Amulya Seva (VMAS) Ahmedabad, this trust has organized this ‘Senior Citizen Live-in Relationship Sammelan’, seven couples who met at this alliance meet have decided to enter into a live-in relationship.[6]

The child born in such a kind of relationship its legitimacy also in question so in one the case validity of section 16 of Hindu Marriage Act was also being challenged, in case of Smt. Parayankandiyal EravathKanapravan Kalliani Amma & Ors. v. K. devi and Ors[7]. it was held that Hindu Marriage Act, a beneficial legislation, has to be interpreted in a manner which advances the object of it. This court also stated that the said Act intends to bring about social reforms and the conferment of social status of legitimacy on innocent children is the obvious for the purpose of Section 16.

Legal Concept and judicial approach to Live in relationship

As we know that law is not only to maintain the law and order of our society but also to provide social justice, as law doesn’t operate in vacuum, it is an instrument of social control. In the same way law has played its role with society and our country has finally stepped ahead and walked with the rest of the world by legalizing the concept of “Live in relationship”.

There is no specific enactment for live in relationship, neither any personal law recognizes it, not even Code of Criminal Procedure, 1972. For the first time the legislature has acknowledged this concept of live in relationships by giving rights to those females who are not legally married, but are living in a relationship under Domestic Violence Act, 2005. However the law is not very clear in India for this concept, cohabiting couples have little guidance to legal rights in areas such as property ownership, responsibility for debts, custody, access to healthcare and other benefits and survivorships.

The National Commission for Women recommended to the Ministry of Women and Child Development gave their suggestion to include live-in relationship members for the right of maintenance under Section 125 of Cr. P. C. This view was supported by the judgement passed in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others[8]. Even the Maharashtra Government in October, 2008 the proposal was made by the Malimath Committee which suggested that “if a woman has been in a live-in relationship for a long period, she ought to enjoy the legal status as given to the wife” which was accepted by them. The Supreme Court in case of D.velusamy v. D. Patchalammal [9]has stated that a relationship in the nature of marriage under Domestic Violence Act 2005 must also fulfill some basic criteria. So, there are four criteria of live in relationship which are:

  1. Legal age to marry
  2. Qualify to enter legal marriage
  3. Must be unmarried
  4. Voluntary cohabitation should be for a considerable period of time.

The Supreme Court in addition to it added to above in Indra Sarmas case:

  1. Duration of relationship
  2. Shared household
  3. Pooling of resources and financial arrangement between the parties
  4. Domestic arrangements
  5. Children
  6. Socialization of relationship in public

These are some of the guidelines ordered by the Supreme Court in relation to it, since the Supreme Court cannot legislate the law, it is the Indian parliament to make law.

However, recently it has been observed that it was only the divorced wife who is entitled for maintenance under section 125 of Cr. P. C and if a person is not even married, that is in the case of live-in relationship partners, they cannot be able to claim maintenance under section 125 of CRPC. Thus it is stated that the word ‘wife’ in section 125 Cr. P. C should be amended to include those females who are living with the man in a live-in relationship like his wife for a reasonably long period.[10]

Even in case of Chanmuniya v. Virendra Kumar Singh Kushwaha,[11] it was stated by the court that “a broad and expansive interpretation should be given to the term `wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr. P. C, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125 of Cr.P.C”.

The first time when the Supreme Court held the legitimacy of children born out of live in relationships was in S.P.S. Balasubramanyam v. Suruttayan[12], the court stated 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.”

So, from all these judgements passed by the Supreme Court it is completely clear that live in relationship is legal in India, it is not illegal in eyes of law, but amendments should be made in order to mold them in our personal laws and even child born from these marriages will not be called as illegitimate.

Landmark Judgements 

Indian judiciary has been working to fill the gap that was created in absence of any specific statute relating to live in relationship. The intention of Indian judiciary is to render justice to the partners of live in relationships who were earlier not protected by any statute when subjected to any abuse arising out of such relationships. Judiciary is neither expressly promoting such concepts nor prohibiting such sort of relationships. It is only concerned that there is no miscarriage of justice. Therefore, while giving any decision, the judiciary has kept in mind various factors including societal norms and constitutional values.

Even Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun[13], stated that “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. So, following are the landmark judgements which changed the concept of live in relationship:

Badri Prasad vs. Dy. Director of Consolidation, 1978[14]

This case is called the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage, the court gave legal validity to a 50 year live in relationship couple. Justice Krishna Iyer stated that “The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard”.

Tulsa & Ors vs. Durghatiya & Ors, 2008[15]

It was also one of the landmark judgments The Supreme Court provided legal status to the children born from live in relationship. It was held that” a child born out of such a relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognize them as husband and wife and it should not be a “walk-in and walk-out” relationship”. Court also granted the right to property to a child born out of such relationships.

D.Velusamy vs. D.Patchaiammal, 2010[16]

In this judgement the court clearly stated that “not all relationship will amount to a relationship in the nature of marriage and get the benefit of the Domestic Violence Act”, it was further stated that if a man keeps women as a servant and maintains her financially and uses mainly for sexual purposes, such relationship would not be considered as marriage in the court of law. This judgment determines the conditions for a live in relationship. In this case the court used the concept of ‘palimony ‘used in the USA for grant of maintenance in live-in relationships. This concept of palimony is also taken from the landmark case of California Superior Court.

S. Khushboo vs. Kanniammal & Anr, 2010[17]

The Supreme Court in this case removed the South Indian actress from all the charges as the petitioner was charged under Section 499 of the IPC and it was also claimed that petitioner endorsed pre- marital sex. So the Supreme Court stated that “live in relationship comes within the ambit of right to life under Article 21 of the Constitution of India”. The Court further stated that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

Conclusion

Live in relationship has always been a focus of debates as it possess threats to our country old social reforms and culture. But this concept of “Live in relationship” cannot be called as an offence as there is no law until the date which prohibits such kind of relationship. In order to bring justice the legal status of live in relationship in India has been evolved and determined by the Supreme Court in its various judgements, so that those females who are the victims of live in relationship they can get justice. Still India has not legalized it, legalizing means having a special legislation for it. Though this concept is still called immoral in the eyes of society because India is a country which is having its own traditions and culture which are being followed from ages and changing them will likely destroy many religious things.

But we are discussing regarding law, The Supreme Court states that living together is a right to life guaranteed under Article 21 of our Indian Constitution so it is not wrong and the court has taken steps to improve the condition of women by defining their rights under different statutes like Domestic Violence Act, 2005, but the rights given to such couple under live in relationship is only be enjoyed when they are having stable relationship for a long period and also fulfilling the conditions stated by the Supreme Court. As this concept is being followed today so there is need of law by legislation for this, either they should do certain amendments under personal laws or make some different legislation regarding it.

Frequently Asked Questions

  1. Is live in relationship legal in our country and is it compatible with our society traditions and culture?
  2. Live in relationship capable of binding with our personal laws?
  3. Does Dowry Act and Domestic Violence Act 2005 apply in live in relationship?
  4. Does a couple who live in Relationship have any rights with them?
  5. Is there any chance of amendments in our personal laws regarding this concept?

Reference

  1. https://indiankanoon.org/doc/1945115/
  2. http://ignited.in/a/58101
  3. https://www.researchgate.net/publication/286440123_Socio-legal_dimensions_of_%27live-in_relationship%27_in_India
  4. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/
  5. http://www.legalservicesindia.com/article/1013/Emerging-Concept-of-Live-in-Relationships.html
  6. https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/March/March_2016_1457342744__07.pdf


[1] Mulla, Sunderlal T. Desai, Principles of Hindu Law, State Mutual Book & Periodical Service, Limited, ed.16, 1990

[2] Revanasiddappa v. MallikarjunAIR 2011 SC (Supp.) 155

[3] AIR 1927 PC 185

[4] 2010 SCC OnLine Del 2645, 09-08-2010

[5] (2010) 5 SCC 600

[6] PTI Nov 20, 2011, 09.20PM IST

[7] (1996) 4 SCC 76

[8] C.R.R. No. 3001 of 2017

[9] 2011 Crl. LJ. 320

[10] Code of Criminal Procedure 1973

[11] (2011) 1 SCC 141

[12] AIR 1992 SC 756, 1992 Supp (2) SCC 304

[13] (2011) 11 SCC 1

[14] AIR 1978 SC 1557

[15] (2008) 4 SC 520

[16] (2010) 10 SCC 469

[17] (2010) 5 SCC 600

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