Abstract
Society and culture keep on changing with the demands of time. Such changes usually correspond with the psyche of civil society and the people therein. These changes are manifested through new practices, new ways of doing things and new norms. When such change happens laws are made on them using an ad hoc approach this may be done either through passing of bills in the legislation eg. IT Act or by wider interpretation pre-existent laws in light of changes which can be called as judicial legislation by judgements of higher courts.
One such change is increase in number of people choosing to stay in long-term live-in relationships. The paper aims to explore the new cultural shift experienced by millennials and newer generations an option that was not even thought of let alone experienced by previous generations i.e., the concept of live in relationships. Although this new found choice does give freedom, ease, and casualty at some level it also takes twisted and violent repercussions as seen in Shraddha Walker case[i] or the Mumbai Mira Road[ii] case. This has affected cultural sensibilities in an adverse manner. What are the reasons people choose to stay in live in relationships, stigmas and social limitations, absence of legislations, effects on marriage, crimes within such relationships and role of community psychology in these changing dynamics. The paper will also study the extent to which laws relating to marriage such as domestic violence, maintenance, etc apply to these relationships.
Keywords
Live in relationships, domestic violence, crimes, community psychology.
Introduction
For any nation in southeast Asia the role and control of tradition based social practices is more than that in the west. This east west divide is also evident when it comes to live in relationships. This practice started not even a couple of decades ago in urban India taken from the West is now getting a lot of attention and traction owing to news and reports of various violent crimes.
The closest concept found in Hindu uncodified law is that of Gandharva form of marriage in which the woman chooses her own husband and both consensually agree to live together. This form of marriage did not even require the consent of the parents or any other person , it does not even require performance of any rituals or vow taking . The famous story of Shankuntala[iii] mentioned in Mahabharata is a known and accepted example of this type of marriage. Another concept that has certain similar aspect is that of concubinage – in medieval times men used to have concubines i.e. a woman with whom he cohabited without being married to her, such woman had a recognised social status and it was lower than that of a wife.[iv]
Although these concepts have certain similarities in a modern sense they fail to be synonymous with live in relationships. Living relationships have not been defined in any act or legislation but can be determined by certain aspects such as cohabitation by mutual consenting adults who have a romantic relationship.
Why do people choose to stay in long term live in relationships? A lot of individuals prefer to prioritise career over starting families , if the goal is not to produce children people may not find marriage to be a necessity , if there is no financial stability , there may be issues of sociocultural nature between the couple such as caste class and religion, the families may not be compatible , children coming out of broken homes or other traumas may be averse to the idea of marriage , commitment for a lifetime sounds overwhelming to some people.[v] The main drawbacks of the same would be lesser social security, lesser religious sanctity , no community backing , lesser family support, complications in paperwork as compared to a married couple.
Research Methodology
The paper written is descriptive in nature and is majorly based on case analysis. Along with cases research has been done using secondary sources of data such as , newspaper articles , blogs and online databases .
Review of Literature
Decriminalisation on Adultery and its Impact on Live in relationships
Joseph Shine case [vi] in 2018 has decriminalised adultery. S497 of the Indian Penal Code which punished the man who engaged in adultery and indirectly treating the woman as a property of a man was struck down as violative of fundamental rights. So, presently cheating outside of marriages especially in the physical or sexual sense in no longer a crime. No penal action can be initiated for the same. Adultery as a criminal offence has no significance because it is a private matter in which courts should not interfere. There is sexual autonomy to every individual and hindering the same would violate the constitutional principles. This judgement decriminalized the offence of adultery and makes it a ground for civil wrongs only.
Live in relationships outside of marriage
What happens when a married woman leaves her husband under the pretext of going to her father’s home but in reality, goes and stays with her friend? In this case the husband filed a writ of habeas corpus in Uttarakhand High Court because his wife had not returned back. The wife refused to come back stating that the husband was misbehaving with her. Although the husband claimed that her accusations were false the High Court in a recent order declared that writ of habaes corpus would not be applicable here as the woman had voluntarily left the home and was staying elsewhere by her own free will. As adultery is no longer an offence the husband cannot sue the wife or her friend but he can use it as a ground for divorce. Another option available to the husband in such a scenario is using provision related to restitution of conjugal rights under S.9 of the Hindu Marriage Act. So, the High court [vii]allowed the woman to stay with her friend as it was through her will and voluntary decision.
When the Court took this decision its aim cannot be construed as to promote or increase extramarital affairs or safeguard interests of people wanting to engage in such affairs, the law cannot interfere in matters of individual personal choices such as that of the woman in this case. Because she has left the matrimonial home and was staying with the friend out of her own volition , the Court could not grant any relief to the husband under the writ of habeas corpus.
Domestic violence in Live-in Relationships
Does a woman have the same safeguard against domestic violence that a wife in a marriage has? The Domestic Violence Act of 2005 in section 2(f) talks not exclusively in cases of marriage but is also applicable in cases where woman are living in a relationship in nature of marriage. How the Court determines whether the relationship is a relationship in nature of marriage will be dependent upon the facts and circumstances of each and every case.
In the case of Indra Sarma vs V.K.V.Sarma [viii]the Supreme Court laid down the types of relationships that can be part of relationships in nature of marriage. Along with this the Court also laid down certain determining factors characteristics which are relevant to determine relationship in the nature of marriage as follows:
“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual relationship. (3) Whether the parties give each other emotional support and companionship. (4) Whether the parties socialize together or attend activities together as a couple.(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8) Whether the parties run a common household, even if one or other partner is absent for periods of time.(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”
So the ambiguity was minimised. The Domestic Violence Act 2005 thus protects woman who choose to stay in live in relationships.
Social morality does what law does not
Words used in the judgement by the Supreme Court in the case of S. Khushboo vs Kanniammal & Anr[ix] “Admittedly, the appellant’s remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence.
Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not co-extensive.”
This case though not directly related to live in relationships helps us better understand the duality or contrast between law and society. Judgements may not necessarily get social acceptance. Morality of the masses of the society of the people may not get manifested in determining validity of laws. The Legislature or the Court obviously cannot promote relationships of such nature but still understand the intensive intrinsic personal character of such decisions. What law tries to do is protect and give certain safeguards against the same so that people may not misuse absence of a specific legislation.
Rights of children born out of a live in relationship
An obvious question that comes in mind is the legal status of a child born out of such a relationship. What rights does such a child have? In case of prolonged cohabitation of the couple such child is considered as legitimate because prolonged cohabitation is presumed as marriage by virtue of S114 of the Indian Evidence Act. Courts have held the following view –“What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable”.[x]
The Supreme Court in case of Kattukandi Edathil Krishnan & Another vs Kattukandi Edathil Vasan & Ors[xi] passed an order in June 2022 which clearly stated that children born to partners in live in relationships can be considered as legitimate children provided that the relationship is long term and not a “walk in- walk out” nature. So, provided the nature of relationship is of such nature , the children considered legitimate will avail all rights that a legitimate child has such as right to inheritance and right to succession.
Community level
India is a fairly orthodox society where the institution and sanctity of marriage is to this day given a lot of importance. Society dictates by its customs and practices norms and ways of doing to the people around , it does not even have to pass legislations , sign documents or give instructions and guidelines in writing what it expects a person to do . Whenever any news of crime committed in context of live in relationship such as the Shraddha Walker case or the Mira road case comes in the news the common man of society gets even more paranoid than in regular circumstances. Here the blame is not only on the perpetuator of offence but also on the situation and circumstance that led to such perpetuation of the offence. “Had they not been living together in a live in relationship she would have been alive today” It creates an even more negative view of the dynamic and dissuades the masses from accepting the dynamic which was already difficult to digest .
At an individual level apart from the context in which the crime takes place the person committing the crime would show some signs of violent tendencies. Like in any abusive relationship may it be marital or non marital the signs of violent tendencies shown by either partner are either ignored or covered up by the other this non acceptance may either be because of manipulation, delusion, dependence or some overpowering sense of love affection and attachment that the persons may have . It is necessary for the person himself or herself to realise these signs and not ignore or overlook them. Walking away from such relationships is another way of pre-emption. Not that the victim is to be blamed in any way , but still choosing to stay in any situation where there is a threat to life or body can have adverse repercussions . The fear of being judged or looking helpless should not overpower seeking help and assistance from helplines , police or any other person . Education and awareness can help to make women feel empowered enough to raise voice against these issues without fear of judgement or victim blaming tendencies.
Suggestion
Various judicial pronouncements have given various rights to the partners , woman as well as children from such unions. Awareness of availability of these recourses need to be spread. Live in relationships though considered a taboo or no go socially are still a part social reality and denying their presence would only lead to more atrocities and problems for various persons. Shying away from such conversations under the fear of disrupting the social moral fabric of the country will not bring any change nor will it reduce the practice of this nature of relationship. Even if one chooses to not promote or encourage the practice it is in interest of each individual to be aware of the same- denial does not end existence.
Conclusion
It is evident that law through its various judicial decisions has recognised the presence of live in relationships in India and one can only reasonably assume that the number of these would increase in the future. While no force can make the society accept this dynamic with open arms its existence and presence cannot be denied, it seems as if this is here to stay more so in cases of higher class youth who prefer to “try out” their compatibility before deciding to get married and have the capital or financial backing to do so . It is not reasonable to expect the society and smaller communities within it comprising of older generations to give way to this new lifestyle without any resistance or negative opinions. Decriminalizing adultery in law does not necessitate that social moral policing of fidelity and marriage and monogamy will have any effect the judgements and opinions of the common people in such cases seldom are in consonance with the orders opinions of the judges. The legal and moral stance may be on cross with each other. This same opinion of community in certain aspects acts as a positive as well to prevent or limit certain practices that the society finds unacceptable morally or ethically at that day and age. But the beauty of community and social thought is that it has power to change with time, with experience or by awareness. It may pose itself as a threat to what is traditionally considered as appropriate. Just like all changes in cases of live in relationships as well people will need time to accept it as a mainstream practice or a new normal. Judicial pronouncements or legislative acts have close to 0 power without backing of the masses only time and awareness can change outlooks. Providing safeguards to persons in such relationships as well as including them in scope of Domestic violence Acts is a welcome step because a response to a wrong is providing a remedy.
[i] https://r.search.yahoo.com/_ylt=AwrPqD33SK5kHbUJUjS7HAx.;_ylu=Y29sbwNzZzMEcG9zAzMEdnRpZAMEc2VjA3Ny/RV=2/RE=1689172344/RO=10/RU=https%3a%2f%2fwww.bbc.com%2fnews%2fworld-asia-india-63632513/RK=2/RS=Mv498E3Hv1TnZ_s_LoTbH.5JT9w-
[ii] https://indianexpress.com/article/cities/mumbai/mira-road-brutal-killing-police-chopped-body-parts-from-flat-8652577/
[iii] https://www.mahabharataonline.com/stories/mahabharata_story.php?id=6
[iv] https://www.merriam-webster.com/dictionary/concubine
[v] https://www.researchgate.net/publication/286440123_Socio-legal_dimensions_of_’live-in_relationship’_in_India
[vi] https://main.sci.gov.in/supremecourt/2017/32550/32550_2017_Judgement_27-Sep-2018.pdf
[vii] https://www.livelaw.in/high-court/uttarakhand-high-court/uttarakhand-high-court-wife-live-with-friend-husband-habeas-corpus-case-230939?infinitescroll=1 https://www.livelaw.in/pdf_upload/habeas-corpus-477573.pdf
https://indiankanoon.org/doc/192421140/
[ix] https://indiankanoon.org/doc/1327342/
[x] Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825]”
[xi] https://indiankanoon.org/doc/80285666/
Author
Mukta Kolatkar
4th year student at ILS College Pune
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