Abstract
The concept of live in relationship is a recent development. It means cohabitation between two members of the opposite sex who live together without marriage. Live in relationships are relatively new in India as compared to the western world but are becoming more commonplace nowadays. It is not recognized by the Hindu marriage Act, 1955[1] or by any other statutory law. It is essentially a characteristic feature of a metropolitan society. However, in a male chauvinistic society like ours, live in relationships are still seen as a taboo especially in the rural areas. Sexual intercourse among a couple before marriage is looked upon as a condemned practice and damaging to the reputation of the family. The status of a live-in relationship is unclear, and there is no standard definition. In India, there is no particular legislation as such addressing the matter. This paper is an attempt to understand the present legal position and validity of live in relationships, the legitimacy of children born out of such a bond and the question of maintenance in the Indian context.
Keywords: live in relationship, cohabitation, palimony, maintenance, child rights
Introduction
Marriage in India is seen as a sacrament, or a holy union of a husband and wife. In the larger context, it is the union of two entire families. Commitment and tolerance are the two pillars of this sacrosanct institution. It is an instrument to legalize sexual intercourse as it facilitates in satisfying the basic biological need of sexual gratification through a socially acceptable way and also helps the individual to achieve a higher level of personality development. In modern times this practice is now seemingly being replaced by live in relationships in large metropolitan areas. There are several reasons behind this. Firstly, this kind of relationship is giving youngsters an opportunity to live without commitment or any sort of conjugal liability. There is neither obligation to stay together nor responsibility towards the other spouse. Secondly, it is the influence of individualism. According to Anthony Giddens[2]; individualization theory includes consensual, democratic relationship and selfish individualism. This theory sees modern relationship with fulfillment of the individual and the love which is consensual with sexual and emotional equality. Third and the most obvious reason is the change in social attitude. People prefer closeness, emotion and intimacy in relationship rather than following the duties and obligations of marriage. There has been a mixed opinion regarding this type of relationship. For some, live in relationship gives an opportunity for the couple to check their sexual compatibility before they commit to each other for marriage. After all, choosing a partner for marriage is a life changing decision and individuals must have the choice to choose their potential spouse with due diligence. In a way it is a mechanism to prevent a possible divorce in the future which could cause great mental agony and psychological distress to both the parties involved. On the other hand, there are those who argue against live in relationship. For them marriage is the tradition which has been followed right from ancient times and must be preserved. Modern trends like live in relationships are promoting premarital sex which is seen as immoral and a promiscuous way of life. Youngsters simply do this to shun their responsibility towards the other partner and leave whenever they find it convenient to do so. The primary objectives of this study include understanding the: a) Concept and legal position of live in relationships b) Legal status of children born out of live in relationships c) Maintenance under live in relationships.
Legal Position of Live in Relationships in India
The Supreme Court with the help of various landmark judgments has acknowledged this concept of live in relationships and given it legal recognition. In A. Dinohamy v. W.L.Blahamy[3], the Privy Council held that a live in relationship was to be considered a valid marriage if the couple lived together and there wasno evidence to prove the contrary. Later in 1950, the Supreme Court in Gokul Chand v. Parvin Kumari[4] stated that continuous cohabitation of a man and woman as husband and wife, and their treatment as such may give rise to the presumption of marriage. However legal recognition was only granted for the first time in the case of Badri Prasad v. Director of Consolidation[5]. Here legal status was given to the live in relationship of a man and a woman who had lived together as husband and wife for nearly half a century. This decision was further reiterated in the case of Tulsa & Ors. v. Durghatiya & Ors[6]. In 2006, in the case of Lata Singh v. State of U.P[7], it was held that a live-in relationship between two consenting adults of opposite sex, although seen as immoral, does not amount to any offence under the law. In S. Khushboo v. Kanniammal & Another[8] court observed that a female above the age of 18 can live with or marry whoever she wants. Morality is a subjective concept, and the law cannot unduly restrict an individual’s personal liberty. The court ruled that living together is permissible since it is protected by the right to life given by Article 21 of the Constitution. The court stated in Indra Sarma vs V.K.V.Sarma[9] that live-in relationships are not illegal. Relationship decisions are made on a personal level. They cannot be subjected to unfair regulation. Following that, the Court stated that in this case, two people living together without a formal marriage are not criminal offenders. Court with the help of five illustrations where the concept of live in relationships can be proved in the court of law:
- Live-in relationship between an unmarried adult woman and an unmarried adult male, a less complicated form of relationship.
- Live-in relationship between an unmarried woman and a married adult male, where the former knowingly enters into a relationship with the latter.
- Live-in relationship between a married adult woman and an unmarried adult male where the former knowingly enters into a relationship with the latter.
- Live-in relationship between an unmarried woman who unknowingly enters into a relationship with a married adult male.
- Live-in relationship between same-sex partners
In S.P.S Balasubramanyam v. Suruttayan[10], the Supreme Court had remarked that, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption raised under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” In case of Alok kumar v. the State it was observed by the Delhi High Court that live in relationship is a walk in and walk out relationship. It does not create any legal obligations among the parties and either of the parties can walk out on the other at will at any time without the fear of any legal repercussions. For getting recognition “in the nature of marriage,” within the definition of “domestic relationship”[11] under section 2(f) of The Protection of Women from Domestic Violence Act, 2005 certain essentials were set by the Supreme Court in the case of D. Velusamy v. D. Patchaimal[12]:
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age to marry.
- They must be otherwise qualified to enter into a legal marriage, including being unmarried.
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Legal status of children born out of live in relationship
A burning issue among live in couples is with regard to the children who are born out of such relationships. As per the Hindu Marriage Act 1955, children born before marriage are considered legitimate. The complication arises when both the parents start living separately or refuse to take responsibility for taking care of the child. In such circumstances it should be the duty of the court to ensure that either one of the parents take responsibility of the child, a guardian is appointed and the rights of the child to inherit the property of his mother and father is also protected. In the case of Tulsa & Ors v. Durghatiya, the Supreme Court of India gave the right to property to a child born in a live-in relationship and declared that such a child should not be viewed as illegitimate if the parents have cohabited for a long time. The Supreme Court declared in the case of S.P.S. Balasubramanyam v. Suruttayan that if a man and woman live together for a long time, it is considered that they are husband and wife under Section 114 of the Evidence Act, and any children born are legitimate children. Likewise in the case of Bharatha Matha v. R. Vijaya Renganatham[13], the apex court held that a child born out of a live in relationship is a legitimate child and has the right to inherit the property of his parents excluding the Hindu ancestral coparcenary property. The Supreme Court in Revanasiddapa v. Mallikarjun[14] remarked that regardless of the relationship between parents, birth of a child out of such a relationship has to be viewed independently of the relationship of the parents. The child born out of such relationship is innocent and entitled to all the rights and privileges available to children born out of valid marriages.
Maintenance under live in relationships
Another important issue is with regard to the question of maintenance for women in a live in relationship. In the United States, the phrase palimony is used to describe granting relief in live in partnerships. Palimony is a combination of the words “pal” and “alimony.” During the famous celebrity divorce case Marvin v. Marvin[15] in California, the term “palimony” was coined. In this case, the complainant had been in a long-term live-in relationship with the guy and had gone to court to seek financial compensation from him after the relationship ended. Despite the fact that the suit failed, the courts determined that “in the absence of an express agreement, courts may look to a number of different remedies to distribute property equitably.”
In India, the Malimath Committee on Criminal Justice[16] proposed for amendment in the definition of the word “wife” in Section 125 of the Criminal Procedure Code (Cr. P.C.) so as to include a woman who was living with the man as his wife under the same household for a reasonably long period of time. Although the amendment was not incorporated in the Cr. P.C., live in relationships were brought into ambit of domestic relationship defined under section 2(f) of the Prevention of Domestic Violence Act 2005. In the leading judgment of Lalita Toppo v. State of Jharkhand[17], it was held that even though the live in partner cannot claim maintenance under section 125 of Cr.P.C., but would be entitled to compensation under the Prevention of Domestic Violence Act 2005. However this right is exclusively for women victims. In Indra Sarma v. V.K.V. Sarma, it was stated that in case of domestic violence under a live in relationship relief can be sought by the complainant under chapter IV of the act.
Research Methodology
The methodology employed in this paper is analytical and doctrinal in nature. Light is shed on relevant case laws, concepts, acts, panel reports and preparations under various enactments. As a result, in the formulation and construction of the proposal, the investigation activity has embraced a clarifying and exploratory approach. Furthermore, the final result and recommendations are evaluated utilising diagnostic and fundamental approaches to identify legal framework flaws and errors.
Method
This research used a doctrinal research technique. Primary, secondary, and tertiary sources of information were used in this study. The law, guidelines, and rules were the key sources of information. Optional sources of knowledge include books, word references, reference books, periodicals, and papers. The sites are part of the secondary sources.
Review of Literature
An investigation can add to existing writing if it is carried out after a thorough assessment of what is currently being written in the field.
The officially accessible writing concerning live-in-relationship will be explored by analyst by witnessing the substance and perceptions of the various works done on the applicable subject, keeping in mind this general guideline and to make current research more focused .A number of books and research papers are listed below as references:
Live in Relationship & Hindu Marriage: A Critical Legal Analysis, by Jayanta Ghosh[18]: In this book Ghosh observes that while some popular and legal interpretations appear to advocate for the legal authorization and recognition of new forms of non-conjugal hetero living together examples in India, these legal actions do not indisputably suggest that. A simple study reveals that the legal modifications are primarily intended to recognize women’s powerless situation within common sorts of non-conjugal relationships. The Malimath Committee’s proposals and parts, as well as the discussions that followed the Protection of Women from Domestic Violence Act of 2005, have been thoroughly examined. Because of the numerous sorts of live-in relationships prevalent in today’s culture, opposing understandings and conflicting repercussions occur without such lawful alterations being absolutely insightful.
Live-In Relationship: Impact on Marriage and Family Institutions by Prof. Vijender Kumar[19]: He points out that the concept of a live-in relationship, the freedoms and liberties it provides partners, and, most importantly, the fact that an increasing number of urban couples in India are choosing to “live in” rather than marry is a recent development that has turned the traditional Indian marriage on its head. The law, on the other hand, must adjust to these changes. This will, however, be a protracted process because it may face practical challenges as well as criticism from conservatives. Live-in partners have no way of identifying themselves as such.
Suggestions
The judicial precedents provide a foundation for controlling and guiding legal issues arising from live-in partnerships, yet they are insufficient. Recent events have demonstrated that a lack of clear legislation and the resulting ambiguity has resulted in judicial decisions that are inconsistent. Indian society is sceptical about live-in relationship; therefore, couples usually face manifold problems like rejection from family, a problem in getting home for rent, refusal by the society, negativity at the workplace and so on. As a result, the Legislature must take into account the frequency of live-in relationships and create thorough legislation outlining the partners’ rights and responsibilities.
Furthermore, for such legislation to be effective, it should mandate mandatory registration of live-in relationships so that the parties have concrete documentation of the connection and can seek legal remedy.
Despite the fact that the Supreme Court has struck down Section 377 of the Indian Penal Code, India still refuses to recognise same-sex marriage and live-in relationships. There is still no marriage statute for the LGBT population in the Indian framework. This is another area where legislation would help.
The Prevention of Domestic Violence Act 2005 recognises a woman as a wife who has lived with a man for a long period of time, and several provisions such as maintenance and property, in her favour. It does not include any provisions for LGBT couples or men. These are delicate concerns that should be fully addressed by enacting separate legislation on live-in relationships.
Individuals should be warned that in the event of a live-in relationship, no legislation currently safeguards their rights. Only through legal precedents can they seek protection or redress.
Conclusion
Despite the fact that live in relationships have been given legal recognition by the judiciary, a couple under such a relationship has to bear the brunt of disapproval of the society at large. It is still seen as an unethical and immoral practice. In a country such as ours, traditions and customs are given major importance especially in the context of marriage. Live in relationship are the polar opposite or deviation from the very essence of marriage.
Those who recognise the social benefits of marriage but are worried by the out-of-date ideals and historic customs that continue to characterise this legal institution should find the argument for replacing marriage with a live-in relationship compelling. In fact, legally, live-in relationships find roots in Article 21 of the Indian Constitution. As a result, this unalienable fundamental right gives rise to the right and freedom of choice to marry or live with someone of one’s own free will. So denial of live in relationships is essentially a violation of a fundamental right enshrined under Article 21 of the constitution.
Globalization has indeed introduced many new western ideas in the Indian fold, but change is a slow and gradual process. It will take a while before people can fully adopt such flexible and unprejudiced ideologies. However, growing acceptance and normalization of live in relationships in metro areas among the youth is a step in the right direction and is indicative of their open mindedness and liberality.
ROHAN ARYAN SRIVASTAVA
CAMPUS LAW CENTRE, FACULTY OF LAW, DELHI UNIVERSITY
[1] Chakshu Thakral and Amit Chauhan , “Live in Relationship as a new form of family” Wisdom Crux (2018)
[2] Elliott, Anthony, “The Theory of New Individualism” (2011)
[3] A. Dinohamy v. W.L.Blahamy, AIR 1927 P.C. 185
[4] Gokal Chand v. Parvin Kumari, AIR 1952 SC 231
[5] Badri Prasad v. Deputy Director, Consolidation and other, AIR 1978 SC 1557
[6] Tulsa & others v. Durghatiya and others (4) SCC 520
[7] Lata Singh v. State of U.P. & Another AIR 2006 SC 2522
[8] Khushboo v. Kanaimmal and another AIR 2010 5 SCC 600
[9] Indra Sarma v. VKV Sarma, AIR 2013 15 SCC 755
[10] SPS. Balasubramanyam v. Suruttaya, AIR 1992 SC 756
[11] Anuja Agrawal “Law and ‘Live-in’ Relationships in India”, Economic & Political Weekly, vol xlviI no 39.
[12] D. Velusamy v. D. Patchaiammal AIR 2010 SCC 469
[13] Bharatha Matha & Another v/s R. Vijaya Renganathan & Others AIR 2000 SC 735
[14] Revanasiddapa v. Mallikarjun (2011) 11 SCC 1
[15] Marvin vs Marvin. OneLBriefs website. 1976. http://onelbriefs.com/cases/property/marvin_marvin.htm.
[16] Dr. Justice V.S. Malimath Report . Committee on Reforms of Criminal Justice System. Government of India, Ministry of Home Affairs. Report Vol I; March 2003
[17] Lalita Toppo vs State of Jharkhand AIR 2015 SC 1656
[18] Jayanta Ghosh, Live in Relationship & Hindu Marriage: A Critical Legal Analysis (Omniscriptum Gmbh & Company Kg, 2015)
[19] Prof. Vijender Kumar, Live-In Relationship : Impact on Marriage and Family Institutions, (2012)