This Article is Written by Asha. K, Assistant Professor in Law at Shri Balaji College of Law, Bengaluru
The Supreme Court threw its weight behind the live in relationship on 23 Mar 2010, observing that for a man and woman in love, to live together is part of the right to life, and not a “Criminal Offence”.
“If two people, man and woman, want to live together, who can oppose them? What is the offence they commit here? This happens because of the cultural exchange between people,” a special three-judge bench of Chief Justice of India (CJI) K. G Balakrishna , Justice Deepak Verma and B. S Chauhan observed. The court was hearing a batch of petitions filed by actress Khusboo to quash 22 FIR’s against her by Tamil activist groups and forums for her alleged comments on pre-marital sex in interviews five years ago.
“If living together is an offence, then the first complaint should be filed against the supreme Court because we have permitted living together,” the court said. The bench was referring to a 2006 judgment in which the supreme directed the administration and police throughout the country to protect runaway couples from harassment, and to initiate action those resorting to violence.
“It is part of right to life to go away with someone you love,” the bench said. The Supreme Court earlier stayed at Madras High Court order of April 2008, which allowed criminal proceedings against the actress.
Khusboo was alleged to have said there was nothing wrong in “Sex before marriage”. Provided were careful about pregnancy and sexually – transmitted diseases. Her detractors argued that the implied advice to the educated male to not expect virginity from modern girls was “Offensive” and a source of “Public nuisance”.
Meaning of live in relationship
Live in relation i.e Cohabitation is an arrangement whereby two people decided to live together on a long term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. Today, cohabitation is common pattern among people in the Western world. People may live together for a number of reasons, these may include wanting to test compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, because for example same-sex, some interracial or interreligious marriages are not legal or permitted. Other reasons include living with someone before or polyamorists to avoid breaking the Law, a way to avoid the higher income taxes paid by some two –income married couples (in the United Sates), negative effects on pension payments (among older people), and philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
Some couples prefer cohabitation because it does not legally commit them for an extended period, and because it is easier to dissolve without the legal costs often associated with a divorce. In some jurisdictions cohabitation can be viewed legally as common-law marriages, either after the duration of a specified period, or the birth of the couple’s child, or if the couple consider and behave accordingly as husband and wife.
Position in India
In India, cohabitation had been taboo since British rule. However this is no longer in big cities, but is still often found in rural areas with more conversation values. Female live-in partners have economic rights under Protection of Women from Domestic Violence Act, 2005.
The Maharashtra Government in Oct 2008 approved a proposal suggesting a women involved in such a relationship for ‘reasonable period’ said should get status of a wife.
The National Commission for women recommended to ministry of women and child development June 30, 2008 that definition of wife as described in Sec. 125 of Cr. P.C which deals maintenance, suggested that it include women involved in a live in relationship Aim of the recommendation was to harmonizing other sections of Law with protection of women from Domestic Violence Act that a live in couple’s relationship on a par with that between a legally married husband and wife.
The move has been came after justice malimath committee of the SC recommended that all states turn this law. The committee observed that “if man and woman are living together as husband and wife for a reasonable period the man shall be deemed to have married the woman.”
The malimath committee had also suggested that the word ‘wife’ under Cr.P.C be amended to include a woman living with the man like his wife’ which means the woman would also be entitled to alimony.
In Payal Katara V. Superintended Nari Niketan Kandri Vihar Agra and others AIR 2002, the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has right to go anywhere and that anyone- man and woman even without getting married can live together if they wish”.
In Patel and others case (2006) 8 SCC 726 the apex court observed that live-in- relation between two adult without formal marriage cannot constructed as an offence.
In Radhika V, State of M.P AIR 2008, the SC observed that a man and woman are involved in live in relationship for a long period, they will treated as a married couple and their child would be called legitimate.
In Abhijit Bhikaseth Auti V. State of Maharashtra and others on 16.09.2009, the SC also observed that it is necessary for woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. A woman living in relationship may also claim maintenance under Sec 125 CrPC.
On 23.03.2010 the honourable SC in Khusboo’s case was of the opinion that entering live in relationship cannot be an offence. A three judge bench comprising Chief Justice K.G Balakrishna, Deepak Verma and B.S. Chauhan said that “when two adult people want to live together, what is the offence. Does it amount to an offence? Living together is not an offence, it cannot be an offence. Living together is a fundamental right under Article 21. Constitution of India”.
In another leading case of Koppisetti Subbharao v. State of A.P., the Supreme Court held that the classification “dowry” has no magical charm. It alludes to a request of cash in connection to a conjugal relationship. The court has not accepted the contention of the defendant that since he was not legally married to the complainant, Section 498? A did not make a difference to him in a stage ahead in shielding the lady from badgering for dowry in a live-in relationship.
In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha where High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the Pwdva, 2005. The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.
A relationship like marriage under the 2005 Act must consent to some basic criteria. It provides that the couple must be of legal age to marry or should be qualified to enter into a legal marriage. It was also stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Every kind of live-in relationships should not be covered under the Act of 2005. Simply spending a week together or a one night stand would not make it a household relationship. It additionally held that if a man has a “keep” whom he maintains financially and uses principally for sexual reasons or potentially as a slave then it would not be considered, as a relationship in the nature of marriage.
Lately, in a landmark case, Supreme Court dealt with the issue of live-in relationships in detail and also laid down the conditions for live-in relationship that can be given the status of marriage. On 26-11-2013 a two-Judge Bench of the Supreme Court constituting of K.S.P. Radhakrishnan and Pinaki Chandra Ghose, JJ. in Indra Sarma v. V.K.V. Sarma held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage” as per provisions of Pwdva, 2005. But in this case, the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relations. Therefore, the Supreme Court emphasised that there is a great need to extend Section 2(f) which defines “domestic relationships” in Pwdva, 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.
Position in Abroad
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live in couples around the world. While heterosexual couples who are live in relationship are called “Co-habitant”, same sex couples are legally defined as “Civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unware of their rights and duties to each other.
Following are the guidelines given by Supreme Court:
1. Duration of Period of Relationship
Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
2. Shared Household
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration
3. Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.
4. Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.
5. Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.
7. Socialization in Public
Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
8. Intention and Conduct of the Parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”
Lately, a landmark judgment on 8-4-2015 by the seat comprising of Justice M.Y. Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partner.
Legal Status of Children Born Out of Live-in Relationship
The first time when the Supreme Court held the legitimacy of children born out of live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court had said, “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.” Further, the court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of the Constitution of India which sets out the obligation of the State to give the children adequate opportunity so that they develop in proper manner and further safeguard their interest.
Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatiya has held that a child born out of such 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 recognise them as husband and wife and it should not be a “walk-in and walk-out” relationship.
In another case Bharatha Matha v. R. Vijaya Renganathan, the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian judiciary in the absence of specific legislation have been protecting the rights of the children by giving law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.
On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi, Ashok Kumar Ganguly in Revanasiddappa v. Mallikarjun remarked that irrespective of the relationship between parents, birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act, 1955.
Conclusion and Suggestions
Live-in relationship is very popular now a days in India. Many young couples are living together without marriage. A long time ago it was strong social prohibition on live in relationship but these days youth thinks as compared to marriage, the level of commitment in live–in relationship is less. But society is framed with tradition and custom which are foundational pillars. There are so many disadvantages of live-in relationship like as:
(i) It resembles a pure form of high tech adultery and fragile.
(ii) There is no concept of husband and wife.
(iii) It is devoid of Religion, tradition and culture. There are ultimate suffers women and children. There is lack of commitment
(iv) There is no specific law on maintenance, succession, rights of child, custody relating to live in relation.
(v) There is no legal provision to secure tech future of a child born from relationship which has not been the shape of marriage. The Hindu marriage Act 1955 gives the status of a legitimate child to every child whether result of void, voidable or valid marriage. What will his position about proper and maintenance rights, not defined (vi) Rights responsibilities and obligations of parties are not defined.
(vii) What will the reasonable time when parties will treated as husband and wife, not clear.
(viii) Live in relationship can be dissolved at any moment. It cannot build safe and secure society
So humble suggestion is that above disadvantages should be checked. Live in relationship is individualistic and human rightist approach. Although the live in relationship is quite prevalent in western countries, but reality in India is different. Here marriage is still an institution which preferred over any form of union. Earlier through Domestic Violence Act, 2005 female of live in relationship were given protection, hence it was on the verse of acceptance by covering it under the ambit of legal term. Through live in was considered as disturbing the very social fabric but seeing the surmounting murder of such relationship the judiciary’s approach is welcome step.
In the author’s view, there must be a separate statute dealing with this current issue so that rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship should be protected. Not all live-in relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time, there should also be awareness among live-in partners regarding the legal consequences arising out of such living arrangement.