STUDY OF LANDMARK CASES ON LIVE-IN-RELATIONSHIP
– Akansha Choukse1
In India, marriage is considered as a sacramental and perpetual union and legal consequences of marriage that follow, further add to the sanctity of the marriage. The concept of Live-in- Relationship was alien to Indian custom, and was considered to be flourishing only in glitz and glamour world of western countries and something to be frowned upon. However, over the years the sentiments over live-in-relationship have slightly matured down, with courts taking progressive look over it.
This paper deals with the modern concept of live-in-relationship and suggests that, there is no law binding the partners together, and subsequently, either of the partners can walk out of the relationship and anydispute arising is addressed by the court through Domestic ViolenceAct, 2005 and individual facts of the case. Though the common man is still hesitant in accepting this kind of relationship.
Protection of women from Domestic violence Act, 2005 provides for the protection and maintenance, therebygranting the right of alimony to an aggrieved live in partner. This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. While the institution of marriage promotes adjustment, the foundation of live in relationships is individual freedom.
Live-in relation, which can also be referred to as cohabitation is an arrangement whereby two people agree to live together on a permanent or long-termbasis in a sexuallyand/or emotionally intimate relationship. However, that moniker is typically used to denote unmarried couples who live under the same roof. Cohabitation around the world have evolved differently. There is multitude of reasons why a couple may want to live together. This part is been described in later part of research. It may be because they want to evaluate their compatibility in a more practical way, or to establish financial security before officially tying the knot. Apart from that, it may be also due to legal constraints that would not allow them to live together.2
1 B.A.LL.B., III Sem., Indore Institute of Law
2 Cohabitation in India [last visited on July 19 ,2018]
MEANING : A living arrangement in which an unmarried couple lives together under the same roof in a long-term relationship that resembles a marriage is known as a live- in-relationship. Thus, it is the type of arrangement in which a man and woman live together without getting married. They see marriage as commitment while live-ins as abstinence from responsibility. Since such debates are held between logic and rationale versus rhetoric and emotional blackmail, they do not progress in a linear fashion and are immensely frustrating for both the parties.
In India, Domestic ViolenceAct 2005 included within its purview live-in relationships which is stated as “a relationship resembling the nature of marriage” and can go to court if abused. Since this covers economic abuse, it affords women, protection in case of a violation of their financial rights. The Supreme Court has stated that if a man and a woman “lived like husband and wife” for a long period and had children, the judiciary would presume that “the two were married”. In another case the court even declared, “living together is a right to life.”
DEFINITION: Live-in-relationship in simple terms can be explained as a relationship in the nature of marriage where both partners enjoyindividual freedom and live in a shared household3 without being married to each other. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no specific law trying them together and consequently either of the partners can walk out of the relationship, as and when, they will to do so.4
JUDICIAL TRENDS IN INDIA
a) LIVE-IN RELATIONSHIPS NOW ACCEPTABLE NORM IN SOCIETY: NEW DELHI:
Emphasizing that law should evolve according to changing times, the Supreme Court on Thursday said that live-in relationships, which were earlier considered to be a taboo, has now become an acceptable norm in society and is not considered a prohibited relationship.
3 SECTION 2 (s)
4 From web page, https://legal-dictionary.thefreedictionary.com [ last visited on 19 July 2018 ,08:00 pm]
The Supreme Court over the years has recognized live-in relationships and has recently held that if a man and woman “lived like husband and wife” for a long period and had children, then the judiciary would presume that the two were married and the woman would be eligible to inherent the property after death of her partner.5
A bench of Justices Dipak Mishra and Prafulla C. Pant passed the remarks after attorney general Mukul Rohatgi, while justifying retention of penal provision for defamation, said that reputation of a public figure having a live-in relationship, maybe tarnished if someone exposes the relation which is a very private affair. After a number of verdicts from the Supreme Court of India and High Courts, the present status is such that the live-in partner does not get all the rights of a legally wedded partner, but the women who gets abused in a live-in relationship can seek protection from the government under the same law under which a legally wedded wife can seek in case she gets abused.
Thus, in case man mistreats his life partner, pressurizes her to do or not to do anything and takes it easy that as she is not his legally wedded wife, so he can escape very easily, it is not that easy at present. Such abused live in partner can lodge a F.I.R., seek advice from a good family lawyer, and file a case to penalize him for his wrong activities on her.6
b) CHILDREN BORN OF LIVE-IN RELATIONSHIPS ARE LEGITIMATE, SUPREME COURT SAYS
Giving an important clarification on live-in relationships, Supreme Court has said that “if a man and woman “lived like husband and wife” for a long period and had children, the judiciary would presume that the couples live as husband and wife”. A bench of Justices B. S. Chauhan and J. Chelameswar issued the clarification on a petition filed by advocate Uday Gupta, who had questioned certain sweeping observations made by the Madras high court while dealing with the issue oflive-in relationships. Importantly, apexcourt stated “children born out of prolonged live-in relationship would not be considered illegitimate”. Gupta had challenged the High Court’s observation that “a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized”.
5 From an article in NDTVNEWS.COM,26th June,2018 [last seen on 19, july,2018, 08:30pm]
6 From an article in legallyindia.com,29th October,2015[last seen on 19th July,2018, 09:30 pm]
His counsel, M R Calla, sought deletion of the HC’s observations terming them as untenable in law. He apprehended that these remarks could demolish the very institution of marriage.7
c) ADULT COUPLE CAN LIVE TOGETHER WITHOUT MARRIAGE: STATED BY SUPREME COURT
KERALA HIGH COURT:
The observations came while top court was hearing a plea filed by Nanda Kumar against Kerala High Court order annulling his marriage with Thushara on the ground that he had not attained the legal age of marriage. The Supreme Court held that live-in relationships were now even recognized by the Legislature and they had found a place under the provisions of the Protection of Women from Domestic Violence Act, 2005.
An adult couple has a right to live together without marriage, the Supreme Court said, while asserting that a 20-year-old Kerala woman, whose marriage had been annulled, could choose whom she wanted to live with. The top court held that live-in relationships were now even recognized by the Legislature and they had found a place under the provisions of the Domestic Violence Act. The observations came while the apex court was hearing a plea filed by one Nanda Kumar against a Kerala High Court order annulling his marriage with Thushara on the ground that he had not attained the legal age of marriage. Prohibition of Child Marriage Act states that a girl can’t marry before the age of 18, and a boy before 21.8
A bench of Justices A. K. Sikiri and Ashok Bhushan said their marriage could not said to be “null and void” merely because Nanda Kumar was less than 21 years of age at the time of marriage. Appellant no.1 as well as Thushara are Hindus. Such a marriage is not a void marriage under the Hindu Marriage Act, 1955, and as per the provisions of Section 12, which can be attracted in such a case, at the most, the marriage would be a voidable marriage. “It is sufficient to note that both appellant no.1 and Thushara are major.” “Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside wedlock,” the bench said. The apex court said that “we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live”.
7 SPS Balasubramanyam v. Sruttayan ,1994 AIR 133, 1994 SCC (1) 460, Section 114 of the Evidence Act.
8 Judgement by Kerala High Court, Published in The New Indian Express.com., updated on 01 june,2018[last seen on 18, july,2018]
c) SMT. SABANA @ CHAND BAI & ANR. V. MOHD. TALIB ALI & ANR.
A perusal of the decision in Inderjit Singh Grewal’s case (supra), reveals that the question with regard to the right of the divorcee wife to maintain the petition under Section 12 of the Act, keeping in view various provisions of the act indicating that subsistence of the marriage is not condition precedent for maintaining the petition under Section 12 did not arise for consideration of the Court inasmuch as the complainant wife proceeded on the premise that since the divorce obtained was a sham transaction and she continued to live with the respondent- husband even thereafter and therefore, marital relationship continued, which was not accepted by the Court holding that even if a decree is void-ab-initio declaration to that effect has to be obtained by the person aggrieved from the competent court and no such declaration can be obtained in collateral proceedings.
In the present case, divorcee wife sought the relief under the Act on the basis of the act of violence alleged to have been committed subsequent to the domestic relationship having come to an end. Thus, on the fact situation obtaining in the said case, the decision of the Hon’ble Supreme Court in the matter of D.Velusamy’s case was also distinguished by the Court saying that the said case relates to live in relationship without marriage.9
DIFFERENCE BETWEEN MARRIAGE AND LIVE-IN-RELATIONSHIP
Marriage, also called as matrimony or wedlock, is a socially/ritually recognized union or contract between spouses that establishes certain rights and legal obligations towards each other. Considering the diverse culture in India, different laws have been framed which lay down the procedures and guidelines for proper execution of marriages in various religions. Marriage laws have been framed to provide remedies for disputes arising out of wedlock in different religions.
IndividualActs were framed for individual religion due to the different customs and traditions followed by each of them. In case of inter-cast marriages, the Special Marriage Act shall be applicable. Apart from maintenance under personal laws, Section 125 of the Code of Criminal Procedure, 1973 also provides for maintenance inter alia a wife is unable to maintain herself.
9 Smt. Sabana &Anr. v/s. Mohd. TalibAali & Anr.
Women can seek for additional maintenance apart from the maintenance received by her under any other law as per Section (2) (1) d of Protection of Women against Domestic violence Act (D.V. Act), 2005. Live-in relationship in simple terms can be explained as a relationship in the nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other. It includes continuous cohabitation between the parties without any reasonable responsibility or qualification. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, theywill to do so. There is no legal definition of live in relationship and therefore the legal status of such type of relationships is also unsubstantiated.
Indian law does not provide any rights or obligations on the parties in live-in relationship. The status of the children born during such relationship is also unclear and therefore, the court has provided clarification to the concept of live-in relationships through various judgments.
The right to maintenance in live-in relationship is decided by the court in accordance with the Domestic ViolenceAct, 2005 and the individual facts of the case. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005, provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.10
LANDMARK JUDGMENTS OVER THE YEARS [ IN FAVOUR]
Following are the landmark Supreme Court judgment on the concept of live in relationship:
1) Badri Prasad v. Dy. Director of Consolidation, 1978:
This was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favor of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favor of legitimacy and frowns upon bastardy.
10 Central Government Act, The Protection of Women from Domestic Violence Act, 2005 www.legallyindia.com/views/ entry/right-of-maintenance-to-women-in-live-in-relationships
2) Tulsa & Ors v. Durghatiya & Ors 2008:
The Supreme Court provided legal status to the children born from live in relationship. It was held that one ofthe crucial pre-conditions for a child born fromlive-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife and it must not be a “walk in and walk out” relationship. Therefore, the court also granted the right to property to a child born out of a live-in relationship.
3) D.Velusamy v. D.Patchaiammal, 2010:
The judgment determined certain pre-requisites for a live in relationship to be considered valid. It provides that the couple must hold themselves out to society as being akin to spouses and must be of legal age to marry or qualified to enter into a legal marriage, including being unmarried. It was 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.
The court held that not all relationships will amount to a relationship in the nature of marriage and get the benefit of the Domestic Violence Act.11 It further clarified 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. Here, the court relied on the concept of ‘palimony’ which was used in the USA for grant of maintenance in live in relationships. This concept was derived in the case of Marvin vs. Marvin, a landmark judgment of the California Superior Court.
4) S. Khushboo v. Kanniammal & Anr12:
The Supreme Court in this case, dropped all the charges against the petitioner who was a south Indian actress. The petitioner was charger under Section 499 of the IPC and it was also claimed that the petitioner endorsed pre-marital sex and live in relationships. The court held that living together is not illegal in the eyes of law even ifit is considered immoral in the eyes ofthe conservative Indian society. The court stated that living together is a right to life and therefore not ‘illegal’.
11 From a legal website Live.Law.com [last seen on 19th July,2018 ,08:30 pm]
12 (2010) 5 SCC 600
5) Indra Sharma v. V.K.V. Sharma13:
The recent judgment of the Supreme Court has illustrated five categories where the concept of live in relationships can be considered and proved in the court of law. They are as follows;
• Domestic relationship between a married man and an adult unmarried woman entered knowingly;
• Domestic relationship between a married man and an adult unmarried woman, entered knowingly,
• Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery,
• Domestic relationship between an unmarried adult female and a married male, entered unknowingly,
• Domestic relationship between same sex partners (gay or lesbian).
The Court stated that a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the Protection of women against Domestic Violence Act, 2005 and provided certain guidelines to get an insight of such relationships. Also, there should be a close analysis ofthe entire relationship, in other words, all facets of the interpersonal relationship need to be considered, including the individual factors.
The Court in this case affirmed that the relationship in the present case is not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the Domestic Violence Act.
In this case, the appellant admittedly entered into a relationship with the respondent despite of knowing that the respondent was a married man with two children born out of the wedlock who opposed the live-in relationship since the inception. The Court further added, “If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship.
13 2013 (14) scale 448
Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the Domestic Violence Act, as there is also no evidence of a live-in relationship between the appellant and the respondent as per the given guidelines”.
The Court held that the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. Furthermore, the Domestic Violence Act does not take care of such relationship which may perhaps call for an amendment of the definition of section 2(f) of the Domestic Violence Act, which is restrictive and exhaustive.
After going to above stated cases it can be stated that, from past years, variety of conclusions can be drawn. Some cases were held in favor of domestic relationship and shared households other were not, due to some and other reasons. This year itself, Supreme Court of India had thrown its weight behind live-in relationships, a practice that is often frowned upon because of what could perhaps be called miscomprehended notion amongst a large chunk of our population about morality and ethical values.
On May 22, 2013, apex court had observed that if a man in love want to live in a relationship that of a husband and a wife like that of a couple, in such arrangement with the much-needed protection of the law of the land.” 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 K.G. Balakrishnan, Justices Deepak Verma and B.S. Chauhan observed. Apparently, the South Indian cine star was bought amidst such legal controversies onlybecause she uttered a few sentences in favor of live in relationships half-a-decade back. Her detractors aggressively retorted by arguing that it was “offensive” and a source of “public nuisance “to ask males not to expect virginity from the women they would marry. However, their argument Failed to convince India’s highest judicial forum.
“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 in a rather stern manner. “It is part of right to life to go away with someone you love,” the bench remarked. Slowly and gradually, live in relationships are becoming popular in India – especially across all major cities. Unlike a few years back, when social norms were strictly against such relationships even in the urban areas, a lot of young couples these days are living together without marriage.
The primary reasons behind cohabitation between unmarried couples in India, include:
• Young couples in love try it to know each other better
• Many try it to test their compatibility as a couple
• College students or young professionals also cohabit to limit their expenses (for example, house rent). However, in the Indian society which more often than not misinterpret its traditions and customs, there are several disadvantages of live in relationships such as:
• It can be mistaken for a high-tech adultery
• Because of lesser commitment, women in such relationships are often vulnerable to future sufferings
• A child resulting from such relationship may be subject to social stigma – especially if the father refuses to officially marry the mother.
• There is no legalprovision for securing the future ofchildren born fromlive in relationships.
• Rights, obligations and responsibilities of both parties are not clearly defined
• It is not clearly defined how long a live-in couple must wait before being considered husband and wife.
• Live in relationships are often based on short term objectives, and therefore can dissolve at any moment. Hence, it can prove to be a failure in building a safe and secure society.14
14 From a legal site vakilno1.com, legal views regarding live-relationship-India-closer-look. [last seen on 18 July ,2018, 09:30 pm]
Accordingly going through to wider area of this concept, we came to know that the legal status of live-in relationships in India has been evolved and determined by the Supreme Court in its various judgments. However, there is no separate legislation which lays down the provisions of live in relationships and provides legality to this concept. Though the concept of live-in relationship is considered immoral by the society but is definitely not illegal in the eyes of the law. The Supreme Court states that living together is a right to life and therefore it cannot be held illegal. The court has also tried to improve the conditions of the women and children borne out of live in relationships by defining their status under the Domestic Violence Act, 200515 if the relationship is proved to be “relationship in the nature of marriage”.
In a recent case of May 5th, 2015, the Supreme Court bench of Justices Vikramajit Sen and A M Sapre, dismissed a petition by the petitioner ‘Z’ who worked in the Bollywood and contended that the respondent could not claim the status of a wife to be legally entitled to get maintenance under the Hindu Marriage Act, 1955. The Court held that cohabitation of a couple would give rise to the presumption of a valid marriage and if a live-in relationship breaks down, the man is bound to pay maintenance to the women.
In the landmark Indra Sharma Case16, the Court stated that such relationship may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre- marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against. Thus, the Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships are protected, though such relationship might not be a relationship in the nature of a marriage.