“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”
–Hon’ble Justice A.K Ganguly and G.S. Singhvi in Revanasiddappa and others V. Mallikarjun and Others[1]
Abstract
Basically enunciating, when an unmarried couple lives together in a lasting period relationship that is similar to a marriage, such living display elucidate live-in-relationship. We can say it’s like a cohabitation. In Indian laws, ‘Marriage’ term hasn’t been described in anywhere, though the concept of marriage is well recognized. Marriage is a foundation of family life which initially consists of a man and a woman. It’s somewhat an everlasting dedication of two people who live amicably and mutually, where they are socially allowed to have children which is inferred as a right to have sexual relationship. This is how we can recognize it. A fundamental societal element consists of a lot of things and family life is one of them where one has to sustain the balance which is seen obligatory.
Introduction
Live-In Relationship has been one of the most controversial legal topics in the instant past. The aspects of Live-in relationship were not very clear in India until the Hon’ble Supreme Court gave its landmark judgment in D Veluswamy Vs D Patchaiammal about ‘relationship in nature of marriage’ under Protection of Women from Domestic Violence Act, 2005. The whole notion of live-in relationship is not as simple as it appears, but is multi-dimensional bringing along with it many issues and complications.
In India, marriage is a sacred conduct of religious liturgy. The pairing is holy and inexpungible in life and ceaseless till death. The parents are bound by the principles to find a partner for their children, and children are to agree whom the parents appoint.
Live-in-relationship was considered taboo and it is still considered in some societies. There are couples living a live-in-relationship whether the society accepts it or not. People usually are awestruck by things that other people do who are different from them. As in the matter of fact, Indians tend to change to western culture obviously awestruck by the culture found there. Live-in-relationship is one of them. Our Indian society believes in marriage where a man and a woman cohabitate under a roof by marrying through religious rites by the grace of parents and other families. As we all believe that our minds are developing through knowledge, so is our society and ideology, just like world is changing constantly.
However, in Indian context there is an urgent and dire need to recognize such relationship through legislation which would empower both the parties with rights and create obligations with duties thereby confining the ambit of such relationship. Therefore, the law so enacted on live in relationship should keep in mind the basic structure of tradition that prevails in the Indian society.
Foreign on Live-in-relationships
Foreign countries have different opinions or views on live-in-relationships. In Bangladesh, by Salishi System of informal courts, peculiarly in rural areas cohabitation after divorce is often punished. In 2005, cohabitation would be punished for two years behind the bars which was proposed by an Islamic penal code in Indonesia. In countries where Sharia Laws are followed, cohabitation is not legal. In developed countries such as USA, UK, Norway, Australia, etc., live-in-relationships are not a problem. In fact, its legal and also practiced and accepted by many.
India on Live-in-relationship
In Khushboo vs Kanniammal & Another [2], it was stated that it cannot be composed as an offence when a man and a woman cohabitate without marriage. When two adults mutually want to cohabitate then we cannot simply elucidate an offence here. As in Article 21 [3] which states right to live and right to private life, we can distinctly perceive that live-in-relationship is aligned with it. Live-in-relationship is not an offence, it was decided by the honorable three judge bench. In Indra Sarma vs VKV Sarma [4], live-in-relationship was defined as an unmarried man and an unmarried woman mutually living together under a same roof. Court has established the opinion on live-in-relationship throughout diverse judgments but there is no specific responsibility or right to the couples in live-in-relationship. The court has granted few rights so that there can’t be any misuse of rights. But there are still vital problems such as domestic violence, crime, maintenance, children born out of live-in-relationship.
In Domestic Violence Act, the legislature has already recognized live-in-relationship by giving rights to those females who may be wives or those who are not legally married but in a relationship with a man living together. Section 2(f)[5] states that “Domestic relationship are between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Section 125 [6]has been held forth for live-in relationship. In Evidence Act, 1872 the court speculated the subsistence of any fact that marriage will be presumed when a man and a woman live together for a long period of time. There are still no right on children born out of live-in-relationship.
In S.P.S. Balasubramanyam vs Suruttayan[7] , it was held 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”. Further court held that “The statutes and legislation to an extent that it shows conformity from Article 39(f) [8] 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.”
Landmark Judgement of Hon’ble Supreme Court in D Veluswamy Vs D Patchaiammal [9]
Some relevant paragraphs are reproduced herewith:
para 16. However, the question has also to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005.
Section 2(a) of the Act states:
“2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”;
Section 2(f) states:
“2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”;
Section 2(s) states:
“2(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
para 20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. Unfortunately, this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression. We think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
Para 33. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.
para 34. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’
para 35. No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live in relationship’. The Court in the grab of interpretation cannot change the language of the statute. We cannot interpret the law beyond its words. This landmark judgment is elaborative in itself. Hon’ble Supreme Court has repeatedly emphasized the difference between ‘live in relationship’ and ‘relationship in nature of marriage’. This judgment is self-explanatory about its reasons for giving requirements to explain any relationship in the pretext of the Protection of Women from Domestic Violence Act, 2005.
The Madras High Court has in a judgement said if any unmarried couple of the right legal age “indulge in sexual gratification,” this will be considered a valid marriage and they could be termed “husband and wife. The court said that if a bachelor has completed 21 years of age and an unmarried woman 18 years, they have acquired the freedom of choice guaranteed by the Constitution.
“Consequently, if any couple choose to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional considerations the court said marriage formalities as per various religious customs such as the tying of a mangalsutra, the exchange of garlands and rings or the registering of a marriage were only to comply with religious customs for the satisfaction of society. The court further said if necessary either party to a relationship could approach a Family Court for a declaration of marital status by supplying documentary proof for a sexual relationship. Once such a declaration was obtained, a woman could establish herself as the man’s wife in government records. The court also said if after having a sexual relationship, the couple decided to separate due to difference of opinion, the ‘husband’ could not marry without getting a decree of divorce from the ‘wife’. Justice C. S. Karnan[10] passed this order.
Conclusion
It’s better to have a live-in-relationship than having a divorced life but our society has not fully accepted live-in-relationship. It’s hard for the people in this relationship to face the society and stand in societal foundation. There is no law that prohibits it yet so it is not an offence. In live-in-relationship, women who became victims were helped and supported by the court by interpretations and validations and brought justice. Domestic Violence Act has also acknowledged women in live-in-relationships yet no proper law on children born out of live-in-relationships. But to put awareness in society as well as in couples about live-in-relationships, distinguished laws, acts, rules, statutes should be regulated or made to not just spread awareness but also to spread the responsibilities and the consequences of crimes.
The existing marriage laws in India need to incorporate and provide for common law marriages or relationships in the nature of marriage. Wherever the need is felt to amend the law in order to provide rights and duties for such a relationship it should be done so. There is a need to revamp the legal system to accommodate the changes that take place in society, but at the same time there is no need to enact a new and separate legislation to deal with the same.
References:
1. On 31st March, 2011 Arising out of Special leave Petition © No. 2639/09, Para27
2. 2010 5 SCC 600
3. The Constitution of India, 1950
4. 2014 (1) RCR (Crl) 179 (SC)
5. Domestic Violence Act, 2005
6. Criminal Procedure Code, 1973
7. AIR 1994 SC 133
8. The Constitution of India, 1950
9. In CRIMINAL APPEAL NOS. 2028-2029 Of 2010 decided on 21.10.2010 by Supreme Court of India
10.https://www.thehindu.com/news/national/tamil-nadu/couples-who-have-premarital-sex-to-be-considered-married-says-hc/article4824017.ece (lastly visited on 19th December 2020)
About the author –
This article is written by Nibin Louis, 3rd year BBA+LLB(H) student at Galgotias University, Greater Noida
