The point of discussion is whether in a broken Live- in relationship, the non- maintenance of a woman would attract Section 3 of the Domestic Violence Act. Before going into detail, the meaning of the Live in relationship and the purpose and scope of The Protection of Women from Domestic Violence Act 2005 (the Act) have to be understood. Live in relationship is defined as a living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.
There may be cases where one of the parties or both of them are married. The scope of the Act is to be “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto”. So clearly, it is not a legislation which applies to women at large irrespective of the context, but is applicable to victims of violence occurring within the family or connected with or incidental thereto, i.e., in a domestic relationship. As per Section 2(f) of the Act “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.” As per the above definition cohabitation is not the acid test, it should be accompanied by six of the criterion mentioned above.
There is no ambiguity as far as the other five terms are concerned. But it is only with regard to interpretation of the term “ a relationship in the nature of Marriage” that many courts have tried to rope in Live in relationships. The issue was discussed at length in Indra Sharma Vs. V.K. Sharma , where in the Honorable Supreme Court said “Before examining the term “relationship in the nature of marriage”, we have to first examine what is “marriage”, as understood in law. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife”.
The Hon’ble Court further stated , ”Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the ‘Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc.
Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship”. Marriage has lot of significance both personally and socially. Marriage places a legal and social obligation on the parties to provide each other cohabitation, faithfully company and also the obligation of bringing up children as responsible social beings. The term Marriage is not defined in the Hindu Marriage Act, the conditions of a valid marriage are listed out viz.,
(i) neither party has a spouse living at the time of the marriage
(ii) at the time of the marriage, neither party (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”
All personal laws concur that marriage is a social institution out of which legal and social rights and liabilities emanate.
The Hon’ble Supreme Court in Indra Sharma Case mentioned Supra says “Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. In a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship”.
In Pinakin Mahipatray Rawal v. State of Gujarat the Hon’ble Supreme Court has held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on. This may not be the case of Live –In relationships, as it is purely an arrangement between the parties unlike, a legal marriage. The Act recognizes relationships in the nature of marriage and not Live in relationships as such.
The Supreme Court has charted out the following guidelines to check the nature of relationship between the parties:
1) Duration of period of relationship Section 2(f) of the 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.
(6) Children 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. If any Live in relationship qualifies in the above tests, it may be called a relationship in the nature of marriage and not otherwise.
In Gokal Chand v. Parvin Kumari the Apex Court has held that the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.
In Velusamy vs. D.Pachaiammal the Hon’ble Supreme Court has said “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. And further said “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'
The Hon’ble Supreme Court while stating that all live in relationships do not fall under the category “relationships in the nature of marriage” to attract provisions of th protection of Women from Domestic Violence Act. The raison d etre seems to be not to do injustice to the legally wedded wife and children. The Court though sympathizing with the women who fall out of such relationships and who are not financially independent categorically states that all live in relationships cannot be relations in the nature of marriage thus not entitled to the reliefs granted by the D.V. Act Resources