The Socio-Legal Dimensions of Live-In Relationships

Abstract:

The article deals with the issue of “Socio-Legal Dimensions of Live-In Relationships in India”. Live-In Relationships has been one of the most controversial legal topics in the instant past. The aspects of Live-in relationships was not very clear in India until The Hon’ble Supreme Court gave its landmark judgments on the topic in the year 2010, thereby making its stand firm on the issue and upholding the sovereignty of law in India. Thus, the issue is steadily creeping up in the Indian Society and requires legislation to negate chances of misuse of the relationship.

Indian Society and Perspectives:

The word Live-in has been particularly alien to the Indian Society which has been lighted up particularly in the recent years with the advent of such relationship practiced in the metropolitan cities. Such practice is still a social taboo in a major part of the country which is constituted by villages and towns. A larger and clear picture of India thus will be substantiated by the rural India and not a handful of metros.

In  India there exists only one kind of relationship between an unrelated couple of a male and female. The said social union is termed as “Marriage” which is more of a sacrament and a divine concept and is practiced as a ritual since ages. Therefore the Indian public is unaware of the concept of Live-in. Furthermore, the concept of maitraya karars  is a known phenomena which has been practiced in traces in some parts of Gujarat and also has been brought to the notice of the courts. But in spirit such concept is radically different from live-in concept.. The lack of commitment, the disrespect of social bonds and the lack of tolerance in relationships has made a transit from the sacrament to arranged marriages to love marriages and ultimately to live-in relationships.

The Hindu Marriage Act  considers the legitimacy of child born through such relationships and establishes their succession and property rights. Furthermore, the Protection of  Women from Domestic Violence Act also provides some condolence to such aggrieved parties from any kind of atrocities faced by the females in a live-in relationships. The Supreme Court of India has taken a step further by giving landmark judgments particularly in the year 2010 which provides some clarity to the stand of such relationships in Indian context. 

However in Indian context there is a 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.

Legal Status in other countries:

The Legal status and laws governing the live-in relationships is not the same in all the countries. It varies from country to country. Some countries like USA provide a liberal view to the concept whereas, countries of the middle-east considers it a social taboo. There is difference over the property rights of the spouse and also inheritance and succession rights of the children  born through such relationships.

For instance, in United States of America exists the concept of Cohabitation Agreements containing the explicit mention of rights and liabilities under such agreements but still the social status and sanction as enjoyed by Married Couples is not enjoyed by couples in a live-in relationship. Thereby, discouraging attempts of live-in relationships with legal sanction. While in China couples sign a contract for live-in relationship. The child born through such relationships enjoys the same succession and inheritance rights as are enjoyed by children born through marriages.

The concept is well substantiated and given the most vital force in France wherein two adults of opposite sex or same sex can enter into an agreement to live together and organize their lives and thereby enjoy the rights of a married couple and also work towards social welfare. Such agreement can be revoked by both or either of the parties by giving three months prior notice to the other party. Such agreements or pacts are popularly known as “pacte civil de solidarite”. The legal status of the pact was passed by the French National Assembly in 1999 and allowed couples to enter into agreements for a social union. While in England, such couples do not have the same rights as that of a married couple. The Spouse has no inheritance right over the other’s property unless supported by a will.

The status in Scotland is by and far the most clear and substantive by conferring legal aspect to the live-in relationship in the year 2006 . The Section 25 (2) of the Act says that a court of law can consider a person as a co-habitant of another. The three essentials for declaring somebody cohabitant is the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements. Whereas Section 28 of the said Act gives a cohabitant the right to apply in court for financial support. This is in case of separation and not death of either partner. Furthermore if a partner dies intestate, the survivor can move the court for financial support from his estate within 6 months.

The position in various countries is different making France and Scotland the most liberal countries as far as live-in relationship concept is concerned. And while most of the countries are legislating laws to bind this new facet of social union and providing legal sanctity to the union. In India, the judgments given by the Supreme Court are further clearing perceptibility of Live-in’s in India and one would clearly presage that soon there would be legislations governing this specific field of law in India as well.  

The Legal aspects of Live-In Relationships

A walk-in and walk-out relationship.

In the words of Dhingra J., “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa” 

The position of Live-in Relationships is not very clear in the Indian context but the recent landmark judgments given by the Hon’ble Supreme Court provides some assistance when we skim through the topic of Live-In and analyze the radius of the topic in Indian legal ambit.

The couples tied with the knots of live-in relationships are not governed by specific laws and therefore find traces of assistance in other civil laws. The law is neither clear nor is adamant on a particular stand, the status is dwindling.

The Privy Council in A Dinohamy v. W L Blahamy laid down the principle that “Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage”. Furthermore the Supreme Court granted legality and validity to a marriage in which the couple cohabited together for a period of 50 years. The Supreme Court held that in such a case marriage is presumed due to a long cohabitation.

Furthermore the Hon’ble Allahabad High Court stated that a live-in relationship is not illegal. Katju J. and Mishra J. stated that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”

The Hon’ble Supreme Court accepted the principle that a long term of cohabitation in a live-in relationship makes it equivalent to a valid marital relationship.  The Supreme Court also held that live-in relationships cannot be considered as an offence as there is no law stating the same.

In the well talked about case of S. Khushboo v. Kanniammal , the Supreme Court gave its landmark judgment and held that there was no law which prohibits Live-in relationship or pre-marital sex. The Supreme court further stated that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex.

In another case the Supreme Court stated that if man and woman are living under the same roof and cohabiting for a number of 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.

Hence the High Courts and the Hon’ble Supreme Court  in a number of decisions delivered until recently have showed the positive signs of recognizing the legitimacy of the live-in relationships and have also shown the inclination for a legislation to be enacted with the objective of protecting the rights of couples in a live-in relationship.

Rights of Women in a Live-in Relationship in India

The Rights of Women in such relationships do not have much condolence except some traces of assistance offered by the Protection of Women from Domestic Violence Act which covers in its ambit “relationship similar to marriage” or live-in relationships. The definition of “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 . Hence the words in the nature of marriage are self explanatory and buy within its meaning the social concept of live-in.

Furthermore in the recent years the recommendations by various committees and NGO’s have awaken the spirits of justice in the interest of women specially aggrieved by such relationships. Apart from this the Hon’ble Supreme Court has also given landmark judgments make its stand clear on the issue. For instance in the landmark case of D. Veluswami v. D. Patchaimmal  it was held a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters, the Supreme court had observed that merely spending weekends together or a one night would not make it a domestic relationship.

In order to get maintenance, the essential four conditions are:

1.      The couple must hold themselves out to society as being akin to spouses.
2.      They must be of legal age to marry.
3.      They must be otherwise qualified to enter into a legal marriage.
4.      They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
 

The Supreme court observed that not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005.If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not be a relationship in the nature of marriage.

The National Centre for Women made recommendations to the Ministry of Women and Child Development to include female live-in partners within the ambit of section 125 of Cr.PC  in order to establish their rights and make them entitled to right to maintenance. The Hon’ble Court also in the case of Abhijit Auti v. State of Maharashtra and others  supported the above principle and furthermore the Maharashtra Government showed a positive sign by accepting the Malimath Committee  Report and also the Law Commission Report and held that if a live-in relationship continues for a very long time she is entitled to enjoy the rights of a wife but it was recently ruled out that a wife under section 125 of Cr.PC is a divorced wife and the right to maintenance should only be enjoyed by a divorced wife and not by a female partner who merely cohabited with her male partner .Since in case of a live-in relationship there exists no marriage and hence no concept of divorce. Therefore a female partner under live-in relationship should not be construed as a wife under section 125 of the Cr.PC. The decision of the Hon’ble Court is in the righteous spirit as empowering any women who cohabited with a man would result in misuse of the legal provisions under section 125 and would therefore be unfair on the part of the male partner as well. Definition of the word "wife" in section 125 of the Code be amended to include a woman who was living with the man like his wife for a reasonably long period.

The need of the present hour is not to try bringing live-in relationships under the ambit of any existing law but to enact a new different law which would look into the matter of live-in’s separately and would grant rights and obligations on the part of the couples thereby reducing the cases of misuse of existing laws and also to reduce cases of atrocities faced by the female partners under such relationships.

Rights of Child born through a Live-In Relationship    

The Child born through a Live-In Relationships enjoys the same rights of succession and inheritance as are enjoyed by a child through a married couple under the Hindu Marriage Act.  Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. 

Thus in order to keep up the spirits of law in the righteous direction and to subside the social evils wherein illegitimate child was denied his rights the Hindu Marriage Act has granted legitimacy to children born through marriages which are not valid. Hence such definition brings within itself the ambit of live-in relationships and children born through such relations.

While still the other laws have not guaranteed such legality to children born through such relationships and therefore the status is dwindling for legal status of children which results in extensive misuse of the provisions and still escape liability. Hence the legality of a child is doubtful in other laws and has to be proved beyond reasonable doubt. Furthermore if the live-in partners decide to separate the question of the future of the child is tossed. Therefore the laws regarding the guardianship should be amended to include within its ambit the guardianship of children born through such relationships.

Conclusion:

The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in relationship should have no bondage between the couples because the sole criteria for entering into such agreements is based on the fact that there lies no obligation to be followed by the couples whereas in some instances the Court has shown opposite views holding that if a relationship cum cohabitation continues for a sufficiently and reasonably long time, the couple should be construed as a married couple infusing all the rights and liabilities as guaranteed under a marital relationship.

It also appears strange if the concept of live-in is brought within the ambit of section 125 of the Cr.PC where the husband is bound to pay maintenance and succession as the ground of getting into live-in relationship is to escape all liabilities arising out of marital relations. If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there would arise a conflict between the interests of the wife and the live-in partner. Apart from lacking legal sanction the social existence of such relationships is only confined to the metros, however, when we look at the masses that define India, there exists no co-relation between live-in relationships and its acceptance by the Indian society. It receives no legal assistance and at the same time the society also evicts such relationships. The Parliament should try and enact a separate branch rather than trying to bring live-in within the ambit of the existing laws as such futile approach would further adversely complicate the judicial mechanism.

The Indian Legal system should devise new strategies in order to counter the present existing problems of live-in. The live-in relationships should be presumed as permanent after a specific period of time. Furthermore, the children born through such relationships irrespective of the parents religion should be guaranteed the rights of inheritance, succession etc. The female partner’s role to prove the burden of such relationship should be relaxed. Persons who enter into a live-in relationship with a living spouse should be convicted for bigamy. A separate legislation should only be competent enough to grant assistance to the female partners aggrieved by such relationships. At last, the sooner our society accepts live-in relationships, the better chances the Indian Judiciary has for passing judgments which are in the righteous spirit of law and in the interest of justice, equity and good conscience.