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Living relation without divorce

Page no : 2

Tajobsindia (Senior Partner )     25 May 2012

@ Generic


With respect to my fellow ld. brothers I am amazed to hear distorted version of usage of words and phrases here; adultery vis-a-vis bigamy by ld. Advocates in their replies thus confusing the queriest which he admits now.


For setting straight the material records here are fundamental short and sweet difference with added definition on live-in prater thrown in for everyone’s clarity and continuing debate by pointed three ld. brothers who confused this querriest with usage of words and phrases;



Definition sharing based on Legal parameters as it exists on today’s interpretation by highest Court of the land;


A. When a man is having a s*xual intercourse with a woman whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such s*xual intercourse not amounting to the offence of rape is Adultery. The man who had s*xual intercourse will be liable for the offence of Adultery. This is defined in S. 497 IPC.



B. Whenever a man or woman who are having a wife or husband respectively, marries another woman or man during the lifetime of their partners, the offence of Bigamy is committed. Indian law do not allow such marriages. Bigamy is defined under S. 494 IPC.



C. Live-in relation means "Walk in and walk out" at will. There's no binding for a man to maintain the partner, unless the relationship has been for many year, where the couple showed themselves as husband and wife to the society also. Hon’ble SC looked into this emerging social trend in Indian context for the first time in re.: D. Velusamy Vs. D. Patchaiammal https://indiankanoon.org/doc/1521881/ 




The
distinction between the Adultery and Bigamy are as follows:


1. In adultery, the s*xual intercourse is with the wife of another person without the consent or connivance of that person.

In Bigamy, either s*x who has a husband or wife living marries another.



2. Consent of husband will absolve the offender from criminal liability of Adultery.

In Bigamy, consent given by either s*x will not help the partner who marries another person to be absolved.



3. There is no punishment for wife in the offence of Adultery. But the wife may be punished as an abettor.

But in the case of Bigamy, either s*x may be punished.



4. The offence of Adultery attracts 5 years of imprisonment.

The offence of Bigamy is met with 10 years of imprisonment.

 


5. Hon. SC has compounded Adultry says in a case Law which exists.  

 


6. No alimony is payable when Adultry proved says in a case law which exists.

 


7. Complaint of Bigamy can be filed by second wife for offences U/s 494 IPC says in a case law which exists.

 


The uniqueness read with Indian Law for Live-in are as follows:


1. It is a walk-in and walk-out at will relationship of un-married partners + few cases of either gender spouse as is emerging from media reports and lots of queries before LCI too.


2.
There's no binding for a un-married male to maintain the live-in partner unless the relationship has been for many year where the ‘couple’ showed themselves as “husband and wife to the society”. This is emerging single Magistrate from few trial courts as position taken under DV Act meaning thereby that just finger full Courts have charged male spouse under DV Act to pay maintenance.


3. In an leading case of a Court of Law in India
to grant maint. to child born out of live-in has been given recognisition under S. 125 CrPC.


4. It is an urbane fad
and cannot be stopped.


5. There is no specific Section in IPC / CrPC allotted till date to Live-in partner.

 


6. Birth Certificate of child born out of live-in the entries of father / mother name is that of live in couples just like in ordinary marital situation what goes under parents name. There is no Amendment to State’s Municipal Laws pan India till date to disallow such entries in Birth and Death Register.

 

 

7. Under the recently enacted RTE Act child born out of live-ins is also entitled to get same privileges / rights met as any other ordinary legally wedded couples child and no distinction have been made hence schools cannot question merit of such child at admission time.

8. Under the Passport Act submission of true copy of Municipal Birth Certificate with affidavit of either live-in partner on no objection to child getting a Passport is valid enough to seek Passport.

 

 

9. In 2001, the Allahabad High Court held that a major man and woman can stay together without getting married if they want and this is not illegal. Re. Payal Sharma Vs. Superintendent, Nari Niketan, Agra [AIR 2001 All. 254]; Ajaya Kumar Das Vs. State Of Orissa And Two Ors [2005 I OLR 590]


10. In S. Khushboo v. Kanniammal [(2010) 2 SCC(Cri) 1299], the Hon’ble Supreme Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P. , held that live-in-relationship is permissible only in unmarried major persons of heterogeneous s*x, and it is not a criminal offence under any law



The standard of proof to get admission of charges under Adultery / Bigamy to attract the crime are as follows;


1. The problem of proving adultery created or not rests on what is called the "disposition and opportunity rule".

 

 

2. This rule held a presumption of adultery if it could be shown that the two people in question had an adulterous disposition and had the opportunity to commit adultery.

 

 

3. People say here that it is difficult to prove rightly bze even with the rule, proving adultery is difficult.

 

 

4. An adulterous disposition usually means following

 

- Showing romantic involvement or entanglement of some sort.

Explanation:

The opportunity to commit adultery means showing that the two people in question were alone for a time in an apartment, hotel room, or house.

Thus, having the keys to the hotel room but no record of being there was not enough for one spouse to prove adultery against the other one.

Here you donot need to get actual pics of pilling on top of each other showing wife/husband as the case may be. Just entry / exit factual records gives rise to doubt read with disposition and opportunity rule to get the case admitted.

 

- Love letters or public (or even semi-public)

Explanation:

Via letters / chat records if prosecution is able to raise doubt then the case is all yours.

 

- Displays of affection towards eachother

Explanation:

PDA (on and off compromising position public display of affection) towards each other is enough to raise doubts for the case to be admitted. Why bzr. the opportunity to commit adultery means the parties in question had the time and the place to commit adultery.

 

- extracts from case Laws which may be considered evidence of an adulterous disposition.

 


Law as of today for live-in are as follows;


1.  Single male keeping major age female who is not related to him as in being called relative by blood, custody and or adoption more than 24 hrs. in his house quite often raises doubt of live-in in society. Whereas in same set of facts if same situation shown for a hotel room then it is no once case.

 

 

2.  U.Suvetha vs State By Insp. of Police & Anr [https://indiankanoon.org/doc/953117/] that a girlfriend or a concubine is not a relative and therefore cannot be prosecuted for an offence under section 498 (A) of the IPC (cruelty for dowry) says Hon’ble SC.  


3. Koppisetti Subbharao @ ... vs State Of A.P [https://indiankanoon.org/doc/389094/] Hon’ble SC says S. 498a applies to live-in couples.

venkata Peddi (It consultant)     25 May 2012

Dear Tajobs,

 

Thank you very much for providing a very good and useful details. Unfortunatly in India there are more chances for a women to misuse the law with the current previlages provided by indian governament, which affecting men to face problems.

Regards,

Balaram

bhima balla (none)     26 May 2012

Everywhere women misuse laws.But in India these particular laws are commonly misused and abused. It is the way they are written that makes it easy to misuse. No penalty for misuse is another factor. I do understand that Hon'ble SC has said that liveins that is long term is like 'marriage'. But it should not be treated as such. The case was based on maintenance granted by California court to long livein partner. However many countries and several states in US itself has negated common law marriages which is what liveins are. There is clear understanding that marriage is marriage and livein is just livein-no matter what the duration is. The woman is always free to walk out and so does the Man. To be safer even liveins agreement is being done just like prenuptial agreements!

I do not think adultery is a criminal offense in UK.If it is not, you cannot be prosecuted there. Forget India and enjoy your life! The pathetic and confused Indian laws will drive everyone crazy!!

sri (ceo)     26 May 2012

she came back to me saying that she want to live with me without taking back maintainance case... she seems to be a pro...

OK pay her what judge decides as maintenance... and this is always less than what you spend in a married life on family...

but beware of future 498a or other complications...

if you cant trust her divorce her...

most importantly instead of worrying about finances enjoy this day... live in or married, paid or unpaid wives... after all whatever you earn will not be taken by you to grave, hence ensure while you are leaving leave her lots of debts...

debts will force her for divorce rather than asking for maintenance... see here is the solution for problem...

naren (Consulltant)     27 May 2012

@Tajobsindia

Based on the defintion of Bigamy and adultary I understand that "A married man having a live-in relationship with a divorced/unmarried women is not covered by any of two and so is not a legal offence in India".

Please tell if my understanding is wrong?

venkata Peddi (It consultant)     27 May 2012

Dear Sri,

 

I won't mind to pay a reasonable amount for her maintainance. But she filed the case in such a way that she want a very huge amount for her expences which is 25K per month. We don't have kids as we were togather only for few months. More over she came from middle class family like me. But I am not sure why she is preasurising me through curt to pay such a huge amount.

Regards,

Ram


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