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LIVE-IN RELATIONSHIP IN INDIA: A SOCIO – LEGAL ANALYSIS
by Ashwini Kumar Sahu
Introduction
Nothing is constant except change in the material world. In the past few years Indian society has undergone sea change in its living pattern. India is a country of culture and tradition. Marriage of a man and woman is considered the most sacred relationship. However, now-a-days couples are entering into pre-marital sex and live-in relationships. In live-in relationship couples without being married, live together under the same roof. In India, according to marriage laws, relationship between unrelated couple of a male and female is considered to be legal only when marriage has taken place and all other sort of relationships are deemed to be illegal. But, the Supreme Court through judicial pronouncement has included live-in relationship under Article 21 of the Indian Constitution. The Apex court ruled that a man and woman even without getting married can live together if they wish to. This may be regarded as immoral by the society but is not illegal.
In different countries across the world live-in relationship is recognized by statute law such as United States, Scotland, France, Canada, Australia, Ireland, Philippines. But in India such kind of relationship is under criticism and not accepted by society at large as because it lacks legal recognition.
- Causes of Live-in Relationship
In India the traditional society might have stigmatized non-marital live-in relationships but the increasing number of live-in couples indicates a degree of acceptance. The rationale for the couples to enter into live-in relationship is to examine affinity between partners before getting married. It is easy to walk-in and walk-out of live-in relationship as compared to marriage. The other factors are cases in which couple gives priority to the career rather than marriage, in many cases marriage is not supported by family due to inter-religion, inter-caste and age difference. Whatever may be the cause but it is transparent that couples prefer to enter into live-in relationship over marriage.
- Law On Live-in Relationship In India
In India, there is no statutory law to envelop the matter of live-in relationship and to address the rights and duties of live-in partners.
Only in 2005, Protection of women from Domestic Violence Act, 2005 appears to have included live-in relationship by extending rights to an aggrieved female who is living with a male in a relationship in the nature of marriage. Even though live-in relationship is not particularly defined in the Act but by virtue of the definition of ‘Domestic Violence’ under section 2(f) of the PWDV Act, 2005, the courts interpreted the expression ‘relationship in the nature of marriage’ as live-in relationship.
Section 125 of Criminal Procedure Code provides for maintenance of wives, children and parents and the same has also been extended to women in live-in relations through Judicial decisions. The National Commission For Women and the Malimath Committee have recommended the Government to make suitable changes in the law to entitle women in live-in relations to get maintenance from her partner if he chooses to dump her. It suggested that the scope of section 125 of the Criminal Procedure Code, under which a wife, legitimate or illegitimate child and parents are entitled to get maintenance from a man, to include woman in live-in relation[1].
- Judiciary On Live-in Relationship
It is said that law is a social phenomenon. Since law is a social phenomenon, it has to take note of the changing needs of the people[2]. When the concept of live-in relationship started to be accepted by new generation of Indian society, then it demands for its meaning in the eyes of law. The Hon’ble Supreme Court and the High Courts in catena of decisions have tried to explain the concept of live-in relationship. In S.Khushboo vs. Kanniammal & Anr[3], the Supreme Court held that live-in relationship falls within the ambit of right to life under Article 21 of the Indian Constitution. There is no law that prohibits pre-marital relationships.
In Payal Sharma vs. Superintendent, Nari Niketan[4] the Allahabad High Court opined that a man and a woman even without getting married can live together if they wish to. The apex court in Madan Mohan Singh vs. Rajni Kant[5] held that if a man and woman are living together for a long time as husband and wife though never married, there would be presumption of marriage and their children could not be called illegitimate[6].
In D.Velusamy vs. D.Patchaiammal[7] the Supreme Court opined that ‘relationship in the nature of marriage’ is akin to a Common Law Marriage. Common Law Marriage requires that although not being formally married[8]:-
- The couple must hold themselves out to society as being akin to spouses;
- They must be of legal age to marry;
- Or otherwise qualified to enter into a legal marriage, including being unmarried;
- Or, voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Hence, the Court concluded that live-in relationship outside the scope of Common Law Marriage will not amount to a ‘relationship in the nature of marriage’.
In Indra sarma vs. V.K.V. Sarma[9] held that when a woman is aware that the man with whom she is having live-in relations, has already a legally-wedded wife is not entitled to any relief. Such cases does not fall under the ambit of ‘relationship in the nature of marriage’. Hence the court excluded women who are in live-in relationship other than a ‘relationship in the nature of marriage’ from the benefits of PWDV ACT, 2005.
- Conclusion
The Indian Judiciary through judicial pronouncement has rendered justice to those females who are victim of live-in relationships. As of now, there is no specific legislation governing matters such as succession, maintenance, guardianship, adoption with respect to live-in relationship. By interpretation of the Protection of women from Domestic Violence Act, 2005, the guidelines given by Indian judiciary on different judgments can only be accepted for the term ‘relationship in the nature of marriage’.
In Indra sarma case, the court made it clear that all live-in relationships are not relationship in the nature of marriage. There exist live-in relations which are not in the nature of marriage. Live-in relationship is a wider concept than that of relationship in the nature of marriage.
In our country we have instances of married woman living with her lover leaving her husband and also persons living in extra-marital relationship sometimes approach courts as live-in couple especially when the aggrieved party was kept unaware of the married status of the other. Truly speaking, in all live-in relationship, women will be victim is not necessary. It may also so happen that male partners may be victim in live-in relationships. There are also instances of same sex couple living in live-in relationship.
Even though the Supreme Court and the High Courts, granted legality to live-in relationship, yet there are many vital issues which must be addressed properly so as to form a comprehensive law dealing with the challenges of live-in relationship.
[1] Available on https://m.hindustantimes.com>india last accessed on 15th August,2020 at 3.30 P.M.
[2] SRA, Rosedar, (2016), Jurisprudence, Lexis Nexis, Gurgaon, Haryana, p.11
[3] Crl. App. No. 913/2010, arising out of SLP (Crl) No. 4010 of 2008, MANU/SC/0310/2010
[4] AIR 2001 All 254
[5] 2010 VOL.9 SCC 209
[6] Available at https://www.scconline.com last accessed on 16th August,2020 at 8.15 A.M
[7] AIR 2011 SC 479
[8] Available at www.legalservices.com last accessed on 16th August, 2020 at 9.00 A.M
[9] AIR 2014 SC 309
