LIVE-IN RELATIONSHIP IN INDIA – SOCIO-LEGAL PERSPECTIVE

 

LIVE-IN RELATIONSHIP IN INDIA – SOCIO-LEGAL PERSPECTIVE:

 

1. INTRODUCTION:

 

Marriage is a Universal institution which is found in every corner of the world. It is very hard to trace back the beginning of this institution of marriage but it was seen in the Goddess Period i.e., Lord Shiv marriage Parvati, as per Hindu mythology. This is the very institution which pillared human civilization. Marriage gives societal approval to one man and women for sexual relationship and permit them to live together as husband and wife and have a family of their own.

 

Live-in relationship means living of two people under a single roof without legal marriage and do cohabit in a legally accepted way. Marriage is a legal institution which is legally and socially accepted phenomenon. Recently things are changing fast and couples have started to live together in single household without marriage, such relation may sustain for short or long period. A relationship is legitimate if it is on the basis of proper marriage and illegitimate if such relation is not on basis of Marriage laws. But now a days such relation is being increased due various reasons such as absence of specific legislation, rules or effective guidelines.

 

This article tends to take an overview in socio-legal aspect of live-in relationship and judicial approach in this regard and status of live-in relationship in other countries.

 

2. HISTORICAL PERSPECTIVE OF LIVE-IN RELATIONSHIP INDIA:

 

India is country which is open its door for western ideas and lifestyle and one of the most crucial views amongst it, is the view Live-in relationship. In ancient India, though marriage was basic norms, the Hindu scriptures assert and admit the existence of premarital relationship. Such Premarital relationships existed in Vedic period and post-Vedic periods, but these were very rare occurrences. In ancient time it was known as Maitri-Karar in which a written agreement was made between the two opposite sex that they would live together as friends and look after each other.

 

Manu, who is   considered as having formulated Hindu Law, classifies eight forms of Hindu marriage, viz., Brahma, Daiva, Prajapatya, Arsa, Asura, Gandharva, Rakksash and Paisacha. Of these, one form of marriage, namely, Gandharva was similar to that of live-in relationship.

 

Prior to  the  enactment  of  Hindu  Marriage  Act,  there  were  eight  forms  of marriage, four was approved and four unapproved. Among these, one type was Gandharva form where of marriage is the union of a man and a woman by mutual consent. This was owing to the large extent over which the Hindu society was spread and the dissimilar elements of which it was composed.

 

In essence, the Gandharva Vivah, is in effect a private consensual contract that is given due social legitimacy. However, Gandharva Vivah was an unapproved form of marriage which had no sanctity, it is not really different from partnerships of personal choice which include sexual transactions as in the contemporary live-in relationship.

 

 

3. LEGISLATIVE PROTECTION OF LIVE-IN- RELATIONSHIP

 

Marriage under Muslims regulated by their personal law of Shariat 1936, rest of Indians ruled by mainly two marriage laws such as Hindu Marriage Act, 1955 and The Special Marriage Act, 1954 for the purpose of asserting one’s marriage valid to establish an existing relationship or divorce while the earlier relation qualifies one for maintenance.

 

Under the practice of Live-in-relationship a man and women both enter into an agreement to live together and cohabit without solemnized marriage. Such occurrences are happened when men and women find it convenient to live together and enjoy the life without taking the risk of marriage.

 

However, the problem occurs when a child is born out of such relationship. Besides the questions of legitimacy of such children, the issues of their custody as well as the issues of inheritance have already been started coming on surface in many cases. The State and the Judiciary are trying to find out the solution to these problems in the existing laws.

 

The protection of women from Domestic Violence Act, 2005 appears to have included such Live-in-relationship in the definition of Domestic Relationship as follows: -

 

Sec. 2(a) ‘Aggrieved Person’ means any women 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.

 

Sec 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 member living together as a joint family.

 

Regarding the adoption of child stability is the key to raising an emotional and mentally healthy child; unmarried partners cannot provide the stability that married couples can give.

 

Section 125 of the Code of Criminal Procedure allows a wife to seek maintenance from her husband if he refuses to maintain her. If a woman is able to form a marriage as connection, she would be eligible to receive maintenance from that man because the court can make the assumption that such a relationship is a marriage and the woman is considered to be a wife of that person. The primary objective of including live-in relationships under Section 125 are to safeguard women from domestic violence and to increase the legal ambit for partners in live-in relationships to the level of marriage. The Supreme Court expanded on this precedent from the guidelines of the Malinath Committee.

 

The Committee submitted its findings in 2009, proposing that the definition of alimony/maintenance under Section 125 be modified to enable women to obtain it. As a result, the Supreme Court ruled in Abhijit Bhikaseth Auti vs. State of Maharastra (2009), that a woman is not required to prove marriage to seek maintenance under Section 125 of the CrPC, meaning that a woman in a live-in relationship is also entitled to maintenance. This decision demonstrates our judiciary’s liberal and contemporary stance.

 

4. JUDICIAL PRONOUNCEMENT ON LIVE-IN-RELATIONSHIPS

 

India, a country having rich values, customs and beliefs has made its people proud. The old traditions in India are still followed but things like a live in relationship is a new addition which 80 percent of Indians today still do not prefer. Marriage for an Indian couple is a sacred union and compared to living together before you tie the knot, a marriage is more preferred to many, first in foremost because it is a legal and above all you have gain high respect in society.

 

As per old traditions in India, they feel that a live in relationship is a ‘sin’ for it is basically a couple who is living together and having a relationship just like a married couple! A live in relationship is a Western adaptation in India and people in the United States feel that living together makes the relationship grow as the couple gets to know each other better. Whereas for an Indian couple, living together before marriage is a bad concept.

Judiciary has time to time has develop the concept of live-in relationship and still having concern any regards for the protection of one’s right. Let’s have a overlook-

 

In cases like A Dinohamy v. WL Blahamy, (1928), prior to independence, the privy council laid down a broad rule postulating that, ‘where a man and women 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’ The same principle was reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan (1929)

 

After independence the first case that can be reviewed is Badri Prasad v. Dy Director of Consolidation (1978) wherein the supreme court recognized live in relationships as valid marriage, putting a stop to questions raised by authorities on the 50 years of life in relationship of a couple.

 

The Allahabad High Court, in 2001, in Payal Sharma v. Superintendent, it was observed that, 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.’

 

In Lata Singh vs. State of UP (2006), the Supreme Court ruled that, although live-in relationships are considered unethical, they are not illegal under the legislation.

 

In Patel and others Case (2006), the Supreme Court observed that live-in- relation between two adults without a formal marriage cannot be construed as an offence. It also stated that there is no such statute which postulates that live in relationships are illegal. The same proposition was upheld in the case of Tulsa v. Durghatiya (2008) where the long-term live-in relationship was recognized as equivalent to marriage.

 

Further, in S. Khushboo v. Kanniammal and Anr (2010), the Supreme Court ruled that living together is a right to life protected by Article 21 of the Indian Constitution, and thus, despite being considered immoral by society, it is not an offence under the law.

 

In Indra Sharma VKV Sharma (2013), the Supreme Court held that if both partners are unmarried and enter into a mutual relationship, it does not constitute an offence.

 

In Abhishek Chouhan vs. State of Madhya Pradesh (2022), Madhya Pradesh High Court described live-in relationships as a by-product of the constitutional provision guaranteed under Article 21 of the Constitution, observing that such relationships foster sexual activity and lascivious behaviour, giving rise to sexual crimes.

 

The Court concluded that, with some exclusions, India has a conservative culture that has not yet achieved such an advanced level of civilization where unmarried girls, irrespective of their religion, participate in lascivious activities with boys only for the entertainment, unless supported by certain future promise of marriage, and that, to confirm her point, a victim should not be required to rely on committing suicide as in the current case.

 

5. INTERNATIONAL OVERVIEW ON CONCEPT OF LIVE-IN RELATIONSHIP:

 

Regarding marriage, all countries, through laws, safeguard the interest of both parties who enter into the union. However, live-in relationships have received due recognition in a few countries such as France and Philippines. This researcher also provides an overview of the major countries that permit the practice of live-in relationship. An attempt has also been made to understand the legal system of those countries which prohibit such relationships.

 

ØLive-in relationship in United Kingdom and United States of America:

 

In countries such as United Kingdom and United States of America, live-in partners register themselves in a domestic register and enter into a cohabitation contract whereby they receive legal recognition as domestic partners. Live-in relationships are covered by laws of the United Kingdom.

 

Though men and women living together in a stable sexual relationship often referred to as common law spouses, this view is not wholly correct in law in England and Wales. According to the UK laws, live-in couples be under an obligation to one another more than that is worthy as they have to reliance more in an open relationship. In the event the couple decides to separate, the courts do not have the legal power to override that decision. In such a case woman is not recognized as his wife and hence cannot derive the benefit legal or financial matters. 

 

However, the law has given space to a concept called presumption of marriage which could be used to recognize such relationship. This concept is available for men and women who are living together under the same roof and cohabit for a number of years.

 

Ø Live-in-relationship in France:

 

The French National Assembly passed the Civil Solidarity Pact in 1999 whereby now, live-in relationships are governed by it in France. It is a contract binding two adults of different/ same sex in order to regulate their common life. The contracting parties need not be bound by any relationship such as by marriage siblings or lineage.

 

ØLive-In-Relationship in Scotland:

In 2006, the Family Law (Scotland) Act identified the concept of live-in relationship and by default legalized the living relationship of over 150,000 cohabiting couples in the country. In determining whether a person is cohabitant of another, court of law can consider a person as a cohabitant of another depending on the length of which they have lived together, the nature of relationship during that period, and the nature and extent of any financial arrangement as per section 25 of the Family law (Scotland) Act 2006.

 

Ø Live-In-Relationship in Canada:

 

Live-in relationship is legally recognized in Canada. Further, section 54(1) of Family Law Act, RSO, 1990 states that that two persons who are cohabiting or tend to cohabit and who are not married to each other can come into an arrangement in which they agree on the respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including ownership in or division of property support obligations such as the right to direct the education and moral training of their children, but not the right to custody or access to their children. Sub section 2 of section 53 of the Family law Act RSO, 1996, says that if the parties to a cohabitation agreement marry to each other, the agreement shall be deemed to be a marriage contract.

 

Ø Live-in Relationships in Philippines:

 

Article 147 of the Family Code of Philippines provides that when a man and woman who are capacitated to marry each other live exclusively with each other as husband and wife, without the benefit of marriage or under void marriage, their wages and salaries shall be owned by them in equity shares and property acquired by both of them through the work or industry shall be governed by the rules of co-ownership.

 

Ø Live-In-Relationship in Australia:

 

In Australia a person is in de-facto relationship with another person if the persons are not legally married to each other and the persons are not related by family and having regard to all the circumstances of the relationship they have a relationship as a couple living together on genuine domestic basis.

 

v COUNTRIES WHERE LIVE-IN-RELATIONS ARE PROHIBITED:

 

On one side where some countries are striving to ensure protection to cohabiting partners, there are some countries which have made live-in relationships, a punishable offence. Some Islamic countries consider live-in-relationships as a sin and penalize individuals who enter into such arrangements.

 

Ø Live-in Relationship in Bangladesh:

 

In Bangladesh, cohabitation after divorce is being punished by the salishi system of informal courts, especially in rural areas.

Ø Live-in Relationship in Indonesia:

 

An Islamic penal code proposed in 2005 in Indonesia has made cohabitation punishable by up to two years in prison. Also, Cohabitation is illegal according to sharia law in countries where it has been practiced.

 

Ø Live-in Relationship in Iran:

 

Sharia law is followed in Iran. As such, live-in relationships in Iran are not given recognition or legal status. Relations outside of marriage in Iran and marriages beyond consent of the family are considered illegal.

 

Ø Live-in Relationship in Dubai:

 

UAE Dubai, being an Islamic state, is strict in its ethical and moral code. The laws right here are very distinct. Outsiders who stay and work in UAE, need to be very careful regarding the laws. In UAE, cohabiting without marriage is an offence and if such offenders are foreigners, they may be deported.

 

7. IMPACT OF LIVE IN RELATIONSHIP IN THE SOCIETY: -

 

The expectation of live in relation has affected all the youth of the society for various reasons. Nothing escapes without leaving drawbacks in return. Such relation gives two partners the maximum opportunity to right to liberty, right to privacy, right to life. But the negative point has to be realized as well. Following will be the negative effects on the society.

 

1. Breakdown of Marriage Institution: -

 

Marriage leads to bonding between man and woman both and ensures security for children. Marriage is a socially and universally accepted institution. Such a union often solemnized via wedding ceremony. Therefore, it would be easily mentioned that live-in-relationship is but degrading the valued of marriage which is recognized as social union unlike live-in-relationship where there is only well of two persons.

 

2. In and out relationship: -

 

Live in Relationship is a contract between two opposite sexes for living together which is may be for long or short period of time and can be terminated at any point of time without the consent of the other. Thus, people who choose to have a live-in-relationship cannot complain of infidelity or immorality. Therefore, we can say it nothing more than personnel enjoyment.

 

3. Weakness social relationship: -

 

As such relationships are choice of two individual wish to make their own family without the will of their parents there is always expectation of weak relation between the parents of the spouse family.

 

Therefore, it is no doubt that there is always change of conflict of ideas and opinion in the family as a result it will laterally lead to weaken the relation between other member of the family. So over all it is negative effect on the society.

 

4. Legitimacy of child born out of a live-in relationship: -

 

When it comes to the right of child born under live in relationship, we again find the law to be groping in the dark. The Hindu Marriage Act, 1955 gives the status of legitimacy to every child, irrespective of birth out of a void, voidable or valid marriage. However, they don’t have property and maintenance rights. However, there is no such presumption of legality of child in any other religion or law, in such cases, legality of the child born out of such relationship is doubtful.

 

8. CONCLUSION:

 

The world, we are live in, is growing and changing day to day. Society has been formed with traditions and customs which are core basis. India is a culturally based country, but gradual growing economy and people getting more and more aware and finally India has to step ahead and do legalizing live-in-relationship, though in India live in relationship is considered as against the public policy and would ruined the institution of marriage.

 

The recommendation of Law Commission Malimath Committee is to recognize live in partner as wife in case of live in relationship of reasonably long time. If the person in live in relationship is already married, then live in relationship should be considered as the second marriage, hence an offence bigamy. This will ensure the rights and privileges in live in relationship without having any threat to the institution of marriage.

 

A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grabble in dark, when the number of live in couples is increasing rapidly. The rights of live in couples should be legally recognized while ensuring that it does not backpedal upon the system of marriage.