STATUS OF LIVE-IN-RELATIONSHIP IN INDIA

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ABSTRACT

A Supreme Court precedent held in 2005 that premarital sex is no offense if two adults live together in a relationship. The concept of premarital sex originated when the Tollywood actress Khushboo gave a statement to a magazine on premarital sex. A number of cases has been filed against the actress pointing that the statement said by the actress is derogatory and against the Tamil culture for girls. As it is very clear from the prolonged customs existing in India that marriage is a social institution and also very important part of Indian culture. But due to industrialization the effect of modernization affected the lifestyle of young generation. Therefore they used to opt such type of relations and as a part of their class and standard. In this article the legal and social status of Live-in-Relationship has been focused by adding pose and cons of Live-in-Relationship in context of Indian society.

BACKGROUND

In Live-in-Relationship, unmarried couples live together under the same roof to give their relationship a time to get stronger for legally getting marriage. If they failed to continue to do so they used to break-up and move on. This is the reason why Indian society does not accept this type of relationship. It is considered to an uncultured and bad thing for the society.

The term Live-in-Relationship is new for the society but it is practiced from gold olden days. In context of India, arranged to love marriage existed but Live-in-Relationship was rare. Let’s have a view over the historical scenery of Live-in-Relationship.

VEDIC PERIOD:

According to Manu, in the Vedic Period and after the Vedic period the concept of Live-in-Relationship existed in India but it was very rare and was seen as mean practice at that time. Many Hindu scriptures also proven the fact that this type of relations had existed in India.

The Vedas had acknowledged eight types of marriages in India at that time: Brahma Marriage, Daiva Marriage, Arsha Marriage, Prajapatya Marriage, Asura Marriage, Gandharva Marriage, Rakshasa Marriage and Paisacha Marriage. Among these eight types of marriages Gandharva marriage is somewhat similar to Live-in-Relationship. In this form of marriage the bride is free to choose a man whom she likes and live together with him. It is not necessary that the couples had to take the permission of elders or their parents. The marriage of Dushyant and Shakuntala was also the Gandharva Vivah. Therefore, we can say that the Live-in-Relationship had existed in India from Vedic period.

 MEDIEVAL INDIA:

In medieval India, when wife was unable to bear offspring due to some reasons then man used to cohabit with concubines for the significant offspring. At that time though the relationship with concubine was considered to be legal but it was more similar to sex-slavery. At the time of Muslim rulers sex-slavery was very common. Therefore we could found the instances of premarital sex and Live-in-Relationship types of practices during medieval period also.

MODERN INDIA:

Due to the Globalization, the exchange of different cultures has been done with a good pace. People around the world are accepting customs and way of living from other countries. The clear effect of globalization has been seen in youths of the nation.

In India marriage is a sacred unbreakable bond with a lot many responsibilities. To avoid such burden of responsibilities youth tend to resort to living in live in relationship without getting married. And if the relation would not go well then they could move out of it. Sometimes the Live-in-Relationship is advantageous and sometimes it affects very badly to the couples especially the female.

The couples face social problems because they are not at all welcomed by the people. They have to face insults from the people. They never get a respectful position in the society.

After the apex court had declared it totally legal, this topic has become very debatable topic. Currently the need of the hour is an Act to protect the rights of the couples, to harness them with their duties and obligations.[1]

INTRODUCTION

The Indian society is not at all skeptical for Live in relationship. But the judiciary have never granted it to be illegal. A lot many cases have occurred in India where higher judicial bodies have given it to a clean chit. But still the youngsters have to face many social problems. The society is preserving its culture with rigidity but the youth is attracted to the western culture following the hasty growth in modernization. In some parts of the country where the modernization has a great impact, the people are comfortable with such relationships. In such cities it is manageable for the youngsters to have Live in relationship without facing any outrage from the people around them. But as there is no strict law which could oblige the couples to stay together as happens in marriage, the end of these relationships are very galling. Therefore it is the need of the hour to pass a strict law to save the rights of the couples and also to show the duties from which they are bound during Live in relationship.

Here in this article we will be discussing about the social and legal perspective of Live in Relationship. Also to make this sensible topic more impactful and brunt the advantages and disadvantages must be discussed.

SOCIAL STATUS OF LIVE-IN-RELATIONSHIP IN INDIA

Earlier in the history when civilization was absent, people were not aware about marriage and have families as it is practiced during this era. At that time the people used to cohabit without getting married as there was no such concept of marriage was prevailing. But with the growth of the civilization people gradually started to understand the importance of marriage and the concept of family. With the gradual change in the lifestyle of the society from uncivilized to a well-civilized. And now we have come to a phase of highly modernized society where people really wanted to break the traditional pattern of livelihood and adopt an easy settings in everyday life. That is how concept of Live-in-relationship has been popularized in 21st century very rapidly.

The social value of live in relationship is very low in Indian society because it has not been accepted by the people. To accept this conduct the society may take decades or may be few years if it gets legal recognition in the country. The Malimath Committee[2] has given its recommendation on Live in relationship in the year 2008. In its report given in 2009, the committee proposed that the term ‘wife’ defined in Section 125 of CrPC must be expanded and the women conducting live in relationship should be added in it. This was done to protect the rights of the females by availing them alimony and maintenance after the breakdown of such relation. But except Maharashtra no other state has accepted the proposal of the committee.

The main problem in Live in relationship is that people take undue advantage of the other person cohabiting. Mostly it happens with the woman by making her emotionally attached and then leaving them suddenly before the society which is not ready to give her respect and let her live with dignity. This is too heart-breaking for a woman because after that she loses her right to survive with dignity and nobility.  

Due to the non-acceptance of the conduct of live in relationship the couples used to tell lie to their parents. And for their survival and to avoid financial problem the unemployed couples used to steal money. This could be a step towards crime. This is also a big issue in the society. Including this issue Live in relationship is affecting the society in many ways. Since the couples cohabiting don’t want to have so much burden of responsibilities by having family, they used to abort the unwanted child. This time the victim is the woman and the child. It usually happens that the father of the child leaves the woman on her own and the family of the woman also nod their head to accept her. Also sometimes these types of relationships are the cause of the ‘Honor Killing’. It causes scary situation in the society. It may also causes riots and disturbances in the society.

Now it is the important duty of the parliament to pass an accurate law to save the new generations and their social status by protecting their rights and obliging them with their duties.

LEGAL STATUS OF LIVE IN RELATIONSHIP IN INDIA

Live in relationship has got legal recognition after the Supreme Court of India has given its verdict in S khushboo v. Kanniammal & Anr, April 28, 2010[3]. The court in its verdict recognized the Live in relationship as “domestic relationship” and also protected it under the Protection of Women from Domestic Violence Act, 2005. But still it was not so satisfying because to it is very important to pass a strict law tied with rules and regulations and decorated with rights and duties. After that only the rights could be protected and duties can be imposed.

If we turn around our eyes towards the Constitution of India, we have the Fundamental Rights providing us with all the necessary rights. Fundamental Rights are guaranteed under Part lll of the Constitution from Article 12 to Article 35. Among all the articles under Part lll of the Constitution Article 21 is providing all the citizens of India – “Right to Life and Personal Liberty”. Therefore the Article 21 is the first savior of the couples in Live in relationship. According to this article the every citizen of India has the right to the way he wants to live with his personal liberty but within the premises of the law. And for the conservative society live in relationship may be uncultural but in the eyes of law it is legal. Therefore the couples conducting live in relationship has the full fledge right to conduct so without any fear. It is their fundamental right so they could use it to survive with their life choices.

In a case, namely, Badri Prasad v. Deputy Director, Consolidation and other, AIR 1978 SC 1557[4], a man and woman were living together as husband and wife without marrying for about 50 years. An adventurist have challenged the legality of their relationship. He has filed a Special Leave Petition but the reply from the court to the petition was negative. The court has dismissed the petition. It made the relationship totally valid and frowned the claim of bastardy on them. The decision got this angel because the couples were cohabiting and staying together from the long spell of time that is from the half century. It is such a long period that the relationship can’t be proved to be bastardy.

In another case, A Dinohamy v. W.L Blahamy AIR 1927 P.C. 185[5], in this case the Privy Council had held that if the man and women living together as husband and wife then they would be presumed to be the husband and wife, unless the contrary has been proved. At that time when the live in relationship was not very popular and was uncommon, such decision from the Privy Council is a big achievement. We should now continue further with this ideology on this topic.

In Gokal Chand v. Pravin Kumari, AIR 1952 SCR 825[6], the Supreme Court held that if the man and woman living together for long time then they will be presumed to be the husband and wife but the court had cautioned that the  they would not get legitimacy if the evidence of them living together is rebuttable.

In the famous case of Madan Mohan SINGH v. Rajni Kant, (2010) 9 SCC 209[7], the supreme court has held that the Live in Relationship is not a ‘walk in and walk out’ relationship if it is continued for long time. It will be presumed that marriage has been commenced between the accomplices.  Now after this verdict it is clear that the Supreme Court is in favour of treating long-term live in relationship as a married relationship rather just a live in relationship.

In Tulsa & Ors v. Durghatiya & Ors (2008) 4 SCC 520[8], the Supreme Court held that the live in relationship would be considered as a valid marriage if the couples are living together for a long period of time. But the condition put by the court is that there must be the evidence of such relationship otherwise it will not be accepted as a valid relationship. Here the court has given the verdict on the basis of Section 50 and 114 of Evidence Act read together.

PROVISIONS IN INDIAN LAW FOR THE LIVE IN RELATIONSHIP

DOMESTIC VIOLENCE ACT, 2005 

For the first time in the history of Indian legal system, a law has been passed to protect the rights of women living with a male without marrying him. That woman has been presumed as akin to wife but not equivalent to the wife. Through the Protection of Women from Domestic Violence Act, 2005, the legislature has acknowledge such relationship and the rights and protection to the women.

Section 2(f) of the Protection of Women from Domestic Violence Act, 2005[9] defines:

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;

By the virtue of the aforementioned provision the court has interpreted the word ‘relationship’ as in nature of marriage. This means the woman cohabiting with a man without marriage will be akin to his wife and therefore she deserves all the rights of wife of that man. This gives protection to the woman from the abuse from the bigamous relationship.

In the case of Yamunabai v. Anant Rao, 1988 AIR 644[10] Suprme Court held that the second wife will have no right to get maintenance under Section 125 of CrPC even she was unaware of the first marriage. Court has not given legal recognition to the second marriage in the presence of the wife from the first marriage. Here the man is allowed to take the advantage even though he has failed to disclose the facts of his first marriage. The court has decided so because the second marriage is void in itself and therefore no obligation occurred to the man.

Criminal Procedure Code, 1973

Section 125 of the Criminal Procedure Code, 1973[11]

This section talks about the maintenance to be given by the husband to the wife/minor children/old age parents.

If the person neglects his wife, minor children or old age parents then they could ask maintenance from the person. It is the duty of the magistrate to provide the rate of the maintenance as he deemed fit. Now since the concept of live in relationship has been arisen therefore the woman cohabiting with a man without marriage for a long spell of time could ask for alimony to that man under this section.

Justice Malimath Committee[12] has also recommended in its report that the live in relationship must also be included under section 125 of CrPC, 1973 to protect the woman and her child born out of that relationship from the abuse.

EVIDENCE ACT, 1872

SECTION 50:[13]

Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).

SECTION 114:[14]

Under this section the court shall presume any fact which it thinks likely to be happened under some circumstances before him. Therefore from natural events and conduct of the man and woman living together the court may presume that the relationship between them is valid or just for sexual motive. Section 50 if read with this section could help the court to serve justice to the couples of live in relationships.

CHILD BORN OUT OF LIVE IN RELATIONSHIP

In the case, Indra Sharma v. V.K.V Sharma, 2013[15], Supreme Court has categorized the Live in relationship into five types. Those categories are:

  • A domestic relationship which includes an unmarried adult male and female
  • A domestic relationship which includes an unmarried adult female and a married male entered knowingly
  • A domestic relationship between a married female and an unmarried male entered knowingly
  • A domestic relationship between same sex persons

Now if we talk about the status of the child born out of such relationship then we will find a lot of cases dealing with this topic. Let’s go through those case laws and know the role of judiciary in such crucial matters.

The Supreme Court in the case, SPS Balasubramanyam v. Suruttayan, 1994 AIR 133, 1994 SCC (1) 460[16], held that if a man and a woman are living under the same roof as a husband and wife without marriage then they would be considered as married husband and wife under Section 114 of the Evidence Act, 1872. Therefore the child born out of them would be considered as legitimate child and will be all the rights of the legitimate child.

In another case, Bharatha Matha v. R. Vijaya Renganathan & ors, 2010[17], here the court held that the children born out of the live in relationship shall be considered as legitimate child and consequently will get all the rights in the property of their parents and not in the ancestral property.

ABOUT CARA[18]

 CENTRAL ADOPTION RESOURCE AUTHORITY (CARA) is a statutory body of Ministry of Women & Child Development appointed by the Government of India. This body is appointed to administer and monitor the child adoption in country as well as inter-country. This institute is in accordance with the provision of Hague Convention for inter-country adoption. It primarily deals with adoption of the abandoned, orphan and surrendered children through its associated agencies.

CARA has its own eligibility criteria to adopt the children for both the child and parents. Parents must be physically, mentally and emotionally be stable, the couples having two years of stable relationship are only eligible to adopt, the age difference between the adoptive parents and of child shall not be less than twenty-five years, etc.

CONCLUSION

As we have almost covered every corner related to the live in relationship, we can conclude that though the judiciary has supported and treated the live in relationship concept as legal, valid and harmless to the culture of the society, the requirement of legislation is still there. Now with the growing modernization and globalization Parliament of India must come forward with a worthy law to protect the interest of such young couples. We can say it is the need of the hour.

Society should also become somewhat lenient for the new generation and open-minded youngsters. To promote something and make people aware our cinema industry is playing the vital role. There are many films which have been released on the concept of live in relationship like SALAAM NAMASTE, PYAAR KA PUNCHNAMA, COCKTAIL and many more. From these sources we could hope for a change in the society and also in the status of live in relationship in India.


[1] Background, available at: http://www.legalservicesindia.com/article/1013/Emerging-Concept-of-Live-in-Relationships.html#:~:text=Live%2Din%20relationships%20are%20living,gained%20social%20acceptance%20in%20India (September 15, 202).

[2] Dr. Justice V.S Malimath Report. Committee on Reforms of Criminal Justice System. Government of India, Ministry of Home Affairs. Report Vol. I; March 2003. Available at: https:/www.mha.gov.in/sites/default/files/criminal_justice_system.pdf

[3] Indian Kanoon website. Available at: https://indiankanoon.org/doc/1327342, Accessed September 16, 2021.

[4] Indian Kanoon Website. 1978. Available at: https://indiankanoon.org/doc/215649, Accessed: September 20, 2021

[5] Indian Kanoon Website. Available at: https://indiankanoon.org/search/?formInput=dinohamy, Accessed on: September 20, 2021

[6] Indian Kanoon Website. Available at: https://indiankanoon.org/doc/1388066/, Accessed at September 20, 2021

[7] Indian Kanoon Website. Available at: https://advocatespedia.com/Madan_Mohan_Singh_%26_Ors_vs_Rajni_Kant_%26_Anr. Accessed on September 20, 2021.

[8] Indian Kanoon Website. Available at: https://indiankanoon.org/doc/988131/. Accessed on September 21, 2021.

[9] Indian Kanoon Website. Available at: https://indiankanoon.org/doc/1413588/. Accessed on: September 21, 2021

[10] Lawyers Club Website. Available at: https://www.lawyersclubindia.com/judiciary/YAMUNABAI-V-ANANTRAO-504.asp. Accessed on September 21, 2021

[11] Section 125 of the Criminal Procedure Code, 1973, Indian Kanoon Website. Available at: https://indiankanoon.org/doc/1056396/. Accessed on: September 21, 2021

[12] [12] Background, available at: http://www.legalservicesindia.com/article/1013/Emerging-Concept-of-Live-in-Relationships.html#:~:text=Live%2Din%20relationships%20are%20living,gained%20social%20acceptance%20in%20India (July 29,2019).

[13] Available at: https://indiankanoon.org/doc/1610983/. Accesswed on September 21, 2021

[14] Indian Kanoon Website. Available at: https://indiankanoon.org/doc/1610983/. Accessed on: September 21, 2021

[15] Indian Kanoon Website. Avaialble at: https://indiankanoon.org/docfragment/192421140/?formInput=domestic%20violence%20act%20%20%20%20doctypes%3A%20supremecourt. Accessed on September 21, 2021

[16] Indian Kanoon Website. Available at: https://indiankanoon.org/doc/604764/. Accessed on: September 21, 2021

[17] Lawyers Service Website. Avaialable at: https://www.lawyerservices.in/Bharatha-Matha-and-Another-Versus-R-Vijaya-Renganathan-and-Others-2010-05-17. Accessed on September 21, 2021.

[18] Available at: http://cara.nic.in/about/about_cara.html. Accessed on: September 21, 2021.

Author: NIMITT PANDEY, IIMT

Editor: Kanishka VaishSenior Editor, LexLife India.Advertisements

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