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Changing Dynamics of Live-In Relationship in India


INTRODUCTION

The phrase ‘Don’t judge a book by its cover’ is applicable on the concept of Live-In Relationships, as a lot of people have a lot of misconceptions and apprehensions about the relationship. The concept of Live-In Relationship is said to be a concept influenced by the western culture and is said that the younger generation have changed the aspect of relationships and partners and have given a different view to the entire aspect of relationships. Live-In Relationship in simpler terms means that when two people in a relationship but unmarried decide to live together and cohabit under the same room without being bounded by the institution of Marriage. In today’s day and age, a lot of couples are opting to live together without getting married or in some cases maybe after some years they do get married.


Live-In Relationship has been in a way a taboo in the society and still the society is wrapping their heads around the concept of live-in. A relationship between a man and a woman has only been recognized as legal and legitimate when it is based on Marriage and proper marriage laws. When we say that the concept of live-in relationship is influenced by the western culture as a lot of people consider that the Western Ideology regarding marriage is not conventional but they rather considered it as a personal matter which involved everything that a couple would love to do together which is living together, building their home together and leading a life together but the Indian ideology sees it as a religious matter and attaches the concept of marriage to the societal norms and expectations, and that is a reason a lot of couples have started to be in a live- in relationship because they want to just live together and build a life together rather being burdened by the societal norms and expectations.

Unmarried couples deciding to live in together can be based on various reasons beginning from testing the compatibility between each other before fully committing to each and maybe at times not wanting to give a name to a relationship and not believing in the concept of Marriage and

they don’t want to be tied up by the religious or patriarchal institutions.

The Supreme Court in various cases have effectively declared that live-in relationship between two consenting adults is legal and they can’t be prevented from cohabitating with each other nor forced to marry each other. On the other side, the society is still apprehensive about the fact of two adults living together without marrying each other. We can also say that the legislations have been biased in favour of marriages and there is no law that talks about live-in relationship.

Live-In Relationship has been discussed from various aspects and my aim in this article would be to establish the different nuances and the viewpoints that have been taken up on the topic of Live-In be it the societal view or the legislative view. Furthermore, I would also be bringing in an aspect of live-in relationships in the case of couples belonging from the LGBTQ+ community, if their rights for the same is similar to those in a heterosexual relationship.

SOCIOLOGICAL ASPECT

The institution of marriage is the strength of this country and its diversification. This is not limited to any difference in faith or religion, irrespective of all these factors, there is an uniform perspective on the concept of marriage. It is considered that the morals and values along with the traditions are preserved and followed by Marriage and especially under Hindu Laws, marriage is considered to be sacrosanct. In earlier days, the elders used to fix the marriage as the concept of people living in a Joint Family was very prevalent but with time nuclear families have started to be more as a lot of people migrate to different cities for various opportunities. When we talk about the recent times, there is an evident change in the mindset of the people. A lot of people start getting skeptical about the concept of Marriage and either decide to not get married or marry quite late and some opt to live-in together with their significant other.


The society as a whole is still slowly accepting the concept of Live-In Relationships and taking notice of their existence. This practice is usually followed in much bigger cities or Metropolitan Cities. The society as a whole has started accepting the concept of live-in relationships and recognizing the couples practicing it but still it is frowned upon. In India, marriage is considered given the utmost importance and is known to be sacramental bonding between two people. The relation between Husband and Wife is still given the most importance and while a lot of couples are slowly opting to only cohabit together with any marital ties binding them but it lacks the backing from the public as the structure of the Indian society makes it quite difficult to be made into a legislation for regulating and govern the relationship.


The Indian society is considered to be structured in a conventional manner and its quite difficult to accept the fact that an unconventional relationship like Live-In exists and this marriage is not bound by any marital ties. In earlier times, the Indian families who were orthodox did not at all accept these relationships and also ousted those people who were in such relationship. There is a misconception that individuals who live together share one home and one bed, then those individuals don’t care about the society and also these relationships are always given a sexual annotation which is not fair to the individuals in such relationship. The society perceives these individuals that they run away from their responsibilities but it is important to note that individuals in a live-in relationship are both adults and consensually decide to be together and want to see their compatibility or also see whether they can commit to each other so that they can eventually get married and be bound by the marital ties and not end up in a Divorce.

A lot of philosophers have stated that marriage is considered as a socially accepted relationship for the purpose of sex and the birth of children and this relationship is always burdened by this expectation. Furthermore, marriage is considered to be a life-long commitment between the individuals but there is no surety that it is going to last forever, sometimes a lot of married couples do end up getting a divorce which could be various reasons.

On the contrary, individuals who decide to cohabit together without getting married take this decision consciously and know the consequences as they enter into such relationship without any apprehensions and also mutually enter into such relationship and both the individuals be in the relationship according to their own norms and are not dictated by any societal norms or pressure.

Therefore, with the changing times, a lot of people have started accepting Live-In Relationship as a part of the society and unmarried couples living together do it for various reasons and this also provides the couple a lot of time to actually decide before committing to each other and also provides them with a lot of time to work on their personal growth and with each passing generation, there is a sense of open-mindedness and the societal restriction is lessening and with each passing time the individuals on their own take their decision with whom they want to live and lead their life with and also are responsible for their own decisions.



LEGISLATIVE ANALYSIS

Law along with society always aims to work for the betterment of an individual and has played a crucial role in the changing dynamics of the society as a whole and shaping up the society.

Marriage in India is considered to be a legal contract along with social union as a lot of legislations provide for the protection of couples who are married and there is a sense of vagueness when it comes to couples in Live-In Relationship. This is the reason for various judgements that have gone to talk about live-in relationships.

In the legal scenario, live-in relationships are not yet governed by any particular legislation but several judgments that have established the legality of those relationships. When we talk about certain legislation, the Protection of Women from Domestic Violence Act 2005, does provide for a certain kind of protection to women living in such relationships who face any kind of atrocities. This legislation aimed to protect the interest of women from any kind of domestic violence which they might be subjected to in a relationship. It also recognizes a domestic relationship between a man and woman but without conferring any legal status to the parties. Furthermore, the Law commission has gone on to state that a women who has been in a live-in relationship for a reasonable period of time then she should be able to be provided with the same legal rights to that of a wife. The committee had also gone on to recommend that the definition of wife under Section 125 of the Cr.P.C (Criminal Procedure Code 1973). Section 125 of the Cr.P.C talks about maintenance of wives, parents and children. This recommendation was given so that a women in a live-in relationship would get the status of a wife.

The Indian Legal System, over a period of time did change its thought around marriage and live- in relationship and with time moved from the traditional point of view to a more modern outlook. The courts have based a presumption of marriage on the basis of duration for which the couple have cohabited with each other. As there is no existing legislation for live-in relationship but various judgments have aimed at the legalization of live-in relationship.

After Independence, the first landmark judgment which recognized Live-In Relationship in India which was Badri Prasad v. Dy. Director of Consolidation 1978 (3) SCC 527, the court in this case held that when the partners have been living together for a long term then they can be presumed as husband and wife and the live-in relationship can be presumed as a valid marriage.

In another case of Payal Sharma v. Suprintendent, Nari Niketan MANU/UP/0288/2001, the court established that live-in relationships are legal and further the Judges stated that a man and

a woman can live together even without getting married and also highlighted the difference between morality and legality. Furthermore, in the landmark judgment of Tulsi & Ors. v.

Durghatiya & Ors. (2008) 4 SCC 520, the court held that when a man and a woman have cohabited for a long period then they would be considered to be married and also talked about the legitimacy of children born out this relationship and stated that children born out of live-in relationship would be considered to be legitimate and also granted property rights as well.

The courts also highlighted the aspect of pre-marital sex, in the case of Khusboo v. Kanniamal and anr. (2010) 5 SCC 600, the court went on to state that when two adult individuals decide to live together then it does not amount to an offence and also held that there is no law that disallows pre-marital sex or live-in, further the court stated that living together is the basic and most crucial right to life which is guaranteed under Article 21 of the Indian Constitution.

In another case of SPS Balasubramanyam v. Scruttayan (1994) SCC (1) 460, the court held that when a man and a woman have been living for a considerable duration then under Section 114 of the Evidence Act 1872, which talks about the presumption of certain facts, then that couple would be presumed to be husband and wife and children born will be considered to be legitimate children.

In another landmark judgment of D. Veluswamy v. D. Patchaiammal (2010) 10 SCC 469, the court laid down certain pre-requisites in order for live-in relationships to be considered valid. They went on to state that the couple have to be of the legal age to marry or at least be qualified to enter into a legal marriage which includes being unmarried. The court also laid down that for the purpose under Protection of Women from Domestic Violence Act 2005, the couple in a live- in relationship have to prove that they have been living in a shared household as mentioned under Section 2(s) of the Act. The court further stated that in order for live-in relationships to be considered to be in the nature of marriage and get the benefit of the Domestic Violence Act 2005, they have to establish the couples have been cohabiting for a longer duration and in a shared household.

These days Live-in Relationship has its own standing in the society and also a good standing in the eyes of law of India. The most crucial case of Indira Sarma v. V.K.V Sarma (2013) 15 SCC 755, the court recognized mainly 5 kinds of live-in relationships which are-

  1. A Domestic relationship between a male and female who are both adults and unmarried and is considered to be the most simple relationship.

  2. A Domestic Relationship between a married and an adult unmarried woman and this was entered into knowingly.

  3. A Domestic Relationship between an adult man and a married woman which is entered into knowingly but this also attracts Adultery.

  4. Domestic Relationship between an unmarried adult female and a married male which is entered into unknowingly.

  5. Domestic Relationship between same sex partners.

Further, the court also established that live-in relationships will be considered to be in the nature of marriage under Section 2(f) of the Protection of Women Against Domestic Violence Act,

2005. The court in this case also talked about the fact that when a woman knowingly enters into a domestic relationship with a man who has a legally wedded wife and has two children, then the woman is not eligible for various reliefs. The court also overall provided for relief to the aggrieved person under the Domestic Violence Act 2005 and provided for an umbrella of protection to women against any Domestic Violence that might occur in such Domestic Relationships.

These judgements have gone on to discuss about the legality of live-in relationships and also there has been a discussion on the legitimacy of children born out this relationship and their inheritance rights. The Apex court has discussed about the legitimacy of children born in live-in relationship and stated that can be considered only when both man and woman have been involved in such relationship for a long periods then they would be treated as a married couple and children thus born would be known to be legitimate. Further, the court laid down that when a child is born out of a live-in relationship then he/she is not entitled to claim inheritance in Hindu ancestral coparcenary property only in situation if Hindu Undivided Family, the child can only

claim a share in the parents’ self-acquired property.

Though there is a lack of legislation for live-in relationships but the judgments have established that live-in relationships are legal in India and when the duration is taken into consideration then there is a presumption that live-in relationships are in the nature of marriage. There are certain rights which are available to the individuals in a live-in relationship. The scope of Section 125 of Cr.P.C has been widened so as to include the female partner in a live in relationship for the right of maintenance. Further, the Domestic Violence Act 2005 provides protection to woman who go through any domestic violence in a live-in relationship as well as it is considered to be a relationship nature of marriage. There are certain rights also provided to children born out of live-in relationship as they are considered to be legitimate children and along with a legal status they are also provided with the inheritance rights.

Overall, live-in relationships are not considered to be a taboo anymore and there is a legal status provided to the couples in a live-in relationship and the courts have successfully established the rights that are provided to the aggrieved person in such relationships and also discussed about the legitimacy of children.

LGBTQIA+ -BROADER SPECTRUM

The LGBTQ community is community comprising of individuals who recognize their sexual orientation as lesbian, gay, bisexual, transgender and queer and this is not limited to only the above mentioned but is a much wider spectrum with a lot of other orientations on the spectrum. In this paper, I would aim to discuss about the rights that is available to individuals who are in a live-in relationship and belonging to this community.

In a landmark judgment by the Odisha High Court in the case of Sonu Krishna Jena v. The State of Odisha WP (Cr) No. 57/2020, the court upheld the right of a trans-man and a cis-woman to cohabit in a live-in relationship. The court went on to recognized the right of the petitioner to be addressed as he/him, according to the test for self-identification of gender which was laid down in the NALSA Judgment. This protected the petitioner and his partner and recognized their right to be in a live-in relationship. The court heavily relied on two of the landmark judgments which are the NALSA Judgment and on Navtej Singh Johar Case.