Religion has always played a pivotal role in the architecture and motion of the Indian society, since times the Vedas and other holy texts that govern the framework of the innumerable religions that are practiced in the country are all millennia old, however they still enjoy a position of power and influence in determining and maintaining the social order. It is only obvious that in such a society, the laws that govern it, shall also be influenced by this powerful force. Hence, religious laws and customs, are one of the most vital sources of law in the country. Keeping this fact under for the lens for observation along with the concept of marriage, one may be able to infer, that the institution of marriage has an enormous amount of sanctity associated to it.
Religious laws and practices have for long dominated the institution of matrimony in the country. However, recent history stands witness, to the fact that since the last few decades, the laws that govern the institution of marriage, have witnessed a sharp transformation, growing beyond the traditional religious laws that governed matrimonial relations, and have become more tolerant and progressive, this change may be attributed to the phenomenon of globalization which has led to a state of continuous interaction amongst cultures of the world and has ensured an inflow of novel ideas, practices and concepts. However, globalization is not the only force of change that has led to this state of affairs, the increased importance that is being given to personal freedom may also be identified as one of the vital sources that have contributed to this progress. One such modern concept that has taken form, as a consequence of these phenomenon, is the concept of live-in relationship. A live-in relationship may be defined as the relation between an unmarried couple, that lives together for a long time, in a relation that resembles a marriage.
The Indian society has for long abhorred this concept, and have maintained an attitude of sheer intolerance towards it, owing to the sanctity attached to the concept of marriage therein. Religious leaders often cite scriptures and give the age-old argument of values and culture while defending their conservative outlook and striving for inducing the same in the minds that comprise the Indians society. However, the fact that the Hindu dharma, categorizes live in relationships as a sin couldn’t be further from the truth. The fact stands, that one of the earliest forms of marriage, I.e., the Gandharva form of marriage, which originated in the rig Vedic times, is nothing but live-in marriage itself. Under the Gandharva form of marriage the woman chooses her partner by herself, and such union that arose out of this marriage was based upon mutual consent rather than parental, and was legitimized by mere word of mouth and not through any elaborate religious rituals, this form of marriage governed relationships consummated in copulation born out of passion. One of ancient India’s prominent religious scholar, Narada, in his book ‘Naradasmriti’ describes such marriage to be one of the best kind of marital union. Hence, it is evident that the concept of live-in relationships is not new to the Indian society, but rather is one that merely appears faded in the chapters of recent history, however, the concept, through globalization, modernization, and the movement for individual freedom, has resurfaced and is gaining more and more prominence. The instant paper, attempts to examine the legal consequences of the institution of live-in relationships, through a socio-historic viewpoint while aiming to arrive at a better understanding of the current legal implications of the same.
Courts throughout the Indian legal history has evolved in their outlook towards the concept of live-in relationships, however, since under this heading, the concept is being observed through a historical perspective it becomes imperative to note that courts did not consider or use the term live in relationships while dealing with such relationships and rather opted for the term, ‘Gandharva form of marriage’ however both these terms are very closely related and share the same meaning.
In 1817 A.D. the Sadar Diwani Adalat, ruled Gandharva form of marriages legal for some social groups. Justice Abdur Rahim in T.B.K. Viswanathaswami Naiker vs Kamulu Ammal And Ors. Held that marriage in Gandharva form was not valid in India in this madras high court case he stated that the Gandharva form of marriage was obsolete. However, this judgement was further appealed against via the argument that the very fact that the instant case has brought to the attention of the court, proves that such marriages were not obsolete.
In 1946 the Patna high court in the case of, Kamani Devi v. Kameshwar Singh held that the implications and responsibilities created by the Gandharva form of marriage is binding on both the spouses however the court here stated that, the celebrations for such marriage must take place through traditional nuptial rites and ceremonies, for such marriage to be legally valid.
Justice Laik in Ram Chandra Bhattacharjee vs Manju Bhattacharjee defines Gandharva form of marriage as valid, however herein as well the learned judge opines that, the traditional nuptial ceremonies must have taken place for the marriage to be considered legally valid. Justice Laik gave that such marriages must not be considered as quasi marital union or concubinage. And also rightly predicted that the Gandharva form of marriage will resurface and gain prominence in the country in the coming years. A prediction that has now come to be true.
Stated judgements make it evident that even though the Gandharva form of marriage gained legitimacy in the eyes of Indian law by the middle half of the twentieth century, yet, validity of legal nature was only provided to it on the condition that traditional nuptial ceremonies must have taken place, it was only the consent of parents and formal giving away of the bride by her father that was excused. Hence the version of Gandharva marriage synonymous to live in relationships did not gain validity in the eyes of law, and religious rituals remained mandatory for such unions to become legally valid.
In the past few decades, the instances of people choosing to opt for live in relationships have become more frequent, however this phenomenon has not been free of legal consequence. with the rise in live in relationships, it also became necessary for the laws to evolve in a way to accommodate this phenomenon. Since there has always been an immense amount off sanctity attached to marriage in India, live in relationships have always been considered a taboo, and have been considered immoral by the society. And since there is no specific law or legal enactment governing live in relationships, the responsibility fell upon the judiciary to fill this gap and define if these relationships are legitimate and permissible in the eyes or law or the legal viewpoint is similar to the societal perception of such unions.
The supreme court in S. Khushboo v. Kanniammal held that such relationships fall within the ambit of article 21, I.e., right to life, and hence, even if they may be immoral in the eyes of society, they are not in any way illegal and are permissible under the eyes of law.
The Allahabad High Court in Payal Sharma v. Nari Niketan, held the legal validity of the concept of live-in relationships, wherein the Bench consisting of Justice M. Katju and Justice
R.B. Misra observed that,
“In our opinion, 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 it is not illegal. There is a difference between law and morality.”
In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel the court observed that two people in a live-in relationship without marriage are not criminal offenders.
Live-in relationships have traditionally had a characteristic whereby, its participants are often perceived to be devoid of any rights or responsibilities towards each other, however, in the interest of justice Indian judiciary and parliament have done away with this misconception through various laws and judgements.
In the case of Madan Mohan Singh v. Rajni Kant the honorable court held that a live-in relationship that has been maintained for a substantial amount of time cannot be considered as a walk-in walk out relationship and has a legal status similar to marriage.
And In Koppisetti Subbharao v. State of A.P. where the defendant maintained that since he never married the plaintiff section 498 (A) was of no consequence in this case of badgering for dowry, however the court did not share this view.
The courts also had to decide upon the question of alimony and whether the relief is available to the participants in a live-in relationship or not,
In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha where the High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court struck down the judgment of the High Court and awarded maintenance to the wife upon the argument that the provisions of Section 125 CrPC must be considered in the light of Section 26 of the Protection of women against domestic violence ac. The Supreme Court also held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.
The court dealt answered various questions that arose with the concept of live-in relationships gaining prominence, in the case of Indra Sarma v. V.K.V. Sarma, here the supreme court while providing that a woman who is in a live-in relationship with a man who she knows to be legally
married and with two children is not entitled to the reliefs that are available to legal wives or even women in relationship s that are of the same nature as a marriage.
However, having said this the court also observed that denying any legal protection to victims of illegal relationships would be catastrophic for them and this decided that there is a great need to expand the scope of article 2(f) of the protection of women against domestic violence act. It is important to note that the stated section defines a domestic relationship as, 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.
Following are the guidelines given by Supreme Court:
“(1) Duration of Period of Relationship
Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.
Socialisation in Public
Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
Intention and Conduct of the Parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”
Lately, a landmark judgment on 8-4-2015, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in such relationships shall be legally eligible to inhrit their partner’s property.
The legal identity of children born out of such relationships has always been a pertinent issue.
In S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court had said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” The court in its judgement also attached Article 39(f) of the Constitution of India which opines that the children must be provided with, adequate opportunity so that they develop in proper manner and further safeguard their interest, by the state.
The Supreme Court in Tulsa v. Durghatiya has held that a child born out of such relationship will not be considered as an illegitimate child. The important precondition for the same should be that the parents must have cohabited for a substantial amount of time for the society to recognize them as husband and wife and their relationship must not be a “walk-in and walk-out” relationship.
In Bharatha Matha v. R. Vijaya Renganathan, the Supreme Court provided that a child born out of a live-in relationship may be allowed to inherit the property of the parents and therefore be given legitimacy under the Indian law.
In Revanasiddappa v. Mallikarjun the supreme court held that irrespective of the relationship between parents, the child born out of such relationships shall be considered equivalent to a child born out of valid marriages.
It is evident that live-in relationships, were in existence during the early Vedic period in the form of Gandharva marriages, however, since then, such relationships eroded from the Indian society, until recently, when they gained prominence again owing to factors like globalization an increased interaction between cultures. Considering the widespread resurfacing of these relationships, Indian courts have answered various questions that arose as a consequence, and have, as they continue to, explicit, the legal status and consequences of these relationships.
However, in any responsible democracy the existence of precedent shall not negate the need of legislation, and hence, even though courts through various judgements have decided upon the various issues faced and posed by these relationships, a legislation governing them, must be passed at the earliest, considering the rampant spread of these relationships throughout the Indian society.
By Kartikay Puneesh
Second Year, B.A.L.L.B. (HONS.)
Vivekananda Institute of Professional Studies