India, a nation of cultural values and customs, can't really afford rituals to sink into Western society. But since the economy is growing and people are becoming highly aware, India must decide to step forth and move with the rest of the globe by legalizing the Live-In relationship.
Nevertheless, this reform has been constantly being criticized and widely debated as the culture lacks legitimacy and acceptance for such ideas. Unlike marriage, partners are not married to each other in live-in relationships but live together under the same roof that resembles a marriage relationship. We may say, in other words, that this is a cohabitation. Throughout India, only those relationships between a man and a woman are considered legitimate where there has been marriage between the two based on existing marriage laws otherwise all such relationships are considered illegitimate. A live-in relationship is an agreement in which a couple stays with each other without forming a traditional marital relationship. This is also known as "cohabitation." In most cases this is a highly unofficial practice, though some countries do offer such couples registration. People usually want to enter into these relationships to either evaluate commitment prior to marriage, or if they are unable to marry formally or merely because it does not entail the inconveniences of lengthy separation. It could also be that they do not see any profit or interest offered by the marriage institution or that it is temporarily hindered by there financial situation. It includes continuing cohabitation among the partners without any commitments or obligations to each other. As opposed to dating, which has become common in the urban setting, live-in relationships are viewed as quite uncommon. While most couples see this arrangement as a favorable option, some hold back because the family's approval is the toughest to acquire. Though there is no legal barrier that would prohibit such an arrangement, there is still opposition by society today.
Typically, marriage was deemed a respected relationship, and if a woman was economically dependent on the man, it would be easy to portray her subordinate to her counterpart in the unstable relationship. In fact, the idea of' go in and go out' seemed to be antithetical to the very ethos of marriage. Despite a considerable chunk of the population's mentality, however, the apex court was quite important in providing couples with security. There is no specific law on the topic of live-in relationships and neither is the Hindu Marriage Act, 1955 acknowledged as such. In the lack of any law, the court tried to shine a light on it through the judgment given in Badri Prasad v. Deputy Director of Consolidation and Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others, where, in the former, it affirmed the legal standing of a couple's 50-year-old relationship and in the latter, the court said a man and woman could live together. In fact, it has also been recognized that it may be unethical to society and is not unlawful. But some argue that the judiciary does not explicitly promote or forbid such relationships, but only does justice while maintaining social and constitutional integrity in view. In the case of S Khushboo v. Kanniammal & Anr the court held that living together is a right to life. The actress Khushboo, reportedly promoted premarital sex and live-in relationships and her critics accused her of propagating nuisance. In favor of the plaintiff, the court gave a decision, upholding the distinction between law and morality. And ultimately, in the case of S.P.S. Balasubramanyam v. Suruttayan4, the supreme court held that if for a long time a man and a woman live in the same house and cohabit, there will be an assumption under section 114 of the Indian Evidence Act that they will live as a married couple and the kids born thereafter will be legitimate. The resistance to the notion isn't unusual and it won't end in a moment, unconditional societal acceptance will take longer than the system's judicial reform.
LIVE-IN RELATIONSHIPS IN INDIA
This would be necessary in the sense of marriage to apply to current legal changes in this direction where the legal recognition of live-in relationships has been granted. Therefore, except in the absence of any formal or traditional rites / ceremonies, a man and woman living in a relationship in the confines of marriage are known as "husband and wife." There have also been few judgments of the Supreme Court where the issue raised was whether extensive meaning could be given to the words "husband" and "wife" where parties have lived together for a relatively long time without strict marital proof in accordance with section 7 of the Hindu Marriage Act. In the sense of the property / maintenance rights of the wives and the children born from these relations, the resolution of this issue had taken on significance.
Live-in relationships in India are still regarded outside the norms of the society. But, in a country where parents sometimes even murder or abandon their children for caste marriage, many valiant couples do live together without marrying. They are facing societal disdain and various legal hurdles. For centuries of reality, the tradition of men and women living together without marriage has been in practice. Nawabs, princes, and wealthy men in India have not only had multiple wives since ancient times, but also many live-in women. But at that time for men to have live-in relations with women beyond their marriage had not been considered ‘immoral' at all. Concubines had been held for the amusement and comfort of the man. After emancipation, bigamy was outlawed as society progressed and women became more aware of their rights. Therefore, the custom dropped out.
Nevertheless, the last few decades saw the emergence of a modern type of "living-ins," in which there were men and women living with each other without initiating marriage. However, for many reasons, the traditional Indian community disapproved of these 'living in' arrangements. Firstly, the marriage relationship was respected by society. An Indian woman was supposed to remain a virgin until she married but this custom was challenged by live-in relationship. Second, as women continued to be economically dependent on men, the woman's inferior status was created by the insecurity of these live-ins. Such relationships had a lot of social critique causing them to remain largely hidden. Neither laws nor tribunals protected such relationships. The SC in Yamunabai v. Anant Rao's case in 1988 held that when a man married the second time, his second 'wife' had no right to maintenance under Section 125 Cr. P.C, although she was unaware of his previous marriage. The SC refused to acknowledge that while their marriage was invalid, they had lived together. Even though he had defrauded the woman by covering up his previous marriage, the man was allowed to take advantage of that. For such a live-in relationship the SC does not impose any rights on the individual. Even as late as 2000, the Allahabad HC held that a woman who lives with a man could not be equated with his wife in Malti v. State of Uttar Pradesh. In this situation, the woman in the guy's house was a chef, and she lived with him, having a close relationship. However, the Court declined to expand the scope of the word "wife" to include maintenance claims of a live-in companion in Section125 Cr. PC.
There are several cases where these partnerships have been accepted by the courts. In A Dinohamy v. WL Blahamy it was held that "Where a man and a woman are proven to have lived together as a man and a wife, the law presumes that they lived together as a result of a legal union, unless the alternative can be proved." Again, the SC upheld the same concept in Gokal Chand v. Pravin Kumari, although it cautioned that the couple would not be granted validity if proof were presented.
These decisions, only served to acknowledge marriages that were challenged, on the grounds that there has been a long-term live-in relationship. They didn't accept live-in relationships as being separate from the marital system.
However, the growing instances of living-in relationships, meant that the need for changes was felt. In 2003, the Malimath Commitee report on changes in the Criminal Justice System recommended that the term 'wife' be updated in Section 125, Cr. P.C to include a woman staying with a man for a fair time. The role of Live-in Relationships in the Indian context is not very clear but the recent landmark judgments provided by the Hon'ble Supreme Court provide some aid when we glance through the topic of Live-In and examine the radius of the subject in the Indian legal setting. Couples connected to the ties of living-in relationships are not regulated by particular laws and therefore find fragments of aid in other civil laws. The law on a specific stand is neither clear nor definitive, the position is diminishing. The Hon'ble Supreme Court acknowledged the idea that it is equivalent to a legitimate marital relationship by a long-term cohabitation in a live-in relation. The Supreme Court also ruled that live-in relationships cannot be considered a crime since the same is not specified in statute. The Supreme Court gave its landmark judgment in the well-talked case of S.Khushboo v Kanniammal and held that there was no law that prohibits live-in relationship.
In another case, the Supreme Court ruled that if, for a long time, man and woman live in the same house and cohabit, there would be a probability under section 114 of the Evidence Act that they will live as husband and wife, and the children who are born to them will not be illegitimate.
Hence, in a number of decisions released until currently, the High Courts and the Hon'ble Supreme Court showed the encouraging signs of acknowledging the validity of live-in relationships and also showed their willingness to introduce legislation with the intention of securing couples’ rights in a live-in relationship.
POSITION OF LIVE-IN RELATIONSHIPS ABROAD
With the Supreme Court ruling that the freedom to live together is part of the right to life, the legal rights and responsibilities of live-in couples around the world need to be looked into. Although heterosexual couples living in a relationship are called "cohabitants," couples of the same sex are legally identified as "civil partners." Yet the cohabitation rights law is still changing and many partners are still unaware of their respective rights and duties.
The Civil Solidarity Pact of the 'pacte civile de solidarite' passed by the French National Assembly in October 1999, regulates the live-in relations in France. Cohabitation is described as a "de facto secure and continuous relationship" between two people of different sexes or of the same sex living as a couple jointly. The pact describes the relationship as a contract and the couples involved as contractors. In order to coordinate their shared existence, the contract connects two adults of different sexes or of the same sex. For a legal contract to occur, the contractors "must not be bound" by another arrangement, by marriage, sibling or lineage.
Live-in ties in United Kingdom are mainly regulated by the Civil Partnership Act, 2004. While the word "common law partners" is sometimes referred to as a man and woman living together in a secure marital partnership, the definition is not necessarily true in England and Wales. The Government believes that live-in couples owe more to each other than being deserving of the word. As per a note from the Home Affairs Section to the House of Commons, unmarried couples on dissolution of relationship have no guaranteed right to own each other's properties. When a cohabiting couple splits, the courts do not have the power to circumvent and split the property's strict legal ownership like they do on divorce. Unmarried couples do not have full ownership of the properties on death of their spouse.
Australia's Family Law Act states that there can be a "de facto relationship" between two persons of the same or different sex, and that a person may be in a de facto relationship, even if officially married to some other person or in a de facto relationship with somebody else.
Prior to 1970, cohabitation in the United States was illegal, but began to gain recognition as a common law, subject to some conditions. The American legal history was then a witness to many marital sex laws that paved the way for the "prenuptial arrangements" to live together with contracts and their relatives. By giving cohabitants basically the same rights and responsibilities as married couples, the country later institutionalized cohabitation, a situation similar to Sweden and Denmark. Those who live together are not counted as legitimate parents.
RIGHTS OF WOMEN IN A LIVE-IN RELATIONSHIP IN INDIA
The concept of "domestic relationship" refers to a relationship between two people who live or have lived together in a common house at a certain juncture when they are related by marriage, or a relationship in the form of marriage, adoption, or family members living together as a joint family. The terms in the essence of marriage are therefore self-explanatory and buy the social definition within its context of live-in relationship.
Moreover, in recent years, the suggestions of different committees and NGO's have aroused the spirits of justice in the context of women who are especially victimized by these relationships. In addition, the Hon'ble Supreme Court also released landmark judgments to make its stance on the matter clear. For example, in the landmark case D. Veluswami and
D. Patchaimmal that a woman in a live- partnership is not entitled to maintenance unless she fulfills other conditions, the Supreme Court observed that it would not be a domestic relationship merely to spend weekends together or one night.
In order to get maintenance, the essential four conditions are:
The couple must hold themselves out to society as being akin to spouses.
They must be of legal age to marry.
They must be otherwise qualified to enter into a legal marriage.
They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
The Supreme Court acknowledged that not all live-in relationships would lead to a relationship in the nature of marriage to benefit from the Domestic Violence Act, 2005. When a man has a ‘keep' which he financially supports and primarily uses for sexual purposes and/or as a servant it will not be a relationship in the nature of marriage. The National Centre for Women made proposals to the Ministry of Women and Child Development to include live-in female partners inside the framework of Section 125 of Cr.PC to define their rights and allow them to the right to maintenance. The Hon'ble Court also accepted the above theory in the case of Abhijit Auti v. State of Maharashtra and others, and furthermore the Maharashtra Government gave a positive sign by approving the Malimath Committee Report and also the Law Commission Report and holding that if a live relationship continues for a very long time, it is entitled to enjoy a wife's rights. Recently it was ruled that a wife under section 125 of the Cr. PC is a divorced wife and that the right to maintenance can only be exercised by a divorced wife and not by a female partner who has cohabited merely with her male spouse.
Rights of Child born through a Live-In Relationship
There is a fascinating concept of couples moving into live-in relationships, as a replacement for a traditional marriage. These long-term obligations also require childbearing. The spouse can procreate believing he / she is married lawfully. Either way different legal problems arise about the status and rights of these children as compared with those born in marriages.
Under the light of current legislation, children born into a live-in relationship were − unlawful. In Tulsa v. Durghatiya, however, the Supreme Court ruled that children born into such an union would no longer be considered illegitimate. For situations in which a pair has lived together over a number of years, marriage is assumed and a child born into that union shall enjoy all the privileges of a legitimate child.
When deciding a case concerning the validity of a child born out of wedlock, the Supreme Court decided that if a man and a woman were engaged in a long-term living-in relationship, they would be regarded as husband and wife, then their child would be legitimate. Additionally, the new amendments enacted in law by the Domestic Violence Act, 2005, offer protection for women involved in these relationships for a fairly long period of time and give them wife status.
The Child born from a Live-In Relationships receives the same rights of inheritance and succession as a child enjoys from a married couple under the Hindu Marriage Act. Notwithstanding that marriage is null and void pursuant to section 11, any child of such relationship which would have been legitimate if the marriage were valid shall be legitimate,
whether that child was born before or after the beginning of the Marriage Laws Act, 1976 and whether or not a declaration of nullity is issued in respect of that marriage pursuant to this Act and whether or not the marriage is null and void under this Act.
Therefore, the Hindu Marriage Act has given validity to children born into marriages that are not legal in order to keep the spirits of law in the right direction and to subsidize the social evils in which illegitimate children were denied their rights. Thus, such concept brings within itself the realm of living-in relationships and born into these relationships. Although the other laws have not yet granted any rights to children born into these marriages, the privilege is declining as a consequence of children's legal status, resulting in widespread misuse of the provisions yet avoiding liability. Hence, among certain laws, a child's legitimacy is questionable and must be proved beyond reasonable doubt. In fact, if the live-in couples agree to divorce the issue of the child's future is thrown away. Consequently, the laws relating to guardianship will be amended to include the guardianship of children born into these partnerships within its ambit.
The Supreme Court held that a kid born from a living-in relationship is not allowed to claim inheritance in hereditary Hindu co-parent property and may only claim a portion of the self- acquired property of the parents. The Bench put aside a judgment of the Madras High Court, which held that children born out of living-in relationships were entitled to share in ancestral property as there was a marriage assumption given the long relationship. A child may only claim the self-acquired property of the parent, in the event that the child is illegitimate. It can also be read in such a way as to encourage a child to assert the share of ancestral property of a parent because they can request the share of that parent in such property because Section 16 requires a share of the property of the parents. Therefore, it could be argued that the individual is entitled not only to self-acquired property but also to a share of the ancestral land.
The Apex Court also mentioned that when there is a marriage a spouse cannot claim the live- in relationship with another person and demand inheritance from that other person's property for the children. While the husband is married, the relationship with any other person is not live-in relationship but adultery.
EFFECT IN THE SOCIETY
For different reasons, this pattern of living-in-relationship has influenced all the youth in society. By having any drawbacks nothing escapes. Such a relationship offers two partners no question the full opportunity to exercise the right to equality, the right to privacy, the right to life. But it also has to consider the negative aspect.
Breaking down of marriage institution
Marriage is a social agreement or legal contract which creates kinship between people. It is a system in which interpersonal, typically romantic and sexual, relationships are recognised in a number of ways, depending on the community or subculture in which they are located. Such a union, which is sometimes formalized by a wedding ceremony, may also be called marriage. Therefore, it should be easily argued that living-in-relationship is just degrading the cherished marriage that is known as social union unlike living-in-relationship where only two people are well off. Marriage leads to a man-woman relationship and this ensures child protection.
In and out relationship
Another simple way to describe the word "live-in" is to refer to "walk-in and walk-out," which does not imply any responsibility on the parties. "It is a cohabitation arrangement that the parties amend every day and can be terminated by either without the permission of the other. Even people who want to have a living-in relationship cannot complain about unfaithfulness or immorality. And we may say that nothing more than personal gratification.
All have the moral responsibility of adhering to life-enriching values so that future generations can be proud of their birth, cultural heritage and national identity. Responsible parents should leave their offspring a positive inheritance and not liabilities.
Also, when parents raise their children morally, other preventative steps are needed to protect them from the ill-effects of the unapproved social changes and the vicious predictions of modernity.
Weakens social relationship
As such relationships are the option of two person wishes to make up their own families without their parents 'will, there is always possibility of a bad relationship between the spouse family's parents. Therefore, there is no question that there is often a shift in the family's clash of ideas and views, as a result of which the bond with other family members will be diminished laterally.
The Indian Court's decisions are discernible, because in some cases the Courts have held that the living relationship should not be bonded between the partners, as the sole requirements for agreeing these agreements are based on the fact that there is no requirement to be fulfilled by the partners, while in other cases the Court held that if the cum cohabitation relationship lasts for a sufficiently long and relatively long time, the pair would be viewed as a married couple with all the rights and responsibilities granted under the marital contract.
It also seems odd if the idea of living-in is brought into the framework of section 125 of the Cr. PC where the husband is expected to pay for maintenance and succession as the basis for entering into a living-in relationship is to avoid all the responsibilities resulting from marital relationships. If a wife's and a live-in partner's rights are identical it would encourage bigamy, and a dispute would occur between the wife's interests and the live-in partner. Apart from the lack of legal approval, the social life of these relationships is limited only to the metros, but when we look at the masses that define India, there is no co-relationship between living-in relationships and the Indian society's acceptance. It gets no legal aid and the culture often evicts these partnerships at the same time. Parliament would seek to create a new branch instead of trying to put live-in within the framework of established laws as such ineffective strategy would further confuse the masses.
AIR 1978 SC 1557
AIR 2001 All 254
AIR 2010 SCW 2770
(1994) 1 SCC 2770
Vimla Patil, “Do Live In Relationships Really Benefit Women”, THE TRIBUNE, http://www.tribuneindia.com/2003/20030921/herworld.htm#1,
AIR 1988 SC 644
2000 Cri LJ 4170 (All)
(1928) 1 MLJ 388
2010 AIR SCW 2770
AIR 2011 SC 479
(2008) 4 SCC 520
AIR 2003 Bom 304
Submitted by: Kopal Tewari