By Thithiksha Padmam
As we all know the only thing that is constant in this world is change. In the past several years, Indian society has seen a significant shift in its lifestyle and culture. Most people are slowly but steadily becoming more accepting of premarital sex and live-in relationships. However, because such conceptions lack legality and support in society, such movements have been constantly criticised and hotly debated. In contrast to marriage, partners in live-in relationships are not married to each other but live together under the same roof in a relationship that mimics marriage. In other words, it's a cohabitation. But in India, only those partnerships between a man and a woman are regarded as genuine if the two have married according to existing marriage laws; otherwise, all other types of partnerships are regarded illegitimate.
With modernisation and development in the society, people have become more self aware of their actions, life goals and way of life. Today marriage is not seen just as a way of procreation and extending ones lineage but it is seen as a life long partnership between two people through every circumstance of their life. Hence a lot of people choose to establish a live-in relationship to test their compatibility before becoming officially married. In the event that the couple decides to break up, it also protects partners from the stress of family drama and lengthy legal proceedings. Whatever the cause, it is clear that in a traditional society like ours, where marriage is seen as "holy," an increasing number of couples are opting for a live-in relationship, even as a long-term commitment, over marriage.
Many legal and social difficulties have arisen as a result of these conditions, and they have become the subject of debate. Many situations have been documented and seen over time when partners in live-in relationships or children born from such relationships have remained vulnerable because such partnerships have been kept outside the domain of law. Because they do not have any duties or responsibilities, partners in live-in relationships have abused their power.
In India, there is no specific legislation governing live-in relationships. There is no legislation that specifies the rights and obligations of parties in a live-in relationship, as well as the legal status of children born to such couples. Because there is no legal definition of a live-in relationship, the legal status of such relationships is also unknown. The parties in live-in relationships in India have no rights or obligations under Indian law. Various judicial decisions, however, have clarified the concept of a live-in relationship. Though the law is still uncertain about the legality of such partnerships, a few rights have been granted by interpreting and altering existing legislations in order to prohibit partners from misusing such partnerships.
The legislature has recognised live-in relationships for the first time in the Protection of Women from Domestic Violence Act, 2005, by providing rights and protection to females who are not legally married but are living with a male individual in a relationship that is in the concept of marriage, also akin to wife but not equivalent to wife.
Section 2(f) of the Domestic Violence Act, 2005 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.
Though the Act does not absolutely define a live-in relationship, it is left to the courts to interpret. The court interpreted the phrase "relationship in the kind of marriage" in light of the aforementioned rule. Individuals who are in live-in relationships are now covered by the requirements of the Domestic Violence Act, 2005. Because the phrases ‘nature of marriage’ and ‘live-in relationship’ are on the same line and have the same meaning, courts assume that live-in partnerships are within the scope of the expression. This allows women some basic rights to protect themselves from the abuse of forged marriages and extramarital affairs.
Also under the 2005 Act, a relationship, such as marriage, must agree to some basic conditions. It stipulates that the pair must be of legal marriageable age or qualified to engage into a legal union. It was also specified that the pair must have cohabited freely for a long period of time and presented themselves to the world as married. The Act of 2005 should not apply to any type of live-in relationship. A domestic relationship cannot be established by simply spending a week together or having a one-night encounter. It further stated that if a man has a "keep" whom he supports financially and uses primarily for sexual purposes or as a slave, the relationship is not recognised to be in the nature of marriage.
Section 125 of the Criminal Procedure Code, 1973 was enacted to prevent vagrancy and destitution for a wife, minor children, or elderly parents, and it has since been extended to live-in partners by court interpretation.
On June 30, 2008, the National Commission for Women suggested to the Ministry of Women and Child Development that the term of "wife" in section 125 of the CrPC be expanded to include women in live-in relationships. The goal of the recommendation was to harmonise the legal laws relating to women's protection from domestic violence, as well as to bring the relationship of a live-in couple on level with that of a legally married pair.
The hon’ble Supreme Court of India established The Malimath Committee, or Committee on Criminal Justice System Reforms, in November 2000 for this matter. The Malimath Committee made many suggestions under the heading "offences against women" when it released its findings in 2003. One of the committee's recommendations was to change the definition of "wife" in Section 125 of the Criminal Procedure Code. A correction was made as a result of this change, and now the term "wife" refers to women who were previously in a live-in relationship and whose partner has abandoned her at his will, allowing a woman in a live-in relationship to gain the status of a wife. Essentially, it states that if a woman has been in a live-in relationship for a reasonable period of time, she has the same legal rights as a spouse and is entitled to maintenance under Section 125 CrPC.
A presumption in favour of wedlock arises when partners live together as husband and wife. However, it was recently pointed out in a debate that a divorced woman can be recognised as a wife under Section 125 CrPC and claim support, however partners who are not legally married cannot give each other a divorce and hence cannot claim maintenance under this section.
According to Evidence Act, 1872 the court has the authority to presume the occurrence of any fact that it believes is likely to have occurred, taking into account the normal course of natural events, human behaviour, and public and private business in relation to the circumstances of the case. As a result, whenever a man and a woman live together for an extended period of time, there is a presumption of marriage.
In October 2008, the Maharashtra government approved a proposal that a woman who has been in a live-in relationship for a "reasonable period of time" should be given the status of a wife. The facts and circumstances of each case decide whether a timeframe is a "reasonable period."
The Indian judiciary has taken the lead in filling the void left by the lack of a particular statute governing live-in partnerships. It may be morally wrong in the eyes of society, but it is not "criminal" in the eyes of the law. The Indian judiciary's goal is to provide justice to the participants in live-in relationships who were previously unprotected by any laws when they were subjected to abuse as a result of such partnerships. The judiciary is neither explicitly encouraging nor forbidding such unions. However, it is just concerned that there be no miscarriages of justice. As a result, the judiciary has taken into account a variety of considerations while making decisions, including both societal standards and constitutional ideals.
A presumption for couples living together without getting legally married has existed since the period of the Privy Council. This can be seen in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy (1927 SCC ONLINE PC 51), where the Privy Council stated that “where a man and a lady are proved to have lived separately as spouse, the law will presume, unless the contrary be clearly demonstrated, that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage”. In Mohabbat Ali Khan v. Md. Ibrahim Khan (AIR 1929 PC 135), the court determined the marriage to be valid because both partners had lived together as spouses for a long time.
Later, in Badri Prasad v. Director of Consolidation (AIR 1978 SC 1557), the Supreme Court upheld the legality of a 50-year live-in partnership. However, the Supreme Court stated in the same case, "The assumption was rebuttable, but the party seeking to deprive the connection of legal origin bears a great burden of proof to show that no marriage took place." Legitimacy is favoured by the law, and a bastard is frowned upon.” Even while it may be tempting to assume a marriage-like relationship, some unusual conditions may lead the Supreme Court to challenge such a presumption.
On September 16, 2009, the Supreme Court held in Abhijit Bhikaseth Auti v.State Of Maharashtra and Others, that a woman does not need to prove her marriage to be entitled to maintenance under section 125 of the Cr.P.C. Section 125 Cr.P.C. allows a woman in a live-in relationship to seek maintenance.
The Allahabad High Court declared in Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others, that "a lady of about 21 years of age who is a major has the right to live with a man even if they do not desire to marry, if both so choose." The Supreme Court stated that a man and woman who have been in a long-term live-in relationship will be viewed as married and their kid would be regarded genuine.
The Court concluded in Madan Mohan Singh v. Rajni Kant that a long-term live-in relationship cannot be called a "walk-in and walk-out" relationship, and that there is a presumption of marriage between the parties. It is obvious from the Court's approach that the Court prefers to regard long-term living partnerships as marriage rather than creating a new category such as a live-in relationship.
The Supreme Court of India concluded in the landmark case of S. Khushboo v. Kanniammal [(2010) 5 SCC 600] that a living connection falls under Article 21 of the Indian Constitution's right to life. The Court went on to say that live-in relationships are legal and that the act of two adults living together is not illegal or criminal.
The Allahabad High Court has ruled In the case of Kumar Devi & Anr. V. State of U.P. & Ors, that Article 21 – Right to Life and Personal Liberty – protects the right to remain in a live-in relationship. The court ruled that a couple in a relationship has the right to live together peacefully and that no one has the authority to interfere with that right. In the event of a problem, the police should be contacted right away for safety.
The Delhi High Court decided the case of Alok Kumar v. State, in late 2010. The petitioner, who had not even divorced his prior wife and had a child of his own, was in a live-in relationship with the complainant. The complainant was also the mother of a child. As a result, the Delhi High Court classified such a partnership as a walk-in, walk-out connection with no legal ramifications. It is a living-together contract that is "renewable by the parties on a daily basis and can be cancelled by either party without the approval of the other. “Those who do not want to be in such partnerships enter into a marital relationship, which provides a legal commitment that neither partner can break at will. As a result, those who choose to be in "live-in relationships" cannot afterwards accuse each other of infidelity or immorality.
In a recent historic judgement, the Supreme Court addressed the topic of live-in partnerships in depth and established the grounds under which a live-in relationship can be granted marriage status. In Indra Sarma v. V.K.V. Sarma ((2013) 15 SCC 755), a two-judge Supreme Court bench comprised of K.S.P. Radhakrishnan and Pinaki Chandra Ghose, JJ. held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to a legally. In this instance, however, the Supreme Court believed that denying victims of illicit partnerships any protection would be a grave injustice. As a result, the Supreme Court stressed the importance of expanding Section 2(f) of the Domestic Violence Act, 2005, which defines "domestic relationships," to include victims of illegal relationships who are poor and illiterate, as well as their children who are born out of such relationships and have no source of income.
“In view of the legal fiction contained in Section 16 of the Hindu Marriage Act, 1955 (legitimacy of children of void and voidable marriages), the illegitimate children, for all practical purposes, including succession to their parents' properties, have to be treated as legitimate,” a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar said. They cannot, however, succeed to the attributes of any other relation based on this rule, which is limited to the qualities of the parents in its application.”
In the case of an illegitimate child, the child can only lay a claim on the parent's self-acquired property. It can also be interpreted in such a way that a child can make a claim on a share of a parent's ancestral property by requesting that parent's portion, as Section 16 allows for a share in the parents' property. As a result, it might be claimed that the individual is entitled to both self-acquired property and a share of the ancestral property.
In S.P.S. Balasubramanyam v. Suruttayan, the Supreme Court 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 no longer be considered children." Furthermore, the court construed the status and regulations in such a way that it indicates conformity with Article 39(f) of the Indian Constitution, which states that the state must provide adequate opportunities for children to develop properly and further preserve their interests.
In Revanasiddappa v. Mallikarjun [(2011) 2 UJ 1342], a Special Bench of the Supreme Court of India, consisting of G.S. Singhvi and Asok Kumar Ganguly, stated that regardless of the relationship between parents, the birth of a child out of such relationship must be viewed independently of the relationship between the parents. A kid born out of such a connection is as innocent as a kid born out of a lawful marriage, and is entitled to all of the rights and privileges granted to children born out of lawful marriages. Section 16(3) of the modified Hindu Marriage Act, 1955, is all about this.