Search

RIGHT OF MAINTENANCE TO WOMEN IN LIVE-IN RELATIONSHIPS


INTRODUCTION



Marriage according to the Hindu Law is a holy union for the performance of religious duties. It is not a contract but it is a Sanskar or sacrament. Hindu marriage protects a woman by guaranteeing her legal rights for restitution of conjugal rights in case of desertion, legitimacy of the children, relief in case of cruelty, adultery, impotency, claim of maintenance and alimony etc. Currently in India, marriage as a lifelong social bond is being questioned. There is a rising tendency to enter into live- in-relationship instead of marriage which leads to conjugal disloyalty and disquiet. The live in relationship is a living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. In every day parlance, it is cohabitation. Live-in-relationship/Cohabitation, sometimes called consensual union or de facto marriage, and refers to unmarried heterosexual couples living together in an intimate relationship. Cohabitation is defined as a situation in which opposite-sex couples live together outside the bond of marriage. In some jurisdictions cohabitation is viewed as legal as common law marriage, either for a specified period, or after the birth of a child, or if the couple holds themselves out to society as being akin to spouses. Live-in-relationship is neither recognized by The Hindu Marriage Act, 1955 nor by The Criminal Procedure Code, 1973, nor by The Indian Succession Act 1925. However, the expression ‘Relationship in the nature of marriage’ which is included within the definition of ‘domestic relationship ‘has been defined in the Protection of Women from Domestic Violence Act, 2005 (PWDVA) as follows:

Section 2(a) “Aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

Section 2(f) “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;

In India, only those relations between a man and a woman is considered to be Legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate. The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform.



RIGHT TO MAINTENANCE


Maintenance is an amount payable by the husband to his wife who is unable to maintain herself either during the subsistence of marriage or upon separation or divorce. Various laws governing maintenance are as follows:

1. For Hindus – Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956

2. For Muslims – Muslim Women (Protection of Rights on Divorce) Act, 1986

3. For Parsis – Parsi Marriage and Divorce Act, 1936

4. For Christians – Divorce Act, 1869 5. Secular laws – Criminal Procedure Code, 1973; Special Marriage Act,1954

There are mainly two type of Maintenance

1. Temporary Maintenance (Pendent elite)

2. Permanent Maintenance

Temporary maintenance is granted by the court during the pendency of proceeding for divorce or separation to meet the immediate needs of the petitioner. Under Section 24 of Hindu Marriage Act, 1955 either of the spouses, husband or wife can be granted relief if the court is satisfied that the applicant has no independent income sufficient for his or her support and necessary expenses of the proceedings pending under the Act. Interim maintenance may also be claimed under Section 125.

CrPC by the wife during the pendency of proceeding for regarding monthly allowance for maintenance under Section 125(1) CrPC. Furthermore, Section 36 of Special Marriage Act, 1954 also makes provision for the wife to seek expenses from the husband if it appears to the district court that she does not have independent income sufficient for her support and necessary expenses of proceedings under Chapters V or VI of that Act. Still further, under Parsi Marriage and Divorce Act, 1936 either Parsi wife or husband is entitled to claim expenses where the proceeding is pending under the Act. Section 39 of the Act which is substantially the same as Section 36 of the Special Marriage Act makes a provision in this behalf. Also, under Section 36 of Divorce Act, 1869 which applies to persons professing Christian religion, a wife is entitled to expenses of proceeding under the Act and maintenance while the suit is pending. All these provisions specify that the application for interim maintenance has to be disposed of within sixty days of service of notice on the respondent. Object of Section 24, Hindu Marriage Act, 1955, this provision is intended to sustain the indigent Party (wife or husband) during litigation for any of there lies under the Hindu Marriage Act. This Right arises with the start of the proceedings and ends with the proceedings under the Hindu Marriage Act. The award of maintenance under Section 18, Hindu Adoption and Maintenance Act creates no bar for filing an application under Section 24, Hindu Marriage Act .The only limitation is that the maintenance awarded under Section 18, Hindu Adoption and Maintenance Act should be kept in view while passing an order under Section 24, Hindu Marriage Act.



Permanent maintenance is granted permanently after the disposal of the proceeding for divorce or separation. Hindu Marriage Act, 1955, Section 25 – Applicant, either wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains chaste. Hindu Adoption and Maintenance Act, 1956, Section 18 – Hindu wife is entitled to be maintained by her husband during her lifetime. Wife also has a right to separate residence and maintenance if any of the condition in Section 18(2) [desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause] is fulfilled until she remains chaste or does not convert to other religion. It may also be noted that Section 19 of this Act makes a provision for a widowed wife to be maintained by her father-in-law. Criminal Procedure Code, 1973, Section 125 – This section provides for maintenance not only to the wife but also to child and parents. Court may order a husband who has sufficient means but neglects or refuses to maintain his wife who is unable to maintain herself to provide monthly maintenance to her.



However, wife shall not be entitled to receive maintenance if she is living in adultery, or refuses to live with husband without any sufficient reasons, or living separately with mutual consent. Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 – A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be paid to her within the iddat period by her former husband; an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. If husband fails to provide her the above mentioned then Magistrate can order for payment of the same. Parsi Marriage and Divorce Act, 1936, Section 40 – A Parsi husband or wife may apply to the Court under this section whereupon the Court at the time of passing any decree under the Act or anytime subsequent thereto order that the defendant pay the plaintiff a gross or monthly sum for his/her maintenance and support. Such order may also be modified subsequently if the Court is satisfied that change in circumstances warrants so. The order may also be rescinded or modified if the party in whose favour the order was made remarries; or in case of wife, she does not remain chaste; or in case of the husband, he has sexual intercourse with any woman outside the wedlock. Special Marriage Act, 1954, Section 37 – This section is also similar to Section 40 of the Parsi Marriage and Divorce Act. The difference being that under this section maintenance may be claimed only by a wife against the husband from a court exercising jurisdiction under Chapters V or VI of the Act. An order made under this section may be modified or rescinded by the district court at the instance of the husband if it is shown that the wife has remarried or is not leading a chaste life. Divorce Act, 1869, Section 37 – This section empowers the district court to order the husband to secure a reasonable gross sum to the wife or annual sum not exceeding her lifetime when a decree of dissolution or decree or judicial separation is obtained by the wife. While passing such order, the court may have regard to fortune of the wife, ability of the husband and conduct of the parties. The court may also order the husband to pay such monthly or weekly sum to the wife for her maintenance as the court may think reasonable. If subsequently, the husband becomes unable to make such payments, the court may discharge or modify such order.


DIFFERENCE BETWEEN MARRIAGE AND LIVE-IN RELATIONSHIP


Marriage, also called as matrimony or wedlock, is a socially/ritually recognized union or contract between spouses that establishes certain rights and legal obligations towards each other. Considering the diverse culture in India, different laws have been framed which lay down the procedures and guidelines for proper execution of marriages in various religions. Marriage laws have been framed to provide remedies for disputes arising out of wedlock in different religions. Individual Acts were framed for individual religion due to the different customs and traditions followed by each of them. In case of inter-cast marriages, the Special Marriage Act shall be applicable. Apart from maintenance under personal laws, Section 125 of the Code of Criminal Procedure, 1973 also provides for maintenance inter alia a wife is unable to maintain herself. Women can seek for additional maintenance apart from the maintenance received by her under any other law as per Section 20(1) (d) of the Protection of Women from Domestic Violence Act (DV Act), 2005. Which states,

“20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-

(a)the loss of earnings;(b) the medical expenses; (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force”

Live-in relationship in simple terms can be explained as a relationship in the nature of marriage where both the partners enjoy individual freedom and live in a shared household without being married to each other. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will to do so. There is no legal definition of live in relationship and therefore the legal status of such type of relationships is also unsubstantiated. The Indian law does not provide any rights or obligations on the parties in live relationship. The status of the children born during such relationship is also unclear and therefore, the court has provided clarification to the concept of live in relationships through various judgments. The court has liberally professed that any man and women cohabiting for a long term will be presumed as legally married under the law unless proved contrary. The right to maintenance in live in relationship is decided by the court in accordance with the Domestic Violence Act, 2005 and the individual facts of the case. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005, provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.




LAWS IN INDIA RELATED TO LIVE-IN RELATIONSHIP

There is no particu