Cohabitation and Bigamy under Indian Law

Marriage is one of the oldest social institutions which is being followed since time immemorial. It is a sacramental ceremony under Hindu Law and offences against marriage are punishable by law. According to Section 5 of Hindu Marriage Act, 1955, certain conditions must be fulfilled in order to constitute a valid marriage between two Hindus:

• Neither party must have a spouse living at the time of marriage (through this we conclude that Bigamy is prohibited under Hindu law).
• At the time of the marriage neither party:
• Is incapable of giving a valid consent because of unsoundness of mind; or
• Even if capable of giving consent is suffering from such mental disorder due to which is unfit for marriage and procreation of children( R. Lakshmi Narayan v. Santhi, AIR 2001 SC 2110); or
• Has been subject to repetitive attacks of insanity.
• The bridegroom has completed the age of (twenty-one years) and the bride has completed the age of (eighteen years) at the time of marriage.
• The parties must not with in the umbrella of prohibited relationships unless the custom governing each of them permits a marriage between the two.
• The parties to the marriage are not sapindas of each other, unless the custom or usage governing them allows them to marry each other.

Bigamy

Bigamy simply means act of being married to more than one person at same time. According to the Black laws dictionary, Bigamy is a criminal offence of willfully or knowingly contracting another marriage when the offender’s first marriage is still valid and undissolved. Bigamy was prevalent in the Indian society along with other form of social institutionsbut today under the Hindu laws as mentioned above in section 5 of the Hindu Marriage Act, 1955 is strictly prohibited.The apex court in a case held that such second marriage is non-existent and invalid in the eyes of law as it is incomplete and defectively performed[1]. A marriage (Bigamy) is null and forms a ground for divorce under section 11 of the Hindu Marriage Act if any of the conditions prescribed under section 5 of the act is violated by that marriage and section 17 of the same act lays down that any bigamous marriage governed under the act would be punished under section 494 and 495 of the Indian Penal Code accordingly.

According to Section 494 of IPC, whoever having husband and wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband and wife, shall be punished with an imprisonment of either description of a term which may extend to seven years and shall also be liable to fine. This section does not apply to Mohammedan males as they can marry more than one person at the same time but it applies to Mohammedan females, and to Hindus, Christians and Parsis of either sex. In order for a person to be liable under section 494: (held in the case of Nagalingam v. Sivagami, (2001) 7 SCC 487)

• He must have contracted first marriage.
• He must have married again.
• The first marriage must be subsisting.
• The spouse must be living[2] .

It is very important to note here that the person must have been already married to another person while having his second marriage. If by any chance the first marriage is not valid, no offence has been committed by the person by contacting his second marriage. In fact the Supreme Court in a case held in a Bigamy case that it is important to prove that all essential ceremonies regarding the second marriage were properly conducted in order to arise criminal liability over the accused. In addition to this certain exceptions are also provided within the section 494 to which the section does not apply:

• A marriage which has been declared void by a court of competent jurisdiction.
• Where the spouse has been continuously absent for seven years and not heard to be alive within that time.

Section 495 of IPC is a further continuation of Section 494 which states that whoever commits the offence mentioned in the preceding section (i.e. Section 494) and conceals the fact of his subsisting first marriage to the person to whom he is contracting his second marriage shall be punished with imprisonment of either description of a term which may extend to ten years and shall also be liable to fine. This section is an aggravated form of theoffence dealt under section 495 of IPC.

Cohabitation (Live-in Relationship)

Generally speaking cohabitation means an arrangement in which two adults live together in a conjugal relationship without getting married. The relationshipis much similar to a married relationship but the only difference is that the couples are not married. Cohabitation as compared to western countries is still a new concept in India especially in smaller districts and towns. Cohabitation is still not accepted in the Indian society due to its attachments to strict orthodox traditions. It is still regarded that a couple can only stay together after they get married. But gradually younger generations have started opting cohabitation before getting married.

Cohabitation and its Judicial Development in India

As of now there is no specific law in India which governs Live-in Relationship. No rights and obligations have been provided to the partners in a live-in relationship exclusively by any enacted law. But nevertheless the Indian courts in various cases have greatly clarified the concept of such relationship and played a significant role in social validation of cohabitation in Indian society. Though no law has been enacted in this regard, still through existing legislations amendments have been made in order to provide certain rights to the partners so that the misuse of such relationship can be prevented. The Domestic Violence Act, 2005 for the first time in protection of women had taken into account the conceptof live-in relationship while defining the term ‘domestic relationship’. Although the act does not clearly defines live-in relationship it describes it as a relationship in the nature of marriage. Courts have also covered the live-in relationship within the expression ‘in nature of marriage’ and the provisions of the act are applicable to even live-in relationship. The protection of women from domestic violence act, 2005 (pwda) protects women from misuse of such relationships and bigamous marriages. Section 125 of CrPc has also been interpreted by judiciary to include partners in live-in relationship. The section which protects the wife, children from destitution now also applies to the ladies in a live-in relationship.

Law is a dynamic subject and changes as the society changes.Amendments are made in the law as to fulfill the need of the changing society and therefore it is also the responsibility of the judiciary to interpret laws according to the present time and situation. Such is the case when it comes to live-in relationships. Though it is against the norms of Indian tradition and culture but is not illegal in the eyes of law and in no way violates the Constitution of India, the law of the land. Live-in relationship may seem a new concept but it can be tracked down even before the independence of India. The Privy Council in the case of A. Dinohamy v. W.L.Blahamy, AIR 1927 PC 185 observed that “where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage”. Later the Supreme Court in its judgement in Badri Prasad v. Director of Consolidation, (1978) 3 SCC 527 held a 50 year live-in relationship as valid. But in the same case the Supreme Court observed that, “The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard”. The Allahabad High Court also took the same view point in the case of Payal Sharma v Nari Niketan[3], and held that a man and woman can live together if they wish to even without getting married. Even if it is immoral according to societal norms, it is not illegal in the eyes of law. Law and morality is two different things.

In landmark case of S. Khushboo v. Kanniammal, the Supreme Court held that a living relationship comes within the scope of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

In another landmark case of Chanmuniya v. Chanmuniya Kumar Singh Kushwaha, the high court in its judgement declared that the wife (appellant) was not entitled to maintenance as only a legally wedded wife could claim maintenance under Section 125 of CrPc. But the apex court overruled the judgment of high court and awarded maintenance to the wife and held that the provision of Section 125 of CrPc must be considered in the light of Section 26 of the protection of women from domestic violence Act, 2005 (pwda) and observed that a wife is entitled to the claims and remedies available to a legally wedded wife.

The Supreme Court in another case interpreted that the live-in relationships are covered under the ambit of ‘relationship in nature of marriage’ and further laid down some conditions which would give the live-in relationship the status of marriage. These are:

• The couple must hold themselves out in the society as similar to spouses.
• The partners living in cohabitation must be of legal age (18 years in a se of woman and 21 years in case of man).
• They must otherwise qualified to enter into a legal marriage.
• They must have voluntarily consented for a live-in relationship.

Further in the case of Indra Sarma v. V.K.V. Sarma[4], the Supreme Court laid down certain guidelines as to what will constitute live-in relationship and thus to provide justice to the victim in such relationship who are poor and to their children born out of these relationship as well. These guidelines are:

1. Duration of periodof relationship–section 2(f) of the Domestic violence act has incorporated the expression, ‘at any point of time’, which means a reasonable period of time for a long standing relationship to continue which may vary from case to case depending upon the fact of the situation.
2. Shared household–it requires no further explanation as it is already defined under section 2(s) of the Domestic violence act.
3. Pooling of resources and financial arrangements–supporting each other and sharing resources and financial arrangements like having joint bank accounts, acquiring immovable properties in joint names etcetera so as to show a long standing relationship, can be a guiding factor.
4. Domestic arrangements–entrusting the domestic responsibilities especially on the women like running the affairs of house, doing household activities such as cleaning, cooking etcetera is an indication of a relationship in a nature of marriage.
5. Sexual relationship–Marriage like relationship includes sexual activities not just for pleasure but also for procreation of children and in order to maintain a healthy and affectionate relationship between the spouses. This is a strong indicator of a relationship in a nature of marriage.
6. Children – having children is a strong indicator of a relationship in nature of marriage which also means that the partners are sharing the responsibility of the upbringing of the child and intend to have a long standing relationship.
7. Socialisation in public–Holding out in the society and among friends and relatives which is identical to a married relationship is also strong indicator that the relationship is in nature of marriage.
8. Intention and Conduct of parties–common intention of the parties as to what their relationship is to be and to involve, and as to their responsibilities and roles, primarily determines the nature of that relationship.

Very recently in a case the Supreme Court held that the couples in a live-in relationship have the same status of that a legally married couple and in case of the death of the male partner the women is eligible for inheritance of his property[5]. Thus we conclude that even if cohabitation is not socially and morally accepted in the Indian society it is not illegal and how the judiciary has played an important role in order to prevent the misuse of such relationships and protect the rights of the victims.

Sources

• Indian Penal Code, 1860.
• Ratanlal and Dhirajlal, 36^th edition, Indian Penal Code.
• SCC online.

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[1]Bhaurao v State Of Maharashtra AIR 1965 SC 156

[2]Pashaura Singh v State Of Punjab, AIR 2010 SC 922.

[3]Writ Petition No. 16876 of 2001

[4](2013) 15 SCC 755

[5]Dhannulal v. Ganeshram, (2015) 12 SCC 301

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