Status of Women in Live-in Relationship

INTRODUCTION

In our Indian society, marriage is considered as a sacred bond since the Vedic period. The concept of matrimony has continuously evolved with time, with changing society and human psychology.The present and future generations are considering relationship more liberally, one such concept is a live-in relationship which is being adopted by numerous couples around the world. The relationships where two people cohabit outside marriage without any legal obligations towards each other are known as a living relationship. The nature of such relationship is like marriage but they are not actually married. This concept is slowly spreading in our Indian society. However, such relationship is considered as a taboo in our Indian society. The legal status of live-in relationship in India is unclear about the status of such relationship through a few rights have been granted to prevent gross misuse of the relationship by the partners but the Supreme Court has ruled that any couple living together for a long time will be presumed as legally married unless proved otherwise.

WHAT IS LIVE-IN RELATIONSHIP?

Live in relationship is a relationship with an informal arrangement between two heterosexual is persons live together without entering into the formal institution of marriage. This is a very famous western concept and is imported to India. The legal definition of live-in relationship is “An arrangement of living together under which the couples which are unmarried live together to conduct a long-term relationship similarly as in marriage.”[1] Live-in-relationship is the arrangement in which a man and a woman live together without getting married. Live-in relationship is becoming a substitute to marriage in metropolitan cities among the young generation in which individual freedom is the top priority and nobody wants to get entangled into the typical responsibilities of a married life. The Cambridge dictionary defines it as, “two people cohabit in the same house and have sexual relationship, but are not married”.[2]

The Indian law does not provide any specific law to clear the rights and obligations of the parties in live-in relationship. The status of the children born during such relationship is also unclear. Therefore, the court has provided clarification to the concept of live in relationships through various judgments. The court has said 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. Our society is still not in a position to accept live-in relationship but our law through 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.

STATUS OF LIVE-IN RELATIONSHIP IN DIFFERENT COUNTRIES-

Different countries have different opinion on Live-in relationships-

Scotland:
Family law Act 2006, identified and legalized live-in relationship and this step benefitted over 150,000 cohabiting couples in the country. Section 25(2) of the Act said that in determining for the purpose of any of section 26 to 29 whether a person ‘A’ is cohabitant of another a court of law can consider a person as a co-habitant of another person ‘B’ the court shall have regard :

• The length of the period during which they lived together;
• The nature of the relationship during that period;
• The nature and extent of any financial arrangements.

When a live-in relationship ends, under section 28, a cohabitant has right to apply in the court of law for financial support from the other partner.[3]

United States:
The American legal history was then witnessed to several consensual sex legislation, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The government later socialized cohabitation by giving the partners, equal and same rights and obligations as married couples. Those living together are not recognized as legal parents.[4]

Australia:
Section 4(AA) of Family Law Act 1957, defines the meaning of de-facto relationship it says that a person is in de facto relationship with another person if;

• The persons are not legally married to each other;
• The person are not related by family;
• They have a relationship as a couple living together on a genuine domestic basis as the other married couple do.[5]

United Kingdom:
In U.K., Live-in relationships are largely covered by the Civil Partnership Act 2004[6]. A man and a woman living together in a stable and consensual sexual relationship is often called “common law spouses”. According to the UK laws, live-in couples owe one another more than that is worthy as they have to trust more in an open relationship. In the even the couple decides to separate, the courts do not have the legal power to override that decision.

France:
The French National Assembly passed the Civil Solidarity Pact on Oct. 13, 1999. Live-in relationship is governed by civil solidarity pact in France. The civil solidarity pact is a contract binding two adults of different sexes or of the same sex, in order to organize their common life; contractants may not be bound by marriage, sibling or lineage. Adult under custody cannot contract.[7]

STATUS OF LIVE-IN RELATIONSHIP IN INDIA-

In India, live in relationships have been a taboo right since the British period. However, this thinking is getting change with time and is no longer entirely true amongst young couples in big cities like Bangalore, Mumbai, Delhi, etc. In our country, there is no law that deals with the concept of live-in relationship and one cannot deny that maintaining such relationships invite loads of unwanted attention and trouble. But our courts have given certain recognition to such relationships.

The government has been taking various measures for the past few years (especially after the intervention from the judiciary) to protect the interest of female live in partners. In one such move, the government had extended economic rights to women in live in relation under the Protection of Women from Domestic Violence Act 2005. The Act recognises “relationship in the nature of marriage” and protects female partners from domestic violence. Such partners can claim monetary and other reliefs under the Protection of Women from Domestic Violence Act 2005.

In 2008, the National Commission of Woman urged to the Ministry of Women and Child Development to include female live in partners in the definition of wife as described in the Section 125 of Cr PC. The objective of this recommendation was to harmonize various other sections of law with the Protection of Women from Domestic Violence Act, 2005. The Malimath Committee[8] of the Supreme Court recommended that this be turn into a law by all states. The committee had observed that “if man and woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”

The Malimath Committee in their report, recommended that the word ‘wife’ under Criminal Procedure Code be amended to include any “woman living with a man like his wife”.

According to Times of India report[9], a two-judge bench of Justices MY Eqbal and Amitava Roy said in the case of couples living together marriage would be until proven otherwise.

The bench reportedly said, “It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be disapproved by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin.”

“Where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together as husband and wife, like in a valid marriage, and not in a state of concubinage,” the bench concluded.

JUDICIAL RESPONSE-

The Fundamental right under Article 21 of the Constitution of India grants to all its citizens- “right to life and personal liberty” which means that one is free to live the way one wants. Live-in relationship may be bad or sinful in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. There are some cases where the Courts have given limited recognition to such relations.

In S. Khushboo vs. Kanniammal & Anr.[10], the Supreme Court of India, depending on its earlier decision in Lata Singh Vs. State of U.P. & Anr.[11], held that live-in-relationship is permissible only in unmarried major persons of opposite sex. On August, 13, 2010, Supreme Court has once again entered the debate on validity and legality of the Live-in Relationship as well as the legitimacy of the child born out of such relationship, in the case of Madan Mohan Singh & Ors.  V. Rajni Kant & Anr. The Court while dismissing the appeal in the property dispute held that there is a presumption of marriage between those who are in a live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship.

The Supreme Court in the case of D. Velusamy v.D. Patchaiammal[12] held that, ‘a relationship in the nature of marriage’ under the 2005 Act must also fulfill the following criteria:

1. The couple must hold themselves out to society as being like they are spouses.
2. They must be of legal age to marry.
3. They must be qualified to enter into a legal marriage, including being unmarried.
4. Both must have cohabited voluntarily with each other’s consent and held themselves out to the world as being like to spouses for a significant period of time, and the partners to a live-in relationship must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one-night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’(woman) whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’.

The Punjab and Haryana High Court in Ajay Bhardwaj vs. Jyotsana and others, has dealt with the status and rights of a woman in a live-in relationship. A bench comprising Justice Jaishree Thakur determined the question whether Jyotsana would be entitled to maintenance under Section 125 CrPC on account of live-in relationship, not being a wife. The court upheld the family court’s decision to grant interim maintenance holding that: “Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.”[13]

In 2013, Supreme Court of India in Indira Sarma V. V.K.V. Sarma[14], declared that Live-in relationship is neither a crime nor a sin though socially unacceptable in this country.

In this landmark judgment, a bench headed by Justice K. S.Radhakrishnan framed recommendations to take along the live-in relationship within the expression “relationship in the nature of marriage” for the protection of women from Domestic Violence Act 2005. The bench said. “Parliament has to think over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kind of relationships should be protected, though these types of relationship might not be a relationship in the nature of a marriage.”

NEED OF LEGISLATION ON LIVE-IN-RELATIONSHIP

There is an immediate need for a legislation on live-in relationship as it growing in our society and people are getting affected and the men class is misusing it as a tool for their sexual benefit so to protect women from the wrongs and illegal acts of another partner, we need to pass and amend a legislation as soon as possible.

The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in relationship should have no bondage between the couples because the sole criteria for entering into such agreements is based on the fact that there lies no obligation to be followed by the couples whereas in some instances the Court has shown opposite views holding that if in a  relationship cohabitation continues for a reasonable period of time, the couple should be decent as a married couple infusing all the rights and liabilities as guaranteed under a marital relationship.[15]

Our court have included the concept of live-in within the ambit of section125 of the Criminal Procedure Code, which is very strange to the couples as they don’t want any burden, where the husband is bound to pay maintenance and succession as the ground of getting into live-in relationship is to escape all liabilities arising out of marital relations. If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there would arise a conflict between the interests of the wife and the live-in-partner.[16] Apart from lacking legal sanction the social existence of such relationships is only confined to the metros, people are not accepting this concept and look at the couple in a different way (bad). Thus Law Commission of India in its 71st report, 1978 recommended for the amendment of Hindu Marriage Act 1955 and Special Marriage Act 1954 for the divorce provision, because it is also a cause to adopt live-in relation by the parties. In case of irretrievable breakdown of marriage the both parties have no fault to prove in the court of law to opt a divorce decree. The sweetness of marriage among them already becomes departed without any one’s fault. Thus it may lead to an easy „walk in walk out relation‟ with another party. So in 2010 Rajya Sabha introduced the Hindu Marriage (Amendment) Bill 2010 to simplify the divorce procedure and included the irretrievable breakdown of marriage as a ground for divorce before the cooling period I completed. But the bill is still pending.

Again Malimath committee Report 20038 recommended for the amendment of Section 125 of Criminal Procedure Code to include women in a void marriage or women in live-in relationship to claim maintenance. Thus it is a call to legislate a new law to remove all the clouds of difficulties and protect the social values without infringing the individual liberties with the change of society.

CONCLUSION

Live-in relationship is like marriage but it is not marriage and I think it’s better to have a live-in relationship rather than having a divorced life. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal. This is common all around the world but our country needs a legislature to regulate relationships which are likely to grow in number with changes in the ideology of people. The right time has come that efforts should be made to enact a law having clear provisions with regard to the time span required to give status to the relationship of the couple, registration, and rights of live-in partners and children born out of it. As these relationships are harmful to the legally wedded wife and her children if the husband is in live-in-relationship and also to the woman who by circumstances living under such unrecognized relationship. So, the law should be made by the Parliament to regulate the activities of these types of relationships and which should keep a check on the practice of evading bondages.

Refernces-

[1] http://www.thegeminigeek.com/what-is-live-in-relationship/

[2] http://dictionary.cambridge.org/dictionary/english/live-in

[3] http://www.legislation.gov.uk/asp/2006/2/contents

[4] http://www.indianexpress.com

[5] http://www.austlii.edu.au

[6] http://www.legislation.gov.uk/ukpga/2004/33/contents

[7] http://www.unc.edu/depts/europe/francophone/a_la_carte/pacs/qrd_pacs.pdf

[8] Justice Malimath Committee Report (2003)

[9] http://www.firstpost.com/india/sc-says-woman-live-relationships-considered-wife-unless-proven-otherwise-2194155.html

[10] JT 2010 (4) SC 478

[11] AIR 2006 SC 2522

[12] CRIMINAL APPEAL NOS. 2028-2029 Of 2010

[13] http://www.livelaw.in/women-live-relationships-entitled-maintenance-akin-legally-wedded-wives-punjab-haryana-hc/

[14] Special Leave Petition (Crl) No 4895 of 2012

[15] http://www.legalservicesindia.com/article/article/need-of-special-legislation-on-live-in-relationship-1000-1.html

[16] Dr. Parminder Kaur, Live-in relationship: A new paradigm in Indian matrimony, Journal Army Institute of law,

Volume iv, 2011