By: Saachi Shukla* |
INTRODUCTION
Law and society are two faces of the same coin and as observed by the famous Greek philosopher Heraclitus, the only thing which is constant in this world is change,[i] the Indian laws have also undergone a drastic evolution along with the society. The society is gradually inclining towards the idea of live-in relationships as an alternate[ii] to marriage. Unlike marriage which is considered as a sacrament that bounds a man and woman into a permanent physical, social and spiritual tie, the newly evolved concept of live-in relationships was introduced under the influence of “western culture”.[iii] A live-in arrangement is an arrangement in which an unmarried couple live together in a long-term relationship that resembles a marriage.[iv] Live-in relationship in India is one of the most contentious legal topics and has received several criticisms from the society.
SOCIAL STIGMA OVER LIVE-IN RELATIONSHIP
While the concept of live-in relationship has gained recognition in many countries around the globe, it is still considered a taboo in India and has a social stigma attached to it. This opinion is intensely ingrained in the conservative Indian society because such an arrangement is based on the notion of cohabitation without marriage and pre-marital sex.[v] The partners in a live-in relationship are under constant scrutiny and resentful stares of the society and often face difficulties to find accommodation in metropolitan cities where the landlords are reluctant to provide them a place of living. The children born out of such an arrangement are considered illegitimate in the eyes of the society and women are called ‘vulnerable’[vi] for cohabiting in an unstable form of relationship which is considered immoral, unethical and against the religious principles. Same-sex partners cohabiting in a live-in relationship are frowned upon by the society. This social stigma surrounding live-in relationship clouds the legal stance of women.
POSITION IN INDIA
The practice of a man and woman cohabiting without being married has been in existence since ancient times. In the present scenario, there is no definite law or specific enactment which governs the rights and obligations of the parties in a live-in relationship in India. However, the Supreme Court of India through various judgments recognised few rights by interpreting the existing legislations so that any form of abuse can be prevented in such relationships. The various statutory provisions that extend the interpretation to include live-in relationships are:
Domestic Violence Act, 2005-
Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 acknowledged live-in relationships by providing rights and protection to those women who are not legally married but rather are cohabiting with their male counterparts in a relationship resembling marriage. Although the term “live-in relationship” has not been explicitly mentioned by the aforementioned section, the Court has extended the interpretation of the expression “relationship in the nature of marriage”[vii] to include live-in relationships within its ambit.[viii] This section provides women from the abuse of fraudulent marriage and bigamous relationships.
Criminal Procedure Code, 1973-
In November 2000, Committee on Reforms of Criminal Justice System (also known as the Malimath Committee) was set up. This Committee submitted a report in 2003 recommending amendments under the head “Offences against Women”[ix] with special reference to amend Section 125 of the Criminal Procedure Code, 1973 (CrPC) so as to alter the meaning of “wife”. This expression incorporates those women in a live-in relationship who are entitled the status of a wife if she has been in a live-in relationship for a prescribed period of time and can claim maintenance under the section. This was highlighted in a notable case of Ajay Bhardwaj v. Jyotsna[x] where the judiciary applied Section 125 CrPC and extended the same interpretation of the term “wife” to include partners of a live-in relationship.
Indian Evidence Act, 1872-
By the virtue of this Act, the Court may presume the existence of any fact which it thinks likely to have happened with regard to the common course of natural circumstances, human conduct and public and private business, with reference to the facts of a particular case. Therefore, under Section 114 of the Evidence Act, 1872, the Court may presume that when a man and a woman live together for a reasonable period of time, they will be likely presumed to be husband and wife, whether legally married or not. This was observed in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha,[xi] where the partners were living together as husband and wife for a prolonged period of time a presumption would arise in favour of a marriage.
Article 21 of the Constitution of India-
The Constitution grants to all its citizens “right to life and personal liberty” which dismisses the conventional approach that premarital sex and live-in relationship should be deemed as an offence with the rational reasoning that an individual is free to live the way one wants.[xii] Live-in relationship may be considered immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of the legal system. In the absence of any statute governing live-in relationships, the Supreme Court in its recent landmark judgment of S. Khusbhoo v. Kanniammal & Anr[xiii] held that living together is a Right to Life granted under Article 21 of the Constitution of India.
MYTH BUSTERS
Contrary to the popular belief, women and children do enjoy legal rights in live-in relationship akin to married women. Women who were abused by their male counterparts in a live-in arrangement can seek legal protection under the Domestic Violence Act, 2005. By the virtue of Section 125 of CrPC, women can claim benefits of alimony, maintenance, property as well as custody of her child just as a married woman under the Protection of Women from Domestic Violence Act, 2005. For instance, in 2014, renowned model Rhea Pillai had filed a harassment case under the said Act and demanded maintenance for herself and her daughter against former live-in partner Leander Paes.[xiv] In 2017, the Apex Court also granted Pillai full custodial rights of her child born during the course of her relationship. The Child Protection Act, 1960 also ensures that children born out of live-in enjoy the same legal status as that from a marriage. In another landmark case of D Velusamy v. D. Patchaiammal,[xv] the Supreme Court observed that if a man cohabits with a woman solely for the purpose of sexual gratification without marriage and maintains her financially in a live-in arrangement, the woman has a legal right to demand maintenance and alimony under the DV Act. Women in a live-in are also entitled to the property of her partner after his death and in case of separation, she is eligible to pursue her rights over a joint property along with her partner.[xvi] Children born out of a live-in relationship are legitimate and are equally entitled to property of their parents.[xvii]
JUDICIAL RESPONSE TO LIVE-IN RELATIONSHIPS
The Indian legal fraternity addressed the social stigma attached to live-in relationships and interpreted this trending issue in a number of cases. Unlike the contention where live-in relationships are considered an influence of “western culture”, the Supreme Court recognised a live-in relationship in 1978 in the case of Badri Prasad v. Dy. Director of Consolidation.[xviii] The Apex Court, in its landmark judgment, declared a 50-year old live-in relation as legally valid. In another leading case of Payal Sharma v. Superintendent Nari Niketan Kandri Vihar Agra and Others,[xix] Justice M. Katju and Justice R.B. Mishra observed that, “a man and a woman, even without getting married, can live together if they wish to. This may be regarded immoral by society, but it is not illegal.”[xx] This landmark judgment recognised the legal status of live-in relations and declared them not illegal in the eyes of law despite being considered immoral by the conservative Indian society.
In much recent cases, the Supreme Court interpreted the concept of live-in relationship in a much clearer manner. In the leading case of Alok Kumar v. State & Anr,[xxi] appealed before the Delhi High Court, Justice S.N. Dhingra precisely observed the nature of live-in relationship and held that, “a live-in relationship is a walk-in and walk-out relationship. There are no legal strings attached to this relationship nor does it create any legal bond between the partners.”[xxii] The Supreme Court observed the nature of live- in relationships in the landmark case of Indra Sarma v. V.K.V. Sarma[xxiii] and noted that live-in relationship is neither a sin nor a crime though it may not be acceptable in Indian society. This observation highlighted the stand of the Judiciary in neither overtly encouraging such relationships nor prohibiting them but only rendering justice while keeping in view social and constitutional morality. In another case,[xxiv] the Apex Court gave the judgment in favour of the actress Khusbhoo and upheld that there exists no law which prohibits live-in relationship or pre-marital sex. The Court further clarified the criterion for live-in relationship and stated that this kind of cohabitation is only acceptable for unmarried major individuals of heterogeneous sex.
CHALLENGES
One of the biggest challenges for live-in relationship is the absence of any special legislation regulating the laws and determining the rights of the partners. Partners in a live-in are not allowed adopting children as per the Central Adoption Resource Authority (CARA) guidelines notified after its Steering Committee held that cohabitation without marriage is not a stable form of family in India.[xxv] Another major challenge is to overcome the social stigma and fierce criticism surrounding live-in arrangements from the conservative Indian society. The viciousness of criticism increases in case of live-in arrangements of same-sex partners. For instance, in the recent news of National Award-winning editor and screenwriter Apurva Asrani revealed that he pretended to stay as cousins for thirteen years since they were evicted from apartments when landlords realised they were a homosexual couple. In recent news, a same-sex police constable couple in live-in relationship sought legal protection from the Gujarat High Court apprehending danger to their lives from their own families. As a result of which the Honourable Justice AJ Desai directed an order to the District Superintendent of Police (SP) at Lunawada and Mahisagar to provide them legal protection.[xxvi]
Despite the increasing trend in live-in relationships, children from such informal arrangements have serious implications. The children born out of such arrangements undergo the social stigma of being tagged ‘illegitimate’ by the society and if the parents end the relationship, they are subjected to the agony of long custody battles. Another highly debated issue in live-in relationship is that the rights of male partner have not yet been safeguarded. Regardless of the long standing protests from male activists, gender parity has not been ensured in several cases. Additionally, laws regulating the aftermath of dissolution in an informal arrangement, such as division of joint property, remain ambiguous. Also, unlike western countries like Brazil, Germany and Switzerland, India does not recognise prenuptial agreements for live-in relationships. Entering into a premarital agreement is forbidden and violative of religious principles, including that which recognises marriage as a divine sacrament and not a contract.
CONCLUSION
Justice A.K. Ganguly observed that “with the changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”[xxvii] As India is heading towards changing trends in lifestyles, it is relevant to adapt and adopt new laws in consonance with the rapid changing times. One way to overcome the social stigma from their own families and the society is by way of implementing laws to guarantee legal protection and legal remedies in case of any kind of infringement of rights. In India, the social stigma surrounding live-in arrangement extends to include fear of high rates of adultery, vulnerability of women and uncertainty of the future of children. Therefore, it is pertinent to implement a special enactment which creates rights and liabilities on the partners in order to remove the ambiguities and ensure uniformity in law. This step will not only safeguard the interests of both the parties but also end the social stigma attached to the concept of live-in relationship and the children born out of such arrangements will have secure rights.
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* The author is a student at New Law College, Bharathi Vidyapeeth, Pune.
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