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Opinion: Whether it is time a law be framed on LIVE-IN-RELATIONSHIP.

 

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THE STATUS OF LIVE-IN-RELATIONSHIP IN INDIA

Whether it is time a law be framed on this issue

 

India is a democratic country where rights, liberties and freedom of each person is respected and guaranteed by the Constitution. Each person has been assured freedom to live his/ her life to the fullest with legal limitations. With the changing time and circumstances new ideas have emerged, new ways of life has been adopted by the people in almost all walks of life. One such idea is that of live-in-relationship.

Live-in-relationship means a living arrangement in which an unmarried couple lives together under the same roof in a long term relationship that resembles a marriage is known as a live- in-relationship. Thus, it is the type of arrangement in which a man and woman live together without getting married. This form of relationship has become an alternate to marriage in metropolitan cities in which individual freedom is the top priority amongst the youth and nobody wants to get entangled into the typical responsibilities of a married life.

This concept has not been widely accepted nor spoken by the Indian society. The main reason as argued is that it violates institution of marriage, that it is a “western culture” trying to be forced onto the people of India thus ruining the fundamental norms and culture of India. Further it is argued that not only the people in live-in-relationship suffer social stigma but also the children born, if any, suffer in such relationship.

On the hand those in favour of live-in-relationship argue that issue of live-in-relationship as well as marriage is a private issue and personal in nature and that its meaning and importance differ from person to person. The people entering into such relationship are adults and have a choice to do so. Nobody is forced by another person to live-in with someone. And that just like each relationship has its own positive and negative aspects, so does live-in- relationship has its own.

With all the debates on this issue, legally speaking there is no law framed by the legislature on this issue. It is only the fundamental right viz., Article 21 and the landmark judgment of the Hon’ble Supreme Court on Right to Privacy comes to rescue of people in such relationship. Apart from this through various judgements of the Hon’ble Supreme Court and High Court, legality of live-in-relationship have been acknowledged and thus reliefs have been provided to those who have suffered any wrong, particularly the woman and the children. Some of the judgments passed by the Hon’ble Courts are listed below.

The live-in relationships were legalized for the first time by the Privy Council in A Dinohamy v. WL Blahamy[1] wherein it was stated that when a man and a woman are proved to have lived together as a 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 concubine. However, in later decisions, contrary observations were made by the courts. In Gokul Chand and Pravin Kumari[2]it was held that cohabitation for a long time doesn’t guarantee to earn legitimacy. This decision had not made live-in-relationships illegal but has simply stated that the same would not gain the status of the legitimate relationship.

The Hon’ble Supreme Court in the landmark judgment of Indra Sarma vs V.K.V.Sarma decided on 26th November, 2013 has held that Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal. The Hon’ble Supreme Court in the landmark judgment of S.P.S. Balasubramanyam vs Suruthaya[3] has acknowledged live-in-relationships and held that when a man and a woman cohabit under the same roof for a long time then it is presumed under section 114 of the Indian Evidence Act that they are married and the child, if any born, is a legitimate child.

The Hon’ble Allahabad High Court again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others[4], wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.

In the case of S. Khushboo vs. Kanniammal & Anr., decided on 28th April, 2010, the Hon’ble Supreme Court held that living together is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law.  However in one of the judgment Alok Kumar vs. State decided on 9th August, 2010, the Hon’ble Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality.

Again giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy v. D. Patchaiammal[5] has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill some basic criteria. 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’ 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’.  It further stated that if the man is living with the woman only for sexual reasons, neither partner can claim the benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with the following conditions:

  1. The couple must hold themselves out to society as being akin to spouses.
  2. They must be of legal age to marry.
  3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.
  4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In June 2008, the National Commission for Women recommended to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of the Code of Criminal Procedure. This view was also supported by the judgment passed in the case of Abhijit Bhikaseth Auti vs State of Maharashtra & Anr., decided on 16th September, 2008 by the Hon’ble Bombay High Court.

These judgments raises a very important question- whether or not a separate law should be framed by the legislature on live-in-relationship?

In India, it is the duty and responsibility of the legislature to legislate law, as imposed by the Constitution. Laws help govern the society. It is utmost important that laws framed should be in conformity with the needs of the society. A law should not be forced upon the people. Laws need to be amended as per the changing needs of the society. And therefore it is important that law be framed for those in live-in-relationship. This will help in answering questions such as- define and demarcate what is live-in-relationship? Whether the concept applies only to people of opposite sex or also to those of same sex? What are the reliefs available? As per the judgment of Hon’ble Supreme Court woman in live-in-relationship can claim relief under the Domestic Violence Act, 2005 and a child can claim inheritance in the father’s property. Question arises what relief is available to a man in live-in-relationship? What if any wrong is done to him which law will protect and safeguard his rights.

No doubt there is possibility of rise in number of cases and additional burdening of Hon’ble courts, but much clarity will prevail upon the actual practice and acceptance of the concept of live-in-relationship. It is open secret that there have been cases in the past which have been given the colour of “being in live-in-relationship” in order to gain laxity of the laws. In order to avoid such misuse and hardships it is necessary that law be enacted.

By Ms. Pinny Pathak

Advocate

 

 

[1] AIR 1927 P.C. 185

[2] 1952 AIR 231

[3] 1994 AIR 133

[4] MANU/UP/0288/2001

[5] (2010) 10 SCC 469

 

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