Author : Swapan Deb Barma
In an observation that will cheer votaries of pre-marital sex and live-in partners, the Honourable Supreme Court Of India opined that a man and women living together without marriage cannot construed as an offence.
India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of live-in relationships. We can witnesses the number of unmarried partners living together is scaling high. Just a generation or two ago it was scandalous from an unmarried man and woman to live together. Today, most couples, who marry, live together first has gone mainstream. But that change happens so quickly. It is no wonder things are inconsistent.
MEANING OF LIVE-IN RELATIONSHIP
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. The term ‘wife’ should include live-in partner too: SC
The legal definition of live in relationship is “an arrangement of living under which the couple which is unmarried lives together to conduct a long-going relationship similarly as in marriage.”
Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
POSITION OF LIVE-IN RELATIONSHIPS ABROAD
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
• SCOTLAND
Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.
• FRANCE
Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as couple. The pact defines the relationshp as a contract, and the couples involved as “contractants”. The contract binds “two adults of different sexes or of the same sex, in order to organise their common life.” For a valid contract to exist, the contractants “may not be bound” by another pact, “by marriage, sibling or lineage.”
• UNITED KINGDOM
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as “common law spouses”, the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner’s assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.
• CANADA
Living together in Canada is legally recognised as “common law marriage”. In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for at least 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.
• IRELAND
Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for “separated” live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the breakup of a relationship.
• AUSTRALIA
The Family Law Act of Australia states that a “de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a de-facto relationship with someone else.
• UNITED STATES
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.
POSITION OF LIVE-IN RELATIONSHIPS IN INDIA:
In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005. The Supreme Court has ruled that in live-in relationship, a woman is entitled to all reliefs, including maintenance under the protection of women under the Domestic Violence Act 2005
The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.
The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a 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 had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony. On 16.09.2009, the Supreme Court in a case observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C. A woman in a live-in relationship may also claim maintenance under section 125 Cr.P.C.
In a case the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has the right to live with a man even without getting married, if both so wish”. The Supreme Court observed that a man and woman, if involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be considered as legitimate.
PROS AND CONS OF LIVE-IN RELATIONSHIPS:
The Supreme Court’s controversial observation Okaying live-in relationships and pre-marital sex has generated fierce debate across the country. The historic observation has made to upset many orthodox groups fearing that it would destroy the sanctity of marriage. A fragment of the society including noted social activists and prominent dignitaries have stepped ahead and shared their precious views on this.
Social scientists have already identified grave social problems like young age pregnancy of adolescent girls, drug abuse, violence and juvenile delinquencies and in the wake of the controversial ruling, the erstwhile objectionable social behaviour gets legalized, many felt. This way, the new generation will be more spoilt. They will prefer live-in relationships to marriages arranged by their parents. There is no guarantee that the male in such relationship will turn out to be a loyal partner in the long run or would not leave the woman with their issues and run away without prior notice.
BJP spokesperson Shaina, expressed that, according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs.”
When the Maharastra Government approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife, Shaina said that the Government on one hand has banned dance bars because they are spoiling the social atmosphere, while on the other it is promoting illicit relationships through such amendments. Senior BJP leader Jaywantiben Mehta also opposed the amendment. “It will have adverse effect on our values. The amendment will prove to be a loss for the women instead of gain,” she said.
On the other hand, the section advocating freedom of choosing live-in relationship has hailed it as a pragmatic move. The recent observations, as they see, should be welcomed because it lays down emphasis on individual freedom. It opens frontiers to understand the personality traits of their partner well. Since there are no legal complications in a live-in relationship, walking out of such a relationship would be much easier than walking out of a marriage. Metro life that throws floodgates of challenges also supports this kind of an arrangement. The individuals should be free to live as they think best, subject only to the limitation that their actions and choices should not cause harm to others. It is a very radical attitude. Some people are of the view that women should be given the liberty to choose their life partners and should not be forced into marriages if they are not ready.
As expected, women from various walks of life have welcomed progressive moves on live-in relationships. Jaishree Misra, a New Delhi based author says, “India has changed. If people think youngsters are losing their values, then I would say they are becoming more pragmatic. In today’s times, it is better for them to know what they are getting into” .
This is not the first time live-in relationship is in the ambit of debates and discussions. There has been a long-standing controversy whether a relationship between a man and a woman living together without marriage can be recognized by law. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships.
This, however, cannot be construed that law promotes such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.
MAINTENANCE FOR LIVE-IN PARTNER:
The Supreme Court reserved its verdict on the question whether a woman in a live-in relationship or under the mistaken belief of being the wife of an already married man was entitled to maintenance.
The court reserved its order in a case where D. Velusamy has challenged an order of the Madras High Court directing him to pay maintenance of Rs.500 per month to his ‘second wife’ D. Patchaiammal. Velusamy allegedly married Patchaiammal when his first marriage was still intact . Further long-term relationship valid to claim alimony
LEGITIMACY OF THE CHILD BORN OUT OF A LIVE-IN RELATIONSHIP:
The Supreme Court on an earlier occasion, while deciding a case involving the legitimacy of a child born out of wedlock has ruled that if a man and a woman are involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be legitimate. Also, the recent changes introduced in law through the Domestic Violence Act, 2005 gives protection to women involved in such relationships for a ‘reasonable long period’ and promises them the status of wives. A Supreme Court Bench headed by Justice Arijit Pasayat declared that children born out of such a relationship will no more be called illegitimate. “Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery’.”
INHERITANCE RIGHTS
The Supreme Court held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property. The Bench set aside a Madras High Court judgment, which held that children born out of live-in relationships were entitled to a share in ancestral property as there was a presumption of marriage in view of the long relationship.
Reiterating an earlier ruling, a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar said, “In view of the legal fiction contained in Section 16 of the Hindu Marriage Act, 1955 (legitimacy of children of void and voidable marriages), the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”
A child can only make a claim on the person’s self acquired property, in case the child is illegitimate. It can also be interpreted in a way in which a child could lay a claim on the share of a parents’ ancestral property as they can ask for that parents’ share in such property, as Section 16 permits a share in the parents’ property. Hence, it could be argued that the person is not only entitled to self acquired property but also a share in the ancestral property.
The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in relationship with some other person and seek inheritance for the children from the property of that other person. The relationship with some other person, while the husband is living is not ‘live-in relationship’ but ‘adultery’. It is further clarified that ‘live in relationship’ is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code).
NEGATIVE EFFECT IN THE SOCIETY
This fashion of live-in relation has effected all the youth of the society for various reasons. Nothing escapes without without leaving drawbacks. No doubt such relation gives two partners the maximum opportunity to right to liberty, right to privacy, right to life. But the negative point has to be realised as well. Below I have list few point resulting to such relationship.
a. Breaking down of marriage institution
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony . Therefore, it would be easily mentioned that live-in relationship is but degrading the valued of marriage which is recognised as social union unlike live-in relationship where there is only well of two person. Marriage leads to a bonding between a man and woman and this ensures security for children. Let us also caution the protagonists of live-in relationships that parting of ways, for one reason or the other, will leave behind deep scars of being used and rejected. Progenies of such relationships will also end up as misfits in society
b. In and out relationship
Other easy way of defining the term “live-in,” is “walk-in and walk-out” relationship which entails no obligation on the parties. “It (live-in relationship) is a contract of living together which is renewed every day by the parties and can be terminated by either without the consent of the other. Thus people who choose to have a live-in relationship cannot complain of infidelity or immorality . Therefore, we can say it nothing more than personnel enjoyment.
c. Anti-Hindu and live-in relationship
The Bharatiya Janata Party (BJP) has agitation over legalising live-in relationship as anti-hindu. The party state that according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs
d. Negative identity
Everyone has the moral liability to adhere to life-enriching norms to enable the future generations to be proud of their birth, cultural traditions and national identity. Why should children be made to bear the cross of the skewed behaviour of their parents? Responsible parents will leave a valuable legacy and not vicarious liabilities to the progeny.
Even when parents normatively raise their children, many precautionary measures are required to insulate them from the ill-effects of the unsanctioned societal deviations and the vicious projections of modernity. India cannot afford to throw its proven and time-tested merits of its custom to the winds .
e. Weakens social relationship:
As such relationships are choice of two individual wish to make their own family without the will of their parents there is always expectation of weak relation between the parents of the spouse family. Therefore it is no doubt that there is always change of conflict of ideas and opinion in the family as a result it will laterally lead to weaken the relation between other member of the family. So over all it is no it has a better negative effect in the society.
LATEST DEVELOPMENT
In latest development the Supreme Court of India on 21 October 2010 laid conditions for women seeking maintenance in live-in relationship . This was decided by a bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a woman, even if not married, has to fulfil the following four requirements:
accordingly maintenance claim can me sought by the spouse.
(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.
The apex court passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy.
Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.
The Domestic Violence Act expanded the scope of maintenance by using the expression ‘domestic relationship’ which includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’.
According to the apex court, the legislation was enacted in view of the new social phenomenon in the country in the form of live-in relationship.
“However, Indian society is changing and this change has been reflected and recognised by Parliament by enacting the Protection of Woman from Domestic Violence Act, 2005,” the bench said.
However, on 22 October 2010, Additional Solicitor General Ms. Indira Jaising strongly objected the word used by Supreme Court by using the “keep” in a judgement on the right of maintenance of women in live-in relationship
SUGGESTIONS & RECOMMENDATIONS
Live-in relationships are now very popular in India. The law does not prescribe how we should live; it is ethics and social norms which explain the essence of living in welfare model. The Court itself notices that what law sees as no crime may still be immoral. It has said in a judgement of 2006, notices by the Court now, that two consenting adults engaging in sex is not an offence in law “even though it may be perceived as immoral.” Of course, such protective sanctions may potentially lead to complications that could otherwise be avoided. But simply raising the hammer may not be the best route to taming the bold and the brave. Awareness has to be created in these young minds not just from the point of the emotional and societal pressures that such a relationship may create, but also the fact that it could give rise to various legal hassles on issues like division of property, violence, cases of desertion by death of a partner and handling of custody and other issues when it comes to children resulting from such relationships.
While the Supreme Court’s opinion might not have the undesirable effect on more and more couples preferring live-in relationships rather that opting to wed, it could certainly embolden more young men and women as they would now be convinced that there is no breach of law in the live-in relationship. One can only weigh the pros and cons and take into account the impact of their decision on their family and most importantly on themselves.