Live-in-Relationships – Legislation is the Need of the Hour

"If one does not wish bonds broken, one should make them elastic and thereby strengthen them."

--Ardant du Picq 

Among the emerging forms of social relationships, “live-in-relationships” are the ones most talked about. It is not anything new, the thing which has caught everyone’s attention is that people are talking or indulging themselves more into this new social trend. A “Live-in-relationship” is a de facto union in which the couple shares a common bed-room without solemnizing their marriage.

It is nothing but an arrangement where two persons of the opposite sex cohabit without any legal sanction. However, recently the Apex Court has tried to give guidelines to such a form of cohabitation to avoid legal complexities. With the young generation being attracted to this new social trend, there is a vital necessity to come up with a legislation which shall clearly state and demarcate the rights of the individuals in such cohabitation. There are various facets of a “live-in-relationship”. Indian judiciary has tried its best to provide solutions to each and every problem arising out of a conflict between two people in a live-in, but, to reduce pandemonium in the minds of the individuals, entering into such relationships, it is urgently required to come up with a legislation which shall clearly state the rights of the parties and shall also state the punishments to be inflicted on one in case of that person’s default. When we talk about the end of a live-in bond, the privileges and liabilities of partners arising therefrom warrants delineation. We need to think and find answer to the rights and liabilities of such partners after separation or after the death of one of the partners. It is worthy of mention here that there is no law of succession and maintenance that mentions the prerequisites that protect the rights of such live-in couples. Such relationships are generally brittle and can be dissolved any moment; there is no commitment or tenacity. The legal position with respect to “live-in-relationship” does not portray a discernible image. According to a section of people in the society, “live-in-relationship” breeds bigamy, promotes infidelity, and pose a threat to the entire foundation weaved out of morals and ethics on which the Indian Society stands but conversely the need of the hour is to grant legal status to live in relations after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as are available to a married couple and their legitimate offspring. There is also the need securing their rights after the dissolution of such a relationship due to a break-up or death of one of the partner.

At present, there is no on hand legal skeleton which regulates the notion of “live-in-relationship”s in India. The Hindu Marriage Act, 1955 does not recognize live in relations and nor does the Code of Criminal Procedure, 1973. The only act which has implied the existence of “live-in-relationships” is the Protection of Women from Domestic Violence Act, 2005 (‘PWDV Act”). For the purpose of fortification and preservation of the rights of women, an aggrieved live in partner may be granted alimony under the Act. 

Section 2(a) of the PWDV Act states: "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.Further section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (PWDV) defines a ‘domestic relationship’ to mean “a relationship between two persons who live, or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

The Supreme Court in D. Velusamy v. D. Patchaiammalhas opined that the Parliament has drawn a distinction between the relationship of marriage and relationships “in the nature of marriage”, and has provided that in either case the person is entitled to benefits under the PWDV Act, 2005. It would appear that the Parliament has taken note of a social phenomenon which has emerged in our country (particularly urban areas), better known as live-in-relationship”s. 

In Indian wedding law, there is no legal provision which recognizes common law marriages. However, we may refer to the milestone case of D. Veluswamy v. D. Patchaiammal where in the estimation of the Hon’ble Supreme Court a relationship “in the nature of marriage is akin to a common law marriage.” The essentials of a common law marriage have been laid down by the Judiciary in the following manner: 

                       a.       The couple must hold themselves out to the society as being akin to spouses

                       b.      They must be of legal age to marry.

                       c.       They must otherwise be qualified to enter into a legal marriage, including                                         being unmarried.

                       d.       They must have voluntarily cohabited and held themselves out to the world                                     as being akin to spouses for a significant period of time.

Another important facet of this new trend of relationship is that that the status of children arising out of such a relationship is not guarded by any legal sanction.The Hindu Marriage Act, 1955 considers the legitimacy of a child born through such relationships and establishes their succession and property rights. Furthermore, the Protection of Women from Domestic Violence Act also provides consolation to such aggrieved parties from any kind of atrocities faced by the females in live-in relationships.

The present status of live-in relations in India is that they are considered to be legal. In S. Khushboo v. Kanniammal and Anr (JT 2010 (4) SC 478) , the Apex Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P. and Anr., (AIR 2006 SC 2522), held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex. In case, the woman is married, the man may be guilty of offence of adultery and it would amount to an offence under Section 497 IPC.

However, in cases prior to independence like A Dinohamy v. WL Blahamy, [(1928) 1 MLJ 388 (PC)] the Privy Council laid down a broad rule and postulated that, “Where 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 concubinage.” The same principle was reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan (AIR 1929 PC 135).

After independence the first case that can be reviewed is Badri Prasad v. Dy. Director of Consolidation , in which the Supreme Court recognized “live-in-relationship”s as legitimate wedding, putting a stop to questions raised by authorities on the 50 years of life in liaison of a duo. A three judge bench comprising of the then Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan observed in Khusboo case, “When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence“. The court further said “Please tell us what is the offence and under which section. Living together is a right to life“, thereby referring to the right to life guaranteed under Article 21. Though this was an orbiter dictum, it provided a positive impetus to “live-in-relationships”.

However, this situation is not all compulsory. The Delhi High Court, in a latest case, observed that a “live-in-relationship” is a walk in and walk out relationship. Justice S.N. Dhingra noted, “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners”. The court further added, “People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa.

“Live-in-relationships” should be granted legal status after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as available to a married couple and their legitimate offspring, also securing their rights after the dissolution of such relationship due to break up or death of one of the partner.The guidelines given in D. Veluswami v. D. Patchaimmal  is worth noting in this context and should be followed. Since, proving de facto “live-in-relationship” is difficult, the burden of proof should be relaxed, so that the rights that are conferred upon partners, specifically female live in partner can be availed. However, if the person in “live-in-relationship” is already married, then “live-in-relationship” should be considered as the second marriage, hence an offence of bigamy. This will ensure the rights and privileges in “live-in-relationship” without possessing any threat to the institution of marriage. A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when the number of live in couples is increasing tremendously. The rights of live in couples should be legally recognized while ensuring that it does not impede upon the system of marriage. 

The last two to three months have been influential in arousing response on the matter of live-in-relationships in India. It should not be denied that our culture does need 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, registration and rights of parties and children born out of it.

REFERENCES:

Online Articles Referred:

·         http://www.ssmrae.com/admin/images/512e2283963e2e5852f92a439076ede0.pdf

·         http://chdslsa.gov.in/right_menu/act/pdf/domviolence.pdf

·         http://indiankanoon.org/doc/1521881/

·     http://www.lexvidhi.com/article-details/socio-legal-aspects-of-live-in-relationships-a-comparative-approach-752.html

·         http://www.lawyersclubindia.com/articles/The-Socio-Legal-Dimensions-of-Live-In-  Relationships-3966.asp

·         Rights specific to female live in partner such as right under Domestic Violence Act, 2005

                      http://indialawjournal.com/volume2/issue_2/article_by_saakshi.html

Cases Referred:

·         AIR 1978 SC 1557

·         JT 2010 (4) SC 478

·         Alok Kumar v. State Crl.M.C.No. 299/200
·         Criminal Appeal Nos. 2028-2029 of 2010

About the Author
Kinnori Ghosh, is currently a 5th year student of GNLU, Gujarat. A former member of the Review Team of Lawfarm, Kinnori is the HR head of FSA. With an uncanny knack of spotting the right kind of talent from a stockpile of CVs, Kinnori makes sure that FSA always consists of the brightest and the most eager candidates.