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Reconciling Live-In Relationships With Domestic Legal Order In India

Saumya Rai &Sajid Sheikh
17 Jan 2022 11:11 AM GMT
Reconciling Live-In Relationships With Domestic Legal Order In India
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Though 'Live in relationship' term may seem distasteful to some, nonetheless it is practice prevalent since ancient times. The puranas also have a mention of gandharva marriage which does not require involvement of the family members in the rituals. Even Lord Krishna and Radha lived together according to mythology. In some Islamic sects Muta or temporary marriage has also...

Though 'Live in relationship' term may seem distasteful to some, nonetheless it is practice prevalent since ancient times. The puranas also have a mention of gandharva marriage which does not require involvement of the family members in the rituals. Even Lord Krishna and Radha lived together according to mythology. In some Islamic sects Muta or temporary marriage has also attained legitimacy.

However, it was only in 2005 through the Domestic Violence Act, 2005 that the legislature of India recognized live-in relationships and ascribed rights and protection to those females who are not legally married, but are living with an unmarried male individual in a relationship like that of marriage [Section 2(f) of the Domestic Violence Act, 2005]. The objective was to not limited to the protection of single women from the abuse of fraudulent marriage and bigamous relationships but also from abusive partners of the live-in relationship. Furthermore, which cohabitation of male and female will amount to live in relationship, has not been categorically defined in the Act and left open for the Courts to fill the lacunae, discretion being given to the common course of natural events, human conduct, public and private businesses, in a relation to the facts of the particular case (Section 114 of Indian Evidence Act, 1872).

The judiciary is progressively positive in this regard and is delivering judgments supporting the rights and privileges of the women in a live-in relationship to the extent of bringing live-in relationships under the ambit of Article 21, i.e. Right to Life and Personal Liberty of a Person under the Indian Constitution and also held that two consenting majors living together cannot be considered illegal or unlawful thereby categorizing such relationships as domestic relationships" protected under the Protection of Women from Domestic Violence Act, 2005. However, they have become a developing area of controversy with respect to the types of live-in relationships that are recognized.

In the recent Judgement of Gulza Kumari v. State of Punjab, The Punjab and Haryana High Court while denying protection to a couple in live-in relationship reasoned that live-in relationships are "socially and morally unacceptable" once again setting a debate between what is "immoral in the eyes of society" vs. "illegal" in the eye of the law. The Indian society is aligning itself with the changing time where more number of women are now making choices with respect to their career, personal life as well as their body. On one hand there is a patriarchal society which still regards women as their property, opposes the choices of women, and is against love marriage, inter-caste marriage, live in relationship etc.; whereas, on the other hand there is a society which respects decision and choices of the women. The concept of live-in relationship may be socially unacceptable, but it has been made clear by the Apex Court in a plethora of judgements that the adult unmarried couples with mutual consent have right to live together even without marriage and is no more a crime. This 21st Century demands more progressive laws and a social acceptance that Law cannot be constant and has to evolve with the demands of the society. As also rightly observed by Hon'ble Justice A. K. Ganguly in Revanasiddappa v. Mallikarjun "With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today".

One of the oldest cases in this matter is Badri Prasad Vs. Deputy Director Consolidation. The Court in this case observed that "If man and woman who live as husband and wife in society are compelled to prove, after half-a-century of wedlock by eye-witness evidence that they were validly married fifty years earlier, few will succeed. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy."

To get recognized as "in the nature of marriage," certain conditions were set by the Supreme Court in the case of D. Velusamy v. D. Patchaimal. The conditions include: "The couple must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily cohabited for a significant period of time." In Indra Sarma v. V.K.V. Sarma the Supreme Court was of the view that "all live-in relationships are not relationships in the nature of marriage." It further observed that "such relationship may endure for a long time and can result in a pattern of dependency and vulnerability, and increasing number of such relationships calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship."

From a social perspective, living together as couple without being married to each other in a legally accepted way, is yet to get societal approval. However, law has tried to deconstruct the taboo associated with live in relationships. These relationships are largely unregulated due to the absence of any specific legislation, rules, or customs on the said theme. It may be defined as "Continuous cohabitation for a significant period of time, between partners who are not married to each other in a legally acceptable way and are sharing a common household."

According to the present structure of law, live-in relationship between two consenting adults is not illegal. This relationship is considered to be a relationship "in the nature of marriage" under the Prevention of Domestic Violence Act 2005Domestic Violence Act, 2005. Children born out of such relationships are considered legitimate and entitled to get share in the self-acquired property of their parents, though they are not entitled for a coparcenary share in the Hindu undivided family property. There is a greater need for gender sensitization of the members of the judiciary, police and society in general so that their personal beliefs and biasness are kept aside and rule of law prevails.

Saumya Rai is a law scholar based at Toronto. Sajid Sheikh is an Assistant Professor at Maharashtra National Law University, Mumbai. Views are personal.

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