Author Name:   manbir_bhinder

its about live in relationships in India and its legal consequences, with supreme court Judgments

Live -In -Relationship: In A Marriage Centric India

In Indian society, marriage is still considered as sacramental and eternal union. But with changing times, Indian society is slowly opening its doors for western culture and lifestyles and one of the most crucial episodes amongst it, is the concept of Live- In- Relationship. Live- in- relationship form a characteristic feature and style of living of couples, especially those in metropolitan areas. With each passing day number of unmarried partners living together is scaling high. Cohabitation or live in relationships in India is though not illegal, but it is considered as socially and morally improper.

Now the question arises is what is live in relationship? The legal definition of live- in- relationship is “an arrangement of living under which couples which are unmarried live together to conduct a long-going relationship similarly as in marriage.” Many people imagine that living together before marriage resembles taking a car for a test drive. However, the definition and ambit of live in relationship is very unclear, there is no specific legislation in India on this subject, and the laws are in the form of court verdicts which varies from case to case.

But the concept of live in relationship is not new in our society. The only difference is that people have become open about it. Formally they were known as “maitray karars” in which people of two opposite sex would enter into a written agreement to be friends, live together and look after each other.

Why live-in?
This is a general question which can strike at anybody mind that why couples who are in love with each other are leaning towards the live in relationship. A change is visible in our society from arranged marriages to love marriages and now to ‘live-in-relationships’. If an analysis is made of need of such relationships, avoiding responsibility would emerge as the prime reason. The lack of commitment, the disrespect of social bonds and the lack of tolerance in relationships have given rise to alternative to marriages.

Legal Status of live-in-relationship:
Though at global level as well, laws are not very clear on live in relationship, showing a common theme of aloofness and hesitation amongst countries to recognize such relationships. Nevertheless, as far as Indian scenario is concerned, there is dire a need to recognize such relationships in form of new legislation that will clearly dictate the ambit of live in relationship and rights and obligation of partners in such relationship.

Provisions with regard to live in relationships outside India:
Live in relationships in various countries are either recognized as it exists or it’s finding recognition via implied provision of different statues that protect property rights, housing rights. Many countries provide for live in relationship contracts in which partners can determine their legal rights.

The law introduced in 1999 in France makes provision for “civil solidarity pacts” allowing couples to enter into union and be entitled to same rights as married couples in such areas as income tax, inheritance, housing and social welfare. Article 147, of the Family Code, Philippines provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other ass husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them.

In the UK, live in couples does not enjoy legal sanction and status granted to married couple. There is no obligation on the partners to maintain each other. Partners do not have inheritance right over each other’s property unless named in their partner’s will.

The live in relation were conferred legal sanctity in Scotland in the year 2006 by Family Law (Scotland) Act. Laws in the U.S. as well do not provide the live in relationship couple with the rights as enjoyed by married couple. But such couples can enter into Cohabitation agreement containing stipulation with regard to their rights and liabilities.

But the laws of Canada, Australia, Ireland and China recognizes live in relationship.

In India:
At present in India no law deals with the concept of live in relationship. But even in the absence of a specific legislation on the subject, it is praiseworthy that our courts take an initiative and give certain recognition to such relationships. In earlier cases the court tended to presume marriage based on the number of years of cohabitation.

In the cases prior to independence like A Dinohamy v. WL Blahamy, (1928) 1 MLJ 388 (PC), the Privy Council laid down a broad rule postulating 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 consequences of a valid marriage.” The same principle was reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan, AIR1929 PC 135.

After independence the SC in Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557, recognized live in relationship as a valid marriage.

Later in Patel and others case, (2006) 8 SCC 726, the SC observed that live in relationships are not illegal. The same proposition was upheld in the case of Tulsa v. Durghatiya, (2008) 4 SCC 520. The further sanction to live in relationship was granted by judgement of SC in 2010 in the Khushboo case, JT 2010 (4) SC 478.

However, this position is not all binding. The Delhi High Court, in a recent case of Alok Kumar v. State Crl M.C. No. 299/2009, observed that a live in relationship is a walk in and walk out relationship.

Hence, though more or less uniformity has been exuded in a positive direction by the court when it comes to live in relationships, but law does not cut a clear picture.

Protection of Rights Of Female Partner In Live In Relationships:
The rights of female partner in live in relationship tend to be secure, credited to the recent statutes and recommendation by the committees. Courts also display alacrity to protect the rights of female partner in such relationship as exhibited by judgments given in number of cases. The statues like Protection of Women from Domestic Violence Act, 2005 protects both in the categories of wife i.e. relationship by marriage and live in partner i.e. relationship in nature of marriage. However, as was discussed in D. Veluswami v. D. Patchaimmal, to get the benefits arising from “it is necessary that couple must hold themselves out to society as being akin to spouses.

In June, 2008, The National Commission for Women recommended to Ministry of Women and Child Development made suggestion to include live in female partners for the right of maintenance under Section 125 of CrPC. This view was supported by the judgment in Abhijit Bhikaseth Auti v. State of Maharashtra and others, Criminal Writ Petition No. 2218 of 2007 . This positive decision in favor of live in relationship was also supported by Maharashtra government in October, 2008 when it accepted the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live in relationship for considerably long time, she ought to enjoy the legal status of wife.

From above discussion, an important observation has been made that to recognize the right of female partners in live in relationship via some statues will have to be accompanied by changes in laws of succession, adoption, marriage.

Rights Of Children Born Out Of Live In Relationship:
The law relating to the right of child born out of live in relationship is still groping in the dark. The Hindu Marriage Act, 1955 gives the status of legitimacy to every child, irrespective of birth out of void or voidable marriage. But live in relationships do not come under the concept of marriage. So status of child born out of such relationship is still doubtful as such relations do not consider as a marriage under Hindu Marriage Act. Moreover, no other religion or law provide for the legality of child born out of such relationship.

Another important matter that needs to be taken note is that, if the live in partners desire to get out of the relationship, then the future of the child comes into question as there is no provision in law which can secure the rights of such child. But recently SC in the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors. held that child born out of live in relationship may be allowed to succeed inheritance in the property of parents but doesn’t have claim against Hindu ancestral coparcenary property. But in spite of above decision there is an utmost need of provision in law which deals with the status and protection of right of child born out of such relationship.

Live In Relationship In Indian Socio-Legal Context:
The word live in has been particularly alien to the Indian Society which has been lighted up particularly in the recent years. Such practice is still considered as taboo in a major part of the country. A large and clear picture of India thus will be substantiated by the rural India and not a handful of metros.

But an increasing number of live in relationship in Indian society poses a great threat to the very notion of husband and wife and to the entire fabric weaved out of values and morals on which Indian society stands. It also tends to prop up adultery, as there is no surety that live in partners are unmarried. Such relationship also endorses bigamy. The rights of female partner are also precarious. Moreover, there is no law of succession and maintenance that protects the right of such live in couples. And above all, such relationships are fragile and can be dissolved any time.

Conclusion:
From above discussion, I come to the conclusion that there is urgent need of legal provision on live in relationship which demonstrate clear cut picture keeping in mind the present Indian social context which stands on the foundation of tradition and culture. Live in relationships should be granted legal status but only after considerable period of cohabitation protecting rights of partners and child born out of such relationship.

In my opinion live in relationship among urban, educated, upper middle class young people began as a declaration of independence, as a way of keeping away from the shackles of marriage. In fact, it’s willful rejection of the institution of marriage. So according to me the rights of live in couples should be legally recognized while ensuring that it does not impede upon the system of marriage.

Refrences :
1.http://indialawjournal.com/volume2/issue_2/article_by_saakshi.html
2.Supra, note 1
3.http://airwebworld.com/articles/index.php
4. supra note 3
5. Basant Rai, Hindu Law
6. Kelkar, Criminal Procedure Code

The  author can be reached at: manbir_bhinder@legalserviceindia.com

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