This article is written by Dhanshree Sharma, Student, Rajiv Gandhi National University of Law, Patiala.
Every millennial, today, believes that the tie that marriage binds is too binding for them. And an alternative is a relationship that resembles marriage but without its obligations and responsibilities. This is when live-in relationships engender. This arrangement is generally entered into by consent, either to test compatibility before marriage or to simply evade the hassles of a formal marriage. Keeping the reason aside, there are a growing number of couples who choose live-in relationship over marriage. But as compared to dating, which has become acceptable among the urban, live-in relationship is considered quite unconventional. Although most couples view this arrangement as a lucrative option, some budge because it is the assent of the family that is the hardest to obtain. Even though there is no legal hurdle preventing such a relationship, now, there is still disapproval from society. Traditionally, marriage has been considered a revered institution and if a woman was financially dependent on the man, the unsteadiness in the relationship would easily portray her subservient to her counterpart. Moreover, the ‘walk in and walk out’ presumption seemed antithetical to the very ethos of marriage. However, despite the mindset of a sizeable chunk of the population, the apex court has been rather significant in providing protection to the couples.
Official statement by the Judiciary
There is no specific law on the subject of live-in relationships nor is it recognised by the Hindu Marriage Act, 1955. In the absence of any statute, the court did try to shed light on it through the judgement given in Badri Prasad v. Deputy Director of Consolidation and Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others, where in the former it upheld the legal validity of the 50-year-old live-in relationship of a couple and in the latter, the court said that a man and woman can live together, without getting married. Besides, it was also noted that it may be immoral for society but is not illegal. But some reckon that, the judiciary is neither overtly encouraging such relationships nor prohibiting it, but only rendering justice while keeping in view social and constitutional morality.
In the case of S. Khushboo v. Kanniammal & Anr., the court held that living together is a right to life. The actress Khushboo, allegedly endorsed pre-marital sex and live-in relationships and her detractors accused her of perpetuating nuisance. The court gave a judgement in the favour of the actress, thus upholding the distinction between law and morality.
And finally in the case of S.P.S. Balasubramanyam v. Suruttayan, the supreme court held that if a man and a woman live under the same roof and cohabit for a number of years, there will exist a presumption under section 114 of the Indian Evidence Act, that, they live as husband and wife and the children born thereinafter will be legitimate.
A premarital agreement or ‘prenup’ is a contract between two individuals entered into before marriage. It entails the state of finances and personal liability among the couples along with the division of property in the event of divorce or break-up. Countries like Brazil, Germany and Switzerland recognise and enforce pre-nuptial agreements. But such agreements before marriage are not common in India, as they are not in conformity with the ethos of the Indian tradition. Marriage, as believed by many, is socially recognised and legally protected. But many societies around the world have gone through some formidable changes regarding the institution of marriage and live-in relationships. Currently, the concept of pre-nuptial agreements with regard to marriage is alien to the Indian legal system, let alone live-in relationships.
Although the urban have reluctantly grown used to the idea of such a relationship, it is all the more difficult to find accommodation. Even in the metropolitan cities, there is no escape from the ghettoised benchmark of living. Then couples often resort to living in hotel rooms and in the infamous OYO Rooms, for temporary accommodation and in the limbo for a permanent abode together.
Rights of Women
The woman in the relationship can claim protection under Protection of Women from Domestic Violence Act, 2005. The status of the woman is though not equivalent but is akin to that of the wife, provided the couple has have lived together in a shared household for a considerable amount of time because the definition includes a relationship which is ‘in the nature of marriage’.
In the recent case of Ajay Bharwaj v. Jyotsna, the court awarded a sum of 40 lakhs as maintenance to the woman in a live-in relationship. The court also referred to the 2003 report of the Malimath Committee, ‘Reforms in the Criminal Justice System’, that recommended that the word ‘wife’ in section 125CrPC should be amended to include a woman, who is living with a man like his wife for a considerable amount of time.
In furtherance of the recommendation of the National Commission for Women to the Ministry of Women and Child Development, the court upheld that the women can seek maintenance under Section 125 of Criminal Procedure Code, 1973, in the case of Abhijit Bhikaseth Auti v. State of Maharashtra and Others.
The Supreme Court held that dowry can occur in a marital or non-marital relationship (but resembling a marriage), as it is just an unjust demand for money. In the case of Koppisetti Subbarao Subramanian vs. State of Andhra Pradesh, where the defendant would harass the live-in partner for dowry, the court reject the claim made by him that Section 498A did not apply in this instance, as he was not married to the woman. The Supreme Court delivered a landmark judgement, as it went a step further to protect woman from harassment and dowry in a live-in relationship.
Rights of the Male Partner
‘The rights of a male partner’ is hotly debated amongst the men’s rights activists and the judges, where the former accuses the latter of always gravitating towards the other sex. As of very recently, only women can claim maintenance from men in a live-in relationship. Even in the case of S. Khushboo v. Kanniammal & Anr., the court drew an assumption that ‘a live-in relationship is invariably initiated and perpetuated by men’. While this relationship is based on gender parity, the desired justice is a far cry.
Inheritance Rights of the Partners
Partners in a live-in relationship do not enjoy a right of inheritance to the property of their partner. The Hindu Succession Act, 1956 does not specify the succession rights of the partners in a live-in relationship. But in the case of Vidhyadhari v. Sukhrana Bai, the court held that a couple living together for a reasonably long time can receive property in inheritance from either partner.
Status of Children from Live-in Relationships
In comparison to formal marriage, the legitimacy of the children born in the live-in relationship is often questioned. Despite the increasing trend of couples entering in informal relationships, children from these relationships have serious legal implications.
Section 112 of the Indian Evidence Act 1872 recognizes a legitimate child, only if it was born during the continuance of a valid marriage between the mother and the father. An until recent children born from a live-in relationship were considered illegitimate in the eyes of law. But in the case of Tulsa v. Durghatiya, the Supreme Court awarded legal status to the children born from a live-in relationship. Having said that the court also mentioned that the couple should have lived under a roof for a reasonable amount of time.
Besides, Section 125 CrPC provides maintenance to children whether they are legitimate or illegitimate, till they are minors or after majority if the child is unable to maintain himself.
Nevertheless, the court in the case of Dimple Gupta v. Rajiv Gupta, held in the furtherance of the above-stated view that children from live-in relationships have the right to maintenance.
In June 2018, the Central Adoption Resource Authority (CARA) has barred couples in a live-in relationship from adopting a child, after its Steering Committee held that cohabitation without marriage is not considered a stable family in India.
Recently, Public interest Litigation was filed in the Delhi High Court which sought the government to keep the cases of live-in relationships outside the purview of rape under the Indian Penal Code. However, the High Court dismissed the PIL stating that nobody could be arrested only on the basis of an allegation of rape prior to conducting a preliminary inquiry; there are an alarming number of rape cases registered by the police, which the police suspects have germinated due to termination of the live-in relationship or simply refusal to marry. According to the report by the Delhi Police, at least 25 per cent of the registered rape cases in a live-in relationship were false. In spite of this, a man living in with a woman is not immune to the charges of rape; in furtherance to the idea of rape in a domesticated setting, marital rape is not a crime regardless of the status of matrimony.
Divorce or Break-up
In the case of a live-in relationship, it is not possible to have a formal divorce in the eyes of law. The consequences of the dissolution of this relationship are left unanswered in law, for example, the absence of law in case of division of their joint property after separation. Though it is fairly easy to get into a live-in relationship but the aftermath of dissolution is still ambiguous.
The status of live-in relationships in other countries is far more relaxed and progressive. In Canada, all the live-in couples enjoy the legal sanctity if they have lived together for 12 months or they give birth or adopt a child. This gives immediate legal status to the relationship and the child thereof.
But in India, the social stigma goes against the individualistic way of living in apprehension of high rates of adultery, vulnerability of women and uncertainty of the future of children. The social fabric of our country seems gradually change with time, with society and the media co-constructing each other. The reciprocal impact of the socio-economic and cultural change renders the unconventional visible and slightly acceptable.
For Example, the Red Label commercial, where the parents surprise their son on his birthday at his house, only to find his live-in partner with him, has taken a controversial topic and associated it with a socially progressive message. And real estate websites like 99acres have increased the acceptance of an informal cohabitation of the couples thereby slyly integrating the idea in the society. But the idea of live-in was not entirely new, it existed even before the judiciary protected individuals and then the society would boycott the perpetrator. An activist from the Indian freedom struggle and a socialist leader, Ram Manohar Lohia never married but instead was in a live-in relationship with Rama Mitra. He, once, said that a man and woman could do anything so long as the breach of commitment and use of force was not there.
The aversion to the idea is not new and nor will it end in a jiffy, societal unconditional acceptance take longer than the judicial overhauling of the system.