This article is written by Gursimran Kaur Bakshi from the National University of Study and Research in Law, Ranchi. The author of this article has explored the legitimacy of live-in-relationships in India in regards to a recent judgment of Gulza Kumari v. State of Punjab.
Table of Contents
Introduction
“It’s a fool that hangs on to the traditional standards and hopes that the world will come around him”
-Joseph J. Ellis.
Rigid societal stereotypes elude certain sections of society to enjoy fundamental rights to the fullest. There are various preconceived notions in the society that we are surrounded by. These notions are rooted in the parochial mindset that has the ability to deprive basic rights to the human being.
Recently, a live-in couple sought protection from the High Court of Punjab and Haryana against their parents from whom they were apprehending danger. Since one of the petitioners was not of marriageable age, they were residing together and were intending to get married soon. In Gulza Kumari v. State of Punjab(2021), Justice H.S Madaan observed that their non-marital relationship is not socially and morally acceptable. Hence, the petition was dismissed accordingly.
This judgment surely reflects the preconceived notions followed by the majority on live-in-relationships in India. However, the judgment while preaching through the lines of societal morality fails to consider constitutional morality.
In Navtej Singh Johar v. UOI (2018), the Supreme Court observed that shoving popular sentiments which are in tune with majoritarianism violates the principle of constitutional morality. It precludes constitutional justness and has the ability to transgress in the sphere of fundamental rights.
It would not be wrong to infer that the legitimacy of live-in-relationships in India is currently governed through popular sentiments. However, it should not be the case because the legislature in the Protection of Women From Domestic Violence Act, 2005 (PWDVA) has shown its intention of protecting live-in relationships by recognising them within the definition of domestic relationships.
Further, the courts have interpreted Section 125 of the Criminal Procedure Code, 1973 (CrPC), to include women irrespective of their marital status. The courts have also, from time to time, read both the PWDVA and Section 125 of the CrPC to include live-in-relationships through the parameters of fundamental rights. That being the case, the recent judgment of Gulza Kumari v. State of Punjab(2021) is incorrect in the eyes of law.
Let’s see why.
The legitimacy of live-in relationships in India
Marriage in India is sacrosanct and is traditionally seen as the union of a male and female. In India, the major enactment that governs marriage is the Hindu Marriage Act, 1955 (HMA). The HMA defines marriage as:
- Between a male of 21 years and above and a female of 18 years and above.
- Both have performed Saptapadi before the sacred fire.
- The couples must fulfil the prerequisites of marriage as laid down in Section 5 before performing the Hindu marriage ceremony as per Section 7 of HMA.
Other than the HMA, inter-religious marriages are governed through the Special Marriage Act, 1954. Apart from this, Muslims, Christians, and Parsis have their own personal laws that regulate the subject of marriage.
However, currently, no enactment deals with a marriage between same-sex couples. This is despite the fact that Section 377 of the Indian Penal Code, 1860 which criminalised consensual sex between same-sex adults has been read down in Navtej Singh Johar v. UOI (2018).
Issues with recognition of live-in relationships
- First, marriage is understood as a union between a male and a female-only. This is reflected, for instance, in Section 5 of the HMA where a male and a female can only marry each other. Thus, there is no recognition of same-sex marriage.
- The right to procreate is also understood from the traditional perspective of marriage. Such understanding has now become obsolete given the fact that the lives of human beings grow transcendentally. India is progressing in its ability to make spaces for those sections of the society that have faced discrimination historically.
- There is a need to understand the freedom of choice to choose one’s partner and the right to procreate as independent human rights, arising from the constitutional framework of the right to personal liberty under Article 21. Doing so there must also be efforts in accepting relationships other than those made within the traditional boundaries of marriage.
These above issues create a hindrance in the recognition of live-in relationships.
Live-in relationships under the Protection of Women From Domestic Violence Act, 2005
A live-in relationship can be explained as when two consenting adults are residing together outside wedlock in a relationship similar to that of marriage for a reasonable period of time. As early as 1978, the Supreme Court in Badri Prasad v. Dy. Director Of Consolidation (1978) was faced with the issue to decide the legitimacy of the marriage between a man and a woman who happened to be living with each other for the last fifty years as husband and wife.
The Court held that a strong presumption arises in favour of marriage if the couple has been living for a long time with each other. Such presumptions can only be challenged with a heavy burden of proof to be discharged. It means that there must be evidence to the contrary.
The PWDVA is probably the only enactment that recognises relationships other than just marital relationships. It is because the PWDVA legislation seeks to attain a social purpose. It is to protect women from desertion, domestic violence and all kinds of physical, mental, and financial abuse that can take place in a relationship.
Since domestic violence and abuse is a social evil that can take place between couples with or without wedlock, the Act seeks to protect all relationships which can be accommodated within the broader definition of domestic relationships under the Act.
Section 2(f) of the Act defines a domestic relationship as 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 a nature of marriage, adoption or are family members living as joint family.”
Further, it defines a shared household under Section 2(s) as a household where the aggrieved person (the woman) lives or has lived at any stage of the domestic relationship either singly or with the respondent (the man).
The Court in D. Velusamy v. D. Patchaiammal (2010) observed that Act would also protect a woman in a live-in relationship (a relationship in nature of marriage) provided:
- The couples should share a domestic relationship.
- They must be of a legal age to marry or at least be qualified to enter into a legal marriage.
- They must voluntarily cohabit for a significant period of time.
- Their relationships must appear as being akin to spouses.
This position to include live-in relationships within the ambit of domestic relationships under PWDVA has also been recognised by the Supreme Court in Indra Sarma v. V.K.V. Sharma (2013). The Court observed that live-in relationships or relationships like marriage are neither a crime nor a sin even though it may be considered socially unacceptable.
This case is especially important in the context of discussing the Gulza Kumari order. It is because in both the two cases, the Court did consider the societal parameters attached to this concept, but at least the Supreme Court upheld the order based on law. Whereas, the Court in Gulza Kumari failed to look at the precedent which is the law of the court since it was given by the highest court of the land.
Further, in Tulsa & Ors v. Durghatiya (2008), it was considered that since a man and a woman are living together and sharing a relationship similar to that of marriage for a reasonable period of time, they will be presumed as husband and wife under Section 114 of the Indian Evidence Act, 1872.
Recognition of live-in-relationships for the purpose of granting maintenance under Section 125 CrPC
In 2003, Dr. Justice V.S Malimath Committee’s Report on Reforms in Criminal Justice System recommended for a wider interpretation of Section 125 of the CrPC to include relationships that are similar to the nature of marriage under its ambit.
The issue of maintenance in a live-in relationship first came up in S. Khushboo v. Kanniammal ( 2010) and then subsequently in D. Velusamy v. D. Patchaiammal (2010) but under two different legislations.
In Vimal (K) v. Veeraswamy (K) (1991), the Court interpreted Section 125 of the CrPC and held that the objective of the provision is to achieve a societal purpose, it shall prevent destitution and vagrancy. The Court stated that the term wife under Section 125 of CrPC must include a woman who has been divorced by a husband, who has obtained a divorce and has not remarried. It was also held to include a woman living in the nature of marriage but not having the statutory status of a wife.
Previously, in Mohd. Ahmed Khan v. Shah Bano Begum (1985), Section 125 CrPC was held to be a secular provision to prevent the exploitation of the weaker section under Article 15(3) of the Indian Constitution. In this case, the Court granted a relief under Section 125 CrPC to a Muslim woman who was left destitute when her husband divorced her by pronouncing triple talaq.
Post Vimal’s case, the issue of granting maintenance under Section 125 CrPC to women living in a nonmarital relationship came up again in Chanmuniya v. Virendra Kumar Singh Kushwaha (2010).
The Court referred to cases like Gokalchand v. Parvin Kumari (1952), Badri Prasad v. Dy. Director of Consolidation & Ors (1978) and Tulsa and Ors. v. Durghatiya & Ors (2008) to make a point that where there is a continuous cohabitation, the law will favour the presumption of marriage for the purpose of Section 125 CrPC. Strict proof of marriage is not a pre-condition to invoke Section 125 CrPC.
Section 125 CrPC was earlier Section 488 under the 1889 Criminal Procedure Code. However, in the latter provision, the ability to seek maintenance was dependent on the continuation of marital status. Thus, these cases can be relied on to at least make this point clear that the courts never explicitly made the live-in-relationships illegitimate unless an express law stated otherwise.
Further, in D. Velusamy v. D. Patchaiammal (2010), the Court recognised live-in-relationships to the nature of marriage within the definition of domestic relationship under Section 2(f) PWDVA. It held that the issue of compensation under the Act can arise where the woman suffers from economic abuse in that relationship.
Section 3(a) defines domestic violence which includes all physical, mental, and economic injuries caused to the female by a male in a domestic relationship. This would cover a situation in a live-in-relationship where a woman has left her job or is dependent, wholly or partially on the male counterpart for financial and economic resources in a live-in-relationship and the man decides to leave her for whatever reasons.
In such cases, a remedy can be invoked under the PWDVA, provided that the conditions laid down under D. Velusamy v. D. Patchaiammal (2010) relating to the live-relationship can be covered under the definition of domestic relationship under the Act.
The woman can then apply for compensation or damages under Section 12(1) of the PWDVA before the Magistrate or before a legal proceeding. The Magistrate can grant maintenance under Section 20(1)(d) or if the relief is sought in a legal proceeding, the court can grant it under Section 26(1).
These cases point out the uniformity that the courts have maintained in favouring the presumption of marriage. However, the Court in Gulza Kumari v. State of Punjab (2021) failed to consider the precedents, some of which are law of the land. This is especially concerning since the petitioners were clear that they would soon be getting married.
The Court failed to note that the law has been consistent in protecting relationships that are similar to that of marriage. The Court perhaps got swamped with popular sentiments rather than being convinced of the law.
It is also to be noted that the law always favours giving legitimacy to their relationship and to extend protection under the domestic and matrimonial laws. In Rajeeve v. Sarasamma & Ors (2021), the Kerala High Court held that the long cohabitation between a man and a woman will lead to a valid presumption of marriage even if there is no direct evidence of ceremonial marriage.
However, when there is a simultaneous cohabitation, one pursuant to a ceremonial marriage and the other not pursuant to a ceremonial marriage, the law will lean in favour of the former. A female partner in a live-in relationship cannot have a better claim than a legally married wife.
Recognition of live-in-relationships under the Juvenile Justice Act, 2005
The Juvenile Justice Act, 2015 (‘JJ Act’) recognises live-in relationships for the purpose of the adoption of a child. Recently, on 10th April 2021, the Kerala High Court in a judgment (name of the case is not available) was faced with an issue to determine whether live-in couples could be presumed to be married couples for the purpose of the JJ Act.
Facts of the case
- According to the facts, a couple met each other during the tragic 2018 floods in Kerala. They were from different religions as the boy (John) was a Christian and the girl (Anitha) was Hindu by faith.
- They wanted to get married and waited for their parents’ approval. But before that, the girl became pregnant and gave birth to a girl. However, John seemed to have broken the relationship with Anitha after that.
- Anitha, unable to handle the situation as being a single unmarried mother that traumatised her and she decided to surrender the daughter to the Child Welfare Committee in Ernakulam under Section 35 of JJ. However, the couple later met again and decided to get custody of the child.
Order of the court
- The Court while deciding the issue under Section 38 of JJ which puts an obligation on the committee to trace the parents of the surrendered child, observed that marriage as a social institution depends on statutory law. However, it has no bearing on the concept of Juvenile Justice which is to protect the welfare of the child.
- Since the parental rights of biological parents are a natural right, they have no dependency on marital status. In a live-in relationship, a couple acknowledges certain mutual rights and obligations and offspring in such a relationship means that they have also acknowledged biological parental rights.
- Thus, the artificial difference between legally married and unmarried has nothing to do with parental rights. Since the law leans in the favour of legitimacy, it is important that the law favours the presumption of marriage in a live-in relationship.
- This is to protect the child born out of that nonmarital relationship from any kind of stereotypes. The same is in consonance with the best interest of the child recognised under the Child Rights Convention, 1989.
In Revanasiddappa & Anr vs Mallikarjun & Ors (2011), the Supreme Court even recognised the coparcenary right of a child born out of void marriage in the Hindu joint family property. In this case, the second marriage of a person is held to be void because the first marriage was already subsisting.
The issue was whether the child born out of the void marriage would be entitled to claim a share of the ancestral property. The Court held in affirmative by broadly interpreting Section 16(3) of the Hindu Marriage Act, 1955, which allows the child born out of void marriage to acquire property (both self-acquired and ancestral).
Hence, it should be concluded that there could be illegitimate parents but the law will not allow the child to be declared illegitimate. It protects the best interest of the child including those born outside the marital relationship.
Judicial pronouncement on live-in relationships
Live-in relationship vis-a-vis the fundamental right to freedom of choice
In Salamat Ansari v. State of UP (2020), the Allahabad High Court observed that the right to choose a partner of choice is a fundamental right under Article 21 of the Constitution of India. It forms a part of Article 21 because it is connected intrinsically with personal liberty which cannot be exercised without the right to make personal choices such as the right to live with a person.
The freedom of choice to choose a partner and the right to live with dignity is to be exercised without the unnecessary interference of the state.
The Court also observed that the right to choose a partner of choice is statutorily conferred to the person after attaining the age of majority. But does it mean that those on whom such right is not conferred be deprived of the same? The answer is no unless there is a clear statutory prohibition.
Of course, no specific statutory law confers legitimacy to live-in relationships in India right now but to reside together as a couple still exists as a fundamental right. It is because the Constitution does not discriminate between who is married and who is not for the purpose of exercising their rights, provided that the person has attained the age of majority.
The Gulza Kumari v. State of Punjab (2021) order has thus drawn a lot of criticism for the right reasons. Within weeks after this order was passed, the High Court of Punjab and Haryana passed another judgment but with totally opposite reasoning.
In Pushpa Devi v. State of Punjab (2021), the petitioners, a girl about 21 years old and a boy of 19 years old sought the protection of the court to guard their live-in relationship from their parents, who were willing to kill them for the sake of family prestige. Since one of the petitioners, the boy, has not attained the age to marry which is 21 years old, they were not able to marry.
The Court through Justice Arun Kumar granted them the protection of life and personal liberty on the ground that both petitioners have attained the majority and they have the right to exercise their choice. This case seems to also highlight the importance of attaining the age of majority and how it changes the way constitutional protection can be granted against the state’s interference.
On a similar understanding, the Punjab and Haryana High Court has passed orders for the protection of live-in couples in Megha and another v. State of Haryana(2019) and Komalpreet Kaur and another v. State of Punjab(2021).
In Sanjay v. State of Haryana (2021), the High Court of Punjab and Haryana came to the rescue of another live-in couple who met on Facebook, fell in love, and decided to reside together. The court also recognised that the live-in relationship is not a new phenomenon but the society has not evolved to the extent of accepting such relationships without raising eyebrows to such relationships.
On a similar understanding, the High Court of Rajasthan in Smt. Divya Shekhawat & Anr. v. State Of Rajasthan & Ors (2021), observed that society has no right to regulate how individuals are going to live their lives, especially if they are major.
Previously, the question of the legitimacy of live-in relationships came up before the Supreme Court in Nandakumar v. State of Kerala (2018) through an appeal from the Kerala High Court. According to the facts, a couple married each other and started living together but the male had not attained the marriageable age of 21.
The father of the female filed a Habeas Corpus petition, pleading for the custody of the daughter since the couple was not competent to marry. The Kerala High Court thereby granted the custody of the female to his father. However, the Supreme Court reversed the order on the ground that the case did not concern the validity of the marriage since the couple had attained the age of majority and they have the right to live together.
In Shafin Jahan vs Asokan K.M. (2017), the Court expressly recognised that the choice of an adult person has been conferred esteemed status in the Constitution through the fundamental right under Article 19 and Article 21, provided, that the said choice does not transgress any valid legal framework.
This right may get in conflict with social and moral values but these values are not above constitutionally guaranteed freedoms. This judgment read with Navtej Singh Johar v. UOI (2018) and NALSA v. UOI (2014), would surely allow us to appreciate that the choice of an adult is an innate part of their personal identity.
Another case that elaborately deals with the importance of the choice of an individual is Soni Gerry v. Gerry Douglas (2018). According to the facts, a Habeas Corpus petition was filed against an adult daughter who wanted to return back to Kuwait to her father for further studies. But her mother alleged that she was being forced to live with her father.
The daughter appeared before the Court in person and categorically stated her intention to go back to Kuwait. The Court while dismissing the petition observed that attaining the age of the majority in an individual choice has its own significance. In Shakti Vahini Vs. Union of India (2018), the Court observed that the choice of an individual is an inalienable part of human dignity and dignity sans the right to choose cannot exist.
Right of live-in relationship vis-a-vis the right to privacy
Another way through which the right to choice and freedom to stay in a live-in relationship can be analysed is through the right to privacy. The Supreme Court in K.S Puttaswamy v. UOI (2017) held that the right to privacy is a facet of Article 21.
The Court further observed that privacy represents the core of a human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. The right to choose a partner relates to the ability of an individual to control vital aspects of their lives including the preservation of personal intimacies.
Individual autonomy must not be judged from the parameters of the social milieu. This judgement should also be read with Navtej Singh Johar v. UOI (2018). A conjoint reading of the two allows us to understand that the right to privacy will also protect the right to choose a partner of choice for persons of other sexual orientation and gender identity.
However, recently, the government has opposed recognition of same-sex marriage stating ‘nobody is dying because they do not have a marriage certificate’. Since this being their opinion for granting rights to the third-gender, one can possibly infer their reluctance in recognising their live-in relationship.
Last year, the Orissa High Court in Chinmayee Jena @ Sonu Krishna Jena v State of Orissa (2020) allowed same-sex couples to reside in a live-in relationship. The Court based its judgment on NALSA v. UOI (2014) and the Yogyakarta Principles.
The Yogyakarta Principles are based on the recognition of the international human rights of persons of different sexual orientations and gender identity. These principles recognise that same-sex couples have the ‘right to found’ a family under Principle 24 and that is not strictly based on marital status.
In Paramjit Kaur v. State of Punjab (2020), the Punjab and Haryana High Court while protecting a same-sex couple in a live-in relationship held that legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty.
International understanding of live-in-relationships
Live-in relationships are very common in Europe and America as common-law marriages. Common law marriages are mostly based on contracts where the couple decides to adopt certain rights and obligations. In the United States, there is even a consideration of granting alimony to a woman who has been in a live-in relationship for a substantial period of time. The term ‘Palimony’ was coined to grant alimony to women in live-in relationships.
In Marvin v. Marvin (1976), a case for palimony came up before the California Superior Court. In this case, a famous actor Marvin Lee was living in a nonmarital relationship with Lady Michelle Marvin and they had also entered into a contractual agreement.
The contract stated that Martin will provide financial support to Michelle in consideration of the latter giving up her lucrative career as a singer to devote herself as a companion. The Court considered the arrangement legal in law.
In another case of Helen M. Devaney v. Francis(2008), the New Jersey Supreme Court by majority held that cohabitation in a live-in relationship is not a condition precedent in the cause of action for palimony, provided that there is an existence of the marital-type relationship.
Conclusion
There must now be a consensus that the legislature and the judiciary have time and again recognised the legitimacy of live-in-relationships. A lot of judgments in the recent past have been progressive in their ability to emphasise the importance of the freedom of choice emanating from Article 21 of the Constitution of India.
Since this has been the case, the recent Gulza judgment should not be considered as a good precedent as it has the law and the fundamental rights of the petitioners that as a guardian it had to protect.
There is also some reluctance on the part of the legislature to not give specific rights to the live-in relationships. This could be substantiated from the fact that the recent Surrogacy (Amendment) Bill, 2019, does not allow live-in partners including same-sex live-in partners to opt for altruistic surrogacy.
There must now be no excuse that the legislature does not confer legitimacy to the live-in relationships because more than the conferment, its realisation is important. Lastly, it is important for a Constitutional Court to forgo precedents that create a hurdle in appreciating the dynamic nature of human rights.
Reference
- https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
- https://www.livelaw.in/news-updates/allahabad-high-court-extends-protection-to-same-sex-couple-165406
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