Authored by Ansh Prasad, a 3rd year student of Chanakya National Law University, Patna.
Introduction
Live-in relation can be termed as cohabitation between two individuals without being married to each other and also without sharing any legal responsibility toward each other. It simply means that both the individual can leave one another without facing any liability of law. It is a type of relationship where a man and a woman live under one roof without being married to each other but continue to have sexual relations with each other. They share almost similar characteristics as a married couple and by their appearance in the society, it is felt that they are married and represent to the world as a couple and, there are stability and continuity in the relationship.
Live-in relationship though not well recognized by law but is not illegal per se. Live-in relation is also termed as a common-law marriage i.e. ‘de facto marriage’ which means that “in practice but not necessarily ordained by law”. In no way it can be said that people living in a live-in relationship are criminal offenders.[1] Although the status of children born out of such a relationship has not been well clarified by law. The children born out of such relationships are often looked down on in society and also the conservative society does not accept these children. Several judgments have given all the rights to the children born out of a live-in relationship the same as those given to the children born out of marriage. In some cases, the court has not differentiated between an illegitimate and a legitimate child and considered both as the same but there are also some cases where the court didn’t accept the child born out of a live-in relationship as legitimate.
National commission for women in 2008 recommended giving rights to women in a live-in relationship under Sec 125 of CrPC, 1973. The concept of a live-in relationship cannot arise just by spending a few days or a one-night stand or spending holidays with a partner. A couple can be said to be in a live-in relationship only when both the individual spends a considerable amount of time so that the society recognizes them as husband and wife. The same has been stated in other judgments of the court too. It can be said that there is no proper law to govern the live-in relationship and also there is an urgency to make a proper law governing the status of a live-in relationship.
Live-in relation is not widely accepted by Indian society. It is still considered a social stigma, but now such types of relationships are increasing at an increasing rate.
Concept of Live-in Relationship
The concept of a live-in relationship came to India in recent times. It is not that it was not prevalent before, but people were not open about it. In previous times, the Live-in relationship was considered a taboo and was not a widely accepted form of relationship. Now, the time has changed, and also the mentality of people has changed, now, live-in relation finds a legal recognition in the society. Live-in relation is considered in India as an outcome of modernization but it is not completely true. The researcher believes that the Live-in relationship was also prevalent during ancient times, but due to the fear of societal norms, these relations were kept hidden from society. Now due to Modernization people became aware that Live-In relationships are common among the European nation and also among different developed nations so slowly and gradually the society began to accept this. The best example is “Radha and Krishna” which was also quoted by the Supreme Court in the case of Khushboo v. Kanniammal & Anr[2].
Global Scenario of Live-In Relationship
In the developed nation Live-in relationship is not looked down rather it is considered as a more efficient way of cohabiting. Live-in relation has many perks as in a well-developed city where a couple in a live-in relation can share expenses. Also, the major benefit is that none has any obligation towards the other partner.
The countries where the live-in relationship is very common in the European nations. So, it became quite necessary to have laws to govern those relationships. A live-in relationship does not have any rights nor does it have any obligation towards the partner. So, many countries in Europe had laws introduced for governing the concept of live-in relationship. In 1999, France passed a law “Civil Solidarity Pact” which allows the couple to enter into union even if the couples are of same-sex. They would have the same rights as a married couple. The law introduced starts with a contract that is signed by both the parties who are in a live-in relation before the Court clerk. The contract can be revoked at any time by any of the parties to the contract or by both the party mutually. The party who is revoking has to give three-month notice in advance.
The Philippines also provide a provision in their family court in Article 147 of the Family Court that when a man and a woman live together without any marriage or void marriage, the wages and salary obtained by them will be shared by them and the property acquired by them would be governed by the rules of Co-ownership.
A live-in relationship has been recognized by many American countries as well and there also are laws to govern these relationships. Some countries including the state of California recognizes cohabiting partner as “Domestic Partner”. This recognition led to the creation of a Domestic partner registry.
Sweden comes in the country which has recognized a live-in relationship and has made laws to govern those relationships. Here, live-in relation is not only legal but also governed by the special law “Cohabitees Act”
The concept of Live-in relation is not well recognized in the Muslim countries or the country where the Islamic Quran is the main source of law and people are governed by the injunction of Islam. Islam prohibits sexual relations between two people who are unmarried and also homosexuality is also prohibited in Islam.
Live-In Relationship in India
The concept of live-in relationships has spread throughout the whole world. More and more people are seen living in a live-in relationship. This does not only include celebrities and higher class people but also middle-class people. [3] There are various reasons for the growth of this concept. One such is that people of the modern era don’t believe in the traditional concept of marriage. They don’t have faith in the sanctity of marriage. Another reason for the live-in relationship is that here there is no legal obligation. It is a walk-in and walkout type of relationship. Allahabad high court has held such a relationship legal but immoral in the eyes of society.[4] Another reason for couples to form a live-in relationship in modern society is to check their compatibility with each other.
As because of the widening of the concept of live-in relationship it has given rise to many socio and legal problems. Like, if the live-in relation partner decides to separate then who should have the custodial rights of the child? What are the legal rights of women after separation?
The status of the relationship between a man and a woman in a live-in relationship has always been a controversial debate. The status has not been justified and explained thoroughly. There is a lack of legislation in this field of law. This is mainly because of the kind of conservative society in which we are living. A live-in relationship is common in England, France, and various other modern societies but in Indian society, it is still considered as a taboo.
Legal Validity of Live-In Relationship
There is a need for many more legislation to govern the rights of the person to live in a relationship and also the right of a child born out of this relationship. At present we have very few laws that can be used to protect the rights of individuals in a live-in. The Protection of Women from Domestic Violence Act, 2005, tends to provide protection and maintenance to a woman who is or was under a live-in relationship. This enactment provided some sense of support and relief in the form of maintenance to a person who is a partner but not a spouse. Section 2 (f) of the Domestic Violence Act not only applies to a couple in marriage but also a 'relationship in the nature of marriage'. Where there existed a live-in relationship between a man and woman and it was known to the woman that the man was already married to someone and also had 2 children, the Supreme Court held that in this case the women would not be entitled to any sort of relief as given to a legally wedded wife.[5] The Supreme Court also made some exceptions to this rule to protect the interest of the poor and illiterate.
In India, there are 11 fundamental rights. Article 21 is one of them. Article 21 gives Protection of life and personal liberty it states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[6] Taking this article into account a person has some personal liberty attached to his life. He can live his life as per his wish subjected to some restrictions that it should not interfere with some other person's liberty. Now it can be rightly said as it is quoted in one of the judgments that “Live-in relationship may be immoral in the eyes of our conservative Indian society but it is not illegal in the eyes of law”.[7]
Allahabad High court also recognized the concept of live-in relationship, Justice M. Katju, and Justice R.B. Mishra quoted that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.”[8]
The Supreme Court in the case of Tulsa v. Durghatiya[9] gave some guidelines regarding the status of children and also the nature of relationships in a live-in relationship. In this case, the court said that “The child born out of cohabitation are not to be treated as illegitimate but there is a pre-condition which one needs to keep in mind that the parents must have cohabited for a considerable amount of time under one roof so that the society recognizes them as husband and wife.[10] And the same has been said by the other courts too that if a man and woman live under one roof for a considerable long period then they would be presumed to be married to one another unless proven contrary[11].
In the case of Khushboo v. Kanniammal[12], a criminal appeal was filed against a woman as she was in a live-in relationship. The Supreme Court, in this case, quashed the appeal and rightly pointed out that, this relationship cannot be illegal. Here the two couples are together by their consent and by very nature it is not illegal. In this case, the court even quoted the example of Radha and Krishna.[13]
When it is proved that two individuals are living happily as husband and wife, then the court will assume that they are living in the consequence of a valid marriage unless some contrary is proved.[14]
Live-in relationship, nowadays, has become a part of modern society it has evolved from the west and now has grasped the Indian society too. Live-in relation unlike marriage does not create any legal bond between the two people. It is just like a walk in and walks out a relationship where the other person can leave without any justification.
In the case of Alok Kumar v. State[15], it was observed by the court that a live-in relationship is a walk-in and walk out the type of relationship. In this case, Justice S.N. Dhingra noted that” There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have a 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”.
Later on in the year 2010, an approach was taken in the view of a Live-in relationship where the Supreme Court held that, If a live-in relationship is continued for a long time then this relationship cannot be termed as a walk-in and a walkout type of relationship. There would be a presumption of marriage in this case.[16]
Malimath Committee report of 2003 on reform of the criminal justice system suggested that the word “wife” in sec 125 of Cr.P.C should also be extended and should also include women living in a live-in relationship for a considerably long amount of time.[17]
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha[18] , it was held that where a man and a woman live together with the same as a husband and wife, a presumption can be raised as if they are in wedlock. In this case, the court also referred to the Malimath Committee report of 2003 and awarded maintenance to the women. The Supreme Court held that women in a Live-in relationship are equally entitled to the claims and relief as it is given to a legally wedded wife.[19]
But now it’s a matter of debate which has concluded that the word “wife” in sec 125 of Cr.P.C includes a divorced wife and as a matter of fact, in a live-in relationship a woman is not divorced so this sec cannot apply to provide maintenance to women under a live-in relationship.
Conclusion
It has been rightly said in the case of Alok Kumar v. State[20]that a live-in relationship is a walk-in and walk out the type of relationship. There are no legal strings attached to the other partner. A live-in partner can very well mutually separate from one another if they wish to do so. The problem arises when this separation is not mutual where one partner wishes to part away whereas the other decides to stay. This is the case where the law comes into the picture. The law needs to decide the status of children born out of those relations. Whether the child would be entitled to the property or not, whether the child is to get maintenance from their parents, and if yes then who will be bound to maintain and who would be entitled to take the custody of the child after separation is a question of law.
The judiciary has answered most of the questions but one more question arises is whether we need laws to govern these relationships? The researcher presumes that as far as the concept of live-in relationship is concerned, people go for these relationships only to avoid the legal binding of marriage. If a live-in relationship would also be governed by the laws then what would be the difference between marriage and a Live-in relationship. The Supreme Court has held that if live-in relation continues for a considerable long period then it would be considered as a marriage.[21] The question which exists is, “why the law wants the live-in and marriage to merge?”
The researcher is of the view that a live-in relationship is a personal choice of a person and also the constitution of India provides its people with some fundamental rights. Article 21 gives Protection of life and personal liberty it states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[22] Taking this article into account a person has some personal liberty attached to his life. He can live his life as per his wish subjected to some restrictions that it should not interfere with some other person's liberty. As far as the Live-in relationship is concerned it has evolved through the need and time of people. In the Metropolitan cities where living life is way expensive, this relationship allows the couple to share the burden. The main concern of the state should be to make proper laws to govern those relationships. As the law is the mirror of society, it should be made as per the need of society.