By: Jahnavi Laungani | 07-06-2017 09:19:05
Live in relationships invite a lot of attention from society. When it comes to personal life choices there are always moral judgments that follow. But, the fact is that in a democratic set up there is no right or wrong way to live, unless of course it is causing harm to another.
At one time the choice to "live-in" with a life partner was equated with "living in sin", but today not everyone can conform to the strict impositions of marriage. A long term live in relationship can bring with it all the trappings of a marriage, even without the formal solemnization of the relationship in custom and usage. The law exists to protect our rights and interests. So, even though living in is not equal to a marriage, the law makers in India have taken a very positive and concrete step forward in giving legal protection to those involved in a live in relationships without being married.
Since live in relationships and their consequences are a personal matter, there is a lot of subjectivity involved in construing their impact and relevance in the eyes of the law. To make matters simpler, the legislators and the judiciary have set out certain qualifications or criteria to make the legal implications of live-in relationships clear.
In Lata Singh v. State of U.P. and Anr.1 it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of 'adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes".
On 28 April, 2010, the Supreme Court of India in the case of Khushboo v. Kanniammal and Anr.2 observed that “Morality and Criminality are not co-extensive.” If a man and a woman in love decide to live together as a couple, it is well within their right to life and by no means can it be deemed a criminal offence. Of course, this verdict was riddled with controversy, as for most Indians marriage is an institution that must be respected and kept. In spite of this mindset, the Hon'ble Supreme Court passed this path breaking decision, giving legitimacy and respect to couples who were in a live in arrangement.
This landmark judgment was passed in the petition filed by a famous South Indian actress, Khusboo, to quash more than 20 FIRs filed against her after she expressed her personal opinion, in September 2005, 'India Today' a fortnightly news magazine. In that article she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. Her detractors argued that she endorsed pre-marital sex and her statement was offensive. As it so happened their case failed to convince the apex court.
A live in relation or cohabitation, is an arrangement whereby two people agree to live together on a permanent or long term basis in a sexually and/or emotionally intimate relationship. Basically, a live-in relationship is one where unmarried couples choose to live under the same roof.
While such living relationships are quite the norm in the Western World, our country is still getting used to this way of life. There are parts of the country particularly the urban cosmopolitan parts where such cohabitation is becoming more common but overall in India, this way of life is scorned upon as a total taboo.
There are various reasons for why couples choose to cohabitate without marriage. For instance, some people have their own personal reasons to feel that pros of choosing to live in with a partner before taking the plunge into marriage, if at all, far outweighs the cons. By living in with someone it is easy to evaluate compatibility and work around matters such as financial decisions and other responsibilities in a practical way. Further, it is much easier for non-recognised relationships such as LGBT couples to live in than to marry.
Some people believe that personal matters of life partners need not be governed by religious, political and/or patriarchal institutions. Also, the increase in the number of people who feel that they do not need a legal certification to validate their love, has led to an increase in the recognition of live-in relationships as common law marriage.
In the last few years, the law makers have realized the need to protect the rights and interests, especially of women in live-in relationships, who are at the risk of facing different kinds and degrees of abuse. This is despite the fact that they may be performing all the functions and duties of a wife.
A note worthy Judgment in context of live-in relationships, was passed in the case of Payal Sharma alias Kamla Sharma alias Payal Katara v. Superintendent, Nari Niketan, Kalindri Vihar, Agra and others3, wherein the Allahabad High Court observed that “she is a major and she has the right to go anywhere and live with anyone. In our opinion a man and a woman, even without getting married can live together if they wish. This may be regarded immoral by society but it is not illegal. There is a difference between law and morality.”
In another case, S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and others4, the Hon'ble Supreme Court ruled that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate. So if an un-married couple lives together for a prolonged period of time, they can be considered as man and wife. Also, their child, if any, would be legitimate.
One epic move the Government made was to extend the economic rights of women in live in relationships. This change was introduced under the Protection of Women from Domestic Violence Act 2005. Also, the Maharashtra State Government in 2008 granted a proposal making women involved in cohabitation for a “reasonable period” to have the status of a wife. Soon thereafter, the Ministry of Women and Child Development with the National Commission of Woman passed a law to include female live in partners in the definition of wife as described in the Section 125 of Code of Criminal Procedure, 1973. In this way, the object was to harmonize other relevant laws with the changes introduced in the Protection of Women from Domestic Violence Act, 2005.
It is fortunate that in India, in spite of the prevalence of moral policing, those in power realize that for law to be relevant it must not be stagnant. In Uday Gupta v. Aysha and Anr.5, the Hon'ble Supreme Court reiterated the observations made by the High Court that based on the facts of that case “if a man and woman are living together for a long time as husband and wife, though never married, there would be a presumption of marriage and their children could not be called to be illegitimate”.
Section 16 of The Hindu Marriage Act, 1955, discusses legitimacy of children of void or voidable marriages. In effect it states that even though a marriage is null and void, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
Also, it states that where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. So, such children would effectively and legally have all the same rights in law as a child born out of a marriage between the parents.
Democracy represents freedom and it is quite satisfactory that our laws and law makers uphold constitutional rights such as freedom of life and liberty. One’s duty to uphold the values of society should not come at the cost of personal liberties. The law must always do the act of balancing things out so that no member of society is left deprived of their rights.
These changes in the law as mentioned above in respect to live in relationships have not only given legitimacy to the choice to cohabitate without marriage but have also protected the parties to such relationships in case of abuse and injustice. Even children of such relationships are no longer treated as social misfits and are recognised as the legal children of their parents. All these are positive changes that are ushering in a new age of acceptance.
1 Lata Singh v. State of U.P. and Anr. MANU/SC/2960/2006
2 Khushboo v. Kanniammal and Anr. [MANU/SC/0310/2010]
3 Payal Sharma alias Kamla Sharma alias Payal Katara v. Superintendent, Nari Niketan, Kalindri Vihar, Agra and others, MANU/UP/0288/2001
4 S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and others, MANU/SC/0042/1994
5 Uday Gupta v. Aysha and Anr., MANU/SC/0344/2014