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Present scenario of live in relationship And Its judicial Findings An Analysis

India has witnessed a drastic change in the way the present generations perceive their relationships. The taboo that used to haunt partners in live-in relationships has also started to fade away with society opening up about the idea of pre-marital sex and live-in relationships.

This improved mindset is a result of freedom, privacy, profession, education and also globalisation. Moreover, for most of us – it is not an escape from responsibilities but a way to understand our partner and to check if at all we are compatibility.

A live-in relationship not only gives the couple an opportunity to know the partner without having to engage into a legally binding relationship but also excludes the chaos of family drama and lengthy court procedures in case the couple decides to break up.

It involves continuous cohabitation between the partners without any responsibilities or obligations towards one another. There is no law tying them together, and consequently, either of the partners can walk out of the relationship, as and when they want.

How is live in relationship defined under Indian law?

The Supreme Court in Indra Sharma v/s V.K.V.Sharma {1} defined live-in relationships in five distinct ways- A domestic cohabitation between an adult unmarried male and an adult unmarried female. This is the simplest kind of relationship.

A domestic cohabitation between a married man and an adult unmarried woman (entered mutually). A domestic cohabitation between an adult unmarried man and a married woman (entered mutually).

These two are the most complex grey areas of acknowledging live-in relationship. Furthermore, the second type of relationship mentioned is adultery which is punishable under Indian Penal Code.

A domestic cohabitation between an unmarried adult female and a married male entered unknowingly is punishable under Indian Penal Code as well. A domestic cohabitation between two homosexual partners, which cannot lead to a marital relationship in India as no marital laws against homosexuality are defined yet.

In most western countries there is a broader understanding of the idea of a couple in a relationship, which is evident in their legal recognition of prenuptial agreements, civil and domestic union of couples etc. However, it is not the same in India.

The Apex Court in so many of its judgments has stated that if a man and a woman “lived like husband and wife” in a long-term relationship and even had children, the judiciary would presume that the two were married and same laws would be applicable.

In another instance, the Apex court even declared that for a man and a woman in love to live together is part of the right to life and not a “criminal offence”. Therefore, live-in relationships are legal in India.

Difference between marriage and live-in relationship

Marriage:

The institution of marriage is a socially and ritually accepted union and a contract between spouses that institutes rights and legal obligations towards each other. In light of the diverse culture in India, separate laws have been formulated which lay down the procedure and guidelines for proper execution of marriages in various religions. Marriage laws have been created to provide remedies for disputes arising out of marriage in different religions.

In addition to the law of maintenance under personal laws, Section-125 of the Code of Criminal Procedure also provides for maintenance if the wife is cannot maintain herself. Women can also seek extra-maintenance apart from the maintenance received by her under any other law as per Section- 20 (1) (d) of the Protection of Women from Domestic Violence Act.

Live-in relationship:

There is no law binding the partners together, and subsequently, either of the partners can walk out of the relationship, as and when they wish to do so.

There is no legal definition of live-in relationship, and therefore, the legal status of such type of relations is also unconfirmed. The right to maintenance in a live-in relationship is decided by the court by the Domestic Violence Act and the individual facts of the case.

Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.

Protection against exploitation of women and children in live-in relationships

Maintenance of lady partner

The right of maintenance is available to wives under all personal laws in India. However, none of the religions recognizes and accept live-in relationships. Since no remedy is granted to women involved in a live-in relationship, Indian Courts have widened the scope of maintenance under the Criminal Procedure Code.

Therefore, Section- 125 of the Criminal Procedure Code has been provided to give a legal right of maintenance to lady partners in or out of a marriage.

Domestic Violence

The Domestic Violence Act was enforced as an attempt to protect women from abusive (physical, mental, verbal or economic) marital relationships. However, as per Section- 2 (f), it not only applies to a married couple, but also to a relationship in nature of marriage.

Dimple jatin khanna v/s Anita Advani and Anr{2}

Where the petitioner enters into relationships with a man who is already married which fact was in the knowledge of petitioner , cannot be held that the relationship was in the nature of marriage. Such petitioners not entitled to reliefs under DV ACT.
Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.

D.Velusamy v/s D. Patchaiam Jindal {3}

The judgment determined certain per-requisites for a live in relationship to be considered valid. It provides that The couple must hold themselves out to society as being akin to spouses and must be of legal age to marry or qualified to enter into a legal marriage, including being unmarried. It was stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The court held that not all relationships will amount to a relationship in the nature of marriage and get the benefit of the Domestic Violence Act. It further clarified that, if a man keeps women as a servant and maintains her financially and uses mainly for sexual purposes, such relationship would not be considered as marriage in the court of law. Therefore to get such benefit the conditions mentioned by the Court must be satisfied, and has to be proved by evidence.

Here, the court relied on the concept of ‘palimony’ which was used in the USA for grant of maintenance in live in relationships. The concept of palimony was derived in the case of Marvin vs. Marvin, a landmark judgment of the California Superior Court.

Children out of marriage

Partners living together for a long time may have kids together. However, live-in couples are not allowed to adopt kids as per the Guidelines Governing the Adoption of Children as notified by the Central Adoption Resource Authority. In case of dispute with respect to custody of the child, you may also consult a Child Custody Lawyer.

Legitimacy and inheritance rights of children

Inheritance rights of children are mentioned in Section- 16 of the Hindu Marriage Act, where the legal status of legitimacy is provided even to illegitimate children (those born out of marriage) for the sole purpose of inheritance. Therefore, inheritance rights have been granted to children born out of a live-in relationship. These rights are available in both ancestral and self-bought properties.

Custody and maintenance rights of children
The position on the maintenance rights of children out of marriage varies in personal marriage laws. For instance, under the Hindu Law the father has to maintain the child, whereas under the Muslim Law the father has been absolved of such an obligation.

However, under Section- 125 of the Criminal Procedure Code, remedy is available for children who are unable to claim maintenance under personal laws. Section - 125 provides a legal right of maintenance to wives, children.

Deepak Gajanan v/s state of maharastra{4}

A women marrying a person already married which was in her knowledge , such women not entitled to any relief under DV ACT although two children were born to her .The said relationship in the nature of marriage . Children of such a marriage may be entitled relief u /s 25 Cr.PC

Conclusion
Live-in relationship has always been the focus of debates as it possess threats to our basic societal framework. It is not considered as an offense as there is no law until the date that prohibits this kind of relationship. In order to bring justice to those female who are the victims of live-in relationships Indian judiciary took a step, brought interpretations and made such arrangements valid. Still India has not legalized it, legalism means having special legislation for it. As of now, there is no legislation or statute that specifically governs matters related to succession, maintenance, guardianship in regards to live-in relationships.

However, for Protection of Women from Domestic Violence Act, 2005 legislature has acknowledged the right of partners living in a live-in relationship to get protection. It has recognized live-in relationships through various judgments so that individuals of the relationships can be protected from abuse.

At the same time, courts frequently declined to make any kind of positive steps towards legalizing such practice by allowing any compulsory agreements between unmarried couples as this could conflict with the general society strategy.

It ends up plainly obvious that the Indian judiciary is not prepared to treat all kind of living relations as akin to marriage. Only stable and reasonably long period of relations between the couples are given the advantage of the 2005 Act.

It is the duty of the judiciary to ensure that law has to accommodate with the changing scenario of the society. Though courts through various judgments and case laws attempted to get a clear picture regarding the status of live-in relationships, yet it remains unclear on various aspects, where there is an urgent need for having different sets of rules and regulation and codification with regards to such kind of relationship.

In the author’s view, there must be a separate statute dealing with this current issue so that rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship should be protected. Not all live-in relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time, there should also be awareness among live-in partners regarding the legal consequences arising out of such living arrangement.

End Notes:
  1. 2014(1)RCR(crl)179( SC)
  2. 2016 (1)RCH (crl) 530 (BOM)
  3. 2010 (4) RCR (Crl) 746(SC)
  4. 2015( 3)RCR(crl )1002(BOM)

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