Changing Dimensions of Hindu Marriage
Marriage as an institution is very old and popular in most parts of the world.
Marriage is very well accepted and supported by the society as it involves many
religious rituals which strengthen the family system. It leads to sustain a
longer relationship unless and until it is annulled either by the husband or the
wife. The institution of a marriage is an oldest social institution and provides
a foundation on which whole super structure of civilization and prosperity
is built. It is an unconditional sacrament in which husband and wife are
submissive to each other. Marriage is defined as the "legal status, condition,
or relation of one man and one woman united in law for life, or until divorced,
for the discharge to each other and the community of the duties legally
incumbent on those whose association is founded on the distinction of sex."
But in the present milieu the meaning of this relationship has changed
drastically. Marriage (besides blood relationships) is not the only relationship
that exists between men and women. Such other relationships between men and
women can be beautiful, complex and difficult. What view society forms about a
particular relationship is generally reflected in its laws. Law has been
playing vital role in social change. Society is constituted of individuals. Law
and society try to regulate the conduct of an individual.
of marriage being foundation of the interest of the society is well protected by
keeping the foundation of institution of marriage strong. Since the matter
relating to marriage falls within the purview of personal law, each religion in
India is having its own law relating to marriage along with other family
matters. As we are observing changing living patterns in the society, law has to
respond properly keeping in view the societal and constitutional values in its
mind. India has strong cultural roots that focus purely on morality and social
ethics. But things are changing now. The definition of marriage given under
different personal laws does not carry that much influence in the eyes of young
generation, as a new concept called live-in-relationship has been introduced in
the society by them.
Though Indian society has not accepted such relationship,
but the problem pertaining to certain aspects like the status of the children
born out of such relationship, share in property, violence against women who are
into such relationship, stands unanswered. Our Apex court’s decisions pertaining
to maintenance, share in property to children born out of such relationship, are
in par with the decision given in case of marriage. The matter is also true in
case of homosexual marriages as the 21st century is also witnessing
homosexuality, which is making strides towards equal recognition of their
families. All these changes are having serious ramification on the institution
of marriage and try to change the customary concept of marriage. Hence, it would
be abomination to hold such relationship in par with marriage and every effort
should be made to see that recognition of such unions should not cause
unnecessary upheaval in the set societal norms.
Based on Doctrinal method this paper is made with the objective to analyse the
position of live in relationship and same sex marriage in the present times and
to check its legality.
Cohabitation is defined as an intimate sexual union between two unmarried
partners who share the same living quarter for a sustained period of time
(Bacharach et al., 2000). The rise in cohabitation represents one of the most
significant changes in union formation patterns in many developed and developing
economies. The increase in cohabitation has occurred alongside other, related,
major demographic shifts, including rising levels of divorce and delay in entry
into marriage and childbearing (Coast, 2009).
The first book referred is by Ruth Vanita and Saleem kidwai titled “Same – Sex
Love in India: A Literary History”. For a country like India, that is so steeped
in tradition and heritage, it is almost implausible to believe that India has an
equally strong and deep rooted connection to homosexuality. This book also
breaks the stereotype that same-sex love was an invention of the Western culture
and was brought to India only in the 19th century. Through these readings of
ancient texts, I could understand that same-sex love was an inherent part of the
lifestyle of Indians from the ancient times. I also appreciate that the editors
of the book have personally translated all the pieces of ancient literature.
This literature is exhaustive in giving insight and establishing existence of
homosexuality in Indian culture. But apart from historical value, it gives no
thought on all legal and psychological aspect of homosexuality in India.
“Law Like Love: Queer Perspectives on Law” by Arvind Narain and Alok Gupta is a
collection of research papers in a book form. This book contains various
articles written by various authors highlighting LGBT issue in the context of
Delhi High Court Judgment of 2009. Some playful, some critical and others
reflective and irreverent, this unique collection of pieces brings the life,
structures and institutions of law alive and shine with relevance in the
Live In Relationship And Marriage
Live-in relation i.e. cohabitation is an arrangement whereby two people decide
to live together on a long-term or permanent basis in an emotionally and/or
sexually intimate relationship. The term is most frequently applied to couples
who are not married. The legal definition of live in relationship is “an
arrangement of living under which the couple which is unmarried lives together
to conduct a long-going relationship similarly as in marriage.”
It is an informal arrangement between intended parties although some countries
allow registration of such arrangements between the couples.
This form of
relationship does not thrust the typical responsibilities of a married life on
the individuals living together. The foundation of live in relationship is
individual freedom. People generally choose to enter into such consensual
arrangements either to test compatibility before marriage or if they are unable
to legally marry or simply because it does not involve the hassles of a formal
marriage. It may also be that couples in live-in relationship see no benefit or
value offered by the institution of marriage or that their financial situation
prevents them from being married on account of marriage expenses.
the reason it is quite clear that even in a traditional society, where the
institution of marriage is considered to be “sacred” an increasing number of
couples choose a live-in relationship, sometimes even as a permanent arrangement
over marriage. In such situations, various social, economic and legal issues
have arisen and continue to do so.
Persons may find themselves in live-in relationships either “by choice” or “by
circumstance”. Relationships “by choice” are those where the partners live
together. It may exist even where one or both of the partners are already
legally married to another person and yet engage in such a relationship as a
matter of preference. Relationship in this category is wholly voluntary.
are live-in partners who are consciously choosing to live as “live-in”. They do
not want a status of formal marriage, they are happy to continue to live as
live-in partners only. On the other hand, relationship “by circumstance” occur
where one or both partners are under the mistaken assumption that a valid
marriage exists between them or where parties thought they had validly divorced
from persons married or cannot afford to be married again due to economic
reasons. This may occur in case where the man or woman was led to believe that
the man was unmarried, divorced or widowed and married him. If the man and woman
followed all rituals of the marriage but already had a wife or husband living at
such time from whom, he or she had not divorced as yet, this marriage will not
be recognized in law.
The relationship that subsisted thus becomes in the nature
of a live-in. Live-in-relationship is non-marital relationship prevailing in
West with the name of common law marriages, informal marriages or marriage by
habit, deemed marriages etc. It is a form of interpersonal status which is
legally recognized in some jurisdictions as a marriage even though no legally
recognized marriage ceremony is performed or civil marriage contract is entered
into or the marriage registered in a civil registry. These deemed marriages are
legally binding in some countries but have no legal consequences in others.
Legal Facet of Live-in-Relation: A Judicial AnalysisThe practice of men and women living together without being in a relationship
formal marriage has been in practice for a long time. It was not at
all considered “immoral” for men to have live-in relationships with women
outside their marriage. Concubines (avarudh stris) were kept by married
men. In feudal society sexual relationship between man and woman was totally
tabooed and regarded with disgust and horror. Following Independence, as society
matured, bigamy was outlawed and women became more aware of their rights.
This practice is now illegal though this has not prevented people from violating this law. The
last few decades have however seen the advent of a new form of “live-ins”, where
men and women cohabit together without entering into formal marriage even though
there is no legal hurdle preventing them from doing so. The traditional
Indian society however disapproved of such living in arrangements, for several
reasons. First, society revered the institution of marriage. Secondly if a woman
was financially dependent on the man, the instability of such a relationship
created a subservient status for the woman.
Till recently and even now in small
towns and cities, there is much social criticism and stigma attached to such
relationships, forcing them to remain largely secretive.
No law at present deal with the concept of live-in-relationships
and their legality in India. None of the statutes dealing with succession or
marriage such as the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 or
the Indian Succession Act, 1925 recognise live-in relationship directly. Under
Section 17 of the Hindu Marriage Act, children born out of such relationships
are considered to be legitimate and have been granted the right to succession.
In India the judicial attitude is somewhat in favour of holding such
relationship at par with marriage and granting all such rights that are
available to married couples.
Legality of Marriage and Live-in Relationship:At present in India, persons entering into marriage are recognised and governed
either by their personal laws or by civil law such as the Special Marriage Act,
1954 while marriage between Hindus is considered being a samakara (Sacrament),
whereas under Muslim, Christian, Jewish and Parsi laws marriages are
contracts. Marriage solemnized and /or registered under the provisions of the
Special Marriage Act, 1954 are a civil contract. In case of Hindus certain
ceremonies are required to be performed to solemnise a marriage as provided
under Section 7 of the Hindu Marriage Act, 1955.
As the Hindu social system
stands today, socio- religious norms are clear that a married daughter changes
her surname and gotra after marriage and acquires the gotra and surname of the
family of her marriage whereas females in live- in partners have no means of
recognition as such. The concept of live-in relationship, the freedoms and
liberty it offers to partners and most importantly the fact that an increasing
number of urban couples in India are choosing to live-in rather than marry is a
new development that has turned the traditional Indian marriage on its head. In
other countries like the United Kingdom and the United States of America,
live-in partners may register themselves in a ‘domestic register’ or formally
enter into a ‘cohabitation contract,’ after which they receive legal recognition
as domestic partners.
However in India the law is yet to provide for such
recognition. As a result women in live-in relationships are not recognised by
their partner’s surname, for any legal or financial matters including opening a
bank account, submission of income tax return, applying for loans, etc. They
retain their identity as an individual and are not recognised as a domestic
partner. Consequently live in couples can separate informally without any formal
divorce or the intervention of a court. However, the law does have a concept
called “presumption of marriage” which could be used to recognise such
In Gurubasawwa v. Irawwa, it was held that a presumption is
available if a man and woman are living under the same roof and cohabit for a
number of years. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy,  it was
held that a continuous and prolonged cohabitation raises a presumption in favour
of marriage and against concubine. This is in accordance with Section 50 and
Section 114 of the Indian Evidence Act, 1872.
In S.P.S Balasubramanyam v. Suruttayan, 1992 the Supreme Court held that if a man and woman are living under the
same roof and cohabiting for a number of years, there will be presumption under
section 114 of the Indian Evidence Act that they live as husband and wife
and the children born to them will not be illegitimate.
Again in Tulsa v. Durghatiya, the
Supreme Court held that when a man and woman live together for a long spell
there would be a presumption in favour of their having been married, unless
rebutted by convincing evidence. This decision suggests that the law treats long
live-in relationships as good as marriages. This decision was challenged by
claimants to the property rights of the husband and wife as opposed to their
children. The Courts could subsequently interpret live-in relations to mean
“living together as husband and wife‟ to exclude those who enter into a live-in
relationship “by choice” without intending to be married is still a matter of
doubt and debate.
Maintenance Rights of Live-In Partners:
There are uniform provisions for maintenance available to all married persons of
any religion under Section 125 of the Code of Criminal Procedure, 1973. The
need to include live in female partners for the right of maintenance under
Section 125 of Criminal Procedure Code, 1973 was supported by the judgment in Abhijit
Bhikaseth Auti v. State of Maharashtra and Others. In this case, the Supreme
Court observed that it is not necessary for woman to strictly establish the
marriage to claim maintenance under sec. 125 of CrPC. A woman living in
relationship may also claim maintenance under Sec.125 CrPC.
In the case of Chanmuniya v. Virendra Kumar
Singh Kushwaha , the Supreme Court observed that “in those cases where a
man, who lived with a woman for a long time and even though they may not have
undergone legal necessities of a valid marriage, should be made liable to pay
the woman maintenance if he deserts her. The man should not be allowed to
benefit from the legal loopholes by enjoying the advantages of a de facto
marriage without undertaking the duties and obligations.” Court also wanted to
interpret the meaning of “wife” broadly under Section 125 of CrPC. for claim of
maintenance, so that even women in live-in relationship can claim maintenance.
The Maharashtra Government in October 2008 approved a proposal suggesting a
woman involved in such a relationship for a 'reasonable period' should get
status of a wife. The Malimath committee had also suggested that the word
'wife' under CrPC be amended to include a 'woman living with the man like his
wife' which means the woman would also be entitled to alimony. The Malimath
Committee and the Law Commission of India also suggested that if a woman has
been in a live-in relationship for considerably long time, she ought to enjoy
the legal status as given to wife. However, recently it was observed that a
divorced wife is treated as a wife in the context of Section 125 of CrPC but the
live in partners cannot get divorced, and hence cannot claim maintenance under
Section 125 of CrPC.
Inheritance Rights of Live-In Partners:Hindu law gives the widow of a male Hindu the status
of a class I heir under
section 8 of the Hindu Succession Act,1956 giving her right to one share with
absolute ownership over her deceased husband’s property, if he dies intestate
under section 10 of the Hindu Succession Act, 1956. Likewise, under section
15(a) of the same Act of 1956, a husband would have the right to inherit a share
of his wife’s property upon her death.
In Muslim law, a widow having children is
entitled to 1/8th of her deceased husband's property and 1/4th of it, if they
are childless. A husband would similarly inherit 3/4th of his wife’s property in
case of the former and half otherwise, upon his wife’s death. But partners in a
live-in relationship do not enjoy an automatic right of inheritance to the
property of their partner. The Hindu Succession Act, 1956 does not specify
succession rights to even a mistress living with a male Hindu.
Supreme Court in Vidhyadhari v. Sukhrana Bai, (2008) 2SCC 238 created a hope
for persons living in together as husband and wife by providing that those who
have been in a live-in relationship for a reasonably long period of time can
receive property in inheritance from a live-in partner. Similarly in Revanasiddappa v. Mallikarjun, property
of a Hindu male, upon his death (intestate), was given to a woman with whom he
enjoyed a live-in relationship, even though he had a legally wedded wife alive.
Rights of Children Born Out of Live-In Relation:
The child born through a Live-in relationship enjoys the same rights of
succession and inheritance as are enjoyed by a child through a married couple
under the Hindu Marriage Act. Notwithstanding that marriage is null and void
under section 11, 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, 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. Thus in order to keep up
the spirits of law in the righteous direction and to subside the social evils
wherein illegitimate child was denied his rights the Hindu Marriage Act has
granted legitimacy to children born through marriages which are not valid. Hence
such definition brings within itself the ambit of live-in relationships and
children born through such relations.
While still the other laws have not guaranteed such legality to children born
through such relationships and therefore the status is dwindling for legal
status of children which results in extensive misuse of the provisions and still
escape liability. Hence the legality of a child is doubtful in other laws and
has to be proved beyond reasonable doubt. In Vidhyadhari v. Sukhrana
Bai, the Supreme Court granted the inheritance right to the four
children born from the woman with whom the man shared a live-in relationship,
calling them ‘his legal heirs.’ It was further held that a child born out of
a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case
of an undivided joint Hindu family) and can
only claim a share in the parents’ self -acquired property.
thus ensured that no child born from a live-in relationship of a reasonable
period may be denied their inheritance. In Madan Mohan Singh & Ors v. Rajni Kant
& Anr., once again the debate on legality of the live-in relationship as
well as legitimacy of child born out of such relationship was questioned. The
Court while dismissing the appeal in the property dispute held that there is a
presumption of marriage between those who are in live-in relationship for a long
time and this cannot be termed as 'walking-in and walking-out' relationship. The
Hon‟ble Supreme Court accepted the principle that a long term of cohabitation in
a live-in relationship makes it equivalent to a valid marital relationship. The
Court went further on the issue and stated that the children born out of
live-in-relationship are legitimate and they are entitled to property except
right in coparcenary property.
Thus all these decisions show that live-in-relationship is in par with the
marriage. Hence the requirement of marriage as laid down in our personal laws,
may be dispensed for various matters like as to presumption of marriage, seeking
maintenance and alimony, legitimacy of children, then the property rights to
children born out of such relationship etc. Marriage whether sacramental or
contract was foundation of morality but the above decisions does put us into
dilemma as to what is marriage.
Homosexuality And MarriageSame-sex marriage (also known as gay marriage) is marriage between two persons
of the same biological sex or gender identity. Supporters of legal recognition
for same-sex marriage typically refer to such recognition as marriage
equality. The recognition of such marriages is a civil rights, political,
social, moral, and religious issue in many nations. The introduction of same-sex
marriages has been varied by jurisdiction, resulting from legislative changes to
marriage laws as well as court challenges based on constitutional guarantees of
equality. Conflicts arise over the issue whether same-sex couples should be
allowed to enter into marriage, be required to use a different status (such as a
civil union, which either grant equal rights as marriage or limited rights in
comparison to marriage), or not have any such rights. In many countries
homosexual marriages have been legalized for the reason that human rights
mandate that all should be treated equally.
One argument in support of same-sex
marriage is that denying same-sex couples legal access to marriage and all of
its attendant benefits represents discrimination based on sexual orientation.
Another argument in support of same-sex marriage is the assertion that
financial, psychological and physical well-being are enhanced by marriage,
and that children of same-sex couples benefit from being raised by two parents
within a legally recognized union supported by society's institutions. The other
arguments for same-sex marriage are based upon what is regarded as a universal
human rights issue, mental and physical health concerns, equality before the
Whatever kind of human rights we speak; universally all developed countries
have accepted marriage and cohabitation of homosexuals. In India acceptance of
such marriage will be difficult as our culture and tradition do not accept such
relationships. The recent development of decriminalizing homosexuality in India
has raised many eyebrows. It will lead to decrease in the number of traditional
marriages and this, in turn, will undermine the whole institution of the family.
The decision of Delhi High Court Naz Foundation v. Government of NCT of Delhi
and Others, where the petitioner submitted that right to privacy is implicit
in the right to life and liberty and guaranteed to the citizens, in order to be
meaningful, the pursuit of happiness encompassed within the concepts of privacy,
human dignity, individual autonomy and the human need for an intimate personal
sphere require that privacy dignity claim concerning private, consensual, sexual
relations are also afforded protection within the ambit of the said fundamental
right to life and liberty given under Article 21.
Hence, homosexuality does not
come within the ambit of Article 21 as it is not pursuit human need and is not
dignified in the eyes of Indian society. Bu on December 11, 2013, the Supreme
Court's two member bench (Justices G. S. Singhvi and S. J. Mukhopadhaya)
overturned the decision of the Delhi High Court. It said that the 2009 order of
the High Court is "constitutionally unsustainable as only Parliament can change
a law, not courts". It is submitted here that the SC took a very conservative
approach on the issue and the judgment needs to be reconsidered. Under Hindu
law, marriage with a eunuch is voidable marriage. “Obviously, a marriage between
two males or two females is void”. In an English case, Corbett v. Corbett, a
marriage between a male and another person who was registered as male at birth
had been solemnized and a question as to the validity of the marriage arose, and
was held to be void. With the pass of time, western countries have been
legalizing such marriages.
In Parmaswami v. Somathammal, while deciding
marriage with eunuch, Madras High Court held that marriage with eunuch or
between eunuchs is voidable, but marriage between two persons of the same sex is
void ab initio. Under Muslim law the provisions are clear that the marriage can
be solemnized only between people of different sex. Also the Supreme Court in Navtej
Singh Johar v. Union of India, said that it is presently not possible
because the majoritarian opinion in Indian society is highly conservative and
hence strongly against it. No Indian politician will dare to will openly support
it for fear of losing elections. In fact, the majority opinion in India is
probably against gay sex, but the Supreme Court could rely on Articles 14 (the
equality provision) and 21 (the right to life and liberty, which has been
judicially interpreted as the right to a life with dignity) to partially strike
down Section 377 of the Indian Penal Code.
Marriage is a culturally sanctioned union between two or more people
that establishes certain rights and
obligations between the spouses and their children, and between them and their in-laws and with the whole World. The
definition of marriage varies according to different cultures, but it is
principally an institution in which interpersonal relationships, usually
intimate and sexual, are acknowledged. When defined broadly, marriage is
considered a cultural universal. Marriage is an institution which can join
together people's lives in a variety of emotional and economic ways.
Cohabitation is not a pre-requisite of marriage. To consider live-in
relationship and homosexuality legality would be as anathema by those who view
institution of marriage as relevant and absolutely essential to hold together
the social fabric today. Our country is known for its rich culture and heritage.
Every effort should be made to stabilize the institution of marriage so that our
future generation can stabilize their lives and wind it with morality. Their
offspring’s would get social status. It is for the youth to build a strong
nation and maintain the rich decorum of our culture and heritage.
And if live in
relationship and homosexual marriages are legalized, then the very definition of
marriage put forth in our personal laws needs to be amended or there may be no
requirement to define marriage at all. It is to the legislature and the courts
to look into the matter seriously and protect the institution of marriage and in
the long run the institution of family which is the very basis of sound legal
· The Hindu Marriage Act, 1955
· The Hindu Adoption And Maintenance Act, 1956
· The Hindu Successtion Act
· The Indian Penal Code, 1860
· The Constitution of India, 1950
· The Indian Evidence Act, 1872
· Code of Criminal Procedure, 1973
Bahadur, KP, A History of Indian Civilization, Vol I (New Delhi: Ess Ess
Diwan, Paras, Law of Marriage and Divorce (Delhi: Universal Publishing Co.,
Jaiswal Puja, “Live-in relationship and Law”, Nyayadeep, Vol XIII, Issue 3 (July
Kumar, Vijender, “Live-in Relationship: Impact on Marriage and Family
Institutions”, Supreme Court Cases Journal, Vol.4 (2012)
Sharma, G.L. & Dr. Y.K. Sharma “Live-in Relationship- A Curse or Need of the
Hour,” International Referred Research Journal, Vol. III, Issue 25 (October
 Black's Law Dictionary (9th ed. 2009), available at Westlaw BLACKS
 Black’s Law Dictionary (9th ed. 2009), available at Westlaw BLACKS
 Any marriage between two Hindus solemnized after the commencement of this
Act is void if at the date of such marriage either party had a husband or wife
living; and the provisions of sections 494 and 495 of the Indian Penal Code (45
of 1860), shall apply accordingly.
 ILR 1996 KAR 3615.
 (2005) 2 SCC 244.
 Opinion on relationship, when relevant.—When the Court has to form an
opinion as to the relationship of one person to another, the opinion, expressed
by conduct, as to the existence of such relationship, or any person who, as a
member of the family or otherwise, has special means of knowledge on the
subject, is a relevant fact: Provided that such opinion shall not be sufficient
to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of
1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal
Code (45 of 1860).
 1994 SCC (1) 460.
 Indian Evidence Act, 1872.
 (2008) 4 SCC 520.
 Code of Criminal Procedure, 1973
 AIR 2009 (NOC) 808 (Bom.).
 (2011) 1 SCC 141.
 (2008) 2 SCC 238.
 (2011) 11 SCC 1.
 The Hindu Marriage Act, 1955.
 (2008) 2 SCC 238
 AIR 2010 SC 2933.
 (2009) SCC 5.
 (1970)All ER 83.
 (1969) Mad. 124.
 W.P. (Crl) No. 76 of 2016 D. No. 14961/2016
 The Indian Penal Code, 1860
Law Article in India
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