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Property Rights Of Women In A Live-In Relationship And Laws Relating Thereto

In the last couple of years, India has seen radical changes on different fronts. One of them being the recognition of the live-in relationships or the De Facto Marriages that allows a couple to share emotions and intimacy without the burden of societal norm but this is stigmatized in the Indian society because ever since the Vedic period they have believed that marriages are a sacramental and pure bond between a male and a female.

This had been a constant scrimmage between morality and culture on one end and the single-handedly progressive judgements of the Apex court, on the other end. The Indian society has also grown over the years and is still evolving. Time changes and so do people, they say. But it is still enveloped in its centuries old traditions and taboos. When debates plunge the air if someone spills the words live-in, it is not easy to conclude and take a stand as a population.

We need to remember that our faith and cultural beliefs cannot triumph over the rights of other people. We cannot ask others to be starved of their rights, only to implement our beliefs. However the recent judgment of the Apex court has proved to be a constant reminder that the violation of individual’s right in the name of culture is only an attempt to weaponize culture but such recognition comes without any rights and duties as there are no laws in India that govern live-in relationships.

This paper focuses its study on the legality of live-in relationships while addressing the rights and obligations flowing out of them, specifically focusing on the property rights of women in a live-in relationship and laws relating thereto.

In a country where fresh glitches ascend almost every day, a problem or rather a stigma that has been going on from several years under the skin of India is whether a girl and boy can live together without tying the holy knot of marriage or whether they can stay in a LIVE-IN relationship or not. It’s really depressing that our society is modern and flexible enough to buy the best quality smartphones but not comfortable enough to accept or even understand the live- in relationships. Even the generation that has accepted it, senses a shade of discomfort even in saying the word. It is quite shocking that despite rising levels of literacy and education, the societal prejudicial beliefs do not reduce. Religious and traditional values around the notion of purity seem to be more sacrosanct and valuable than human rights, the right to live or the right to marry by choice. Following the chronological sequence of the Indian society, it can be stated that it is still languishing in the phase of accepting the love marriages or the Gandharva vivah, whole- heartedly.

Therefore, their considering the couples in a live in relationship as aliens or terrorists who revolt in society is typical and not surprising. And if the partner is someone from other religion or caste, the outcome could be deadly! It has been a controversial topic since eternity. The common whys and wherefores being the societal stigma, traditions, casteism or their unwarranted beliefs that marriages are made in heaven and only parents can arrange it or practical reasons owing to the diversity of the country- to avoid cultural clashes between different communities and religious people and disintegration of families.

It is now declared by the judiciary that live in relationships are not an offence and it is an unfettered right of a major to stay in a live-in relationship even though it may not be palatable to the orthodox section of the society. However, there are some facets involved in this regarding which we haven’t found a solution yet. One of the sensitive zone being that staying in a live-in relationship might not affect the character of the boy that much because our society is built in a way that customarily pronounces the girl as guilty in the society-court which is based solely upon the principles of patriarchy and backed by taboos or traditions as precedents.

The legal definition of live in relationship can be:
an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage.
As Savigny and Montesque also stated that law changes with the changing needs of the society, we can observe that in some parts of world, these types of relationships are valid but some countries are very strict to accept this concept. Whereas in India, it was given a green signal lately through the progressive approach of the honorable Supreme Court in this matter through a series of judgments.

Introduction:
The basic idea of live in relationship is a relationship where two person of homogenous or heterogeneous gender live together under the same roof or a shared household as a couple, with or without any intention to establish permanent relationship in future. It need not necessarily involve any sexual relation. Critics of this trend state that it’s a temporary and an unstable form of relationship. We must acknowledge that this tradition of live in relationship is not something alien. It has been practiced since ages in our society. We can take the examples of the nawabs, princes and wealthy men in India, who not only had several wives but also several live-in relationships, in their zenanas.

The difference between live in relationship during those times and today is that the former was perfectly normal and not considered immoral. Concubines were kept as a source of man’s entertainment and relaxation. Consequently that practice somewhat died out after bigamy being declared as an offence. But as the time passed by, people become more aware of their rights and owing to that, a today’s concept of live in relationship arose. Couples in the relationship associate it with the ideologies of individualism, freedom, and liberty.

The perspective that premarital relationships are expressions of individualism is further propelled by the fact that these experiences take place in the away from home i.e. not immediately under the surveillance of the family. But the hypocrisy of the Indian society is seen in their actions that strongly condemn the idea of a couple staying together without the tag of marriage but bigheadedly accepting the choice of the rulers having several wives. Indian society has preached the idea of holy matrimony since ages, with a view that a girl should remain virgin till she is married. It is due to these social stigma that couples prefer to keep it secretive.

The rationale behind this relationship is different for different cluster or group of people. For some it is not an escape from responsibilities but a way to understand our partner and to check compatibility for marriage. Some may say that they believe that their love does not need any paper certification and marriage is just a wastage of money with full social drama. So, there cannot be a close ended question asking whether it is good or bad.

It merely depends on the person and one's personality on looking at it from different perspectives. However, keeping the social stigma aside, that when living together, the fact that couples in such relationship can understand each other better and also for many other reasons, which cannot be denied. Going by the tradition, the only social union between a man and woman of unrelated nature that shall exist is marriage, which is considered as sacrament, holy and divine but empirically, marriages don’t come with 100% successful guaranty tag.

Applicability Of Various Laws On A Live In Relationship

Live-in relationships, though not socially accepted in India, have never amounted to any offence under any law. In 2013, Supreme Court of India in Indira Sarma vs. V.K.V. Sarma 1 it declared that Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country.

In this landmark judgment, a bench headed by Hon’ble Justice K. S. Radhakrishnan framed guidelines to take along the live in relationship within the expression relationship in the nature of marriage for the protection of women from Domestic Violence Act 2005. Being a new tradition and something which the framers of our constitution couldn’t have thought of, there is no statute directly dealing with live-in relationship.

However, the honorable Supreme Court and other learned courts have taken a progressive approach in reading the provisions related to married woman liberally and interpreting the same to be applicable upon women living in such relationship, provided certain checklists are fulfilled. Law is a social phenomenon and it should change with the changing needs of the society.

Domestic Violence Act:
The Protection of Woman from Domestic Violence Act, 2005 (hereinafter referred to as ‘PWDA’) was legislated as an attempt to protect women living in a shared household from abusive partners and family. The expression ‘shared household’ has been defined under section 2(s) of the PWDV Act and, hence, need no further elaboration. Section 2 (f) of the Act also states that it not only applies to a married couple, but also to a ‘relationship in nature of marriage’.

A woman under PWDV Act is entitled to claim remedy in case of physical, mental, verbal or economic abuse. In addition, remedies are conferred for alienation of woman’s property and restriction from use of facilities to which the abused is entitled. The abused has been granted several rights and protections under this legislation. Therefore it is established that there exist a relationship in nature of marriage the woman in a live in relationship can claim all the remedies available to her.

The honorable Supreme Court has conferred a wider meaning to the words aggrieved person under Section 2(a) of the said Act through the case of D. Veluswamy v. D. Patchaiammal 2 . It also enumerated five ingredients of a live in relationship which are as follows:
  1. Both the parties must behave as husband and wife and are recognized as husband and wife in front of society.
  2. They must be of a valid legal age of marriage.
  3. They should qualify to enter into marriage. Qualification here means none of the partner should have a souse living at the time of entering into relationship.
  4. They must have voluntarily cohabited for a significant period of time.
  5. They must have lived together in a shared household.
The Supreme Court also observed that not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of Domestic Violence Act. Therefore to get such benefit, the conditions mentioned above shall be fulfilled and shall be proved by evidence.

The Criminal Procedure Code, 1973: It is a secular provision and the main objective behind incorporating section 125 Criminal Procedure Code (hereinafter referred to as ‘Crpc’) was to avoid vagrancy and destitution for a wife/minor children/old age parents. It is therefore related to individual and social justice. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife and the same has now been extended by judicial interpretation to partners of a live-in relationship.

A female has been in a live-in relationship for a reasonable period of time, she ought to have the legitimate privileges as that of a spouse and can claim maintenance under Section 125 CrPC. Section 488 prescribes forum of summary remedy for a proceeding to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. The live- in issue relationship was raised by the Malimath Committee for improving the changing environment of society and to prevent atrocities against women.

It recommended several changes under the head offenses against woman, the first and foremost recommendation was regarding the amendment of section 125 of the CrPC to cover live-in relationships under its ambit. In this case, the Court also referred to the term palimony which was coined by the US courts during the 1980s, which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying and is then deserted by him.

The Indian Evidence Act, 1872: Section 114 of the Evidence Act, 1872, the court may presume the existence of any fact which it thinks likely to have happened, regard being given to the common course of natural events, human conduct and public and private business, in relation as to the facts of the particular case. 3 It can be used to recognize live in relationships. If a man and woman are living under the same roof and cohabit for a considerable number of years. Continuous and prolonged cohabitation raises a presumption of marriage in accordance with section 50 and section 114 of the Indian Evidence Act, 1872.

The Constitution of India: The Fundamental right under Article 21 of the Constitution of India grants to all its citizens right to life and personal liberty which means that an individual is free to live the way he or she wants to. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not illegal in the eyes of law. A woman shall be proper owner of her property as per her male counterpart as provided under Article 300A. After Maneka Gandhi, Article 21, 14, 15 and 300A shall be read together stiching a just, fair, reasonable standard.

In the landmark judgment of S. Khushboov. Kanniammal 4 the Supreme Court held that there was no law that prohibits Live-in relationship or pre-marital sex. Living together is a right to life under Article 21 of the Constitution. Tulsa v. Durghatiya 5 the Supreme Court held that when a man and woman live together for a long time, there would be a presumption in favor of their having been married, unless rebutted by convincing evidence

Right To Property

Property is an essential right of a human being. Due to the worldwide prevalence of patrilineal inheritance customs, the property and other rights have ended up in the hands of men and the women have been fighting constantly for their right to property. So, the question is not why should woman have property rights rather it is why shouldn’t they have it? It is a human right as a constitutional right under Article 300-A.

Property is fundamental to economic life. Also, the ultimate goal of gender parity can be achieved only when there is economic parity between the two sexes. We have seen that regarding property rights, the going has always been inflexible for both married and un-married women. Till as late as the formulation of new Acts and progressive judgments, the law was blatantly biased against women.

The situation seems even more complicated when it comes to property rights of woman in a live-in relationship. Although, the Supreme Court of India has granted the legal status to Live-in Relationship, but what happens if one partner decides to walk out. Could the other partner be left homeless? Will the children born into live-in relationship be recognized by the law? Will it empower women with the Right to Inheritance, Right to maintenance, and Right to demand Alimony?

These are some questions which the Indian society and learned courts are still struggling to find an appropriate solution. As discussed above, we can state that we don’t have any specific Act or regulation that govern the live-in relationship. We have only interpreted the legal provisions liberally with intention to advance the purpose or object of the statute by raising a presumption of marriage between the couple staying in a live-in relationship provided they fit in the set of guidelines developed by the learned courts.

Hindu Succession Act, 1956:

Under the Hindu law, after the amendment in 2005, the women’s right to ancestral property is secured by the Hindu Succession Act, 1956. This provides her rights to ancestral and self-acquired property, like son, regardless of her marital status. So, whether woman is married or in live-in- relationship, the right to parental property will accrue to her by birth, while the property acquired by oneself will be divided according to the will. Therefore she will have full right over her property and is the sole owner whether it is gifted, inherited or earned by her.

She even has the right to gift it to anyone whether in parts or as a whole.

The Code Of Criminal Procedure:

Section 125 provide rights to the children that
they can always claim maintenance even if their personal laws doesn’t offer maintenance to them. Maintenance is defined in section 3 (b) (i) of the Hindu Adoption and Maintenance Act, which includes in all cases, provision for food, clothing, residence, education and medical attendance and treatment. This concept stems from Article 15(3) of the Constitution of India. Therefore, maintenance is covered both under Crpc and personal laws. Section 125 was enacted to prevent vagrancy and destitution by compelling those who can provide support to those who are unable to maintain themselves. Until recently, the term wife has been interpreted in a narrow manner as the Indian courts have held that only legally wedded wife are entitled to maintenance. The growing trend of live in relationship forces the legislature to interpret the term ‘wife’ in a liberal manner and include woman in live relationships too.

There have been recommendations by the National commission for women, to include live in female partner for the right to maintenance under section 125 Cr.P.C. Abhijit Bhika sethAuti v. State Of Maharashtra and others 6 supported the above recommendation. The Malimath Committee also recommended in the year to amend the word ‘wife’ under Cr.P.C. and include the woman living with the man like his wife.

In the case of Chanmuniya vs Virendra Kumar Singh Kushwaha 7 one of the issue was that- Whether a couple living together as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C? The division bench of the Hon’ble Supreme court referred the questions for decision to a larger bench.

The current position is that the term ‘wife’ under section 125 of the Crpc includes a legally wedded wife who has been divorced by her husband. Whereas, in a live- in relationship since there is no marriage so there is no question of divorce. So woman of such relationship may not be covered here strictly. However, if the presumption of marriage is raised according to section 114 of the Indian Evidence Act, 1872 due to continued cohabitation for a considerable number of years then she may be granted maintenance under this section.

Inheritance Right:

Section 10 of the Hindu Succession Act states that the distribution of property takes place among all living heirs, and that includes the deceased’s widow as well. She is entitled to an equal share of her husband’s property like other heirs and if there are no sharers, she is entitled to inherit all the property of her deceased husband. 8 Similarly, in Muslim law, a widow is entitled to 1/8 th of the deceased husband’s property and to 1/4 th , if they are childless. But parties in live in relationship do not enjoy automatic right of inheritance in their partner’s property and we also do not have any specific statute regarding the same. However, in the case of Vidyadhari & Ors vs Sukhrana Bai & Ors decided on 22 January, 2008, the learned court allowed the woman living in a live in relationship as a wife to receive property in inheritance from her partner. Crux of the facts is that a Hindu male’s property was given in inheritance to his live in relationship counterpart, even though he had a legally wedded wife.

Hindu Marriage Act: Children’s Inheritance Rights:

The Supreme Court of India had held that if a man and woman living together for a long period of time, would be considered as married and will enjoy all rights also the children born to live-in partners are treated as Legitimate. Such children have the right to self-acquired properties of their parents according to the Section 16 of the Hindu Marriage Act. In case the live-in partners are estranged, still they have obligation to maintain their children. Therefore, the woman would have a right to property in the capacity of mother of the child born out of such relationship.

Indian Trust Act, 1882

Under this Act a married woman can be trustee of the property of her husband if the husband reposes such trust under Section 3 of the Act. Children will be obviously the beneficiary of such trust. In case of immovable property, according to section 5, the declaration of trust has to be made through non testamentary instrument in writing signed by the author or the trustee and registered, or by will of the author of the trust or trustee. In case of movable property, trust is valid; if ownership or possession of the property is transferred to the trustee. Section 79 provides no trust can be revoked by the author of the trusts as to defeat or prejudice what the trustee may have duly done in execution of the trust.

We cannot give the woman in the live in relationship same status as that of a legally wedded wife because in the former case, the couple decide to live together without any legal obligation. No laws tie those persons and they can leave each other at any time. This is the basic idea in a live in relationship. In Malti v. State of Uttar Pradesh, the Allahabad High Court held that a woman living with a man could not be equated as his wife. If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there would arise a conflict between the interests of the wife and the live-in-partner. So, one cannot exempt himself from all the duties and later claim his/her rights.

We can relate this concept to onerous gifts under the Transfer of Property Act where the donee has to accept the gift in full. He cannot accept one which is beneficial and reject the one burdened with obligation or we can also take the instance of the Constitution which gives us rights but also castes a duty upon us. Both are inseparable. A perfect right is one which corresponds to a perfect duty. Duty can be related to obligation. Every right implies duty against somebody. There can be no right without a corresponding duty and similarly, there can be no duty without a corresponding right.

Conclusion
On one hand we are constantly fighting for our rights and freedoms whereas on the other hand, the society tends to suppress the new generation which tries to implement the same in their relationship matters. Talking about the same, the decision to marry or not to marry or to have a heterosexual relationship is an intensely personal matter and an individual’s right to choice. In one of the recent rulings, it has been held that parents or society cannot compel a major child to live a life on their terms and even that partners in live-in relationship cannot be separated through writ of Habeas Corpus.

The court is bound to respect the unfettered right of a major to stay in a live-in relationship even though it may not be palatable to the orthodox section of the society. Though the courts have given many landmark judgments by interpreting the legal provisions but still it is not acceptable because Indian society still believes that live-in relationships are immoral and it is not allowed in the Indian traditions and customs.

The society prefers to have children born out of proper legal marriage and they consider only those children as legitimate because these concepts are ingrained in Indian society’s mind. It is a tradition and a holy practice and our forefathers have been following the same without questioning it so with that logic we are also bound with the same. We ought and we should, irrespective of what we want and what we choose.

Notwithstanding that, there has been a steady growth in the live-in relationships with development in people and with change of time, mindset and awareness of the people about their personal rights. But the jurisprudential essence of the Constitution which is the grundnorm, lies in the very fact of balancing the societal interest and the individual’s interest. So, we need meaningful and practical solutions for the same.

Though the judiciary has tried to recognize this concept in our society which is totally new to our cultural beliefs. But along with its recognition, it is equally significant to analyze its effect on the prevailing matrimonial provisions and other issues emanating from it. It can be listed as a sensitive zone because there are interminable pros and cons attached to it. Restricting ourselves to the rights of woman, if she is granted the legal status of a wife, it might lead to bigamy. Whereas if she is not, it might lead to vagrancy in some cases.

The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in relationship should have no bondage between the couples because the sole criteria for entering into such agreements is based on the fact that there lies no obligation to be followed by the couples whereas in some instances the Court has shown opposite views holding that if a relationship cum cohabitation continues for a sufficiently and reasonably long time, a presumption of marriage would be construed, infusing all the rights and liabilities as guaranteed under a marital relationship.

So, the courts have to take a very practical approach in this regard and according to my understanding and believe, there cannot be a standard test or guideline for people who choose to stay in a live-in relationship because the reason behind the same is subjective. Some choose to stay in a live-in to avoid social drama and obligations and some may choose to stay to check compatibility before marriage.

Live in relationships have got the assent of the judiciary but not of the society!

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