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Commentary On Cohabitation In India

To many India is synonymous to Bollywood. The industry with flashy dance numbers, of heroes, of villains, of damsels in distress but most importantly of cheesy romance flicks. It isn't news to anyone that while India maybe synonymous to Bollywood, Bollywood is synonymous to romantic flicks.

One would assume for a country so crazed with the whole concept of heroes and heroines, that love would be everywhere, that maybe we would have the highest rate of love marriages. That maybe even though we're plagued with differences, with secularism present only on papers, love is what would unite people, right?
Wrong.

It is rather ironic that with so much depiction of the concept and emotion of love on screen that we are still stuck with the same society which in the very same movies act as antagonists- them frowning over friendships between boys and girls, the couple vs the world theme, the couple either being taken seriously only after being married or even after said marriage being hunted down like animals by their own families.

In the movies the hero and heroine brave through all the hurdles put in their path, be it differences in caste, in class, in social standing, of parental disapproval or even the villainous man the heroine was fated to marry prior to falling in love. Movies are a two to three-hour long saga starting with establishing society as an antagonist, the main leads falling in love, braving the world against all odds and the power of their love convincing their parents in the final climax. Of course, movies end in happily ever afters.

That the parents agree and society be damned. Movie characters are lucky, reality isn't. In India love is still frowned upon, women being given free agency to think for themselves and choose their own partners is frowned upon. Inter-caste, inter-class marriages are frowned upon, killed in honour killing too oftentimes.

Not just marriages, relationships, live in relationships, premarital sex, in fact even homosexual love or love in the LGBTQIA+ spectrum, every single one of them are viewed to be against our culture, to be these western concepts coming and polluting our very pious heritage.

It does make one wonder, how do people claim these aspects to be detrimental to society or to be anti-social things? How is a decision between two individuals when a couple with consent on both ends are engaging in sexual relations or cohabitation without any legal contract of marriage binding them affecting the society as a whole? And more importantly why is it that when one expresses these very opinions of basic dignity and free thought or a life free from interference of an artificial society, they are called idealistic or liberal or anti national?

Thankfully, our nation isn't all that regressive either. Albeit against our traditions our Indian law does have a few provisions to protect the interest of these couples not shackled by the chains of marriage.

An important act with respect to relationships which do no fall under the ambit of a marriage is the Protection of Women from Domestic Violence Act (DV Act), 2005 which protect dignity and rights of those women not coming under the hood of regular matrimonial rights. The relationships where two people cohabit outside marriage without any legal obligations towards each other are known as live-in relationships. This is a relationship in the nature of marriage but unlike a marriage.

This concept has slowly paved its way in the Indian scenario as well. However, such relationships are considered a taboo in the Indian society. Although the legal status of live in relationships in India is unclear, the Supreme Court has ruled that any couple living together for a long term will be presumed as legally married unless proved otherwise. Thus, the aggrieved live-in partner can take shelter under the Domestic Violence Act 2005 or Section 125 of the Code of Criminal Procedure, 1973.

We do still have a long and far way to go, but that does not erase the milestones we have crossed up until today. Few such milestones will be highlighted in this article with emphasis on cohabitation or as they call it, live-in relationships.

Related Laws
Section 2(f) of Protection of Women from Domestic Violence Act (DV Act), 2005 states domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family

Section 2(s) of Protection of Women from Domestic Violence Act (DV Act), 2005 states shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

20(1)(d) of Protection of Women from Domestic Violence Act (DV Act), 2005 speaks of monetary reliefs wherein the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to:
(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

Section 125 in The Code of Criminal Procedure, 1973 states for maintenance of wives, children and parents. Section 125 (1) speaks about refusal of any person having sufficient means paying any maintenance to (a) his wife, unable to maintain herself. Further provided in chapter that (b) wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Section 114 of the Indian Evidence Act, 1872 states that:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (i) states that There would be presumption in favour of wedlock if the partners lived together for long spell as husband and wife; but it would be rebuttable and heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place.


Section 50 of the Indian Evidence Act, 1872 states that:
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, of 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 sections 494, 495, 497 and 498 of the Indian Penal Code (45 of 1860).

Further, under illustrations it is expanded that:
  1. The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant.
  2. The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

Case Laws
  1. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy
    Since the time of Privy Council, a presumption for couples living together without getting legally married had begun. This fact can be seen in this case. Here the Privy Council took a stand that, where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage
     
  2. Badri Prasad V. Dy. Director of Consolidation & Ors
    This was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy.
     
  3. Indra Sharma v. V.K.V. Sharma.
    The recent judgment of the Supreme Court has illustrated five categories where the concept of live in relationships can be considered and proved in the court of law.
    Following are the categories:
    1. Domestic relationship between an adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship
    2. Domestic relationship between a married man and an adult unmarried woman, entered knowingly.
    3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery
    4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly
    5. Domestic relationship between same sex partners (gay or lesbian)

The Court stated that a live-in relationship will fall within the expression relationship in the nature of marriage under Section 2(f) of the Protection of women Against Domestic Violence Act,2005 and provided certain guidelines to get an insight of such relationships. Also, there should be a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account, including the individual factors.

Thus, the legal status of live-in relationships in India has been evolved and determined by the Supreme Court in its various judgments. However, there is no separate legislation which lays down the provisions of live in relationships and provides clear cut legality to this concept.

In conclusion, marriage should not be the only kind of socially accepted and legally respected relationship. The strength of a relationship cannot be attested by a single legal paper. Perhaps while paving the path to development and empowerment these aspects gain their long overdue, that is of course if we do manage to focus on actual issues instead of cheap gossip being passed off as news as is the state today

links:
  • https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships#edn2

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