The Contradictions In The Legal System’s Recognition Of Live-In Relationships

Posted by NANDINI MODI in Human Rights, Society
December 20, 2017

The term ‘live-in relationship’, also referred to as ‘cohabitation’, primarily means two adults who live together without getting married to each other or being engaged in a legally-binding relationship. This concept has been gaining popularity among the youth of the country. These ‘walk-in, walk-out relationships’ have become crowd- pleasers.

Live-in relationships are believed to be a contemporary idea. But in reality, its origin can be traced back to the ancient times. In my opinion, ‘live-in’ is just a term given to an archaic concept. During the ancient times, it was known as maitri karar, in which two people would enter into a written agreement stating that they would live together as friends and look after each other.

The Vedas have provided eight classifications for marriage – one of them being the Gandharva marriage. It involves the mutual consent of a man and a woman, who agree to get married. The incidents involved in such a marriage are very similar to those in a live-in-relationship. Our history tells us that the Vedas permitted live-in-relationships, which is still not morally accepted in the Indian society today. This concept was considered to be ‘moral’ as long as people adhered to the path of dharma. Any act done without adherence to dharma was considered to be a grave mistake.

In the past, India’s legal system did not recognise live-in relationships, and tended to presume that marriage was based on the number of years of cohabitation. In the cases prior to independence, like A Dinohamy vs WL Blahamy (1927), the Privy Council laid down a broad rule postulating that “where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.”

The same principle was reiterated in the case of Mohabbat Ali vs Mohammad Ibrahim Khan, 1929. After independence, the Supreme Court (SC), in the case of Badri Prasad v. Dy. Director of Consolidation, 1978, recognised a live-in relationship as a valid marriage.

With the passing time and widespread modernisation, the court has also evolved in its purview towards upcoming trends. The court no longer considers live-in relationships illegal. In the landmark case of S Khushboo vs Kanniammal & Anr, the SC held that live-in relationships come under the ambit of the right to life. The court held that two adults living together with consent cannot be unlawful.

In another case of D Velusamy vs D Patchaiammal, the SC held that a relationship under the nature of a marriage must fulfill a certain criteria. It further stated that if the man is living with the woman only for sexual reasons, neither partner can claim the benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with the following conditions:

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The rights of a woman in a live-in relationship are well established by the court. The Protection of Women from Domestic Violence Act, 2005, protects both the wife (that is, in a relationship by marriage) and the live-in partner (that is, in a relationship in thenature of marriage). However, the partner can claim legal benefits only if the couple adheres to the conditions stated by the apex court in the case of D Veluswami vs D Patchaimmal.

In June 2008, the National Commission for Women recommended to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of the Code of Criminal Procedure. This view was also supported by the judgment in the case of Abhijit Bhikaseth Auti vs State of Maharashtra & Anr, 2000. The Maharashtra government in October 2008 accepted the proposal made by the Malimath Committee and Law Commission of India, which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status of wife.

However, the laws that deal with the rights of a child born out of live-in relationships are still ambiguous in nature. The Hindu Marriage Act, 1955, grants legitimacy to every child, even in the case of the court declaring the marriage as null and void. The problem here is that live-in relationships do not come under the concept of ‘marriage’. Rather, it is considered to be in the ‘nature of a marriage’. Also, there is no specific law that particularly recognises it. Therefore, the status of such a child still flounders.

Another crucial point that calls for our attention is that, if the couple in a live-in relationship decide to break up, then the future of their child becomes dubious as there is no law that secures the rights of such a child. However, the SC in the case of Bharata Matha & Ors vs R Vijaya Renganathan & Ors, held that a child born out of a live-in relationship may be allowed to inherit  property, though they can have no claims to ancestral coparcenery property. There is an urgent need of a law that safeguards the rights of such children.

Perhaps, to the great chagrin of the traditional Indian society, live-in relationships are becoming very popular in India. It is often considered to be a taboo and allegedly does not blend well with the culture and norms of the society we live in. The highly-conservative population of India are yet to accept such seemingly modern concepts. They often argue that such relationships challenge and tarnish the very sacred institution of marriage.

Since the SC has declared live-in relationships not to be illegal, people tend to believe that the legal system has started accepting such modern concepts – but in reality, this is not the case. If one gives a hard look to the judgements of the court in various cases that are mentioned above, they will realise that they are, in fact, in alignment with the societal norms. The strong essence of orthodoxy embedded in our society does not accept or understand the concept of couples living together without marrying each other. The justice system also has no law that directly recognises this concept.

I believe that instead of taking decisions based on individual needs, the court often generalises its verdict based on the beliefs and morals of the society. This element of conformism reflects in the judgements of the court. In my opinion, the court does not want to challenge or go against the traditions and the culture laid down by the masses. I think they fear that such urban trends will not be accepted by them – and they may oppose it. The court needs to break through the shackles of traditionalism and make way for modernization.

The world has evolved and changed – it is time for the people to accept changes as well. Though the SC has declared live-in relationships not to be illegal, there is a need to formulate a separate and specific law that only deals with cohabitation. This law should clearly define a live-in relationship and list down all the rights of the individual partners involved. Also, it should be able to provide provisions and protect the future of a child born out of live-in relationships. This growing concept of partners living together urgently needs to be recognized by the world of justice.

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