Open Access Research Article
COHABITATION AND GENDER ISSUES (By - Sanil Jose)
Published Paper
Article Details
COHABITATION AND GENDER ISSUES
Authored
by - Sanil Jose
Introduction
Cohabitation or live-in relationship
is an arrangement when two people are involved in a romantic and sexual
relationship as partners for a long-term decision to live together without
marriage. India has witnessed a drastic change in how the present generation
discerns their relationships. With society gradually accepting live-in
relationships, the taboo that used to haunt people before moving into it has
started to fade away. This has happened over the years with a right to privacy,
freedom, education professionalism and globalisation. Furthermore, it is not an
escape from the responsibilities; it is an attempt to know your partner better
and see the compatibility so that divorce can be prevented.
Ever since the legalization of the
live-in relationship in India, it is necessary to know the responsibilities and
obligations that come along with it.[1]
Live-In
Relationship Under Indian Law
In the case Indra Sarma v. V K V Sarma[2],
Honourable Supreme Court stated that there could be five distinct ways of
live-in relationships. They are:
-
The
domestic cohabitation between major unmarried female and major unmarried male.
It is considered the simplest kind of relationship of all.
-
The
domestic cohabitation that was entered mutually by a major unmarried woman and
a married man.
-
The
domestic cohabitation that was entered mutually by a major unmarried man and a
married woman.
-
The
domestic cohabitation entered unknowingly by a major unmarried woman, and a
married man. It is also punishable under Indian Penal Code, 1860.
-
The
domestic cohabitation between the partners who are homosexual. It cannot lead
to a marital relationship as in India; any matrimonial law for homosexuality is
not defined yet.
The first three are the most
acknowledged type of live-in relationship in India. Moreover, it is to be noted
that adultery is punishable under the Indian Penal Code, 1860.
Legal Status Of Live-In
Relationships In India
Western countries have a broader
acceptance regarding a couple in a relationship. This can be understood from
their civil and union agreements, legal recognition, and prenuptial agreements
between the couples. However, the situation is not similar in India. Most of
the western Apex Courts, have ruled that if a man and a woman have lived in a
live-in relationship for a long term and even have children, the same marital
laws as a husband and a wife will apply to them.
In India, the Hon’ble Supreme Court
stated that a woman and a man who are living together is by their choice and,
therefore, it lies under the right to life. Hence, it is not a criminal
offence. Therefore, live-in relationships are legal in India.
Marriage
And Live-In Relationship
Marriage
Marriage in India is considered to be
an institution that is ritually and socially accepted. Marriage is a contract
between the partners that imposes rights, duties and legal obligations on each
other. As a diverse culture exists in India, different laws have been
formulated that lay down the guidelines and procedures to execute marriages in
different religions. Not every marriage is bliss. Marriage laws have been
created in different religions to deal with the disputes that arise in
marriages between partners.
Along with laws relating to
maintenance provided under the personal laws, Section 125 of the Code of
Criminal Procedure, 1973, also provides the wife maintenance if she cannot be
maintained by herself.
Also, there
are provisions for women seeking extra maintenance other than maintenance
received under other laws, Protection of Women from Domestic Violence act,
2005, section 20(1) (d).
Live-in relationship in India
Live-in relationship in India has
been in talk for years, but no law exists that binds partners with each other
if anyone wants to walk out of the relationship. The legal definition of a live-in relationship is
still unconfirmed; hence, there is no legal definition. As mentioned earlier,
the right to maintenance of the wife is decided by the Court under the
Protection of Women under Domestic Violence Act, 2005 and the individual facts.
Though the concept of a live-in
relationship is still taboo in India and is still not openly accepted by
society, the Protection of Women from Domestic Violence Act, 2005 offers
maintenance and protection by providing alimony for an aggrieved live-in
partner.
In Madan Mohan Singh v. Rajni
Kant & anr[3], the
Supreme Court held that, the
live-in relationship if continued for a very long time, cannot be termed a
"walk-in and walk-out" relationship. There will exist a presumption
of marriage between the parties. Hence by this approach taken by the Court, it
can be inferred that the Court is in favour of treating long-term living relationships
as marriage instead of making it a brand-new concept like a live-in
relationship.
Protection
Of Women And Children In A Live-In Relationship From The Exploitation
Maintenance of the Female Partner
Every personal law in India protects
women by providing them with the right to maintenance. Unfortunately, none of
these personal laws accepts and recognises the live-in relationship. Hence, the
Courts in India worked on a remedy to this problem. For this purpose, the
courts widened the scope of maintenance under the Code of Criminal Procedure,
1973. Section 125 of the CrPC provides the right to maintenance to the female
partner both in and out of marriage.
Domestic Violence with the Female Partner in a Live-In Relationship
The Protection of Women from Domestic
Violence Act, 2005 was enforced in order to protect women in India from mental,
verbal, economic and physically abusive marital relationships. Section 2(f) of
the Act acts as a shield to the female partner in a live-in relationship, as
the section is applicable for protection of women living in a ‘relationship in
nature of marriage’
In consideration of all these
factors, the Hon’ble Supreme Court of India has allowed live-in relationships
to be covered within the ambit of law specified, in a couple of cases.
Children Born Out of Marriages
Children can be born out of live-in
relationships if the relationship sustains for a long time. As per the
Guidelines Governing the Adoption of Children, which the Central Adoption
Resource Authority notified, live-in couples cannot adopt a child in India. But
if any dispute arises regarding the custody of a child, the partners can
consult a child custody lawyer.
In X and Another v. State of Kerala and Ors[4],
the Hon’ble High Court of Kerala held that
with regards to surrender of a child
under Adoption Regulations 2017 and Juvenile Justice (Care and Protection of
Children) Act, 2015, a couple in a live-in relationship is a married couple for
the purpose of law relating to surrender.
Legitimacy and Inheritance Rights of
Children Born Out of a Live-In Relationship
Section 16 of the Hindu Marriage Act,
1955, provides for inheritance rights of children and provides the legal status
of legitimacy to an illegitimate child (born out of marriage or live in) for
the sole purpose of inheritance. Hence, the children born out of a live-in
relationship are also granted inheritance rights. These rights apply to both
ancestral and self-bought properties.
Custody and Maintenance Rights of Children Born Out of a Live-In
Relationship
The personal laws deal with the
maintenance rights of children born out of regular marriages and children born
out of a live-in relationship. It varies from one personal law to another.
Under Muslim law, a father is not liable for maintaining a child born out of
marriage, whereas the father has to maintain such a child under Hindu law.
Section 125 of the Code of Criminal
Procedure, 1973, provides that children who cannot claim maintenance under the
personal laws can claim maintenance under this Section. This Section offers the
right of maintenance to the wife, female partner, and children.
CASE LAWS
In the case of S. Khushboo v. Kanniammal[5],
the Supreme Court held that a living relationship comes within the right to
life under Article 21 of the Constitution of India. The Court further held that
live-in relationships are permissible, and the act of two major living together
cannot be considered illegal or unlawful.
In Madan Mohan Singh v. Rajni
Kant & anr[6],
the Supreme Court held that the live-in relationship, if continued for a very
long time, cannot be termed a "walk-in and walk-out" relationship.
There will exist a presumption of marriage between the parties. Hence by this
approach taken by the Court, it can be inferred that the Court is in favour of
treating long-term living relationships as marriage instead of making it a
brand-new concept like a live-in relationship. The Supreme Court in Indra Sarma vs. V.K.V. Sarma[7]
defined live-in relationships in five distinct ways, as pointed out above.
In Chanmuniya v. Chanmuniya
Kumar Singh Kushwaha[8],
the Hon'ble High Court declared that the appellant wife is not entitled to
maintenance on the ground that only a legally married woman can claim
maintenance under Section 125 CrPC. But the Supreme Court turned down the
judgment delivered by the High Court and awarded maintenance to the wife,
saying that provisions of Section 125 CrPC must be considered in light of
Section 26 of the PWDVA, 2005. The Supreme Court held that women in live-in
relationships are equally entitled to all the claims and reliefs available to a
legally wedded wife.
In Bharata Matha & Ors. V. R. Vijaya Renganathan & Ors[9]. Case
the Supreme Court has also
ruled that a child born out of a live-in-relationship may be permitted to
inherit a parent's property but does not have any right to claim against Hindu
Ancestral Coparcenary Property.
During a decision of seminal
significance, the Kerala Judicature has held that a child born out of a live-in
relationship and acknowledged so by the mother of the child, would have to be
treated as a child born to a married couple for the purposes of surrendering a
child for adoption under Juvenile Justice (Care and Protection of Children)
Act, 2015 [JJ Act).
In Tulsa & Ors. V. Durghatiya & Ors.[10],
the Supreme Court gave legal validity to a 50 year live-in relationship. It was
held that by reading Sections 50 and 114 of the Evidence Act together, it is
clear that the act of marriage can be presumed from the common course of
natural events.
Conclusion
Hence, it can be concluded that the
concept and legal status of live-in relationships in India have evolved with
time, and various judgments by the Hon'ble Supreme Court and the High Courts
played the most crucial part in it.
However, there is no legality given
to live-in relationships, as there is no separate legislation for the
provisions of a live-in in India. Although the concept of a live-in
relationship is a subject of morality in India, it’s not illegal according to
the Indian laws. The Hon’ble Supreme court held that two major people living
together is their right to life; hence, it cannot be considered illegal. In
order to protect women in live-in relationships and children born out of a
live-in relationships, the court has defined them as ‘relationship in the
nature of marriage,’ under the Protection of Women from Domestic Violence Act,
2005.
In the landmark case of Indra Sharma v. KVK Sharma[11],
the Hon’ble Supreme Court of India, held that a live-in relationship requires
effective and adequate protection, especially for the female partner and the
children born out of such relationships, as the relationship may sustain for a
long time and can result into dependency and vulnerability.
Live-in relationships are very
personal, and people have an opinion for or against it and might express that.
Hence, the Parliament, while making a law, must be extremely cautious.
Therefore the Parliament has to pay attention to the issues and enforce proper
legislation. This will help the partners be secure and live their life as it is
their right to life.
Article Information
COHABITATION AND GENDER ISSUES (By - Sanil Jose)
Authors: Sanil Jose
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/19
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.