JUDICIAL AND SOCIAL RESPONSE TO LIVE-IN RELATIONSDHIP IN INDIA : A CRITICAL ANALYSIS (BY -RAJ KUMAR GARG & NITU)
JUDICIAL
AND SOCIAL RESPONSE TO LIVE-IN RELATIONSDHIP IN INDIA : A CRITICAL ANALYSIS
AUTHORED BY -RAJ KUMAR GARG
(PH.D RESEARCH SCHOLAR, HIMACHAL PRADESH
UNIVERSITY)
&
CO-AUTHORED BY- NITU
(STUDENT BALLB 10TH SEMESTER, INDIAN INSTITUTE OF LEGAL STUDIES,
SHIMLA)
1.
Abstract
India is a country that is welcoming western
ideas and lifestyles. It is up to the person to choose whether it is good or
terrible. One of them is the idea of live-in partnerships.However, a sizable
proportion of the Indian populace feels that live-in relationships are against
Indian culture. Because the Hindu faith, in particular, considers 'One man, one
wife' to be the most holy type of matrimony. Indians think that individuals
should get to know one other through traditional means such as arrange
marriage, dating, messaging, and regular meetings. But not to break the
societal boundary in terms of marriage and sex. In India, the legality of
live-in relationships is unpredictable. Law regarding live-in
relationship is still uncertain. Few rights have been provided by
interpreting and altering existing laws in order to prevent partners from
misusing such relationship. There is no direct law regulating
live-in relationship in the country, but analysis of the
judiciary's past decisions shows that judiciary is not against
live-in relationship in India .. The legal position of women in
live-in relationships, the legal status of children born from these
relationships, court responses, and the perception of live-in
relationship in Indian society are all discussed in this study.
KEY WORDS-Meaning of live-in,
evolution of live-in, legal status of
women, judicial response, social response
2.
Introduction
India is a multi-religious and
multi-cultural country. Different cultures exist in different parts of the
nation. Indians are conservative people who follow the rules of their Gods,
which vary according on religion. Marriage is seen as a sacred tie between two
individuals in India, particularly among Hindus. In many areas around the
country, the notion of husband, wife, and family remains paramount. Since
British administration, cohabitation has been forbidden.In certain countries, a
live-in relationship, also known as cohabitation, is an arrangement in which
two individuals who are in a love and sexual relationship as partners for a
long time or permanently opt to live together without marriage. Since there is
no legislation on live-in relationships in India, it is
critical to understand the expectations and responsibilities that come with
them.Moreover Indian society is still against live-in relationship, even males in India do not want to marry a female
who is pregnant before marriage because this will almost always result in
abortion, which is prohibited. Indians strive to act like Westerners, yet 90%
of males are preoccupied with "virginity," and they fail to see
beyond that. They will readily label a non-virgin female as wicked because she
went and lived with someone who wasn't her spouse. Marriage is socially and
ethically binding on couples, so they consider divorce carefully, but live-in
relationships may or may not succeed.
3. Meaning
Of Live In Relationship
Live-in
A relationship is one that does not give rise to the same rights and
obligations that a fully lawful marriage does. The male is not obligated to
support the woman, and the woman is not obligated to support the man.[1]
In
basic words, a "live-in relationship" is a partnership in which both
partners enjoy their own independence and live in the same house together
without being married. It entails two people cohabiting in a secure and
tranquil manner without any duties or accountability to one another. In such a
situation, no legislation binds the two persons who are living together, and
they are free to leave at any moment.
Indian Evidence Act, 1872, Section 114 [Court
may presume existence of certain facts. —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[2]
4.
Evolution Of Live In Relationship In India
The
notion of a live-in relationship is not new in India; it was known as
maitri-karar in ancient times, when two opposite sex formed a formal pact to
live together as friends and look after one other. In addition, Gandharva
marriage, which is one of the eight Hindu weddings, has situations that are
quite similar to those seen in a live-in relationship. The term "live-in
relationship" is not defined in the lexicon or the law. A woman who lives
with a guy as husband and wife for a fair amount of time without marrying him
is said to be in a live-in relationship. These kinds of interactions are
labelled as "socially ambiguous" and "sexually exploitative."
Although
the phrase "live-in relationship" is new, the concept is not. The
Vedas describe eight different sorts of weddings, one of which is the Gandharva
type, in which a man and a woman agree to marry each other. This does not
include the couple's relatives or a specific rite to solemnise the marriage.
It's basically a commitment based on word of mouth. However, it still falls
within the umbrella of marriage. Although a Gandharva vivaaha joined a couple,
the commitment and obligation were the same
as any of the other sorts of weddings prescribed in ancient literature.[3]
5.
Difference Between Live In Relationship And Marriage
The
major distinction between a live-in relationship and a marriage is matrimony or
wedlock, which is a recognised activity in which both parties form a union or
sign contracts establishing specific rights and duties. In contrast, a live-in
relationship is a type of marriage in which both spouses have individual
independence and share a household without being married to each other . It
entails the parties living together indefinitely with no responsibilities or
commitments to one another. There is no legislation binding them together, thus
any partner can walk away from the partnership whenever they choose.[4]
6.
Causes Of Live In Relationship In India
i) Lifestyle : In the past, a typical Indian's lifestyle was such that
a boy and a girl did not have much chance to communicate with one another. As a
result, the chances of them getting into a live-in relationship were little to
none.Today, however, a girl and a guy have enough opportunities to meet and
spend time with each other, whether at an educational institution, a business,
a pub, or elsewhere. This increases their chances of forming a
live-in relationship.[5]
ii) Age of Marriage : The
average age of marriage among Indians once was quite young. Because a person
got married at a young age, there was no way for him or her to get into a
live-in relationship. However, as the average age of marriage increased, there
are more opportunities for people to live-in.[6]
iii)
Economic Independence: – Young people are
becoming more economically self-sufficient, particularly in metropolitan areas.
As a result, their reliance on their individual families has decreased
significantly, allowing them to ignore their families' personal orders.[7]
iv)
Away from home: – Many people live away from
home for various reasons, including education, employment, and so on. As a
result, they are not under the direct supervision of their family. In addition,
rent and other expenditures in a city are rather expensive, which may be made
affordable by sharing them with someone.[8]
These situations encourage the young people to start living together.
v) Urbanization: – Every
person in rural areas is subject to tight social supervision; his actions are
constantly scrutiniged by his fellow villagers. However, there is no such
regulation in cities since no one is interested in a person's personal life. As
a result, a person has enough of freedom to live his or her life as he or she wishes[9].
Position of live in relationship in
various countries
7.
Live In Relationship (Indian Scenario)
i) Nature of relationship and bigamy
There is a strong argument that a live-in relationship
between a married person and an unmarried person does not constitute bigamy
(Section 494 Indian Penal Code). Only a second'marriage' within the lifespan of
the husband or wife can result in crime, according to the rule. The provision
makes no mention of a live-in relationship that has the 'nature of marriage'
being deemed an implicit marriage under personal law. The primary goal of the
Domestic Violence Act was to protect the wife or female live-in spouse from
violence perpetrated by the husband or male live-in partner.
When a woman is in a domestic relationship with a
male, whether married or not, the focus of the DV Act violation investigation
is on the tangible harm inflicted to the woman and the woman's subsequent
protection. Any refusal to provide protection would be a great disservice to
the women who are in danger. Unfortunately, the Bombay, Allahabad, Rajasthan, and
Punjab High Courts have refused to protect such victims on moral grounds that
such partnerships violate marriage sacredness and promote bigamy. [10]
ii)
No direct law on live in relationship
As
of present, there are no explicit regulations governing living conditions in
India. The upper echelons of Indian culture are becoming more accepting of
live-in relationships, but the middle class is still bound by cultural
expectations, and the same cannot be observed in this social stratum. While
some nations have acknowledged and legitimised the notion of a live-in
relationship by establishing the concept of "registration," which is
nothing more than a cohabitation contract, others have not. This method is used
in countries like Canada and China.[11]
iii) Conflicting views
The High Courts of Bombay,
Allahabad, and Rajasthan have all declined to protect such live-in couples,
citing the fact that a live-in relationship between a married and unmarried
individual is prohibited. The Punjab and Haryana High Court went even farther,
declaring these connections to be unacceptably harmful to the country's
"social fabric." The Delhi High Court, on the other hand,
took a different approach,
maintaining the rights of a female live-in partner regardless of the marital
status of both parties.[12]
iv) Live- in relationship is not
unlawful
The
Supreme Court held in Payal Sharma v. Nari Niketan [13]
, that a man and woman can live together without marrying if they so desire.
Although society considers this to be absolutely immoral, it is not illegal.As
British jurists Bentham and Austin pointed out that there is a
distinction between law and morality. As a result, because there
was no marriage, the petitioner's voluntary cohabitation with a lady for seven
months , who was not his wife did not constitute bigamy. In today's world,
values have altered, and earlier beliefs are no longer valid.[14]
The
Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[15],reaffirmed
that two consenting adults are at liberty to live together and that no one
would be permitted to interfere in their peaceful existence, despite the fact
that live-in relationships are not socially recognised .
v)
Approval of live –in relationship
by judiciary
The
Supreme Court affirmed a 50-year-old couple's relationship in Badri Prasad v. Director of Consolidation[16].
The bench observed that few men and women who live as husband and wife in
society will succeed if they are compelled to demonstrate by eyewitness
testimony that they were lawfully married fifty years ago after half a century
of marital life. There is a significant presumption
in favour of marriage when two individuals have lived together as husband and
wife for a long period.[17]
vi) No Protection is given to
already married person under Domestic Violence Act (Sec.2f)
In Indra Sharma v. V.K.V. Sharma[18] , the Supreme Court stated that the petitioners engaged into a
relationship fully aware of each other's marital status and woman's
marriage had not yet been dissolved by a competent court as of this date, such
a relationship could not be awarded any
protection under Section 2(f) of the Domestic Violence Act,
which defines a relationship "in the nature of marriage”.[19]
In Velusamy vs. D. Patchaiammal[20], the Supreme Court determined that the applicant and respondent
No.2 were not qualified to enter into a lawful marriage because they were
previously married and their marriages were in sustenance. Section 2 [f] of the
D.V. Act did not apply to the relationship. She was not eligible to use the
D.V. Act's Section 12 provision.
In
another case Kusum v. State of UP[21] where a married lady who
had eloped with another person and continued to live with him for
five years filed a petition to seek protection from the court. In this case the
court stated that the lady could not seek protection under the pretext of
a live-in relationship since her marriage was not officially dissolved. As a
result, her new relationship could not be described as "in the nature of
marriage and was not covered by Section 2(f) of the Act.
vii) Relationship in nature of marriage
The
Bombay High Court held in Reshma Begum v. the State of Maharashtra[22] that
the prospect of a legal marriage is a sine qua non for a domestic relationship'
under Section 2(f) of the DV Act. The Court ruled that the challenged provision
could not be read too broadly to encourage adulterous relationships. As a
result, the Court determined that the parties' relationship was not in the
character of marriage. As a result, the Act did not provide any relief to
the applicant.
viii) Transgender man and women (same sex relationship)
In Chinmayee Jena v. State of Odisha[23],
Justice Ratho observed that love knows
no limits and has been
extended to encompass same-sex relationships. The Orissa High Court
upheld the right of a transgender man and woman to live together in a
live-in relationship. When it comes to the topic of whether a one-night stand
or spending weekends together counts as a live-in relationship, the answer is
yes”.
ix) Right to visa extension akin
married couples
Svetlana Kazankina v. Union of India[24] dealt with the problem of extending
a visa to an Uzbek lady who had been in a live-in relationship with an Indian
guy. The Respondents claimed that the refusal
of a visa extension was due to the
fact that the relevant Rules only allow such extensions upon proof of marriage,
not live-in relationships.
The Court stated that the rules
allowing foreigners married to Indian residents to extend their visas allowed
such couples to enjoy friendship, love, and devotion. The Court decided that
while live-in relationships are now a common occurrence, marriage and live-in
relationships should not be handled differently when granting a visa extension.[25]In
addition, the Court advised the Parliament to make suitable legislation
for live-in relationships, keeping in view Indra Sharma
judgment.
8.
Legal Status Of Woman Under Live-In
Relationship
i)
Presumption of marriage and live –in relationships
The
courts in India have time and again observed that a long continued live in
relationship can raise a presumption of marriage. Such a presumption is often
raised by the courts to safeguard the interests of the parties (generally
women) to such arrangement and the children born out of such arrangement.
In Tulsa
& Ors vs Durghatiya & Ors[26] the
Supreme Court gave legal validity to a 50 year live in relationship of a
couple. It was held that the court may presume the existence of any fact which
it thinks likely to have occurred. Reading the provisions of Sec.
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 and the
conduct of parties as they are borne out by the facts of a particular case. It
was further held 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.
Madan
Mohan Singh v. Rajni Kant[27] the
Supreme Court held that the live-in relationship if continued for long time,
cannot be termed as a “walk-in and walk-out” relationship and that there is a
presumption of marriage between the parties.
By
this approach of the Court it can be clearly inferred that the Court is in
favour of treating long-term living relationships as marriage rather than
giving making it a new concept like live-in relationship.
ii) Live-in relationship comes
under right to life
In
landmark case of S.
Khushboo vs. Kanniammal[28] ,
the Supreme Court held that a living relationship comes within the ambit of
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.
iii) Live-in relationship between two consenting
adults of heterogenic sex does not amount to any offence
In Lata
Singh Vs. State of U.P. & Anr.[29] the
supreme court of India observed that live-in relationship between two
consenting adults of heterogenic sex does not amount to any offence (with the
obvious exception of `adultery’), even though it may be perceived as
immoral.
It is to be noted that the Supreme Court has decriminalized adultery by its judgment in Joseph Shrine’s case.
It is to be noted that the Supreme Court has decriminalized adultery by its judgment in Joseph Shrine’s case.
In Indra
Sarma vs V.K.V.Sarma[30] the
Supreme Court observed that Live-in or marriage like relationship is neither a
crime nor a sin though socially unacceptable in this country. The decision to
marry or not to marry or to have a heterosexual relationship is intensely
personal.
iv) Right of Women to Inherit Property
The Hindu Succession
Act, 1956, protects women's entitlement to ancestral property after an
amendment in 2005. Regardless of her marital status, she has rights to ancestral
and self-acquired property, such as her son. Whether a woman is married or in a
live-in relationship, she will inherit the right to parental property at birth,
while property obtained by oneself will be split according to the will.[31]
v) Right to get Maintenance
The term ‘palimony’ is
commonly used to refer to maintenance vis-a-vis live-in relationships. In
India, Sec.125 of the Cr.P.C. pertains to the right to maintenance. This
provision that got enacted to achieve social justice by aiding ‘destitute’
wives, hapless minor children and infirm parents is now applicable
to the indigent partner of live-in relationships.
Acting upon the recommendations of the Malimath Committee on Reforms
of Criminal Justice System to amend Section 125 of the Cr.P.C. and alter
the meaning of ‘wife’ therein, a revision was
made.
As per the current legal position, women who were in a live-in relationship,
and have subsequently been abandoned by their partner, enjoy the status of a
wife.
In Chanmuniya v. Virendra Kushwaha[32] The Supreme Court overturned
the lower court's decision, upholding a woman in a live-in relationship's
entitlement to maintenance under Section 125 of the Cr.P.C. The argument for
granting such a privilege to a woman in a live-in relationship is to guarantee
that a male does not take advantage of legal loopholes by enjoying the
advantages of a de facto marriage without performing the marriage's duties.
In Kamala v. Mohan Kumar[33] To promote the principles of
social justice and safeguard the right to dignity of persons contained in the
Constitution, the Hon'ble Supreme Court said that the term 'wife' should be
given a purposive construction. Long cohabitation between the woman and the man
led to the assumption of marriage, and the Court decided that the woman was
entitled to support for herself and their children.
As a result, the legal position is
that a woman in a live-in relationship has the same claim to maintenance as
lawfully married women.
In Lalita Toppo vs The State of Jharkhand and Anr[34]
the supreme court stated that under the DV Act, 2005, the victim,
i.e., estranged wife or live-in partner, would be entitled to more remedy than
what is envisioned under Section 125 of the Code of Criminal Procedure, 1973,
namely, a shared home. The Supreme Court stated that the Protection of Women
from Domestic Violence Act of 2005 allows a live-in spouse to seek maintenance.[35]
9.
Various Laws Applied To Live-In
Relationship
There
is no legal definition of a live-in relationship in the country. In various
decisions, the Indian Supreme Court has established and recognised this
concept. Though the legitimacy of such relationships is still debatable, a few
rights have been provided by interpreting and amending existing laws to prevent
partners from misusing such relationships.
i) Constitutional Law- Under Article 21 of the India constitution
where the Supreme Court of India in s. Khushboo
vs. Kanniamma[36] had interpreted that live in relation is
considered within the ambit of article 21 that is right of life and court
further stated that the live in relation cannot be considered as illegal. In
Kamini Devi & Anr. Vs. State of U.P. & Ors[37],
the court held that right to remain in a live-in relationship is guaranteed
under Article 21 of the Constitution's Right to Life and Personal Liberty. The
court ruled that a couple in a relationship has the right to peaceful living,
which no one can restrict. If there is an issue, the police should be called
right away for safety concerns.Article 21 of the Indian Constitution
establishes the legal framework for live-in relationship. This inalienable
basic right gives rise to the right and freedom of choice to marry or have a live-in
relationship with someone of one's own free will.
ii) Domestic Violence
Act (2005) -- The Domestic Violence Act of 2005[38]
was enacted to protect women from violent relationships and family members. The
Act, according to Section 2 (f), applies not only to married couples, but also
to "relationships in the form of marriage." In the instance of
physical, emotional, verbal, or economic abuse, a woman has the right to seek
redress under the Domestic Violence Act. In
addition, remedies for transfer of a woman's property and denial of access to
facilities to which the abused is entitled are provided. This Act provides
various rights and safeguards to the abused.
In
Varsha Kapoor v. Union of India[39]
, the Delhi High Court held that domestic violence is a human right issue and a
female living in a relationship in the nature of marriage has right to file
complaint even against the relatives of husband or male partner, not only
against husband or male partner. The Supreme Court in D. Velusamy v. D.
Patchaiammal[40]
has observed that a distinction has been drawn between the ‘relationship of
marriage’ and the ‘relationship in the nature of marriage’ by the Parliament
and has provided benefits under the Protection of Women from Domestic Violence
Act, 2005. It appears that the social phenomenon which has emerged in urban
areas of our country has been taken in notice by the Parliament
In Velusamy vs. D. Patchaiammal[41]certain
pre-requisites for a live-in relationship to be recognised valid were
determined by court. Court states that the pair must present themselves
to society as spouses and must be of legal marriage age or qualified to enter
into a legal marriage, even if they are unmarried. The couple must have freely
cohabited and presented themselves to the world as spouses for a long period of
time .The court determined that not all relationships are in the nature of
marriage and hence qualify for the Act's protection. It went on to say that if
a man keeps a woman as a servant and supports her financially, but just uses
her for sexual purposes, the relationship will not be recognised marriage in
court. To get such a benefit, the Court's criteria must be met, and this must
be proven by proof.
iii) Criminal Procedure Code (
Section 125 ) -- Under Section 125 CrPC a wife
can claim maintenance from her husband if he refuses to maintain her. If a
woman is able to establish a relationship in nature of marriage then she is
entitled to claim maintenance from such a partner as a presumption can be
raised by the court that such a relationship is a marriage and the woman can be
presumed to be a wife.
The
Supreme Court held in Chanmuniya vs Virendra Kumar Singh Kushwaha[42]
that a man who has lived with a woman for a long time and even though they may
not have met the legal requirements for a legitimate marriage could be held
accountable for her maintenance if he leaves
her. The male should not be able to take advantage of legal loopholes by taking
use of the benefits of a de facto marriage while avoiding the duties and
obligations. Any other reading would lead to the woman's vagrancy and poverty,
which is precisely what Section 125 guarantee of maintenance is intended to
prevent.
However,
there may be issues if we consider/presume that any long-term live-in
relationship is in the form of a marriage, because such marriages may be barred
by personal laws or other legislation. A presumption of marriage cannot be
formed if a Hindu male who is already married begins living in a long-term
relationship with someone since it would authorise a second marriage, which is
prohibited by the Hindu Marriage Act. Can a live-in partner also seek relief
under other laws such as the 125 CrPC and the DV Act?[43]
Guidelines given by court for the
expression “in the nature of marriage”
Supreme Court to some extent tried to clarify
the expression “in the nature of marriage” in the
Landmark Judgment of Indra Sharma v. V.K.V. Sharma[44] .The court held
that “when the woman is aware of the fact that the man with whom she is in a
live-in relationship and who already has a legally wedded wife and two
children, is not entitled to various reliefs available to a legally wedded wife
and such kind of relationship does not fall in a relationship “in the nature of marriage” as
per provisions of PWDVA 2005. But in this case, the Supreme Court felt that
denial of any protection would amount to a great injustice to victims of
illegal relationships.[45]
The
court gave certain guidelines to determine the relationships which will fall
within the expression ‘in the nature of marriage’ , which are as follows :-
a)
Duration of relationship
The
expression "at any point in time" is used in Section 2 (f) of the DV
Act to signify a reasonable amount of time to establish and continue a
relationship, which may vary from case to case depending on the facts.[46]
b) Pooling of Resources and Financial
Arrangements
Supporting
each other financially, or any one of them, by sharing bank accounts, acquiring
immovable properties in joint names or in the name of the woman, long-term
business investments, shares in separate and joint names, and so on, in order
to maintain a long-term relationship, could be a guiding factor. [47]
c) Domestic Arrangements
Entrusting the responsibility of running the
home, doing household tasks like cleaning, cooking, maintaining or maintenance
the house, etc. by woman is an evidence of a marriage-like
relationship.[48]
d)
Sexual Relationship
Marriage-like
relationships refer to sexual relationships that are not merely for pleasure,
but also for emotional and intimate reasons, such as propagation of children,
in order to provide emotional support, companionship, and material affection,
caring, and so on.
e)
Having Children
Having
children is a major indicator of a marriage-like relationship. As a result, the
parties plan to enjoy a long-term relationship. Sharing burden of raising and
supporting children is another significant factor. [49]
f)
Public Socialigation
Holding out in public and interacting with
friends, relatives, and others as if they are husband and wife is a powerful
circumstance to maintain the relationship is in the nature of marriage. (8)
Intention and conduct of the parties Common intention of parties as to what
their relationship is to be and to involve, and as to their respective roles
and responsibilities, primarily determines the nature of that relationship.[50]
In Tulsa
& Ors vs Durghatiya & Ors[52] the
Supreme Court gave legal validity to a 50 year live in relationship of a
couple. It was held that the court may presume the existence of any fact which
it thinks likely to have occurred. Reading the provisions of Sec.
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 and the
conduct of parties as they are borne out by the facts of a particular case.[53]
10.
Legal Status Of Children Born Out Of Live-In Relationship
i)
Children born from live-in relationships would not be treated as
illegitimate
While
granting right of property to a child in Tulsa vs Durghatiya[54] the
Supreme Court stated that children born from live-in relationships would not be
treated as illegitimate if their parents had lived under one roof and cohabited
for a significant period of time in order to be recognised as husband and wife,
and it could not be a "walk in and walk out" relationship.[55]
In Balasubramanyam v. Suruttayan [56] Children born out of live-in
partnerships were granted legal validity by the Supreme Court. According to the
Supreme Court, if a man and woman live together and cohabit for a long time,
there is a presumption of marriage under Section 114 of the Evidence Act. As a
result, their offspring will be recognised legitimate and will be entitled to a
share of the ancestral property.
ii) Inhritence right of children
out of live in relationship
In Bharatha Matha v. Vijeya Renganathan[57] The Supreme Court permitted
children born from live-in relationships a portion of their parents' property.
The Court decided that children born to live-in relationships could not be
considered illegitimate if the relationship lasted long enough.[58]
However,
such children's inheritance rights are restricted to the property of their
parents, according to Subsection (3) of the same provisions of the Act. As a
result, if their parents were not legally married, such children do not enjoy
coparcenary rights in the Hindu undivided family's (HUF) property. As a result,
the provisions of these parts of the Act have been used to offer an inheritance
right to children born out of a live-in relationship in the parents'
self-acquired property.[59]
In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors.[60],
the Supreme Court also
declared
that a child born out of a live-in relationship may inherit his or her parents'
property, but has no right to make a claim against Hindu Ancestral Coparcenary
Property.
iii) Right to maintenance
CrPC
Section 125 provides children with the right to demand maintenance even if
their personal laws do not allow for it. Even if the live-in couples are
estranged, they are still required to support their children.
Maintenance
is often explained as the obligation to provide for another person. It forms a
very important aspect in the case of a child born out of a live-in relationship. Under the Hindu
Adoptions and Maintenance Act, 1956, Section 21, a
legitimate son, son of a predeceased son or the son of a predeceased son of a
predeceased son, so long he is a minor or/and a legitimate unmarried daughter
or unmarried daughter of a son or the unmarried daughter of a pre-deceased son
of a pre-deceased son shall be maintained as dependants by his/her father or
the estate of his/her deceased father. A child born out of live-in
relationships had not been covered under this Section of the given Act and
consequently had been denied the right to be maintained under this
statute.
The
Indian judiciary used its power to achieve the ends of social justice in the
landmark case of Dimple Gupta v Rajiv Gupta[61] wherein
the Supreme Court held that even an illegitimate child who is born out of an
illicit relationship is entitled to maintenance under Section 125
of the CrPC (Code of Criminal Procedure, 1973) which
provides maintenance to children whether they are legitimate or illegitimate
while they are minors and even after such a child has attained majority if
he/she is unable to maintain himself/herself. Even though there have been quite
some cases that have upheld the maintenance rights of live-in partners where
the statutes were interpreted in a very broad manner to include female live- in
partners as “legally wedded wives”, however, in the case of
Savitaben Somabhai Bhatiya v State of
Gujarat[62]
made an exception where the live-in partner had assumed the role of a second
wife and was not granted any maintenance, whereas the child born out of the
said relationship was granted maintenance.
iv) Custodial
rights of children
When partners in a live-in relationship break up, child
custody issues arise. Because there are no explicit statutes governing the
custody rights of children born from a live-in relationship, courts consider
them similarly to marriage proceedings. The wellbeing of the youngster is
vital, therefore the courts will take that into account and grant custody
appropriately.
v) Deniel of maintainence to
children can be challenged under article 32 of Indian Constituion
The denial of maintenance to a child born out of a
live-in relationship can also be challenged under Article 32 of the Indian
Constitution, as a breach of the fundamental rights guaranteed under Article 21
of the Constitution, which protects the Right to Life and Personal Liberty. The
Kerala High Court concluded in PV Susheela v Komalavally [63]that such a refusal might deprive an
individual of his or her right to live a dignified life.Unequal treatment of a
child born out of a live-in relationship and a child born out of a married
relationship, even though both are legal, might be considered a breach of
Article 14, which guarantees equality before the law.
11.
Social Response To Live-In Relationship In India
People
in India believe that live-in relationships are incompatible with Indian
culture. The greatest approach to find out if a person truly wants to marry his
or her spouse and live forever is to maintain a regular, healthy relationship
(which includes going on dates, hanging out, chatting on social-networking site
etc). However, in terms of marriage and sex, one should not cross the limit
imposed by society. Marriage is special links between two people who have taken
marriage vows to be together no matter what occurs and seek the blessings of
their elders. live-in relationship has several issues. For example If
a guy is unhappy with his girl, he will simply drift off, leaving her alone,
and a female may do the same if she decides to end the relationship. In any
situation, finding the appropriate bride/groom for oneself would be extremely
tough. And it's especially tough for the girl, who will face a lot of
embarrassment and problems if she becomes pregnant. In most cases, unmarried
males would never accept a female along with her baby. The only
alternative left to her would be an abortion, which is both legally and
ethically wrong. Indians strive to imitate Westerners, yet 90% of males are
concerned with "virginity," and they are unable to look beyond
that.
They'll quickly characterize a non-virgin female as wicked since she went out
of her way to live with a man who wasn't her spouse. Marriage binds partners
socially and ethically, so they think twice before divorcing; yet, live-in
relationships may or may not work, and a woman cannot just have sex with guys
to see whether he is the appropriate spouse for her. There are some delicate
issues to consider regarding the importance of live-in partnerships in Indian
public life. When it comes to Indian culture, it is generally known that the
vast majority of Indians follow a traditional lifestyle. Encouragement of an
uncommon notion such as live-in relationships will undoubtedly cause a stir in
society, resulting in many disruptions. It also undermines long-held beliefs of
institutions such as marriage and family. It might develop to a scenario where
such behaviours endanger the position and rights of women, who have already
been marginalised for ages.. Most significantly, young girls are at risk of
being exploited by dishonest males, who exploit them for desire and ruin their
lives based on erroneous notions. In recent Supreme Court decisions, the court
ruled that all live-in relationships do not qualify as marriages for the
purposes of the Prevention of Women from Domestic Violence Act 2005. Women in such
situations are 'not' entitled to any financial support.The lady is at a
disadvantage in this situation. She is the one who gets judged when a
relationship fails. If there is violence between spouses in a live-in
situation, no one steps in. Here, too, the woman bears the burden of proof, and
others make judgement on her character. Our culture will not change unless we
alter the way we raise our daughters. How many middle-class parents can
honestly claim that their daughter has the freedom to choose whether or not she
wants to marry or just live with a man? Our society is quite patriarchal.
Couples are murdered here for falling in love.
Caste
panchayats in certain areas decide the fate of young couples who defy the norm.
A girl was hung from a tree by her own family in Muzaffarnagar, Uttar Pradesh,
for having an affair with a male her family did not approve of. How do people
support live-in relationships in a culture that is so rigid about arranged
marriages and against inter-caste relationships?
12.
Conclusion
By
all accounts, the notion and legal status of a live-in relationship in India
have only grown through time, with successive judgments by the Honourable
Supreme Court and the Apex courts playing the most important role.However,
there is no validity to the matter because there is no specific statute in
India for live-in arrangements. Although the notion of a live-in relationship
is a moral issue in India, it is not unlawful under the law. The Supreme Court
ruled that two significant persons living together are exercising their right
to life and hence cannot be considered criminal. India is a country where
morals is vitally important. Keeping this in mind, the legislature cannot
encourage pre-marital sex as part of a live-in relationship. It is because a
live-in relationship is a very personal affair, and individuals may express
their feelings about it. As a result, the parliament must pay attention to this
issue and enact appropriate legislation in the form of an act. This will allow
the partners to feel comfortable and live their lives as it is their right.
Dimple Gupta sued the respondent Rajiv Gupta for
maintenance under section 125 of the Code of Criminal Procedure through her
mother Narain Dassi, saying that he was her father and that she was born out of
a relationship between him and her mother. The application claimed that she was
living with her mother in village Nogali, Tehsil Rampur, Himachal Pradesh, at
the time the petition was filed, and that she was conceived out of wedlock when
her mother was a student in the Government High Court School in village Nogal.
It was further claimed that when the respondent learned that Narain Dassi had
pregnant, he took her to Chandigarh to have the foetus aborted, but the doctor advised
that because the pregnancy was advanced, the surgery could not be performed.
The respondent was also accused of abandoning her mother, after which she was
born on 8.7.1991 in village Kalpa. The Supreme Court ruled that a child born
out of a live-in relationship might sue his biological father for maintenance.
The Supreme Court overturned a decision of the Himachal Pradesh High Court
dismissing Dimple Gupta's (minor) claim for maintenance from her father Rajiv
Gupta on the grounds that she was born out of a relationship between her mother
Narain Dassi and Rajiv Gupta when they were living together.