Introduction
Law and society are two aspects of the same coin, what is constant is only the change and as our modern and fast changing society is now adapting to such practices which were previously considered as Taboo for instance Live-In-Relationship i.e. having sex between man and woman before getting married or living under the same roof before marriage. As nowadays Cohabitation and living together like husband and wife before marriage has become a common practice. Indian courts made this pattern of relationship legal but though Live-in-Relationship has been legalized by the Supreme Court of India there is no legislation enacted specifically for live in relationship and there is still a dilemma in the mind of people that whether it is a good way of leading a life, whether it is ethical or not or it is leading us to a lack of faith in Institution of Marriage.
Meaning
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.
Earlier, in Ancient Hindu law, marriage was considered sacramental and the purpose of performing marriage is to perform religious duties to attain Moksha and heaven but now this notion has changed as we can analyze from the above definition that people live together for the sake of emotional gratification and sensual inclination. People who find romantic feelings and good compatibility with anyone join each other and start to live together without performing marriage.
Legality of Live in Relationship
There is no specific or explicit law legislation regarding live-in-relationship in India, thus, Supreme Court through judicial decisions expanded the notion of live in relationship and established rules for dealing with such relationships.
The Supreme Court first observed live-in relationships as legitimate in the case of Badri Prasad v. Dy. Director of Consolidation [2] The Court said that under Indian law, a live-in relationship between consenting adults is legal if the requirements of marriage, such as legal age of marriage, consent, and soundness of mind, are met. No rule permits or bans such connections.
In the case of Lata Singh v. State of U.P.[3], the Supreme Court ruled that, although live-in relationships are considered unethical, they are not illegal under the legislation. But, here a question arises in mind that though Supreme Court has given the Live in Relationship a legal status there is still no specific legislation upon such relation and do the Indian society where living of a man and woman under the same roof before marriage is considered unethical accept such kind of relationship?
In India, Live-in-Relationship is disapproved in the society as here in India marriage is seen as the societal foundation of legalizing a man and woman connection. We can find traces of importance of the institution of Marriage under Ancient Hindu scriptures which reads as:
According to Shastras A man is the only half of his self until he takes a wife and without having a wife he cannot perform some rituals and religious duties.[4]
If we see from the religious point of view in Live-in-Relationship a woman doesn’t get the status of wife due to which a man cannot perform his religious obligations and women would also not get the status of wife which has been stated in Vedic period that:
The wife on her Marriage was at once given an honoured position in the house. She exercised authority over her husband’s brothers and his unmarried sisters. She was associated in all the religious offerings and rituals with her husband and completes him.[5]
In Indra Sarma v. V.K.V. Sarma[6] some guidelines (not exhaustive) were laid down to determine whether a live-in relationship falls within the category: –
- Duration of period of relationship
Shared household- as defined under 2(f) of the DV Act that domestic relationship as 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.
- Having/planning children-A very strong indicator
- Pooling of Resources and Financial Arrangements Supporting each other, or any one of them
- Sexual relationship-Not just for pleasure but for an emotional and intimate relationship
- Socialization in public- Holding out to the public and socialising with friends and families.
- Intention and conduct of the parties- Common intention of the parties as to what their relationship is to be
- Domestic arrangements entrusting the responsibility- Women to run home and do household chores
Recent High Court Judgements
Justice H.S Madaan stated in Gulza Kumari v. State of Punjab[7] that the non-marital relationship is not culturally or morally justifiable. As a result, the petition was rejected. The Supreme Court has affirmed the legitimacy of live-in relationships in several cases, but in Gulza Kumari, the Court failed to consider the precedent, which is the rule of the court as it was provided by the top court of the nation. For the proper reasons, the Gulza Kumari v. State of Punjab (2021) ruling has garnered a lot of criticism. Within weeks following this verdict, the High Court of Punjab and Haryana announced another decision, but with a totally opposite result.
In Pushpa Devi v. State of Punjab (2021), the petitioners, a female around the age of 21 and a boy around the age of 19, requested the court’s protection to safeguard their live-in relationship from their families, who have been willing to kill them just for family reputation. They were unable to marry because one of the applicants, a boy, had not reached the legal marriage age of 21.
The Court, through Justice Arun Kumar, awarded the petitioners the right to life and personal liberty on the grounds that both applicants have reached the age of majority and have the freedom to choose. This case appears to emphasise the significance of reaching the age of majority and how it alters the manner in which legal protection is conferred.
In Rohit Kumar v. State of U.T. Chandigarh (2022) and others, the Punjab and Haryana High Court has urged the Union Government to outline its plan for dealing with live-in relationships. Noticing that no Act controls these relationships and that once an individual has achieved majority in terms of the Majority Act, 1875 (i.e., 18 years of age), it would be challenging for a court to refuse the validity of a live-in relationship, the Bench of Justice Amol Rattan Singh tried to seek a response from the centre by stating, “…what is recommended is to make sure that too many youngsters with developing minds (not properly matured though they otherwise, theoretically, are of the majority age in terms of the aforementioned Act) would not start living together and end up regretting such choices in life, causing major trauma to their parents and loved ones.”
Question
The thinking of the society heads in a direction that whether welcoming the concept of live-in relationship will directly or indirectly invite the pre-marital sexual relationships? In fact they will consider as a sin. The benefits in a legal that are arising out of marriage tends to encourage the couple to enter into formal commitments to assume family responsibilities.
- Is live in relationship legal in India?
- What happens if either of the partner in live in relationship already has a spouse?
- What will be the effect of live in relationship on the institution of Marriage and Family?
- Will there be sense of security between partners.
Legitimacy of the child born out of Live-in-Relationship
Before 2010, children born out of live-in-relationship were considered illegitimate for legal purposes. However, Supreme Court in Bharata Matha v. R. Vijaya Renganatha[8] held that “children born out of the live-in relationship are legitimate and upheld their inheritance right in the property”.
Section 16 of The Hindu Marriage Act, 1955 indirectly provides legitimacy to such children and grant them the right of Inheritance.
In S.P.S Balasubramanyam v. Suruttayan,[9] the Supreme Court for the first time considered the question of the legitimacy of children born from live-in relationships. It was held that “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.”
The question arises here is that will the society accept children born out of Live-in-Relationship?
Children born out of such relation undergoes the social stigma of being tagged “illegitimate” by the society and if the parents of such child breakups or ends their live-in-relationship, they have to suffer the agony of the long custody battle[10] consequences of which will be the depression, mental or emotional trauma and poor growth of the children.
Maintenance of the Women in Live-in-Relationship
Section 125 of the Criminal Procedure Code allows a wife to seek maintenance from her spouse if he refuses to maintain and support her financially. If a woman is able to form a marriage-like connection she is eligible to receive maintenance from her partner in live-in-relationship because the court presume such a relationship as marriage and the woman is considered to be a wife. The chief motive of including live-in relationships under the purview of Section 125 are to protect women from domestic violence and to increase the legal threshold for partners in live-in relationships to the level of marriage. The Supreme Court expanded on this precedent from the guidelines of the Malimath committee appointed by the Home Ministry. The committee was chaired by Justice Malimath to make recommendations on the aforementioned proposition.
The Committee submitted its findings in 2009, proposing that the definition of alimony/maintenance under Section 125 be modified to enable women to obtain it. As a result, the Supreme Court ruled in the case of Abhijit Bhikaseth Auti v. State of Maharashtra and Anr (2009) that a woman is not required to prove marriage to seek maintenance under Section 125 of the CrPC meaning that a woman in a live-in relationship is also entitled to maintenance. This decision demonstrates our judiciary’s liberal and contemporary stance.
Impacts of live in relationship on marriage and family life
Marriage is more prone to divorce –
Premarital cohabitation is not associated with negative marital outcomes for everyone, and we tested the hypothesis that engagement status at the point when a couple begins cohabiting is one key factor in determining who is at greatest risk. Specifically, we tested the hypothesis that cohabiting before making a formal commitment to marriage is associated with an increased risk for poor marital outcomes.[11]
They find that living together before marriage is associated with lower odds of divorce in the first year of marriage, but increases the odds of divorce in all other years tested, and this finding holds across decades of data. (https://ifstudies.org/blog/premarital-cohabitation-is-still-associated-with-greater-odds-of-divorce)
Thus, despite the fact, that society is changing and perception for pre marital cohabitation is changing as well but still it appears to be a risk factor for divorce or poor marital relations.
Conclusion
As we conclude we learnt that Indian Judicial system is getting liberal and changing itself to cope up with new challenges of the modern society regarding Live-in-Relationship but the Legislature still haven’t took any step for the same. The Supreme Court has resolved many issues of Live-in-Relationship for instance status of the female partner, the legitimacy and inheritance rights of the child born out of such relationship and Maintenance under section 125 of the Code of Criminal Procedure but there is still dilemma about the legality of live-in-relationship.
It is clear from the Ancient Hindu scriptures that Marriage is necessarily the basis of the social foundation from which important legal rights and obligation emerges. Earlier in Hindu Law, Marriage was sacrament and considered as the compulsory religious duty which was performed mainly for the purpose of performing religious duties and sacrifice and to procreate children but now the society has changed as people don’t bother themselves to get into a marital relationship instead love to live and cohabit without having any marital relation as live-in relationship provides a care-free life from the struggle of responsibilities and commitments involved in the institution of the Marriage. However, it’s a genus giving rise to many sociological issues as the society is formed with traditions and customs which are foundational pillar. India, a country of cultural values cannot afford to fall into western ways and when the live-in-relationship will reach to its heights people will prefer to have live-in-relationship instead of marrying due to which the Indian foundational social institution of Marriage and Family will be lost.
It is not the necessity at this point of time to attempt to bring live-in relationships under the purview of any existing law, but rather to enact a new, distinct law that would examine the issue of live-in separately and would grant rights and obligations on the part of the couples, reducing instances of misuse of existing laws as well as cases of atrocities faced by the female partners in such relationships. Whether you like it or not, the live-in relationship phenomena is deeply ingrained in India’s social structure and seems to be mounting a daring challenge to the institution of marriage. Every nation’s legal system must adapt to the times as they change.
Sociologists have noted that living together is “under-institutionalized,” which contributes to the fact that informal relationships are less permanent than marriage. Couples that live together may experience the same. The parties will be aware that a live-in relationship is not a valid marriage. Perhaps only religious weddings will be viewed as being based in commitment in live-in relationships. There will likely be fewer durable partnerships than even contemporary marriages if live-in relationships are not entered into with the same seriousness of purpose that defines marriage and if they are not constrained by commitment norms.
As the concept of Live-in-relationship rises there is the need of registration of such relation otherwise how the legitimacy of the children be decided and how will the women prove in the court that she is in Live-in-relationship with such person and there will also be chances of Fraud cases of Live-in-relationship and the new idea of crime of extortion will come into existence in which people will extort money or valuable things from the other person in lieu of the fraud Live-in-relationship case. The other situation will be that if a woman is abused by any person how will she claim.
The issues raised above are such that it will make Live-in-relationship somewhat same as Marriage. Thus, here the Legislature of our country has to think out of the box and enact such law that people can enjoy the Live-in-relationship without any fear of abuse and uncertainity and which will not involve any formalities which will bring such relation into the purview of Marriage. Then, there will be no difference between Marriage and Live-in-relationship.
With the emergence of Live in relationship, the institution of family will be destroyed because under the institution of Marriage, not only two people comes into relationship but the whole family of both the parties comes into relationship, which leads to the responsibility of taking care of each other’s parents also. Now, here the question arises that as in the institution of live-in-relationship parties are not bound to live at the place of either husband or wife. Then, who will be responsible for taking care of their Parents if they live at some another place? Without marital relationship there arise no duty to take care of them. Thus, it would be very difficult for the parties to resolve such issues.
Section 9 of the Hindu Marriage Act, 1955 talks about the Conjugal rights of the parties. It talks that if either party withdraws from the society of the other without any reasonable cause or excuse. The aggrieved party may apply by Petition to the District Court, for the restitution of Conjugal rights. Under this section one situation is arrived in the case Swaraj Garg v. K.M. Garg, 1972 that if a wife is working profitably at the place which is far away from the house of husband. Then, the wife is allowed to live at that place. My issue here is that if in Live-in-relationship either party withdraws from society of other then the aggrieved party can file a petition against that guilty party?
