COHABITATION LAW IN NEED OF CHANGE :

 SHOULD COHABITATION BE EQUATED TO MARRIED COUPLES

INTRODUCTION-

India has witnessed a drastic change in the last decade in the way the [present generation perceive their relationships. The taboo that used to haunt partners in live-in relationships has also started to fade away with society opening up about the idea of pre-martial sex and live in relationships. Today’s generation is hanging between two important words i.e. Marriage and live in relationship or Cohabitation.

Marriage, commonly known as Shaadi in India, is also called wedlock and is a social/ritual contract between the spouses and their families. India being a diverse country, different laws have been framed which lay down the procedures and guidelines for execution of marriage.

For different religion different set of rules are made. For Hindu marriage were Satpati ( Seven Pheras) or Saspinda are followed. The conditions for valid Hindu marriage  is stated under Sec 5[1]. And for inter caste marriage i.e. Hindu or Muslims or Christian or any other religion (visa versa), special marriage act is made. Thus, marriage is considered as sacred ritual in India.

But now a days a new trend has arisen known as live in relationship or cohabitation relation. When two people live together as husband and wife they are known as living in a cohabitation relation.[2]

In other words, when two individuals live together under the same roof but both partners enjoy individual freedom without being married to each other. It involves continues cohabitation between the parties without any responsibilities or obligations towards one another.

The Supreme Court in Lata Singh v. State of UP[3]  held that live in relationship is permissible only in unmarried major persons of heterosexual sex. The live in relationship if continued for such a long time, cannot be termed in as walk in and walk out relationship and there is a presumption of marriage between them.

Initially there is no law which bind them together, therefore, they can walk out of the relationship whenever they want to. Even the status of children born from this relationship is also unclear. Therefore, the apex court has provided clarity over this issue through various judgments.  The right to maintenance in live in relationship is decided by the court in accordance with the domestic violence act 2005.

The apex court in so many of its judgments has stated that if a man and a woman “ lived like husband wife” in a long-term relationship and even had children, the judiciary would presume that the two were married and same laws would be applicable.                                                          In another instance, the apex court even declared that for a man and a woman in love to live together is part of the right to life and not a “criminal offence”. Therefore, live in relationships are legal in India.[4]   

The Supreme Court in D. Veluswamy v. D. Patchiammal[5] 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. Therefore, marriage and live in relationship have been recognized as different aspects in altogether by the Indian Judiciary.

PROTECTION AGAINST EXPLOITATION BY WOMEN AND CHILDREN IN LIVE IN RELATIONSHIPS[6]

1. MAINTENANCE OF WOMEN

Since no remedy is granted to women involved in a live-in relationship, Indian Courts have widened the scope of maintenance under the Criminal Procedure Code. Therefore, Section- 125[7] has been provided to give a legal right of maintenance to lady partners in or out of a marriage.

 In the recent case of Ajay Bharwaj v. Jyotsana, the court awarded a sum of 40 lakhs as maintenance to the women in a live in relationship. The court also referred  to the 2003 report of the Malimath Committee, ‘Reforms in the Criminal Justice System,’ that recommended that the that the word ‘wife’ in section 125 CrPC should be amended to include a woman, who is living with a man like his wife for a considerable amount of time. In furtherance of the recommendation of the National Commission for women to the Ministry of Women and Child Development, the court upheld that the women can seek maintenance under Sec 125 CrPC, 1973, in the case of Abhijit Bhikaseth Auti v. State of Maharashtra and others.

In order to get maintenance, the essential four conditions are[8]:

  • The couple must hold themselves out to society as being akin to spouses.
  • They must be of legal age to marry.
  • They must be otherwise qualified to enter a legal marriage.
  • They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period.

In the recent case of Ajay Bharwaj v. Jyotsana[9], the court awarded a sum of 40 lakhs as maintenance to the women in a live in relationship. The court also referred  to the 2003 report of the Malimath Committee, ‘Reforms in the Criminal Justice System,’ that recommended that the that the word ‘wife’ in section 125 CrPC should be amended to include a woman, who is living with a man like his wife for a considerable amount of time.                                        In furtherance of the recommendation of the National Commission for women to the Ministry of Women and Child Development, the court upheld that the women can seek maintenance under Sec 125 CrPC, 1973, in the case of Abhijit Bhikaseth Auti v. State of Maharashtra and others[10].

2. STATUS OF CHILDREN

As compared to marriages, the children born from live in relationship are questioned. Sec 112[11] recognizes legitimate child, which states that child born from the continuance valid marriage between mother and father.

But in case of Tulsa v. Durghatiya, the Supreme Court awarded legal status to the children born from a live in relationship. Nevertheless, the court in the case of Dimple Gupta v. Rajiv Gupta, held in furtherance of the above stated view that children from live in relationships have the right to maintenance.

The Supreme Court held that a newborn out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenaries property and can only claim a share in the parent’s self- acquired property.

In view of sec 16[12], the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.[13]

And lastly, the couples of live-in relationships cannot adopt children. No legal statute support them for the same. But, in central adoption resource authority has restricted that couples can not adopt child when in a live in relationship.

JOURNEY OF LIVE IN RELATIONSHIP ACCEPTANCE THROUGH LANDMARK JUDGEMENT  OVER THE YEARS –

1. BADRI PRASAD v. D. DIRECTOR OF CONSOLIDATION[14]

This was the very first case which came in Supreme Court of India which recognized live in relationship and interpreted it as a valid marriage. The judgment was delivered by Justice Krishna Iyer, that a couple living together for 50 years is a legally valid couple.

2. TULSA & ORS. V. DURGHATIYA & ORS[15]

The Supreme Court provided legal status to the children born from live in relationship. It was held that one of the crucial pre-conditions for a child born from live-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife and it must not be a “walk in and walk out” relationship. Therefore, the court also granted the right to property to a child born out of a live in relationship.

3. D. VELUSAMY v. D. PATCHAIAMMAL[16]

The judgment determined certain pre-requisites for a live in relationship to be considered valid. It provides that The couple must hold themselves out to society as being akin to spouses and must be of legal age to marry or qualified to enter into a legal marriage, including being unmarried.

4. S. KHUSHBOO v. KANNIAMMAL & ANR[17]

The Supreme Court in this case dropped all the charges against the petitioner who was a south Indian actress. The petitioner was charger under Section 499 of the IPC and it was also claimed that the petitioner endorsed pre-marital sex and live in relationships. The court held that living together is not illegal in the eyes of law even if it is considered immoral in the eyes of the conservative Indian society. The court stated that living together is a right to life and therefore not ‘illegal’.

5. INDRA SARMA v. V.K.V. SARMA[18]

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)

CONCLUSION –

Thus, live in relationships are more widely accepted in foreign land. But in India, the social stigma goes against the individual way of living. Though, cohabitated relationships have gained legal acceptance in India, but no proper law and procedures are fixed.

Therefore, live in relationship are not illegal in the eyes of law but till date the concept is considered immoral. Only to safeguard women, and children born from this relationship, few amendments are made in existing laws.


[1] HINDU MARRAIGE ACT,1955,  Sec 5.

[2] https://dictionary.thelaw.com/cohabitation/.

[3] (2006) 5 SCC 475.

[4]https://www.thebetterindia.com/132607/want-to-get-into-a-live-in-relationship-here-are-the-rights-you-need-to.

[5] AIR 2011 SC 479.

[6] https://www.thebetterindia.com/132998/auto-drivers-daughter-tops-provincial-judicial-exam/.

[7] CRPC, 1973, Sec 125.

[8] Duff.Johnette and George G. Truitt, 1992. The Spousal Equivalent Handbook: A legal and Financial Guide to living together. New York: Penguin, NAL/Dutton.

[9] 2016 SCC P&H 9707

[10] AIR 2003 Bom 304.

[11] INDIAN EVIDENCE ACT, Sec 112.

[12] HINDU MARRIAGE ACT,1955, Sec 16.

[13] Vacation bench, justice B.S. Chauhan and Swatlantra Kumar.

[14] Air 1978 Sc 1557.

[15] (2008) 4 SCC 520.

[16] CRIMINAL APPEAL NOS. 2028-2029 OF 2010.

[17] (2010) 5 SCC 600.

[18] 2013 (14) SCALE 448. 

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