ANALYSING LIVE IN RELATION IN SOCIO-LEGAL CONTEXT IN INDIAN SOCIETY
– Devesh Saxena 1
– Abhishek Kumar 2
‘Live-in’ as defined by Oxford Dictionary is living with another in a sexual relations hip . It is also defined as a living arrangement in which an un-married couple lives together in a long- term relationship that resembles to a marriage.
This article emphasises about the recently increasing trend that we see in the area of living arrangement which we now know as “live in relationship”. This concept has been analysed on various parameters ranging from society point of view in the Indian scenario to the position and place of women in the Indian culture. It has also been tested on the touchstone of Domestic Violence Act, 2005 and Code of Criminal Procedure in India. The examination is entirely based on the role of judiciary via decided cases and literary and scholarly articles.This paper also brings out the socio-legalimpact of legitimising live in relationship in Indian society. Thus the paper discusses both the arguments and provides a balanced view with respect to the current status quo of live in relation in Indian society.
‘Live-in’ as defined by Oxford Dictionary is living with another in a sexual relationship.3 It is also defined as aliving arrangement in which an un-married couple lives together in a long-term relationship that resembles to a marriage.4 Child born out of such an arrangement is not recognised by law as a legitimate child. In feudal society, sexual relationship between man and woman outsidemarriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel’Anna Karenina’, Gustave Flaubert’s novel ‘Madame Bovary’ and the novels of the great Bengaliwriter Sharat Chandra Chattopadhyaya.5 In Muslim law, the very purpose of amarriage is to legitimise the child. In Hindu law, children born out of unmarried parent are considered illegitimate, although children born out of void marriages are at times considered legitimate according to Section 16 of Hindu Marriage Act, 1956.6 However there is no exact definition of legitimacy but in absence of such definition the general accepted proposition is to provide legitimacy to children, there should be a legitimate marriage .7
LIVE-IN RELATIONSHIPS IN CONSONANCE WITH CR.P.C& DOMESTIC VIOLENCE ACT 2005
In India, we do not have any legislation which deals with live-in relationship and so there are chances of gross violation of women’s right and exploitation under such cases. The law fails to recognise such a status of a woman. There have been attempts to bring such situations under the ambit of TheProtection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states: “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.8
But when we try to bring woman living in a live-in relationship under theambit of section 2(a)of the protection of the women from domestic violation act 2005 the primary question before us, is weather can we classify woman living in a relationship as a domestic women? Or the term domestic relationship mentioned in the act indicates only towards married relationships.Although this controversy has been tried to answer by section 2(f) of PWDVAct, 2005.Section 2(f) states that “domestic relationship” means 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 ofmarriage, adoption or are family members living together as a joint family.9 But, in spite of the clarification provided by section 2(f) there is ambiguity with regards to the term “marriage” and the term “relationship in nature of marriage”. It’s very difficult to prove weather live-in relationship qualifies the condition of ‘relationship in nature of marriage’.
If we are able to bring live-in relationship under the ambitof relationship in nature of marriage, then any violence constituted under such a relationship will directly come under PWDV Act, 2005. As Section 3(a) states that an act will constitute domestic violence in case it harms or injures or endangers the health,safety, life,limb orwell-being, whether mental orphysical, ofthe aggrieved person ortends to do so and includes causing physicalabuse, sexualabuse, verbaland emotionalabuse and economic abuse;”. The expression “economic abuse” has been defined to include :deprivation of all or any economic or financialresources to which theaggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance.10
But validating the live-in relationship and classifying it as marriage will directly contravene the provision of Hindu Marriage Act, 1956 which makes ceremony mandate. We are bringing a relationship under the ambit of marriage without any ceremony. This is the violation of the personal laws which establish the concept of marriage in society and dilutes the culture of a particular society.
PRESUM PTION OF VAL ID M ARRI AGE AND MAINTENANCE
The issue has gathered and such a huge dimensions that Justice GS Singhvi and Justice AK Ganguly have urged the Chief Justice SH Kapadia to set up a larger bench to consider whether theliving together of a man and woman as husband and wife for a considerable period would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under section 125 Cr.Pc.? Secondly whether proof of marriage is essentialfor a claim of maintenance under the section?
Also whethera marriageperformed accordingto customary rites, without strictly fulfilling the requisites of the Hindu MarriageAct, or any other personal law, would entitle the woman to maintenance under the section?”
In the case of Savitaben Somabhai Bhatiya v. State of Gujarat and Ors11, it was held that relationship “in the nature of marriage” is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
In the case of D. Velusamy Vs. D. Patchaiammalthe judges gave their opinion as a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, includingbeing unmarried.
(d) They musthave voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.12
INDIAN SOCIETYAND ITSAPPREHENSIONS TOWARDS LIVE IN RELATIONSHIP
In the case of S. Khushboo Vs. Kanniammal and Anr13 we must also respond to the claim that the appellant’s remarks could have the effect ofmisguiding youngpeople by encouraging them to indulgein premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular. Allthat the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appellant’s statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.
Before addressing the legal aspects of the case before us, it would be usefulto examine the relevant facts. In September 2005, ‘India Today’ a fortnightly news magazine had conducted a survey on the subject of the sexualhabits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex.As a part of this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should takeadequate precautions to preventunwanted pregnancies and the transmission of venerealdiseases. This can be readily inferred from thestatement which was published,a rough translation ofwhich is reproduced below:
The High Court also proceeded to record its own views regarding the contents of the appellant’s statements and even made some strong observations condemning the incidence of premarital sex and live-in relationships.
While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC.At this juncture, we may refer to the decision given by this Court in Lata Singh v. State of U.P. and Anr.14 wherein it was observed that a 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. Amajor girlis free to marry anyone she likes or “live with anyone she likes”. In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not really touch on whether premaritalsex is socially acceptable.
Considering the new trend of live in relationship in a country where multiple religions exists and wesee marriage as the centre of the religion as well as culture, both does not seems to match the frequency as it diminishes the pride and roots of a culture.
MAINTENANCE OF LIVE IN ARGUMENT
Since then the National Commission for Women (NCW) has made a change in the definition of wife which deals with maintenance and has recommended that women in live-in relationships are entitled to maintenance if the man deserts her”. Thus there is certain sort of protection of women in cases of live in relations provided but they are not strictly followed.
Marriage is always considered better over live in relationship at least in India. At least marriage has been legally recognized by the legislature by enacting Matrimonial Laws concerning all the issues relating to marriageincluding its disputes etc.The judiciary has laid down principles based on these matrimoniallaws/enactments while adjudicating any matrimonialdispute when brought for settlement. Allthis the court has doneto protectthe legalright ofthe party & avoid unnecessary suffering to it by refusing to consider them married. Some people think such judgments by the Supreme Court of India in a particular case as if the Judiciary has legally recognized the live in relationship. The paper point out herethat itis theSupreme Courtitself which has given strict directions to allthe State governments of Indian States to enact laws to make the Registration of Marriage Compulsory process in a Valid Marriage irrespective ofthe religion of theparties. Let only theproperly registered marriages recognized as legally valid marriage. So we see that the real intention of the Supreme court of India/Judiciary for generalpublic is thatthey should not only get properly married buteven gettheir marriage properly registered.
The Honourable Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Aswani kumar15 (AIR 2006 S.C 1158) has directed the State Governments and the central government hat marriages of all persons who are citizens of India belonging to various religious denominations should bemade compulsorily registered in their respective States where such marriages are solemnized and inter aliadirecting that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.
Thus the article gives a balance view on the upcoming scenario of live in relationships and tries to demonstratethe effects of livein relationship. The paper provides the stance of judiciary and the legislature on the concept of live in relationship. The paper leaves it to the opinion of individual to analyse their view on the idea of live in relationship.