1. Introduction:
India a country of cultural values and rituals, ceremonies cannot afford to plunge into western society. But since growing economy and people getting more and more aware, India finally has to step ahead and walk with the rest of the world by legalizing Live-in relationship. Yeah it sounds absurd that country like India would allow its citizens to do that, but its fact the state cabinet gave its green signal to amend Section 125 of Criminal Procedure Code which seeks to protect the pecuniary interests of the other women. However, it would need the centre's stamp of approval to become a law.
The definition of the word wife would have to be change which is under section 125. The amendment done would be like a woman who believes in Live-in relationship or wants to have a polygamous relationship is legal. The state has proposed a reasonably long period for that woman to stay with the mate, but has not defined duration of that period specially
In a country like India this is one of the odd steps taken, but still its better one.
2. Meaning of Live-in Relationship:
The legal definition of live in relationship is "an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage" [1].
Live-in relationship is one such connection in which a boy and girl have some relation before their marriage and if they are satisfied with their partner they get married or be like that for years. This kind of act though seems different; it is one, which is being implemented today. Live-in relationship handles matter of premarital sex, but those couples who are maintaining relations don't mind such things. Overall, this relation builds up harmony between the couples, but spoils their social influence [2].
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 [3].
3. Difference between Live-in Relationship and Marriage:
A marriage is governed by a separate set of laws in all countries which safeguards the interests of both parties who enter into the union. Live-in relationships on the other hand have received due recognition in a few countries such as France and Philippines. In India, presently there is no law defining the maxims of a live-in relationship. The Supreme Court however, has observed in a current ruling that a woman who has lived in a live-in relationship for a long period of time should enjoy the same rights that a married woman is entitled to.
Live-in relationships do guarantee immense financial freedom for both parties involved. In a marriage however, it is generally accepted that the married couple share their earnings and enter into joint financial venture. However, these rules are not carved in stone. In today's day and age even married couples tend to keep their financial matters separate and many live-in couples decide to share their individual earnings.
Despite the fact that there are scores of couples who are opting for live-in relationships, the society still attaches a taboo to such relationships. The majority looks at live-in relationship as a dilution of morals and more importantly tradition. Marriage on the other is still venerated by most despite the alarming rise in the number of divorces and problems in relationship. Therefore, the primary difference between live-in relationships and marriage is that marriage has received the societal stamp of approval and live-in relationships are yet to do so [4].
4. Live-in Relationship in Other Countries:
Different countries have different stand on Live-in relationships. For example Bangladesh cohabitation after divorce is frequently punished by the salishi system of informal courts, especially in rural areas. In Indonesia, an Islamic penal code proposed in 2005 would have made cohabitation punishable by up to two years in prison. Also Cohabitation is illegal according to sharia law in countries where it has been practiced. On the other side in many developed countries like USA (23% in 2003), Denmark, Norway, Sweden (above 50 %) and Australia (22% ) etc Live-in relationship are very commonly practiced, accepted and are not considered to be illegal.
Scotland:
Family law (Scotland) Act 2006, for the first time identified, and in the process by default legalized, live-in relationship of over 150,000 cohabiting couples in the country. Section 25 (2) of the Act said that in determining for the purpose of any of section 26 to 29 whether a person (A) is cohabitant of another a court of law can consider a person as a co-habitant of another person (B) the court shall have regard :
- The length of the period during which they lived together,
- The nature of the relationship during that period and
- The nature and extent of any financial arrangements.
In case of breakdown of relationship, under section 28, a cohabitant has right to apply in court of law for financial support [5].
United States:
The American legal history was then witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the "prenuptial agreements". The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents [6].
Australia:
Section 4AA of Family Law Act 1957(Australia) defines the meaning of de facto relationship it says that a person is in de fact relationship with another person if;
- The persons are not legally married to each other; and
- The person are not related by family and;
- Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis [7].
Canada:
Live-in relationship is legally recognized in Canada also. Section 54 (1) of Family law Act, R.S.O. 1990 says that, two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,
- Ownership in or division of property;
- Support obligations;
- The right to direct the education and moral training of their children, but not the right to custody of or access to their children
And further sub section 2 of section 53 says that if the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract [8].
United Kingdom:
Live-in relationships are largely covered by the Civil Partnership Act 2004 [9]. Though a man and woman living together in a stable sexual relationship are often referred to as "common law spouses", the expression is not wholly correct in law in England and Wales. The UK feel that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other's property on breakdown of relationship. If a cohabiting couple separates, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce [10].
France:
The French National Assembly passed the Civil Solidarity Pact on Oct. 13, 1999. Live-in relationship is governed by civil solidarity pact in France. The civil solidarity pact is a contract binding two adults of different sexes or of the same sex, in order to organize their common life; contractants may not be bound by another pact, by marriage, sibling or lineage. Adult under custody cannot contract [11].
5. Live-in Relationship: Indian Scenario:
On 23.03.2010 the Hon'ble SC in Khushboos case opined that a man and woman living together without marriage cannot be construed as an offence. "When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence," a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chuhan observed. The court said even Lord Krishna and Radha lived together according to mythology.
Live in relations suffered a setback with the bar imposed by the Supreme Court [12] in its recent judgment delivered on 17th May, 2010 in a Family dispute in the matter of Bhaasthamata v R Vijeya Renganathan [13]. The Supreme Court held that a child born out of a live-in relationship was not entitled to claim inheritance in Hindu ancestral coparcenary property. The dictum of the division bench comprising Dr B S Chavuhan and Swatanter Kumar, JJ appears to be a general law but its root of jurisdiction lie in the facts peculiar to this case. This ruling may not be accepted as a general law at all. It is only justified in this particular matter, but if applied to all live-in relations raising a presumption of marital bond; it would definitely result in gross miscarriage of justice.
In S.P.S. Balasubramanyam v Suruttayan Andalli Padayachi & Ors [14]. The Supreme Court allowed presumption of marriage u/s 114 of Evidence Act out of live-in relations and presumed that their children were legitimate. Hence, they are rightfully entitled to receive a share in ancestral property. In the instance case, Mariammal claim her brothe Muthu Reddiars property who died unmarried and intestate. Rengammal lived-in with Muthu and had children from that bond. After his death, she claimed inheritance. Earlier Rengammal had married Alagarasami Reddiars (who was alive) but they didn't live together because of undissolved marriage between them. The trial Court did not accept her live-in claim. Her first appeal was dismissed. Subsequently, the Madras High Court held the judgment in favour of live-in partner.
In the cases prior to independence like A Dinohamy v Blahamy [15] the Privy Council laid down a broad rule postulating that, where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
After independence the first case that can be reviewed is Badri Prasad v Dy. Director of Consolidation [16] wherein the Supreme Court recognized live-in relationship as valid marriage, putting a stop to questions raised by authorities on the 50 years of life in relationship of a couple.
In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others [17] the Allahabad High Court ruled out that "a lady of about 21 years of age being a major, has right to go anywhere and that anyone –man and woman even without getting married can live together if they wish".
In Patel and others [18] case the apex court observed that live- in –relation between two adult without formal marriage cnnot be construed as an offence.
In Radhika v. State of M.P. the SC observed that a man and woman are involved in live in relationship for a long period, they will treat as a married couple and their child would be called legitimate.
In Abhijit Bhikaseth Auti v. State Of Maharashtra and Other [19] on 16.09.2009, the SC also observed that it is not necessary for woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. A woman living in relationship may also claim maintenance under Sec.125 Cr.P.C.
The Maharashtra Government in Oct. 2008 approved a proposal suggesting a woman involved in such a relationship for a 'reasonable period' should get status of a wife. The Malimath committee had also suggested that the word 'wife' under Cr.P.C. be amended to include a 'woman living with the man like his wife' which means the woman would also be entitled to alimony.
In Lata Singh v State of UP & Anr. [20] the Apex Court held that live-in relationship was permissible only between unmarried major persons of heterogeneous sex. If a spouse is married, the man could be guilty of adultery [21] punishable under section 497 of the IPC.
The same was relied on in S. Kushboo v Kanniammal & Anr. with the husband surviving, Rangammal cannot invoke presumption of live-in. thus the children became illegitimate and disqualified to inherit u/s 16 of the Hindu Marriage Act, 1955. This judgment is not prohibitive law for live-in kids. So, live-in could be 'a dangerous thing' between a wife and non-husband as it could lead to the crime of adultery, but never to 'marriage'.
6. Rights of Children born out of Live-in Relation:
Although Supreme Court of India has granted the legal status to Live-in Relationship,but what happens if one partner decides to walk out. Could the other partner be left homeless? Will the children born into live-in relationship be recognized by the law? Will it empower women with the Right to Inheritance, Right to maintenance, and Right to demand Alimony? Will the law give the same standing status to live-in relationship as that of Marriage?
Answers to these questions are changing on a regular basis. Recently Supreme Court of India laid down that, child born out of live-in relationship possess a right to inherent the properties left behind by one of the partners. Bench of Justice P Sathasivam and B S Chauhan said that "if a man as well as a lady are living under the same roof and living together for quite a few years, there will be 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" [22]. Delhi High Court case (Arvind Yada Vs Renu Sharma, dated 19th January, 2011) wherein a 18 years old unmarried girl chose a path for herself to live with a married man.
The court protected their live-in relationship but alerted them that they will not be entitled to claim Maintenance and Alimony in case one of them later walks out of this wedlock. It is so because they do not qualify condition No. 3 of live-in relationship. They both must be unmarried [23].
Even in UK also child born out of such relationship has right to maintain himself/herself. At the end of a relationship, both partners will be responsible for supporting children financially, regardless of which one of you the children live with. The court can make order about who the children should live with. The order will usually allow contact between the child and the parent with whom the child is not living unless there are exceptional circumstances [24]. In Canada there is no difference in law in the status of a child born to someone who is legally married, to a single mother, to a person in a common-law relationship, or to a couple in a same-sex relationship or an opposite-sex relationship. A child born outside marriage is treated in the same way as a child born inside marriage [25].
7. Conclusion:
It's better to have a live-in relationship rather than having a divorced life.This is common and quite rational line favoring live-in relations in the world. It should not be denied that our culture does need a legislature to regulate relationships which are likely to grow in number with changes in the ideology of people. The right time has come that efforts should be made to enact a law having clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.
References:
[1] http://www.thegeminigeek.com/what-is-live-in-relationship
[2] http://www.rishabhkullar.com
[3] http://airwebworld.com/articles/index.php?article=1266
[4] http://www.onlymyhealth.com/difference-between-live-in-relationship-marriage
[5] http://www.legislation.gov.uk/asp/2006/2/contents
[6] http://www.indianexpress.com
[7] http://www.austlii.edu.au
[8] http://www.e-laws.gov.on.ca
[9] http://www.legislation.gov.uk/ukpga/2004/33/contents
[10] http://www.indianexpress.com/news/the-rights-of-livein-partner
[11] ttp://www.unc.edu/depts/europe/francophone/a_la_carte/pacs/qrd_pacs.pdf
[12] Madabhushi Sridhar, Live-in hassles, Witness, vol.2, August 2010, p. 82.
[13] 2010 STPL (Web) 406 SC.
[14] AIR 1992 SC 756.
[15] (1928) 1 MLJ 388 (PC).
[16] AIR 1978 SC 1557.
[17] AIR 2001 All 254.
[18] (2006) 8 SCC 726.
[19] AIR 2009 (NOC) 808 (Bom.).
[20] AIR 2006 SC 2522.
[21] JT 2010 (4) SC 478.
[22] news.vakilno1.com/sc-rules-that-children-born-out-of-live-in-relatio
[23] Om S. Verma, Live in Relationship, Journal of Extension System, Vol. 26, Dec. 2010., available at http://www.jesonline.org/current.htm.
[24] http://www.adviceguide.org.uk/index/f_ending_a_relationship_unmarried_couples.pdf
[25] http://www.cba.org/bc/public_media/family/140.aspx
Published by
Mr. Sandip Bhosale
LL.M Student at Rajiv Gandhi National University of Law, Patiala
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