Cohabitation Law: Should Cohabitants be Equalled to Married Couples?
This Blog is written by Shaurya Nagpal from Bennett University, Greater Noida. Edited by Oshin Suryawanshi.
The term live-in relationship has not been covered under law, but a live-in relationship can be best described as a relationship wherein both the partners live in the same household with their individual freedom but most importantly are not married to each other. In such an arrangement, the two people plan to live together on a permanent basis in an emotionally and sexually intimate relationship. When critically examined, it has been observed that there lies no legislation regarding the status of live-in relationships in India. Therefore, is no specific enactment that deals with the rights of a party and children born through such a relationship. However, through various judgments, the courts have sort to provide a clear understanding and laid out that if any man and woman who stay in a live-in relationship for a considerable period shall be presumed to be legally married.
In India, the Protection of Women from Domestic Violence Act, 2005 (hereinafter PWDV Act) is the first legislature that tends to acknowledge the live-in relationships and thus provides protection and rights to those women who are not legally married but are living with a male in a relationship with the idea and intention of marriage. As of now, the concept of a live-in relationship has not been legally recognized through legislation with no provision with regards to crucial subjects like maintenance, succession, and guardianship. The grave and rising concern with the ever-rising live-in relationship trend is that after parting ways, the partners do not tend to have any moral, social or economic obligation towards one another. The worst ones to suffer are the children born out of such relationships who even have their legitimacy at stake in the prevailing societal norms.
LIVE-IN RELATIONSHIP: THE INDIAN PERSPECTIVE
The live-in relationship can be best described as a cohabitation within an arrangement wherein a non-married couple decides to live together on a long-term basis. The parties represent themselves as couples to the world and there lies stability and continuity in the relationship. It is an informal arrangement that is generally chosen to test the compatibility or be financially stable before marrying or to stay away from religious and formal affairs of a formal marriage.
However, in a traditional society like that in India, marriage is considered to be a sacrament and a religious and holy union, and thereby there lie numerous social, and legal issues associated with societal stigma for the ever-rising couples who opt for such a relationship.
In India, although the term live-in relationship has not been covered under law, the PWDV Act, 2005 seems to have considered such a living arrangement. Section 2(f) of the above statute cover the concept of domestic relationship: a domestic relationship is 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 nature of marriage, adoption or are family members living together as a joint family.[[i]]
ROLE OF JUDICIARY AND LEGISLATURE
With ever-rising instances of live-in relationships and no specific statute governing the same, the courts have tried to undertake the subject and subsequently explain the concept of live-in relationships. In partner A. Dinohamy v. W.L. Balahamy[[ii]], it was laid down that where a man and woman have lived together portraying themselves as husband and wife, the law shall presume unless and until proved contrary that they lived together as a consequence of valid marriage. It is has been clear that the law presumes in the favour of marriage where a couple has cohabited for a long term. In the case of Lata Singh v. State of UP[[iii]], the apex court iterated the fact that a live-in relationship is permissible only and only in unmarried people of heterosexual sex who are unmarried. It was further stated that if such a relationship when continued for a long time cannot be described as a walk-in and walk-out relationship and there lies a presumption of marriage between the couple. Furthermore, in the case of Payal Sharma v. Nari Niketan[[iv]] the Hon’ble court held the validity of live-in relationships and termed it to be legal with their lying a difference between law and morality.
The PWDV, Act 2005 has been the first legislation that has recognized the rights of women who are not legally married and subsequently has acknowledged the concept of live-in relationships. Although, a live-in relationship has not been specifically defined but has left it open for wide interpretation for the courts. The Act not only deals with the married couples but also to a ‘relationship in nature of marriage.’ The courts through a broad interpretation have considered the term ‘relationship in nature of marriage’ and the concept of live-in relationships to be on the same lines. Therefore, in such a relationship a woman can claim remedies available to her against, physical, mental, and economic abuse. In D. Velusamy v. D. Patchaiammal[[v]] the apex court was of the opinion that the intent of the Indian Parliament while establishing the two distinct categories viz. ‘relationship of marriage’ and ‘relationship in the nature of marriage’ was to ensure that the enactment should protect and benefit women in both these relationships and subsequently laid down that fact that a relationship which is in the nature of marriage is akin to a common-law marriage. Furthermore, the requirements for a common-law marriage were laid down despite not being formally married:
1. The couple must hold themselves out to society as being akin to spouses.
2. They must be of legal age to marry.
3. They must be otherwise qualified to enter into a legal marriage, including being unmarried,
4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In the case of Varsha Singh v. Union of India[[vi]], the Hon’ble Delhi High court held that a female who lives even in a relationship in the nature of marriage is duly entitled to file a complaint not only against the male partner but also against his relatives to curb the serious human rights issue of domestic violence.
Section 50 and Section 114 of the Indian Evidence Act, 1872 read together pave way for a wider judicial interpretation with laying down the principle that an act of marriage can be presumed from the conduct of the parties and due course as they are borne out by the facts of a particular case. As in the case of Madan Mohan Singh v. Rajanikant[[vii]], it was held by the Supreme Court that wherein there is a long-term relationship, there lies a presumption of the marriage between them under the above sections.
Furthermore, although the right of maintenance to wives has been provided under personal laws of religion, the live-in concept, i.e., the concept of non-marital relationship has not been recognized under any of them. This has led to the courts extending the scope of Section 125 of the Criminal Procedure Code (CrPC) which deals with remedies and the right to maintenance to wives. To claim maintenance under Sec. 125, the court must not insist on strict proof of marriage as a pre-condition to claim maintenance. The term ‘wife’ in this section must be interpreted broadly and expanded so as to include even those instances wherein a man and a woman have been living together as husband and wife for a considerable period of time.
Herein, in such a situation, the judiciary has played a crucial role by interpreting the legislation in such a manner so as to preserve and protect the rights of parties in a live-in relationship but there should be clear laws formulated in order to make this concept crystal clear.
Women in cohabitation are set to be the worst sufferers with no legal right for them to be claimed after the dissolution of such cohabitation. A critical analysis reflects that the judiciary has indeed played a pivotal role in broadening the scope of live-in relationships and presuming the couple to be married, lack of any legislation which explicitly terms couples living such a long term relationship as married has gravely affected the rights of the parties involved. The presumption of being married under Section 114 of the Indian Evidence Act and the Protection of Women from Domestic Violence Act, 2005 has proved to be very critical in determining the fact that such couples can be equaled to married couples but taking into account the Indian view of marriage, such a relationship is still considered as a taboo in the society and a law in this regard is the need of the hour. Furthermore, the term ‘wife’ in section 125 of the CrPC must be amended to explicitly mention women in a relationship in the nature of marriage for a reasonable period of time and enable the woman to seek her basic rights from the live-in partner. Bring such couples equivalent to married couples in the society shall not only ensure the preservation of the fundamental rights of the couple but also make both the parties accountable to each other with granting of rights like maintenance, succession, and legitimacy of children. Therefore, significant changes must be undertaken in the present legal system of the country, and subsequently legislation stating the status of such nature of relationship be enacted to aid the judiciary and give a better understanding of the right to the parties involved.
Live-in relationships have always been considered as a stigma in Indian Society and considered immoral but are not illegal in the eyes of law and have been a focus of debates. But, in India, to govern this progressive relationship there is no statute rather only progressive judicial interpretation. The pragmatic approach undertaken by the judiciary in such situations has proved to be of great importance in understanding the concept of a live-in relationship but the judgments are still unclear on various aspects and there lies an urgent need for setting rules and regulations in order to codify such kind of relationship. Although there are various statutes that deal with married couples, there must be specific legislation that gives protection to the women and lifts their basic rights from the darkness, and does not leave them reliant only on the judicial interpretation from the existing legislation.
[i] A. Dinohamy v/s W.L. Balahamy; AIR 1927 PC 185.
[ii] A. Dinohamy v/s W.L. Balahamy; AIR 1927 PC 185.
[iii] Lata Singh v/s State of UP; (2006) 2 SCC (Cri) 478.
[iv] Payal Sharma v/s Nari Niketan; 2001 SCC OnLine All 332.
[v] D. Velusamy v/s D. Patchaiammal; AIR 2011 SC 479.
[vi] Varsha Singh v/s Union of India; 17 (170) 2010 DLT 166(DB).
[vii] Madan Mohan Singh Vs. Rajanikant; (2010) 9 SCC 209.
1. Rights and liabilities of live-in partners in India, Shashi Bhushan
2. Aggrieved women and live-in relationships: Judicial Discourse, Rajendra Anbhule
3. Live-In Relationship and Indian Judiciary, Astha Saxena
4. Right of Maintenance to Women in Live-in Relationships, Abhay Nevagi
5. Can a woman get maintenance in live-in relationship, KP Satish