Nobody wants to deal with the traumas of a marriage break up, child custody battles, maintenance and alimony issues, nor the stigma of divorce which takes its toll on the mental and physical health apart from expensive and cumbersome legal procedures. Despite awareness of the fact that there are numerous instances of gender bias, rise in false cases ending in jail or suicide, the number of live-in relationships have gone up. It’s the result of seeking easy alternatives.
Live-in relationships or ‘Mitru-Sambandh’ or ‘Maitri Karar’, which is a permissible arrangement between a male and a female who live together as friend without the ties of marriage is not new in India. But though it started off as a relationship between a male and a female living together without the ties of marriage, it has come a long way to include other scenarios too. Let see, what could be the other possible scenarios prevalent today in a live-in relationship? First, it could be a domestic cohabitation between two unmarried heterosexual individuals which is the most common, pervasive and accepted form. Second, live-in relationships between a married individual with another unmarried or married individual. Third, it could be a relationship between a transgender and another married or unmarried individual. And finally, domestic relationships between same-sex partners. However, most societal antipathy and legal issues arise against the second, third or fourth scenarios. In short we can say that live-in relationship is a type of union between two people who are not married to eachother.
The general notion is that there is freedom to walk in and walk out of it because of the lack of specific statute governing live-in relationships in India. But is it a safe and good alternative? Is it free from all commitments as is assumed by couples who opt for it? Can you just walk out as free as you were when you first entered it? Hence there is a need to know all about the live-in relationship before stepping into one.
Live-in relationship is legal in India but the truth is that live-in relationship eventually ends up with responsibilities and consequences just like marriage. It can get as expensive, complicated, lengthy and cumbersome as any other matrimonial dispute.
The Indian judiciary has started to accept the changing norms in the society and today it neither prohibits nor prevents the live-in relationship. It has taken steps to fill in the gaps that is created in the absence of any specific statute relating to the live-in relationships in a series of progressive judgements over the last decade, so that the partners involved in such relationships are protected and not subjected to any abuse.
First things first, it has to be understood that a live-in relationship between a couple where one of them is married and that marriage is not legally dissolved then though there has been cohabitation for years, will not fall within the expression relationship ‘in the nature of marriage because to constitute a ‘domestic relationship’ under Section 2(f) of the Act, the possibility of a legal marriage is a sine qua non. The impugned provision cannot be interpreted excessively to promote adulterous relationships. On the other hand, notwithstanding that same-sex relationship, not legally competent to enter into wedlock, Indian judiciary, through its activism, has extended the right to cohabit in live-in relationships to same-sex couples, but only to some extent, and, same is the case about the rights of transgenders in live-in relationships.
Law presumes in favour of marriage and it is against concubinage, especially when a man and woman have cohabited continuously for a number of years. The presumption is rebuttal and ‘a heavy burden lies’ on the person who is disputing such a marriage. As per the current legal position, women who were subsequently abandoned by their live-in partner, enjoy the status of a wife. On the other hand, to qualify such a ‘relationship in the nature of marriage’, the parties must prove that they fulfil the requisites that they live or have lived together in a ‘shared household ‘as defined under the various relevant Acts. So, merely maintaining the finances and fulfilling sexual desires doesn’t fall within the relationship in nature of marriage. Likewise, simply spending weekends together or a one-night stand does not constitute a ‘domestic relationship’. So, while a casual “walk-in walk-out” relationship cannot qualify a partner for succession rights, long time-period of continuous cohabitation has been accepted as a marker for grant for succession or maintenance rights. The Courts have, in many cases, vindicated the right of the woman partner to be maintained & even to inherit property. Protection has also been extended to women from dowry even when they are in a live-in relationship.
That’s not all, besides offering legal sanctity to live-in relationships, the Indian judiciary has now extended extra protection to relationships arising out of a live-in relationship. Law leans in favour of legitimacy and frowns upon bastardy hence the Indian Courts have protected the rights of children born out of such live-in relationships and such children will be considered legitimate and rightfully entitled to receive a share in the ancestral property. The only important precondition is that these children’s parents must have lived under one roof and cohabited for a significantly long time for the society to recognize them as husband and wife. Since there is no certificate of live-in relationship there can be a lot to be proved or answered not only by the couples but also the children born out of it, be they live together permanently or end up in dispute.
The term ‘palimony’ is commonly used to refer to maintenance vis-a-vis live-in relationships. In India, Sec.125 of the Cr.P.C. pertains to the right to maintenance and this is now applicable to the indigent partner of live-in relationships. In the recent judgement of Rajesh Vs Neha & Anr, the Supreme Court gave directives with respect to payment of maintenance to the applicant spouse. It was also stated that the party claiming maintenance either as a spouse, or as a partner in a civil union, live-in relationship, common law marriage, should be required to file a concise application for interim maintenance with limited pleadings, alongwith an Affidavit of Disclosure of Assets and Liabilities before the concerned court, as a mandatory requirement. The Guidelines given by the Supreme Court are only indicative, and not exhaustive.
So now let’s unravel what is unanswered or under debate. One of them is whether live-in relationship promotes bigamy? We all know that there is possibility of misuse of personal laws in such cases. If a person has lived in a bigamous relationship and the courts considers unmarried status to be one of the condition for granting maintenance then in such cases, the deserters go scot free, due to the loop-holes present in the law. It is therefore necessary to take a proper stand and make differentiation between the rights and liabilities of couples in a bigamous live-in relationship. The Supreme Court has emphasized the need to extend Section 2(f) which defines ‘domestic relationship’ in Protection of Women from Domestic Violence Act 2005(PWDVA,2005) to include the victims of illegal relationships who are poor, illiterate along with children, born out of bigamous relationships and who do not have any source of income. Further the Supreme Court requested the Parliament to enact new legislation based on the guidelines given by it so that such victims can be given protection from any societal wrong caused from such relationships.
But that’s not all, many more questions are unanswered as each case varies and new issues are likely to arise. It has been seen there very few couples in live-in relationships actually end up marrying eachother. Problem may arise if one of them chooses to marry some other person and the deserted partner files for maintenance then it may not be possible to manage the finances of maintaining two households especially if there are also children involved.
Legally, live-in relationships find roots in Article 21 of the Indian Constitution which confers Right to Life but it’s pertinent to note that none of the rights and freedoms are absolute. It is also to be noted that the institution of marriage enjoys a high level of sanctity in India, and though the Indian judiciary also supports a lifestyle without marriage between the couples & it presumes marriage, if, there is a long term relationship. Thus, it’s very clear that the man will not be allowed to benefit from the legal loopholes by enjoying the advantages of a defacto marriage without undertaking the duties and the obligations. The girls often have to face the character question because there is a dilution of morals and ethics. Let’s not overlook that every emotion ranging from jealousy to hatred is present in this setup too and not surprising is the fact that despite the freedom to simply walk away at an earlier stage many gruesome crimes have been reported.
On a positive note, we can say that Live-in relationship is a secular concept and needs no qualification nor ceremony to complete it, nor are there any bar of age, religion, caste etc. There are no expenses involved to start the relationship and the couple can function like a unit by sharing expenses and enjoying companionship in a beautiful way. There is no compulsion to have children if they do not want to have any. Live-in relationship can be a good alternative for older couples too, who seek only companionship.
Footnotes:
Criminal Appeal No. 730 of 2020 arising out of SLP (Cri) No. 9503 of 2018). The said case arose out of an application for interim maintenance filed in a petition under section 125 of the Code of Criminal Procedure (“CrPC“)
The content of this article is intended solely for information and awareness purposes only and to provide a general guide. It is advisable to seek professional advice for specific circumstances.
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