BY Dr. Shubham Sharma.
The Supreme Court threw its weight behind live in relationships on 22.03.2010, observing that for a man and woman in love, to live together is part of the right to life, and not a “criminal offence”. “If two people, man and woman, want to live together, who can oppose them? What is the offence they commit here? This happens because of the cultural exchange between people,” a special three-judge bench of Chief Justice of India (CJI) K.G. Balakrishnan, Justices Deepak Verma and B.S. Chauhan observed. The court was hearing a bunch of petitions filed by actress Khushboo to quash 22 FIRs filed against her by Tamil groups and forums for her alleged comments on pre-marital sex in interviews some years ago. “If it is an offence, then the first FIR should be filed against the Supreme Court because we have permitted live-in relationships,” the court said.
The bench was referring to a 2006 judgment in which the Supreme Court directed the administration and police to protect couples living together and to initiate action against those resorting to violence. “It is part of right to life to go away with someone you love,” the bench said. The Supreme Court had earlier stayed a Madras High Court order of April 2008, which allowed criminal proceedings against the actress. Khushboo was alleged to have said there was nothing wrong in “sex before marriage”, provided girls were careful about pregnancy and sexually transmitted diseases, and argued that the implied advice to the educated male to not expect virginity from modern girls was unacceptable and a source of “public nuisance”.
Meaning of live in relation: Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, because for example same-sex, interracial or interreligious marriages are not legal, or a way for polygamists or polyamorists to avoid breaking the law. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), and philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals also may choose cohabitation because they see their relations as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
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.
Female partners have economic rights under Protection of Women from Domestic Violence Act 2005. The National Commission for Women recommended to the Ministry of Women and Child Development on June 30, 2008, that the definition of wife as described in section 125 of Cr.P.C., which deals with maintenance, be changed so that it includes women involved in a live-in relationship. The aim of detractors’ recommendation was to harmonize other sections of law with the Protection of Women from Domestic Violence Act that places a live-in couple’s relationship on a par with that between a legally married husband and wife. The move has come after the Justice Malimath Committee of the SC recommended that all states turn into this law. The Supreme Court said that “if man and woman are living together as husband and wife for a reasonably long period, the man shall be deemed to have married the woman”.
In Payal Sharma v. Superintendent Nari Niketan Agra and Others AIR 2001, the Allahabad High Court ruled 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 case (2006) the apex court observed that live-in-relation between two adults without formal marriage cannot be construed as an offence. In Radhika v. State of MP AIR 2008, the Supreme Court observed that if a man and woman are involved in live-in relationship for a long period, they will be treated as a married couple and their child would be called legitimate.
On 23.03.2010 the honorable SC in Khushboo’s case was of the opinion that entering live-in relationship cannot be an offence. A bench comprising Chief Justice K.G. Balakrishnan, Deepak Verma and B.S. Chauhan said that “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. Living together is a fundamental right under Article 21, Constitution of India”.
The Maharashtra Government in Oct. 2008 approved a proposal suggesting a woman involved in such a relationship for a ‘reasonable period’ should get the status of a wife. The Malimath committee had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman who was living with the man like his wife’ which means the woman would also be entitled to alimony.
Position in Abroad:
With the Supreme Court declaring that the right to live together is part of the right to life, it is necessary to look at the rights and obligations for live-in couples around the world. While heterosexual live-in couples are called “cohabitants”, same-sex live-ins are called “civil partners”. But the law on cohabitation rights is evolving and many participants are still unaware of their rights and duties.
- France: The Civil Pact of Solidarity or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as a couple. The pact defines the relationship as a contract, and the couples involved as “contractants”. The contract binds “two adults of different sexes or of the same sex, in order to organize their common life”. For a valid pact to exist, the contractants “may not be bound” by another pact, “by marriage, sibling or lineage.”
- United Kingdom: These Live-in relationships are largely covered by the Civil Partnership Act 2006. 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 feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the 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. In cases of domestic violence, cohabitants can benefit from the provisions of the Family Law Act, 1996 which allows “home sharers and former home sharers (including a same sex partner) to apply for occupation of another by checking on molestation orders and/or court orders regulating the occupation of the family home”. Cohabiting couples are treated as separate individuals for taxation. Unmarried partners have no automatic inheritance over their partner’s assets on death. The list of persons to register a death does not automatically include a cohabitant. “The best way to be safe for live-in couples is to enter into a cohabitation agreement and this can act as encouragement for them to consider what they would want to happen if the relationship ends.” But the government is still not very confident. “Cohabitation agreements have yet to be fully tested in court and so it is not entirely clear what weight will be given to them,” says the note.
- Canada: Living together legally is called ‘common law marriage’. In many cases, common law couples have the same rights as married couples. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for at least 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the couple has custody and control of the child and the child is wholly dependent on that person for support.
- Australia: The Family Law Act states that a “de facto relationship” can exist between two people of different sexes and between two people of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a de-facto relationship with someone else. A court of law can determine a de-facto relationship by looking at the length of the period that the partners have lived together, the nature of the relationship during that period and the financial arrangements between the partners during that period.
- Ireland: Though living together is legally recognized, news reports from Ireland say the public is up in arms against a new legislation to formulate legal rights for “separated” live-in couples to demand maintenance or share property. The scheme will apply to both opposite and same sex unmarried couples who have been living together for three years, or two years in the case of cohabiting couples with children. The aim of this legislation, which has not been cleared yet, is to provide legal and financial protection for financially dependent cohabitants in the event of death or the breakup of a relationship.
- Scotland: Live-in relationships are governed by the Family Law (Scotland) Act 2006, for the first time identified and in the process by default legalized, live-in relationships of over 150000 cohabiting couples in the country. Section 25 (2) of the Act said that a court of law can consider a person as a cohabitant of another by checking on three things: the length of the period during which they have lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.
- United States: Cohabitation was illegal in all states prior to 1970, but went on to gain status as a common law, subject to requirements. The American legal history was then witness to several legislations, which paved the way for the federal law of the country. The country later recognized cohabitation contracts and their cousins, the “prenuptial agreements”.
In India, cohabitation had been taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Denmark, similar to Sweden and Norway, gives unmarried couples essentially the same rights and obligations as married couples, provided they register. Those living together are recognized as legal parents.
Conclusion and Suggestions:
Live-in-relation is very popular now a day in India. Many young couples are living without marriage. A long time ago it was a strong social prohibition on live-in relationship but these days youth thinks as compared to marriage, the level of commitment in a live-in is less. There are so many disadvantages of live-in relationship like it resembles a pure form of high tech adultery and fragile. There is no concept of Husband and wife, and is devoid of Religion, Custom, and culture. There are ultimate sufferers i.e., women and children. There is lack of commitment.
There is no specific Law on live-in relation. What about maintenance, property rights of child, custody relating to live-in relation, or legal provision to secure the future of a child born out of a relationship which has not been given the shape of marriage? The Hindu Marriage Act, 1955 gives the legitimate status of a child to every child whether result of void, voidable or valid marriage. What will be his position about property and maintenance rights, is not defined. What will be the reasonable time or the extent when parties will be treated as husband and wife, is not clear. Live-in relation can be dissolved at any moment, it cannot build a safe and secure society. So my humble suggestion is that above should be checked.
Live-in relationship is individualistic and human rightist approach. The live-in relationship is quite prevalent in western countries, but in India the context is different. Here in India, marriage is still an institution, which is preferred over any form of union. Earlier through the Domestic Violence Act, 2005, females of live-in relationship were given protection by covering it under the term ‘domestic relationship’, hence it was on the verge of acceptance by the judiciary as a legal relationship. Though live-in was considered to disturb the very social fabric, but with the surmounting numbers of such relationship, the judiciary’s step is commendable.