"True Picture of Cohabitation in India"

The issue of live in relationship

The article deals with the issue of live in relationship which is very common these days.  However, the law on this issue is not very clear either in India or abroad. While case by case basis court is adumbrating the law with regard to live in relationships, there are many questions that need to be answered. The rights guaranteed to female live in partners along with the rights of children born out of such relationships ought to be secured. However, it has to be kept in mind that when the law is giving legal sanction to live in relationships, it does not impede upon the institution of marriage as many a times men who get into live in relationship is already married. If live in relationships are recognized prima face, then it may implicitly promote bigamy. The law should have a discernible stance with respect to live in relationships and the aftermath of such relations.

“Cohabitation or live-in relationships” is arrangements where two people who are not married, live together in an intimate relationship, particularly an emotionally and/or sexually intimate one, on a long-term or permanent basis. More broadly, the term cohabitation can mean any number of people living together.  Cohabitation or live in a relationship is a form of relationship or modern culture of the present society;itis quickly growing in the Metropolitan Cities i.e. Delhi, Mumbai, Bangalore etc.

The true position of Cohabitation in India is not clear because there is no particular legislation and Act to provide clear cut image or under which provision of law, it is recognizably the legislature.  There are only precedents was decided by the Supreme Court of India and Other Courts of India.

The right of a woman in such relationship is also not very certain, though the court has shown willingness in recognizing their rights, a law like Protection of Women from Domestic Violence Act, 2005 recognizes right of women in such relationship, nonetheless various other laws such as the law of marriage, succession etc. Needs to be changed to give full protection to woman in live in relationship.  As far as the right of the child born under such a relationship is concerned, under Hindu Marriage Act, 1955 such child will be legal, nevertheless there is no such law apart from the Hindu Marriage Act, 1955 that endorses presumption of legality of child born out of live in relationship.

In the cases prior to independence like A Dinohamy v. WL Blahamy (1928) 1 MLJ 388 (PC), 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.” The same principle was reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan AIR 1929 PC 135. After independence the first case that can be reviewed is Badri Prasad v. Dy. Director of Consolidation AIR 1978 SC 1557, wherein the Supreme Court recognized live in relationships as a valid marriage, putting a stop to questions raised by authorities on the 50 years of life in relationship of a couple.

In Patel and others case,(2006) 8 SCC 726 the Supreme Court observed that live- in –relation between two adults without a formal marriage cannot be construed as an offense. It also stated that there is no such statute which postulates that live in relationships are illegal. The same proposition was upheld in the case of Tulsa v. Durghatiya,(2008) 4 SCC 520 where the long term live in a relationship was recognised as equivalent to marriage. The further sanction to live in a relationship was granted by the judgment of the Supreme Court on 23rd of March, 2010 in theS. Khushboo Vs. Kanniammal & Anr JT 2010 (4) SC 478. The case of the prosecution was that the comment of the actress Khushboo allegedly endorsing pre-marital sex will adversely affect the moral fabric of society. The Court, while quashing the charges framed on Khushboo, commented that there is no law that prohibits pre-marital relationships. A three judge bench comprising of Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan observed, “When two adult people want to live together what is the offense. Does it amount to an offense? Living together is not an offense. It cannot be an offense“. The court further said “Please tell us what is the offense and under which section. Living together is a right to life“, thereby referring to the right to life guaranteed under Article 21. Though this was an obiter dictum, it provided a positive impetus to live in relationships. However, this position is not all binding. The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v. State & Anr Crl.M.C.No. 299/2009while dealing with the validity of live in relationship held that "‘Live-in relationship’ is a walk-in and walkout relationship.

The rights of female partner in live in relationship tend to be secure, credited to the recent statutes and recommendation by the committees. Courts also display alacrity to protect the right of female partner in such relationship as exhibited by judgements given in number of cases. The statutes like Protection of Women from Domestic Violence Act, 2005 protects woman both in the categories of wife i.e. relationship by marriage and live-in partner i.e. relationship in nature of Criminalmarriage Appeal Nos. 2028-2029 of 2010, by reason of being embraced within the term “domestic relationship” under Section 2(f) of the Act.  However as was discussed in D. Veluswami v. D. PatchaimmalSupra, note 9, to get the benefits arising from “relationship like marriage”, it is necessary that, “couple must hold themselves out to society as being akin to spouses, they must be of legal age to marry, they must be otherwise qualified to enter into a legal marriage, including being unmarried, they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”

In June, 2008, The National Commission for Women recommended to Ministry of Women and Child Development made suggestion to include live in female partners for the right of maintenance under Section 125 of CrPC. This view was supported by the judgement in Abhijit  Bhikaseth  Auti v. State Of Maharashtra and Others CRIMINAL WRIT PETITION NO.2218 OF 2007.  The positive opinion in favour of live in relationship was also seconded by Maharashtra Government in October, 2008 when it accepted the proposal made by Malimath Committee and Law Commission of India,which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC.

Criticism

Likelihood of split: When a couple views marriage as the next step and goes for it without re- evaluating the relationship and making sure they are getting married for the right reasons, or because they have put so much time and resources into it already and it would be harder to break up, then the marriage will most likely not be successful.

Effect on children: The parenting role of cohabiting partners could have a negative effect on the child. The partner that is not the parent, usually the father, does not have "explicit legal, financial, supervisory or custodial rights or responsibilities regarding the children of his partner" says Waite. This can cause an unstable living arrangement for the child and can cause the child to act out in a certain way because the mother or father's partner is "not their real parent."

Abuse and infidelity: Living together without being married may be a commitment, but does not have the same sense of finality as marriage.

Other effects: Couples who cohabit are more likely to have a poorer financial picture because one partner is less likely to support the other partner financially since they are not legally married and the one partner is not obligated to. Lastly, couples who cohabit are more likely to cheat on their partner, which leads to a high percentage of getting a sexual transmitted disease.

No effect: A conflicting study, published by the National Center for Health Statistics, with a sample of 12,571 people, concludes that those "who live together before marriage and those who don't both have about the same chances of a successful union".

This promotes bigamy, as the person who is getting into live in relationship might be already married. The position of the wife is disadvantageous in such situation as court on the one hand is giving all the rights of wife to live in female partner, while on the other hand it prohibits bigamy. Law is ambiguous and disadvantageous for the weaker sex and is not being beneficial to anyone. While the right of legally wedded wife remains at stake, the right of live in female partner too does not become secure.

When we talk about the after math of a live in relationship, the rights and liabilities of partners is deficient of delineation. What will be the rights and liabilities of such partners after separation or the death of one of the partner. There is no law of succession and maintenance that mentions the stipulation that protects the right of such live in couples.The children born under such relationship, although are recognised under Hindu Marriage Act, 1955; however, it is submitted that the couples who tend to disobey the socially recognised social tenor cannot be supposed to be people of only one religion or to be the one professing Hinduism. In fact, many a time, because of family’s opposition to inter-religion and inter-racial marriage, couple prefers to get into live in relationship and hence forth circumventing family objection. Such relationships are fragile and can be dissolved any moment, there is no obligation and bondage, legal position with respect to live in relationship does not portray a discernible image. Live in relationship sponsor bigamy and adultery while posing a threat to the entire fabric weaved out of values and morals on which the Indian Society stands.

Last But Not the Least: The law on live in relationship need to demonstrate a clear cut picture keeping in mind the present social context along with the basic structure of tradition and culture that characterises Indian society.While the court in few cases granted the status of married couple to live in couple, in some cases court held that live in relationship does not cast any obligation on the couple, as the whole idea of live in relationship is to evade such bondage, evincing a penchant towards an obligation less, free society.Outside the legal arena, live in relationship also faces the social speculation; the tenor of live in relationship is the characteristic motif of metropolitan area, however, when we look at the masses that define India, live in relationship does not find consensus of majority and is accused of tampering with the Indian culture of values and morality.

Hence, as we observed many questions with respect to live in relationship remains unanswered. On the one hand it faces speculation from society and secondly legal status of live in relationship evinces contingency. The more clear approach and attitude of law and the changing time and stance of society will determine the future of live in relationship. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.

Live in relationships should be granted legal status after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as available to a married couple and their legitimate offspring, also securing their rights after the dissolution of such relationship due to break up or death of one of the partner. The guidelines given in D. Veluswami v. D. Patchaimmal is worth noting in this context and should be followed. Since, proving de facto live in relationship is difficult, the burden of proof should be relaxed, so that the rights that are conferred upon partners, specifically female live in partner “Rights specific to female live in partner such as right under Domestic Violence Act, 200” can be availed.However, if the person in live in relationship is already married, then live in relationship should be considered as the second marriage, hence an offence of bigamy. This will ensure the rights and privileges in live in relationship without possessing any threat to the institution of marriage. A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when the number of live in couples is increasing tremendously. The rights of live in couples should be legally recognised while ensuring that it does not impede upon the system of marriage.