: January 27, 2012 |
: family law
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Need of Special Legislation On Live-In Relationship
Live-in relationship, pre-marital sex not an offence: SC
"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 Chauhan observed.
The court said even Lord Krishna and Radha lived together according to mythology. The apex court said there was no law which prohibits live-in relationship or pre-marital sex.The apex court made the observation while reserving its judgment on a special leave petiton filed by noted south Indian actress Khusboo.Living together is a right to life," the apex court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right.
“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. Live in relationship are not new for western countries but these days the concept is adjusting its roots in east also.
Concept of Live-in relationship
A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.
The Supreme Court in D Veluswamy Vs D Patchaiammal has explained the definition of Live In Relationships with reference to Domestic Violence Act. The Court in its judgement in the mentioned ruled:
Section 2(f) states :
“domestic relationship” means 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 the nature of marriage, adoption or are family members living together as a joint family”;
Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, court pointed out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
In the words of Dhingra J., “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa”
Live in Relationship is contractual relationship. There is offer and acceptance between parties to live in relationship so such relationship should be framed within ambit of law. We need special legal rules to deal with consequences of such relationship.
Reasons for live-in-relationship
In this type of relationship, the couples get time to know each other without getting married. This way they come to know each other better and the compatibility is observed. If the relationship works, the couple decides about the future.
It is a good and healthy option for couples who don't wish to get married. This relationship has the liberty to get in and out of the relationship anytime if the couple is not happy with each other.
One of the strong pros of a live in relationship is, the couple enjoys all the benefits similar to a married couple. This type of relationship involves physical intimacy of the partners.
It is a practice session before getting married. Through a live in relationship, you come to know the good and bad sides of your partner as you stay together whole day. This way, it becomes easy to decide if you both are meant for each other or not.
The best aspect about live-in relationships is that it allows you to find out the compatibility ratio between you and your partner, without admitting yourself into the constitution of marriage.
During the dating phase, most of the people have a tendency to downplay their bad side. The concept of live-in blows off your partner's real side and allows you to know him/her inside out. In case you are not a good mix, it is better to part of ways.
Live-in serves as the perfect rehearsal for a married life. You get to know whether the two of you have common interests and views on about religion, politics, sex and money.
In most of the cases, sex dominates a person's judgment about marriage during the dating phase. Many usually think about the how the two of them would be on the bed. However, this intoxicating passion should be limited. Life-long decision cannot be made on an impending sexual pleasure. Live in relationship helps avoid this problem.
It may also be because they are unable to legally marry, due to reasons such as same-sex, some interracial or interreligious marriages are not legal or permitted.
Other reasons include living as a way for polygamists or polyamorists to avoid breaking the law, or as 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), or philosophical opposition to the institution of marriage (that is, seeing little difference between the commitment to live together and the commitment to marriage).
Some individuals also may choose to cohabit because they see their relationships as being private and personal matters, and not to be controlled by political, religious, matriarchal or patriarchal institutions.
Some couples prefer cohabitation because it does not legally commit them for an extended period, and because it is easier to establish and dissolve without the legal costs often associated with a divorce
Live-in-relationship in India:
Live-in relationships in India is though not illegal, is considered socially and morally improper. Cohabitation is prevalent mostly among the people living in metro cities in India. At present there is no special law in India to deal with the concept of live-in relationships and its legality. However, the Courts in India, through their s decisions in various cases, have laid down the law in respect of such relationships. Some of the landmark decisions of the courts in this regard
Debate in the Lok Sabha
On 15th December, 2008 in the question hour, Mr.H.R.Bhardwaj, Hon’ble Union Law Minister while answering to the question related to live-in-relationships said that if live-in- relationships are acceptable by society, then the government can make laws. Laws are made keeping in view societal trends. It is hypothetical to ask a question whether we are contemplating a law to govern live-in relationships. Less than one percent of the people are in such relationships. If a law is enacted, it will only be misused.
Recognition to Live-in-relationship:
No law at present deal with the concept of live-in-relationships and their legality. Still even in the absence of a specific legislation on the subject, it is praise-worthy that under The Protection of Women from Domestic Violence Act, 2005, all benefits are bestowed on woman living in such kind of arrangement by reason of being covered within the term “domestic relationship” under Section 2(f). If we propose to enact a law to regulate live-in-relationships, though it would grant rights to parties to it but at the same time it would also impose obligation on them. Female live-in partners have economic rights under Protection of Women from Domestic Violence Act 2005
The Hindu Marriage Act 1955 does not recognize ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act.
The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law.
Section 114, Indian Evidence Act, 1872, lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous cohabitation between the parties unless the contrary is proved..
Judicial approach Live-in-relationship:
· In S. Khushboo Vs. Kanniammal & Anr. the Supreme Court of India, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. & Anr. held that live-in-relationship is permissible only in unmarried major persons of heterogeneous sex.
· The Supreme Court on 13 August 2010 in the case of Madan Mohan Singh & Ors v. Rajni Kant & Anr. has once again entered the debate on legality of the Live-in Relationship as well as legitimacy of Child born out of such relationship. The Court while dismissing the appeal in the property dispute held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as 'walking-in and walking-out' relationship.
· In the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors. dealing with the legitimacy of child born out of a live-in relationship and his succession of property rights, the Supreme Court held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property..
· In Payal Katara v/s Superintendent of Nari Niketan, Agra, the Allahabad High Court on 4th March 2002 came up with a bold judgment by stating that anyone, man or woman, could live together even without getting married if they wished.
· A similar step was taken by the Apex Court on 15th January, 2008 when a Bench comprising Justices Arijit Pasayat and P.Sathasivam leaned in favour of legitimising a live-in couple as they had lived together for 30 years.
· The Privy Council in A Dinohamy v. W L Blahamy laid down the principle 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”. Furthermore the Supreme Court granted legality and validity to a marriage in which the couple cohabited together for a period of 50 years. The Supreme Court held that in such a case marriage is presumed due to a long cohabitation.
· the Hon’ble Allahabad High Court stated that a live-in relationship is not illegal. Katju J. and Mishra J. stated that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”
The Hon’ble Supreme Court accepted the principle that a long term of cohabitation in a live-in relationship makes it equivalent to a valid marital relationship. The Supreme Court also held that live-in relationships cannot be considered as an offence as there is no law stating the same.
Hence the High Courts and the Hon’ble Supreme Court in a number of decisions delivered until recently have showed the positive signs of recognizing the legitimacy of the live-in relationships and have also shown the inclination for a legislation to be enacted with the objective of protecting the rights of couples in a live-in relationship.
On 15th December, 2008 in the question hour, Mr.H.R.Bhardwaj , Hon’ble Union Law Minister while answering to the question related to live-in-relationships said that if live-in- relationships are acceptable by society, then the government can make laws. Laws are made keeping in view societal trends.
The last two to three months have been influential in arousing response on the matter of live-in-relationships in India. 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.
Need for a legal provision is felt to secure the future of a child born from a relationship which has not taken the shape of marriage. The Hindu Marriage Act, 1955 gives the status of a legitimate child to every child whether result of void, voidable or valid marriage. So, we don’t require a legal provision to grant legitimacy to the child, but to grant property and maintenance rights. Justice Malimath Committee as well as the Law Commission of India states that if a woman has been in a ‘live in’ relationship for a reasonable period, she should enjoy the legal rights of the wife. On 8th October, this recommendation was accepted by the Maharashtra government.
The PWDVA is silent on the status of children out of a ‘live-in relationship’. Finally it must also be appreciated that laws and legal obligations notwithstanding foundations of a relationship are based on commitment.
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 legalising Live-in relationship.
The couples tied with the knots of live-in relationships are not governed by specific laws and therefore find traces of assistance in other civil laws.Though we say live in is immoral but law cannot be judge on the basis of immorality. Because morality changes society to society and time to time.
“Man perfected by society is the best of all animals; he is the most terrible of all when he lives without law, and without justice.” - - Aristotle
* Asst.Prof.Anisa Shaikh,B.S.L.,LL.B.,LL.M.,NET.
 S. KhushbooVs.Kanniammal and Anr. MANU/SC/0310/2010
# (2010)10scc496:khushboo v/s kannaimmal(2010)5scc600:kusum lata sharma v/s state and ano 2011 del:
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