By Gayathri G
Live-in relationships in India attract a variety of contrasting opinions. Judgments rendered by the higher courts remain the source for determining its legal status. The term live-in relationship has not yet been defined legally or socially. However, a generally accepted definition is when two consenting adults live together in a relationship akin to marriage without being subject to laws of it. Even though there exists no legislation which specifically deals with such relationships, such a concept has been acknowledged by some laws and reports. The Malimath Committee Report is one such document that initiated a discourse on live-in relationship and its legal status in India.
The Malimath Committee Report
The Committee on Reforms of Criminal Justice System was set up in November 2000 under the Ministry of Home Affairs with Dr. Justice V.S. Malimath as its chairman. He was the former Chief Justice of Karnataka and Kerala High Court(s). The committee submitted its report in March 2003 and made several recommendations. Under Part IV, it discussed the various crimes against women. One of the prominent suggestions furthered was to amend the definition of ‘wife’ under Section 125 of the Criminal Procedure Code (CrPC), 1973 to include ‘a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.’
Section 125 of CrPC 125 of CrPC deals with the maintenance of wives, children and parents by any person who has sufficient means to do so. It was implemented to prevent vagrancy.
Relying largely on the report, the Maharashtra state government in 2008 aimed to amend Section 125 of CrPC. The word ‘wife’ was to be changed to include women who were living with a man for a reasonably long period of time. This amendment was, however, never implemented.
Similarly, in 2008, the National Commission for Women made a recommendation to include women in live-in relationships under the definition of “wife” in Section 125, which did not see the light of day.
Women not lawfully married are thus not entitled to maintenance under Section 125 according to the existing laws.
Legal Position of Live-in Relationships
It is important to mention that live-in-relationships do not have legal obligations is a misnomer. Judiciary through various case laws has found it on the same pedestal as a marriage. Several judicial decisions and a few acts like the Indian Evidence Act, 1872 recognize the concept of cohabitation. It has also found a place under the Domestic Violence Act, 2005 which was enacted to prevent domestic abuse and provide remedies to victims of the same.
Furthermore, the right to choose a partner is a fundamental right guaranteed under Article 21 of the Indian Constitution, as observed in the case of Shakti Vahini v. Union of India, 2018. Thus, two consenting adults are entitled to live the life they want, in the way they want, as long as it does not violate established law.
Indian Evidence Act, 1884
Section 114 of the Indian Evidence Act, 1872 presumes marriage if the partners have lived together for a long time as husband and wife. This was reiterated and held as a valid ground for identifying live-in relationships in the case of Tulsa v. Durghatiya in 2008, where the court also held that even though such a presumption is rebuttable, the burden will lie on the one who seeks to deprive the relationship of its legal origin.
Protection of Women from Domestic Violence Act, 2005
The Supreme Court, in its decision of Nandakumar & Another v. The State of Kerala, 2018 held that the concept of live-in relationship is recognized under the provisions of the Protection of Women from Domestic Violence Act, 2005.
Section 2(a) of this act defines “aggrieved person” which refers to any woman who is, or has been, in a domestic relationship with the respondent, who can be anyone irrespective of a marital relationship.
Also, sub-clause (f) of Section 2 defines “domestic relationship” as a relationship between two individuals who live or have lived together in one house as a family or are related by consanguinity, adoption, marriage or through a relation ‘in the nature of marriage’.
By using the phrase, “relations in the nature of marriage”, the act widens the scope of legally recognized domestic relationships between men and women. However, a proper definition as to what amounts to the same has not been made.
The essentials to constitute a “relationship in the nature of marriage” under the Domestic Violence Act, 2005 were laid down by the Supreme Court in the case of D. Velusamy v. D Patchaiammal, 2010 which are:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
In addition to this, the parties must have lived together in a “shared household “as defined under Section 2(s) of the Act.
In the 2013 landmark case of Indra Sarma v. V.K.V.Sarma, live-in relations were bifurcated into one between two unmarried individuals and another between a married and unmarried individual or two married individuals. Only the first part has been recognized by the court. Furthermore, guidelines were laid down by the bench to identify relations in the ‘nature of marriage’ as mentioned under the Domestic Violence Act, 2005. These included a reasonable period, shared household, pooling of resources, sexual relationship, intention and conduct in a way that resembles a marriage.
Other Significant Judicial Decisions
Honourable Supreme Court observed in the case of Lata Singh v. State of U. P in 2006, a live-in relationship between two consenting adults of heterogenic sex does not amount to any offense. Adultery was however not considered. It also stated that a major girl is free to marry anyone she likes or “live with anyone she likes. It is important to note that adultery and same-sex relationships were decriminalized through the Joseph Shine case and Navtej Singh Johar v. Union of India, respectively.
In various other cases such as Badri Prasad v. Board of Consolidators, Gokal Chand v. Parvin Kumari, Mohabhat Ali v. Md. Ibrahim Khan, Madan Mohan Singh vs. Rajni Kant, the court reiterated how live-in relations will not be considered as an offense and how marriage will be presumed in case of two consenting adults who have been living together for a reasonable period of time. In Kamini Devi v. State of U.P, the Allahabad High Court observed that the live-in relationship between consenting adults is not a crime.
Furthermore, the High Court of Punjab and Haryana held in the case of Pradeep Singh v. State of Haryana that an individual has the right to choose a partner of their choice and formalize the relationship through marriage or adopt the non-formal approach of a live-in relationship.
Live-in relationships are neither a crime nor a sin, as Justice Radhakrishnan stated in the Indra Sarma Case. Over a period of time, the courts have recognized and accepted the concept of cohabitation through various case laws. Despite such precedents and laws like the Domestic Violence Act that acknowledge such relationships, the absence of proper legislation is clearly evident. Enacting one would be extremely helpful in reducing violence against couples in such relations. It will also address other issues such as granting protection to cohabiting couples, defining ‘reasonable period’ for the purpose of presuming marriage and many more. Thus, it might be a good time to look for a comprehensive law or explicit amendment to give live-in relationship its legislative due.
Gayathri is a student of law at Christ University, Delhi-NCR campus and she is currently an intern with TA.
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