Promise to Marry, Consent and Offences of Rape – Analysing Judicial Trend

(A) INTRODUCTION

Live-in relationships are not new, but they are still largely unfamiliar to Indian society. As per prevailing social customs, marriage is regarded as a sacred institution, and relationships outside marriage have traditionally been viewed as socially unacceptable. However, the concept of live-in relationships is slowly emerging in India and brings with it several legal and social issues that require broader discussion.

Till date, there is no statute in India that uses the term live-in relationship, defines it, or grants it explicit legal recognition. However, in certain landmark cases, the Apex Court has interpreted existing laws in the context of live-in relationships and has laid down guiding principles.

 

(B) MARRIAGE AND LIVE-IN RELATIONSHIP

Marriage and live-in relationships are two distinct concepts. Marriage is a socially and legally sanctioned relationship between a man and a woman, regulated by laws, customs, rules, and beliefs. In contrast, a live-in relationship is a relationship in the nature of marriage, where two individuals live together without entering into a formal marriage.

The Apex Court, in the Indra Sarma case¹, explained the distinction between a marital relationship and a relationship in the nature of marriage. A marital relationship continues notwithstanding differences of opinion, marital discord, or even the absence of a shared household, as it is based on law. On the other hand, a live-in relationship is purely an arrangement between the parties and lacks legal sanctity. Once either party decides not to continue the relationship, it comes to an end.

 

(C) CURRENT LEGAL POSITION

At present, marriage and its consequential effects such as divorce, marital violence, maintenance, and succession are governed by various statutes. Since live-in relationships do not have legal recognition, issues arising out of such relationships often face legal hurdles.

(i) Protection of Women from Domestic Violence Act, 2005

The Domestic Violence Act, 2005 uses the term domestic relationship to cover various interpersonal relationships where women require protection. The Act categorises intimate relationships into two groups: marriage and relationships in the nature of marriage.

Section 2(f) of the Act defines a domestic relationship as a relationship between two persons who live or have, at any point of time, lived together in a shared household and 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.

The Act does not define the expression relationship in the nature of marriage. Courts at various levels have interpreted this term differently.

The authoritative pronouncement of the Apex Court on the meaning of this expression appeared first in D. Velusamy v. D. Patchaiammal² and later in Indra Sarma v. V.K.V. Sarma³.

In the Velusamy case², the Apex Court provided a specific interpretation of the term relationship in the nature of marriage, particularly while examining bigamous and adulterous relationships for the purposes of the 2005 Act.

The Court observed:

In our opinion, a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that, although not being formally married:
(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 into a legal marriage, including being unmarried; and
(d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. (Para 33)

The Court further held that not all live-in relationships would qualify as relationships in the nature of marriage for the purpose of the Act. To claim protection under the Act, the above conditions must be satisfied and proved by evidence. A relationship where a man keeps a woman merely for sexual purposes or as a domestic servant would not qualify as a relationship in the nature of marriage. (Para 34)

In Indra Sarma v. V.K.V. Sarma³, the Apex Court further elaborated on the distinctions between marriage, relationships in the nature of marriage, and live-in relationships. The Court laid down guidelines to determine when a live-in relationship would fall within the ambit of Section 2(f) of the DV Act.

The following factors were identified:
(1) reasonably long duration of the relationship;
(2) shared household;
(3) pooling of resources and financial arrangements;
(4) domestic arrangements, especially entrusting responsibility to the woman to run the household;
(5) sexual relationship not merely for pleasure but involving emotional and intimate bonding and procreation;
(6) children and shared responsibility for their upbringing;
(7) socialisation and holding out to society as husband and wife;
(8) intention and conduct of the parties reflecting a marriage-like relationship. (Para 55)

The Court further clarified that not all live-in relationships are relationships in the nature of marriage. In the said case, the appellant, an unmarried woman, entered into a relationship with a married man. The Court held that such a relationship lacked the essential characteristics of marriage and therefore did not fall within the definition of a domestic relationship under Section 2(f) of the DV Act. (Para 65)

(ii) Position Under Other Laws

The legal status of live-in relationships in other areas such as maintenance, succession, inheritance, domestic violence, and rights of children remains unclear. There is a pressing need for comprehensive legislation to address these issues.

 

(D) ILLUSTRATION OF CATEGORIES OF RELATIONSHIPS IN THE NATURE OF MARRIAGE

In Indra Sarma⁴, the Apex Court referred to various situations where relationships may or may not qualify as relationships in the nature of marriage under the DV Act.

1.      Unmarried adult woman and unmarried adult man
Such a relationship falls within Section 2(f) of the DV Act, and remedies under the Act are available in case of domestic violence.

2.      Unmarried woman and married adult man
The issue is whether such a relationship qualifies as a relationship in the nature of marriage.

3.      Married adult woman and unmarried adult man
Whether such a relationship falls within the definition depends on facts and circumstances.

4.      Unmarried woman unknowingly entering a relationship with a married man
Such a relationship may, in certain situations, fall within the definition of Section 2(f).

5.      Same-sex partners (gay and lesbian relationships)
The DV Act does not recognise such relationships, and they do not qualify as relationships in the nature of marriage under the Act.

 

(E) LEGAL ISSUES ARISING OUT OF LIVE-IN RELATIONSHIPS

The legal rights and protections available in marriage are largely unavailable in live-in relationships.

1.      Live-in relationships do not enjoy legal or social status equivalent to marriage.

2.   Proving consent in cases of sexual offences poses significant challenges, leading to difficulties in securing justice.

3.      Rights of children born out of live-in relationships remain a major concern, particularly where both partners are unmarried.

4.      Remedies under laws such as the DV Act and Section 498A IPC are difficult to invoke due to lack of legal recognition.

5.      Rights relating to maintenance, succession, and inheritance of female partners remain largely unaddressed.

(F) CONCLUSION

In a feudal society, sexual relationships outside marriage were considered taboo and viewed with moral disapproval. However, Indian society is evolving, and this change has been acknowledged by Parliament through the enactment of the Protection of Women from Domestic Violence Act, 2005⁵.

There is an urgent need for Parliament to address the legal vacuum surrounding live-in relationships by enacting appropriate legislation or amending existing laws to protect women and children born out of such relationships.

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References

1.      Indra Sarma v. V.K.V. Sarma (SC 2013) – Para 36

2.      D. Velusamy v. D. Patchaiammal (SC 2010) – Para 33

3.      D. Velusamy v. D. Patchaiammal (SC 2010) – Paras 55 & 65

4.      Indra Sarma v. V.K.V. Sarma (SC 2013) – Para 37

5.      D. Velusamy v. D. Patchaiammal (SC 2010) – Para 36