Live-In Relationship – Analysing law and Legal Issues
(A) INTRODUCTION
The Live-In Relationship is not new but stranger to Indian Society. As per prevailing customs Marriage is sacred thing and all other acts outside marriages are sins. The concept of live-in relationship is slowly emerging and it comes with some issues which need larger discussion.
Till date, there is no statute in India which uses the term live-in relationships, defines it or grants legal recognition to it. In some landmark cases the Apex Court have interpreted present law in the context of Live-In-Relationship and laid down some guidelines.
(B) MARRIAGE AND LIVE-IN RELATIONSHIP
Marriage and Live-in- Relationship are two different concepts. Marriage is socially and legally sanctioned relationship between man and woman that is regulated by laws, rules, customs and beliefs whereas Live-in Relationship is relationship in the nature of marriage where two individuals lives together without performing formal marriage.
The Apex Court in Indra Sarma case1 explained distinction between the relationship in the nature of marriage and marital relationship. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end.
(C) CURRENT LEGAL POSITION
At present Marriage and their consequent affects like divorce, marital violence, maintenance, succession etc. are governed by various statutes. Live-in Relationship has no legal sanctity and hence consequences arising from this type of relationship faces legal hurdles.
(i) Domestic Violence Act 2005 –
The 2005 Act which uses the term “domestic relationship” to cover various kinds of interpersonal relationships wherein women need protection, divides intimate relationships into two categories: “marriage” and “relationships in the nature of marriage”
Section 2(f) of the Act defines “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.
The Act does not define the term “relationship in the nature of marriage”, the courts at all levels have interpreted the term in various ways.
The authoritative pronouncement by the Apex Court on the meaning of the term relationship in the nature of marriage or more liberally live-in relationships in the context of the 2005 Act appeared in 2011 in the case of D. Velusamy and then in 2013 in the Indra Sarma case.
In the Veluswamy Case2, the Apex Court went on to give a specific definition to the term relationship in the nature of marriage, considering that the issue of bigamous or adulterous relationship was also needed to be examined for the purposes of the 2005 Act.
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.
(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 Apex court further held that live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’. (Para 34)
In 2013 in the case of Indra Sarma Vs VKV Sarma3 taking further the line of reasoning developed by the Apex Court in the Velusamy case, the Court once again explained, elaborately, the differences between marriage, relationship in the nature of marriage and live-in relationships.
The apex court laid down some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act.
(1) reasonably long duration of period of relationship,
(2) shared household,
(3) pooling of resources and financial arrangements in joint names to support each other,
(4) domestic arrangements or entrusting responsibility, especially on woman, to run the home,
(5) sexual relationship, which is not just for pleasure, but for emotional and intimate relationship and also for procreation of children,
(6) children – having children and sharing the responsibility for bringing up and supporting them,
(7) socialization in public and holding out to the public as husband and wife, and
(8) intention and conduct of the parties – common intention of parties to have a marriage-like relationship. (Para 55)
The court further held that All live-in- relationships are not relationships in the nature of marriage. In this case Appellant being unmarried woman entered into live-in relationship with married man. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the DV Act. (Para 65)
(ii) Position in other Laws –
The Legal Status of Live-In Relationship in other aspects such as rights of children, maintenance, domestic violence, Succession, inheritance is not clear and need to enact detailed legislation.
(D) ILLUSTRATION OF THE CATEGORIES OF CASES OF RELATIONSHIP IN NATURE OF MARRIAGE
In Indra Sarma Case4 reference has made to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage.
(1) Domestic relationship between an unmarried adult woman and an unmarried adult male:
It will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.
(2) Domestic relationship between an unmarried woman and a married adult male:
The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.
(3) Domestic relationship between a married adult woman and an unmarried adult male:
The question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.
(4) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male:
It may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the “nature of marriage”
(5) Domestic relationship between same sex partners (Gay and Lesbians)
DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act
(E) LEGAL ISSUES ARISING OUT OF LIVE-IN RELATIONSHIP
The rights and legal protection available to parties in Marriage is not available to partner in Live-in Relationship.
(1) Live-in Relationship as like Marriage does not enjoy any legal and social status.
(2) The proving ‘Consent’ in physical relationship is matter of concern when cases of rape and sexual abuse filed against male partner. In many cases difficulty arises to prove consent in court of law. Consequently victim of physical abuse refrained from getting justice.
(3) Rights of Children born out of Live-in Relationship is another major concern. Although law does not discriminate between legitimate and illegitimate child in case of succession and both get equal rights but in case of both partners are unmarried then deciding rights of children become difficult.
(4) In case of female partner become victim of abusive or violent relationship then applying available legal remedies such as DV Act, Section 498A IPC become difficult because of present law does not provide any remedy to such relationship.
(5) Rights of female partner in Maintenance, Succession and Inheritance is untouched by present legislation and become another subject for debate.
(F) CONCLUSION
In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.5
Parliament has to consider these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected.
- Indra Sarma Vs VKV Sarma (SC 2013) – Para 36
- D Velusamy Vs D Patchaiammal (SC 2010) – Para 33
- D Velusamy Vs D Patchaiammal (SC 2010) – Para 55 and 65
- Indra Sarma Vs VKV Sarma (SC 2013) – Para 37
- D Velusamy Vs D Patchaiammal (SC 2010) – Para 36
No comments: