India is a country that is opening its doors for western ideas and lifestyles. Whether it is good or bad is up to an individual to decide. One amongst them is the concept of live-in relationships.
In a much awaited observation on live-in relationships, the Supreme Court opined that a man and a woman living together without marriage cannot be construed as an offence.
“When two people want to live together, what is the offence? Does it amount to an offence?”
A special three-Judge Bench constituting the Chief Justice of India, K.G. Balakrishnan and Justices Deepak Verma and B.S. Chauhan observed. The Supreme Court said that there was no law prohibiting live-in relationships or pre-marital sex. “Living together is a right to live” the Supreme Court said, apparently referring to Article 21 of the Constitution of India which guarantees right to life and personal liberty as a fundamental right. The Supreme Court made the observation while reserving its judgment on a Special Leave Petition filed by a noted South Indian actress, Khushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005
Meaning
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.
Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, 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), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
Why Some People Like Live-In Relationship
Sometimes partners see live-in relationships as a way to lead a liberal life because it does not require the dedication and responsibility that marriage demands. Walking out of a live-in relationship is much easier than going out of a marriage.
Today’s metro life and modern lifestyle also support these relationships. Basically, live-in relationships are not a question of a moral fight. Even jurisprudential theory states that a law has to be distinguished from morality. Living with a partner without performing requisite ceremonies is one’s own choice. Article 21 of the Constitution of India enshrines the Right to Life.
Position Of Live-In Relationships Abroad
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
Scotland
Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.
France
Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a "de facto stable and continuous relationship" between two persons of different sexes or of the same sex living together as couple. The pact defines the relationshp as a contract, and the couples involved as “contractants". The contract binds "two adults of different sexes or of the same sex, in order to organise their common life." For a valid contract to exist, the contractants "may not be bound" by another pact, "by marriage, sibling or lineage."
United Kingdom
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as "common law spouses", the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other's property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner's assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.
Canada
Living together in Canada is legally recognised as "common law marriage". In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for atleast 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.
Ireland
Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for "separated" live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the break up of a relationship.
Australia
The Family Law Act of Australia states that a "de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a de facto relationship with someone else.
United States
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the "prenuptial agreements". The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.
Position Of Live-In Relationships In India
In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005.
The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable peroid’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.
The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”
The Malimath Committee had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony. On 16.09.2009, the Supreme Court in a case observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C.. A woman in a live-in relationship may also claim maintenance under section 125 Cr.P.C..
In a case the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has the right to live with a man even without getting married, if both so wish”. The Supreme Court observed that a man and woman, if involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be considered as legitimate.
The Supreme Court in Indra Sarma vs. V.K.V. Sharma said that “Live-in relationship like marriage is neither a crime nor a sin, though socially unacceptable in this country.”
The decision to marry or not to marry or to have a heterosexual relationship is intensely personal. The Protection of Women from Domestic Violence Act 2005, is considered to be the first piece of legislation that covered relations “in the nature of marriage,” and has provided legal recognition to relations outside marriage.
Supreme Court Guidelines to Recognise Live-In Relationship
Supreme Court in S Khushboo vs. Kanniammal & Anr (2010) issued some guidelines to recognise live-in relationship-
- The 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.
Note: If a man has a night out with a woman and engages in sexual activities or lives with someone for some days on vacation, it does not qualify for a domestic relationship. Also, if a man has a ‘keep/mistress/rakhail whom he supports financially and has her only for sexual purposes (or as a servant or both), then such a relationship is not marriage in the opinion of the Supreme Court.
What Supreme Court Said Regarding Child Born Out of Live-In Relationships
In D Patchaiammal vs. D Velusamy, Supreme Court ruled out that if a man and woman are having a live-in relationship for an extended period, they will be taken as a married couple in the society and the child born out of this relation would be called legitimate.
The same thing was said in Bharata Matha & Ors vs. R. Vijaya Renganathan & Ors regarding the legitimacy of the child.
What Delhi High Court Said Regarding Live-In Relationships
The Delhi High Court in its decision on 10 August 2010, in Alok Kumar vs. State & Anr, while dealing with the validity of live-in relationship held that-
“Live-in relationship is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party, and one party can walk out at will at any time.”
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