Introduction "With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today."2 |
Family has been considered as the oldest social institution in the world. According to Horton and Hunt “Marriage is the approved social pattern, whereby two or more persons establish a family”.3 Throughout human history marriage has been supported by religions, laws and social norms. It can be said that marriage is a pre-legal, pre-state institution.4 After primitive stage marriage has been a universal constant of human society irrespective of the form it takes places. It has been a sacred institution on which the base of Indian society lies. Contribution of this conjugal marriage towards society has been considered more than any other forms of adult relationship.5 |
Professor John Finnis has considered marriage as an act which has two points, procreation and friendship.6 Each of these points is considered as an intrinsic good. In Indian society marriage has acted as a bridge where bonding of two different families takes place. Moreover marriage in the family provides an identity to an individual. Marriage enables the couples i.e. husband and wife to prosper as an individual. It links not only men with women, but parents with children.7 |
Marriage is constituted as a legal relationship. It is a type of association which is created voluntarily different from the ones made out of blood relationship. Law defines the ones who you can marry or cannot marry. It also decides the consequences one will suffer at the dissolution of marriage i.e. by death or divorce.8 Therefore law helps in creating a uniform set of standards which governs the institution of marriage with respect to society. Some also considers it as a public institution where law regulates the entry and exit to it. |
Marriage is a sacred bond between male and female and is an indissoluble institution. In India (excluding Muslims) marriage is regulated by acts such as Hindu Marriage Act, 1955 and The Special Marriage Act, 1954. It is considered as sacramental in character. Here by word sacramental one means that the institution should be recognised as sacred institution of society which helps an individual to fulfil his societal and natural obligations. Moreover in Hindus it was also believed that a woman will not attain salvation if she does not get married. |
In Muslims the personal laws like Shariat governs the marriages. The Muslim law since its origin has recognized marriages as contractual and dissoluble and right to dissolve the marriage is a Quranic right. Whereas Christianity encourages celibacy and late marriage by attaching purity and sanctity to unmarried life, though it recognizes that marriage is essential for procreation, those who have refrained from marrying are hailed and revered. |
These laws help in validating the marriage between the couples. Moreover ‘right to marry’ is also a constitutional right.9 It is one of the parts of fundamental rights available to citizen. The Supreme Court of India has held the ‘right to marriage’ as a component of right to life under Article 21 of the Indian Constitution.10 This right of right to marry acts a right to access the material benefits that a state provides to this institution of marriage. The problem with this right is that it arbitrarily draws a binary line between the couples who are legally married and the ones who are just cohabitating with each other. |
The practice of living together without getting married is becoming more widespread and accepted way of life in recent years. The moral criterion for judging sexual intercourse has shifted, love rather than marriage is now widely regarded as making a sexual act moral. These changes have introduced a new idea of having a ‘Live-In’ Relationship which means two partners living together under a same roof without being married to each other. |
Top Marriage vis-a-vis ‘Live-In’ Relationship “Marriage is a great institution... but I ain’t ready for an institution yet.” 11 |
Changing Institutions As the society has evolved, the institution of marriage has seen change from being a sacramental bond to a contractual relation. A new dogma began gaining acceptance- one who has the liberty to enter matrimony should also have the liberty to opt out of it. Marriage came to be recognised as a human institution, based on the free volition of men and women who were not infallible to dissolve a marriage that had become burdensome. The problem of indissolubility of marriage did not affect the husband since he had the option to discard an earlier wife and remarry. But the rights of women were severely constrained due to the denial of divorce and remarriage. In the past few years there has been an enormous change in the way the word ‘relationship’ has been recognized in India. With the advent of laws related to privacy, a more individualistic approach has been taken against the age old societal norms. This changing norm in the society has asked for a need to have an alternative to the institution of marriage. After the Puttaswamy12 Judgement the ‘right to privacy’ has been held as a fundamental right. Therefore the concept of ‘Live-In’ relationship has got a fundamental backing in the form of this judgment because the right of privacy, simply put, is merely the right to live as one chooses.13 Also having pre-marital sex is also not prohibited in India.14 Thus the couple having ‘Live-In’ Relationship does not do anything illegal if they enter into any sexual relation. Marriage comes with burden of being surrounded by duties and limitations that a caste, religion or your gender provides. Marriage has been used as a tool to regularize the reproduction among the masses. It has been said that marriage is the preferred method to harness male sexuality in the interests of the larger Society.15 Also the question is whether marriage as institution is still relevant as a means to achieve the societal goals or objectives. Therefore marriage creates an institutional limitation on the younger generation, which pushes them towards having a ‘Live- In’ Relationship. The rise of this new age relationship acts as an opposition to the institution of marriage which is imposed by state for sexual discipline. Thus traditional marriage among the youths is now being considered as a baggage which contains a bundle of problems. This includes:- loss of individuality, loss of privacy, lack of freedom, lack of individual growth, lack of social and sexual variety, boredom and dullness, dissatisfaction with spouse, feeling trapped, not accommodating each other, sexual frustration (due to mismatch), being tied down, work with no pay check to housewife, Problems with- in - laws.
These factors have led to idea of having an alternative to marriages. Further factors such as i) increasing acceptability of singlehood, ii) increasing popularity of cohabitation and iii) increasing rate of divorce had put serious challenge to institution of marriage adds more value to this new age institution. 16 ‘Live-In’ Relationship does not act a barrier to family. It is because family is neither synonymous with marriage nor it is solely dependent on it.17 Rather ‘Live-In’ Relationship provides an opportunity to the individuals to understand the partner without being legally bonded. Thus the concept of ‘Live-In’ Relationship works as a hypothetical contract which gets renewed every day and it contains an agreement to live together. This type of contract can be terminated any time by any parties without the consent of the other party.18 But if this contract is continued for a long time then it can be taken into the category of Presumption of Marriage.19 In support of ‘Live-In’ Relationship it is often argued that only difference between marriage and this new institution is that the former has been backed by rituals or ceremonies, whereas the later one lacks these societtal formalities. Therefore Author Jan Trost argues that ‘Live-In’ Relationship should be considered as a parallel to institution of marriage, rather an alternative.20 Status of ‘Live-In’ Relationships In metropolitan cities individualistic freedom is given higher priority, that’s why live-in relationship has become a new normal or a type of alternative to marriage. The Institution of Marriage has got the backing of law in form of various statutory provisions. Whereas on the other hand ‘Live-In’ Relationship is not recognized by Hindu Marriage Act, 1955 or any other statutory law, but the Supreme Court of India in the landmark judgment of SPS Balasubramanyam v. Sruttayan,21 has said that, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” Moreover it was in Badri Prasad v. Dy Director of Consolidation22, that the Supreme Court for the first time considered a relationship which lasted for 50 years as ‘Live-In’ Relationship. ‘Presumption of Marriage’ will consider a couples cohabiting together as a legally married couple unless proved contrary. But if there is evidence that the couples were not living together, then that relation cannot fall in the category of ‘Live-In’ Relationship.23 Further in the case of M. Palani v. Meenakshi24 court held that the situation in which the woman under Section 20 [Monetary Reliefs] and Section 26 [Relief in other suits and legal proceedings] of PWDVA was claiming maintenance in form of basic necessities on the ground that she was in a ‘Live In’ Relationship with the petitioner. The court held that no maintenance will be awarded to her because merely having sexual intercourse as friends would not amount to be called live in relationship. This means that the relationship to be recognised as a ‘Live-In’ Relationship should have a cohabitation which must be of such time that it is easily visible to societal eyes. Cohabitation which is defined as a living situation wherein an adult is sharing living quarters with one unrelated adult of the opposite sex. Children may or may not be present in the household, but no other adult may be living in the residence.25 The Favouring guidelines The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as ‘PWDVA’) recognizes that the abuse against the women which can take many different forms such as domestic abuse, sexual abuse, economic abuse and emotional abuse. The act indeed is a step forward in recognizing that sexual abuse can occur in marriage. The Supreme Court had made it clear in Indra Sarma v. V.K.VSarma26that the couple who had been in a ‘Live-In’ Relationship will fall under Section 2(f) [domestic relationship] of PWDVA, whereas in case of any domestic violence Section 3 [domestic violence] can be invoked and also the aggrieved person can claim relief under Chapter IV [Procedure for obtaining orders of reliefs] of the Act. The Court also gave certain guidelines which allow women who are part of ‘Live-In’ relationship to come under the grab of ‘Protection of Women from Domestic Violence Act, 2005’. This includes:- duration of relationship, shared household, pooling of resources or financial arrangement, sexual relationship, bearing children, socialisation in public, intention and conduct of parties, entrusting responsibility or domestic arrangement.
Thus Protection of Women from Domestic Violence Act, 2005 acts as a legislation which provides same status to ‘Live-In’ Relationship as a married couple. Further Universal Declaration of Human Rights gives recognition to family and its institution. Under the preamble of UDHR for the foundation of freedom, justice and peace in the world, equal recognition must be given in form of inalienable rights to each individual. Creation of family is one of the human rights enshrined under UDHR.27Moreover as per Article 16(3) of the UDHR it is the duty of state to protect the family which is an important part of every society.28 This means that there should be protection of family irrespective of the nature in which they exist. The state can’t differentiate or prioritise between families who are different from existing and majortarian societal norms. International Recognition In Common Law countries like U.K. and U.S.A. the couples having ‘Live-In’ relationship do not get the same recognition as provided to married couples. In U.K. the couples are free from any liability on each other. Neither have they shared any inheritance right over each other’s property unless it is recognised by any will. In case of children there exists a protection where it creates obligation on partners of bringing up the child. Schedule 1 of the Children Act 1989 provides financial provision for cohabitants’ children under 18. While in Civil Law countries like France the couples have right to sign a contract before a court clerk in which the contract will bind them to organize their common life. This right exists in form of Civil Solidarity Pact which was passed by French National Assembly on Oct. 13, 1999. Here the couples without getting married get rights related to tax, housing and social welfare.29 Moreover the couples have right to revoke the contract by giving a notice before 3 months. Further in country like Canada the couples have right to live in conj ugal relationship. It is recognized by Section 53 of Family law Act, R.S.O. 1990 says that, 53 (1) Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including, ownership in or division of property; support obligations; the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and any other matter in the settlement of their affairs.30
Moreover under Section 53(2) the cohabitation agreement becomes a marriage contract if the partners marry each other. Also the country like china also provides couple could sign contract for ‘Live-In’ Relationship and the children born out of such relationships have rights similar to that of children born under marriage.31 The Precedential Ambiguity The Problem that lies with ‘Live-In’ Relationship is that if man and woman are cohabitating together for a long time and the man who is part of that relation is legally married, then the woman who is in ‘Live-In’ Relationship will not be entitled to get maintenance.32 Though the apex court in Chanmuniya v. Virendra Kumar Singh Kushwaha33 held that a man in live in relation with a woman is liable to pay her maintenance under PWDVA even if they are not legally married. The second wife under Hindu Adoptions and Maintenance Act, 1956 can claim maintenance.34Section 20 (1) (d) Protection of Women from Domestic Violence Act, 2005 also supports the above mentioned contention. Whereas the apex court in the case of Savitaben Somabhai Bhatiya v. State of Gujarat35 held that that the intention of legislature would be prioritised over attitude of party while deciding the right to get maintenance and as per the intention of legislature shown in form of Section 125 of CRPC, the term ‘wife’ regards legally married wife as a wife. This means the women having ‘Live-In’ Relationship will not be entitled for the maintenance if there is presence of first wife. Thus the law is unclear whether the women having ‘Live-In’ Relationship would be considered as second wife in case where the man is already married. If yes then what would be the rights available with her with respect to first wife. Further the Madras High Court while interpreting the section 2(f) of PWDVA in Pyla Mutyalamma v. Pyla Suri Demudu36 case held that the section is silent on the fact that the particular period that the couple has to live to get considered as ‘Live-In’ couple. The court further said that the provision of this Act will apply even in those cases where the couples have frequent sexual relationship and no intention to marry each other or live together in future. Thus it is clear that the judiciary is the only institution which has taken the sole responsibility of expending the civil rights of citizen. Through various judgment in past few years the Apex Court of our country has protected the individuality of People. But in case of ‘Live-In’ Relationships the absence of any legislative steps creates ambiguity in the affirmative steps taken by judiciary. The next chapter deals with the rights available to children born out of ‘Live-In’ Relationships. Top Rights available to Children "In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt, as injustice. “37 |
Children- The National Asset According to Convention on Child Rights child means a person male or female who is below 18 years of age. Each child has a right to have a decent life which is unrestricted with basic Human Rights and moreover they need an environment which gives them choices and allows them to live with utmost freedom. Therefore to lead this life a child’s education and health should be proper and this should be a sole aim of a country. In a humane society children are one of the weakest parts. They are most vulnerable and the defenceless section because of their dependency on the one’s who are superior to their age. At their delicate age children need special care and protection for their growth. Their growth should be made in a proper manner i. e. without any exploitation. This must be of utmost importance for any country’s development. In ‘Live-In’ Relationships since the man and woman are not legally bonded to stay together, the children born out of such relationship may suffer in this unambiguous nature of relationship. There are also chances that these children can be neglected socially and legally in this tug-of-war between man and woman. This may lead to denial of even basic needs to children. The country where children are considered as national asset cannot progress until its children are on the path of growth. But the reality is that the children have been exploited at every level, whether it is industry, trade, business, home or in footpath. Hence there is both legal as well as moral obligation to take enough measures for welfare of children. Legitimacy of Child Legitimacy is a status which provides child with certain rights against the man whom the law and the society generally regard as his father.38 A child born in India comes with various rights like the right to nationality; family name; protection against discrimination39; life40; opinion and expression; thought conscience and religion41 and association.42 The ‘illegitimacy’ of a child has been a social stigma and a legal disability in this country which may affect various rights of the children including their succession rights. A person claiming as an illegitimate son must establish his alleged paternity in the same manner as any other disputed question of relationship is established.43 The Indian Evidence Act 1872, including its provisions on legitimacy of children, applies to all persons irrespective of their religion and personal law44 and wherever applicable, supersedes the contrary provisions of the personal laws.45 A marriage presumed from a long cohabitation is also a marriage within the meaning of the Indian Evidence Act 1872 for giving rise to this presumption.46 Section-114 of the Evidence Act presumes that children born out of such relationship will not be illegitimate.47 Also under the personal laws, only the children of a married couple are regarded as legitimate and the children of unwed mothers or unwed fathers have no legal recognition as legitimate children.48 The father is considered as a “natural guardian” of a child under Section 6(a) of the Hindu Minority and Guardianship Act 1956. Whereas under Section 6(b) of this act considers mother as a natural guardian if child is illegitimate. But in the absence offather the mother acts as a natural guardian of the children. Thus there is existence of some legislative acts which protects the children in some forms. Judiciary behind Rights of Children Apart from various judicial precedents49, Indian legal system completely ignores ‘Live-In’ Relationships. The lack of Legislative Rights available to ‘Live-In’ Relationships has led to exploitation of women by their partners. Even the society which includes the family members also neglects these relationships. The children born out of such relationships get a status which is unclear in the eyes of current legal regime. The division bench of Supreme Court in case of Dimple Gupta (Minor) v. Rajiv Gupta50held that under Section 125 of the C.R.P.C children are entitled to get maintenance even if he is born of an illicit relationship. This means that when a couple lives together continuously for a long time, the children born to them from such a union are legitimate and would be legal heirs to the property of their father.51 Moreover in form of Vidyadhari v. Sukhrana Bai,52 the apex court of our country has made children born out of such relationship as the ‘legal heirs’ of the Property. This entitles children to inherit property from their parents involved in ‘Live-In’ Relationship.53 Long cohabitation, however, raises a strong presumption in favour of the parties’ marriage and also generally raises a presumption of legitimacy of their children.54 The Hon’ble Court Supreme Court in light of Article 39(f) and 300 of Indian Constitution has even said that the children bom out of ‘Live-In’ Relationships has been given legislative legitimacy in form of Section 16(3) of Hindu Marriage Act, 1955. But this right is only accessible to the property of their parents. These rights become unclear when the man is already married and it has a child with that wife. As already discussed above the future of women in ‘Live-In’ Relationship becomes unclear Top Conclusion & Suggestions Marriage is considered as an essential part of every religion. Also marriage is part of more than 100 civil laws. ‘Live- In’ Relationship is based on the idea of individual autonomy which only involves consent of couples. While in India the institution of marriage has consent of couples as secondary requirement, rather the consent of family members acts as primary requirement to make this process valid. Giving ‘Live-In’ Relationship an institutional status may lead into a clash between law and religion. Generally religious institutions or extremist groups undermine the changes related to individual autonomy. The same would in ‘Live-In’ Relationship too. But with the help of State, ‘Live- In’ Relationship can get support of these religious institutions. The state can stop the beneficiary and support that it provides to these religious institutions. In order to survive these groups directly or indirectly have to support the ‘Live-In’ Relationship and thus the resistant towards it will decrease. |
‘Live-In’ Relationship which looks similar to nuclear family can also have devastating effect on children in case of the parent leaves or dies. In institution of marriage there is support of other family members, but in case of this new institution the absence of family ties can make it difficult for children. Along with the question of the legitimacy, the problem of custody and inheritance is much bigger issue. Instead of finding the solution from current legal provision, there is need for new reforms especially made by the parliament. |
As discussed above that the ‘Live-In’ Relationship should get more recognition in form of legislative reforms, but these reforms should be made with keeping in mind the existing problems in society. There might be chances that the concept of ‘Live-In’ Relationship can have an impact on monogamous nature of marriage i.e. indirectly ‘Live-In’ Relationships can increase the cases of bigamy. This situation can create confusion because the law on one hand prohibits bigamy and on other hand it is also expected to provide maintenance to the wife. This can also have a wrong effect on the life of children. Thus the future reforms made in case of family law must include ‘Live-In’ Relationship’ to give it more clear status. |
All the aspects of family law lie under Entry-5 of the concurrent list in the Indian Constitution. This means that both parliament and state legislatures have power to legislate in respect of these matters. Hindu Marriage Act, 1955 or any other statutory law like the Special Marriage Act, 1954 and the Indian Succession Act, 1925 fails to define the rights of people involved in ‘Live-In’ Relationships. It cannot be said there have not be any step towards providing ‘Live-In’ Relationship a clear statues. The Malimath Committee Report, 2003 on “Reforms in the Criminal Justice System” gave the suggestion of amending the word ‘wife’ given in Section 125 of CrPC, so that it also includes woman who has been in a ‘Live-In’ Relationship. |
In case of children born out of ‘Live-In’ relationships the lack of any proper legislation act as a problem to safeguard the children, but it is also true that the existing laws are also not properly implemented in full letter and spirit. For Example- In India despite having number of legislations those are present for the eradication of child labour, the problem still lies in front of people. The clear reason behind this is the problem in implementing them in proper manner. |
Hence there arises an urgent need to have legislative reforms which protects the people as per the need of changing ideology in society. It is the need of day to have legislative reforms which defines rights and obligations of both the sides i.e. the citizens and the states towards this new evolving Institution of Relationship. Also there exists a need to provide emotional, mental and physical security to these children through legislative reforms in the country. The guidelines provided through various judicial precedents must be kept in mind while reforming current legal regime of India. Also the existing personal laws and procedural laws like CrPC should not be neglected while making these reforms. These reforms should strike a balance between different rights and wrongs existing in society without disturbing the present rights!! |
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