A COMPARATIVE STUDY OF LEGAL STATUS OF LIVE-IN RELATIONSHIP IN INDIA AND OTHER COUNTRIES
Author: Vertika Saxena, pursuing LL.B.(Hons.) from City Academy Law College
Is it important that all immoral societal norms are always illegal?
Society is dynamic and the Indian customs and practices have always been influenced by western culture which led to an independent life. The relationships among people and the change in their living patterns have been drastically modernized over the past few years.
Live-in relationships are a typical example of growing Indian society. But this concept still faces a lot of criticism and is considered unethical or immoral as it lacks legality. A man and a woman living together and instead of choosing to get married and instead of choosing to get married they adopted a non-formal approach to live-in relationships is their personal choice.
Is it a crime to choose to live with a man or woman without marrying?
Gradually after numerous judgments now live-in relationships are legal in India but it is still not well rooted in Indian soil where marriage is considered a "sacred" institution.
Live-in relationships are nowhere defined in any legislation or enactments and the concept is still ambiguous to an extent of proper rights and obligations to the parties in a live-in relationship. In layman's terms, the live-in relationship may be defined as "continuous cohabitation for a significant period, between partners who are not married to each other in a legally acceptable way and are sharing a common household."
The Supreme Court had tried to elaborate on the concept of live-in relationships and issued various guidelines for purpose of dealing with such relationships. This legal article tries to figure out what are live-in relationships and the legal position of live-in relationships in India and as well as in other countries.
LEGAL STATUS OF LIVE-IN RELATIONSHIP IN INDIA
Indian judiciary has always rendered justice to people and it has tried to do the same in the case of live-in relationships. They intend to make the rules for the partners in a live-in relationship and not promote or prohibit this concept. There have been many cases of abuse arising out of these relationships and it is the duty of the court to look after these kinds of matters which affect our society at large and no miscarriage of justice takes place.
In the year 2001 in the case of Payal Sharma Vs Nari Niketan, the bench observed that a man and a woman even without getting married can live together if they wish to. This may be regarded as immoral by society, but is id not illegal. There is a difference between law and morality. Further live-in relationships have also been considered within the ambit of the right to life under article 21 of the constitution of India and the act of two major living together is considered lawful and legal in the landmark case of S. Khushboo vs kanniammal 2010. The legal status regarding live-in relationships has been continuously developing as it faced social aversion based on the conservative mindsets of Indian society. The landmark case of Indra Sarma vs V.K.V Sarma 2013 has extensively deliberated the concept of live-in relationships and is considered a basic framework. Supreme Court observed that these relationships are neither a crime nor a sin though socially unacceptable in this country. The matter to marry or not to marry or have a heterosexual relationship is extremely personal.
PRESUMPTION OF MARRIAGE IN LIVE-IN RELATIONSHIP
When the courts were trying to recognize this concept and clarify the essential factors that rise out of live-in relationships, there arises a concept of presumption of marriage. The Court said that it may be presumed that the partners are in a marital relationship if they were living together for a longer period. This concept of treating a live-in relationship as a marriage if continued for a long term was inferred in the case of Madan Singh vs Rajni Kant 2010. In this case, the court held live-in relationship can't be termed a "walk-in and walk-out" relationship and that there is a presumption of marriage.
APPLICATION OF VARIOUS LEGISLATIVE STATUTES
There are mainly two laws that expanded and recognized the concept of a live-in relationship:
1:- Protection from Domestic Violence Act, 2005:-
This Act was legislated as an attempt to protect women from abusive partners and family. 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, when they are related by consanguinity, marriage, or through a relationship like marriage, adoption or are family members living together as a joint family.”[Section 2(f)] In the words 'relationship in nature of marriage' encompasses within itself live-in relationships and a woman under this Act is entitled to claim remedy in case of physical, mental, verbal, or economic abuse. This act seems to have widened the scope of legally recognizing domestic relations between men and women.
This provision merely denounces domestic violence in any quarter. In the case of Velusamy Vs D. Patchaiammal 2010 certain prerequisites or tests were developed for a live-in relationship to be considered valid as this provision does not cover all live-in relationships.
2:- Section 125 of the Code of Criminal Procedure Code, 1973:-
This right pertains to the right of maintenance. In the case of Chanmuniya Vs Virendra Kushwaha the Supreme Court upheld the right of a woman in a live-in relationship to claim maintenance under section 125 of the Criminal Procedure Code.
This right is given to a woman in a live-in relationship because it will restrain a man from taking advantage of legal loopholes by enjoying the benefits and avoiding the responsibilities.
The children born out of live-in relationships also have legal status and will be considered legitimate as held in various judgments. So from all the above-mentioned judgments, it is clearly visible that it is recognized but it needs social acceptance and also proper legislative enactments.
AN INTERNATIONAL SCENARIO OF LIVE-IN RELATIONSHIP
The status of live-in relationships in other countries is further explained.
UNITED STATES OF AMERICA: - Before the 1970's unmarried living together was uncommon but since the 1980's it is legalized and several states have passed laws allowing unmarried couples both heterosexual and homosexual to register as domestic partners. It led to the establishment of domestic partners. Registry to grant legal recognition and few rights to the live-in couple are given to married partners.
CANADA:- Live-in relationships are legalized under common law in Canada. If a couple lived together for 12 months without a break then they get a legal sanctity from a common law relationship. They have some rights as married couples.
AUSTRALIA:- The Family Act of Australia states that a de facto relationship can exist between two people of different or of same-sex.
SCOTLAND:- The Family Law (Scotland) Act, 2006 under section 25(2) provides legal sanctity to live in a relationship if 3 factors are fulfilled provided therein.
UNITED KINGDOM: - In the UK a woman and man living together in a sexual relationship stably are considered Common Law Spouses and this relationship is governed by the Separate Act. The requirements are that they should be above 16 years of age and should be in civil partnership or marriage or within prohibited degrees of relationships.
Live-in partners are not obliged to support each other financially and if a child is born to them then the unmarried mother or father has the responsibility by entering into an agreement. The rights and obligations of unmarried parties can be outlined by drawing up together agreement and homosexual partners can enter into a civil partnership.
A live-in relationship is a healthier way as it helps the partners to know each other well and avoid a bad marriage that results in divorce. This concept has already emerged in various countries but it is still emerging in India over the past few years through various Supreme Court judgments. But what exactly is needed is a proper legislative enactment for regulation of a growing number of relationships, protecting the rights and interests of the partners, and also determining various other rights arising out of a such relationship.
Canada and USA legally recognize the live-in relationship and in Scotland, the law does not provide for the registration of such a relationship while in the UK same is provided. The comparative study shows that it is necessary to legislate a proper statute on this matter and the mentality of Indian society should be following the rapidly growing society.