COHABITATION FROM THE EYES OF THE LAW
Author: Sahil Gupta, II year of B.A.,LL.B.(Hons.) from Amity Law School, Noida (Amity University U.P)
In India, Law and morality have always been related, either together or in contrast. On one side, Law provides us with rules and regulations for a specific community to be followed, while morals provide us with knowledge of right and wrong for society. History has witnessed that morals are the basis of law but with the changing society, laws have also played a significant role in establishing morals for a society. Like in the case of the Sati Act, earlier the sacrifice was morally correct in society but after the ban of the Sati act by Lord Bentinck, now the act is no more morally correct. Likewise, every generation, society, the community has its own myths and morals. The sources for these myths and man-made created morals are always unknown, but questioning them is still a chance of bearing risks. One such myth which has developed over a period of time is the Live-in relationship, known as Cohabitation in western countries like Australia, Canada, etc. The term live-in refers to living together of a couple without marrying but living a life like a married couple i.e., sharing intimate, emotional relationships with each other without fulfilling formalities of a valid marriage.
As law influence, morals of a society, giving legal status to the live-in relationship will help cohabitees to follow it with much ease. After the enactment of the Domestic Violence Act, 2005, everyone had a mindset that now Indian Legal System has accepted live-in relationships as “live-in” and “relationship in the nature of marriage” come from the same root. Likewise, Section-125 of Cr. P.C and Section-114 of the Indian Evidence Act,1872 also provide protection to the cohabitees. Earlier, the live-in relationship was restricted between a male and female, but with the changing times and after enactment of new laws for homosexual personalities, the band of live-in has broadened to homosexuals also. The concept of Live-in was enough for a hype situation in society but the addition of homosexuality added fuel to the fire Thought about live-in relationships, seems fantasizing to the youth and ill-practice to their parents. Due to generation gaps, old school romance minds, and many other reasons, many societies are unable to accept cohabitation to date. Through the virtue of this article, the phenomenon of cohabitation can be analysed and be understood by an individual.
This article talks about the legal status of live-in in India, comparison of the legal status of cohabitation with other countries like Scotland, France, Sweden, Australia, Russia, and more. Comparison of cohabitation with marriage, pros, and cons of cohabitation, reasons to why society is accepting live-in relationships. Also, a few cases along with their respective judgments are discussed.
Reasons for increase in Live-in relationships
In India, marriage is considered to be the most sacred and the only pure bond between a couple. The bond of marriage is always related to religion, law, and many social involvements. After the marriage, both the husband and wife are burdened with a lot of obligations and responsibilities towards each other as well as their respective families. In some cases, a woman is even not allowed to complete her higher studies whereas the male due to the responsibilities on him is unable to complete his studies after marriage. And in the case of divorce, many heartbreaks, many social stigmas are faced, many social, economic as well as mental consequences are faced by husband and wife. In a marriage, the wife is given the role to serve her husband whereas the husband is allotted a role to fulfil all economic needs of his wife.
Live-in is a concept, presenting western culture, i.e., to live in a way one wants with whom he/she wants, without any restrictions. With the emerging times, live-in has gained a lot of recognition all over the world, and now people are accepting it, exploring it due to the kind of flexibility it provides. Live-in is a secular concept, as it sees no religion, no caste, and no equalities on any basis including gender as well. In a live-in relationship, both the partners are independent and free from all liabilities that exist in married life. Both the partners can grow together, and learn together, treating each other equally. Also, in a live-in relationship divorce is not needed, thus socially, mentally, and economically safe from being ruined.
Earlier, there was no legislation for live-in but after the interpretation of some laws in case judgments by several courts, now live-in is legal. Women in a live-in relationship feel protected by the law, their children get maintenance from their father up to certain age and thus, the law has accepted the culture of live-in in India. In the recent case of Ajay Bhardwaj Vs. Jyotsna, Jyotsna was granted maintenance of twenty thousand rupees each month to her and ten thousand each month to both children each by the court from her live-in partner i.e., Ajay.
Laws for Live-in Relationship in India
Having deep roots in the ethics and morals of a society, it was very difficult for India to accept the live-in relationships, but to cope up with today’s modern as well as western culture, India has also given live-in relationships, a green signal. Though there is still no particular law, no rights, no legal definition, or no obligations given to a live-in couple are prescribed under the constitution. But Courts through various case judgments have clarified, the legal status of live-in. Courts interpret and amend the legislation in order to prevent mishappening arising from live-in. Following are the legislations, used by courts to deal with cases of live-in:
Domestic Violence Act, 2005
Section-2(f) of the Domestic Violence Act, 2005 states definition for “domestic relationship”. In the Indian history of law, this is the first legislation for females, with respect to the live-in relationship. Though live-in is not clearly mentioned in the Act, a hint for the same is given. It is left for courts to interpret the meaning of “relationship in the nature of marriage”. As live-in and nature of marriage share common boundaries, thus courts assume protection of women in live-in under this act.
Criminal Procedure Code
On 24 November 2000, the Malimath Committee, i.e., the committee on reforms of the Criminal Justice System was formed by the Government of India to give a new structure to Criminal Justice System with all the necessary changes required. In 2003, the formed committee submitted its report and several recommendations were reported. In part-IV of the report, under the head of offenses against women, one of the suggestions was to amend Section-125 of CR.P.C, so as to expand the definition of a wife, i.e., the definition of the wife should include a woman who was living with a man as his wife for a reasonably long period, during the subsistence of the first marriage.Earlier, a woman in second marriage was not entitled to claim maintenance as she was not given the legal status of wife. In order to prevent the man to take advantage of this legal fact, the committee suggested amending section-125.
Indian Evidence Act, 1872
Section-114 of the Indian Evidence Act, 1872 states that a court can assume the existence of any facts which it thinks likely to happen, regard being had to the common course of natural events, human conduct, and public & private business, in their reference to the facts of the actual case.Therefore, a man and a woman living together for a very long time like a couple are assumed by courts to be married.
Landmark Judgements in Indian Courts
Case of Badri Prasad Vs Dy. Director of Consolidation was the first case in the Supreme Court to be dealt with the recognition of the live-in relationship. In this case, a 50-year-old live-in relationship was challenged legally but the court held that if a couple is asked to prove their relationship after completing 50 years together, then it will be possible for a few couples only. Thus, the court declared their relationship legally valid.
In the landmark case of Khushboo vs Kanniammal&Anr, Khushboo was an actress against whom 23 criminal complaints were filed for offenses under Sections 499, 500, and 505 of the IPC, 1860. Once, in an interview, she had talked about pre-marital sex and unwanted pregnancies, after the publication of this interview in India Today and DhinaThanti, she was exposed to great criticism. In the Court hearings, Court stated the examples for Radha & Krishna in support of her and also considered that how can it be illegal, when both the partners are adults and doing all sexual activities with the consent of both. Therefore, the court held it as not illegal.
In another landmark case of Indra Sarma Vs. V.K.V.Sarma, Indra, and V.K.V used to work in the same company and after some time, she left the company and started living together, although Indra was unmarried he had a wife with two children, but still, they continued to live together. He forced him, multiple times for abortion, also he used to take money from her at times. After some time, when she reached the court for her right in his property, Supreme Court stated that although she was aware of the fact about his married life, still she continued to live with him, which amounts to no relief to her under prescribed legislation also. But Supreme Court in order to protect partners in a live-in relationship against ill-practices felt the need to modify Section-2(f) in Pwdva,2005. After modification definition of domestic relationships also includes jobless, illiterate partners with their children born out of a live-in relationship. Supreme Court has also requested Parliament to enact new legislation for the same.
In the case of Alok Kumar Vs State, the complainant was in a live-in relationship with him, and he used to keep her promising that after his divorce with the first wife having a child also, he will marry her. Both Alok and Complainant used to have intimate relationships in London as well as in Delhi. One day when she caught Alok holding hands with another girl at the IGI Airport, she tried to talk to him but he beats her and ran. On registering FIR, she informed all other incidents too but when the matter came in the Delhi High Court, it held that “live-in is a walk-in & walk-out relationship with no legal restrictions attached. People who want to avoid such mishappenings should bind with the partner in a bond of marriage. In a live-in relationship, one cannot complain about immorality.”
In Payal Sharma v. Nari Niketan, Payal Sharma was a 21-year-old girl, who was living with a man. The case was about the legality of the same. The Allahabad High Court held that “a man & a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society and to society, but it is not illegal from a legal point of view. There is a difference between law and morality.”
Legal Status given to a child
According to the Hindu Succession Act, 1956 a legitimate child has the right to joint family property, but an illegitimate child could only inherit property from his mother’s side but not from his father. In India, the legitimacy of a child and the inheritance of property have always been related but the courts have cleared through its judgments that a child born out of a live-in relationship has the right to property when born after a certain time period of the relationship.
In the landmark case of Vidyadhari Vs Sukhrana Bai, Sukhrana Bai was the first wife of Sheetaldeen and Vidyadhari was second. After the death of Sheetaldeen, Vidyadhari fought for her and her children's rights in the property of Sheetaldeen. In this case, the court held that as Sukhrana Bai was the first and legally wedded wife, therefore she has the right to the property of her husband. The court also considered that though, during the subsistence of the first marriage, the second marriage is void but the child born out of the second marriage has the right to property of their father. Thus, the property was divided among four children of Vidyadhari and Sukhrana Bai.
In some cases, courts have granted rights to the child, some have contradictory comments. While criticizing the judgment of the landmark case of Bharat Mata Vs Union of India, Justice Ganguli pointed out that in Section-16(3) of the Hindu Marriage Act, 1955 only the “property” word is mentioned, no specification i.e., ancestral or self-acquired property is done.
According to Section-21 of the Hindu Adoption Act, 1956 a son either legitimate or illegitimate till the age of eighteen years and a daughter until not married are dependent on their father and thus, they have the right to maintenance from the father or estate of their deceased father. Denial of maintenance to a child born out of a live-in relationship can be challenged under Article-21 of the Indian Constitution, 1949. Unequal treatment to the children born out of live-in can be treated as a violation of Article-14 of the Indian Constitution, 1949.
In Dimple Gupta Vs Rajiv Gupta, Dimple Gupta has filed an application through her mother against Rajiv Gupta seeking maintenance at Rs 500 per month from her father as she was born out of the live-in relationship between her father and her mother NarainDassi. In this case, Narain become pregnant when she was in her tenth class, on reaching the hospital for abortion both of them were informed that abortion can’t be done as pregnancy is at an advanced stage. Thus, Dimple was an illegitimate child of Rajiv Gupta but the court held that Rajiv is responsible for paying maintenance every month. Through the virtue of justice, in this case, the court had stated that a child born out of a live-in relationship is legitimate and has the same rights as in the case of children from a valid marriage.
Child Custody at the time of termination of the relationship plays a crucial role in the life of a child as it can have diverse impacts on the life of him/her. There is no specified law for child custody in case of live-in but to resolve problems related to child custody, Courts have referred to Section-13 of Hindu Minority and Guardianship Act, 1956 & Guardian and Wards Act, 1890 which states that the welfare of the child should be given utmost priority. Also, a psychologist is appointed in order to understand his/her needs and desires for parents. HIZANAT in the Muslim Law states that all the rights and custody will be given to the mother and it cannot be denied until something contradictory is proved.
Country wise Analysis
Countries like Switzerland, Japan, Germany do not have laws for co-habitation whereas couples co-habiting are not punished either.
In Australia, a Live-in relationship is known as the de-facto relationship as defined under section-4AA of the Family Law Act, 1975. The Federal Circuit Courts deal with the issues of live-in relationships related to children in the same way as of married couples. From 01 March 2009, all the financial disputes related to the de-facto relationships are also solved at the Family Courts, but in order to solve disputes in front of the Court, some conditions should be fulfilled, like case to be filed within two years of breakdown, presence of a child, have a geographical connection to the participating jurisdiction, the relationship broke down after 01 March 2009.
Russia follows the Civil Law Tradition, derived from the Roman Law. Common Law and Doctrine are not the sources of law in Russia. Russia recognizes marriage only if it is registered in the Civil Acts Registered Office. None of the situations of cohabitation (i.e., duration of the relationship, child involved in a relationship, or any other circumstances) makes it legal. According to the Russian Laws, there are no agreements for the expense’s division and property ownership, or assets distribution if one partner dies or leaves the relationship.
In Scotland, rights are provided to all co-habitant couples but the rights are less than rights given to married couples. The rights are mentioned under the Family Law (Scotland) Act, 2006, which is applied to both same-sex as well as opposite sex couples. There are many rights given to the cohabitant couples, few amongst them are: equal share of household goods, money, property bought during the time-period of live-in, one can ask the court for financial provision at the time of separation, also one can ask for money/property of his/her partner, if the partner dies without writing his will, and one can apply court for domestic interdict also.
In France, earlier the law does not provide any obligation to the co-habiting couple but also does not provide any protection to the couples under the law. The cohabitation agreement depends on the will of the co-habitant couples, but it does not enforce obligations of ownership of property on them, i.e., the property is bought solely by one individual, then it belongs to him/her, but if bought by both, then both owns that property. Now, France Government has given legal status to unmarried couples, including homosexual couples also. The law has provided co-habitants with many different new laws such as they can help their foreign partners to enter the country & each partner will become liable for each other’s debts, also the co-habitant couples can get benefits of filing a joint tax return after three years of registering their relation.
In Canada, a couple will be considered to be co-habiting only after successful completion of one year, they may live apart while maintaining the relationship. Co-habitation ends at the death of one partner or on the will of at least one partner. A co-habiting relationship cannot be established with more than one person at a time period, conjugal relationships are not allowed and of course, both the partners should not be minors. Like many other countries, Canada has also provided co-habiting couples with several different provisions like couples having children in the relationship, provisions for divorce including equal division of assets, debts. Unlike other countries, in Canada, no distinction is made in the eyes of law between married and cohabiting couples.
Pros and Cons of Live-in relationship
As every coin has two sides, likewise live-in has its own merits and demerits, which are equally important. The pros and cons of a live-in relationship are as follows:
Every individual has framed a demeanour, conduct as well as a character for their partner. But a reality check comes after living together with him/her. That’s why nowadays live-in relationship is increasing. It serves as a test before marriage and helps the individuals to select a life partner after testing all compatibilities, like this life after marriage is also lived and foreseen by the partners. Live-in helps an individual to learn how to do household chores, how to manage them within their monthly budgets along with the savings for the future. It gives a realistic approach to learning and practicing freedom but with having responsibilities of house and themselves. On living together under the same roof as a married couple, both the partners will get to know about their as well as their partner’s sexual desires. They will learn about each other’s urges and their body needs along with their capacities. Some divorces are due to the sexual problems of partners, so these divorces will also be reduced.
Some cohabiting couples have deep bonding than those who straightforwardly got married because while live-in, both partners tend to appreciate each other’s effort, and mutual respect is there whereas, in a marriage, efforts are taken for granted. Living together for the purpose of knowing each other, forces an individual to find good in their partners and love them with their worst also. So, therefore the relationship is deepened and enriched in live-in. Both the partners in a live-in relationship are financially independent of each other, they can spend for their own purpose on their own, they don’t have to seek permission from the other. Also, some people tend to save money by joining households such as mortgages, utilities, house maintenances, and other household chores, in all these factors cost is reduced to half. Thus, it provides financial freedom to both the partners in live-in. At the time of the breakup, the partners have to face very few legal consequences in comparison to divorce after marriage. Partners are not obligated to give any property to others at the time of separation. Thus, in live-in a lot of ease is given to both the partners from the legal point of view.
In cohabitation there are very few restrictions, from society as well as from family, therefore, uncertainty in the relationship is high. The couples want to have a perfect relation including a perfect state of emotional as well as sexual desires, and due to non-fulfillment of such high ambitious imaginations, mostly breakups happen. On living together, couples save many sorts of money like house rent, household chores payment, etc., as all of these are halved, but there are many other benefits which they lose in comparison to a married couple, i.e., cohabiting couples have to pay an estate tax, cohabiting couples on gifting something have to face many consequences, health insurance rates are higher than a married couple, etc. In this twenty-first century, most societies still have many conflicting views for co-habitation. It is still considered a taboo in societies. The one who decides to co-habit has to face many social consequences like social boycott, houses on rent are not given to a co-habiting couple, etc. In co-habitation, both the partners are independent, they are testing before marriage, thus both are free and no restrictions lie there. There is less monogamy while in a cohabitation relationship. In a cohabitation, one has to ensure that his/her estate goes to his partner because if no specifications are made then all the property will be given to the next kin instead of the partner. Specifications to be made are that will to be written, with making partner as a primary beneficiary.
Live-in is neither a bad concept nor a good one. It is upon an individual, how he/she understands it. Every culture has its own merits and demerits, it's upon individuals of a society, how they perceive it. Morals and ethics are terms that are set by a society, by generations, these morals need to be modified in order to maintain pace with modern times. In India, there are no specific laws for live-in but some legislations are interpreted to make the concept of live-in legal. The legislations considered appropriate to be read in live-in related cases involve- Section-2(f) of the Domestic Violence Act, Section-125 of CR.P.C, Section114 of the Indian Evidence Act, Section-21 of the Hindu Adoption Act, and many others. There are many cases in which court have proved that live-in relationship is legal in India. For example, in the case of Badri Prasad Vs Dy. Director of Consolidation, the court held that the relationship was valid.
Globally also, live-in is legalized. In countries like Switzerland, Japan, Germany no laws are laid down for cohabitation but live-in is also not illegal either. In many countries like France, Canada, Australia, etc., cohabitees are protected under the law. All over the globe, people are accepting and welcoming this new culture of living together. Marriage is a social institution but still, many crimes occur after marriage also like marital rape, domestic violence, and many more, so we cannot blame marriage for those crimes, likewise live-in cannot be pre-assumed as a deviance factor in society. It’s the need of a society, that learns more about live-in and then makes a rational decision. As change is the only constant thing in this world, thus society needs to think and work upon the same.[i]
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