By Amrutha Bawgi and co-authored by Thanmai Sree, Presidency University, Bangalore
amruthabawgi@gmail.com, thatha.thanmai@gmail.com| May 11, 2021
ABSTRACT
It is a known fact that India is a country rich in culture and history. We also know that India has been embracing western culture in recent years, whether in science, technology, education, politics, or even marriage. In India, the term “live-in relationship” has become something of a trend. Two people who live together without being married and who do not share the same obligations as a married couple. However, many people regard this as a taboo that offends Indian culture. This article discusses whether such relationships are against Indian culture and whether they are legal.
Introduction
India is a country with different religions and cultures. Different part of the country has a different culture. Indians are very conservative they abide by the rules of their Gods which again differ based on religion. In India especially Hindus treat marriage as sacramental bonding between two people. The concept of husband, wife and family is still given utmost importance in many communities of the country. Cohabitation had been a taboo since British rule.
These days younger generations are following this western culture called live-in relationship which means basically a relationship in which a man and a woman mutually decide to live together under one roof without getting married to each other. This is a common concept I western culture which is being adopted by Indians these days.
Younger generations or few set of people in the country have a really good opinion on these relationships. They believe that live relationships help them to check their compatibility before marriage. To test whether they really can stay together or whether they can adjust to their partner’s requirement. Live-in-relationship is a de facto union in which couple shares common bedroom without solemnizing marriage. It is to determine whether they could live with each other for their entire lives. And these people believe is that it does not involve families as to the way related to families in marriage. If the couple decide not to live together anymore then they mutually break up without really involving the families.
But again, there is large percent of population in the country which believes that live-in relationships are against Indian culture. Because in India especially, the Hindu religion prefers ‘One man, one wife’ as the most sacred form of matrimony. Indian believe that people should use traditional way of knowing each other that is arrange marriage, dating, texting, meeting up frequently to get to each other. But not to the cross the line drawn by the society in terms of marriage and sex [1]. Marriage is sacred bonding between a couple who have taken the marriage vows to be with each other no matter whatever happens and seek the blessings of elders. Because in the case of live-in relationship if the girl gets pregnant and they decide to break up it will lead to humiliation and troubles to the girl.
Generally, in India men do not want to marry a girl who is pregnant before marriage in most cases this will lead to abortion which is again illegal. Indians try to pretend like Western people but 90% of the men are obsessed with “virginity”, they fail to think beyond that. They will easily tag a non-virgin girl as bad, because she has crossed her limit to go and live-in with a guy who wasn’t her husband. Marriage is socially and morally binding on couples so they think twice before filing divorce, but live-in relationships may or may not work.
Difference between live-in relationship and marriage
The main difference between live-in relationship and marriage is the matrimony or the wedlock, a recognized action in which both parties create a union or sign contracts which establishes certain rights and obligations. Whereas live-in relationship nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other [2]. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will do so [3].
Legality of live-in relationship in India
Indian judiciary have never clearly showed whether these relationships are legal or not but neither did it deny. It focused giving justice to the parties. It decides cases depending on the circumstances and social morals.
But in these recent years there have been few landmark judgments by the judiciary which deals with live-in relationship and in some circumstances considers it as a legal relationship. In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others [4] the high court of Allahabad ruled out that a lady of about 21 years of age being a major, has right to go anywhere and that anyone, man and woman even without getting married can live together if they wish. In Patel and others case the apex court observed that live- in –relationship between two adults without formal marriage cannot be construed as an offence.
Also, the judiciary recognized the child out of these relationships legitimate if they are together for a very long time. This was decided in the case of In Radhika v. State of M.P. [5] the apex court observed that a man and woman are involved in live-in-relationship for a long period, they will be treated as a married couple and their child would be called legitimate [6].
Maintenance of Women
The Right of maintenance is granted in all the personal laws i.e., Hindu law, Muslim Law, Christianity, or Zoroastrianism. However, these rights are only applicable for a married woman i.e., the wife. None of these regions consider a live-in relationship as a marriage. Instead, if a woman lives with a man without marring that women is considered as an unchaste. But this is not the situation of the judicial system, the judicial system has made a remedy available for woman in such situations under Section 125 of the Crpc [7]. In the beginning a woman who was in a live-in relationship was not considered as a wife and was not allowed to use this provision, later on, Malimath committee report and the 8th Law commission recommended to include woman are in a live-in relationship within the purview of Section 125. In Abhijit Bhikaseth Auti v. State of Maharashtra and Others [8] the supreme court accepted this principle and asserted that marriage in a strict form need not be shown to claim maintenance under section 125 of the CrPC. Women can also seek for additional maintenance under any other law as per section 20(1) of the Protection of Women from Domestic Violence Act [9].
Maintenance of Children
The maintenance of the child born from the parents who are in a live-in relationship is also considered equally as of how a child is born out of martial relations according to the judiciary. According to Hindu law the father has to maintain the child, whereas according to Muslim law the father has no such obligation. But section 125 of the CrPC provides a legal right to children to claim for maintenance even if the personal laws do not consider them as a legitimate child.
Section 21 of Hindu Adoption Act, 1956 says that a son whether legitimate or illegitimate till the time he is minor and so long the daughter is unmarried she shall be entitled to maintenance by his/her father or from his estate of his/her deceased father. And if there is any denial of maintenance rights to children who are born out of live-in relationship it could be challenged in the court for their rights under Article 21 [10]. This decision was upheld in the Kerala High court.
In case of the woman and man separating from a live-in relation and they have a child, then the custody of the child will be decided by the court on the bases of the facts and circumstances. This was decided in the case of Gita Hariharan v. RBI [11].
Domestic Violence Act, 2005
The domestic violence Act was enforced in 2005 as an attempt to protect women from physical, mental, verbal, and economic abuse in marital relationships. In the beginning this act was only applied to the married couple according to Section 2(f) of the DV Act. Later on, the supreme court noticed the fact that the definition also includes that this not only applies to married couple but also to a ‘relationship in the nature of marriage’.
According to Section 2(f) of the Act the term “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 [12]. Many courts have tried to interpret the term ‘a relationship in the nature of marriage’. This issue was discussed in length in the case of Indra Sharma v. VK Sharma [13]. In this case the supreme court defined the term marriage and explained how a man and woman is recognised as husband and wife. It further laid down 8 guidelines that are to be followed to decide whether the relationship of the women and man can consider as a relationship in the nature of marriage. This term has been mentioned and explained in many other cases after these 8 guidelines were laid down. Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.
Conclusion
The Indian culture does not like pre-marital sex; therefore the legislature also cannot promote it, though at times the couple may express their opinions intensively personal and go against it. Thus, the judiciary has to ponder over such controversies and issues and bring a proper rule and amend the act in such a way that the women and the child born out of live-in relationship are protected and are given equal rights like a marital relationship.
[1] https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
[2] https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
[3] https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
[4] AIR 2001 ALL 254
[5] ILR [2008] MP 58
[6] http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
[7] CrPC 1973
[8] Crl. W.P. No. 2218 of 2017
[9] DV Act, 2005
[10] Indian Constitution Of India
[11] AIR 1999, 2 SCC 228)
[12] Section 2(f), The Protection of women from Domestic Violence Act, 2005.
[13] (2013) 15 SCC 755
Bibliography
• http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
• https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
• https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
• https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
• http:// Live-in-Relationships: The Indian Perspective, India Law Journal
• Ms. Githa Hariharan & Anr vs Reserve Bank of India & Anr on 17 February 1999 (indiankanoon.org)
• (thebetterindia.com)
• Anuja Agarwal, “Law and Live-in Relationships in India”, Economic & Political Weekly
