January 10, 2024

Evolution of Legal Frameworks for Live in relationships in India

THIS ARTICLE HAS BEEN WRITTEN BY SHUBHAM KUMAR SINHA, A 1ST YEAR STUDENT AT NATIONAL LAW UNIVERSITY ODISHA(NLUO), CUTTACK

 

ABSTRACT–  Recent few decades have marked a new sparked debate around the legality and morality of live-in relationships in India. Through this article the author has tried to delve into the transformation of the legal framework around the same. the article will traverse through laws and judicial judgement around live in relationships. It will also mention some challenges around the same. lastly it would raise a need for a proper legislative framework and the need for legislative to pace for the same.

Key words– Live-in relationships, section 125 C.r.P.C. , Malimath committee report, The protection of women from domestic violence act 2005, S.Khushboo v. Kannialmmal, Indra Sarma v. V.K.V. Sarma, Morality, Child custody and inheritance

 

Introduction

Change is a Law of Nature, which is often resisted by the society as we always prefer comfort over the change which can bring an uncertain future. People fear change, but with evolving time changes has to be addressed and even adopted as things which were true earlier cannot be said blatantly right in the present time. Society have come a long way in history and have experienced many reforms and revolutions. With the advent of urbanized world which is more liberalized and globalized it was inevitable that our culture would also undergo some of this change. Culture, tradition, marriage were very big terms earlier or even it would not be a hyperbole to say that they were the bedrock of life. With the arrival of an industrialized world which is far more literate with women having somewhat equal rights and economic independence, society has changed a lot also with respect to the notion of marriages. With this radical change have come a new concept of what they call as live-in relationships, which is particularly emerging as a option of cohabitation among the youths mostly in urban educated upper middle class. It is becoming importantly famous among them as they feel that it provides them independence and protect them from the shackles of an institutional marriage setup. Live in relationship in simple words is a type of cohabitation between two consenting heterosexual couples without a proper marriage. In western countries it came earlier and now is very prevalent due to the very fact that the society there became economically and socially liberalized earlier as compared to us. It is known by different names in different part of globe some of them are deemed marriages, informal marriages or marriage by habit, common law marriages etc.  Though becoming a prevalent union between two couples it is yet to have its own proper law often leaving the people in this kind of cohabitation in grey light. The purpose of this article is to delve into this topic of live- in relationships and analyze the legal development regarding the same.

 

  1. law regarding live in relationships in india

Though a prevalent system, our country is yet to have any law which directly deals with such kind of cohabitation. However we are moving in the right direction. In last few decades some of the events have brought the attention of law makers on this topic. In the year 2008 the government in Maharashtra tried to amend section 125 of criminal procedure code with an intention to broaden the definition of the term wife in section 125 of C.r.P.C. by even including women who was with a man for a particular amount of period like his wife. It was basing its argument on a report which came in 2003 known as the Malimath committee report. This committee was set up to reform our criminal justice system in the year 2000 and was chaired by V.S. Malimath, a former CJI of Karnataka high court. This committee whose official name was the committee on reforms of criminal justice system submitted its report in 2003. It including suggestions to reform certain law under the head “offences against women” including a recommendation to amend section 125 of criminal procedure code which is related to maintenance rights of the neglected women, child and parents. The committee recommended to broaden this definition of wife under section 125 and to include woman who is cohabiting with a man as his wife for a long period of time.

This was basically was setout for secondary relationships of a married man and to deal with the challenges such non marital cohabitation can bring. To justify its recommendation the committee provided an explanation in clause 16 sub clause 1 point number 2 (16.1.2) of the report which is like “A woman in a second marriage is not entitled to claim maintenance as in law a second marriage during the subsistence of the first marriage is not legal and valid. Such a woman though she is de facto the wife of the man in law she is not his wife. Quite often the man marries the second wife suppressing the earlier marriage. In such a situation the second wife can’t claim the benefit of Section 125 for no fault of hers. The husband is absolved of his responsibility of maintaining his second wife. This is manifestly unfair and unreasonable. The man should not be allowed to take advantage of his own illegal acts. Law should not be insensitive to the suffering of such women. Therefore the Committee suggests that the definition of the word ‘wife’ in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.”

Although it is very clear that the malimath committee was clearly not talking about the live-in relationship but it opened the gate for the legal consideration on it. Based on recommendations of Malimath committee the Maharashtra government tried to amend section 125 of C.r.P.C. and it was seen as an attempt to legalise live in relationships.

Another major event that happened was in 2005, a legislation came that is The protection of women from domestic violence act , 2005. This was the first time any act or law covered relationships which were in nature of marriages. This was the first legislation which recognized the live in relationships. In clause 2 which deals with definition in this act defines aggrieved party in sub clause a as – “aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”.

Further more in sub clause f of the same clause 2 it defines 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 in the nature of marriage, adoption or are family members living together as a joint family” this broad definition of domestic relationship and an aggrieved party indirectly touched on non marital cohabitation of two heterogeneous couples. Although this act only dealt with the domestic violence of women in such relationships and was to protect them for the same and should not be seen as something which is legalizing such setup. Although the important thing is that with arrival of such legislation the law acknowledged the existence of such relationship.

 

  1. judicial intervention

One of the important area to examine the legal recognition of the live-in relationship is to analyze the judicial decisions given by the learned courts of our country. Judiciary through series of rulings has played an important role in framing the rights and responsibilities of individuals in live-in relationships.

One of the significant event in this regard was the supreme court’s decision in the case of S.Khushboo v. Kannialmmal in 2010. The court held that living together is a part of fundamental right of right to life and adults are free to do so. This ruling set the precedent by recognizing the right of individuals in choosing their partners and to decide their future themselves and the important right to privacy.

In the follow up cases such as Indra Sarma v. V.K.V. Sarma (2013) , the court further pressed that the principle of live-in relationships deserve legal recognition and protection. The court in this case created an exception to the relationships that are in nature of marriages and recommended that the scope of the legal rights given to married women should also be expanded to take the unmarried couple who are in live-in relationship under its ambit.

These judicial judicial precedents mark a departure of traditional norms and acceptance of changing dynamics of relationships by our judiciary. However this is not all good , since in absence of any proper legislative guidelines different courts adopt a different approach in this matter and hence a need for uniform legal framework is important.

 

  1. challenges and controversies 

While the legal side of live-in relationships have shown some progress it is not free from challenges and controversies. The acceptance of such kind of setup sparks debate around morality, cultural values, and the purity of institution of marriage. Understanding these debates are also an important aspect of analyzing the legal recognition of the set up.

  1. a) Resistance by society:

One of the important challenges comes out from the deeply engraved societal norms and conservative mindset of society towards relationships outside the institution of marriage. Live- in relationship despite of increase in trend, continue to face opposition from different segment of society which sees them as something eroding their cultural traditions.

Morality and ethics are often lectured while supporting such kind of opposition. Conservative argues that the purity of marriage is insulted by acceptance and recognition of the vulgar set up of live in relationships. This resistance is not only confined to a particular social and economic strata but is widely prevalent among the cultural sentiments of the older generations. And this difference in individual aspiration and societal expectations is a big problem. While judiciary have accepted that it is the right of individuals to choose their partners and their living arrangements but the society creating resistance is a big challenge for acceptance of live-in relationships.

  1. b) Legal ambiguities:

The void left for any legislative framework for live-in relationships leads to legal ambiguities and uncertainty. Unlike marriages which are governed by specific personal laws, live in relationships are often left in grey area, surrounded by uncertainty.

These uncertainty often surfaces at the time of disputes when there is no clear picture what is the way forward. The lack of provisions also makes the individuals in live-in relationships vulnerable.

  1. c) Child custody and inheritance:

In absence of proper statutory law governing these in live-in relationships, disputes regarding the same is often very emotionally traumatizing.

Courts in these scenarios turn to existing laws related to guardianship and succession, however in absence of proper rules these rulings can often be inconsistent which may lead to miss delivery of justice. Hence a proper framework is much required.

 

conclusion

In conclusion, the legal recognition of live-in relationship is multi dimensional. From traditional norm of arranged marriages to the current landscape of live-in relationship, India’s response to such setup indicates its balance for tradition and modernity. Judicial precedents have played an important role in accepting such relationships and by ruling it to be valid in the eyes of law. Landmarks decisions like the one mentioned have laid the foundational stone for legal recognition of such laws.

However the legislation is still lagging with no dedicated law pertaining to live-in couples giving rise to challenges. The societal implications of such set up is beyond the two individuals directly involved, it influences dynamics of a family and social attitudes. Certain issues need to be resolved on war foot basis like the impact on child born out of live-in relationships and his/her legal rights. For big issues like this we need to hurriedly pass a enactment for such relationships as day by day it is becoming prevalent and we cannot leave a vast population in a grey area.

References

 

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