This article has been written by Mr. Dhirendra Singh, a !st year law student of Modern Law College, Pune.

ABSTRACT

This article on “legal implication of live-in relationship in Hindu divorce laws” helps us to  the  understand meaning of   live-in relationship and to who can enter into live-in relationship. It tries to find out relevant provision to live-in relationship in Hindu Laws relating to marriage and divorce. Article tries to give a timeline as to how the live-in relationship got legal protection in India, This article tries to establish an outline of legal framework that has been made by judicial pronouncement by the courts from time to time. This article is about how the live-in relationships are terminated and what are the legal implications of such terminations. It also tries to explore what safeguards shall be there to ensure a peaceful society with an acceptance of live-in relationships.

INTRODUCTION

Live-in relationship one of the most discussed words in courtroom, law schools, media houses and experts panel in India. A Live-in relationship is referred to an arrangement consensually made by a couple to live together under same roof without getting married. Both the individuals live together not because they are married but because they want to cohabitate together.

 It is an arrangement where a couple enjoys the legitimacy of consensual acts of romance and sexual intercourse without getting bonded in institution of marriage. Though Live-in relationships are not illegal in India yet they come up with some sense of responsibilities and obligation, may not of that degree of obligation which comes up with marriage.

LIVE-IN RELATIONSHIP AND PERSONAL LAWS

Institution of marriage and divorce in India are regulated by personal laws of the community, such as Hindu Marriage Act 1955, Christian Marriage Act etc. These laws elaborately provide details and explanations as to who can marry, elements of a marriage, conditions of a valid, void, voidable and irregular marriage. These personal laws in India provides the ground on which a couple can seek divorce and come out of institutional obligations of marriage.

A couple living together without marriage in India was considered to be taboo till the mid of 21st century. As the society witnessed a globalization, progressive ideas discerned in the society and it started accepting the concept of live-in relationship. And gradually developed the legal implications of it. Though Live-in relationship is not defined in any code but Honorable Supreme Court of India in the case of Indra Sharma Vs VKV Sarma, 2013 stated about five types of relationships

1. Simplest kind of Live-in relationship is when a major unmarried female and a major unmarried male cohabitates together domestically.
2. Domestic Cohabitation between major unmarried woman and a married man.
3. Domestic Cohabitation between major unmarried mad and a married woman.
4. major unmarried woman unknowingly entering into Domestic Cohabitation with a married man.
5. When two Homosexuals who are partners and cannot lead to marital relationship. As there is no legal recognition to marriage between homosexuals couples.

LEGITIMACY OF LIVE-IN RELATIONSHIP IN INDIA

Western Countries appears to be ahead in accepting it , and there is broader acceptance of couple living together as it is apparent form their civil union agreements. India has majority of Hindus and in according to Hindus Marriage is one of the 16 sacraments unlike the civil contract in western countries. Marriages in India are considered an institution which plays an important role in socialization of persons. Yet with progress of the society and liberal minds paved the way for legal recognition of Live-in relationship In India.

The case of Badri Prasad Vs. Dy Director of consolidation AIR 1978 was a watershed judgement in arena of recognition of live-in relationship in which Hon’ble Supreme Court acknowledges a Live-in relationship deeming it as a valid form of Marriage. The court bestowed legal legitimacy to a Live-in relationship of a couple who lived together for 50 years.

Justice Krishna Iyer in the case of Badri Prasad (supra) stressed that “a compelling presumption arises in favor of matrimony when partners have cohabited extensively, akin to husband and wife.” The burden of proof will be on who wish to negate the presumption. The law appears to be leaning towards acceptance of Live-in relationship.

In the case of Payal Sharma Vs Nari Niketan AIR 2001. It was held that a man and woman can cohabit together as per their will without getting married. Supreme court observed that though Live-in relationship is regarded as immoral by society yet they are not illegal and Liv-in relationship does not constitute any offence.

Hon’ble Supreme court in case of S.P.S. Balasubramanyam vs Suruttayan AIR 1992 said that if a man and woman live under the same roof and cohabit for considerable years, there will be a presumption of marriage under section 114 of the Indian Evidence Act.

Thus, Supreme court through its various judgements legalized the Live-in relationship and tried to wash out the taboo. Society and state by referring to the judgements gradually shifted and started accepting the Live-in relationship.

LIVE-IN RELATIONSHIP AND THE HINDU LAWS.

Hindu Laws are codified after taking the essence from the Shrutis, Smiritis, commentaries, legislations and judicial precents. Following laws were legislated which consists laws related to marriage, divorce, adoption, succession, maintenance and guardianship.

1. Hindu Marriage Act 1955
2. Hindu Succession Act 1956
3. Hindu adoption and maintenance act 1956
4. Hindu Minority and Guardianship Act 1956.

Marriage and Divorce under Hindu Marriage Act !955.

Hindu Marriage Act 1955 elaborately describes the elements and essential conditions for marriage between two Hindus.

1. Person intending to marriage shall not have a living spouse at the time of marriage.
2. Both the partners shall be of sound mind, capable of giving assent and fit for procreation of child and shall not be subjected to recurrent attacks of insanity.
3. The bride groom must have attained 21 years of age and the bride must have attained the age of 18 years.
4. They shall not be within prohibited degree of relationship until customs allowed.
5. They shall not be within sapinda relationship until customs allowed.

Thus, Hindu laws for marriage is silent about Live-in relationship and thus these matters are decided on the basis of Justice, Equity and Good conscience which is considered an important source of law for every personal laws specially when law is silent on any matter or there is conflict in contents of sources of law.

Section 13 of Hindu Marriage act 1995 provides for grounds on which a Marriage solemnized in accordance with this act, before or after the commence of act can be dissolved. The grounds for divorce are:

• Adultery.
• Cruelty,
• Desertion for not less than 2 years,
• conversion to other religion,
• Incurably, unsoundness of mind,
• Either of the partners suffering from communicable venereal disease
• Either of the partner has renounced the world
• Either of the partner is not heard of as being alive for a period of seven years or more by those who would naturally hear of it.

There are some specific grounds of divorce mentioned which can be exercised by the wife only, like Bigamy, Husband after solemnization has been guilty of rape, sodomy or bestiality etc.

Also, they can go for mutual divorce under section 13B of HMA 1955, It is a condition where both the partner realize and accept the fact that their marriage has been irrevocably broken down and want to dissolve their marriage. Only this section has a distant resembles with Live-in relationship.

Thus, Hindu Laws talks only about divorce of those marriages which were solemnized in accordance with this act and it is completely silent on Live-in Relationship may be because this concept was not found in any of the source of Hindu law out of which Modern Hindu laws are codified. Thus, judiciary through various judgements made rules and paved the way for many case as to how they will come under ambit of Hindu Laws.

Delhi High Court In Case of Payal Sharma v. N. Talwar 2018 held that a woman in a live-in relationship is entitled to the same rights as a legally wedded wife under the Hindu Marriage Act, 1955 and that a child born out of such a relationship is entitled to maintenance under Hindu Adoption and maintenance act.

TERMINATION OF LIVE-IN RELATIONSHIP

Live-in relationship as said by Hon’ble Supreme Court are not crime and also not a sin, Though, it is not widely acceptable by society yet it is not illegal in India. Since, these relationships are not recognized and codified in any of the personal laws in India they are more prone and vulnerable to breakdown. 

There are no rules or laws existing in India which regulate the termination of Live-in relationship. Either of the partner can decide to walk out of the relationship. It is pertinent to mention here that though laws do not exist with respect to live-in relationship yet Judiciary through its judgement have regulated the after effects of termination of live-in marriage.’

LEGAL IMPLICATION OF TERMINATION OF LIVE-IN MARRIAGE.

In the case of Indra Sharma v VKV Sharma 2013 Supreme Court held that women in a live-in relationship is entitled to maintenance if the man deserts her or refuses to maintain her.

Delhi High Court in Case of Payal Sharma v. N. Talwar 2018 held that a woman in a live-in relationship is entitled to the same rights as a legally wedded wife under the Hindu Marriage Act, 1955 and that a child born out of such a relationship is entitled to maintenance under Hindu Adoption and maintenance act.

Thus, a woman living in a relationship can claim maintenance under HMA 1955 and also under s. 125 of CrPC.

SAFEGUARDS REQUIRED FOR LIVE-IN RELATIONSHIP

Since, these relationships recognizes the free will and liberty of individuals it is necessary to safeguards interests of Individual. Legislations are required to regulate Live-in relationship as no laws exist with respect to inheritance, succession of partners of live-in relationship. Legislation will help in de-stigmatization of Live-in relationship. 

Though courts at various instances have provided legal protection to women in live-in relationship yet there is a need for comprehensive laws which can address all the legal issues in gender- neutral manner.

CONCLUSION

With the change in mindset of society and prevalence of liberal ideas in society, live-in relationship have attained some degree of acceptance in society and as a demand of which legal framework through judiciary has come to existence. While legislations are absent, Judiciary have recognized the validity of such-relationship and also provided legal protection to persons through its judicial pronouncements.

The Courts have held that live-in relationship are not illegal, though not acceptable in society yet are not immoral. Recently, supreme court have held that live-in relationship is not a sin. Consenting major individuals have full right to live together under a same roof.

However, there still exists some challenges which requires due deliberation at every stage, social, political  and judicial. Legislation or courts still have to decide many matters of succession and rights special in case of LGBTQ community which will mushroom in wake of termination of a relationship., as they are also now permitted to live together. How their relationship will be viewed and recognized.

No doubt there is a long way to go to achieve a society in which rights of every individuals will be accepted, respected and celebrated.    

REFERENCES

 Badri Prasad Vs. Dy Director of consolidation 1978 AIR 1557, 1979 SCR (1) 1

Indra Sharma Vs VKV Sarma, 2013,15 SCC 755

Payal Sharma Vs Nari Niketan AIR 2001.

S.P.S. Balasubramanyam vs Suruttayan AIR 1992 SC 756, 1992 Supp (2) SCC 304

Payal Sharma v. N. Talwar 2018

Hindu Marriage Act 1955

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