Practice Question – In the light of judicial intervention on ‘Live-in relationships’, discuss the future of marriage and family in India. [UPSC 2019]
Approach – Introduction, Define Live-in relationships, Analyse the judicial intervention and legal dimension revolving live-in relationships in India, Give the possible impacts on the institutions of marriage and family in India due to such legal interventions, Conclusion.
Recently, In a significant ruling where it allowed the protection plea of a couple in a live-in relationship, the Punjab and Haryana High Court has observed that the “individual has the right to formalise the relationship with the partner through marriage or to adopt the non-formal approach of a live-in-relationship”. The court directed the Haryana Police to ensure that neither the lives or liberty of the couple is harmed as it stated “in law, such a relationship is not prohibited nor does it amount to commission of any offence” and “such persons are entitled to equal protection of laws as any other citizen of the country”. The order, passed by the bench of Justice Sudhir Mittal, comes just a few days after two different single benches of the Punjab and Haryana High Court turned down two similar petitions of live-in-relationship couples while observing “if such protection as claimed is granted, the entire social fabric of the society would get disturbed”.
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
Before independence in A.Dinohamy v.WL Blahamy, the Privy Council laid down a broad rule postulating that, “Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.” The Allahabad High Court, in Payal Sharma v. Superintendent, Nari Niketan, and others, stated that a live-in-relationship is not illegal. Justice M Katju and Justice R.B. Mishra stated, “In our opinion, 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 not illegal. There is a difference between law and morality.” In Patel and others case, the Supreme Court observed that live- in-relationship between two adults without a formal marriage cannot be construed as an offence. It also stated that there is no such statute which postulates that live-in relationships are illegal. The same proposition was upheld in the case of Tulsa v. Durghatiya, where the long term live-in-relationship was recognised as equivalent to marriage. In Kushboo vs Kanniammal the opinion of the Supreme Court has further provided a positive impetus to live-in- relationships. The case of the prosecution was that the comment of the actress Khushboo allegedly endorsing pre-marital sex will adversely affect the moral fabric of society. A three judge bench comprising of Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan observed, “When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence”
Adding feather to the cap, the Supreme Court of India in D.Velusamy v D.Patchaiammal differentiated between “live-in relationship” and “relationship in the nature of marriage” and
laid conditions for women seeking maintenance in live-in-relationship. In the judgement Justices Markandey Katju and T S Thakur opined that in order to get maintenance, a woman, even if not married, has to fulfill the following four requirements: accordingly maintenance claim can me sought by the spouse.(1)The couple must hold themselves out to society as being akin to spouses (2)They must be of legal age to marry (3)They must be otherwise qualified to enter into a legal marriage including being unmarried (4)They must have voluntarily cohabitated and held themselves out to the world as being akin to spouses for a significant period of time. The court further stated that a “relationship in the nature of marriage” under the Domestic Violence Act 2005 must also fulfil the above requirements, and in additions the parties must have lived together in a “shared household” as defined in Section 2(S) of the Act. . Merely spending weekends together or a one night stand would not make it domestic relationship. Justice Katju further elaborated, “In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005.
Similarly the other major concern was deciding the legitimacy of the children born out of live-in relationship, once again the Supreme Court highlighted the plight of children born out of live-in-relationship in the case of Uday Kumar v Ayesha & others the bench of Justices B S Chauhan and Justice Chelameswar stated that children born out of prolonged live-in relationships could not be termed illegitimate. This judgement has overshadowed all the earlier understanding regarding the legitimacy of the children born out of live-in relationships. Hence, though more or less uniformity has been exuded in a positive direction by the court when it comes to live-in-relationship.
PROS OF A LIVE-IN RELATIONSHIP
- You can be just yourself as there is no pressure for pleasing the parents or extended families also you can divide the expenditure. The societal duties and the burden of families need not be shared and a person can actually enjoy his/her personal space in the relationship. They have lot of financial freedom
- People in cohabitation generally get lot of time to know each other’s nature and temperament. This makes it easier for them to take a decision of getting married with their live in partner. People get to check their emotional and physical compatibility.
- Live in relationships are usually free of legal obligations of any kind. If you are not happy with your partner and you feel that there is no scope of improvement, you can easily walk out of the relationship and there will be no legal harassment like divorce filing etc.
- People in live in relationships are very practical in approach and they feel that they are both equally responsible parties to the relationship. Also both are not dependent on each other financially, emotionally or legally since the door out of the relationship is always open.
CONS OF A LIVE-IN RELATIONSHIP
- People don’t pledge themselves to each other and hence lacks a loyalty factor.
- Lack the stability and resect that marriages can offer.
- Women could be more vulnerable to exploitation as they have lesser legal rights as compared to married women.
- Society frowns and ostracises them.
In a country like India, respect for human rights is an integral part of democratic system. Every individual has the freedom to choose his life and life partner for setting up a family through marriage. The purpose of marriage is to create a sense of commitment irrespective of its pitfalls. Marriage is no guarantee for everlasting happiness but provides legal and social recognition and protection in the society. The changing scenario of people moving into live-in-relationships is an issue of individual right and privacy. Though the number of people supporting such practice may be less in number but there is a genuine concern that in future people may prefer it for marriage. In the absence of legislation, judiciary in India through its wisdom has immensely contributed in understanding the problems relating to live-in-relationships and has maintained a balanced position.