Cohabitation as a Legal Controversy in India

By Pratiksha Yadav, Banaras Hindu University, Varanasi.

Traditionally, in India, there existed only one kind of relationship between an unrelated male and female and that was “Marriage”. Marriage legally entitles both the persons involved, to co-habit; the children born out of a legal wedlock are legitimate; the wife is entitled to maintenance during the subsistence of marriage and even after the dissolution of marriage and many more.

But with the changing times, Indian society is slowly opening its doors for western culture and lifestyles and one of the most crucial episodes amongst it, is the concept of Live-in-Relationship.

Live-in-Relationship forms a characteristic feature and style of living of couples, especially those in metropolitan areas. With each passing day, the number of unmarried partners living together is scaling high.

A live-in-relationship is an arrangement where a heterosexual couple lives together, without entering into formal relationship called marriage. It is also commonly known as “Cohabitation.”

WHY LIVE-IN-RELATIONSHIP?

Live-in-relationship has become an alternative to marriage in metropolitan cities, in which individual freedom is the top priority, amongst the youth and nobody wants to get entangled into the typical responsibilities of a married life.

However, live-in-relationships in a country like ours, are often considered a social taboo. The moral and ethical angles to the concept of a live-in relationship are subjective, especially in our country, where the conformist section of the society considers it to be a sin.

JUDICIAL APPROACH TO LIVE-IN-RELATIONSHIP

At present, in India, no law deals with the concept of live-in-relationship. But even in the absence of a specific legislation on the subject, it is praiseworthy that our Courts take an initiative and give certain recognition to such relationships.

The Fundamental Right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants.

The first case in which the Supreme Court of India first recognized live-in-relationship as a valid marriage contract, was that of Badri Prasad v. Dy. Director of Consolidation, in which the Court gave legal validity to a 50 years live-in-relationship of a couple.

The Supreme Court in Lata Singh v. State of UP held that live-in-relationship is permissible only in unmarried major persons of heterosexual sex. The live-in-relationship if continued for a long time, cannot be termed in as “walk in and walk out‟ relationship and there is a presumption of marriage between them

In the case of S. Khushboo v. Kanniammal & Anr., the Supreme Court held that living together is a right to life. Live-in-relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. The Court went on to ask as to how can it be illegal if two adults live together.

However in one of its judgments, Alok Kumar v. State, the Delhi High Court has held that live-in-relation is a walk-in and walk-out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live-in-relationships, the partners cannot complain of infidelity or immorality.

RIGHTS OF FEMALE IN A LIVE-IN-RELATIONSHIP

In June, 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of the Criminal Procedure Code, 1973. The view was also supported by the judgment in Abhijit Bhikaseth Auti v. State of Maharashtra and Others. In October, 2008, the Maharashtra Government also supported the concept of live-in-relationships, by accepting the proposal made by Malimath Committee and Law Commission of India, which suggested that if a woman has been in a live-in-relationship for a considerably long time, she ought to enjoy the legal status as given to wife.

The Protection of Women from Domestic Violence Act, 2005, provides protection to the woman if the relationship is “in the nature of marriage”. This is the first time that the legislator has accepted the concept of a live-in-relationship, by giving the status to those females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife.

CHILD BORN OUT OF LIVE-IN-RELATIONSHIP

Since there is no specific law that recognizes the status of the couples in live-in-relationships, the law as to the status of children born to couples in such relationships is also not very clear.

The Hindu Marriage Act, 1955, grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live-in partners. The future of children of live-in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. There must be a provision to secure the future of such children, also in turn entitling them to a share in the property of both the parents.

Again, in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live-in couples. In the case of Bharata Matha & Ors. v. R. Vijaya Renganathan & Ors., the Court held that a child born out of a live-in-relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenary property.

CONCLUSION

Evaluating the origin of the concept of marriage as a religious sacrament in ancient India, it can be said that the resentment of a live-in-relationship by the people, is not arbitrary. They have been conditioned into such mentality by their ancestral generations.

Live-in-relationship was an unambiguous concept until the Supreme Court of India took initiative and declared that live-in-relationship though considered immoral, is not illegal.

Through its various decisions the judiciary has tried to accord legality to the concept and protect the rights of the parties and the children of live-in couples. However, presently, there is need to formulate a law that would clarify the concept. There should be clear provisions with regard to the time span required to give legal status to the relationship, registration and rights of parties, and children born out of it. The utmost need of the hour is to secure the future of the children born to live-in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in approach. Though a live-in-relation provides the individuals involved enough freedom, due to the insecurity it carries with it, there needs to be a law to curtail its disadvantages.

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